DCCC 259/2020
[2021] HKDC 234
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 259 OF 2020
———————-
HKSAR
v
Fong Chi-hung (D1)
Lam Chin-to (D2)
Chiu Ho-chun (D4)
———————-
Before: HH Judge Casewell
Date: 15 January 2021 at 11.18 am
Present: Mr Wayne Lee, PP of the Department of Justice, for HKSAR
Ms Fiona Nam Hoi-yan, instructed by Cedric & Co, assigned by DLA, for the 1st defendant
Mr Edward Poon Ting-bond, instructed by S C Ho & Co, assigned by DLA, for the 2nd defendant
Ms Adgie N K Chan, instructed by C & Y Lawyers, for the 4th defendant
Offence: (1) Unlawful assembly (非法集結)
(against all defendants)
(2) Resisting a police officer in the due execution of his duty(抗拒在正當執行職務的警務人員)(against D1 only)
(3) Possession of a prohibited weapon (管有違禁武器) (against D1 only)
(4) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D1 only)
(5) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D4 only)
(7) Possession of apparatus for radiocommunications without a licence
(在沒有領有牌照的情況下管有作無線電通訊之用的器具)
(against D1 only)
———————
Reasons for Sentence
———————
I am asked to consider a sentencing in respect of three defendants on this indictment today. These three defendants have initially pleaded guilty to a joint charge of unlawful assembly regarding an event on 10 November 2019. Two of the defendants, namely the 1st and 4th defendants, have also pleaded guilty to additional charges in respect of items found upon them at the time of their arrest.
The background to the offence is that and the facts that support the convictions of the defendants are that on the evening of 10 November 2019 a large group of persons had assembled in the area of Nathan Road and Shantung Street. Some 100 people were assembled in that area. This assembly caused police units to be dispatched to disperse those persons so assembled. The defendants were arrested during the dispersal operation.
In the areas where these persons assembled, an unlawful assembly took place. The people assembled there barricaded roads, occupied road carriageways, used laser-pointing devices against police conducting the dispersal operation.
Police arrested the 4th defendant in an area where a large group of people occupied roads and blocked those roads with miscellaneous items. The 1st and 2nd defendants were arrested in a large group of people clad in black and masked. The roadway was blocked with bricks and miscellaneous items were strewn upon the ground.
The 1st defendant was seen to hold a petrol bomb in his hand, which he discarded by the side of the road. The 1st defendant is also said to have resisted his arrest by hitting the facial shield of the arresting officer and lifting the officer up when he was being subdued, and those are the facts that support the 2nd charge against the 1st defendant.
In another direction in the same area, large numbers of people were gathered, dressed in black, holding umbrellas and shining laser pointers.
On arrest, a number of items were found on the defendants, particularly the 1st and 4th defendants. Some form the particulars in the charges faced by the defendant.
The 1st defendant was found to be in possession of a spring-loaded knife and that can be found in Charge 3, a charge of possession of a prohibited weapon, contrary to the section 4 of the Weapons Ordinance. The 1st defendant was also found to be in possession of a wireless microphone. That is reflected in Charge 7 against him, possession of apparatus for radiocommunications without a licence. He was also found to be in possession of the following additional items: plastic straps, a hammer, scissors, a crowbar and four petrol bombs, one of those being the petrol bomb earlier seen, with three additional ones under his custody and control, and these form the charge against the 1st defendant, Charge 4.
The 4th defendant was also searched and found in his rucksack and on his person were two petrol bombs, two lighters and a bottle of isopropyl alcohol, and that forms the basis of the 5th charge against the 4th defendant.
It is noteworthy that these events on 11 November took place during what is described by the Final Court of Appeal as the “sudden and severe deterioration of law and order in Hong Kong arising from protests and social unrest” during the period of September to November 2019. The Final Court of Appeal case that I am referring to is HKSAR v Kwok Wing Hang, which was the Court of Appeal’s decision 9 of 2020, and I refer to what was described as unchallenged evidence in that case, where it was described that the situation in Hong Kong deteriorated during October and November and was described as a “further escalation of violence and vandalism especially since the week of 11 November”, which would be shortly after these events that we are dealing with today, and what was particularly frequent was extensive road blockages with dangerous items placed on vehicular passageways and railway lines and it is even said that even petrol bombs and hard objects were hurled at moving vehicles and the like.
The Court of Final Appeal also noted the following phenomena at paragraph 91, the phenomena of what they describe as “black bloc” tactics, people concealing identity and thereby evading arrest and prosecution, and describe protestors using black clothing with little or no distinguishing features, and that is, in fact, included in the facts at paragraph 6 in this case.
Those are the basic facts that the court has to rely on in this case and show a serious and violent disorder taking place involving violence towards property.
The three defendants before me range in ages, but they all are people of clear records. The 1st defendant is aged 34, the 2nd defendant is aged 17, and the 4th defendant is now aged 26.
I have received mitigation from all the three defendants I am dealing with today. As I say, they all have the common feature of being people of hitherto clear record before they came to this court. They all have individual aspects of mitigation which they wish to put before the court. I will have to summarise those for the purposes of the sentencing process, but I have read all the documents contained in their mitigation bundles, including the letters of support and commendation from many people, and I note their contents.
I have also obtained reports which give me the backgrounds of all three defendants. Because the 2nd defendant was only aged 17, I have obtained additional reports on him to investigate a number of options as to sentencing that defendant.
I shall simply précis the 1st defendant’s position in this matter. He is aged 34, of clear record, coming to Hong Kong when he was 12 years old. He graduated with a Higher Diploma in Marketing and Media in 2011 and joined the Fire Services Department and been working as a fireman from that date until the suspension following his arrest on 10 November 2019. That means that he has had 10 years’ service in the Fire Services Department and was at one point in respect of an operation in 2017 awarded a commendation by the Director of Fire Services in recognition of his professionalism and perseverance in his mission. I have had the opportunity of reading a number of mitigation letters which commend the defendant to me from colleagues and superiors.
He is a father of two young children aged 2 and 1 and certainly at the time of his arrest was the sole breadwinner of his family and provided financial support to his parents.
The defendant in mitigation does not suggest to me the charges are not serious. He acknowledges the severity of the charges against him and I am told he understands a custodial sentence will be imposed because of the nature of the deterrent effect. He expresses remorse and has again expressed it to the probation officer who has interviewed him for the background report and would wish eventually on release from custody to serve society in some way again. He expresses regret for causing pain to his family.
In mitigation, I am asked to consider that the particular form of unlawful assembly in this case did not involve or cause bodily harm or damage to people. The defendant’s resistance to arrest was for a short time and, in respect of some of the charges, in respect of all of the petrol bombs, there was no evidence that they had been used, although there is evidence that the defendant had one petrol bomb in his hand during the course of the unlawful assembly, and this defendant asks for leniency.
As far as the 2nd defendant is concerned, he is, as I have already said, a young man. On his arrest, I am told that he suffered some knee injury, involving him being hospitalised for three days. He was 16 years and 1 month old at the time of the offence, with a clear record, studying in Form 6, a good record of conduct in school. This defendant has a particular skill. He is a footballer of a high level of competence and skill, particularly in the area of what is described as futsal, which is a — I think, believe is a Brazilian form of football, on a smaller pitch than regular football. There are a number of letters of commendation from the school social worker and his football coach and others. He is regretful and remorseful and hopes to study in future for a Bachelor of Arts in Physical Education.
The submission in respect of this defendant is that no specific acts of violence can be attributed to him. His conviction relies solely on his presence at the unlawful assembly. He appears to be dressed at the time in a style that suggests he has just come from football training, which is what was said in mitigation. And, besides his presence at the unlawful assembly, no other, as it were, tools or items such as offensive weapons were found on him.
A number of reports have been obtained on this defendant. They reflect the mitigation that has been put forward. The defendant being of the age he is, 17 years old, the court also has other options for sentencing besides the normal range of sentences of imprisonment and community service orders and probation orders. Also, the defendant is eligible for detention in the facilities run by the Correctional Services Department for training of young people, which is detention centre, rehabilitation centre or training centre. I am told from the report from the Correctional Services Department there are places available for him and he could be sentenced to any one of those options.
I deal with the 4th defendant. The 4th defendant also has expressed his remorse to the court and also in the course of interviews by the Probation Services. He is now aged 26, born and brought up in Hong Kong. He studied in City University and worked as a part-time bank staff at the time; lives with his parents and younger sister, and there are health issues in respect of his parents which are dealt with in the background report. He is said as coming from a close-knit family and has a previous clear record.
There are a number of mitigation letters in respect of the defendant.
In the defendant’s mitigation, he of course admits his presence at the site of the unlawful assembly and the possession of the items found upon him. He suggests in mitigation that the rubbing alcohol found on him was to use to clean wounds and that the petrol bombs found on him had been given to him by other younger people at the assembly and he was, as it were, holding them for them, but at the time when he was intercepted he had not disposed of them.
As far as the unlawful assembly is concerned, it is said that the defendant, although present, there is on the facts no evidence indicating he performed violent acts. And, finally, the defendant shows a genuine remorse, comes from a decent character and will not reoffend, and asks for leniency in respect of those matters. I note, for this defendant, he has also been detained for 14 months at this point.
Now I turn to the approach to sentencing. Of course, the case that courts must in sentencing approach in a way that is consistent and achieve consistency in the outcomes. The charges that these defendants face do not have a — what I call a directly applicable guideline but there are guidelines available.
I will turn first to the offence of unlawful assembly, contrary to 18(1) of the Public Order Ordinance, which all defendants face. The factual basis for this, agreed by all three defendants, is that they all took place in an unlawful assembly at the area, where a large number of persons assembled involving acts of barricading and occupying road carriages, including the use of laser beams against police, which amounted to conduct of disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear the persons so assembled would a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace. That is the agreed fact.
It must be noted that unlawful assemblies cover a wide range of circumstances, but these facts, as agreed by the defendants, establish this was a case of violent civil disorder characterised by violence towards the property, whether manifested as blockage of throughways and roadways, and as such is a serious form of unlawful assembly, and also took place during the course of a period of serious social disorder in Hong Kong.
The general approach to sentencing in cases of unlawful assembly has been dealt with by both the Court of Appeal and Final Court of Appeal in Hong Kong. The case is Secretary for Justice v Wong Chi Fung & Ors CAAR No.4 of 2016. The relevant part of that judgment is where the Court of Appeal at page 77:
“(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence, and the sentencing factor of rehabilitation.
(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”
At paragraph 153 they say:
“For serious cases, the main purpose of the sentence is to punish and deter. So the overall consideration of the court should be inclined towards imposing an immediate custodial sentence. Unless there are very exceptional circumstances, and these circumstances by definition should be rare, sentences other than an immediate custodial sentence, including suspended sentences and community services, are not appropriate.”
That is the words of the Court of Appeal, and that is the approach that I must take in respect of the sentencing on Charge 1 in this case.
Both the 1st and 4th defendants face charges which particularise and criminalise their possession of various items. Of particular relevance are the petrol bombs, otherwise described as “Molotov cocktails”. This is charged under section 62A of the Crimes Ordinance, Cap 200. That particular section has a maximum sentence of 10 years’ imprisonment.
I note there are no guideline sentences from the Court of Appeal in respect of this particular case or charge. The Court of Appeal has recently considered a starting point for sentence, where petrol bombs are used and ignited and thrown under the charge — and those will be found under charges of arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA 1087, and those charges involved offences of arson where there was recklessness as to endangerment of life. So that authority is not directly relevant to the facts of this case or the charge in this case, which alleges an intent to damage property.
The overview of sentencing in HKSAR v Yiu Siu Hong suggests that, for those offences, depending on the circumstances of aggravation or mitigation, a starting point in the region of 5 to 6 years is appropriate. I have been referred to some concomitant District Court cases under section 62A, where starting points for sentence have ranged between 3½ to 4 years’ imprisonment for possession of these forms of what we are in effect explosive devices.
An important factor in this case when assessing the starting point for sentence under the charge under section 62A of the Crimes Ordinance is that these items were possessed in a public gathering, especially a serious public disorder. Possession of these items does reflect a major escalation of risk and a major escalation of danger to others.
I take from this summary that simple possession of a petrol bomb at a violent disorder type of unlawful assembly gathering will lead to a starting point for sentence which ranges between 3 to 4½ years’ imprisonment, subject to various mitigating or aggravating factors in the circumstances of commission.
I also note, as far as the other offences that are charged in this indictment, the 1st defendant faces a charge of possession of prohibited weapon, where a maximum sentence of up to 3 years could be imposed. Under Charge 7, possession of the radiocommunications without a licence, a sentence of up to 5 years’ imprisonment can be imposed. Under Charge 2, resisting arrest, a sentence of up to 6 months’ imprisonment can be imposed.
Having dealt with that résumé of the sentencing powers of the court, I now deal with the individual sentences that should be imposed in respect of the individual defendants.
As far as the 1st defendant is concerned, I do reiterate that I note the mitigation advanced in his case and the commendations for his previous service and the good impression made on his colleagues. But I also have to bear in mind that the purposes of sentencing, in at least the 1st and 4th charges the defendant faces, the court has to give weight to punishment and deterrence, and, when that weight is given, very little or no weight can be given as to defendant’s motives or reasons for committing the offence and his personal circumstances.
Naturally, the conviction and sentencing of this case will mean the defendant will have to be separated from his family and also will find that a career in public service is no longer available to him. These are substantial punishments against the 1st defendant before one turns to whatever the prison sentence must be.
As I said, he is convicted in respect of Charge 1 and 4, where the primary purpose of sentence is deterrence. Accordingly, his personal circumstances and motivations are of small relevance to sentencing. The defendant’s past commendations and public service must be set against the reputational damage incurred by his involvement in this disorder.
Defendant is naturally entitled to a full one-third discount from the starting points for sentences that I will indicate.
As far as Charge 1 is concerned, that is a serious violent disorder. Defendant was present. He was armed with a knife and four petrol bombs at the time.
The Charge 1 is to a certain extent mirrored in its considerations with Charge 4, as far as the defendant is concerned. In determining the defendant’s sentence on Charge 4, I bear in mind that, firstly, he was in possession of the four petrol bombs set out in the charge. His possession of the radio telecommunications devices suggest that he was involved in some co-ordinating role as well. Also, other serious weapons were seized at the time, including a hammer, crowbar and the knife.
Finally, in respect of the defendant’s possession of the petrol bomb which was seen to be in his hand, that would reflect a serious escalation of the unlawful assembly if the defendant had chosen to find a way of igniting the petrol bomb. The fact that he had it in his hand is certainly more serious than it being placed in his rucksack.
On the 1st charge, in respect of the 1st defendant, of an unlawful assembly, I will take a starting point at 30 months’ imprisonment, reduce that to 20 months’ imprisonment for his plea of guilty.
On the 2nd charge of resisting a police officer, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for his plea of guilty.
On the 3rd charge of possession of the prohibited weapon, again take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for plea of guilty.
On the 4th charge of possession of a thing with intent to damage property, I will take a starting point at 48 months’ imprisonment, which I will reduce to 32 months’ imprisonment for the defendant’s plea of guilty.
On the 7th charge, possession of apparatus for radiocommunications without a licence, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.
I must consider what appropriate overall total sentence should be for this defendant. There is of course a number of overlaps between the various charges, particularly the 1st and 4th charges. Having regard to the factors I have already set out, I shall order the 1st, 4th and 7th charges should be served concurrently to each other and the 2nd and 3rd charges should be served concurrently to each other but consecutively to the 1st, 4th and 7th charges. That would give an overall total of 34 months’ imprisonment for the 1st defendant.
I shall deal now with the 4th defendant because the considerations in respect of his offence are similar to those of the 1st defendant. Then I will return to the 2nd defendant at the end.
The 4th defendant, the calculation of the sentences against him is similar in a way to the 1st defendant and I will take the same starting point for sentence on the unlawful assembly. He was present at a serious disorder in possession of petrol bombs, two petrol bombs. So I will take a starting point of 30 months’ imprisonment, reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.
He also faces the 5th charge, possessing things with intent to damage property, contrary to section 62(a) of the Crimes Ordinance. I do take account of the defendant’s account of how he came to be in possession of those two petrol bombs, but the petrol bombs were possessed with the capacity to light them and the defendant has admitted that he possessed them intending without legal excuse to use the said things to damage property, so I must bear that in mind when assessing the appropriate starting point for sentence. Again, the possession of petrol bombs at an unlawful assembly represents substantial escalation of the danger and risk.
And, finally, this defendant was dressed in a “black bloc” fashion, which would be an aggravating factor for him.
I will take a starting point in respect of this defendant of 3½ years on the 5th charge, which is 42 months, reduced to 28 months’ imprisonment for his plea of guilty. Sentences on Charge 1 and 5 will be served concurrently. Total of 28 months’ imprisonment.
The 2nd defendant. Again, I have set out the sentencing factors in respect of the 2nd defendant and a range of sentences are available to him, bearing in mind he is 17 years old. The authority dealing with the unlawful assembly, as I have already iterated, sets out that serious unlawful assembly – so this must fall into the category of a serious unlawful assembly – the object of the court is to punish and deter and the court should be inclined to impose an immediate custodial sentence.
Having regard to the sentences already passed on the 1st and 4th defendants in respect of this 1st charge, clearly an immediate custodial sentence is the appropriate sentence to be imposed and the court could only depart from that if there are exceptional circumstances, which are rare.
When determining this defendant’s sentence, I do bear in mind the absence of aggravating factors such as the defendant being in possession of other items or being seen to be actively participating in the violence. But what must be noted about this particular unlawful assembly is, as far as the facts that I have before me show, it always was a violent disorder and so the 2nd defendant must have joined this violent disorder knowing that that was its character.
I consider that I am bound by the authorities before me to consider this as a case where a sentence of imprisonment is appropriate for any person of the defendant’s age. As far as the recommendations contained in the various reports I have, the defendant is actually not recommended for a community service order. It is thought that a probation order would be more appropriate for him. But, having regard to the appellate direction, a probation order would be seen to be too lenient to disposal, even for a defendant of this age.
This would leave me with the only custodial options being an immediate sentence of imprisonment or the three forms of training that would be offered by the Correctional Services Department, for which the defendant is suitable for and for which there are places for him. I am told by the Correctional Services Department that this defendant is more suited to a detention centre order than any other of the orders that they can offer to this defendant.
In sentencing this defendant, I have already said that I bear in mind his youth, his good character beforehand. He has become involved in an offence for which a sentence of imprisonment must be imposed. Because of his age, I can find an alternative to that and the alternative that I will direct for this defendant is, in respect of the charge that he faces, Charge 1, he be sentenced to a rehabilitation centre, which will provide a regime which may assist in a more speedy release from custody. That is the order I will make: a rehabilitation centre on Charge 1 for the 2nd defendant.
(T Casewell)
District Judge
DCCC 259/2020
07/09/2021
葉佐文
區院
不認罪
不成立
無業
46
蒙面
11/10/2019
旺角
DCCC 259/2020
[2021] HKDC 234
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 259 OF 2020
———————-
HKSAR
v
Fong Chi-hung (D1)
Lam Chin-to (D2)
Chiu Ho-chun (D4)
———————-
Before: HH Judge Casewell
Date: 15 January 2021 at 11.18 am
Present: Mr Wayne Lee, PP of the Department of Justice, for HKSAR
Ms Fiona Nam Hoi-yan, instructed by Cedric & Co, assigned by DLA, for the 1st defendant
Mr Edward Poon Ting-bond, instructed by S C Ho & Co, assigned by DLA, for the 2nd defendant
Ms Adgie N K Chan, instructed by C & Y Lawyers, for the 4th defendant
Offence: (1) Unlawful assembly (非法集結)
(against all defendants)
(2) Resisting a police officer in the due execution of his duty(抗拒在正當執行職務的警務人員)(against D1 only)
(3) Possession of a prohibited weapon (管有違禁武器) (against D1 only)
(4) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D1 only)
(5) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D4 only)
(7) Possession of apparatus for radiocommunications without a licence
(在沒有領有牌照的情況下管有作無線電通訊之用的器具)
(against D1 only)
———————
Reasons for Sentence
———————
I am asked to consider a sentencing in respect of three defendants on this indictment today. These three defendants have initially pleaded guilty to a joint charge of unlawful assembly regarding an event on 10 November 2019. Two of the defendants, namely the 1st and 4th defendants, have also pleaded guilty to additional charges in respect of items found upon them at the time of their arrest.
The background to the offence is that and the facts that support the convictions of the defendants are that on the evening of 10 November 2019 a large group of persons had assembled in the area of Nathan Road and Shantung Street. Some 100 people were assembled in that area. This assembly caused police units to be dispatched to disperse those persons so assembled. The defendants were arrested during the dispersal operation.
In the areas where these persons assembled, an unlawful assembly took place. The people assembled there barricaded roads, occupied road carriageways, used laser-pointing devices against police conducting the dispersal operation.
Police arrested the 4th defendant in an area where a large group of people occupied roads and blocked those roads with miscellaneous items. The 1st and 2nd defendants were arrested in a large group of people clad in black and masked. The roadway was blocked with bricks and miscellaneous items were strewn upon the ground.
The 1st defendant was seen to hold a petrol bomb in his hand, which he discarded by the side of the road. The 1st defendant is also said to have resisted his arrest by hitting the facial shield of the arresting officer and lifting the officer up when he was being subdued, and those are the facts that support the 2nd charge against the 1st defendant.
In another direction in the same area, large numbers of people were gathered, dressed in black, holding umbrellas and shining laser pointers.
On arrest, a number of items were found on the defendants, particularly the 1st and 4th defendants. Some form the particulars in the charges faced by the defendant.
The 1st defendant was found to be in possession of a spring-loaded knife and that can be found in Charge 3, a charge of possession of a prohibited weapon, contrary to the section 4 of the Weapons Ordinance. The 1st defendant was also found to be in possession of a wireless microphone. That is reflected in Charge 7 against him, possession of apparatus for radiocommunications without a licence. He was also found to be in possession of the following additional items: plastic straps, a hammer, scissors, a crowbar and four petrol bombs, one of those being the petrol bomb earlier seen, with three additional ones under his custody and control, and these form the charge against the 1st defendant, Charge 4.
The 4th defendant was also searched and found in his rucksack and on his person were two petrol bombs, two lighters and a bottle of isopropyl alcohol, and that forms the basis of the 5th charge against the 4th defendant.
It is noteworthy that these events on 11 November took place during what is described by the Final Court of Appeal as the “sudden and severe deterioration of law and order in Hong Kong arising from protests and social unrest” during the period of September to November 2019. The Final Court of Appeal case that I am referring to is HKSAR v Kwok Wing Hang, which was the Court of Appeal’s decision 9 of 2020, and I refer to what was described as unchallenged evidence in that case, where it was described that the situation in Hong Kong deteriorated during October and November and was described as a “further escalation of violence and vandalism especially since the week of 11 November”, which would be shortly after these events that we are dealing with today, and what was particularly frequent was extensive road blockages with dangerous items placed on vehicular passageways and railway lines and it is even said that even petrol bombs and hard objects were hurled at moving vehicles and the like.
The Court of Final Appeal also noted the following phenomena at paragraph 91, the phenomena of what they describe as “black bloc” tactics, people concealing identity and thereby evading arrest and prosecution, and describe protestors using black clothing with little or no distinguishing features, and that is, in fact, included in the facts at paragraph 6 in this case.
Those are the basic facts that the court has to rely on in this case and show a serious and violent disorder taking place involving violence towards property.
The three defendants before me range in ages, but they all are people of clear records. The 1st defendant is aged 34, the 2nd defendant is aged 17, and the 4th defendant is now aged 26.
I have received mitigation from all the three defendants I am dealing with today. As I say, they all have the common feature of being people of hitherto clear record before they came to this court. They all have individual aspects of mitigation which they wish to put before the court. I will have to summarise those for the purposes of the sentencing process, but I have read all the documents contained in their mitigation bundles, including the letters of support and commendation from many people, and I note their contents.
I have also obtained reports which give me the backgrounds of all three defendants. Because the 2nd defendant was only aged 17, I have obtained additional reports on him to investigate a number of options as to sentencing that defendant.
I shall simply précis the 1st defendant’s position in this matter. He is aged 34, of clear record, coming to Hong Kong when he was 12 years old. He graduated with a Higher Diploma in Marketing and Media in 2011 and joined the Fire Services Department and been working as a fireman from that date until the suspension following his arrest on 10 November 2019. That means that he has had 10 years’ service in the Fire Services Department and was at one point in respect of an operation in 2017 awarded a commendation by the Director of Fire Services in recognition of his professionalism and perseverance in his mission. I have had the opportunity of reading a number of mitigation letters which commend the defendant to me from colleagues and superiors.
He is a father of two young children aged 2 and 1 and certainly at the time of his arrest was the sole breadwinner of his family and provided financial support to his parents.
The defendant in mitigation does not suggest to me the charges are not serious. He acknowledges the severity of the charges against him and I am told he understands a custodial sentence will be imposed because of the nature of the deterrent effect. He expresses remorse and has again expressed it to the probation officer who has interviewed him for the background report and would wish eventually on release from custody to serve society in some way again. He expresses regret for causing pain to his family.
In mitigation, I am asked to consider that the particular form of unlawful assembly in this case did not involve or cause bodily harm or damage to people. The defendant’s resistance to arrest was for a short time and, in respect of some of the charges, in respect of all of the petrol bombs, there was no evidence that they had been used, although there is evidence that the defendant had one petrol bomb in his hand during the course of the unlawful assembly, and this defendant asks for leniency.
As far as the 2nd defendant is concerned, he is, as I have already said, a young man. On his arrest, I am told that he suffered some knee injury, involving him being hospitalised for three days. He was 16 years and 1 month old at the time of the offence, with a clear record, studying in Form 6, a good record of conduct in school. This defendant has a particular skill. He is a footballer of a high level of competence and skill, particularly in the area of what is described as futsal, which is a — I think, believe is a Brazilian form of football, on a smaller pitch than regular football. There are a number of letters of commendation from the school social worker and his football coach and others. He is regretful and remorseful and hopes to study in future for a Bachelor of Arts in Physical Education.
The submission in respect of this defendant is that no specific acts of violence can be attributed to him. His conviction relies solely on his presence at the unlawful assembly. He appears to be dressed at the time in a style that suggests he has just come from football training, which is what was said in mitigation. And, besides his presence at the unlawful assembly, no other, as it were, tools or items such as offensive weapons were found on him.
A number of reports have been obtained on this defendant. They reflect the mitigation that has been put forward. The defendant being of the age he is, 17 years old, the court also has other options for sentencing besides the normal range of sentences of imprisonment and community service orders and probation orders. Also, the defendant is eligible for detention in the facilities run by the Correctional Services Department for training of young people, which is detention centre, rehabilitation centre or training centre. I am told from the report from the Correctional Services Department there are places available for him and he could be sentenced to any one of those options.
I deal with the 4th defendant. The 4th defendant also has expressed his remorse to the court and also in the course of interviews by the Probation Services. He is now aged 26, born and brought up in Hong Kong. He studied in City University and worked as a part-time bank staff at the time; lives with his parents and younger sister, and there are health issues in respect of his parents which are dealt with in the background report. He is said as coming from a close-knit family and has a previous clear record.
There are a number of mitigation letters in respect of the defendant.
In the defendant’s mitigation, he of course admits his presence at the site of the unlawful assembly and the possession of the items found upon him. He suggests in mitigation that the rubbing alcohol found on him was to use to clean wounds and that the petrol bombs found on him had been given to him by other younger people at the assembly and he was, as it were, holding them for them, but at the time when he was intercepted he had not disposed of them.
As far as the unlawful assembly is concerned, it is said that the defendant, although present, there is on the facts no evidence indicating he performed violent acts. And, finally, the defendant shows a genuine remorse, comes from a decent character and will not reoffend, and asks for leniency in respect of those matters. I note, for this defendant, he has also been detained for 14 months at this point.
Now I turn to the approach to sentencing. Of course, the case that courts must in sentencing approach in a way that is consistent and achieve consistency in the outcomes. The charges that these defendants face do not have a — what I call a directly applicable guideline but there are guidelines available.
I will turn first to the offence of unlawful assembly, contrary to 18(1) of the Public Order Ordinance, which all defendants face. The factual basis for this, agreed by all three defendants, is that they all took place in an unlawful assembly at the area, where a large number of persons assembled involving acts of barricading and occupying road carriages, including the use of laser beams against police, which amounted to conduct of disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear the persons so assembled would a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace. That is the agreed fact.
It must be noted that unlawful assemblies cover a wide range of circumstances, but these facts, as agreed by the defendants, establish this was a case of violent civil disorder characterised by violence towards the property, whether manifested as blockage of throughways and roadways, and as such is a serious form of unlawful assembly, and also took place during the course of a period of serious social disorder in Hong Kong.
The general approach to sentencing in cases of unlawful assembly has been dealt with by both the Court of Appeal and Final Court of Appeal in Hong Kong. The case is Secretary for Justice v Wong Chi Fung & Ors CAAR No.4 of 2016. The relevant part of that judgment is where the Court of Appeal at page 77:
“(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence, and the sentencing factor of rehabilitation.
(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”
At paragraph 153 they say:
“For serious cases, the main purpose of the sentence is to punish and deter. So the overall consideration of the court should be inclined towards imposing an immediate custodial sentence. Unless there are very exceptional circumstances, and these circumstances by definition should be rare, sentences other than an immediate custodial sentence, including suspended sentences and community services, are not appropriate.”
That is the words of the Court of Appeal, and that is the approach that I must take in respect of the sentencing on Charge 1 in this case.
Both the 1st and 4th defendants face charges which particularise and criminalise their possession of various items. Of particular relevance are the petrol bombs, otherwise described as “Molotov cocktails”. This is charged under section 62A of the Crimes Ordinance, Cap 200. That particular section has a maximum sentence of 10 years’ imprisonment.
I note there are no guideline sentences from the Court of Appeal in respect of this particular case or charge. The Court of Appeal has recently considered a starting point for sentence, where petrol bombs are used and ignited and thrown under the charge — and those will be found under charges of arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA 1087, and those charges involved offences of arson where there was recklessness as to endangerment of life. So that authority is not directly relevant to the facts of this case or the charge in this case, which alleges an intent to damage property.
The overview of sentencing in HKSAR v Yiu Siu Hong suggests that, for those offences, depending on the circumstances of aggravation or mitigation, a starting point in the region of 5 to 6 years is appropriate. I have been referred to some concomitant District Court cases under section 62A, where starting points for sentence have ranged between 3½ to 4 years’ imprisonment for possession of these forms of what we are in effect explosive devices.
An important factor in this case when assessing the starting point for sentence under the charge under section 62A of the Crimes Ordinance is that these items were possessed in a public gathering, especially a serious public disorder. Possession of these items does reflect a major escalation of risk and a major escalation of danger to others.
I take from this summary that simple possession of a petrol bomb at a violent disorder type of unlawful assembly gathering will lead to a starting point for sentence which ranges between 3 to 4½ years’ imprisonment, subject to various mitigating or aggravating factors in the circumstances of commission.
I also note, as far as the other offences that are charged in this indictment, the 1st defendant faces a charge of possession of prohibited weapon, where a maximum sentence of up to 3 years could be imposed. Under Charge 7, possession of the radiocommunications without a licence, a sentence of up to 5 years’ imprisonment can be imposed. Under Charge 2, resisting arrest, a sentence of up to 6 months’ imprisonment can be imposed.
Having dealt with that résumé of the sentencing powers of the court, I now deal with the individual sentences that should be imposed in respect of the individual defendants.
As far as the 1st defendant is concerned, I do reiterate that I note the mitigation advanced in his case and the commendations for his previous service and the good impression made on his colleagues. But I also have to bear in mind that the purposes of sentencing, in at least the 1st and 4th charges the defendant faces, the court has to give weight to punishment and deterrence, and, when that weight is given, very little or no weight can be given as to defendant’s motives or reasons for committing the offence and his personal circumstances.
Naturally, the conviction and sentencing of this case will mean the defendant will have to be separated from his family and also will find that a career in public service is no longer available to him. These are substantial punishments against the 1st defendant before one turns to whatever the prison sentence must be.
As I said, he is convicted in respect of Charge 1 and 4, where the primary purpose of sentence is deterrence. Accordingly, his personal circumstances and motivations are of small relevance to sentencing. The defendant’s past commendations and public service must be set against the reputational damage incurred by his involvement in this disorder.
Defendant is naturally entitled to a full one-third discount from the starting points for sentences that I will indicate.
As far as Charge 1 is concerned, that is a serious violent disorder. Defendant was present. He was armed with a knife and four petrol bombs at the time.
The Charge 1 is to a certain extent mirrored in its considerations with Charge 4, as far as the defendant is concerned. In determining the defendant’s sentence on Charge 4, I bear in mind that, firstly, he was in possession of the four petrol bombs set out in the charge. His possession of the radio telecommunications devices suggest that he was involved in some co-ordinating role as well. Also, other serious weapons were seized at the time, including a hammer, crowbar and the knife.
Finally, in respect of the defendant’s possession of the petrol bomb which was seen to be in his hand, that would reflect a serious escalation of the unlawful assembly if the defendant had chosen to find a way of igniting the petrol bomb. The fact that he had it in his hand is certainly more serious than it being placed in his rucksack.
On the 1st charge, in respect of the 1st defendant, of an unlawful assembly, I will take a starting point at 30 months’ imprisonment, reduce that to 20 months’ imprisonment for his plea of guilty.
On the 2nd charge of resisting a police officer, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for his plea of guilty.
On the 3rd charge of possession of the prohibited weapon, again take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for plea of guilty.
On the 4th charge of possession of a thing with intent to damage property, I will take a starting point at 48 months’ imprisonment, which I will reduce to 32 months’ imprisonment for the defendant’s plea of guilty.
On the 7th charge, possession of apparatus for radiocommunications without a licence, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.
I must consider what appropriate overall total sentence should be for this defendant. There is of course a number of overlaps between the various charges, particularly the 1st and 4th charges. Having regard to the factors I have already set out, I shall order the 1st, 4th and 7th charges should be served concurrently to each other and the 2nd and 3rd charges should be served concurrently to each other but consecutively to the 1st, 4th and 7th charges. That would give an overall total of 34 months’ imprisonment for the 1st defendant.
I shall deal now with the 4th defendant because the considerations in respect of his offence are similar to those of the 1st defendant. Then I will return to the 2nd defendant at the end.
The 4th defendant, the calculation of the sentences against him is similar in a way to the 1st defendant and I will take the same starting point for sentence on the unlawful assembly. He was present at a serious disorder in possession of petrol bombs, two petrol bombs. So I will take a starting point of 30 months’ imprisonment, reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.
He also faces the 5th charge, possessing things with intent to damage property, contrary to section 62(a) of the Crimes Ordinance. I do take account of the defendant’s account of how he came to be in possession of those two petrol bombs, but the petrol bombs were possessed with the capacity to light them and the defendant has admitted that he possessed them intending without legal excuse to use the said things to damage property, so I must bear that in mind when assessing the appropriate starting point for sentence. Again, the possession of petrol bombs at an unlawful assembly represents substantial escalation of the danger and risk.
And, finally, this defendant was dressed in a “black bloc” fashion, which would be an aggravating factor for him.
I will take a starting point in respect of this defendant of 3½ years on the 5th charge, which is 42 months, reduced to 28 months’ imprisonment for his plea of guilty. Sentences on Charge 1 and 5 will be served concurrently. Total of 28 months’ imprisonment.
The 2nd defendant. Again, I have set out the sentencing factors in respect of the 2nd defendant and a range of sentences are available to him, bearing in mind he is 17 years old. The authority dealing with the unlawful assembly, as I have already iterated, sets out that serious unlawful assembly – so this must fall into the category of a serious unlawful assembly – the object of the court is to punish and deter and the court should be inclined to impose an immediate custodial sentence.
Having regard to the sentences already passed on the 1st and 4th defendants in respect of this 1st charge, clearly an immediate custodial sentence is the appropriate sentence to be imposed and the court could only depart from that if there are exceptional circumstances, which are rare.
When determining this defendant’s sentence, I do bear in mind the absence of aggravating factors such as the defendant being in possession of other items or being seen to be actively participating in the violence. But what must be noted about this particular unlawful assembly is, as far as the facts that I have before me show, it always was a violent disorder and so the 2nd defendant must have joined this violent disorder knowing that that was its character.
I consider that I am bound by the authorities before me to consider this as a case where a sentence of imprisonment is appropriate for any person of the defendant’s age. As far as the recommendations contained in the various reports I have, the defendant is actually not recommended for a community service order. It is thought that a probation order would be more appropriate for him. But, having regard to the appellate direction, a probation order would be seen to be too lenient to disposal, even for a defendant of this age.
This would leave me with the only custodial options being an immediate sentence of imprisonment or the three forms of training that would be offered by the Correctional Services Department, for which the defendant is suitable for and for which there are places for him. I am told by the Correctional Services Department that this defendant is more suited to a detention centre order than any other of the orders that they can offer to this defendant.
In sentencing this defendant, I have already said that I bear in mind his youth, his good character beforehand. He has become involved in an offence for which a sentence of imprisonment must be imposed. Because of his age, I can find an alternative to that and the alternative that I will direct for this defendant is, in respect of the charge that he faces, Charge 1, he be sentenced to a rehabilitation centre, which will provide a regime which may assist in a more speedy release from custody. That is the order I will make: a rehabilitation centre on Charge 1 for the 2nd defendant.
(T Casewell)
District Judge
DCCC 259/2020
07/09/2021
葉佐文
區院
不認罪
不成立
消防員
49
非法集結
11/10/2019
旺角
DCCC 259/2020
[2021] HKDC 234
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 259 OF 2020
———————-
HKSAR
v
Fong Chi-hung (D1)
Lam Chin-to (D2)
Chiu Ho-chun (D4)
———————-
Before: HH Judge Casewell
Date: 15 January 2021 at 11.18 am
Present: Mr Wayne Lee, PP of the Department of Justice, for HKSAR
Ms Fiona Nam Hoi-yan, instructed by Cedric & Co, assigned by DLA, for the 1st defendant
Mr Edward Poon Ting-bond, instructed by S C Ho & Co, assigned by DLA, for the 2nd defendant
Ms Adgie N K Chan, instructed by C & Y Lawyers, for the 4th defendant
Offence: (1) Unlawful assembly (非法集結)
(against all defendants)
(2) Resisting a police officer in the due execution of his duty(抗拒在正當執行職務的警務人員)(against D1 only)
(3) Possession of a prohibited weapon (管有違禁武器) (against D1 only)
(4) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D1 only)
(5) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D4 only)
(7) Possession of apparatus for radiocommunications without a licence
(在沒有領有牌照的情況下管有作無線電通訊之用的器具)
(against D1 only)
———————
Reasons for Sentence
———————
I am asked to consider a sentencing in respect of three defendants on this indictment today. These three defendants have initially pleaded guilty to a joint charge of unlawful assembly regarding an event on 10 November 2019. Two of the defendants, namely the 1st and 4th defendants, have also pleaded guilty to additional charges in respect of items found upon them at the time of their arrest.
The background to the offence is that and the facts that support the convictions of the defendants are that on the evening of 10 November 2019 a large group of persons had assembled in the area of Nathan Road and Shantung Street. Some 100 people were assembled in that area. This assembly caused police units to be dispatched to disperse those persons so assembled. The defendants were arrested during the dispersal operation.
In the areas where these persons assembled, an unlawful assembly took place. The people assembled there barricaded roads, occupied road carriageways, used laser-pointing devices against police conducting the dispersal operation.
Police arrested the 4th defendant in an area where a large group of people occupied roads and blocked those roads with miscellaneous items. The 1st and 2nd defendants were arrested in a large group of people clad in black and masked. The roadway was blocked with bricks and miscellaneous items were strewn upon the ground.
The 1st defendant was seen to hold a petrol bomb in his hand, which he discarded by the side of the road. The 1st defendant is also said to have resisted his arrest by hitting the facial shield of the arresting officer and lifting the officer up when he was being subdued, and those are the facts that support the 2nd charge against the 1st defendant.
In another direction in the same area, large numbers of people were gathered, dressed in black, holding umbrellas and shining laser pointers.
On arrest, a number of items were found on the defendants, particularly the 1st and 4th defendants. Some form the particulars in the charges faced by the defendant.
The 1st defendant was found to be in possession of a spring-loaded knife and that can be found in Charge 3, a charge of possession of a prohibited weapon, contrary to the section 4 of the Weapons Ordinance. The 1st defendant was also found to be in possession of a wireless microphone. That is reflected in Charge 7 against him, possession of apparatus for radiocommunications without a licence. He was also found to be in possession of the following additional items: plastic straps, a hammer, scissors, a crowbar and four petrol bombs, one of those being the petrol bomb earlier seen, with three additional ones under his custody and control, and these form the charge against the 1st defendant, Charge 4.
The 4th defendant was also searched and found in his rucksack and on his person were two petrol bombs, two lighters and a bottle of isopropyl alcohol, and that forms the basis of the 5th charge against the 4th defendant.
It is noteworthy that these events on 11 November took place during what is described by the Final Court of Appeal as the “sudden and severe deterioration of law and order in Hong Kong arising from protests and social unrest” during the period of September to November 2019. The Final Court of Appeal case that I am referring to is HKSAR v Kwok Wing Hang, which was the Court of Appeal’s decision 9 of 2020, and I refer to what was described as unchallenged evidence in that case, where it was described that the situation in Hong Kong deteriorated during October and November and was described as a “further escalation of violence and vandalism especially since the week of 11 November”, which would be shortly after these events that we are dealing with today, and what was particularly frequent was extensive road blockages with dangerous items placed on vehicular passageways and railway lines and it is even said that even petrol bombs and hard objects were hurled at moving vehicles and the like.
The Court of Final Appeal also noted the following phenomena at paragraph 91, the phenomena of what they describe as “black bloc” tactics, people concealing identity and thereby evading arrest and prosecution, and describe protestors using black clothing with little or no distinguishing features, and that is, in fact, included in the facts at paragraph 6 in this case.
Those are the basic facts that the court has to rely on in this case and show a serious and violent disorder taking place involving violence towards property.
The three defendants before me range in ages, but they all are people of clear records. The 1st defendant is aged 34, the 2nd defendant is aged 17, and the 4th defendant is now aged 26.
I have received mitigation from all the three defendants I am dealing with today. As I say, they all have the common feature of being people of hitherto clear record before they came to this court. They all have individual aspects of mitigation which they wish to put before the court. I will have to summarise those for the purposes of the sentencing process, but I have read all the documents contained in their mitigation bundles, including the letters of support and commendation from many people, and I note their contents.
I have also obtained reports which give me the backgrounds of all three defendants. Because the 2nd defendant was only aged 17, I have obtained additional reports on him to investigate a number of options as to sentencing that defendant.
I shall simply précis the 1st defendant’s position in this matter. He is aged 34, of clear record, coming to Hong Kong when he was 12 years old. He graduated with a Higher Diploma in Marketing and Media in 2011 and joined the Fire Services Department and been working as a fireman from that date until the suspension following his arrest on 10 November 2019. That means that he has had 10 years’ service in the Fire Services Department and was at one point in respect of an operation in 2017 awarded a commendation by the Director of Fire Services in recognition of his professionalism and perseverance in his mission. I have had the opportunity of reading a number of mitigation letters which commend the defendant to me from colleagues and superiors.
He is a father of two young children aged 2 and 1 and certainly at the time of his arrest was the sole breadwinner of his family and provided financial support to his parents.
The defendant in mitigation does not suggest to me the charges are not serious. He acknowledges the severity of the charges against him and I am told he understands a custodial sentence will be imposed because of the nature of the deterrent effect. He expresses remorse and has again expressed it to the probation officer who has interviewed him for the background report and would wish eventually on release from custody to serve society in some way again. He expresses regret for causing pain to his family.
In mitigation, I am asked to consider that the particular form of unlawful assembly in this case did not involve or cause bodily harm or damage to people. The defendant’s resistance to arrest was for a short time and, in respect of some of the charges, in respect of all of the petrol bombs, there was no evidence that they had been used, although there is evidence that the defendant had one petrol bomb in his hand during the course of the unlawful assembly, and this defendant asks for leniency.
As far as the 2nd defendant is concerned, he is, as I have already said, a young man. On his arrest, I am told that he suffered some knee injury, involving him being hospitalised for three days. He was 16 years and 1 month old at the time of the offence, with a clear record, studying in Form 6, a good record of conduct in school. This defendant has a particular skill. He is a footballer of a high level of competence and skill, particularly in the area of what is described as futsal, which is a — I think, believe is a Brazilian form of football, on a smaller pitch than regular football. There are a number of letters of commendation from the school social worker and his football coach and others. He is regretful and remorseful and hopes to study in future for a Bachelor of Arts in Physical Education.
The submission in respect of this defendant is that no specific acts of violence can be attributed to him. His conviction relies solely on his presence at the unlawful assembly. He appears to be dressed at the time in a style that suggests he has just come from football training, which is what was said in mitigation. And, besides his presence at the unlawful assembly, no other, as it were, tools or items such as offensive weapons were found on him.
A number of reports have been obtained on this defendant. They reflect the mitigation that has been put forward. The defendant being of the age he is, 17 years old, the court also has other options for sentencing besides the normal range of sentences of imprisonment and community service orders and probation orders. Also, the defendant is eligible for detention in the facilities run by the Correctional Services Department for training of young people, which is detention centre, rehabilitation centre or training centre. I am told from the report from the Correctional Services Department there are places available for him and he could be sentenced to any one of those options.
I deal with the 4th defendant. The 4th defendant also has expressed his remorse to the court and also in the course of interviews by the Probation Services. He is now aged 26, born and brought up in Hong Kong. He studied in City University and worked as a part-time bank staff at the time; lives with his parents and younger sister, and there are health issues in respect of his parents which are dealt with in the background report. He is said as coming from a close-knit family and has a previous clear record.
There are a number of mitigation letters in respect of the defendant.
In the defendant’s mitigation, he of course admits his presence at the site of the unlawful assembly and the possession of the items found upon him. He suggests in mitigation that the rubbing alcohol found on him was to use to clean wounds and that the petrol bombs found on him had been given to him by other younger people at the assembly and he was, as it were, holding them for them, but at the time when he was intercepted he had not disposed of them.
As far as the unlawful assembly is concerned, it is said that the defendant, although present, there is on the facts no evidence indicating he performed violent acts. And, finally, the defendant shows a genuine remorse, comes from a decent character and will not reoffend, and asks for leniency in respect of those matters. I note, for this defendant, he has also been detained for 14 months at this point.
Now I turn to the approach to sentencing. Of course, the case that courts must in sentencing approach in a way that is consistent and achieve consistency in the outcomes. The charges that these defendants face do not have a — what I call a directly applicable guideline but there are guidelines available.
I will turn first to the offence of unlawful assembly, contrary to 18(1) of the Public Order Ordinance, which all defendants face. The factual basis for this, agreed by all three defendants, is that they all took place in an unlawful assembly at the area, where a large number of persons assembled involving acts of barricading and occupying road carriages, including the use of laser beams against police, which amounted to conduct of disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear the persons so assembled would a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace. That is the agreed fact.
It must be noted that unlawful assemblies cover a wide range of circumstances, but these facts, as agreed by the defendants, establish this was a case of violent civil disorder characterised by violence towards the property, whether manifested as blockage of throughways and roadways, and as such is a serious form of unlawful assembly, and also took place during the course of a period of serious social disorder in Hong Kong.
The general approach to sentencing in cases of unlawful assembly has been dealt with by both the Court of Appeal and Final Court of Appeal in Hong Kong. The case is Secretary for Justice v Wong Chi Fung & Ors CAAR No.4 of 2016. The relevant part of that judgment is where the Court of Appeal at page 77:
“(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence, and the sentencing factor of rehabilitation.
(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”
At paragraph 153 they say:
“For serious cases, the main purpose of the sentence is to punish and deter. So the overall consideration of the court should be inclined towards imposing an immediate custodial sentence. Unless there are very exceptional circumstances, and these circumstances by definition should be rare, sentences other than an immediate custodial sentence, including suspended sentences and community services, are not appropriate.”
That is the words of the Court of Appeal, and that is the approach that I must take in respect of the sentencing on Charge 1 in this case.
Both the 1st and 4th defendants face charges which particularise and criminalise their possession of various items. Of particular relevance are the petrol bombs, otherwise described as “Molotov cocktails”. This is charged under section 62A of the Crimes Ordinance, Cap 200. That particular section has a maximum sentence of 10 years’ imprisonment.
I note there are no guideline sentences from the Court of Appeal in respect of this particular case or charge. The Court of Appeal has recently considered a starting point for sentence, where petrol bombs are used and ignited and thrown under the charge — and those will be found under charges of arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA 1087, and those charges involved offences of arson where there was recklessness as to endangerment of life. So that authority is not directly relevant to the facts of this case or the charge in this case, which alleges an intent to damage property.
The overview of sentencing in HKSAR v Yiu Siu Hong suggests that, for those offences, depending on the circumstances of aggravation or mitigation, a starting point in the region of 5 to 6 years is appropriate. I have been referred to some concomitant District Court cases under section 62A, where starting points for sentence have ranged between 3½ to 4 years’ imprisonment for possession of these forms of what we are in effect explosive devices.
An important factor in this case when assessing the starting point for sentence under the charge under section 62A of the Crimes Ordinance is that these items were possessed in a public gathering, especially a serious public disorder. Possession of these items does reflect a major escalation of risk and a major escalation of danger to others.
I take from this summary that simple possession of a petrol bomb at a violent disorder type of unlawful assembly gathering will lead to a starting point for sentence which ranges between 3 to 4½ years’ imprisonment, subject to various mitigating or aggravating factors in the circumstances of commission.
I also note, as far as the other offences that are charged in this indictment, the 1st defendant faces a charge of possession of prohibited weapon, where a maximum sentence of up to 3 years could be imposed. Under Charge 7, possession of the radiocommunications without a licence, a sentence of up to 5 years’ imprisonment can be imposed. Under Charge 2, resisting arrest, a sentence of up to 6 months’ imprisonment can be imposed.
Having dealt with that résumé of the sentencing powers of the court, I now deal with the individual sentences that should be imposed in respect of the individual defendants.
As far as the 1st defendant is concerned, I do reiterate that I note the mitigation advanced in his case and the commendations for his previous service and the good impression made on his colleagues. But I also have to bear in mind that the purposes of sentencing, in at least the 1st and 4th charges the defendant faces, the court has to give weight to punishment and deterrence, and, when that weight is given, very little or no weight can be given as to defendant’s motives or reasons for committing the offence and his personal circumstances.
Naturally, the conviction and sentencing of this case will mean the defendant will have to be separated from his family and also will find that a career in public service is no longer available to him. These are substantial punishments against the 1st defendant before one turns to whatever the prison sentence must be.
As I said, he is convicted in respect of Charge 1 and 4, where the primary purpose of sentence is deterrence. Accordingly, his personal circumstances and motivations are of small relevance to sentencing. The defendant’s past commendations and public service must be set against the reputational damage incurred by his involvement in this disorder.
Defendant is naturally entitled to a full one-third discount from the starting points for sentences that I will indicate.
As far as Charge 1 is concerned, that is a serious violent disorder. Defendant was present. He was armed with a knife and four petrol bombs at the time.
The Charge 1 is to a certain extent mirrored in its considerations with Charge 4, as far as the defendant is concerned. In determining the defendant’s sentence on Charge 4, I bear in mind that, firstly, he was in possession of the four petrol bombs set out in the charge. His possession of the radio telecommunications devices suggest that he was involved in some co-ordinating role as well. Also, other serious weapons were seized at the time, including a hammer, crowbar and the knife.
Finally, in respect of the defendant’s possession of the petrol bomb which was seen to be in his hand, that would reflect a serious escalation of the unlawful assembly if the defendant had chosen to find a way of igniting the petrol bomb. The fact that he had it in his hand is certainly more serious than it being placed in his rucksack.
On the 1st charge, in respect of the 1st defendant, of an unlawful assembly, I will take a starting point at 30 months’ imprisonment, reduce that to 20 months’ imprisonment for his plea of guilty.
On the 2nd charge of resisting a police officer, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for his plea of guilty.
On the 3rd charge of possession of the prohibited weapon, again take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for plea of guilty.
On the 4th charge of possession of a thing with intent to damage property, I will take a starting point at 48 months’ imprisonment, which I will reduce to 32 months’ imprisonment for the defendant’s plea of guilty.
On the 7th charge, possession of apparatus for radiocommunications without a licence, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.
I must consider what appropriate overall total sentence should be for this defendant. There is of course a number of overlaps between the various charges, particularly the 1st and 4th charges. Having regard to the factors I have already set out, I shall order the 1st, 4th and 7th charges should be served concurrently to each other and the 2nd and 3rd charges should be served concurrently to each other but consecutively to the 1st, 4th and 7th charges. That would give an overall total of 34 months’ imprisonment for the 1st defendant.
I shall deal now with the 4th defendant because the considerations in respect of his offence are similar to those of the 1st defendant. Then I will return to the 2nd defendant at the end.
The 4th defendant, the calculation of the sentences against him is similar in a way to the 1st defendant and I will take the same starting point for sentence on the unlawful assembly. He was present at a serious disorder in possession of petrol bombs, two petrol bombs. So I will take a starting point of 30 months’ imprisonment, reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.
He also faces the 5th charge, possessing things with intent to damage property, contrary to section 62(a) of the Crimes Ordinance. I do take account of the defendant’s account of how he came to be in possession of those two petrol bombs, but the petrol bombs were possessed with the capacity to light them and the defendant has admitted that he possessed them intending without legal excuse to use the said things to damage property, so I must bear that in mind when assessing the appropriate starting point for sentence. Again, the possession of petrol bombs at an unlawful assembly represents substantial escalation of the danger and risk.
And, finally, this defendant was dressed in a “black bloc” fashion, which would be an aggravating factor for him.
I will take a starting point in respect of this defendant of 3½ years on the 5th charge, which is 42 months, reduced to 28 months’ imprisonment for his plea of guilty. Sentences on Charge 1 and 5 will be served concurrently. Total of 28 months’ imprisonment.
The 2nd defendant. Again, I have set out the sentencing factors in respect of the 2nd defendant and a range of sentences are available to him, bearing in mind he is 17 years old. The authority dealing with the unlawful assembly, as I have already iterated, sets out that serious unlawful assembly – so this must fall into the category of a serious unlawful assembly – the object of the court is to punish and deter and the court should be inclined to impose an immediate custodial sentence.
Having regard to the sentences already passed on the 1st and 4th defendants in respect of this 1st charge, clearly an immediate custodial sentence is the appropriate sentence to be imposed and the court could only depart from that if there are exceptional circumstances, which are rare.
When determining this defendant’s sentence, I do bear in mind the absence of aggravating factors such as the defendant being in possession of other items or being seen to be actively participating in the violence. But what must be noted about this particular unlawful assembly is, as far as the facts that I have before me show, it always was a violent disorder and so the 2nd defendant must have joined this violent disorder knowing that that was its character.
I consider that I am bound by the authorities before me to consider this as a case where a sentence of imprisonment is appropriate for any person of the defendant’s age. As far as the recommendations contained in the various reports I have, the defendant is actually not recommended for a community service order. It is thought that a probation order would be more appropriate for him. But, having regard to the appellate direction, a probation order would be seen to be too lenient to disposal, even for a defendant of this age.
This would leave me with the only custodial options being an immediate sentence of imprisonment or the three forms of training that would be offered by the Correctional Services Department, for which the defendant is suitable for and for which there are places for him. I am told by the Correctional Services Department that this defendant is more suited to a detention centre order than any other of the orders that they can offer to this defendant.
In sentencing this defendant, I have already said that I bear in mind his youth, his good character beforehand. He has become involved in an offence for which a sentence of imprisonment must be imposed. Because of his age, I can find an alternative to that and the alternative that I will direct for this defendant is, in respect of the charge that he faces, Charge 1, he be sentenced to a rehabilitation centre, which will provide a regime which may assist in a more speedy release from custody. That is the order I will make: a rehabilitation centre on Charge 1 for the 2nd defendant.
(T Casewell)
District Judge
DCCC 259/2020
07/09/2021
葉佐文
區院
不認罪
不成立
消防員
49
蒙面
11/10/2019
旺角
DCCC 259/2020
[2021] HKDC 234
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 259 OF 2020
———————-
HKSAR
v
Fong Chi-hung (D1)
Lam Chin-to (D2)
Chiu Ho-chun (D4)
———————-
Before: HH Judge Casewell
Date: 15 January 2021 at 11.18 am
Present: Mr Wayne Lee, PP of the Department of Justice, for HKSAR
Ms Fiona Nam Hoi-yan, instructed by Cedric & Co, assigned by DLA, for the 1st defendant
Mr Edward Poon Ting-bond, instructed by S C Ho & Co, assigned by DLA, for the 2nd defendant
Ms Adgie N K Chan, instructed by C & Y Lawyers, for the 4th defendant
Offence: (1) Unlawful assembly (非法集結)
(against all defendants)
(2) Resisting a police officer in the due execution of his duty(抗拒在正當執行職務的警務人員)(against D1 only)
(3) Possession of a prohibited weapon (管有違禁武器) (against D1 only)
(4) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D1 only)
(5) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D4 only)
(7) Possession of apparatus for radiocommunications without a licence
(在沒有領有牌照的情況下管有作無線電通訊之用的器具)
(against D1 only)
———————
Reasons for Sentence
———————
I am asked to consider a sentencing in respect of three defendants on this indictment today. These three defendants have initially pleaded guilty to a joint charge of unlawful assembly regarding an event on 10 November 2019. Two of the defendants, namely the 1st and 4th defendants, have also pleaded guilty to additional charges in respect of items found upon them at the time of their arrest.
The background to the offence is that and the facts that support the convictions of the defendants are that on the evening of 10 November 2019 a large group of persons had assembled in the area of Nathan Road and Shantung Street. Some 100 people were assembled in that area. This assembly caused police units to be dispatched to disperse those persons so assembled. The defendants were arrested during the dispersal operation.
In the areas where these persons assembled, an unlawful assembly took place. The people assembled there barricaded roads, occupied road carriageways, used laser-pointing devices against police conducting the dispersal operation.
Police arrested the 4th defendant in an area where a large group of people occupied roads and blocked those roads with miscellaneous items. The 1st and 2nd defendants were arrested in a large group of people clad in black and masked. The roadway was blocked with bricks and miscellaneous items were strewn upon the ground.
The 1st defendant was seen to hold a petrol bomb in his hand, which he discarded by the side of the road. The 1st defendant is also said to have resisted his arrest by hitting the facial shield of the arresting officer and lifting the officer up when he was being subdued, and those are the facts that support the 2nd charge against the 1st defendant.
In another direction in the same area, large numbers of people were gathered, dressed in black, holding umbrellas and shining laser pointers.
On arrest, a number of items were found on the defendants, particularly the 1st and 4th defendants. Some form the particulars in the charges faced by the defendant.
The 1st defendant was found to be in possession of a spring-loaded knife and that can be found in Charge 3, a charge of possession of a prohibited weapon, contrary to the section 4 of the Weapons Ordinance. The 1st defendant was also found to be in possession of a wireless microphone. That is reflected in Charge 7 against him, possession of apparatus for radiocommunications without a licence. He was also found to be in possession of the following additional items: plastic straps, a hammer, scissors, a crowbar and four petrol bombs, one of those being the petrol bomb earlier seen, with three additional ones under his custody and control, and these form the charge against the 1st defendant, Charge 4.
The 4th defendant was also searched and found in his rucksack and on his person were two petrol bombs, two lighters and a bottle of isopropyl alcohol, and that forms the basis of the 5th charge against the 4th defendant.
It is noteworthy that these events on 11 November took place during what is described by the Final Court of Appeal as the “sudden and severe deterioration of law and order in Hong Kong arising from protests and social unrest” during the period of September to November 2019. The Final Court of Appeal case that I am referring to is HKSAR v Kwok Wing Hang, which was the Court of Appeal’s decision 9 of 2020, and I refer to what was described as unchallenged evidence in that case, where it was described that the situation in Hong Kong deteriorated during October and November and was described as a “further escalation of violence and vandalism especially since the week of 11 November”, which would be shortly after these events that we are dealing with today, and what was particularly frequent was extensive road blockages with dangerous items placed on vehicular passageways and railway lines and it is even said that even petrol bombs and hard objects were hurled at moving vehicles and the like.
The Court of Final Appeal also noted the following phenomena at paragraph 91, the phenomena of what they describe as “black bloc” tactics, people concealing identity and thereby evading arrest and prosecution, and describe protestors using black clothing with little or no distinguishing features, and that is, in fact, included in the facts at paragraph 6 in this case.
Those are the basic facts that the court has to rely on in this case and show a serious and violent disorder taking place involving violence towards property.
The three defendants before me range in ages, but they all are people of clear records. The 1st defendant is aged 34, the 2nd defendant is aged 17, and the 4th defendant is now aged 26.
I have received mitigation from all the three defendants I am dealing with today. As I say, they all have the common feature of being people of hitherto clear record before they came to this court. They all have individual aspects of mitigation which they wish to put before the court. I will have to summarise those for the purposes of the sentencing process, but I have read all the documents contained in their mitigation bundles, including the letters of support and commendation from many people, and I note their contents.
I have also obtained reports which give me the backgrounds of all three defendants. Because the 2nd defendant was only aged 17, I have obtained additional reports on him to investigate a number of options as to sentencing that defendant.
I shall simply précis the 1st defendant’s position in this matter. He is aged 34, of clear record, coming to Hong Kong when he was 12 years old. He graduated with a Higher Diploma in Marketing and Media in 2011 and joined the Fire Services Department and been working as a fireman from that date until the suspension following his arrest on 10 November 2019. That means that he has had 10 years’ service in the Fire Services Department and was at one point in respect of an operation in 2017 awarded a commendation by the Director of Fire Services in recognition of his professionalism and perseverance in his mission. I have had the opportunity of reading a number of mitigation letters which commend the defendant to me from colleagues and superiors.
He is a father of two young children aged 2 and 1 and certainly at the time of his arrest was the sole breadwinner of his family and provided financial support to his parents.
The defendant in mitigation does not suggest to me the charges are not serious. He acknowledges the severity of the charges against him and I am told he understands a custodial sentence will be imposed because of the nature of the deterrent effect. He expresses remorse and has again expressed it to the probation officer who has interviewed him for the background report and would wish eventually on release from custody to serve society in some way again. He expresses regret for causing pain to his family.
In mitigation, I am asked to consider that the particular form of unlawful assembly in this case did not involve or cause bodily harm or damage to people. The defendant’s resistance to arrest was for a short time and, in respect of some of the charges, in respect of all of the petrol bombs, there was no evidence that they had been used, although there is evidence that the defendant had one petrol bomb in his hand during the course of the unlawful assembly, and this defendant asks for leniency.
As far as the 2nd defendant is concerned, he is, as I have already said, a young man. On his arrest, I am told that he suffered some knee injury, involving him being hospitalised for three days. He was 16 years and 1 month old at the time of the offence, with a clear record, studying in Form 6, a good record of conduct in school. This defendant has a particular skill. He is a footballer of a high level of competence and skill, particularly in the area of what is described as futsal, which is a — I think, believe is a Brazilian form of football, on a smaller pitch than regular football. There are a number of letters of commendation from the school social worker and his football coach and others. He is regretful and remorseful and hopes to study in future for a Bachelor of Arts in Physical Education.
The submission in respect of this defendant is that no specific acts of violence can be attributed to him. His conviction relies solely on his presence at the unlawful assembly. He appears to be dressed at the time in a style that suggests he has just come from football training, which is what was said in mitigation. And, besides his presence at the unlawful assembly, no other, as it were, tools or items such as offensive weapons were found on him.
A number of reports have been obtained on this defendant. They reflect the mitigation that has been put forward. The defendant being of the age he is, 17 years old, the court also has other options for sentencing besides the normal range of sentences of imprisonment and community service orders and probation orders. Also, the defendant is eligible for detention in the facilities run by the Correctional Services Department for training of young people, which is detention centre, rehabilitation centre or training centre. I am told from the report from the Correctional Services Department there are places available for him and he could be sentenced to any one of those options.
I deal with the 4th defendant. The 4th defendant also has expressed his remorse to the court and also in the course of interviews by the Probation Services. He is now aged 26, born and brought up in Hong Kong. He studied in City University and worked as a part-time bank staff at the time; lives with his parents and younger sister, and there are health issues in respect of his parents which are dealt with in the background report. He is said as coming from a close-knit family and has a previous clear record.
There are a number of mitigation letters in respect of the defendant.
In the defendant’s mitigation, he of course admits his presence at the site of the unlawful assembly and the possession of the items found upon him. He suggests in mitigation that the rubbing alcohol found on him was to use to clean wounds and that the petrol bombs found on him had been given to him by other younger people at the assembly and he was, as it were, holding them for them, but at the time when he was intercepted he had not disposed of them.
As far as the unlawful assembly is concerned, it is said that the defendant, although present, there is on the facts no evidence indicating he performed violent acts. And, finally, the defendant shows a genuine remorse, comes from a decent character and will not reoffend, and asks for leniency in respect of those matters. I note, for this defendant, he has also been detained for 14 months at this point.
Now I turn to the approach to sentencing. Of course, the case that courts must in sentencing approach in a way that is consistent and achieve consistency in the outcomes. The charges that these defendants face do not have a — what I call a directly applicable guideline but there are guidelines available.
I will turn first to the offence of unlawful assembly, contrary to 18(1) of the Public Order Ordinance, which all defendants face. The factual basis for this, agreed by all three defendants, is that they all took place in an unlawful assembly at the area, where a large number of persons assembled involving acts of barricading and occupying road carriages, including the use of laser beams against police, which amounted to conduct of disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear the persons so assembled would a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace. That is the agreed fact.
It must be noted that unlawful assemblies cover a wide range of circumstances, but these facts, as agreed by the defendants, establish this was a case of violent civil disorder characterised by violence towards the property, whether manifested as blockage of throughways and roadways, and as such is a serious form of unlawful assembly, and also took place during the course of a period of serious social disorder in Hong Kong.
The general approach to sentencing in cases of unlawful assembly has been dealt with by both the Court of Appeal and Final Court of Appeal in Hong Kong. The case is Secretary for Justice v Wong Chi Fung & Ors CAAR No.4 of 2016. The relevant part of that judgment is where the Court of Appeal at page 77:
“(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence, and the sentencing factor of rehabilitation.
(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”
At paragraph 153 they say:
“For serious cases, the main purpose of the sentence is to punish and deter. So the overall consideration of the court should be inclined towards imposing an immediate custodial sentence. Unless there are very exceptional circumstances, and these circumstances by definition should be rare, sentences other than an immediate custodial sentence, including suspended sentences and community services, are not appropriate.”
That is the words of the Court of Appeal, and that is the approach that I must take in respect of the sentencing on Charge 1 in this case.
Both the 1st and 4th defendants face charges which particularise and criminalise their possession of various items. Of particular relevance are the petrol bombs, otherwise described as “Molotov cocktails”. This is charged under section 62A of the Crimes Ordinance, Cap 200. That particular section has a maximum sentence of 10 years’ imprisonment.
I note there are no guideline sentences from the Court of Appeal in respect of this particular case or charge. The Court of Appeal has recently considered a starting point for sentence, where petrol bombs are used and ignited and thrown under the charge — and those will be found under charges of arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA 1087, and those charges involved offences of arson where there was recklessness as to endangerment of life. So that authority is not directly relevant to the facts of this case or the charge in this case, which alleges an intent to damage property.
The overview of sentencing in HKSAR v Yiu Siu Hong suggests that, for those offences, depending on the circumstances of aggravation or mitigation, a starting point in the region of 5 to 6 years is appropriate. I have been referred to some concomitant District Court cases under section 62A, where starting points for sentence have ranged between 3½ to 4 years’ imprisonment for possession of these forms of what we are in effect explosive devices.
An important factor in this case when assessing the starting point for sentence under the charge under section 62A of the Crimes Ordinance is that these items were possessed in a public gathering, especially a serious public disorder. Possession of these items does reflect a major escalation of risk and a major escalation of danger to others.
I take from this summary that simple possession of a petrol bomb at a violent disorder type of unlawful assembly gathering will lead to a starting point for sentence which ranges between 3 to 4½ years’ imprisonment, subject to various mitigating or aggravating factors in the circumstances of commission.
I also note, as far as the other offences that are charged in this indictment, the 1st defendant faces a charge of possession of prohibited weapon, where a maximum sentence of up to 3 years could be imposed. Under Charge 7, possession of the radiocommunications without a licence, a sentence of up to 5 years’ imprisonment can be imposed. Under Charge 2, resisting arrest, a sentence of up to 6 months’ imprisonment can be imposed.
Having dealt with that résumé of the sentencing powers of the court, I now deal with the individual sentences that should be imposed in respect of the individual defendants.
As far as the 1st defendant is concerned, I do reiterate that I note the mitigation advanced in his case and the commendations for his previous service and the good impression made on his colleagues. But I also have to bear in mind that the purposes of sentencing, in at least the 1st and 4th charges the defendant faces, the court has to give weight to punishment and deterrence, and, when that weight is given, very little or no weight can be given as to defendant’s motives or reasons for committing the offence and his personal circumstances.
Naturally, the conviction and sentencing of this case will mean the defendant will have to be separated from his family and also will find that a career in public service is no longer available to him. These are substantial punishments against the 1st defendant before one turns to whatever the prison sentence must be.
As I said, he is convicted in respect of Charge 1 and 4, where the primary purpose of sentence is deterrence. Accordingly, his personal circumstances and motivations are of small relevance to sentencing. The defendant’s past commendations and public service must be set against the reputational damage incurred by his involvement in this disorder.
Defendant is naturally entitled to a full one-third discount from the starting points for sentences that I will indicate.
As far as Charge 1 is concerned, that is a serious violent disorder. Defendant was present. He was armed with a knife and four petrol bombs at the time.
The Charge 1 is to a certain extent mirrored in its considerations with Charge 4, as far as the defendant is concerned. In determining the defendant’s sentence on Charge 4, I bear in mind that, firstly, he was in possession of the four petrol bombs set out in the charge. His possession of the radio telecommunications devices suggest that he was involved in some co-ordinating role as well. Also, other serious weapons were seized at the time, including a hammer, crowbar and the knife.
Finally, in respect of the defendant’s possession of the petrol bomb which was seen to be in his hand, that would reflect a serious escalation of the unlawful assembly if the defendant had chosen to find a way of igniting the petrol bomb. The fact that he had it in his hand is certainly more serious than it being placed in his rucksack.
On the 1st charge, in respect of the 1st defendant, of an unlawful assembly, I will take a starting point at 30 months’ imprisonment, reduce that to 20 months’ imprisonment for his plea of guilty.
On the 2nd charge of resisting a police officer, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for his plea of guilty.
On the 3rd charge of possession of the prohibited weapon, again take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for plea of guilty.
On the 4th charge of possession of a thing with intent to damage property, I will take a starting point at 48 months’ imprisonment, which I will reduce to 32 months’ imprisonment for the defendant’s plea of guilty.
On the 7th charge, possession of apparatus for radiocommunications without a licence, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.
I must consider what appropriate overall total sentence should be for this defendant. There is of course a number of overlaps between the various charges, particularly the 1st and 4th charges. Having regard to the factors I have already set out, I shall order the 1st, 4th and 7th charges should be served concurrently to each other and the 2nd and 3rd charges should be served concurrently to each other but consecutively to the 1st, 4th and 7th charges. That would give an overall total of 34 months’ imprisonment for the 1st defendant.
I shall deal now with the 4th defendant because the considerations in respect of his offence are similar to those of the 1st defendant. Then I will return to the 2nd defendant at the end.
The 4th defendant, the calculation of the sentences against him is similar in a way to the 1st defendant and I will take the same starting point for sentence on the unlawful assembly. He was present at a serious disorder in possession of petrol bombs, two petrol bombs. So I will take a starting point of 30 months’ imprisonment, reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.
He also faces the 5th charge, possessing things with intent to damage property, contrary to section 62(a) of the Crimes Ordinance. I do take account of the defendant’s account of how he came to be in possession of those two petrol bombs, but the petrol bombs were possessed with the capacity to light them and the defendant has admitted that he possessed them intending without legal excuse to use the said things to damage property, so I must bear that in mind when assessing the appropriate starting point for sentence. Again, the possession of petrol bombs at an unlawful assembly represents substantial escalation of the danger and risk.
And, finally, this defendant was dressed in a “black bloc” fashion, which would be an aggravating factor for him.
I will take a starting point in respect of this defendant of 3½ years on the 5th charge, which is 42 months, reduced to 28 months’ imprisonment for his plea of guilty. Sentences on Charge 1 and 5 will be served concurrently. Total of 28 months’ imprisonment.
The 2nd defendant. Again, I have set out the sentencing factors in respect of the 2nd defendant and a range of sentences are available to him, bearing in mind he is 17 years old. The authority dealing with the unlawful assembly, as I have already iterated, sets out that serious unlawful assembly – so this must fall into the category of a serious unlawful assembly – the object of the court is to punish and deter and the court should be inclined to impose an immediate custodial sentence.
Having regard to the sentences already passed on the 1st and 4th defendants in respect of this 1st charge, clearly an immediate custodial sentence is the appropriate sentence to be imposed and the court could only depart from that if there are exceptional circumstances, which are rare.
When determining this defendant’s sentence, I do bear in mind the absence of aggravating factors such as the defendant being in possession of other items or being seen to be actively participating in the violence. But what must be noted about this particular unlawful assembly is, as far as the facts that I have before me show, it always was a violent disorder and so the 2nd defendant must have joined this violent disorder knowing that that was its character.
I consider that I am bound by the authorities before me to consider this as a case where a sentence of imprisonment is appropriate for any person of the defendant’s age. As far as the recommendations contained in the various reports I have, the defendant is actually not recommended for a community service order. It is thought that a probation order would be more appropriate for him. But, having regard to the appellate direction, a probation order would be seen to be too lenient to disposal, even for a defendant of this age.
This would leave me with the only custodial options being an immediate sentence of imprisonment or the three forms of training that would be offered by the Correctional Services Department, for which the defendant is suitable for and for which there are places for him. I am told by the Correctional Services Department that this defendant is more suited to a detention centre order than any other of the orders that they can offer to this defendant.
In sentencing this defendant, I have already said that I bear in mind his youth, his good character beforehand. He has become involved in an offence for which a sentence of imprisonment must be imposed. Because of his age, I can find an alternative to that and the alternative that I will direct for this defendant is, in respect of the charge that he faces, Charge 1, he be sentenced to a rehabilitation centre, which will provide a regime which may assist in a more speedy release from custody. That is the order I will make: a rehabilitation centre on Charge 1 for the 2nd defendant.
(T Casewell)
District Judge
DCCC 294/2020
[2021] HKDC 1661
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 294 OF 2020
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HKSAR
v
LAI HIU TUNG (D5)
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Before: Deputy District Judge M Chow
Date: 17 June 2021
Present: Mr Lee Wayne, Public Prosecutor and Mr Ng Wing Kit, Public Prosecutor, for HKSAR / Director of Public Prosecutions
Mr Poon Ting Bond Edward, instructed by Kenneth Lam, assigned by the Director of Legal Aid, for the 5th defendant
Offence: [1] Riot (暴動)
[3] Possession of an offensive weapon in a public place (在公眾地方管有政擊性武器)
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REASONS FOR SENTENCE
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The defendant pleaded guilty to a charge of riot, contrary to section 19 (1) and (2) of the Public Order Ordinance, Cap 245. While charge three possession of an offensive weapon is left in the court file, this Court ordered the charge not to be proceeded with without the leave of the court.
Summary of facts
A. Background
On 29 September 2019, a public procession was organized by members of the public. The procession started from Sogo Department Store Causeway Bay and ended at the Central Government Offices. (CGO), Harcourt Road, Admiralty. The Commissioner of Police had not received notification of such procession or meeting.
Between 1 pm and 2 pm, around 20,000 protesters gathered outside Sogo Department Store.
Protesters ignored the police warnings that it was an unauthorized procession and they marched from Causeway Bay towards the CGO.
At about 3:45 pm, around 200 to 300 protesters arrived at Harcourt Road outside the CGO. They blocked the road with barriers and traffic cones, thus occupied the carriageways, flyovers of Harcourt Road. Traffic was seriously disrupted.
At about 4:05 pm, around 200 to 300 protesters congregated on the carriageways of Queensway outside Hong Kong Garden confronting the police checkline which was formed outside the United Center. They set up an array of umbrellas in front of the police checkline to shield themselves, and kept hurling patrol bombs and hard objects at the police. Some of them set fire underneath the foot bridge connecting Pacific Place and Queensway Plaza. Police officers were out numbered and they retreated. This group of protesters subsequently joined the group of protestors outside the CGO.
Mass arrest on Harcourt Road
Starting from 4:20 pm, around 500 protesters who congregated on Tim Wa Avenue, the pavement near the CGO, carriageways and flyover of Harcourt Road, they began to hurl patrol bombs, bricks, stones and hard objects at the CGO. Some petrobombs hit the water filled barricades and caused fire.
Police gave repeated warnings and displayed warning flags to the protestors with no avail. Teargas and blue colored dye were fired and discharged towards Harcourt Road. However, the protesters remained outside CGO and continued to act violently.
At around 4:48 pm, police officers came out from the CGO and arrested 44 persons in Harcourt Road. Subsequent to the mass arrest, around 100 to 200 protesters retreated from Harcourt Road along Cotton Tree Drive towards Queensway.
B. Riot in the area of Queensway (Charge 1)
At around 5 pm, around 100 to 200 protesters assembled on Cotton Tree Drive outside Far East Finance Center confronting the police. The protestors built barricades with wooden boards and umbrellas. They hurled patrol bombs, bricks and other objects at the police. There were teargas being fired. The police also repeated warnings of dispersal.
At around 5:06 pm, the protesters on Cotton Tree Drive retreated back to Queensway where the police formed the checklines. The protesters set barricades, hurled petrol bombs, bricks and hard objects and shining laser beams at the police.
At all material times, around 500 protesters including D5 assembled together at the area of Queensway and conducted themselves in a disorderly, intimidating, insulting and provocative manner. A breach of the peace was committed by the protesters and violence has been perpetuated. Despite repeated warnings, the protesters did not desist or disperse.
B.1 Individual acts of D5
The individual acts of D5 were captured on open-source videos. Her acts are summarised as follows:-
The arrest
At around 5:17 pm, the police checklines began to sweep forward along Queensway easterly direction. The protesters closest to the checklines retreated slowly while maintaining a distance of about 70 to 80 meters with the police checklines. When they reached the area between United Center and Pacific Place, the police checklines went forward, D5 was subdued and arrested.
At the time of arrest, D5 was wearing a yellow helmet, goggles, a 3M respirator with filters, and carrying a rucksack.
B.2 Taking part in the riot in the area of Queensway
At all material times, D5 riotously assembled together with other persons unknown in the area of Queensway, Admiralty. She individually and jointly took part in the riot formed by herself and other persons unknown.
CCTV footages
CCTV footages from various sources in Harcourt Road and in the area of Queensway captured the individual acts of D5 and they formed part of the summary of facts.
Mitigation
The defendant was 28 at the time of arrest. She has a clear record. She is now 30 and is currently separated from her husband.
She now lives with her parents, father is a construction site worker, mother is a housewife. The defendant is the main carer of her mother who had cancer operation in 2018. The defendant obtained a bachelor degree from the University of Tasmania in 2018. She provided half of her earnings to her family for financial support. She also visited her grandmother regularly in Mainland China before the COVID-19 pandemic.
The defence provided me with a large number of mitigating letters from her headmaster, previous teachers, school friends, colleagues and social worker. I have read them all and do not propose to recite them. They all have written good words on her behalf to plead for leniency. From all these letters, this Court came to know that the defendant is a well-liked person amongst her school friends and colleagues. She is a mature person with a kind heart, she is helpful to others. She also participates in charity activities and voluntary works.
She is an active participant in marine environmental protection activities. She has completed the scuba instructor examination in May this year. She planned to support her parents’ livelihood by working as a diving instructor while continuing to promote the mission of a clean marine environment.
In 2015 the defendant travelled to the remote part of China to become a volunteer mental for “Peer China”.
The defendant said that since this incident she was regretful for her impulsive behavior. She knew that she has to face a long term of imprisonment, she was sorry for what she did, this incident had added emotional and financial burden to her family. She still wishes to look after her family after her discharge from prison and to contribute back to society.
There is a medical report to tell me that the defendant has suffered head injury, she was hospitalized for three days and was discharged without any follow up treatments.
Sentence
The maximum sentence for an offence of riot is 10 years.
According to the case of HKSAR v Leung Tin Kei [2018] HKCFI 1329, the Court of Appeal set out the factors to be considered in sentencing for the offence of riots. The court also said that since the background and facts involved in each case of riots are different, each case has to be considered separately, so the sentences in other cases do not provide much guidance, the court in sentencing should apply appropriate principles and pay regard to the actual circumstances of individual cases, and then imposed a proper sentence.
The defence said that in the present case the demonstration was originally started as a march, it was only subsequently developed into confrontation with the police. The riot took place at the spot and was not planned in advance.
In fact, the march from Sogo to CGO was an unauthorized one. The Commissioner of the Police had not been notified.
At 3:45 pm, the protestor arrived at CGO. At 4:48 pm, there was a mass arrest of 44 persons. In between this time, the protestors kept hurling petrol bombs, bricks, stones and hard objects at the police.
The Harcourt Road incident started from 4:20 pm to 4:48 pm.
The Queensway riot started from 5 pm to 5:06 pm. The Queensway riot in which D5 was involved was plainly part of an ongoing incident in Harcourt Road. At 5 pm, outside the Far East Finance Centre, at 5:06 pm, the riot took place on the carriageway of Queensway.
In both 5 pm and 5:06 pm, the protestors built barricades, hurled petrol bombs, bricks and hard objects at the police.
To build barricades required man powers. Petrol bombs were also used by the protestors. They are something that required certain degree of preparation and knowledge to make them. They also required special types of liquid and materials.
At the time of arrest, D5 was wearing helmet, goggles and a 3M respirator with filters.
Clearly, the helmet served to protect her head, goggles to prevent the tear gas to get into her eyes and the mask with filter can help to prevent the tear gas chemical to get into her respiratory system. D5 anticipated tear gas might be used. She equipped herself to participate in riot.
In D5’s rucksack, there were 2 pair of gloves, one pair was an ordinary one, the other one was a pair of heavy duty gloves with black marks on it. This pair of gloves was made with very strong and thick material; they can be used to pick up some hot items without the hands being burnt. There is no evidence to suggest that D5 had used those gloves prior to the arrest. She might or might not use them for herself or might keep them for others to use.
To this extend, I do not agree with the defence that the Queensway riot was spontaneous, I ruled that it was pre-meditated.
The defence also emphasized that D5 was standing in the front row of the protesters and shielding herself with an umbrella, there was no direct evidence of provocation or other violent behavior done by D5 towards the police or other bystanders. D5 was not a leader in the present incident.
However, as the court in Tang Ho Yin (2019) HKLRD 502 said that: –
“the gravity of the offence of riot is not to be judged merely by what the individual did (or did not do), but what the group to whose number he lent his support did.”
In the judgment of R v Caird & Others [1970] 54 Cr App R 499, the court said that: –
“it is a wholly wrong approach to take the acts of any individual participator in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence”.
That means to isolate D5’s action from the riotous behaviour can be unrealistic and misleading.
Therefore, in considering an appropriate sentence, I consider the extend of the overall violence involved not D5’s individual acts in isolation.
In order to consider the capability of D5, it is necessary to look at the background leading up to the Queensway riot. As I have referred to previously to the Harcourt Road incident which was part of the ongoing riot developed into Queensway riot.
D5 admitted to the Summary of Facts that there were around 500 protestors assembled at the area of Queensway and conducted themselves in a disorderly, intimidating, insulting and provocative manner.
Around 100 to 200 protestors assembled outside the Far East Finance Centre confronting the police. This was a large scale of riot.
The protestors used petrol bombs, bricks, hard objects and shining laser beams at the police. The level of violence was extremely serious. Anyone can foresee that the consequences of using petrol bombs, bricks, and hard objects can be disastrous when use as weapons. They can set fire to objects, to kill and to cause serious injuries to people and to cause damage to property. The purpose of shining laser beams was to hurt the eyes of the police so that they could not carry out their duties at the scene.
The protestors also set up barricades along Queensway, they took control of this part of the area. It was an important road in the centre of Hong Kong Island. It is also one of the importance central business districts in Hong Kong.
Within that area, there are high end shopping malls, 5 stars hotels and commercial buildings. The High Court building is also located there. Businesses of all kind were seriously affected. D5 was in the middle of road of Queensway. She knew that traffic was seriously disturbed.
There was no evidence to suggest that there were any police suffered any injuries or there was any damage to any property.
D5 knew she was one of the rioters. She equipped herself with helmet, mask, goggle to hide her face. She knew that would add difficulties for police to investigate. She was in the front row with others confronting the police checkline, she knew what the police was coming to them for as there was a previous arrest of 44 persons.
21 months has gone since the arrest of D5, during this period of time, she has reflected upon herself and confessed that it hurts her deeply that she has to face up a long period of imprisonment. She is prepared to accept the consequence. That consequence comes with a price that she will not be able to look after her parents.
D5 shows her remorse by indicating her guilty plea at the earliest opportunity.
As said in the judgment of Leung Tin Kei that:-
“73. In order to protect public order from being harmed by violence and the rule of law from being damaged as a result, the court in imposing sentence for the offence of riot must reflect the determination of the law in protecting public order, and to convey a clear message to society and the public that the law does not condone any unlawful damage or disruption of public order by violence…”
When I pass sentence on the defendant, I bear in mind of all mitigating factors which have been said on her behalf. I also bear in mind that sentence of riot offence carries an element of deterrence.
Having considered all the factors before me, I consider that a proper starting point is one of 4 years and 9 months imprisonment and it is appropriate in the present case, I reduce it to 3 years 2 months by 1/3 discount, I further reduce another 6 months to give credit to her charity works.
The defendant is ordered to serve a term of 2 years and 8 months imprisonment.
( M Chow )
Deputy District Judge
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
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HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
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REASONS FOR SENTENCE
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The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC534/2020
胡雅文
區院
認罪
罪成
明知而參與未經批准集結
判囚
145
10/01/2019
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
—————————-
HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
————————————–
REASONS FOR SENTENCE
————————————–
The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC534/2020
胡雅文
區院
認罪
罪成
組織未經批准集結
判囚
145
10/01/2019
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
—————————-
HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
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REASONS FOR SENTENCE
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The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC534/2020
胡雅文
區院
認罪
罪成
組織未經批准集結
判囚
14
10/01/2019
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
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HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
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Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
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REASONS FOR SENTENCE
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The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC534/2020
胡雅文
區院
認罪
罪成
組織未經批准集結
判囚
14
10/01/2019
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
—————————-
HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
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REASONS FOR SENTENCE
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The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC534/2020
胡雅文
區院
認罪
罪成
煽惑他人明知而參與未經批准集結
判囚
18
10/01/2019
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
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HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
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REASONS FOR SENTENCE
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The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC534/2020
胡雅文
區院
認罪
罪成
組織未經批准集結
判囚
18
10/01/2019
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
—————————-
HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
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REASONS FOR SENTENCE
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The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC534/2020
胡雅文
區院
認罪
罪成
煽惑他人明知而參與未經批准集結
判囚
22
10/01/2019
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
—————————-
HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
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REASONS FOR SENTENCE
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The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC534/2020
胡雅文
區院
認罪
罪成
組織未經批准集結
判囚
22
10/01/2019
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
—————————-
HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
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REASONS FOR SENTENCE
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The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC534/2020
胡雅文
區院
認罪
罪成
煽惑他人明知而參與未經批准集結
判囚
20
10/01/2019
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
—————————-
HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
————————————–
REASONS FOR SENTENCE
————————————–
The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC534/2020
胡雅文
區院
認罪
罪成
組織未經批准集結
判囚
20
10/01/2019
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
—————————-
HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
————————————–
REASONS FOR SENTENCE
————————————–
The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC534/2020
胡雅文
區院
認罪
罪成
組織未經批准集結
判囚
18
10/01/2019
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
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HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
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REASONS FOR SENTENCE
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The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC534/2020
胡雅文
區院
認罪
罪成
煽惑他人明知而參與未經批准集結
判囚
18
10/01/2019
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
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HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
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REASONS FOR SENTENCE
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The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
—————————-
HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
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REASONS FOR SENTENCE
————————————–
The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC534/2020
胡雅文
區院
認罪
罪成
組織未經批准集結
緩刑
10/01/2019
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
—————————-
HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
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REASONS FOR SENTENCE
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The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC534/2020
胡雅文
區院
認罪
罪成
組織未經批准集結
緩刑
10/01/2019
DCCC 534/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 534 OF 2020
—————————-
HKSAR
v
CHAN HO WUN (D1)
LEE CHEUK YAN (D2)
LEUNG KWOK HUNG (D3)
HO CHUN YAN (D4)
YEUNG SUM (D5)
HO SAU LAN CYD (D6)
NG MAN YUEN AVERY (D7)
LAI CHEE YING (D8)
SIN CHUNG KAI (D9)
TSOI YIU CHEONG RICHARD (D10)
—————————-
Before: Her Honour Judge Amanda J Woodcock in Court
Date: 28 May 2021
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
The 1st defendant appeared in person
Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and 6th defendants
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 3rd defendant
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse Wai & Partners, for the 4th, 5th & 9th defendants
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, for the 7th defendant
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr Ernie Tung, instructed by Robertsons, for the 8th defendant
Mr Edward Poon, instructed by Tang, Wong & Chow, for the 10th defendant
Offences: [1] Incitement to knowingly take part in an unauthorized assembly（煽惑他人明知而參與未經批准集結） – D1-D4
[2] Making an announcement of an unauthorized public procession (alternative to the 1st Charge)（公告一個未經批准的公眾遊行）(第一項控罪的交替控罪) – D1-D4
[3] Organizing an unauthorized assembly（組織一個未經批准集結） – D1-D10
[4] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結） – D1-D10
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REASONS FOR SENTENCE
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The 1st to 4th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The 7th and 10th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.
The Facts
The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.
The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7th and 10th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4. Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.
The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.
The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession. It was made in the interests of public safety, public order and the protection of the rights and freedoms of others. It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019. They listed out those various incidents that turned violent in the letter.
The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed. It agreed that the events posed a serious threat and risk to members of the public and participants.
Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner. The 1st defendant was part of this press conference.
The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail. It was widely broadcasted. They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months. They gave specific examples of recent violence. They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October. They used screenshots of intelligence and Internet messages to demonstrate their concern.
Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong. There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police. There were calls to set fire to shopping malls to cause huge destruction. There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations. There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions. The police stressed that their intelligence was good and the risks were very real. They urged the public to stay at home for their own safety. The transcript of that conference is Exhibit P39 A and B.
In the afternoon of 30 September, the 1st to 4th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted. They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board. The transcript and translation of that conference is Exhibit P26A and B.
The 1st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate. He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2nd to 4th defendants in Causeway Bay to march to Central.
Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central. The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off. All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.
They all formed the head of the public procession by either holding the banner or walking behind those holding the banner. This banner demanded the end of dictatorial rule and a return of power to the people. They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road. All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.
On Hennessy Road the 2nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station. There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism. The police officers were abused with foul language by many protesters who clearly became emotional.
After a minute of silence and when the banner group moved off again past that footbridge, the 2nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers. Many participants followed suit and continued to abuse those officers above.
Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport. Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession. Others vandalised public property. These were all incidents filmed by media outlets before the banner group arrived in Central.
At 2:25 pm the whole banner group arrived in Central and then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th defendants stood in close proximity. These speeches are transcribed and translated at Exhibit P54A and B. As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction. The protesters were thanked for their support and participation but not urged or told to disperse. In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks. They were met by a police blockade.
All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets. Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.
The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central. Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point. This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.
The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference. At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs. There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.
The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic. Over a hundred bus routes were affected and tram services suspended. Vehicles were stuck on roads and unable to leave.
All shops and restaurants on the procession route were affected. They were almost all closed. Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.
Principles of Sentencing
I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.
I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence. Deterrence is necessary to maintain public order. Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.
Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence. There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.
The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence. In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence. Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.
That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)
The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.
As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.
Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.
When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing. There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.
Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges. Meting out penalties will be commensurate with the offence committed and the facts. One that reflects the seriousness of the facts and the culpability of each offender.
Reasons for Sentence
The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.
Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.
I have taken into account what each of the 1st to 4th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.
The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).
I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.
During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.
I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.
In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.
I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.
All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.
These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.
The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.
The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.
After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.
What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.
Mitigation
At the time of these offences, all the defendants except for the 3rd, 7th and 10th defendants had clear records. The 10th defendant has one previous conviction for taking part in an unlawful assembly in 1993. The 7th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance. This sentence was imposed 3 weeks before he committed these offences under the same Ordinance. The 3rd defendant has many previous convictions, 17 in total. They all involve offences of a similar nature and many relate to public order offences. None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.
Since this offence all but the 1st, 7th, 9th and 10th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.
The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after trial in DCCC 536/2020 and the 2nd, 5th and 8th defendants pleaded guilty in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.
I have heard full mitigation on behalf of all the defendants. Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service. I have read and taken them into account.
Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been stressed that the 1st to 4th defendants advocated for a peaceful, rational and non-violent public procession. They did not intend any violence or reprehensible conduct. When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.
It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court. It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.
I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
The 1st to 4th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.
In any event, the 2nd, 3rd and 4th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5th, 6th and 8th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1st to 4th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1st defendant’s Facebook posts.
I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.
As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.
Charge 3 – Starting Point
I find the other defendants, the 5th to 10th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.
After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1st to 4th defendants.
For the 5th to 10th defendants I take a starting point of 18 months’ imprisonment.
Charge 4 – Starting Point
The 7th and 9th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.
The 1st defendant
The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.
The 1st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1st defendant to 18 months’ imprisonment for each charge.
The 2nd defendant
I have a letter from the 2nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2nd defendant to 18 months’ imprisonment for each charge.
The 3rd defendant
I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.
I have a letter from the 3rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.
I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3rd defendant liable for offences committed by assembly participants or onlookers acting independently.
After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3rd defendant to 18 months’ imprisonment for each charge.
The 4th, 5th and 9th defendants
I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account
DCCC 500/2020
香港特別行政區
區域法院
刑事案件2020年第500號
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香港特別行政區
訴
HAMAAD MAHMOOD
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主審法官： 區域法院法官李俊文
日期： 2021年5月11日
出席人士： 李偉恩小姐，為外聘律師，代表香港特別行政區
伍頴珊小姐，由法律援助署委派的伍展邦律師行延聘，代表被告人
控罪： [1] 企圖縱火（Attempted arson）
[2] 企圖刑事損壞（Attempted criminal damage）
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判刑理由書
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被告人被控共兩項罪名。第一項是企圖縱火，違反香港法例第200章《刑事罪行條例》第60（1）及（3），及159G條，並可根據第63（1）條予以懲處。罪行詳情是指控被告人於2019年9月5日，在旺角警署正門外，企圖用火損壞一道鐵閘。第二項控罪企圖刑事損壞，違反香港法例第200章《刑事罪行條例》第60（1）及159G條，指控被告人於同日在太子道西與彌敦道交界企圖損壞一組交通燈。
被告人承認控罪及所有相關的案情，於2021年4月27日被判罪名成立。
本席應辯方申請押後判刑至今天，以提取更生中心和教導所報告、感化令進度報告，及青少年評估委員會報告，但現在獲知青少年評估報告需時多個星期安排，在辯方同意之下，本席認為，為免延誤，決定今日判刑。
案情
2019年9月5日晚上，大批示威者在旺角警署外面聚集，警署關上全部大閘，並且架設水馬及金屬大閘分隔入口及示威者。
控罪一
晚上9時39分左右，被告人與數十名示威者在警署外聚集，被告人其後由雨傘陣遮掩下，帶同一個點燃的膠袋走出來，把點燃的膠袋放在警署正門水馬旁邊的保安金屬大閘上，然後離開。多個不同新聞錄像拍下整個過程。
被告人放置的點燃膠袋，其後自己掉到警署外面地上，警務人員迅速從警署走出來，用滅火筒撲滅火種，金屬大閘沒有損毀。
旺角彌敦道760號地下夾公仔店的閉路電視，拍攝到被告人同日晚上10時左右，將一個紅色膠袋放在店內其中一部夾公仔機上，膠袋內發現一個3M連粉紅色濾罐面罩，以及一件黑色長袖T裇，經政府化驗師進行配對後，發現面罩的內側及掛帶上的DNA有可能源自被告人。
控罪二
同日晚上11點57分左右，女警長3567身處旺角警署內，見到被告人在彌敦道近太子道西的花旗銀行外面，重複用行山杖擊打一支交通燈並徒手搖動該交通燈，歷時約三分鐘。被告人最終沿彌敦道往弼街方向逃跑。
翌日凌晨12時35分左右，女警長見到被告人再次出現，於旺角港鐵站B1出口附近。她一直監視被告人。警方亦鎖定被告人為拘捕目標。
最後，於凌晨2時17分左右，偵緝警員15120在彌敦道745號外截停被告人，將其拘捕，罪名是縱火及刑事毀壞。
被告人被拘捕時，手持一個公仔，身上有三個打火機。
運輸署工程師檢查被告人曾經擊打的交通燈，發現其黑色電子行人發聲裝置損毀，但交通燈信號燈仍然正常運作。
被告人背景
被告人是巴基斯坦裔，於2001年11月13日於香港出生，現年19歲，有輕至中度智障，曾經在特殊學校接受教育至中六，未婚，被捕時無業，與父母及四位哥哥一同居住在旺角一個單位。被告人有一項襲擊致造成身體傷害罪的刑事紀錄，於2020年6月17日被判12個月感化令。
求情
代表被告人的伍大律師提供了一份詳盡的書面求情陳詞連附件，裡面有多份心理醫生及精神醫生的報告及案例，本席已經全部閱讀及考慮。
首先，辯方強調，本案中被告人背景特殊，希望法庭多加考慮。被告人是一個巴基斯坦裔青年，現年19歲，犯本案時只有17歲，他大約8歲時被評估為中度智力障礙，但繼續在原校就讀，直到大約10歲，因為懷疑專注力不足及過度活躍，被轉介到油麻地兒童精神科中心，於2014年轉為入讀特殊學校。
教育局的教育心理學家彭小姐，於2014年8月19日為被告人進行評估，並且撰寫了一份專家報告，評定被告人的智商為47，屬於高端的中度智力障礙。
被告人於2014年在特殊學校升讀中一，至2018年輟學，現時無業。
被告人於2012年被診斷患上腦癎症，需要定期接受治療。
另外，被告人於2019年12月9日，即干犯本案之後，干犯另一宗襲擊致造成身體傷害的案件，而被拘留。他於2020年3月13日承認該控罪，而當時裁判官為他索取了勞教中心和教導所報告、一份心理醫生報告，及一份感化令報告。被告人因為其體能關係，被評為不適合勞教中心，但適合教導所的拘留。而最後，裁判官於2020年6月17日判被告人12個月感化令，亦即是被告人現在唯一的刑事紀錄。
根據上述的心理醫生報告，被告人被評定屬於低端的輕度智力障礙，被告人分辨對與錯的能力弱，自我情緒管理方面有困難，他有神經發展障礙症，及專注力不足，或者過度活躍症，因此被社會排擠及否定，而產生心理問題。
另外，在本案預備的過程中，辯方因應早前被告人是否適合答辯這個議題，安排了為被告人索取兩份精神科醫生的報告，一份由郭偉明（譯音）醫生撰寫，日期為2020年10月28日，另一份由王忠顯（譯音）醫生撰寫，日期為2020年11月16日。郭醫生在報告裡面，估計被告人只有相等於9至10歲小童的智商，他的智力障礙會損害他的推理和解決問題能力、判斷力、計劃力、為事情排優先次序的能力，及策略制定的能力。而王醫生在報告中指出，被告人的輕度智障是一種神經發育的障礙，情況一直會維持不變。
還有，在提訊期間，法庭於2020年10月29日，同樣因應被告人是否適合答辯這個議題，為被告人索取兩份由懲教署精神科醫生撰寫的報告，由Doctor Liu及Doctor Lam撰寫，兩位醫生就被告人智力方面的評定，同上述報告的結論吻合，而兩位醫生都認為被告人適合答辯。
辯方亦呈遞了共十封求情信，包括被告人自己撰寫、被告人父親、訓導主任、老師、議員及社工撰寫的求情信，大致提到被告人單純，品性善良，但因為智力和情緒問題，分辨是非的能力較弱，較容易衝動和受人影響，現在已經為涉案行為深感後悔，願意改過，懇請法庭輕判。
辯方亦力陳本案的案情有特殊之處。
就控罪一，被告人點燃了一個小型白色膠袋裡面的垃圾，並沒有點燃傷害性更大的其他物件，例如汽油彈，本案的嚴重性遠比許多同類的案件為輕。該微小火種在事發時已經迅速被警署出來的警員撲滅，而案發的地點是露天空間，並不涉及多層樓宇或者室內。被告人只有損壞死物（即是鐵閘）的意圖，從來沒有危害任何在場人士生命的意圖。鑒於案發現場的警員數目和實際情況，相關的縱火行為潛在風險極低，而事實上，鐵閘亦沒有起火，而案件中亦沒有人受傷。
就控罪二，辯方指，被告人以行山杖擊打交通燈，並用雙手搖動交通燈，前後只是維持了三分鐘。雖然有意圖損壞交通燈，但是從沒有意圖危害任何在場人士，案件中沒有人受傷，其行為失去控制或者誤傷他人的潛在機會極低。
辯方大律師亦遞交了一堆案例，就第一控罪企圖縱火，辯方遞交的案例指出，上訴法庭沒有為縱火案件訂下判刑的指引，但在Chau Yuk Kuen v The Queen（CACC 402/1980），上訴法庭指，該類案件的刑期最少為4至5年。另外，上訴法庭亦指出，法庭對縱火罪須要判處較重及阻嚇性的刑罰，目的是保護公眾生命和財產免受縱火等行為的嚴重威脅，見HKSAR v Kung Pak Fu（[2008] 2 HKCLRT 240）。
辯方不爭議以上法律原則適用於一般情況，但於陳詞指，本案案情有異於一般同類案件，所以除此以外，辯方亦呈遞了四個區域法院的判案，供法庭參考，特別倚賴其中兩個。
第一個是HKSAR v Cruz Kevin Charles Villareal （DCCC 26/2015），該案被告人亦承認一項縱火罪，被指事發時將裝有易燃液體的玻璃樽投擲向學校的校園，造成輕微損毀，但沒有人受傷。判刑的法官考慮到被告人年紀只有22歲，有悔意及良好紀錄，最後判處被告人羈留於勞教中心。另一個案例HKSAR v Lam Chun Ki and Lo John Jr（DCCC 1034/2016），該案有兩名被告人，均就一項縱火罪認罪，第一被告人19歲，第二被告人18歲，第一被告人在事發時，將一扎報紙綁在發生事情的公寓鐵門的欄杆之間，而要求第二被告人做同樣的事。其後，用打火機點著了公寓鐵門上面的報紙。最後，判刑的法官判處第一被告人入更生中心，而第二被告人入教導所。
辯方陳詞指，該兩案的案情與本案較為相近，嚴重性較輕，亦涉及年輕被告人，所以參考價值較高。另外，辯方亦倚賴一宗裁判法院上訴案件，香港特別行政區 訴 李啟發（HCMA 165/2020），指雖然該案是關於管有攻擊性武器的控罪，與本案控罪無關，但值得參考的地方就是，因為案中同樣涉及一名被告人，智力相當於11至12歲小孩，情況與本案被告人相似。在這件案件裡面，上訴時，原審法官接納上訴人智障影響到他未能夠了解到他的行為和後果的嚴重性，於一定程度上減低了他在道德上的罪責，所以減刑1個月。
對於第二項控罪企圖刑事損壞罪，辯方指其嚴重性較控罪一為低，亦呈遞上三個案例。簡單而言，三件案件均以罰款處理，辯方希望法庭考慮。
最後，辯方綜合所有求情因素並陳詞指，被告人有如一個小孩子，性格單純，本性不壞，但行事衝動，脾氣容易變得暴躁，需要成熟成年人監督和指導，而被告人出生於基層家庭，父母沒多受教育，父親現年58歲，是辦公室的送件員，被告人母親現年48歲，是家庭主婦，患有糖尿病和高血壓，而被告人父親一直為養活被告人一家九口，為口奔馳，所以被告人自小沒有得到父母足夠關愛及教導，而案發當日，被告人同樣在缺乏成熟成年人看管之下，受到當時社會氣氛影響，一時迷失和衝動，才干犯本案。
被告人被捕後已經受到沉痛教訓，而且已經有多名社工跟進。被告人被捕一刻，承受了巨大心理壓力，現在對其行為感到十分懊悔，經過這個教訓，以後都不會再參加任何示威活動，所以重犯機會極低。辯方希望法庭考慮到，發生本案時，被告人尚未干犯那條襲擊罪，所以希望能夠視被告人為沒有刑事定罪紀錄。辯方希望法庭考慮被告人罪責時，接受被告人年幼，及智商問題，心智不成熟，出於衝動，而非惡意犯案，從來沒有危害他人的意圖，本案亦不涉及預謀情況。
最後，在本席詢問下，辯方確認被告人同意接受進入更生中心的安排，亦希望法庭以此為判刑。
判刑及理由
本席已經細心考慮過本案案情、辯方陳詞及所有席前文件，明顯地，本案最主要，亦是最嚴重的，就是控罪一企圖縱火罪，控罪二企圖刑事損壞罪相對比較輕微。正如辯方公允並且正確地接受，縱火罪案件，一般都會判以數以年計監禁，是嚴重罪行，須要判以較重及富阻嚇性刑罰。
本席特別參考過近期有關上訴案例，一個相當近期於2021年2月10日的刑期覆核案件，律政司司長 訴 CWC（CAAR 12/2020），本席認為對本案尤其具有參考價值。案中涉及一名患有阿氏保加症和對立性反抗症的被告人，事發時只有十五歲半。
案情指，該被告人在警察宿舍外面，與另外一個人各自將一枚汽油彈擲向警察宿舍的圍牆之內，認罪之後，被裁定一項罔顧生命是否受到危害而縱火罪罪名成立。上訴法庭再確認一貫原則，指縱火罪案情多樣多式，不適宜訂立量刑指引，但重申早前一個案例律政司司長 訴 SWS（CAAR 1/2020）裡面訂下的指引，指那些指引及原則對下級法庭有約束力，必須跟從。
SWS一案同樣是一宗縱火案件，涉案被告人在新界區約凌晨時分投擲兩枚汽油彈，使到馬路路面燒至燻黑。在判詞第50至54段，上訴庭訂下或者重申縱火罪一般判刑原則，本席綜合如下：—
一般而言，第60（2）條罪行比第60（1）條罪行嚴重，因為犯案者有意圖摧毀或損毀財產，以危害他人生命，或者罔顧他人生命是否會因而受到危害，但兩項控罪最高刑罰同樣是終身監禁，所以60（1）條同樣是嚴重罪行。
縱火罪是嚴重罪行，原因是香港人煙稠密，居住及工作環境相對擠逼，一旦發生火災，後果往往十分嚴重。出於公眾利益的考慮，法庭必須對縱火罪判予嚴厲判刑，以保護公眾，對犯罪者加諸懲罰及公開譴責，和阻嚇犯案者及其他有意犯案的人，所以法庭一直都對縱火罪犯案者處以即時監禁。
因為縱火罪案情可以多樣多式，所以上訴法庭認為不適合訂下量刑指引，但一般而言，縱火罪刑期是4至5年。
另外，判詞第55段，上訴法庭亦強調對少年縱火犯人的一般判刑原則，指當法庭為少年縱火犯人量刑時，必須給予保護公眾、加諸懲罰、公開譴責和阻嚇罪行等判刑因素合適的比重，不能只著重更生，而且一般情況之下，鑒於縱火罪是嚴重罪行，前者比重必然較後者大。
最後，SWS一案，上訴法庭撤銷原本裁判官判處該被告人18個月感化令，改判被告人入勞教中心羈留，而之前提及的CWC案，上訴法庭同樣撤銷原本裁判官的3年感化令，改判該被告人拘留於教導所。
返回本案，本席同意以上綜合辯方的所有求情陳詞。本案在兩方面，即案情及被告人個人情況，均有特殊之處，本席認為不應當作一般縱火案處理。至於本案案情及被告人個人情況，足以構成求情理由的特殊之處，本席之前已經詳述，在此不再重複，現在只簡單綜合較重要的幾點：—
本案涉及的第60（1）條，較第60（2）條為輕，因為當中並沒有涉及意圖或者罔顧他人生命是否受到危害的元素。
本案不單為較輕微的第60（1）條，案情亦算同類案件中接近最輕微，只是意圖縱火，用的只是點著火的膠袋，而非上述CWC案或者SWS案的汽油彈，也不是其他案件中的易燃物品，如天拿水等，再加上被告人只將點著的膠袋放在大閘上面，任由它掉在地上，一來沒有造成損壞，二來在當時眾目睽睽之下，包括有警員在附近，莫說對公眾安全無礙，甚至對物件損壞的潛在風險亦微不足道。
被告人本身及其家庭情況亦如上述，大有值得同情之處。被告人干犯本案時只有十七歲多，現在亦只有十九歲多，無論程度如何，他的智商及情緒問題，的確對他的判斷能力大有影響。本席除了曾細心閱讀多份醫生報告之外，亦特別留意到本案案情，指出他在干犯本案縱火罪之後，馬上走到附近的夾公仔機店內玩耍，因而被閉路電視拍攝到，甚至遺留一個內有面罩及T裇的膠袋於夾公仔店內，成為日後指控其證據之一。被告人短時間後即晚被捕，身上除有打火機之外，手上甚至仍然持有一個公仔，其天真單純，可見一斑。
雖然涉及嚴重縱火罪行，但本席認為，被告人個人情況在法律上即使不能成為辯護理由，在情理上屬有力的求情理由，可減輕其罪責。當然，本席沒有忽視剛為本案而最新提取的兩份報告，裡面就被告人個人及家庭情況方面，與之前本席引述的先前報告大同小異，現在毋須重複，本席現在只綜合兩個重點：—
感化官在進度報告指，被告人於感化初期較為懶散，但近月逐漸有改善，有表達自己想法，及聽從負責感化官的指導，認為其不足及寬鬆的行為模式，連續及密集式指導是為必須。
在教導所和更生中心的報告中，職員認為他在感化令之下表現平平和被動，仍然與不良友伴來往，但認為他在心理及生理上均適合於教導所或更生中心拘留，兩者中更以更生中心較為適合。
就有關更生中心這個判刑選擇，本席除考慮過上述報告和感化官的意見外，亦參考了上訴法庭案例，同樣是一宗覆核申請，律政司司長 訴 黃龍威（CAAR 5/2008）。當時，上訴法庭認為，判處該案中只有18歲的被告人長達3年教導所羈留可能過重，認為適當判刑是判該被告人進入更生中心，接受不少於3個月，但不超過9個月羈留。上訴庭特別指出，更生中心羈留作用包括：—
阻嚇青少年犯重蹈覆轍；
改變青少年犯不良思想及行為；
教導青少年犯尊重法律，及認識社會可接受的行為；
培養青年犯人際關係，及其技能發展；及
協助青少年犯獲釋後再次融入社會。
根據《更生中心條例》，香港法例第567章第4條，青少年犯必須在更生中心渡過介乎2個月至5個月的前期羈留，之後，就會在更生中心渡過一個1至4個月的後期羈留。青少年犯在該後期羈留期間，可以進修、工作及參與其他獲允許的活動。青少年犯在更生中心獲釋之後，還須受到為期1年的監管令監督，若果在這1年裡面違反監管令任何條件，懲教署長有權命令該青少年犯重返更生中心接受羈留，見判詞第16及17段。
本席已經全面及詳細考慮過本案所有情況，及相關法律原則，認為更生中心是最適當判刑，所以判處被告人就本案兩項控罪，控罪一及控罪二，於更生中心拘留。
（ 李俊文 ）
區域法院法官
DCCC 500/2020
05/11/2021
李俊文
區院
認罪
罪成
19
企圖刑事毀壞
入更生中心
09/05/2019
旺角
DCCC 500/2020
香港特別行政區
區域法院
刑事案件2020年第500號
——————————-
香港特別行政區
訴
HAMAAD MAHMOOD
——————————-
主審法官： 區域法院法官李俊文
日期： 2021年5月11日
出席人士： 李偉恩小姐，為外聘律師，代表香港特別行政區
伍頴珊小姐，由法律援助署委派的伍展邦律師行延聘，代表被告人
控罪： [1] 企圖縱火（Attempted arson）
[2] 企圖刑事損壞（Attempted criminal damage）
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判刑理由書
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被告人被控共兩項罪名。第一項是企圖縱火，違反香港法例第200章《刑事罪行條例》第60（1）及（3），及159G條，並可根據第63（1）條予以懲處。罪行詳情是指控被告人於2019年9月5日，在旺角警署正門外，企圖用火損壞一道鐵閘。第二項控罪企圖刑事損壞，違反香港法例第200章《刑事罪行條例》第60（1）及159G條，指控被告人於同日在太子道西與彌敦道交界企圖損壞一組交通燈。
被告人承認控罪及所有相關的案情，於2021年4月27日被判罪名成立。
本席應辯方申請押後判刑至今天，以提取更生中心和教導所報告、感化令進度報告，及青少年評估委員會報告，但現在獲知青少年評估報告需時多個星期安排，在辯方同意之下，本席認為，為免延誤，決定今日判刑。
案情
2019年9月5日晚上，大批示威者在旺角警署外面聚集，警署關上全部大閘，並且架設水馬及金屬大閘分隔入口及示威者。
控罪一
晚上9時39分左右，被告人與數十名示威者在警署外聚集，被告人其後由雨傘陣遮掩下，帶同一個點燃的膠袋走出來，把點燃的膠袋放在警署正門水馬旁邊的保安金屬大閘上，然後離開。多個不同新聞錄像拍下整個過程。
被告人放置的點燃膠袋，其後自己掉到警署外面地上，警務人員迅速從警署走出來，用滅火筒撲滅火種，金屬大閘沒有損毀。
旺角彌敦道760號地下夾公仔店的閉路電視，拍攝到被告人同日晚上10時左右，將一個紅色膠袋放在店內其中一部夾公仔機上，膠袋內發現一個3M連粉紅色濾罐面罩，以及一件黑色長袖T裇，經政府化驗師進行配對後，發現面罩的內側及掛帶上的DNA有可能源自被告人。
控罪二
同日晚上11點57分左右，女警長3567身處旺角警署內，見到被告人在彌敦道近太子道西的花旗銀行外面，重複用行山杖擊打一支交通燈並徒手搖動該交通燈，歷時約三分鐘。被告人最終沿彌敦道往弼街方向逃跑。
翌日凌晨12時35分左右，女警長見到被告人再次出現，於旺角港鐵站B1出口附近。她一直監視被告人。警方亦鎖定被告人為拘捕目標。
最後，於凌晨2時17分左右，偵緝警員15120在彌敦道745號外截停被告人，將其拘捕，罪名是縱火及刑事毀壞。
被告人被拘捕時，手持一個公仔，身上有三個打火機。
運輸署工程師檢查被告人曾經擊打的交通燈，發現其黑色電子行人發聲裝置損毀，但交通燈信號燈仍然正常運作。
被告人背景
被告人是巴基斯坦裔，於2001年11月13日於香港出生，現年19歲，有輕至中度智障，曾經在特殊學校接受教育至中六，未婚，被捕時無業，與父母及四位哥哥一同居住在旺角一個單位。被告人有一項襲擊致造成身體傷害罪的刑事紀錄，於2020年6月17日被判12個月感化令。
求情
代表被告人的伍大律師提供了一份詳盡的書面求情陳詞連附件，裡面有多份心理醫生及精神醫生的報告及案例，本席已經全部閱讀及考慮。
首先，辯方強調，本案中被告人背景特殊，希望法庭多加考慮。被告人是一個巴基斯坦裔青年，現年19歲，犯本案時只有17歲，他大約8歲時被評估為中度智力障礙，但繼續在原校就讀，直到大約10歲，因為懷疑專注力不足及過度活躍，被轉介到油麻地兒童精神科中心，於2014年轉為入讀特殊學校。
教育局的教育心理學家彭小姐，於2014年8月19日為被告人進行評估，並且撰寫了一份專家報告，評定被告人的智商為47，屬於高端的中度智力障礙。
被告人於2014年在特殊學校升讀中一，至2018年輟學，現時無業。
被告人於2012年被診斷患上腦癎症，需要定期接受治療。
另外，被告人於2019年12月9日，即干犯本案之後，干犯另一宗襲擊致造成身體傷害的案件，而被拘留。他於2020年3月13日承認該控罪，而當時裁判官為他索取了勞教中心和教導所報告、一份心理醫生報告，及一份感化令報告。被告人因為其體能關係，被評為不適合勞教中心，但適合教導所的拘留。而最後，裁判官於2020年6月17日判被告人12個月感化令，亦即是被告人現在唯一的刑事紀錄。
根據上述的心理醫生報告，被告人被評定屬於低端的輕度智力障礙，被告人分辨對與錯的能力弱，自我情緒管理方面有困難，他有神經發展障礙症，及專注力不足，或者過度活躍症，因此被社會排擠及否定，而產生心理問題。
另外，在本案預備的過程中，辯方因應早前被告人是否適合答辯這個議題，安排了為被告人索取兩份精神科醫生的報告，一份由郭偉明（譯音）醫生撰寫，日期為2020年10月28日，另一份由王忠顯（譯音）醫生撰寫，日期為2020年11月16日。郭醫生在報告裡面，估計被告人只有相等於9至10歲小童的智商，他的智力障礙會損害他的推理和解決問題能力、判斷力、計劃力、為事情排優先次序的能力，及策略制定的能力。而王醫生在報告中指出，被告人的輕度智障是一種神經發育的障礙，情況一直會維持不變。
還有，在提訊期間，法庭於2020年10月29日，同樣因應被告人是否適合答辯這個議題，為被告人索取兩份由懲教署精神科醫生撰寫的報告，由Doctor Liu及Doctor Lam撰寫，兩位醫生就被告人智力方面的評定，同上述報告的結論吻合，而兩位醫生都認為被告人適合答辯。
辯方亦呈遞了共十封求情信，包括被告人自己撰寫、被告人父親、訓導主任、老師、議員及社工撰寫的求情信，大致提到被告人單純，品性善良，但因為智力和情緒問題，分辨是非的能力較弱，較容易衝動和受人影響，現在已經為涉案行為深感後悔，願意改過，懇請法庭輕判。
辯方亦力陳本案的案情有特殊之處。
就控罪一，被告人點燃了一個小型白色膠袋裡面的垃圾，並沒有點燃傷害性更大的其他物件，例如汽油彈，本案的嚴重性遠比許多同類的案件為輕。該微小火種在事發時已經迅速被警署出來的警員撲滅，而案發的地點是露天空間，並不涉及多層樓宇或者室內。被告人只有損壞死物（即是鐵閘）的意圖，從來沒有危害任何在場人士生命的意圖。鑒於案發現場的警員數目和實際情況，相關的縱火行為潛在風險極低，而事實上，鐵閘亦沒有起火，而案件中亦沒有人受傷。
就控罪二，辯方指，被告人以行山杖擊打交通燈，並用雙手搖動交通燈，前後只是維持了三分鐘。雖然有意圖損壞交通燈，但是從沒有意圖危害任何在場人士，案件中沒有人受傷，其行為失去控制或者誤傷他人的潛在機會極低。
辯方大律師亦遞交了一堆案例，就第一控罪企圖縱火，辯方遞交的案例指出，上訴法庭沒有為縱火案件訂下判刑的指引，但在Chau Yuk Kuen v The Queen（CACC 402/1980），上訴法庭指，該類案件的刑期最少為4至5年。另外，上訴法庭亦指出，法庭對縱火罪須要判處較重及阻嚇性的刑罰，目的是保護公眾生命和財產免受縱火等行為的嚴重威脅，見HKSAR v Kung Pak Fu（[2008] 2 HKCLRT 240）。
辯方不爭議以上法律原則適用於一般情況，但於陳詞指，本案案情有異於一般同類案件，所以除此以外，辯方亦呈遞了四個區域法院的判案，供法庭參考，特別倚賴其中兩個。
第一個是HKSAR v Cruz Kevin Charles Villareal （DCCC 26/2015），該案被告人亦承認一項縱火罪，被指事發時將裝有易燃液體的玻璃樽投擲向學校的校園，造成輕微損毀，但沒有人受傷。判刑的法官考慮到被告人年紀只有22歲，有悔意及良好紀錄，最後判處被告人羈留於勞教中心。另一個案例HKSAR v Lam Chun Ki and Lo John Jr（DCCC 1034/2016），該案有兩名被告人，均就一項縱火罪認罪，第一被告人19歲，第二被告人18歲，第一被告人在事發時，將一扎報紙綁在發生事情的公寓鐵門的欄杆之間，而要求第二被告人做同樣的事。其後，用打火機點著了公寓鐵門上面的報紙。最後，判刑的法官判處第一被告人入更生中心，而第二被告人入教導所。
辯方陳詞指，該兩案的案情與本案較為相近，嚴重性較輕，亦涉及年輕被告人，所以參考價值較高。另外，辯方亦倚賴一宗裁判法院上訴案件，香港特別行政區 訴 李啟發（HCMA 165/2020），指雖然該案是關於管有攻擊性武器的控罪，與本案控罪無關，但值得參考的地方就是，因為案中同樣涉及一名被告人，智力相當於11至12歲小孩，情況與本案被告人相似。在這件案件裡面，上訴時，原審法官接納上訴人智障影響到他未能夠了解到他的行為和後果的嚴重性，於一定程度上減低了他在道德上的罪責，所以減刑1個月。
對於第二項控罪企圖刑事損壞罪，辯方指其嚴重性較控罪一為低，亦呈遞上三個案例。簡單而言，三件案件均以罰款處理，辯方希望法庭考慮。
最後，辯方綜合所有求情因素並陳詞指，被告人有如一個小孩子，性格單純，本性不壞，但行事衝動，脾氣容易變得暴躁，需要成熟成年人監督和指導，而被告人出生於基層家庭，父母沒多受教育，父親現年58歲，是辦公室的送件員，被告人母親現年48歲，是家庭主婦，患有糖尿病和高血壓，而被告人父親一直為養活被告人一家九口，為口奔馳，所以被告人自小沒有得到父母足夠關愛及教導，而案發當日，被告人同樣在缺乏成熟成年人看管之下，受到當時社會氣氛影響，一時迷失和衝動，才干犯本案。
被告人被捕後已經受到沉痛教訓，而且已經有多名社工跟進。被告人被捕一刻，承受了巨大心理壓力，現在對其行為感到十分懊悔，經過這個教訓，以後都不會再參加任何示威活動，所以重犯機會極低。辯方希望法庭考慮到，發生本案時，被告人尚未干犯那條襲擊罪，所以希望能夠視被告人為沒有刑事定罪紀錄。辯方希望法庭考慮被告人罪責時，接受被告人年幼，及智商問題，心智不成熟，出於衝動，而非惡意犯案，從來沒有危害他人的意圖，本案亦不涉及預謀情況。
最後，在本席詢問下，辯方確認被告人同意接受進入更生中心的安排，亦希望法庭以此為判刑。
判刑及理由
本席已經細心考慮過本案案情、辯方陳詞及所有席前文件，明顯地，本案最主要，亦是最嚴重的，就是控罪一企圖縱火罪，控罪二企圖刑事損壞罪相對比較輕微。正如辯方公允並且正確地接受，縱火罪案件，一般都會判以數以年計監禁，是嚴重罪行，須要判以較重及富阻嚇性刑罰。
本席特別參考過近期有關上訴案例，一個相當近期於2021年2月10日的刑期覆核案件，律政司司長 訴 CWC（CAAR 12/2020），本席認為對本案尤其具有參考價值。案中涉及一名患有阿氏保加症和對立性反抗症的被告人，事發時只有十五歲半。
案情指，該被告人在警察宿舍外面，與另外一個人各自將一枚汽油彈擲向警察宿舍的圍牆之內，認罪之後，被裁定一項罔顧生命是否受到危害而縱火罪罪名成立。上訴法庭再確認一貫原則，指縱火罪案情多樣多式，不適宜訂立量刑指引，但重申早前一個案例律政司司長 訴 SWS（CAAR 1/2020）裡面訂下的指引，指那些指引及原則對下級法庭有約束力，必須跟從。
SWS一案同樣是一宗縱火案件，涉案被告人在新界區約凌晨時分投擲兩枚汽油彈，使到馬路路面燒至燻黑。在判詞第50至54段，上訴庭訂下或者重申縱火罪一般判刑原則，本席綜合如下：—
一般而言，第60（2）條罪行比第60（1）條罪行嚴重，因為犯案者有意圖摧毀或損毀財產，以危害他人生命，或者罔顧他人生命是否會因而受到危害，但兩項控罪最高刑罰同樣是終身監禁，所以60（1）條同樣是嚴重罪行。
縱火罪是嚴重罪行，原因是香港人煙稠密，居住及工作環境相對擠逼，一旦發生火災，後果往往十分嚴重。出於公眾利益的考慮，法庭必須對縱火罪判予嚴厲判刑，以保護公眾，對犯罪者加諸懲罰及公開譴責，和阻嚇犯案者及其他有意犯案的人，所以法庭一直都對縱火罪犯案者處以即時監禁。
因為縱火罪案情可以多樣多式，所以上訴法庭認為不適合訂下量刑指引，但一般而言，縱火罪刑期是4至5年。
另外，判詞第55段，上訴法庭亦強調對少年縱火犯人的一般判刑原則，指當法庭為少年縱火犯人量刑時，必須給予保護公眾、加諸懲罰、公開譴責和阻嚇罪行等判刑因素合適的比重，不能只著重更生，而且一般情況之下，鑒於縱火罪是嚴重罪行，前者比重必然較後者大。
最後，SWS一案，上訴法庭撤銷原本裁判官判處該被告人18個月感化令，改判被告人入勞教中心羈留，而之前提及的CWC案，上訴法庭同樣撤銷原本裁判官的3年感化令，改判該被告人拘留於教導所。
返回本案，本席同意以上綜合辯方的所有求情陳詞。本案在兩方面，即案情及被告人個人情況，均有特殊之處，本席認為不應當作一般縱火案處理。至於本案案情及被告人個人情況，足以構成求情理由的特殊之處，本席之前已經詳述，在此不再重複，現在只簡單綜合較重要的幾點：—
本案涉及的第60（1）條，較第60（2）條為輕，因為當中並沒有涉及意圖或者罔顧他人生命是否受到危害的元素。
本案不單為較輕微的第60（1）條，案情亦算同類案件中接近最輕微，只是意圖縱火，用的只是點著火的膠袋，而非上述CWC案或者SWS案的汽油彈，也不是其他案件中的易燃物品，如天拿水等，再加上被告人只將點著的膠袋放在大閘上面，任由它掉在地上，一來沒有造成損壞，二來在當時眾目睽睽之下，包括有警員在附近，莫說對公眾安全無礙，甚至對物件損壞的潛在風險亦微不足道。
被告人本身及其家庭情況亦如上述，大有值得同情之處。被告人干犯本案時只有十七歲多，現在亦只有十九歲多，無論程度如何，他的智商及情緒問題，的確對他的判斷能力大有影響。本席除了曾細心閱讀多份醫生報告之外，亦特別留意到本案案情，指出他在干犯本案縱火罪之後，馬上走到附近的夾公仔機店內玩耍，因而被閉路電視拍攝到，甚至遺留一個內有面罩及T裇的膠袋於夾公仔店內，成為日後指控其證據之一。被告人短時間後即晚被捕，身上除有打火機之外，手上甚至仍然持有一個公仔，其天真單純，可見一斑。
雖然涉及嚴重縱火罪行，但本席認為，被告人個人情況在法律上即使不能成為辯護理由，在情理上屬有力的求情理由，可減輕其罪責。當然，本席沒有忽視剛為本案而最新提取的兩份報告，裡面就被告人個人及家庭情況方面，與之前本席引述的先前報告大同小異，現在毋須重複，本席現在只綜合兩個重點：—
感化官在進度報告指，被告人於感化初期較為懶散，但近月逐漸有改善，有表達自己想法，及聽從負責感化官的指導，認為其不足及寬鬆的行為模式，連續及密集式指導是為必須。
在教導所和更生中心的報告中，職員認為他在感化令之下表現平平和被動，仍然與不良友伴來往，但認為他在心理及生理上均適合於教導所或更生中心拘留，兩者中更以更生中心較為適合。
就有關更生中心這個判刑選擇，本席除考慮過上述報告和感化官的意見外，亦參考了上訴法庭案例，同樣是一宗覆核申請，律政司司長 訴 黃龍威（CAAR 5/2008）。當時，上訴法庭認為，判處該案中只有18歲的被告人長達3年教導所羈留可能過重，認為適當判刑是判該被告人進入更生中心，接受不少於3個月，但不超過9個月羈留。上訴庭特別指出，更生中心羈留作用包括：—
阻嚇青少年犯重蹈覆轍；
改變青少年犯不良思想及行為；
教導青少年犯尊重法律，及認識社會可接受的行為；
培養青年犯人際關係，及其技能發展；及
協助青少年犯獲釋後再次融入社會。
根據《更生中心條例》，香港法例第567章第4條，青少年犯必須在更生中心渡過介乎2個月至5個月的前期羈留，之後，就會在更生中心渡過一個1至4個月的後期羈留。青少年犯在該後期羈留期間，可以進修、工作及參與其他獲允許的活動。青少年犯在更生中心獲釋之後，還須受到為期1年的監管令監督，若果在這1年裡面違反監管令任何條件，懲教署長有權命令該青少年犯重返更生中心接受羈留，見判詞第16及17段。
本席已經全面及詳細考慮過本案所有情況，及相關法律原則，認為更生中心是最適當判刑，所以判處被告人就本案兩項控罪，控罪一及控罪二，於更生中心拘留。
（ 李俊文 ）
區域法院法官
ESCC 2726/2020
05/11/2021
鄧少雄
裁判法院
認罪
罪成
廚師
21
管有任何物品意圖摧毀或損壞財產
一樽白電油丶一包索帶
判囚
3
中環
WKCC815/2021
05/11/2021
裁判法院
簽保守行為
退休人士
69
阻差辦公
09/06/2020
旺角
WKCC1312/2020
05/10/2021
陳慧敏
裁判法院
認罪
罪成
製片人
30
非法集結
判囚
3
太子
ESCC179/2020
05/10/2021
劉綺雲
裁判法院
認罪
罪成
無業
23
管有適合作非法用途的工具
螺絲批、扳手、鉗
判囚
9
中環
ESCC179/2020
05/10/2021
劉綺雲
裁判法院
認罪
罪成
學生
22
管有適合作非法用途的工具
一個螺絲批、銀色扳手及鎚仔
判囚
9
中環
DCCC 97/2020
05/10/2021
葉佐文
區院
認罪
罪成
學生
22
管有任何物品意圖摧毀或損壞財產
判囚
38
11/04/2019
灣仔
DCCC 97/2020
香港特別行政區
區域法院
刑事案件2020年第97號
——————————
香港特別行政區
訴
莫禮滔（第四被告人）
——————————
主審法官： 區域法院法官葉佐文
日期： 2021年5月10日
出席人士： 律政司署理高級檢控官張卓勤先生 及律政司檢控官黃恩寧女士，代表香港特別行政區
沈士文先生及黃宛蓓女士，由劉藹宜黃汝仲律師事務所延聘，代表第四被告人
控罪： [2] 管有物品意圖摧毀或損壞財產（Possessing things with intent to destroy or damage property）
————————-
判刑理由書
————————-
控罪
第四被告人承認第二項控罪：—
罪行陳述
“ 管有物品意圖摧毀或損壞財產，違反香港法例第200章《刑事罪行條例》第62(a)及63(2)條。
罪行詳情
鄭錦輝、楊泳茹、丘建威、莫禮滔Jawin及黃建棋於2019年11月2日的0000時至約1505時、當警務人員透過破門而進入香港灣仔堅拿道西10號冠景樓4樓F室的處所期間，在香港的該處所，保管或控制59個汽油彈、79個玻璃瓶每個載有白色廢棉、50個玻璃瓶、約4.6公升淺黃色液體內含柴油、約1.0公升無色液體內含異丙醇、約4.9公升綠色液體內含汽油、白色廢棉、布條、布及毛巾，意圖在無合法辯解的情況下使用或導致他人使用或准許他人使用該等物品，以摧毀或損壞屬於另一人的財產。”
案情
涉案單位被人租用
證人16是涉案單位，即灣仔堅拿道西10號冠景樓 (“該大樓”) 4樓F室的業主。自2018年1月1日開始，直到案發當日，以月租港幣$13,000元租予證人17。
證人17於2019年7 月開始，透過網上租屋平台 “AirBnB” 把整個涉案單位再分租出去。於2019年10月30日，一位名叫 “Wing Long Wong” 的人在 “AirBnB” 向證人17表示願意以港幣$1,520元租住涉案單位，日期為2019年10月31日至2019年11月4日 (即五天四夜)。證人17同意此租務交易，並於 “AirBnB” 訊息欄內告之 “Wing Long Wong” 涉案單位大門電子鎖的密碼，好讓對方能自行進入單位。證人17並不認識對方，也從未見過對方。
警方的行動
2019年11月2日，警方刑事情報科人員就著上述單位進行監視行動。當中觀察人員SO5 和SO6在該大樓外的位置進行觀察，留意單位面向軒尼詩道和寶靈頓道露台的情況，而行動組人員SO1至SO4則在該大樓附近一帶候命。
同日大約1500時警方決定採取行動，SO1至SO4掩至涉案單位門外，並在門外察覺有濃烈氣油味從單位內傳出。此時，SO1表露警察身份要求單位內人士開門，唯單位沒有任何回應傳出，SO1至SO4隨即展開破門行動。
破門後，SO1至SO4發現單位內無人，同時從通訊機得知，有四男一女（包括第四被告人）正從上述單位露台向下層逃走。SO1至SO3隨即在該大樓進行掃蕩，而SO4則留守單位外看管現場，確保現場沒有受到干擾。
於警方行動期間一直觀察露台情況的SO5和SO6，觀察到上述五人從單位內走至單位露台位置，並從露台跳至三樓的簷蓬，再從該簷蓬跳至三樓的平台。上述過程，由一段不知名人士拍攝並在同日交予警方的片段（其後由警方保存和檢取）拍攝下來。SO5和SO6其後確認該片段拍攝到的是他們當時觀察該五人（包括第四被告人）離開單位的情況。在該片段被拍攝到他們均沒有蒙面，片段能清晰顯示到他們的面容。
俄羅斯籍男子 (證人14) 當時身處該大樓的3樓A室內，他當時目睹並其後透過片段確認該五人（包括第四被告人）是從他所在的單位的露台外衝入其單位，他們當中有人受傷，並該五人（包括第四被告人）曾經要求證人14容許他們留在其單位內，但被證人14拒絕並要求他們離開。他們起初不想離開，但最後從證人14的單位的正門離開，之後證人14把單位的正門鎖上。
該大樓設有升降機，每個樓層均可以透過升降機及樓梯前往。該大樓的閉路電視拍攝到沿該大樓的樓梯從3樓到2樓的情況，該五人（包括第四被告人）到達2樓後打開防煙門進入2樓。
警察進入2樓的一間餐廳調查，在上址一個角落發現該五人（包括第四被告人）。
證人24是該餐廳的經理，他確認該餐廳共設有一個男洗手間及一個女洗手間，兩者均設於餐廳的正門外。而男洗手間沒有設置大門，只有一道膠帆布簾遮蔽入口，故男洗手間並無法上鎖。日常該洗手間的清潔，是由該餐廳的職員負責，在營業時間以外，任何人均可自由出入及使用該洗手間。他亦確認案發當日該餐廳的營業時間為下午五時至凌晨三時，所以於當日下午一時開始便有職員返回餐廳準備營業，並打開該餐廳的大門方便工作。
該餐廳的閉路電視鏡頭拍攝到該五人（包括第四被告人）進入處所內的過程。
警方控制他們後，分開各人並以「藏有攻擊性武器」罪名拘捕各人。經警誡後，各人（包括第四被告人）保持緘默。
其後，警方押解該五人（包括第四被告人）回到涉案單位內繼續調查及在內搜查。自警方進入涉案單位後，一直有警員留守以確保單位內沒有受到任何干擾。
於同日1610時，警方在單位內向該五人（包括第四被告人）展示及執行觀塘裁判法院發出的搜查令要求搜查單位。
警方把單位分成三個區域 (即甲、乙、丙)，並在草圖上標記所發現證物的位置。
在涉案單位調查期間，該五人（包括第四被告人）分別向警員指出單位內屬於他們的個人物品。
專家證人法證科學家確認，高度易燃液體，比如汽油，在室溫的環境下隨時可以以明火或火花點著。當以明火觸及高度易燃液體的表面時，液體表面上方的蒸汽會被點燃，並會持續燃燒至液體耗盡。倘若任由這液體放置一段時間，一種這液體的蒸汽和空氣的混合物便會形成，而點燃這種蒸汽和空氣的混合物可引起爆炸，突然及迅速釋放與氣體和產生的熱力有關的能量。當汽油彈的引線被燃點著並將汽油彈投擲到堅硬的表面時，瓶子會破碎，而高度易燃液體會散開成小滴及霧氣雲。引線上的火會繼而點燃小滴及霧氣雲，瞬間形成一個火球。過程中，正在燃燒的液體散開，並會繼續燃燒，對該範圍造成廣泛的火勢破壞。
警方在單位內共檢取了共92項證物。
法證科學家確認，證物2及47中的布塊，每塊均是白色毛巾段，外觀與證物26及69的白色毛巾段相似。
證物47及證物6, 8和36中的玻璃瓶上標示的容量為325毫升，它們的外觀一致。
證物41和43的高度易燃液體、證物6, 8和36的玻璃瓶及證物10, 16, 17, 26, 28, 69和70的物料，可以製造成汽油彈。
武器專家法證科學家檢驗了證物11,12,13,49和65，確認這些都是短棍包含一個內伸縮金屬管和一個中間伸縮金屬管，藏在一個有防滑手柄的外金屬管內。每枝短棍的三條金屬管都是鋼造的。證物11-12的短棍收縮時長約20厘米，最長可延長至約52厘米。證物13的短棍收縮時長約24厘米，最長可延長至約64厘米。證物49, 65的短棍收縮時長約20厘米，最長可延長至約50厘米。
單位內屬於該五人（包括第四被告人）的物品
在涉案單位調查期間，該五人（包括第四被告人）分別向警員指出單位內屬於他們的物品，並於警員記事冊上簽名確認，列出如下：—
證人14單位的搜證
警方鑑證科高級警員51480奉召到達同案另一涉案單位即該大樓三樓A室，並在現場地板上套取7個血液樣本及從玻璃門上套取1隻指模及1隻個掌印。後經政府化驗所法證科學家楊思萌女士較對下，發現當中兩個血液樣本可能來自E。
化驗後，在第四被告人和其中三人的衣物發現微量汽油。
閉路電視片段
警方取得了2019年10月31日0001時至2019年11月2日1545時期間，該大樓的地下大堂及升降機閉路電視片段，當中顯示該五人（包括第四被告人）曾於案發前，即2019年11月1日凌晨時分，直到2019年11月2日凌晨時分，分別多次進出該大樓。其中閉路電視片段拍攝到A及第四被告人多次手持物品包括藍色膠袋及白色膠箱進入該大樓，而警方亦於事發後，在涉案單位搜出與該等款式相符的藍色膠袋及白色膠箱。
2019年11月2日單位附近的事件
使用汽油彈的用途包括庭上播放於2019年11月2日春園街1719時至1726時黑衣人集結期間有人使用的汽油彈。
第四被告人的個人情況
他現年23歲，沒有刑事定罪記錄，案發時就讀城巿大學公共行政及政治學士課程最後一年，家中有父母和妹妹。
他在求情信中透露在還柙期間已深感後悔，並明白以犯法的方式表達對社會的訴求只會加深社會矛盾，不能解決問題。
沈大律師呈另外10封求情信，是來自他的父母、大中小學師長、大中小學同學，舞蹈學會成員以及還柙期間在“牆內學習計劃”中指導他的文史哲課程的講師。他們眼中的他關心社會、樂於助人、聰明和勸奮，犯下本案應是一時衝動所致。
判刑考慮
沈大律師首先提到香港特別行政區 訴 楊泳茹 [2021] HKDC 517，該案例的被告人是本案的第二被告人，她較早前獲排期於2021年4月30日上庭認罪及求情，法庭在同日判刑，針對她的控罪和案情與針對第四被告人的相同。沈大律師要求本席採納相同的量刑基準4年9個月作為第四被告人的量刑基準。
控方確認第四被告人於2020年10月16日已向法庭表示會承認第二項控罪，因此應可獲減刑三分之一。
判刑考慮
沈大律師呈交5宗案例，反映過往管有汽油彈的案例的量刑基準為18至48個月：—
第一宗是HKSAR v Chan Kwok Ching [2020] HKDC 490，被告人在街上全身黑衣及戴上黑口罩黑手套，他的腰袋掛著3個樽袋，各有一枚汽油彈在內。警方將他制服期間，其中一枚汽油彈從樽袋中掉到地上，他的腰袋藏有一些物料及工具，足以製造15枚汽油彈。法庭採納4年（或48個月）作為量刑基準。
第二宗是HKSAR v Chan Chun Fai, Kelvin [2020] HKDC 856，警方在被告人租用的一個工業大廈單位內檢獲被告人自製的11枚汽油彈，另外還檢獲2樽通渠液（共有1公升）、1樽打火機燃液（共有2.2公升）和3個空玻璃樽。就管有汽油彈罪，法庭以3年6個月（或42個月）作為量刑基準。
第三宗是香港特別行政區 訴 王瀚文 [2021] HKDC 301，被告人的背包裡有三個空玻璃樽、兩隻手套、一罐打火機燃料，這些是製造汽油彈的原材料。被告人被判入勞教中心。
第四宗是HKSAR v Lo Chun-hei [2021] HKDC 292，被告人承認管有物品意圖破壞他人的財物，即5樽打火機燃液、5樽火酒、19個啤酒樽、一些棉球、火柴、鎂粉、鉀粉，這些物品可用來製造汽油彈（第三項控罪：管有物品意圖摧毀或損壞財產）。另外還有頭盔、保護裝置、冷敷包、鎚、膠喉、伸縮警棍和一把刀。法庭認為在公民動亂期間管有這些物品會令情況惡化，這是加刑因素之一，但是被告是只在家中管有全部物品，不是在街上或在動亂地點管有，汽油彈並未製成。法庭以3年9個月（或45個月）作為量刑基準。
第五宗是HKSAR v Yiu Siu Hong [2020] HKDC 473，被告人在街上示威期間燃點手上的一枚汽油彈時被警方制服，他的背包藏有另一枚汽油彈（第一項控罪）。就第一項控罪，法庭以2年6個月（或30個月）作為量刑基準。
沈大律師援引另外四宗案例，首三宗的量刑基準是5年（HKSAR v Chan Chun Fai, Kelvin [2020] HKDC 856的目標是警署車轉出入閘口；香港特別行政區 訴 林小雄[2020] HKDC 984的目標是警署側門；HKSAR v Lai Chun Hung [2020] HKDC 1190的目標是警察，但汽油彈沒有爆炸），最後一宗的量刑基準是6年（HKSAR v Yiu Siu Hong 姚少康 [2020] HKCA 1087之第二項控罪有關被告向清理路障的一些警員嘗試投擲一個已燃點了的汽油彈）。全是有關被告人向警察、警署或警車投擲汽油彈。
本案判刑
涉及汽油彈罪行的判刑很重，以身試法的代價很大。
本案有三個嚴重因素。其一，汽油彈是危險的易燃裝置，在本案中的製成品及燃料是放在多層商住大廈內，會有火警危險。其二，本案所涉的製成品和燃料數量不少。其三，本案共五人有計劃地犯案。
先前提及相同控罪但較輕案情的HKSAR v Chan Kwok Ching 的量刑基準則是4年（或48個月），HKSAR v Lo Chun-hei 的量刑基準是3年9個月（或45個月），而HKSAR v Chan Chun Fai, Kelvin的量刑基準則是3年6個月（或42個月）。
涉及較重罪責之企圖縱火罪及案情的四宗案例的量刑基準分別是5年及6年。
本席以4年9個月（或57個月）作為量刑基準。控方確認第四被告人早已表示認罪，可獲減刑三分之一。本席判處他入獄3年2個月（或38個月）。他於2019年11月2日開始被警方扣留，其後由懲教署拘留，刑期應由2019年11月2日開始計算。
（ 葉佐文 ）
區域法院法官
WKCC1312/2020
05/10/2021
陳慧敏
裁判法院
不認罪
不成立
製片人
30
在公眾地方管有攻擊性武器
萬用刀丶雷射筆
太子
ESCC2481/2020
05/07/2021
羅德泉
裁判法院
認罪
罪成
教授
50
在公眾地方作出擾亂秩序的行為
判囚
3
港島
ESCC1593/2020
05/07/2021
崔美霞
裁判法院
不認罪
罪成
保險經紀
24
在公眾地方管有攻擊性武器
鐳射筆
判囚
6
灣仔
ESCC2710/2019
05/06/2021
劉綺雲
裁判法院
認罪
罪成
工程實習生
27
管有攻擊性武器或適合作非法用途的工具
一螺絲批
判囚
9
12/08/2019
灣仔
ESCC2710/2019
05/06/2021
劉綺雲
裁判法院
認罪
罪成
工程實習生
27
管有攻擊性武器意圖作非法用途
一把刀連套
判囚
9
12/08/2019
灣仔
ESCC2710/2019
05/06/2021
劉綺雲
裁判法院
認罪
罪成
工程實習生
27
管有違禁武器
指節套
判囚
9
12/08/2019
灣仔
DCCC865/2020
05/06/2021
陳廣池
區院
認罪
罪成
區議員
26
明知而參與未經批准集結
判囚
4
06/04/2020
維多利亞公園
DCCC 857-875,
877-884, 886-889,
891 & 893/2020
(Consolidated)
[2021] HKDC 1572
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NOS 857-875, 877-884,
886-889, 891 & 893 OF 2020
———————-
HKSAR
v
Lee Cheuk-yan (D1)
Tsoi Yiu-cheong Richard (D3)
Lai Chee-ying (D4)
Leung Yiu-chung (D7)
Leung Kam-wai (D10)
Chow Hang-tung (D13)
Wu Chi-wai (D17)
Ho Kwai-lam (D19)
———————-
Before: HH Judge A. J. Woodcock
Date: 13 December 2021 at 2.39 pm
Present: Ms Laura Ng, SADPP (Ag) and Mr Edward Lau, SPP (Ag) of Department of Justice, for HKSAR
The 1st, 13th and 19th defendants appeared in person
Ms Kristine Chan, of Ho Tse Wai & Partners, for 3rd and 10th defendants
Mr Robert Pang, SC, leading Mr Jeffrey Tam, Mr Ernie Tung and Mr Joshua Ngai, instructed by Robertsons, for the 4th defendant
Mr Lucas Lau, instructed by Lau & Chan, for the 7th defendant
Mr Lee Hung-mo, instructed by Ho Tse Wai & Partners, for the 17th defendant
Offences: (1) Incitement to knowingly take part in an unauthorized assembly(煽惑他人明知而參與未經批准集結) (against D1-D13)
(2) Holding an unauthorized assembly(舉行一個未經批准集結) (against D1)
(3) Knowingly taking part in an unauthorized assembly (明知而參與未經批准集結)(against D1-D3, D5-D20)
———————
Reasons for Sentence
———————
There were 37 cases arising from the same incident of which 4 were dealt with earlier and the remaining 33 were consolidated. In this consolidated case, there were 20 defendants.
12 of the 20 defendants pleaded guilty to their respective charges before me and were sentenced on 15 September 2021. They were the 2nd, 5th, 6th, 8th, 9th, 11th, 12th, 14th, 15th, 16th, 18th and 20th defendants. The remaining 8 pleaded not guilty and a trial was set down for 10 days from 1 November 2021.
Those remaining 8 defendants appeared before me at a pre-trial review on 15 October 2021. Between that date and the first day of trial, 5 of the remaining defendants indicated a change of plea. They pleaded guilty to their respective charges on the first day of trial. They were the 1st, 3rd, 7th, 10th and 17th defendants. I will sentence them today.
3 defendants maintained their pleas of not guilty and were convicted after trial of their respective charges on 9 December 2021. I have heard mitigation earlier today on behalf of, or from those 3 defendants; the 4th, 13th and 19th defendants.
The 4 defendants dealt with and sentenced earlier by His Honour Judge Stanley Chan, pleaded guilty to a charge arising from the same incident on 4 June 2020 in Victoria Park. In a consolidated case DCCC 876, 885, 890 and 892/2020, Wong Chi-fung, Lester Shum, Tiffany Yuen Ka-wai and Rosalynne Jannelle Leung admitted they knowingly took part in that same unauthorised assembly. They were sentenced on 6 May 2021 to sentences ranging from between 4 to 10 months’ imprisonment.
Charge 1
The 1st, 3rd, 7th and 10th defendants pleaded guilty to Charge 1, incitement to knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221.
The particulars are that on 4 June 2020 at the Water Fountain Plaza, Victoria Park, Causeway Bay, in Hong Kong, they, together with other defendants unlawfully incited other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public meeting which took place in contravention of section 7 of the Public Order Ordinance which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.
The 4th and 13th defendants were convicted after trial of Charge 1.
Charge 2
The 1st defendant pleaded guilty to Charge 2, holding an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The particulars are that on the same day, 4 June 2020 at Victoria Park, the 1st defendant held a public meeting which took place in contravention of section 7 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the Public Order Ordinance.
Charge 3
The 1st, 3rd, 7th, 10th and 17th defendants pleaded guilty to Charge 3, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the Public Order Ordinance.
The particulars are that on the same day, 4 June 2020 at Victoria Park, they together with the defendants named and other persons unknown, without lawful authority or reasonable excuse, knowingly took part in a public meeting which took place in contravention of section 7 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.
The 13th and 19th defendants were convicted after trial of Charge 3.
The Facts
When I sentenced 12 of these 20 defendants on 15 September 2021, I set out in full the facts agreed by the defendants and pertinent to sentence. For the sake of brevity, there is no need to repeat them here in full.
In convicting the 4th, 13th and 19th defendants after trial, on 9 December 2021, in my verdict, I set out the evidence against each defendant that I found proved beyond reasonable doubt that they were guilty as charged. There is no need for me to repeat it here. I also set out why I rejected the evidence of the 13th and 19th defendants.
Suffice to say, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (“Hong Kong Alliance”) submitted a notification to the Police applying to hold a public meeting in Victoria Park between 9 am and 10 pm on 4 June 2020. The purpose of the meeting was to mourn the 31st anniversary of the June 4 incident, with an estimated number of participants between 50,000 and 100,000.
In light of the pandemic, the Department of Health were consulted by the Police and advised against holding any mass gatherings at that time, in view of the coronavirus pandemic. The Department of Health took into account the number of COVID-19 cases by the end of May 2020, the upsurge between March and early April 2020 as well as several local clusters mid-May 2020 with no apparent primary source identifiable. The risk of community outbreak existed at that time. All the sporting facilities, including the football pitches of Victoria Park were closed, and had been since March 2020 because of the pandemic.
After a liaison meeting between the Police and representatives of Hong Kong Alliance, the Commissioner of Police issued a notice as required, prohibiting the holding of the proposed public meeting in the interests of public order, public safety and the protection of the rights and freedoms of others. The Letter of Objection was issued on 1 June 2020.
Despite the Letter of Objection, these defendants defied the police ban and the law. They either incited others to take part in an unauthorised assembly, and/or knowingly participated in one that night. The 1st defendant admits he held it.
The video footage of the press conference, inciting others and the actual footage of the unauthorised assembly has been played in court numerous times in relation to this consolidated case. Those videos and screen captures identifying the defendants and their locations, as well as the transcripts of the speeches and slogans chanted are set out in the Amended Summary of Facts for these 5 defendants that pleaded.
In the afternoon of 4 June 2020, there were crowds already around Causeway Bay entrance of Victoria Park obstructing traffic, and some roads had to be closed to traffic because of traffic chaos and safety concerns.
By 8 pm, there were an estimated 20,000 people on the invaded football pitches of Victoria Park. The pitches were a sea of candlelight. The crowds disbursed by about 11 pm. There was some graffiti on walls and on the ground relating to the June 4th Incident.
Mitigation
I have heard mitigation in full from all except the 10th defendant, who had nothing to say, but did submit a biography. This morning, the 13th defendant acted in person in mitigation and gave no personal particulars or background but made a lengthy statement. Similarly, the 19th defendant gave no personal particulars or background in mitigation but made a short statement in person.
I have either received written mitigation, biographies, statements and supporting authorities in advance or received letters of mitigation. The 1st defendant also represented himself in mitigation. I do not intend to repeat all the mitigation provided but all that can be said on behalf of the represented defendants has been conveyed and considered.
For the 1st, 3rd, 7th, 10th and 17th defendants, their best mitigation is their pleas of guilty. They did not indicate their pleas in a timely manner. They all indicated their pleas between the date of the pre-trial review and the first day of trial.
It was submitted that by then, the turbulent and tumultuous social unrest of 2019 had receded. The obstruction and inconvenience to the public around Victoria Park was limited to the streets in the Causeway Bay area only and natural with any assembly. There was no violence or imminent risk of violence at any time. The unauthorised meeting lasted only a few hours and was relatively short.
I was urged to, and will consider personal mitigation, clear records, motive, backgrounds and previous significant public service.
Principles of Sentencing
I will adopt paragraphs 40 to 52 in my Reasons for Sentence dated 15 September 2021 relating to other co-defendants in this case. I will consider the culpability of the offenders individually. The context in which a crime is committed is of relevance to assessing its gravity and that culpability. It can be relevant to whether a punitive and deterrent sentence is appropriate.
Since preserving public order and public safety is important, I have taken into account the prevailing circumstances at the time, some defendants incited others to take part in an unauthorised assembly, and all the defendants knowingly took part in it, bar the 4th defendant.
I have set out in the Reasons for Sentence of other co-defendants, why I found a deterrent sentence appropriate. The social unrest and violence we saw in 2019 had significantly receded by June 2020, but not disappeared entirely. What we did see from the beginning of 2020 was a different threat to public order, public safety and the protection of the rights and freedoms of others in the form of the pandemic. This is not an epidemic, confined to the Mainland and Hong Kong, but an indiscriminate pandemic that by June 2020 had spread across the world and is a threat that is still affecting us today, 18 months later.
Whether or not it contributed to the social unrest of 2019 receding somewhat, the pandemic itself presents a different threat and risk. It was this threat and risk that was behind the decision of the Commissioner of Police. Since June 2020, we have had a 3rd and 4th wave of COVID-19 infections in Hong Kong and there may be more to come.
All sentencing principles are applied to determine what is an appropriate sentence to take into account the facts of the charges, and in this case, also the prevailing public health crisis in Hong Kong at that time.
The obstruction to traffic and public transport as well as some road closures that day is a relevant consideration, but in these facts, the risk to public safety, because of this pandemic, serves to prove this unauthorised assembly was serious. These are factors I have taken into account and will reflect in sentence.
Reasons for Sentence
Similarly, for the sake of brevity, I adopt paragraphs 53 to 63 in my Reasons for Sentence dated 15 September 2021, relating to the other co-defendants in this case. I reiterate here that the Basic Law and the Bill of Rights does guarantee the freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional.
Here, restrictions can be applied in the interests of public safety, public order and the protection of others’ rights and freedoms. A consideration of public safety and the need to protect the rights of others must include a public health crisis.
When considering an appropriate sentence, I do not take into consideration the common purpose of the assembly, nor the politics, beliefs, stance and opinions of any of the defendants. These sentences are not a reflection of, or related in any way to the politics, beliefs, stance and opinions of any defendant.
I am well aware that the Hong Kong Alliance organised an annual event in Victoria Park to mark June 4th, but under the exceptional circumstances, the organisers had other alternative and creative options to consider, such as an interactive online vigil which would have negated the risk of COVID-19. Not a vigil in groups on the streets all over Hong Kong and in Victoria Park, in addition to an advertised online vigil, as announced by Hong Kong Alliance.
The social distancing measures adopted to combat this pandemic, were not designed to surreptitiously prevent people gathering for a common purpose or as a tool of suppression, as wildly suggested, but to specifically stop people gathering in groups to prevent the transmission of COVID-19.
The sole reason for social distancing measures is to protect the public and whole community. Restrictions applied in the interests of public safety, public order and the protection of others’ rights and freedoms. So to defy and incite others to defy those restrictions under such circumstances is serious.
Therefore, I consider a deterrent and punitive sentence appropriate. The defendants exhibited a blatant disregard of a serious risk to the entire community. The defendants ignored and belittled a genuine public health crisis. They showed no concern for the safety and health of fellow Hong Kongers. They wrongly and arrogantly believed their common purpose and right to commemorate in Victoria Park was more important than protecting the community or the public’s right to protection from a serious health risk, an invisible risk.
Some, or most of those charged with incitement are well-known public or political figures and their frontline roles in this unauthorised assembly is an aggravating factor. They have a public profile and what they said and did was widely broadcast by media outlets. Moreover, they came together as a group for the press to reinforce each other and their message in order to be more visible to draw as many people as possible to Victoria Park.
They were not to know whether the crowds they encouraged to participate in an unauthorised assembly would be peaceful and non-violent or would diligently adhere to social distancing measures. On the day, the video footage clearly shows the crowds did not adhere to such necessary measures. The fact that there did not appear to be an outbreak of either violence or COVID cases as a result of this assembly does not detract from their culpability. It was fortuitous.
Accordingly, it is in this context, and because of the prevailing circumstances at the time, I find an immediate custodial sentence appropriate.
The defendants who incited others to congregate in large numbers and join them in an organised, unauthorised assembly on closed off football pitches created a public health and safety risk. They committed these offences despite the reasons given for the decision to prohibit the proposed meeting, being undeniable and credible.
I have taken into account mitigation put forward, submissions made, the facts of the offences and the prevailing situation at the time, behind the decision of the Commissioner of Police. I have also considered the fact that at the material time, all the defendants before me today had clear records, except for the 3rd defendant. However, his one previous similar offence dates back to 1993.
The other relevant consideration I cannot ignore is that the 1st, 3rd, 4th and 7th defendants were on court bail for similar offences when they committed these offences. I sentence the defendants as follows:
The 1st Defendant
I have a biography and personal details of the 1st defendant. In fact, I have considered in the last 3 recent cases of unauthorised assembly charges involving this defendant, many mitigating letters written on behalf of the defendant as well as his own. There is no dispute he has dedicated a very long time to public service, in particular the welfare of workers and labour rights. In previous mitigation, his selfless dedication has already been highlighted. Pertinent to this case, between 2011 and 2014, as well as 2019 and 2021, is the fact he was the chairman of the Hong Kong Alliance.
The 1st defendant elected to represent himself in mitigation after his plea to Charges 1, 2 and 3. He read out a statement explaining his experiences in Beijing in June 1989 when he was tasked with bringing donations to support protestors in Tiananmen Square. His involvement and experience led to a lifelong need and intention to dedicate himself to the commemoration of the June 4th Incident.
The depth of his emotion and dedication is palpable. He writes of his steadfast belief in freedom, rule of law, human rights and democracy. As I have said above, I do not take those beliefs and the common purpose here into account; that means the deterrent element is not because of his politics, beliefs, or grievances. The defendant, I am sure, when he committed these offences, did so with his eyes wide open. He knew that there would be consequences for his actions, as I am sure did all other defendants.
I intend to take a starting point of 15 months’ imprisonment, to reflect his prominent role as a leader who drove the unauthorised assembly. I will increase it by 3 months to take into account the aggravating factor of being on court bail at the time for 3 other public order-related offences from 2019. Therefore, I take a starting point of 18 months’ imprisonment for Charges 1 and 2.
I intend to take a starting point of 6 months’ imprisonment for Charge 3. I also increase this by 3 months to reflect the fact he was on court bail at the time. Therefore, I take a starting point of 9 months’ imprisonment for Charge 3.
The 3rd Defendant
I sentenced the 3rd defendant to 14 months’ imprisonment, suspended for 24 months in DCCC 534/2020. He had pleaded guilty to 2 counts of public order offences. I found a suspended sentence appropriate for his background, long public service and minor role in that offence.
I heard full mitigation on that occasion and had many letters from many people from different walks of life such as friends, colleagues and those who had benefitted from his dedication to public service. From his biography, I know he has been a District Councillor, a politician and former vice chairman of the Democratic Party.
I have heard full mitigation put forward again on his behalf. He is a family man with a long record of serving the public and the community. One particular achievement was to successfully advocate for legislation against anti-racial discrimination. It has been stressed that this unauthorised assembly in Victoria Park caused little disruption and inconvenience to the community. It was peaceful and without violence. It was of a different nature to the unauthorised assembly he helped organise in 2019. This was an annual commemoration he felt had to be remembered despite the pandemic.
I have considered the letters submitted on his behalf in mitigation. There is a letter from an Associate Professor at the Chinese University of Hong Kong, the Reverend Dr Tobias Brandner, who speaks of his deep commitment and passion for the poor, underprivileged and prison inmates. He is described as humble, with great concern for those at the margins of society.
There is another letter from Professor Antony Cheung who describes the 3rd defendant as moderate in disposition and willing to reach out to all sides within the political spectrum. He has firm political convictions, yet advocates a peaceful and rational approach, which caused conflict between himself and his own party.
In March 2020, he resigned from his position and duties in the Democratic Party after a joint petition from his own colleagues. This arose from his criticism of local restaurants for discriminating against Mainland Chinese customers during the pandemic.
He currently works as a community organiser for the Society of Community Organisations (“SoCo”) and I have a letter from a director describing his dedication and work for the underprivileged and grass roots community.
What does differentiate the 3rd defendant on this 2nd occasion before me is that he committed these offences whilst on bail for similar offences. I am sure he took the risk knowing that his actions could have serious consequences. Despite his mitigation, it is inappropriate to consider a suspended sentence again.
I intend to take a starting point of 12 months’ imprisonment and I increase it by 3 months to take into account the aggravating factor of being on court bail at the time. Therefore, I take a starting point of 15 months for Charge 1.
I intend to take starting point of 6 months’ imprisonment for Charge 3 and I increase this by 3 months to reflect the fact he was on court bail at the time. Therefore, I take a starting point of 9 months for Charge 3.
The 4th Defendant
Mr Pang has said all he can say in written and oral mitigation in relation to the 4th defendant’s background, career, health issues as well as his culpability. He has referred me to authorities he relies upon and submits that a non-custodial sentence would be appropriate and if not, and I find a term of imprisonment is appropriate, then to suspend it would be the correct approach on these facts.
I have previously heard full mitigation in DCCC 536/2020, DCCC 537/2020 and DCCC 534/2020. I sentenced the 4th defendant to public order related offences committed on those 3 separate occasions in 2019.
On this occasion, the 4th defendant submitted a letter of mitigation which explained his actions and reasons for going to Victoria Park just before 6.30 pm on 4 June 2020. He ends with a prayer to remember those for whom he lit a candle that evening.
I have taken into account the role played by the 4th defendant, his appearance for 15 minutes at the Water Fountain Plaza press conference and the fact he left immediately after it.
I intend to take starting point of 10 months’ imprisonment to reflect the fact he was there for the press conference only. He said nothing but was there to lend support to Hong Kong Alliance. I will increase that starting point by 3 months to take into account the aggravating factor of being on court bail at the time. Therefore, I take a starting point of 13 months for Charge 1.
The 7th Defendant
I sentenced the 7th defendant to 8 months’ imprisonment, suspended for 12 months in DCCC 536/2020. He had pleaded guilty to one count of knowingly taking part in an unauthorised assembly. I found a suspended sentence appropriate for his background, age, long and dedicated public service, as well as his very minor role in that offence.
I heard full mitigation on that occasion, and again, have had many letters written by people from different walks of life, as well as many respectable members of Hong Kong society, such as friends, colleagues and those who have benefitted from his dedication to public service. From his biography, I know he has been a teacher, District Board member and then a member of the Legislative Council. His campaigning for the underprivileged and minority groups are well-known.
Mr Lau has highlighted actions taken by the 7th defendant that shows his huge respect for the rule of law, as well as his resolute opposition to violence. This last quality was illustrated by news footage from 1 July 2019 where the 7th defendant puts himself between rioters and the glass doors of the Legislative Council building to stop them forcibly entering the building. He tries to hold back the crowds on his own and is physically bundled aside by black clad rioters. Annex 3 of his mitigation bundle are screenshots from that news footage.
From the news footage of this case, it is clear that the 7th defendant played a minor role in inciting others. He was last to join the line-up and appeared to have been pushed into it by a volunteer helper of the Hong Kong Alliance. He said nothing to the press himself. When the members of Hong Kong Alliance and others walked into Victoria Park slowly, he can be seen at the back of the main group, and he remained at the back of this group throughout the programme and evening.
I was told in mitigation that he went to Victoria Park in his personal capacity, but he is a member of the Standing Committee of Hong Kong Alliance. He was aware of their actions and plans I am sure. He participated knowing that he was on court bail at the time. However, I agree he largely remained silent and played a passive, almost reluctant role.
Although he was there at Victoria Park despite the Police ban, his Facebook posts suggested to people to download a digital candle and later meet in his Kwai Chung office. He did not encourage anyone to join him in Victoria Park because of health risks.
I have also taken into account the 7th defendant’s personal letter in this case. Initially, he may well have thought that he would still go to Victoria Park with a group of friends and not defy the police ban. But clearly, by early afternoon, it was clear to anyone in or near Victoria Park that what was to transpire was an unauthorised assembly. What transpired at 6.30 pm was an incitement to participate in an unauthorised assembly.
I have noted the 7th defendant’s motto in life and in his work, as well as his utmost respect for the rule of law during his career and from his actions. However, like the 3rd defendant, what does differentiate the 7th defendant in this case from the unauthorised assembly in DCCC 536/2020, when I imposed a suspended sentence, is that he committed these offences whilst on court bail for similar offences.Despite his exceptional mitigation, it is inappropriate to consider a suspended sentence again.
I intend to take a starting point of 9 months’ imprisonment to reflect his passive, almost reluctant role, and increase it by 3 months to take into account the fact that he was on court bail at the time. Therefore, I take a starting point of 12 months’ imprisonment for Charge 1.
I intend to take a starting point of 4 months’ imprisonment for Charge 3, and I increase this by 2 months to reflect the fact he was on court bail. Therefore, I take a starting point of 6 months’ imprisonment for Charge 3.
The 10th Defendant
I was given a biography and informed that the 10th defendant was 36 years old, single and had a clear record. He has served as a District Councillor since 2012 and chairman of his District Council since this year. He is serving on many committees that cover many areas from housing to traffic to youth affairs. I was told that he had nothing further to add in mitigation relating to his background, or the commission of these offences.
I intend to take a starting point of 12 months’ imprisonment for Charge 1 and a starting point of 6 months’ imprisonment for Charge 3.
The 13th Defendant
As I have said above, the 13th defendant represented herself in mitigation. She gave no personal particulars for consideration. She read out a lengthy statement.
The 13th defendant played a prominent role as the Vice Chair of Hong Kong Alliance. I rejected her evidence that there was no incitement on her part, nor a candlelight vigil led by Hong Kong Alliance on 4 June 2020, but only individuals who entered Victoria Park and lit a candle for their own different personal reasons. Therefore, there was no unauthorised assembly, as defined by the law.
Despite her clear record, like the other defendants, I find a deterrent approach appropriate and intend to take a starting point of 12 months’ imprisonment for Charge 1 and 6 months’ imprisonment for Charge 3.
The 17th Defendant
The 17th defendant is now 59 years old, married and a father of one. He too has spent over 25 years of his career in public service, either as a District or a Legislative Councillor. He has devoted himself to many causes and projects to better the lives of Hong Kong people.
In 2016, he was elected Chairman of the Democratic Party. In mitigation, Mr Chan has given many examples of his achievements in public service. I have had several letters of mitigation from fellow Legislative Councillors. He is described as having a strong sense of social justice and pushed for more proactive government policies for the grassroots and underprivileged communities. Despite his achievements, he has remained low key and kept a low profile, not needing recognition for his dedication.
In his mitigation letter from Professor Antony Cheung, it was suggested that the 17th defendant was caught up in the turbulent times and vicious politics of 2019 and 2020. He suggests the 17th defendant felt pressure to take part in actions and activities which led to him committing this offence and other similar offences, yet he was viewed as too conservative by other more radical party members.
There is one particular letter that is from an 84-year-old widow who had a very complicated and very sad family situation. She turned to the 17th defendant for help, even though she had not lived in his district for some time. Yet, he did not hesitate to help her by personally contacting the Social Welfare Department as well as the Housing Authority, to ensure that she is now happy and comfortable in her twilight years. She asks for leniency for whom she describes as a good and kind man.
Like so many defendants in this case, I do not doubt his strong sense of public servitude and commitment, helping those less fortunate or in need, but he knew the risk of participating in this unauthorised assembly.
After taking all the mitigation into account, I intend to take a starting point of 6 months’ imprisonment for Charge 3.
The 19th Defendant
As I have said above, the 19th defendant represented herself in mitigation. She gave no personal particulars for consideration. She read out a very short statement. In short, she said any sentence I imposed on her today will be seen as a sentence I impose on every Hong Konger in Victoria Park that night.
I rejected the 19th defendant’s evidence that even if there was a candlelight vigil led by Hong Kong Alliance on 4 June 2020 and it constituted an unauthorised assembly, she was an individual who entered Victoria Park and lit a candle for her own different personal reasons. Therefore, she did not knowingly participate in an unauthorised assembly.
Despite her clear record, like the other defendants, I find a deterrent approach appropriate and intend to take a starting point of 6 months’ imprisonment for Charge 3.
Discount after Plea
I have taken into account the authority of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 and will apply a discount of 20% or just above, to reflect rounding off sentences to the benefit of the 5 defendants who pleaded guilty at a very late stage. These 5 defendants indicated their plea long after a trial date was set down.
They knew the evidence against them from the very beginning, after the case was transferred to the District Court. There was subsequently no change in that evidence that would have led them to reconsider their pleas. They, for whatever their own reasons, waited until after the pre-trial review and just before, or on the first day of the trial to change their pleas.
Totality Principle
Once again, I adopt what I said in my Reasons for Sentence dated 15 September 2021 under the heading of “Totality Principle” from paragraphs 111 to 114. The importance of the totality principle is to ensure fairness. Courts aim to achieve a just and balanced sentence that will not punish a defendant twice for the same or similar conduct and crush him.
The 1st and 4th defendants are serving sentences for similar, or the same offences committed on several diverse dates during the social turmoil in 2019, although the common purpose was clearly not the same as in this case.
After considering the facts of those previous similar convictions relating to those defendants and the sentences I have imposed, I find it fair and appropriate to consider concurrent sentences here.
Conclusion
For the 4th, 13th and 19th defendants found guilty after trial, I see no reason to apply any discount to the s
DCCC865/2020
05/06/2021
陳廣池
區院
認罪
罪成
區議員
27
明知而參與未經批准集結
判囚
4
06/04/2020
維多利亞公園
DCCC 857-875,
877-884, 886-889,
891 & 893/2020
(Consolidated)
[2021] HKDC 1572
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NOS 857-875, 877-884,
886-889, 891 & 893 OF 2020
———————-
HKSAR
v
Lee Cheuk-yan (D1)
Tsoi Yiu-cheong Richard (D3)
Lai Chee-ying (D4)
Leung Yiu-chung (D7)
Leung Kam-wai (D10)
Chow Hang-tung (D13)
Wu Chi-wai (D17)
Ho Kwai-lam (D19)
———————-
Before: HH Judge A. J. Woodcock
Date: 13 December 2021 at 2.39 pm
Present: Ms Laura Ng, SADPP (Ag) and Mr Edward Lau, SPP (Ag) of Department of Justice, for HKSAR
The 1st, 13th and 19th defendants appeared in person
Ms Kristine Chan, of Ho Tse Wai & Partners, for 3rd and 10th defendants
Mr Robert Pang, SC, leading Mr Jeffrey Tam, Mr Ernie Tung and Mr Joshua Ngai, instructed by Robertsons, for the 4th defendant
Mr Lucas Lau, instructed by Lau & Chan, for the 7th defendant
Mr Lee Hung-mo, instructed by Ho Tse Wai & Partners, for the 17th defendant
Offences: (1) Incitement to knowingly take part in an unauthorized assembly(煽惑他人明知而參與未經批准集結) (against D1-D13)
(2) Holding an unauthorized assembly(舉行一個未經批准集結) (against D1)
(3) Knowingly taking part in an unauthorized assembly (明知而參與未經批准集結)(against D1-D3, D5-D20)
———————
Reasons for Sentence
———————
There were 37 cases arising from the same incident of which 4 were dealt with earlier and the remaining 33 were consolidated. In this consolidated case, there were 20 defendants.
12 of the 20 defendants pleaded guilty to their respective charges before me and were sentenced on 15 September 2021. They were the 2nd, 5th, 6th, 8th, 9th, 11th, 12th, 14th, 15th, 16th, 18th and 20th defendants. The remaining 8 pleaded not guilty and a trial was set down for 10 days from 1 November 2021.
Those remaining 8 defendants appeared before me at a pre-trial review on 15 October 2021. Between that date and the first day of trial, 5 of the remaining defendants indicated a change of plea. They pleaded guilty to their respective charges on the first day of trial. They were the 1st, 3rd, 7th, 10th and 17th defendants. I will sentence them today.
3 defendants maintained their pleas of not guilty and were convicted after trial of their respective charges on 9 December 2021. I have heard mitigation earlier today on behalf of, or from those 3 defendants; the 4th, 13th and 19th defendants.
The 4 defendants dealt with and sentenced earlier by His Honour Judge Stanley Chan, pleaded guilty to a charge arising from the same incident on 4 June 2020 in Victoria Park. In a consolidated case DCCC 876, 885, 890 and 892/2020, Wong Chi-fung, Lester Shum, Tiffany Yuen Ka-wai and Rosalynne Jannelle Leung admitted they knowingly took part in that same unauthorised assembly. They were sentenced on 6 May 2021 to sentences ranging from between 4 to 10 months’ imprisonment.
Charge 1
The 1st, 3rd, 7th and 10th defendants pleaded guilty to Charge 1, incitement to knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221.
The particulars are that on 4 June 2020 at the Water Fountain Plaza, Victoria Park, Causeway Bay, in Hong Kong, they, together with other defendants unlawfully incited other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public meeting which took place in contravention of section 7 of the Public Order Ordinance which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.
The 4th and 13th defendants were convicted after trial of Charge 1.
Charge 2
The 1st defendant pleaded guilty to Charge 2, holding an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The particulars are that on the same day, 4 June 2020 at Victoria Park, the 1st defendant held a public meeting which took place in contravention of section 7 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the Public Order Ordinance.
Charge 3
The 1st, 3rd, 7th, 10th and 17th defendants pleaded guilty to Charge 3, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the Public Order Ordinance.
The particulars are that on the same day, 4 June 2020 at Victoria Park, they together with the defendants named and other persons unknown, without lawful authority or reasonable excuse, knowingly took part in a public meeting which took place in contravention of section 7 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.
The 13th and 19th defendants were convicted after trial of Charge 3.
The Facts
When I sentenced 12 of these 20 defendants on 15 September 2021, I set out in full the facts agreed by the defendants and pertinent to sentence. For the sake of brevity, there is no need to repeat them here in full.
In convicting the 4th, 13th and 19th defendants after trial, on 9 December 2021, in my verdict, I set out the evidence against each defendant that I found proved beyond reasonable doubt that they were guilty as charged. There is no need for me to repeat it here. I also set out why I rejected the evidence of the 13th and 19th defendants.
Suffice to say, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (“Hong Kong Alliance”) submitted a notification to the Police applying to hold a public meeting in Victoria Park between 9 am and 10 pm on 4 June 2020. The purpose of the meeting was to mourn the 31st anniversary of the June 4 incident, with an estimated number of participants between 50,000 and 100,000.
In light of the pandemic, the Department of Health were consulted by the Police and advised against holding any mass gatherings at that time, in view of the coronavirus pandemic. The Department of Health took into account the number of COVID-19 cases by the end of May 2020, the upsurge between March and early April 2020 as well as several local clusters mid-May 2020 with no apparent primary source identifiable. The risk of community outbreak existed at that time. All the sporting facilities, including the football pitches of Victoria Park were closed, and had been since March 2020 because of the pandemic.
After a liaison meeting between the Police and representatives of Hong Kong Alliance, the Commissioner of Police issued a notice as required, prohibiting the holding of the proposed public meeting in the interests of public order, public safety and the protection of the rights and freedoms of others. The Letter of Objection was issued on 1 June 2020.
Despite the Letter of Objection, these defendants defied the police ban and the law. They either incited others to take part in an unauthorised assembly, and/or knowingly participated in one that night. The 1st defendant admits he held it.
The video footage of the press conference, inciting others and the actual footage of the unauthorised assembly has been played in court numerous times in relation to this consolidated case. Those videos and screen captures identifying the defendants and their locations, as well as the transcripts of the speeches and slogans chanted are set out in the Amended Summary of Facts for these 5 defendants that pleaded.
In the afternoon of 4 June 2020, there were crowds already around Causeway Bay entrance of Victoria Park obstructing traffic, and some roads had to be closed to traffic because of traffic chaos and safety concerns.
By 8 pm, there were an estimated 20,000 people on the invaded football pitches of Victoria Park. The pitches were a sea of candlelight. The crowds disbursed by about 11 pm. There was some graffiti on walls and on the ground relating to the June 4th Incident.
Mitigation
I have heard mitigation in full from all except the 10th defendant, who had nothing to say, but did submit a biography. This morning, the 13th defendant acted in person in mitigation and gave no personal particulars or background but made a lengthy statement. Similarly, the 19th defendant gave no personal particulars or background in mitigation but made a short statement in person.
I have either received written mitigation, biographies, statements and supporting authorities in advance or received letters of mitigation. The 1st defendant also represented himself in mitigation. I do not intend to repeat all the mitigation provided but all that can be said on behalf of the represented defendants has been conveyed and considered.
For the 1st, 3rd, 7th, 10th and 17th defendants, their best mitigation is their pleas of guilty. They did not indicate their pleas in a timely manner. They all indicated their pleas between the date of the pre-trial review and the first day of trial.
It was submitted that by then, the turbulent and tumultuous social unrest of 2019 had receded. The obstruction and inconvenience to the public around Victoria Park was limited to the streets in the Causeway Bay area only and natural with any assembly. There was no violence or imminent risk of violence at any time. The unauthorised meeting lasted only a few hours and was relatively short.
I was urged to, and will consider personal mitigation, clear records, motive, backgrounds and previous significant public service.
Principles of Sentencing
I will adopt paragraphs 40 to 52 in my Reasons for Sentence dated 15 September 2021 relating to other co-defendants in this case. I will consider the culpability of the offenders individually. The context in which a crime is committed is of relevance to assessing its gravity and that culpability. It can be relevant to whether a punitive and deterrent sentence is appropriate.
Since preserving public order and public safety is important, I have taken into account the prevailing circumstances at the time, some defendants incited others to take part in an unauthorised assembly, and all the defendants knowingly took part in it, bar the 4th defendant.
I have set out in the Reasons for Sentence of other co-defendants, why I found a deterrent sentence appropriate. The social unrest and violence we saw in 2019 had significantly receded by June 2020, but not disappeared entirely. What we did see from the beginning of 2020 was a different threat to public order, public safety and the protection of the rights and freedoms of others in the form of the pandemic. This is not an epidemic, confined to the Mainland and Hong Kong, but an indiscriminate pandemic that by June 2020 had spread across the world and is a threat that is still affecting us today, 18 months later.
Whether or not it contributed to the social unrest of 2019 receding somewhat, the pandemic itself presents a different threat and risk. It was this threat and risk that was behind the decision of the Commissioner of Police. Since June 2020, we have had a 3rd and 4th wave of COVID-19 infections in Hong Kong and there may be more to come.
All sentencing principles are applied to determine what is an appropriate sentence to take into account the facts of the charges, and in this case, also the prevailing public health crisis in Hong Kong at that time.
The obstruction to traffic and public transport as well as some road closures that day is a relevant consideration, but in these facts, the risk to public safety, because of this pandemic, serves to prove this unauthorised assembly was serious. These are factors I have taken into account and will reflect in sentence.
Reasons for Sentence
Similarly, for the sake of brevity, I adopt paragraphs 53 to 63 in my Reasons for Sentence dated 15 September 2021, relating to the other co-defendants in this case. I reiterate here that the Basic Law and the Bill of Rights does guarantee the freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional.
Here, restrictions can be applied in the interests of public safety, public order and the protection of others’ rights and freedoms. A consideration of public safety and the need to protect the rights of others must include a public health crisis.
When considering an appropriate sentence, I do not take into consideration the common purpose of the assembly, nor the politics, beliefs, stance and opinions of any of the defendants. These sentences are not a reflection of, or related in any way to the politics, beliefs, stance and opinions of any defendant.
I am well aware that the Hong Kong Alliance organised an annual event in Victoria Park to mark June 4th, but under the exceptional circumstances, the organisers had other alternative and creative options to consider, such as an interactive online vigil which would have negated the risk of COVID-19. Not a vigil in groups on the streets all over Hong Kong and in Victoria Park, in addition to an advertised online vigil, as announced by Hong Kong Alliance.
The social distancing measures adopted to combat this pandemic, were not designed to surreptitiously prevent people gathering for a common purpose or as a tool of suppression, as wildly suggested, but to specifically stop people gathering in groups to prevent the transmission of COVID-19.
The sole reason for social distancing measures is to protect the public and whole community. Restrictions applied in the interests of public safety, public order and the protection of others’ rights and freedoms. So to defy and incite others to defy those restrictions under such circumstances is serious.
Therefore, I consider a deterrent and punitive sentence appropriate. The defendants exhibited a blatant disregard of a serious risk to the entire community. The defendants ignored and belittled a genuine public health crisis. They showed no concern for the safety and health of fellow Hong Kongers. They wrongly and arrogantly believed their common purpose and right to commemorate in Victoria Park was more important than protecting the community or the public’s right to protection from a serious health risk, an invisible risk.
Some, or most of those charged with incitement are well-known public or political figures and their frontline roles in this unauthorised assembly is an aggravating factor. They have a public profile and what they said and did was widely broadcast by media outlets. Moreover, they came together as a group for the press to reinforce each other and their message in order to be more visible to draw as many people as possible to Victoria Park.
They were not to know whether the crowds they encouraged to participate in an unauthorised assembly would be peaceful and non-violent or would diligently adhere to social distancing measures. On the day, the video footage clearly shows the crowds did not adhere to such necessary measures. The fact that there did not appear to be an outbreak of either violence or COVID cases as a result of this assembly does not detract from their culpability. It was fortuitous.
Accordingly, it is in this context, and because of the prevailing circumstances at the time, I find an immediate custodial sentence appropriate.
The defendants who incited others to congregate in large numbers and join them in an organised, unauthorised assembly on closed off football pitches created a public health and safety risk. They committed these offences despite the reasons given for the decision to prohibit the proposed meeting, being undeniable and credible.
I have taken into account mitigation put forward, submissions made, the facts of the offences and the prevailing situation at the time, behind the decision of the Commissioner of Police. I have also considered the fact that at the material time, all the defendants before me today had clear records, except for the 3rd defendant. However, his one previous similar offence dates back to 1993.
The other relevant consideration I cannot ignore is that the 1st, 3rd, 4th and 7th defendants were on court bail for similar offences when they committed these offences. I sentence the defendants as follows:
The 1st Defendant
I have a biography and personal details of the 1st defendant. In fact, I have considered in the last 3 recent cases of unauthorised assembly charges involving this defendant, many mitigating letters written on behalf of the defendant as well as his own. There is no dispute he has dedicated a very long time to public service, in particular the welfare of workers and labour rights. In previous mitigation, his selfless dedication has already been highlighted. Pertinent to this case, between 2011 and 2014, as well as 2019 and 2021, is the fact he was the chairman of the Hong Kong Alliance.
The 1st defendant elected to represent himself in mitigation after his plea to Charges 1, 2 and 3. He read out a statement explaining his experiences in Beijing in June 1989 when he was tasked with bringing donations to support protestors in Tiananmen Square. His involvement and experience led to a lifelong need and intention to dedicate himself to the commemoration of the June 4th Incident.
The depth of his emotion and dedication is palpable. He writes of his steadfast belief in freedom, rule of law, human rights and democracy. As I have said above, I do not take those beliefs and the common purpose here into account; that means the deterrent element is not because of his politics, beliefs, or grievances. The defendant, I am sure, when he committed these offences, did so with his eyes wide open. He knew that there would be consequences for his actions, as I am sure did all other defendants.
I intend to take a starting point of 15 months’ imprisonment, to reflect his prominent role as a leader who drove the unauthorised assembly. I will increase it by 3 months to take into account the aggravating factor of being on court bail at the time for 3 other public order-related offences from 2019. Therefore, I take a starting point of 18 months’ imprisonment for Charges 1 and 2.
I intend to take a starting point of 6 months’ imprisonment for Charge 3. I also increase this by 3 months to reflect the fact he was on court bail at the time. Therefore, I take a starting point of 9 months’ imprisonment for Charge 3.
The 3rd Defendant
I sentenced the 3rd defendant to 14 months’ imprisonment, suspended for 24 months in DCCC 534/2020. He had pleaded guilty to 2 counts of public order offences. I found a suspended sentence appropriate for his background, long public service and minor role in that offence.
I heard full mitigation on that occasion and had many letters from many people from different walks of life such as friends, colleagues and those who had benefitted from his dedication to public service. From his biography, I know he has been a District Councillor, a politician and former vice chairman of the Democratic Party.
I have heard full mitigation put forward again on his behalf. He is a family man with a long record of serving the public and the community. One particular achievement was to successfully advocate for legislation against anti-racial discrimination. It has been stressed that this unauthorised assembly in Victoria Park caused little disruption and inconvenience to the community. It was peaceful and without violence. It was of a different nature to the unauthorised assembly he helped organise in 2019. This was an annual commemoration he felt had to be remembered despite the pandemic.
I have considered the letters submitted on his behalf in mitigation. There is a letter from an Associate Professor at the Chinese University of Hong Kong, the Reverend Dr Tobias Brandner, who speaks of his deep commitment and passion for the poor, underprivileged and prison inmates. He is described as humble, with great concern for those at the margins of society.
There is another letter from Professor Antony Cheung who describes the 3rd defendant as moderate in disposition and willing to reach out to all sides within the political spectrum. He has firm political convictions, yet advocates a peaceful and rational approach, which caused conflict between himself and his own party.
In March 2020, he resigned from his position and duties in the Democratic Party after a joint petition from his own colleagues. This arose from his criticism of local restaurants for discriminating against Mainland Chinese customers during the pandemic.
He currently works as a community organiser for the Society of Community Organisations (“SoCo”) and I have a letter from a director describing his dedication and work for the underprivileged and grass roots community.
What does differentiate the 3rd defendant on this 2nd occasion before me is that he committed these offences whilst on bail for similar offences. I am sure he took the risk knowing that his actions could have serious consequences. Despite his mitigation, it is inappropriate to consider a suspended sentence again.
I intend to take a starting point of 12 months’ imprisonment and I increase it by 3 months to take into account the aggravating factor of being on court bail at the time. Therefore, I take a starting point of 15 months for Charge 1.
I intend to take starting point of 6 months’ imprisonment for Charge 3 and I increase this by 3 months to reflect the fact he was on court bail at the time. Therefore, I take a starting point of 9 months for Charge 3.
The 4th Defendant
Mr Pang has said all he can say in written and oral mitigation in relation to the 4th defendant’s background, career, health issues as well as his culpability. He has referred me to authorities he relies upon and submits that a non-custodial sentence would be appropriate and if not, and I find a term of imprisonment is appropriate, then to suspend it would be the correct approach on these facts.
I have previously heard full mitigation in DCCC 536/2020, DCCC 537/2020 and DCCC 534/2020. I sentenced the 4th defendant to public order related offences committed on those 3 separate occasions in 2019.
On this occasion, the 4th defendant submitted a letter of mitigation which explained his actions and reasons for going to Victoria Park just before 6.30 pm on 4 June 2020. He ends with a prayer to remember those for whom he lit a candle that evening.
I have taken into account the role played by the 4th defendant, his appearance for 15 minutes at the Water Fountain Plaza press conference and the fact he left immediately after it.
I intend to take starting point of 10 months’ imprisonment to reflect the fact he was there for the press conference only. He said nothing but was there to lend support to Hong Kong Alliance. I will increase that starting point by 3 months to take into account the aggravating factor of being on court bail at the time. Therefore, I take a starting point of 13 months for Charge 1.
The 7th Defendant
I sentenced the 7th defendant to 8 months’ imprisonment, suspended for 12 months in DCCC 536/2020. He had pleaded guilty to one count of knowingly taking part in an unauthorised assembly. I found a suspended sentence appropriate for his background, age, long and dedicated public service, as well as his very minor role in that offence.
I heard full mitigation on that occasion, and again, have had many letters written by people from different walks of life, as well as many respectable members of Hong Kong society, such as friends, colleagues and those who have benefitted from his dedication to public service. From his biography, I know he has been a teacher, District Board member and then a member of the Legislative Council. His campaigning for the underprivileged and minority groups are well-known.
Mr Lau has highlighted actions taken by the 7th defendant that shows his huge respect for the rule of law, as well as his resolute opposition to violence. This last quality was illustrated by news footage from 1 July 2019 where the 7th defendant puts himself between rioters and the glass doors of the Legislative Council building to stop them forcibly entering the building. He tries to hold back the crowds on his own and is physically bundled aside by black clad rioters. Annex 3 of his mitigation bundle are screenshots from that news footage.
From the news footage of this case, it is clear that the 7th defendant played a minor role in inciting others. He was last to join the line-up and appeared to have been pushed into it by a volunteer helper of the Hong Kong Alliance. He said nothing to the press himself. When the members of Hong Kong Alliance and others walked into Victoria Park slowly, he can be seen at the back of the main group, and he remained at the back of this group throughout the programme and evening.
I was told in mitigation that he went to Victoria Park in his personal capacity, but he is a member of the Standing Committee of Hong Kong Alliance. He was aware of their actions and plans I am sure. He participated knowing that he was on court bail at the time. However, I agree he largely remained silent and played a passive, almost reluctant role.
Although he was there at Victoria Park despite the Police ban, his Facebook posts suggested to people to download a digital candle and later meet in his Kwai Chung office. He did not encourage anyone to join him in Victoria Park because of health risks.
I have also taken into account the 7th defendant’s personal letter in this case. Initially, he may well have thought that he would still go to Victoria Park with a group of friends and not defy the police ban. But clearly, by early afternoon, it was clear to anyone in or near Victoria Park that what was to transpire was an unauthorised assembly. What transpired at 6.30 pm was an incitement to participate in an unauthorised assembly.
I have noted the 7th defendant’s motto in life and in his work, as well as his utmost respect for the rule of law during his career and from his actions. However, like the 3rd defendant, what does differentiate the 7th defendant in this case from the unauthorised assembly in DCCC 536/2020, when I imposed a suspended sentence, is that he committed these offences whilst on court bail for similar offences.Despite his exceptional mitigation, it is inappropriate to consider a suspended sentence again.
I intend to take a starting point of 9 months’ imprisonment to reflect his passive, almost reluctant role, and increase it by 3 months to take into account the fact that he was on court bail at the time. Therefore, I take a starting point of 12 months’ imprisonment for Charge 1.
I intend to take a starting point of 4 months’ imprisonment for Charge 3, and I increase this by 2 months to reflect the fact he was on court bail. Therefore, I take a starting point of 6 months’ imprisonment for Charge 3.
The 10th Defendant
I was given a biography and informed that the 10th defendant was 36 years old, single and had a clear record. He has served as a District Councillor since 2012 and chairman of his District Council since this year. He is serving on many committees that cover many areas from housing to traffic to youth affairs. I was told that he had nothing further to add in mitigation relating to his background, or the commission of these offences.
I intend to take a starting point of 12 months’ imprisonment for Charge 1 and a starting point of 6 months’ imprisonment for Charge 3.
The 13th Defendant
As I have said above, the 13th defendant represented herself in mitigation. She gave no personal particulars for consideration. She read out a lengthy statement.
The 13th defendant played a prominent role as the Vice Chair of Hong Kong Alliance. I rejected her evidence that there was no incitement on her part, nor a candlelight vigil led by Hong Kong Alliance on 4 June 2020, but only individuals who entered Victoria Park and lit a candle for their own different personal reasons. Therefore, there was no unauthorised assembly, as defined by the law.
Despite her clear record, like the other defendants, I find a deterrent approach appropriate and intend to take a starting point of 12 months’ imprisonment for Charge 1 and 6 months’ imprisonment for Charge 3.
The 17th Defendant
The 17th defendant is now 59 years old, married and a father of one. He too has spent over 25 years of his career in public service, either as a District or a Legislative Councillor. He has devoted himself to many causes and projects to better the lives of Hong Kong people.
In 2016, he was elected Chairman of the Democratic Party. In mitigation, Mr Chan has given many examples of his achievements in public service. I have had several letters of mitigation from fellow Legislative Councillors. He is described as having a strong sense of social justice and pushed for more proactive government policies for the grassroots and underprivileged communities. Despite his achievements, he has remained low key and kept a low profile, not needing recognition for his dedication.
In his mitigation letter from Professor Antony Cheung, it was suggested that the 17th defendant was caught up in the turbulent times and vicious politics of 2019 and 2020. He suggests the 17th defendant felt pressure to take part in actions and activities which led to him committing this offence and other similar offences, yet he was viewed as too conservative by other more radical party members.
There is one particular letter that is from an 84-year-old widow who had a very complicated and very sad family situation. She turned to the 17th defendant for help, even though she had not lived in his district for some time. Yet, he did not hesitate to help her by personally contacting the Social Welfare Department as well as the Housing Authority, to ensure that she is now happy and comfortable in her twilight years. She asks for leniency for whom she describes as a good and kind man.
Like so many defendants in this case, I do not doubt his strong sense of public servitude and commitment, helping those less fortunate or in need, but he knew the risk of participating in this unauthorised assembly.
After taking all the mitigation into account, I intend to take a starting point of 6 months’ imprisonment for Charge 3.
The 19th Defendant
As I have said above, the 19th defendant represented herself in mitigation. She gave no personal particulars for consideration. She read out a very short statement. In short, she said any sentence I imposed on her today will be seen as a sentence I impose on every Hong Konger in Victoria Park that night.
I rejected the 19th defendant’s evidence that even if there was a candlelight vigil led by Hong Kong Alliance on 4 June 2020 and it constituted an unauthorised assembly, she was an individual who entered Victoria Park and lit a candle for her own different personal reasons. Therefore, she did not knowingly participate in an unauthorised assembly.
Despite her clear record, like the other defendants, I find a deterrent approach appropriate and intend to take a starting point of 6 months’ imprisonment for Charge 3.
Discount after Plea
I have taken into account the authority of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 and will apply a discount of 20% or just above, to reflect rounding off sentences to the benefit of the 5 defendants who pleaded guilty at a very late stage. These 5 defendants indicated their plea long after a trial date was set down.
They knew the evidence against them from the very beginning, after the case was transferred to the District Court. There was subsequently no change in that evidence that would have led them to reconsider their pleas. They, for whatever their own reasons, waited until after the pre-trial review and just before, or on the first day of the trial to change their pleas.
Totality Principle
Once again, I adopt what I said in my Reasons for Sentence dated 15 September 2021 under the heading of “Totality Principle” from paragraphs 111 to 114. The importance of the totality principle is to ensure fairness. Courts aim to achieve a just and balanced sentence that will not punish a defendant twice for the same or similar conduct and crush him.
The 1st and 4th defendants are serving sentences for similar, or the same offences committed on several diverse dates during the social turmoil in 2019, although the common purpose was clearly not the same as in this case.
After considering the facts of those previous similar convictions relating to those defendants and the sentences I have imposed, I find it fair and appropriate to consider concurrent sentences here.
Conclusion
For the 4th, 13th and 19th defendants found guilty after trial, I see no reason to apply any discount to the s
DCCC865/2020
05/06/2021
陳廣池
區院
認罪
罪成
區議員
27
明知而參與未經批准集結
判囚
9
06/04/2020
維多利亞公園
DCCC 857-875,
877-884, 886-889,
891 & 893/2020
(Consolidated)
[2021] HKDC 1572
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NOS 857-875, 877-884,
886-889, 891 & 893 OF 2020
———————-
HKSAR
v
Lee Cheuk-yan (D1)
Tsoi Yiu-cheong Richard (D3)
Lai Chee-ying (D4)
Leung Yiu-chung (D7)
Leung Kam-wai (D10)
Chow Hang-tung (D13)
Wu Chi-wai (D17)
Ho Kwai-lam (D19)
———————-
Before: HH Judge A. J. Woodcock
Date: 13 December 2021 at 2.39 pm
Present: Ms Laura Ng, SADPP (Ag) and Mr Edward Lau, SPP (Ag) of Department of Justice, for HKSAR
The 1st, 13th and 19th defendants appeared in person
Ms Kristine Chan, of Ho Tse Wai & Partners, for 3rd and 10th defendants
Mr Robert Pang, SC, leading Mr Jeffrey Tam, Mr Ernie Tung and Mr Joshua Ngai, instructed by Robertsons, for the 4th defendant
Mr Lucas Lau, instructed by Lau & Chan, for the 7th defendant
Mr Lee Hung-mo, instructed by Ho Tse Wai & Partners, for the 17th defendant
Offences: (1) Incitement to knowingly take part in an unauthorized assembly(煽惑他人明知而參與未經批准集結) (against D1-D13)
(2) Holding an unauthorized assembly(舉行一個未經批准集結) (against D1)
(3) Knowingly taking part in an unauthorized assembly (明知而參與未經批准集結)(against D1-D3, D5-D20)
———————
Reasons for Sentence
———————
There were 37 cases arising from the same incident of which 4 were dealt with earlier and the remaining 33 were consolidated. In this consolidated case, there were 20 defendants.
12 of the 20 defendants pleaded guilty to their respective charges before me and were sentenced on 15 September 2021. They were the 2nd, 5th, 6th, 8th, 9th, 11th, 12th, 14th, 15th, 16th, 18th and 20th defendants. The remaining 8 pleaded not guilty and a trial was set down for 10 days from 1 November 2021.
Those remaining 8 defendants appeared before me at a pre-trial review on 15 October 2021. Between that date and the first day of trial, 5 of the remaining defendants indicated a change of plea. They pleaded guilty to their respective charges on the first day of trial. They were the 1st, 3rd, 7th, 10th and 17th defendants. I will sentence them today.
3 defendants maintained their pleas of not guilty and were convicted after trial of their respective charges on 9 December 2021. I have heard mitigation earlier today on behalf of, or from those 3 defendants; the 4th, 13th and 19th defendants.
The 4 defendants dealt with and sentenced earlier by His Honour Judge Stanley Chan, pleaded guilty to a charge arising from the same incident on 4 June 2020 in Victoria Park. In a consolidated case DCCC 876, 885, 890 and 892/2020, Wong Chi-fung, Lester Shum, Tiffany Yuen Ka-wai and Rosalynne Jannelle Leung admitted they knowingly took part in that same unauthorised assembly. They were sentenced on 6 May 2021 to sentences ranging from between 4 to 10 months’ imprisonment.
Charge 1
The 1st, 3rd, 7th and 10th defendants pleaded guilty to Charge 1, incitement to knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221.
The particulars are that on 4 June 2020 at the Water Fountain Plaza, Victoria Park, Causeway Bay, in Hong Kong, they, together with other defendants unlawfully incited other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public meeting which took place in contravention of section 7 of the Public Order Ordinance which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.
The 4th and 13th defendants were convicted after trial of Charge 1.
Charge 2
The 1st defendant pleaded guilty to Charge 2, holding an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The particulars are that on the same day, 4 June 2020 at Victoria Park, the 1st defendant held a public meeting which took place in contravention of section 7 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the Public Order Ordinance.
Charge 3
The 1st, 3rd, 7th, 10th and 17th defendants pleaded guilty to Charge 3, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the Public Order Ordinance.
The particulars are that on the same day, 4 June 2020 at Victoria Park, they together with the defendants named and other persons unknown, without lawful authority or reasonable excuse, knowingly took part in a public meeting which took place in contravention of section 7 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.
The 13th and 19th defendants were convicted after trial of Charge 3.
The Facts
When I sentenced 12 of these 20 defendants on 15 September 2021, I set out in full the facts agreed by the defendants and pertinent to sentence. For the sake of brevity, there is no need to repeat them here in full.
In convicting the 4th, 13th and 19th defendants after trial, on 9 December 2021, in my verdict, I set out the evidence against each defendant that I found proved beyond reasonable doubt that they were guilty as charged. There is no need for me to repeat it here. I also set out why I rejected the evidence of the 13th and 19th defendants.
Suffice to say, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (“Hong Kong Alliance”) submitted a notification to the Police applying to hold a public meeting in Victoria Park between 9 am and 10 pm on 4 June 2020. The purpose of the meeting was to mourn the 31st anniversary of the June 4 incident, with an estimated number of participants between 50,000 and 100,000.
In light of the pandemic, the Department of Health were consulted by the Police and advised against holding any mass gatherings at that time, in view of the coronavirus pandemic. The Department of Health took into account the number of COVID-19 cases by the end of May 2020, the upsurge between March and early April 2020 as well as several local clusters mid-May 2020 with no apparent primary source identifiable. The risk of community outbreak existed at that time. All the sporting facilities, including the football pitches of Victoria Park were closed, and had been since March 2020 because of the pandemic.
After a liaison meeting between the Police and representatives of Hong Kong Alliance, the Commissioner of Police issued a notice as required, prohibiting the holding of the proposed public meeting in the interests of public order, public safety and the protection of the rights and freedoms of others. The Letter of Objection was issued on 1 June 2020.
Despite the Letter of Objection, these defendants defied the police ban and the law. They either incited others to take part in an unauthorised assembly, and/or knowingly participated in one that night. The 1st defendant admits he held it.
The video footage of the press conference, inciting others and the actual footage of the unauthorised assembly has been played in court numerous times in relation to this consolidated case. Those videos and screen captures identifying the defendants and their locations, as well as the transcripts of the speeches and slogans chanted are set out in the Amended Summary of Facts for these 5 defendants that pleaded.
In the afternoon of 4 June 2020, there were crowds already around Causeway Bay entrance of Victoria Park obstructing traffic, and some roads had to be closed to traffic because of traffic chaos and safety concerns.
By 8 pm, there were an estimated 20,000 people on the invaded football pitches of Victoria Park. The pitches were a sea of candlelight. The crowds disbursed by about 11 pm. There was some graffiti on walls and on the ground relating to the June 4th Incident.
Mitigation
I have heard mitigation in full from all except the 10th defendant, who had nothing to say, but did submit a biography. This morning, the 13th defendant acted in person in mitigation and gave no personal particulars or background but made a lengthy statement. Similarly, the 19th defendant gave no personal particulars or background in mitigation but made a short statement in person.
I have either received written mitigation, biographies, statements and supporting authorities in advance or received letters of mitigation. The 1st defendant also represented himself in mitigation. I do not intend to repeat all the mitigation provided but all that can be said on behalf of the represented defendants has been conveyed and considered.
For the 1st, 3rd, 7th, 10th and 17th defendants, their best mitigation is their pleas of guilty. They did not indicate their pleas in a timely manner. They all indicated their pleas between the date of the pre-trial review and the first day of trial.
It was submitted that by then, the turbulent and tumultuous social unrest of 2019 had receded. The obstruction and inconvenience to the public around Victoria Park was limited to the streets in the Causeway Bay area only and natural with any assembly. There was no violence or imminent risk of violence at any time. The unauthorised meeting lasted only a few hours and was relatively short.
I was urged to, and will consider personal mitigation, clear records, motive, backgrounds and previous significant public service.
Principles of Sentencing
I will adopt paragraphs 40 to 52 in my Reasons for Sentence dated 15 September 2021 relating to other co-defendants in this case. I will consider the culpability of the offenders individually. The context in which a crime is committed is of relevance to assessing its gravity and that culpability. It can be relevant to whether a punitive and deterrent sentence is appropriate.
Since preserving public order and public safety is important, I have taken into account the prevailing circumstances at the time, some defendants incited others to take part in an unauthorised assembly, and all the defendants knowingly took part in it, bar the 4th defendant.
I have set out in the Reasons for Sentence of other co-defendants, why I found a deterrent sentence appropriate. The social unrest and violence we saw in 2019 had significantly receded by June 2020, but not disappeared entirely. What we did see from the beginning of 2020 was a different threat to public order, public safety and the protection of the rights and freedoms of others in the form of the pandemic. This is not an epidemic, confined to the Mainland and Hong Kong, but an indiscriminate pandemic that by June 2020 had spread across the world and is a threat that is still affecting us today, 18 months later.
Whether or not it contributed to the social unrest of 2019 receding somewhat, the pandemic itself presents a different threat and risk. It was this threat and risk that was behind the decision of the Commissioner of Police. Since June 2020, we have had a 3rd and 4th wave of COVID-19 infections in Hong Kong and there may be more to come.
All sentencing principles are applied to determine what is an appropriate sentence to take into account the facts of the charges, and in this case, also the prevailing public health crisis in Hong Kong at that time.
The obstruction to traffic and public transport as well as some road closures that day is a relevant consideration, but in these facts, the risk to public safety, because of this pandemic, serves to prove this unauthorised assembly was serious. These are factors I have taken into account and will reflect in sentence.
Reasons for Sentence
Similarly, for the sake of brevity, I adopt paragraphs 53 to 63 in my Reasons for Sentence dated 15 September 2021, relating to the other co-defendants in this case. I reiterate here that the Basic Law and the Bill of Rights does guarantee the freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional.
Here, restrictions can be applied in the interests of public safety, public order and the protection of others’ rights and freedoms. A consideration of public safety and the need to protect the rights of others must include a public health crisis.
When considering an appropriate sentence, I do not take into consideration the common purpose of the assembly, nor the politics, beliefs, stance and opinions of any of the defendants. These sentences are not a reflection of, or related in any way to the politics, beliefs, stance and opinions of any defendant.
I am well aware that the Hong Kong Alliance organised an annual event in Victoria Park to mark June 4th, but under the exceptional circumstances, the organisers had other alternative and creative options to consider, such as an interactive online vigil which would have negated the risk of COVID-19. Not a vigil in groups on the streets all over Hong Kong and in Victoria Park, in addition to an advertised online vigil, as announced by Hong Kong Alliance.
The social distancing measures adopted to combat this pandemic, were not designed to surreptitiously prevent people gathering for a common purpose or as a tool of suppression, as wildly suggested, but to specifically stop people gathering in groups to prevent the transmission of COVID-19.
The sole reason for social distancing measures is to protect the public and whole community. Restrictions applied in the interests of public safety, public order and the protection of others’ rights and freedoms. So to defy and incite others to defy those restrictions under such circumstances is serious.
Therefore, I consider a deterrent and punitive sentence appropriate. The defendants exhibited a blatant disregard of a serious risk to the entire community. The defendants ignored and belittled a genuine public health crisis. They showed no concern for the safety and health of fellow Hong Kongers. They wrongly and arrogantly believed their common purpose and right to commemorate in Victoria Park was more important than protecting the community or the public’s right to protection from a serious health risk, an invisible risk.
Some, or most of those charged with incitement are well-known public or political figures and their frontline roles in this unauthorised assembly is an aggravating factor. They have a public profile and what they said and did was widely broadcast by media outlets. Moreover, they came together as a group for the press to reinforce each other and their message in order to be more visible to draw as many people as possible to Victoria Park.
They were not to know whether the crowds they encouraged to participate in an unauthorised assembly would be peaceful and non-violent or would diligently adhere to social distancing measures. On the day, the video footage clearly shows the crowds did not adhere to such necessary measures. The fact that there did not appear to be an outbreak of either violence or COVID cases as a result of this assembly does not detract from their culpability. It was fortuitous.
Accordingly, it is in this context, and because of the prevailing circumstances at the time, I find an immediate custodial sentence appropriate.
The defendants who incited others to congregate in large numbers and join them in an organised, unauthorised assembly on closed off football pitches created a public health and safety risk. They committed these offences despite the reasons given for the decision to prohibit the proposed meeting, being undeniable and credible.
I have taken into account mitigation put forward, submissions made, the facts of the offences and the prevailing situation at the time, behind the decision of the Commissioner of Police. I have also considered the fact that at the material time, all the defendants before me today had clear records, except for the 3rd defendant. However, his one previous similar offence dates back to 1993.
The other relevant consideration I cannot ignore is that the 1st, 3rd, 4th and 7th defendants were on court bail for similar offences when they committed these offences. I sentence the defendants as follows:
The 1st Defendant
I have a biography and personal details of the 1st defendant. In fact, I have considered in the last 3 recent cases of unauthorised assembly charges involving this defendant, many mitigating letters written on behalf of the defendant as well as his own. There is no dispute he has dedicated a very long time to public service, in particular the welfare of workers and labour rights. In previous mitigation, his selfless dedication has already been highlighted. Pertinent to this case, between 2011 and 2014, as well as 2019 and 2021, is the fact he was the chairman of the Hong Kong Alliance.
The 1st defendant elected to represent himself in mitigation after his plea to Charges 1, 2 and 3. He read out a statement explaining his experiences in Beijing in June 1989 when he was tasked with bringing donations to support protestors in Tiananmen Square. His involvement and experience led to a lifelong need and intention to dedicate himself to the commemoration of the June 4th Incident.
The depth of his emotion and dedication is palpable. He writes of his steadfast belief in freedom, rule of law, human rights and democracy. As I have said above, I do not take those beliefs and the common purpose here into account; that means the deterrent element is not because of his politics, beliefs, or grievances. The defendant, I am sure, when he committed these offences, did so with his eyes wide open. He knew that there would be consequences for his actions, as I am sure did all other defendants.
I intend to take a starting point of 15 months’ imprisonment, to reflect his prominent role as a leader who drove the unauthorised assembly. I will increase it by 3 months to take into account the aggravating factor of being on court bail at the time for 3 other public order-related offences from 2019. Therefore, I take a starting point of 18 months’ imprisonment for Charges 1 and 2.
I intend to take a starting point of 6 months’ imprisonment for Charge 3. I also increase this by 3 months to reflect the fact he was on court bail at the time. Therefore, I take a starting point of 9 months’ imprisonment for Charge 3.
The 3rd Defendant
I sentenced the 3rd defendant to 14 months’ imprisonment, suspended for 24 months in DCCC 534/2020. He had pleaded guilty to 2 counts of public order offences. I found a suspended sentence appropriate for his background, long public service and minor role in that offence.
I heard full mitigation on that occasion and had many letters from many people from different walks of life such as friends, colleagues and those who had benefitted from his dedication to public service. From his biography, I know he has been a District Councillor, a politician and former vice chairman of the Democratic Party.
I have heard full mitigation put forward again on his behalf. He is a family man with a long record of serving the public and the community. One particular achievement was to successfully advocate for legislation against anti-racial discrimination. It has been stressed that this unauthorised assembly in Victoria Park caused little disruption and inconvenience to the community. It was peaceful and without violence. It was of a different nature to the unauthorised assembly he helped organise in 2019. This was an annual commemoration he felt had to be remembered despite the pandemic.
I have considered the letters submitted on his behalf in mitigation. There is a letter from an Associate Professor at the Chinese University of Hong Kong, the Reverend Dr Tobias Brandner, who speaks of his deep commitment and passion for the poor, underprivileged and prison inmates. He is described as humble, with great concern for those at the margins of society.
There is another letter from Professor Antony Cheung who describes the 3rd defendant as moderate in disposition and willing to reach out to all sides within the political spectrum. He has firm political convictions, yet advocates a peaceful and rational approach, which caused conflict between himself and his own party.
In March 2020, he resigned from his position and duties in the Democratic Party after a joint petition from his own colleagues. This arose from his criticism of local restaurants for discriminating against Mainland Chinese customers during the pandemic.
He currently works as a community organiser for the Society of Community Organisations (“SoCo”) and I have a letter from a director describing his dedication and work for the underprivileged and grass roots community.
What does differentiate the 3rd defendant on this 2nd occasion before me is that he committed these offences whilst on bail for similar offences. I am sure he took the risk knowing that his actions could have serious consequences. Despite his mitigation, it is inappropriate to consider a suspended sentence again.
I intend to take a starting point of 12 months’ imprisonment and I increase it by 3 months to take into account the aggravating factor of being on court bail at the time. Therefore, I take a starting point of 15 months for Charge 1.
I intend to take starting point of 6 months’ imprisonment for Charge 3 and I increase this by 3 months to reflect the fact he was on court bail at the time. Therefore, I take a starting point of 9 months for Charge 3.
The 4th Defendant
Mr Pang has said all he can say in written and oral mitigation in relation to the 4th defendant’s background, career, health issues as well as his culpability. He has referred me to authorities he relies upon and submits that a non-custodial sentence would be appropriate and if not, and I find a term of imprisonment is appropriate, then to suspend it would be the correct approach on these facts.
I have previously heard full mitigation in DCCC 536/2020, DCCC 537/2020 and DCCC 534/2020. I sentenced the 4th defendant to public order related offences committed on those 3 separate occasions in 2019.
On this occasion, the 4th defendant submitted a letter of mitigation which explained his actions and reasons for going to Victoria Park just before 6.30 pm on 4 June 2020. He ends with a prayer to remember those for whom he lit a candle that evening.
I have taken into account the role played by the 4th defendant, his appearance for 15 minutes at the Water Fountain Plaza press conference and the fact he left immediately after it.
I intend to take starting point of 10 months’ imprisonment to reflect the fact he was there for the press conference only. He said nothing but was there to lend support to Hong Kong Alliance. I will increase that starting point by 3 months to take into account the aggravating factor of being on court bail at the time. Therefore, I take a starting point of 13 months for Charge 1.
The 7th Defendant
I sentenced the 7th defendant to 8 months’ imprisonment, suspended for 12 months in DCCC 536/2020. He had pleaded guilty to one count of knowingly taking part in an unauthorised assembly. I found a suspended sentence appropriate for his background, age, long and dedicated public service, as well as his very minor role in that offence.
I heard full mitigation on that occasion, and again, have had many letters written by people from different walks of life, as well as many respectable members of Hong Kong society, such as friends, colleagues and those who have benefitted from his dedication to public service. From his biography, I know he has been a teacher, District Board member and then a member of the Legislative Council. His campaigning for the underprivileged and minority groups are well-known.
Mr Lau has highlighted actions taken by the 7th defendant that shows his huge respect for the rule of law, as well as his resolute opposition to violence. This last quality was illustrated by news footage from 1 July 2019 where the 7th defendant puts himself between rioters and the glass doors of the Legislative Council building to stop them forcibly entering the building. He tries to hold back the crowds on his own and is physically bundled aside by black clad rioters. Annex 3 of his mitigation bundle are screenshots from that news footage.
From the news footage of this case, it is clear that the 7th defendant played a minor role in inciting others. He was last to join the line-up and appeared to have been pushed into it by a volunteer helper of the Hong Kong Alliance. He said nothing to the press himself. When the members of Hong Kong Alliance and others walked into Victoria Park slowly, he can be seen at the back of the main group, and he remained at the back of this group throughout the programme and evening.
I was told in mitigation that he went to Victoria Park in his personal capacity, but he is a member of the Standing Committee of Hong Kong Alliance. He was aware of their actions and plans I am sure. He participated knowing that he was on court bail at the time. However, I agree he largely remained silent and played a passive, almost reluctant role.
Although he was there at Victoria Park despite the Police ban, his Facebook posts suggested to people to download a digital candle and later meet in his Kwai Chung office. He did not encourage anyone to join him in Victoria Park because of health risks.
I have also taken into account the 7th defendant’s personal letter in this case. Initially, he may well have thought that he would still go to Victoria Park with a group of friends and not defy the police ban. But clearly, by early afternoon, it was clear to anyone in or near Victoria Park that what was to transpire was an unauthorised assembly. What transpired at 6.30 pm was an incitement to participate in an unauthorised assembly.
I have noted the 7th defendant’s motto in life and in his work, as well as his utmost respect for the rule of law during his career and from his actions. However, like the 3rd defendant, what does differentiate the 7th defendant in this case from the unauthorised assembly in DCCC 536/2020, when I imposed a suspended sentence, is that he committed these offences whilst on court bail for similar offences.Despite his exceptional mitigation, it is inappropriate to consider a suspended sentence again.
I intend to take a starting point of 9 months’ imprisonment to reflect his passive, almost reluctant role, and increase it by 3 months to take into account the fact that he was on court bail at the time. Therefore, I take a starting point of 12 months’ imprisonment for Charge 1.
I intend to take a starting point of 4 months’ imprisonment for Charge 3, and I increase this by 2 months to reflect the fact he was on court bail. Therefore, I take a starting point of 6 months’ imprisonment for Charge 3.
The 10th Defendant
I was given a biography and informed that the 10th defendant was 36 years old, single and had a clear record. He has served as a District Councillor since 2012 and chairman of his District Council since this year. He is serving on many committees that cover many areas from housing to traffic to youth affairs. I was told that he had nothing further to add in mitigation relating to his background, or the commission of these offences.
I intend to take a starting point of 12 months’ imprisonment for Charge 1 and a starting point of 6 months’ imprisonment for Charge 3.
The 13th Defendant
As I have said above, the 13th defendant represented herself in mitigation. She gave no personal particulars for consideration. She read out a lengthy statement.
The 13th defendant played a prominent role as the Vice Chair of Hong Kong Alliance. I rejected her evidence that there was no incitement on her part, nor a candlelight vigil led by Hong Kong Alliance on 4 June 2020, but only individuals who entered Victoria Park and lit a candle for their own different personal reasons. Therefore, there was no unauthorised assembly, as defined by the law.
Despite her clear record, like the other defendants, I find a deterrent approach appropriate and intend to take a starting point of 12 months’ imprisonment for Charge 1 and 6 months’ imprisonment for Charge 3.
The 17th Defendant
The 17th defendant is now 59 years old, married and a father of one. He too has spent over 25 years of his career in public service, either as a District or a Legislative Councillor. He has devoted himself to many causes and projects to better the lives of Hong Kong people.
In 2016, he was elected Chairman of the Democratic Party. In mitigation, Mr Chan has given many examples of his achievements in public service. I have had several letters of mitigation from fellow Legislative Councillors. He is described as having a strong sense of social justice and pushed for more proactive government policies for the grassroots and underprivileged communities. Despite his achievements, he has remained low key and kept a low profile, not needing recognition for his dedication.
In his mitigation letter from Professor Antony Cheung, it was suggested that the 17th defendant was caught up in the turbulent times and vicious politics of 2019 and 2020. He suggests the 17th defendant felt pressure to take part in actions and activities which led to him committing this offence and other similar offences, yet he was viewed as too conservative by other more radical party members.
There is one particular letter that is from an 84-year-old widow who had a very complicated and very sad family situation. She turned to the 17th defendant for help, even though she had not lived in his district for some time. Yet, he did not hesitate to help her by personally contacting the Social Welfare Department as well as the Housing Authority, to ensure that she is now happy and comfortable in her twilight years. She asks for leniency for whom she describes as a good and kind man.
Like so many defendants in this case, I do not doubt his strong sense of public servitude and commitment, helping those less fortunate or in need, but he knew the risk of participating in this unauthorised assembly.
After taking all the mitigation into account, I intend to take a starting point of 6 months’ imprisonment for Charge 3.
The 19th Defendant
As I have said above, the 19th defendant represented herself in mitigation. She gave no personal particulars for consideration. She read out a very short statement. In short, she said any sentence I imposed on her today will be seen as a sentence I impose on every Hong Konger in Victoria Park that night.
I rejected the 19th defendant’s evidence that even if there was a candlelight vigil led by Hong Kong Alliance on 4 June 2020 and it constituted an unauthorised assembly, she was an individual who entered Victoria Park and lit a candle for her own different personal reasons. Therefore, she did not knowingly participate in an unauthorised assembly.
Despite her clear record, like the other defendants, I find a deterrent approach appropriate and intend to take a starting point of 6 months’ imprisonment for Charge 3.
Discount after Plea
I have taken into account the authority of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 and will apply a discount of 20% or just above, to reflect rounding off sentences to the benefit of the 5 defendants who pleaded guilty at a very late stage. These 5 defendants indicated their plea long after a trial date was set down.
They knew the evidence against them from the very beginning, after the case was transferred to the District Court. There was subsequently no change in that evidence that would have led them to reconsider their pleas. They, for whatever their own reasons, waited until after the pre-trial review and just before, or on the first day of the trial to change their pleas.
Totality Principle
Once again, I adopt what I said in my Reasons for Sentence dated 15 September 2021 under the heading of “Totality Principle” from paragraphs 111 to 114. The importance of the totality principle is to ensure fairness. Courts aim to achieve a just and balanced sentence that will not punish a defendant twice for the same or similar conduct and crush him.
The 1st and 4th defendants are serving sentences for similar, or the same offences committed on several diverse dates during the social turmoil in 2019, although the common purpose was clearly not the same as in this case.
After considering the facts of those previous similar convictions relating to those defendants and the sentences I have imposed, I find it fair and appropriate to consider concurrent sentences here.
Conclusion
For the 4th, 13th and 19th defendants found guilty after trial, I see no reason to apply any discount to the s
DCCC865/2020
05/06/2021
陳廣池
區院
認罪
罪成
24
明知而參與未經批准集結
判囚
10
06/04/2020
維多利亞公園
DCCC 857-875,
877-884, 886-889,
891 & 893/2020
(Consolidated)
[2021] HKDC 1572
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NOS 857-875, 877-884,
886-889, 891 & 893 OF 2020
———————-
HKSAR
v
Lee Cheuk-yan (D1)
Tsoi Yiu-cheong Richard (D3)
Lai Chee-ying (D4)
Leung Yiu-chung (D7)
Leung Kam-wai (D10)
Chow Hang-tung (D13)
Wu Chi-wai (D17)
Ho Kwai-lam (D19)
———————-
Before: HH Judge A. J. Woodcock
Date: 13 December 2021 at 2.39 pm
Present: Ms Laura Ng, SADPP (Ag) and Mr Edward Lau, SPP (Ag) of Department of Justice, for HKSAR
The 1st, 13th and 19th defendants appeared in person
Ms Kristine Chan, of Ho Tse Wai & Partners, for 3rd and 10th defendants
Mr Robert Pang, SC, leading Mr Jeffrey Tam, Mr Ernie Tung and Mr Joshua Ngai, instructed by Robertsons, for the 4th defendant
Mr Lucas Lau, instructed by Lau & Chan, for the 7th defendant
Mr Lee Hung-mo, instructed by Ho Tse Wai & Partners, for the 17th defendant
Offences: (1) Incitement to knowingly take part in an unauthorized assembly(煽惑他人明知而參與未經批准集結) (against D1-D13)
(2) Holding an unauthorized assembly(舉行一個未經批准集結) (against D1)
(3) Knowingly taking part in an unauthorized assembly (明知而參與未經批准集結)(against D1-D3, D5-D20)
———————
Reasons for Sentence
———————
There were 37 cases arising from the same incident of which 4 were dealt with earlier and the remaining 33 were consolidated. In this consolidated case, there were 20 defendants.
12 of the 20 defendants pleaded guilty to their respective charges before me and were sentenced on 15 September 2021. They were the 2nd, 5th, 6th, 8th, 9th, 11th, 12th, 14th, 15th, 16th, 18th and 20th defendants. The remaining 8 pleaded not guilty and a trial was set down for 10 days from 1 November 2021.
Those remaining 8 defendants appeared before me at a pre-trial review on 15 October 2021. Between that date and the first day of trial, 5 of the remaining defendants indicated a change of plea. They pleaded guilty to their respective charges on the first day of trial. They were the 1st, 3rd, 7th, 10th and 17th defendants. I will sentence them today.
3 defendants maintained their pleas of not guilty and were convicted after trial of their respective charges on 9 December 2021. I have heard mitigation earlier today on behalf of, or from those 3 defendants; the 4th, 13th and 19th defendants.
The 4 defendants dealt with and sentenced earlier by His Honour Judge Stanley Chan, pleaded guilty to a charge arising from the same incident on 4 June 2020 in Victoria Park. In a consolidated case DCCC 876, 885, 890 and 892/2020, Wong Chi-fung, Lester Shum, Tiffany Yuen Ka-wai and Rosalynne Jannelle Leung admitted they knowingly took part in that same unauthorised assembly. They were sentenced on 6 May 2021 to sentences ranging from between 4 to 10 months’ imprisonment.
Charge 1
The 1st, 3rd, 7th and 10th defendants pleaded guilty to Charge 1, incitement to knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221.
The particulars are that on 4 June 2020 at the Water Fountain Plaza, Victoria Park, Causeway Bay, in Hong Kong, they, together with other defendants unlawfully incited other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public meeting which took place in contravention of section 7 of the Public Order Ordinance which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.
The 4th and 13th defendants were convicted after trial of Charge 1.
Charge 2
The 1st defendant pleaded guilty to Charge 2, holding an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.
The particulars are that on the same day, 4 June 2020 at Victoria Park, the 1st defendant held a public meeting which took place in contravention of section 7 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the Public Order Ordinance.
Charge 3
The 1st, 3rd, 7th, 10th and 17th defendants pleaded guilty to Charge 3, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the Public Order Ordinance.
The particulars are that on the same day, 4 June 2020 at Victoria Park, they together with the defendants named and other persons unknown, without lawful authority or reasonable excuse, knowingly took part in a public meeting which took place in contravention of section 7 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.
The 13th and 19th defendants were convicted after trial of Charge 3.
The Facts
When I sentenced 12 of these 20 defendants on 15 September 2021, I set out in full the facts agreed by the defendants and pertinent to sentence. For the sake of brevity, there is no need to repeat them here in full.
In convicting the 4th, 13th and 19th defendants after trial, on 9 December 2021, in my verdict, I set out the evidence against each defendant that I found proved beyond reasonable doubt that they were guilty as charged. There is no need for me to repeat it here. I also set out why I rejected the evidence of the 13th and 19th defendants.
Suffice to say, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (“Hong Kong Alliance”) submitted a notification to the Police applying to hold a public meeting in Victoria Park between 9 am and 10 pm on 4 June 2020. The purpose of the meeting was to mourn the 31st anniversary of the June 4 incident, with an estimated number of participants between 50,000 and 100,000.
In light of the pandemic, the Department of Health were consulted by the Police and advised against holding any mass gatherings at that time, in view of the coronavirus pandemic. The Department of Health took into account the number of COVID-19 cases by the end of May 2020, the upsurge between March and early April 2020 as well as several local clusters mid-May 2020 with no apparent primary source identifiable. The risk of community outbreak existed at that time. All the sporting facilities, including the football pitches of Victoria Park were closed, and had been since March 2020 because of the pandemic.
After a liaison meeting between the Police and representatives of Hong Kong Alliance, the Commissioner of Police issued a notice as required, prohibiting the holding of the proposed public meeting in the interests of public order, public safety and the protection of the rights and freedoms of others. The Letter of Objection was issued on 1 June 2020.
Despite the Letter of Objection, these defendants defied the police ban and the law. They either incited others to take part in an unauthorised assembly, and/or knowingly participated in one that night. The 1st defendant admits he held it.
The video footage of the press conference, inciting others and the actual footage of the unauthorised assembly has been played in court numerous times in relation to this consolidated case. Those videos and screen captures identifying the defendants and their locations, as well as the transcripts of the speeches and slogans chanted are set out in the Amended Summary of Facts for these 5 defendants that pleaded.
In the afternoon of 4 June 2020, there were crowds already around Causeway Bay entrance of Victoria Park obstructing traffic, and some roads had to be closed to traffic because of traffic chaos and safety concerns.
By 8 pm, there were an estimated 20,000 people on the invaded football pitches of Victoria Park. The pitches were a sea of candlelight. The crowds disbursed by about 11 pm. There was some graffiti on walls and on the ground relating to the June 4th Incident.
Mitigation
I have heard mitigation in full from all except the 10th defendant, who had nothing to say, but did submit a biography. This morning, the 13th defendant acted in person in mitigation and gave no personal particulars or background but made a lengthy statement. Similarly, the 19th defendant gave no personal particulars or background in mitigation but made a short statement in person.
I have either received written mitigation, biographies, statements and supporting authorities in advance or received letters of mitigation. The 1st defendant also represented himself in mitigation. I do not intend to repeat all the mitigation provided but all that can be said on behalf of the represented defendants has been conveyed and considered.
For the 1st, 3rd, 7th, 10th and 17th defendants, their best mitigation is their pleas of guilty. They did not indicate their pleas in a timely manner. They all indicated their pleas between the date of the pre-trial review and the first day of trial.
It was submitted that by then, the turbulent and tumultuous social unrest of 2019 had receded. The obstruction and inconvenience to the public around Victoria Park was limited to the streets in the Causeway Bay area only and natural with any assembly. There was no violence or imminent risk of violence at any time. The unauthorised meeting lasted only a few hours and was relatively short.
I was urged to, and will consider personal mitigation, clear records, motive, backgrounds and previous significant public service.
Principles of Sentencing
I will adopt paragraphs 40 to 52 in my Reasons for Sentence dated 15 September 2021 relating to other co-defendants in this case. I will consider the culpability of the offenders individually. The context in which a crime is committed is of relevance to assessing its gravity and that culpability. It can be relevant to whether a punitive and deterrent sentence is appropriate.
Since preserving public order and public safety is important, I have taken into account the prevailing circumstances at the time, some defendants incited others to take part in an unauthorised assembly, and all the defendants knowingly took part in it, bar the 4th defendant.
I have set out in the Reasons for Sentence of other co-defendants, why I found a deterrent sentence appropriate. The social unrest and violence we saw in 2019 had significantly receded by June 2020, but not disappeared entirely. What we did see from the beginning of 2020 was a different threat to public order, public safety and the protection of the rights and freedoms of others in the form of the pandemic. This is not an epidemic, confined to the Mainland and Hong Kong, but an indiscriminate pandemic that by June 2020 had spread across the world and is a threat that is still affecting us today, 18 months later.
Whether or not it contributed to the social unrest of 2019 receding somewhat, the pandemic itself presents a different threat and risk. It was this threat and risk that was behind the decision of the Commissioner of Police. Since June 2020, we have had a 3rd and 4th wave of COVID-19 infections in Hong Kong and there may be more to come.
All sentencing principles are applied to determine what is an appropriate sentence to take into account the facts of the charges, and in this case, also the prevailing public health crisis in Hong Kong at that time.
The obstruction to traffic and public transport as well as some road closures that day is a relevant consideration, but in these facts, the risk to public safety, because of this pandemic, serves to prove this unauthorised assembly was serious. These are factors I have taken into account and will reflect in sentence.
Reasons for Sentence
Similarly, for the sake of brevity, I adopt paragraphs 53 to 63 in my Reasons for Sentence dated 15 September 2021, relating to the other co-defendants in this case. I reiterate here that the Basic Law and the Bill of Rights does guarantee the freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional.
Here, restrictions can be applied in the interests of public safety, public order and the protection of others’ rights and freedoms. A consideration of public safety and the need to protect the rights of others must include a public health crisis.
When considering an appropriate sentence, I do not take into consideration the common purpose of the assembly, nor the politics, beliefs, stance and opinions of any of the defendants. These sentences are not a reflection of, or related in any way to the politics, beliefs, stance and opinions of any defendant.
I am well aware that the Hong Kong Alliance organised an annual event in Victoria Park to mark June 4th, but under the exceptional circumstances, the organisers had other alternative and creative options to consider, such as an interactive online vigil which would have negated the risk of COVID-19. Not a vigil in groups on the streets all over Hong Kong and in Victoria Park, in addition to an advertised online vigil, as announced by Hong Kong Alliance.
The social distancing measures adopted to combat this pandemic, were not designed to surreptitiously prevent people gathering for a common purpose or as a tool of suppression, as wildly suggested, but to specifically stop people gathering in groups to prevent the transmission of COVID-19.
The sole reason for social distancing measures is to protect the public and whole community. Restrictions applied in the interests of public safety, public order and the protection of others’ rights and freedoms. So to defy and incite others to defy those restrictions under such circumstances is serious.
Therefore, I consider a deterrent and punitive sentence appropriate. The defendants exhibited a blatant disregard of a serious risk to the entire community. The defendants ignored and belittled a genuine public health crisis. They showed no concern for the safety and health of fellow Hong Kongers. They wrongly and arrogantly believed their common purpose and right to commemorate in Victoria Park was more important than protecting the community or the public’s right to protection from a serious health risk, an invisible risk.
Some, or most of those charged with incitement are well-known public or political figures and their frontline roles in this unauthorised assembly is an aggravating factor. They have a public profile and what they said and did was widely broadcast by media outlets. Moreover, they came together as a group for the press to reinforce each other and their message in order to be more visible to draw as many people as possible to Victoria Park.
They were not to know whether the crowds they encouraged to participate in an unauthorised assembly would be peaceful and non-violent or would diligently adhere to social distancing measures. On the day, the video footage clearly shows the crowds did not adhere to such necessary measures. The fact that there did not appear to be an outbreak of either violence or COVID cases as a result of this assembly does not detract from their culpability. It was fortuitous.
Accordingly, it is in this context, and because of the prevailing circumstances at the time, I find an immediate custodial sentence appropriate.
The defendants who incited others to congregate in large numbers and join them in an organised, unauthorised assembly on closed off football pitches created a public health and safety risk. They committed these offences despite the reasons given for the decision to prohibit the proposed meeting, being undeniable and credible.
I have taken into account mitigation put forward, submissions made, the facts of the offences and the prevailing situation at the time, behind the decision of the Commissioner of Police. I have also considered the fact that at the material time, all the defendants before me today had clear records, except for the 3rd defendant. However, his one previous similar offence dates back to 1993.
The other relevant consideration I cannot ignore is that the 1st, 3rd, 4th and 7th defendants were on court bail for similar offences when they committed these offences. I sentence the defendants as follows:
The 1st Defendant
I have a biography and personal details of the 1st defendant. In fact, I have considered in the last 3 recent cases of unauthorised assembly charges involving this defendant, many mitigating letters written on behalf of the defendant as well as his own. There is no dispute he has dedicated a very long time to public service, in particular the welfare of workers and labour rights. In previous mitigation, his selfless dedication has already been highlighted. Pertinent to this case, between 2011 and 2014, as well as 2019 and 2021, is the fact he was the chairman of the Hong Kong Alliance.
The 1st defendant elected to represent himself in mitigation after his plea to Charges 1, 2 and 3. He read out a statement explaining his experiences in Beijing in June 1989 when he was tasked with bringing donations to support protestors in Tiananmen Square. His involvement and experience led to a lifelong need and intention to dedicate himself to the commemoration of the June 4th Incident.
The depth of his emotion and dedication is palpable. He writes of his steadfast belief in freedom, rule of law, human rights and democracy. As I have said above, I do not take those beliefs and the common purpose here into account; that means the deterrent element is not because of his politics, beliefs, or grievances. The defendant, I am sure, when he committed these offences, did so with his eyes wide open. He knew that there would be consequences for his actions, as I am sure did all other defendants.
I intend to take a starting point of 15 months’ imprisonment, to reflect his prominent role as a leader who drove the unauthorised assembly. I will increase it by 3 months to take into account the aggravating factor of being on court bail at the time for 3 other public order-related offences from 2019. Therefore, I take a starting point of 18 months’ imprisonment for Charges 1 and 2.
I intend to take a starting point of 6 months’ imprisonment for Charge 3. I also increase this by 3 months to reflect the fact he was on court bail at the time. Therefore, I take a starting point of 9 months’ imprisonment for Charge 3.
The 3rd Defendant
I sentenced the 3rd defendant to 14 months’ imprisonment, suspended for 24 months in DCCC 534/2020. He had pleaded guilty to 2 counts of public order offences. I found a suspended sentence appropriate for his background, long public service and minor role in that offence.
I heard full mitigation on that occasion and had many letters from many people from different walks of life such as friends, colleagues and those who had benefitted from his dedication to public service. From his biography, I know he has been a District Councillor, a politician and former vice chairman of the Democratic Party.
I have heard full mitigation put forward again on his behalf. He is a family man with a long record of serving the public and the community. One particular achievement was to successfully advocate for legislation against anti-racial discrimination. It has been stressed that this unauthorised assembly in Victoria Park caused little disruption and inconvenience to the community. It was peaceful and without violence. It was of a different nature to the unauthorised assembly he helped organise in 2019. This was an annual commemoration he felt had to be remembered despite the pandemic.
I have considered the letters submitted on his behalf in mitigation. There is a letter from an Associate Professor at the Chinese University of Hong Kong, the Reverend Dr Tobias Brandner, who speaks of his deep commitment and passion for the poor, underprivileged and prison inmates. He is described as humble, with great concern for those at the margins of society.
There is another letter from Professor Antony Cheung who describes the 3rd defendant as moderate in disposition and willing to reach out to all sides within the political spectrum. He has firm political convictions, yet advocates a peaceful and rational approach, which caused conflict between himself and his own party.
In March 2020, he resigned from his position and duties in the Democratic Party after a joint petition from his own colleagues. This arose from his criticism of local restaurants for discriminating against Mainland Chinese customers during the pandemic.
He currently works as a community organiser for the Society of Community Organisations (“SoCo”) and I have a letter from a director describing his dedication and work for the underprivileged and grass roots community.
What does differentiate the 3rd defendant on this 2nd occasion before me is that he committed these offences whilst on bail for similar offences. I am sure he took the risk knowing that his actions could have serious consequences. Despite his mitigation, it is inappropriate to consider a suspended sentence again.
I intend to take a starting point of 12 months’ imprisonment and I increase it by 3 months to take into account the aggravating factor of being on court bail at the time. Therefore, I take a starting point of 15 months for Charge 1.
I intend to take starting point of 6 months’ imprisonment for Charge 3 and I increase this by 3 months to reflect the fact he was on court bail at the time. Therefore, I take a starting point of 9 months for Charge 3.
The 4th Defendant
Mr Pang has said all he can say in written and oral mitigation in relation to the 4th defendant’s background, career, health issues as well as his culpability. He has referred me to authorities he relies upon and submits that a non-custodial sentence would be appropriate and if not, and I find a term of imprisonment is appropriate, then to suspend it would be the correct approach on these facts.
I have previously heard full mitigation in DCCC 536/2020, DCCC 537/2020 and DCCC 534/2020. I sentenced the 4th defendant to public order related offences committed on those 3 separate occasions in 2019.
On this occasion, the 4th defendant submitted a letter of mitigation which explained his actions and reasons for going to Victoria Park just before 6.30 pm on 4 June 2020. He ends with a prayer to remember those for whom he lit a candle that evening.
I have taken into account the role played by the 4th defendant, his appearance for 15 minutes at the Water Fountain Plaza press conference and the fact he left immediately after it.
I intend to take starting point of 10 months’ imprisonment to reflect the fact he was there for the press conference only. He said nothing but was there to lend support to Hong Kong Alliance. I will increase that starting point by 3 months to take into account the aggravating factor of being on court bail at the time. Therefore, I take a starting point of 13 months for Charge 1.
The 7th Defendant
I sentenced the 7th defendant to 8 months’ imprisonment, suspended for 12 months in DCCC 536/2020. He had pleaded guilty to one count of knowingly taking part in an unauthorised assembly. I found a suspended sentence appropriate for his background, age, long and dedicated public service, as well as his very minor role in that offence.
I heard full mitigation on that occasion, and again, have had many letters written by people from different walks of life, as well as many respectable members of Hong Kong society, such as friends, colleagues and those who have benefitted from his dedication to public service. From his biography, I know he has been a teacher, District Board member and then a member of the Legislative Council. His campaigning for the underprivileged and minority groups are well-known.
Mr Lau has highlighted actions taken by the 7th defendant that shows his huge respect for the rule of law, as well as his resolute opposition to violence. This last quality was illustrated by news footage from 1 July 2019 where the 7th defendant puts himself between rioters and the glass doors of the Legislative Council building to stop them forcibly entering the building. He tries to hold back the crowds on his own and is physically bundled aside by black clad rioters. Annex 3 of his mitigation bundle are screenshots from that news footage.
From the news footage of this case, it is clear that the 7th defendant played a minor role in inciting others. He was last to join the line-up and appeared to have been pushed into it by a volunteer helper of the Hong Kong Alliance. He said nothing to the press himself. When the members of Hong Kong Alliance and others walked into Victoria Park slowly, he can be seen at the back of the main group, and he remained at the back of this group throughout the programme and evening.
I was told in mitigation that he went to Victoria Park in his personal capacity, but he is a member of the Standing Committee of Hong Kong Alliance. He was aware of their actions and plans I am sure. He participated knowing that he was on court bail at the time. However, I agree he largely remained silent and played a passive, almost reluctant role.
Although he was there at Victoria Park despite the Police ban, his Facebook posts suggested to people to download a digital candle and later meet in his Kwai Chung office. He did not encourage anyone to join him in Victoria Park because of health risks.
I have also taken into account the 7th defendant’s personal letter in this case. Initially, he may well have thought that he would still go to Victoria Park with a group of friends and not defy the police ban. But clearly, by early afternoon, it was clear to anyone in or near Victoria Park that what was to transpire was an unauthorised assembly. What transpired at 6.30 pm was an incitement to participate in an unauthorised assembly.
I have noted the 7th defendant’s motto in life and in his work, as well as his utmost respect for the rule of law during his career and from his actions. However, like the 3rd defendant, what does differentiate the 7th defendant in this case from the unauthorised assembly in DCCC 536/2020, when I imposed a suspended sentence, is that he committed these offences whilst on court bail for similar offences.Despite his exceptional mitigation, it is inappropriate to consider a suspended sentence again.
I intend to take a starting point of 9 months’ imprisonment to reflect his passive, almost reluctant role, and increase it by 3 months to take into account the fact that he was on court bail at the time. Therefore, I take a starting point of 12 months’ imprisonment for Charge 1.
I intend to take a starting point of 4 months’ imprisonment for Charge 3, and I increase this by 2 months to reflect the fact he was on court bail. Therefore, I take a starting point of 6 months’ imprisonment for Charge 3.
The 10th Defendant
I was given a biography and informed that the 10th defendant was 36 years old, single and had a clear record. He has served as a District Councillor since 2012 and chairman of his District Council since this year. He is serving on many committees that cover many areas from housing to traffic to youth affairs. I was told that he had nothing further to add in mitigation relating to his background, or the commission of these offences.
I intend to take a starting point of 12 months’ imprisonment for Charge 1 and a starting point of 6 months’ imprisonment for Charge 3.
The 13th Defendant
As I have said above, the 13th defendant represented herself in mitigation. She gave no personal particulars for consideration. She read out a lengthy statement.
The 13th defendant played a prominent role as the Vice Chair of Hong Kong Alliance. I rejected her evidence that there was no incitement on her part, nor a candlelight vigil led by Hong Kong Alliance on 4 June 2020, but only individuals who entered Victoria Park and lit a candle for their own different personal reasons. Therefore, there was no unauthorised assembly, as defined by the law.
Despite her clear record, like the other defendants, I find a deterrent approach appropriate and intend to take a starting point of 12 months’ imprisonment for Charge 1 and 6 months’ imprisonment for Charge 3.
The 17th Defendant
The 17th defendant is now 59 years old, married and a father of one. He too has spent over 25 years of his career in public service, either as a District or a Legislative Councillor. He has devoted himself to many causes and projects to better the lives of Hong Kong people.
In 2016, he was elected Chairman of the Democratic Party. In mitigation, Mr Chan has given many examples of his achievements in public service. I have had several letters of mitigation from fellow Legislative Councillors. He is described as having a strong sense of social justice and pushed for more proactive government policies for the grassroots and underprivileged communities. Despite his achievements, he has remained low key and kept a low profile, not needing recognition for his dedication.
In his mitigation letter from Professor Antony Cheung, it was suggested that the 17th defendant was caught up in the turbulent times and vicious politics of 2019 and 2020. He suggests the 17th defendant felt pressure to take part in actions and activities which led to him committing this offence and other similar offences, yet he was viewed as too conservative by other more radical party members.
There is one particular letter that is from an 84-year-old widow who had a very complicated and very sad family situation. She turned to the 17th defendant for help, even though she had not lived in his district for some time. Yet, he did not hesitate to help her by personally contacting the Social Welfare Department as well as the Housing Authority, to ensure that she is now happy and comfortable in her twilight years. She asks for leniency for whom she describes as a good and kind man.
Like so many defendants in this case, I do not doubt his strong sense of public servitude and commitment, helping those less fortunate or in need, but he knew the risk of participating in this unauthorised assembly.
After taking all the mitigation into account, I intend to take a starting point of 6 months’ imprisonment for Charge 3.
The 19th Defendant
As I have said above, the 19th defendant represented herself in mitigation. She gave no personal particulars for consideration. She read out a very short statement. In short, she said any sentence I imposed on her today will be seen as a sentence I impose on every Hong Konger in Victoria Park that night.
I rejected the 19th defendant’s evidence that even if there was a candlelight vigil led by Hong Kong Alliance on 4 June 2020 and it constituted an unauthorised assembly, she was an individual who entered Victoria Park and lit a candle for her own different personal reasons. Therefore, she did not knowingly participate in an unauthorised assembly.
Despite her clear record, like the other defendants, I find a deterrent approach appropriate and intend to take a starting point of 6 months’ imprisonment for Charge 3.
Discount after Plea
I have taken into account the authority of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 and will apply a discount of 20% or just above, to reflect rounding off sentences to the benefit of the 5 defendants who pleaded guilty at a very late stage. These 5 defendants indicated their plea long after a trial date was set down.
They knew the evidence against them from the very beginning, after the case was transferred to the District Court. There was subsequently no change in that evidence that would have led them to reconsider their pleas. They, for whatever their own reasons, waited until after the pre-trial review and just before, or on the first day of the trial to change their pleas.
Totality Principle
Once again, I adopt what I said in my Reasons for Sentence dated 15 September 2021 under the heading of “Totality Principle” from paragraphs 111 to 114. The importance of the totality principle is to ensure fairness. Courts aim to achieve a just and balanced sentence that will not punish a defendant twice for the same or similar conduct and crush him.
The 1st and 4th defendants are serving sentences for similar, or the same offences committed on several diverse dates during the social turmoil in 2019, although the common purpose was clearly not the same as in this case.
After considering the facts of those previous similar convictions relating to those defendants and the sentences I have imposed, I find it fair and appropriate to consider concurrent sentences here.
Conclusion
For the 4th, 13th and 19th defendants found guilty after trial, I see no reason to apply any discount to the s
DCCC 97/2020
香港特別行政區
區域法院
刑事案件2020年第97號
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香港特別行政區
訴
莫禮滔（第四被告人）
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主審法官： 區域法院法官葉佐文
日期： 2021年5月10日
出席人士： 律政司署理高級檢控官張卓勤先生 及律政司檢控官黃恩寧女士，代表香港特別行政區
沈士文先生及黃宛蓓女士，由劉藹宜黃汝仲律師事務所延聘，代表第四被告人
控罪： [2] 管有物品意圖摧毀或損壞財產（Possessing things with intent to destroy or damage property）
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判刑理由書
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控罪
第四被告人承認第二項控罪：—
罪行陳述
“ 管有物品意圖摧毀或損壞財產，違反香港法例第200章《刑事罪行條例》第62(a)及63(2)條。
罪行詳情
鄭錦輝、楊泳茹、丘建威、莫禮滔Jawin及黃建棋於2019年11月2日的0000時至約1505時、當警務人員透過破門而進入香港灣仔堅拿道西10號冠景樓4樓F室的處所期間，在香港的該處所，保管或控制59個汽油彈、79個玻璃瓶每個載有白色廢棉、50個玻璃瓶、約4.6公升淺黃色液體內含柴油、約1.0公升無色液體內含異丙醇、約4.9公升綠色液體內含汽油、白色廢棉、布條、布及毛巾，意圖在無合法辯解的情況下使用或導致他人使用或准許他人使用該等物品，以摧毀或損壞屬於另一人的財產。”
案情
涉案單位被人租用
證人16是涉案單位，即灣仔堅拿道西10號冠景樓 (“該大樓”) 4樓F室的業主。自2018年1月1日開始，直到案發當日，以月租港幣$13,000元租予證人17。
證人17於2019年7 月開始，透過網上租屋平台 “AirBnB” 把整個涉案單位再分租出去。於2019年10月30日，一位名叫 “Wing Long Wong” 的人在 “AirBnB” 向證人17表示願意以港幣$1,520元租住涉案單位，日期為2019年10月31日至2019年11月4日 (即五天四夜)。證人17同意此租務交易，並於 “AirBnB” 訊息欄內告之 “Wing Long Wong” 涉案單位大門電子鎖的密碼，好讓對方能自行進入單位。證人17並不認識對方，也從未見過對方。
警方的行動
2019年11月2日，警方刑事情報科人員就著上述單位進行監視行動。當中觀察人員SO5 和SO6在該大樓外的位置進行觀察，留意單位面向軒尼詩道和寶靈頓道露台的情況，而行動組人員SO1至SO4則在該大樓附近一帶候命。
同日大約1500時警方決定採取行動，SO1至SO4掩至涉案單位門外，並在門外察覺有濃烈氣油味從單位內傳出。此時，SO1表露警察身份要求單位內人士開門，唯單位沒有任何回應傳出，SO1至SO4隨即展開破門行動。
破門後，SO1至SO4發現單位內無人，同時從通訊機得知，有四男一女（包括第四被告人）正從上述單位露台向下層逃走。SO1至SO3隨即在該大樓進行掃蕩，而SO4則留守單位外看管現場，確保現場沒有受到干擾。
於警方行動期間一直觀察露台情況的SO5和SO6，觀察到上述五人從單位內走至單位露台位置，並從露台跳至三樓的簷蓬，再從該簷蓬跳至三樓的平台。上述過程，由一段不知名人士拍攝並在同日交予警方的片段（其後由警方保存和檢取）拍攝下來。SO5和SO6其後確認該片段拍攝到的是他們當時觀察該五人（包括第四被告人）離開單位的情況。在該片段被拍攝到他們均沒有蒙面，片段能清晰顯示到他們的面容。
俄羅斯籍男子 (證人14) 當時身處該大樓的3樓A室內，他當時目睹並其後透過片段確認該五人（包括第四被告人）是從他所在的單位的露台外衝入其單位，他們當中有人受傷，並該五人（包括第四被告人）曾經要求證人14容許他們留在其單位內，但被證人14拒絕並要求他們離開。他們起初不想離開，但最後從證人14的單位的正門離開，之後證人14把單位的正門鎖上。
該大樓設有升降機，每個樓層均可以透過升降機及樓梯前往。該大樓的閉路電視拍攝到沿該大樓的樓梯從3樓到2樓的情況，該五人（包括第四被告人）到達2樓後打開防煙門進入2樓。
警察進入2樓的一間餐廳調查，在上址一個角落發現該五人（包括第四被告人）。
證人24是該餐廳的經理，他確認該餐廳共設有一個男洗手間及一個女洗手間，兩者均設於餐廳的正門外。而男洗手間沒有設置大門，只有一道膠帆布簾遮蔽入口，故男洗手間並無法上鎖。日常該洗手間的清潔，是由該餐廳的職員負責，在營業時間以外，任何人均可自由出入及使用該洗手間。他亦確認案發當日該餐廳的營業時間為下午五時至凌晨三時，所以於當日下午一時開始便有職員返回餐廳準備營業，並打開該餐廳的大門方便工作。
該餐廳的閉路電視鏡頭拍攝到該五人（包括第四被告人）進入處所內的過程。
警方控制他們後，分開各人並以「藏有攻擊性武器」罪名拘捕各人。經警誡後，各人（包括第四被告人）保持緘默。
其後，警方押解該五人（包括第四被告人）回到涉案單位內繼續調查及在內搜查。自警方進入涉案單位後，一直有警員留守以確保單位內沒有受到任何干擾。
於同日1610時，警方在單位內向該五人（包括第四被告人）展示及執行觀塘裁判法院發出的搜查令要求搜查單位。
警方把單位分成三個區域 (即甲、乙、丙)，並在草圖上標記所發現證物的位置。
在涉案單位調查期間，該五人（包括第四被告人）分別向警員指出單位內屬於他們的個人物品。
專家證人法證科學家確認，高度易燃液體，比如汽油，在室溫的環境下隨時可以以明火或火花點著。當以明火觸及高度易燃液體的表面時，液體表面上方的蒸汽會被點燃，並會持續燃燒至液體耗盡。倘若任由這液體放置一段時間，一種這液體的蒸汽和空氣的混合物便會形成，而點燃這種蒸汽和空氣的混合物可引起爆炸，突然及迅速釋放與氣體和產生的熱力有關的能量。當汽油彈的引線被燃點著並將汽油彈投擲到堅硬的表面時，瓶子會破碎，而高度易燃液體會散開成小滴及霧氣雲。引線上的火會繼而點燃小滴及霧氣雲，瞬間形成一個火球。過程中，正在燃燒的液體散開，並會繼續燃燒，對該範圍造成廣泛的火勢破壞。
警方在單位內共檢取了共92項證物。
法證科學家確認，證物2及47中的布塊，每塊均是白色毛巾段，外觀與證物26及69的白色毛巾段相似。
證物47及證物6, 8和36中的玻璃瓶上標示的容量為325毫升，它們的外觀一致。
證物41和43的高度易燃液體、證物6, 8和36的玻璃瓶及證物10, 16, 17, 26, 28, 69和70的物料，可以製造成汽油彈。
武器專家法證科學家檢驗了證物11,12,13,49和65，確認這些都是短棍包含一個內伸縮金屬管和一個中間伸縮金屬管，藏在一個有防滑手柄的外金屬管內。每枝短棍的三條金屬管都是鋼造的。證物11-12的短棍收縮時長約20厘米，最長可延長至約52厘米。證物13的短棍收縮時長約24厘米，最長可延長至約64厘米。證物49, 65的短棍收縮時長約20厘米，最長可延長至約50厘米。
單位內屬於該五人（包括第四被告人）的物品
在涉案單位調查期間，該五人（包括第四被告人）分別向警員指出單位內屬於他們的物品，並於警員記事冊上簽名確認，列出如下：—
證人14單位的搜證
警方鑑證科高級警員51480奉召到達同案另一涉案單位即該大樓三樓A室，並在現場地板上套取7個血液樣本及從玻璃門上套取1隻指模及1隻個掌印。後經政府化驗所法證科學家楊思萌女士較對下，發現當中兩個血液樣本可能來自E。
化驗後，在第四被告人和其中三人的衣物發現微量汽油。
閉路電視片段
警方取得了2019年10月31日0001時至2019年11月2日1545時期間，該大樓的地下大堂及升降機閉路電視片段，當中顯示該五人（包括第四被告人）曾於案發前，即2019年11月1日凌晨時分，直到2019年11月2日凌晨時分，分別多次進出該大樓。其中閉路電視片段拍攝到A及第四被告人多次手持物品包括藍色膠袋及白色膠箱進入該大樓，而警方亦於事發後，在涉案單位搜出與該等款式相符的藍色膠袋及白色膠箱。
2019年11月2日單位附近的事件
使用汽油彈的用途包括庭上播放於2019年11月2日春園街1719時至1726時黑衣人集結期間有人使用的汽油彈。
第四被告人的個人情況
他現年23歲，沒有刑事定罪記錄，案發時就讀城巿大學公共行政及政治學士課程最後一年，家中有父母和妹妹。
他在求情信中透露在還柙期間已深感後悔，並明白以犯法的方式表達對社會的訴求只會加深社會矛盾，不能解決問題。
沈大律師呈另外10封求情信，是來自他的父母、大中小學師長、大中小學同學，舞蹈學會成員以及還柙期間在“牆內學習計劃”中指導他的文史哲課程的講師。他們眼中的他關心社會、樂於助人、聰明和勸奮，犯下本案應是一時衝動所致。
判刑考慮
沈大律師首先提到香港特別行政區 訴 楊泳茹 [2021] HKDC 517，該案例的被告人是本案的第二被告人，她較早前獲排期於2021年4月30日上庭認罪及求情，法庭在同日判刑，針對她的控罪和案情與針對第四被告人的相同。沈大律師要求本席採納相同的量刑基準4年9個月作為第四被告人的量刑基準。
控方確認第四被告人於2020年10月16日已向法庭表示會承認第二項控罪，因此應可獲減刑三分之一。
判刑考慮
沈大律師呈交5宗案例，反映過往管有汽油彈的案例的量刑基準為18至48個月：—
第一宗是HKSAR v Chan Kwok Ching [2020] HKDC 490，被告人在街上全身黑衣及戴上黑口罩黑手套，他的腰袋掛著3個樽袋，各有一枚汽油彈在內。警方將他制服期間，其中一枚汽油彈從樽袋中掉到地上，他的腰袋藏有一些物料及工具，足以製造15枚汽油彈。法庭採納4年（或48個月）作為量刑基準。
第二宗是HKSAR v Chan Chun Fai, Kelvin [2020] HKDC 856，警方在被告人租用的一個工業大廈單位內檢獲被告人自製的11枚汽油彈，另外還檢獲2樽通渠液（共有1公升）、1樽打火機燃液（共有2.2公升）和3個空玻璃樽。就管有汽油彈罪，法庭以3年6個月（或42個月）作為量刑基準。
第三宗是香港特別行政區 訴 王瀚文 [2021] HKDC 301，被告人的背包裡有三個空玻璃樽、兩隻手套、一罐打火機燃料，這些是製造汽油彈的原材料。被告人被判入勞教中心。
第四宗是HKSAR v Lo Chun-hei [2021] HKDC 292，被告人承認管有物品意圖破壞他人的財物，即5樽打火機燃液、5樽火酒、19個啤酒樽、一些棉球、火柴、鎂粉、鉀粉，這些物品可用來製造汽油彈（第三項控罪：管有物品意圖摧毀或損壞財產）。另外還有頭盔、保護裝置、冷敷包、鎚、膠喉、伸縮警棍和一把刀。法庭認為在公民動亂期間管有這些物品會令情況惡化，這是加刑因素之一，但是被告是只在家中管有全部物品，不是在街上或在動亂地點管有，汽油彈並未製成。法庭以3年9個月（或45個月）作為量刑基準。
第五宗是HKSAR v Yiu Siu Hong [2020] HKDC 473，被告人在街上示威期間燃點手上的一枚汽油彈時被警方制服，他的背包藏有另一枚汽油彈（第一項控罪）。就第一項控罪，法庭以2年6個月（或30個月）作為量刑基準。
沈大律師援引另外四宗案例，首三宗的量刑基準是5年（HKSAR v Chan Chun Fai, Kelvin [2020] HKDC 856的目標是警署車轉出入閘口；香港特別行政區 訴 林小雄[2020] HKDC 984的目標是警署側門；HKSAR v Lai Chun Hung [2020] HKDC 1190的目標是警察，但汽油彈沒有爆炸），最後一宗的量刑基準是6年（HKSAR v Yiu Siu Hong 姚少康 [2020] HKCA 1087之第二項控罪有關被告向清理路障的一些警員嘗試投擲一個已燃點了的汽油彈）。全是有關被告人向警察、警署或警車投擲汽油彈。
本案判刑
涉及汽油彈罪行的判刑很重，以身試法的代價很大。
本案有三個嚴重因素。其一，汽油彈是危險的易燃裝置，在本案中的製成品及燃料是放在多層商住大廈內，會有火警危險。其二，本案所涉的製成品和燃料數量不少。其三，本案共五人有計劃地犯案。
先前提及相同控罪但較輕案情的HKSAR v Chan Kwok Ching 的量刑基準則是4年（或48個月），HKSAR v Lo Chun-hei 的量刑基準是3年9個月（或45個月），而HKSAR v Chan Chun Fai, Kelvin的量刑基準則是3年6個月（或42個月）。
涉及較重罪責之企圖縱火罪及案情的四宗案例的量刑基準分別是5年及6年。
本席以4年9個月（或57個月）作為量刑基準。控方確認第四被告人早已表示認罪，可獲減刑三分之一。本席判處他入獄3年2個月（或38個月）。他於2019年11月2日開始被警方扣留，其後由懲教署拘留，刑期應由2019年11月2日開始計算。
（ 葉佐文 ）
區域法院法官
ESCC2692/2019
王證瑜
裁判法院
不認罪
不成立
證據不足
20
在公眾地方管有攻擊性武器
雷射筆
09/08/2019
中環
ESCC2692/2019
王證瑜
裁判法院
不認罪
不成立
證據不足
20
在公眾地方管有攻擊性武器
雷射筆丶噴漆
09/08/2019
中環
STCC4008/2019
香淑嫻
裁判法院
不認罪
罪成
游泳及健身教練
23
襲警
判囚
21
11/03/2019
沙田
STCC4008/2019
香淑嫻
裁判法院
不認罪
罪成
游泳及健身教練
23
在公眾地方管有攻擊性武器
汽油彈
11/03/2019
沙田
WKCC2540/2020
劉淑嫻
裁判法院
不認罪
不成立
學生
36
非法集結
太子
ESCC2809/2020
羅德泉
裁判法院
簽保守行為
文員
31
在公眾地方造成阻礙
07/01/2020
中環
ESCC1949/2020
鄭紀航
裁判法院
不認罪
罪成
理財顧問
32
在公眾地方管有攻擊性武器
雷射筆、鉗、螺絲批、士巴拿
判囚
8
10/01/2019
北角
ESCC1949/2020
鄭紀航
裁判法院
不認罪
罪成
理財顧問
32
管有任何物品意圖摧毀或損壞財產
雷射筆、鉗、螺絲批、士巴拿
判囚
8
10/01/2019
北角
WKCC838/2021
徐綺薇
裁判法院
認罪
罪成
無業
66
抗拒警務人員
判囚
5
09/06/2020
旺角
ESCC1049/2020
鄭紀航
裁判法院
不認罪
罪成
理財顧問
32
在公眾地方管有攻擊性武器
雷射筆、螺絲批
判囚
9
10/01/2020
北角
WKCC838/2021
徐綺薇
裁判法院
認罪
罪成
無業
66
刑事毀壞
只判罰款
09/06/2020
旺角
HCCC318/2020
陳慶偉
高院
不認罪
罪成
29
存有炸藥意圖危害生命或財產
判囚
144
荃灣
HCCC 318/2020
[2021] HKCFI 1492
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 318 OF 2020
—————–
HKSAR
v
Lo Yat-sun, Louis
—————–
Before: Hon Andrew Chan J
Date: 23 April 2021 at 3.20 pm
Present: Mr Ivan Cheung, SPP of the Department of Justice, for HKSAR
Mr David W K Ma, instructed by Ho, Tse, Wai & Partners, assigned by DLA, for the accused
Offence: Keeping explosive with intent to endanger life or property (存有炸藥意圖危害生命或財產)
———————————
Transcript of the Audio Recording
of the Sentence in the above Case
———————————
COURT: The defendant has pleaded guilty to one count of keeping explosive with intent to endanger life or property, contrary to section 54(b) of the Crimes Ordinance, Chapter 200.
At 22.30 on 19 July 2019, the defendant was intercepted by police officers outside Flat D, 20th Floor, Lung Shing Factory Building, Texaco Road, Tsuen Wan (the Flat).
Upon entry into one of the rooms inside the Flat, police officers found 10 petrol bombs inside a cabinet. The room in question was rented by the defendant back in February 2019 through the assistance of a friend, one Mr Chan.
Between 20 June 2019 and 19 July 2019, (ie one month before the defendant’s arrest) CCTV depicted that the defendant went to the Flat on 24 days. Between 10 July 2019 and 19 July 2019, only the defendant attended the Flat. On various occasions, the defendant was seen to carry items into and out of the Flat.
Apart from the petrol bombs, at the centre of the Flat, 18 piles of TATP (Triacetone Triperoxide) were also found on a folding table. The weight of one of the piles was measured to be approximately 40 grammes in weight. As a result, 720 grammes of TATP was estimated to be placed on that folding table. Senior bomb disposal officer from the Explosive Ordnance Disposal Bureau (EOD) confirmed that the condition and location of the TATP was consistent with a homemade primary detonating explosive.
To the left of the folding table and on top of one freezer, another pile of TATP was found. Inside the freezer, TATP was also located on a glass beaker. Three packets containing TATP were also uncovered inside the freezer.
Inside the toilet, precipitate of TATP was also detected. In total, approximately 1,000 grammes of TATP was found inside the Flat. The TATP was capable of detonation which could be caused by heat, friction or impact.
According to the Senior Superintendent’s report, TATP is inherently more dangerous than TNT. Whereas TNT requires a detonator, TATP can be used as an explosive in its own right and spontaneously explode even with static discharge generated by the human body.
When comparing the two explosive substances, I do not find the materials submitted by Mr Ma, namely the note titled “Study of TATP: Blast characteristics and TNT equivalency of small charges” to be convincing because the study took place in a controlled environment and was not reflective of a real-world explosion.
I am of the view that given the TATP’s greater sensitivities and thus ease of detonation, the potential harm to the public was even greater. Because of its instability and danger posed to the general public, the EOD officer decided to detonate the TATP on-site after evacuation of all the occupants of the factory building in question and the nearby buildings as well.
The TATP found on the folding table, ie 720 grammes, was detonated on the roof of the factory building. A video capturing the explosion was shown to the court on the last occasion. Extensive structural damage to the concrete wall and the metal gate on the roof could be seen. According to the EOD officer, the explosion was consistent with a detonation of high explosives.
Apart from explosives, raw materials and equipment for making TATP, offensive weapons such as slingshots with metal projectile, knives, protective gear such as gloves, helmets, facemasks and political pamphlets were also found inside the Flat, the room.
Chemicals including sulphuric acid, hydrogen peroxide, acetone and sodium hydroxide were also found. Acetone, hydrogen peroxide and concentrated sulphuric acid are essential for the making of TATP. According to the EOD officer, due to the explosive and shock-sensitive nature of the TATP, TATP should not be stored in their solid form.
A search of the defendant’s residence uncovered more offensive weapons and books, in particular, one with the title “Theory of Hong Kong Independence”, “香港獨立論”. Political leaflets advocating Hong Kong independence, secession of country and subversion of country were also found. The Chinese title is “香港獨立, 分裂國家, 顛覆國家”.
An examination of the defendant’s mobile phone also uncovered two documents. The first document was said to be intended for terrorists. It sets out the properties of different explosive substances and procedure in making those explosive substances and detonation system with details on the degree of lethality, ignitabilities and harm and injury caused. The second document again sets out the properties of different forms of explosives, etc.
Although the defendant was not charged with making bombs, he was in effect keeping the explosive in the course of its being made or after its being made with the intention of using them to inflict injuries to human life and/or causing damages to property.
In terms of criminality, I do not see any difference between the two scenarios in the present case. The same evils are there. The maximum sentence for this offence and indeed the other offence are the same, namely one of 20 years’ imprisonment.
The defendant, no doubt with other people, was in the course of preparing high explosive bombs. Given the seizure of various paraphernalia from the Flat, his residence and his mobile phone, his intention was to subvert the existing SAR Government and to advocate the independence of Hong Kong.
One also must not forget the event took place on 1 July 2019, where large crowds of demonstrators and/or rioters charged into the Legislative Council chambers and caused extensive damage to its interior. There is of course no evidence to link the defendant to the event on 1 July 2019. Nevertheless, this is one of the events that had taken place in the very turbulent 2019, year 2019.
The defendant is 29 and has a clear record. He received secondary education. One month prior to his arrest, he was a human resource officer in a logistic company.
There is no sentencing guideline for this offence. Having considered the circumstances of the case, this case, however, in my view, can be placed at the most serious band of the sentencing spectrum.
All the circumstances, namely the taking out of the lease, the frequency of his visit to the Flat, the items found from his home, from the Flat, from his mobile phone, all indicated to me that he was the mastermind behind this operation.
Various authorities have been placed before me for consideration. In HKSAR v Yip Kai Foon, CACC 138, 139/1997 unreported, day of judgment 23 August 1999, the appellant, Mr Yip, was sentenced to 18 years’ imprisonment for possession of 2 kilogrammes of TNT, an explosive with intent to endanger life or property.
On appeal, the Court of Appeal made the following remarks:
“The explosive consisted of almost 2 kilogrammes of TNT. We do not, as we have said, know to what use it was intended this explosive be put but we do know that it had the capacity to inflict terrible damage to life and property in a crowded city such as Hong Kong.”
Again, this court does not know to what use the TATP was intended to be put but again I know it has the capacity to inflict very serious damage to life and property, judging from the video. I agree with the sentiment expressed by the Court of Appeal and concurred by the Court of Final Appeal that this court would be failing in its duty to the public if it does not impose heavy deterrent sentence in circumstances such as this.
Although the amount of explosive in the present case is less than the one in Yip Kai Foon’s case, the defendant’s actions, in my view, similarly came close to declaring war on the society. The potential risk and harm posed to the general public, the police, is much greater in the present case than in Yip’s case. As described by the Senior Superintendent McWhirter:
“TATP is inherently dangerous in and of itself, and in comparison with all other explosives which we handled, we operate with the reality that these dangers cannot be eliminated when handling TATP.”
He went on to say:
“The quantity of TATP at scene meant that in the event of an explosion during handling, it was highly unlikely to be survivable by the bomb disposal officer.”
In other words, the EOD officer will die instantly. In other words, even the life of a highly trained explosive disposal officer would be put in great jeopardy.
Mr Yip Kai-foon, for all purposes and intent, together with his gang of criminals sneaked back to Hong Kong was, in my view, more likely than not going after money. The defendant in this case was going after the HKSAR Government, the stability of the region, with the intention of creating fear and terror amongst citizens within the society. His criminality is just as serious, if not more, as Mr Yip.
After careful consideration and given the statutory maximum of the offence, I am of the view that the starting point should be similarly set at 18 years’ imprisonment.
The only mitigating factor in this case is the defendant’s plea at the earliest opportunity. For his earliest plea, he will be given the usual one-third discount.
In conclusion, for the offence the defendant stands convicted, he is sentenced to 12 years’ imprisonment.
DCCC 177/2021
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 177 OF 2021
—————————
HKSAR
v
NG CHEUK KIT, NEVILLE
—————————-
Before: HH Judge Stanley Chan
Date: 17 September 2021
Present: Ms Ivy Y.Y. Lau, Counsel on Fiat, for HKSAR
Mr Jeffrey H.J. Lai, instructed by Littlewoods, assigned by the Director of Legal Aid, for the defendant
Offence: [1] & [9] Theft (盜竊罪)
[2] to [8] & [10] to [16] Obtaining property by deception (以 欺騙手段取得財產)
—————————————–
REASONS FOR SENTENCE
—————————————–
The defendant faced a total of 16 charges. Upon plea bargain, the defendant now pleaded guilty to Charges 1 and 9 [the theft offences] and Charges 2 to 6, 10, 11, 14 and 16 [the offences of obtaining property by deception]. The remaining charges, namely, Charges 12, 13 and 15, are left on court file. The defendant was convicted accordingly.
Brief Facts
Charge 1
PW1 Liu is aged 86. Since February 2020, PW1 moved to live with the defendant’s mother in Cheung On Estate Tsing Yi. In the early hours of 9 May 2020, PW1 was sent to hospital till 25 May 2020. On 15 May 2020, PW2, son of PW1, went to the flat to get PW1’s personal belongings and did not realize that PW1’s credit card issued by the Bank of China [BoC] with the account number 5520-1604-2499-0028 was gone missing.
PW1 received a message from BoC saying that the credit limit of his credit card was being exceeded. On 4 June 2020, PW1 went to the bank with a staff of the elderly home to make enquiry and found out that there were various transactions made between 14 May to 25 May 2020 which was effected without his knowledge and authority. A report was made to the police.
Charges 2 to 11, 14 and 16
On 14 May 2020, the defendant presented the abovesaid credit card at Diamond ICQ Ltd in Tsimshatsui to buy 2 diamond earrings worth $14,500. [Charge 2]
On 15 May 2020, the defendant went to K Channel Digital Co in Mongkok and used the credit card to buy one Macbook worth $6,200. [Charge 3]
On the same day, he went to Wireless Express Telecom in Mongkok and used the credit card to buy one iPhone worth $8,050. [Charge 4]
He then proceeded to Diamond ICQ in TST and used the credit card to buy one diamond ring worth $41,200. [Charge 5]
The defendant went to Yuen Long and used the credit card to buy some groceries totaled $716.6 in the supermarket Fusion. [Charge 6]
On the next day, 16 May, the defendant went to Galaxy Camera in Mongkok and used the credit card to buy one camera worth $6,180. [Charge 7]
He then proceeded to Sham Wo Digit in Mongkok and used the credit card to buy 2 camera lens worth $6,100. [Charge 8]
Later on the day, the defendant went to Fortress shop in Mongkok and stole 4 iPhones worth $41,596 through a successful Apply Pay transaction by using the credit limit of the credit card. [Charge 9]
On 21 May 2020, the defendant used the credit card to buy one sex toy worth $399 at Sex Zone in Mongkok. [Charge 10]
On 22 May 2020, the defendant used the credit card to buy some groceries worth $321.9 in the supermarket Fusion in Yuen Long. [Charge 11]
On 25 May 2020, at Colourmix shop in Lai Chi Kok, the defendant used the credit card to buy 2 skincare products worth $880. [Charge 14]
On the same day, the defendant used the credit card to buy some products worth $258 at a shop called Top Grade Computer Products in Mongkok. [Charge 16]
Arrest of the defendant
Based on the CCTV footage and other information, the police were able to identify the defendant. The defendant was arrested on 29 July 2020.
Videoed interview under caution
On 30 July 2020, under caution, the defendant made certain admissions [note: several paragraphs are simplified]: –
He was a friend of PW1.
The defendant visited his mother at her home a few times in April and May 2020.
The defendant had asked PW1 to lend him money but PW1 refused.
The defendant used the credit card to buy some valuable items and then sold them off.
The defendant knew that it was illegal to use other’s credit card.
The defendant admitted that he used the credit card to purchase the Apple products, diamonds and mobile phones in May 2020.
He had been to Diamond ICQ on 14 and 15 May 2020.
PW1 had no knowledge of the various transactions made by the defendant with PW1’s credit card in May 2020.
He had sold all the goods, except the groceries and the sex toy, and got about $170,000.
He acted alone and falsified PW1’s signature when signing the credit card imprints.
The total amount that the defendant stole or obtained through the use of the stolen card is about $126,400 odd.
Mitigation
The defendant is aged 42, and was born in China. He came to Hong Kong in 1987. He studied up to Form 5. He was divorced and his former wife has the custody of their 2 kids. The defendant had a clear record. In the written mitigation submission, the defence accepted that “the theft of credit card may contain breach of trust element” [para 7 of the submission] but it was an opportunistic act for the defendant. PW1 was the boyfriend of the defendant’s mother. All along, only one credit card was involved and the transactions were made within one month. The stolen property worth about $126,400 odd and it can be regarded as ‘small to medium scale’ in credit card fraud cases.
The defence cited a few sentencing cases and also submitted the mitigation letter of the defendant and his mother. It is urged that given the defendant’s clear record and timely guilty plea, this Court can pass a lenient sentence.
Sentence
There is no dispute that only one stolen credit card was used, and the defendant entered a buying spree shortly after the theft and within the month of May. The defendant used the stolen card to buy iPhones and diamonds etc and then realized the stolen property. He had spent all the money.
The defendant had a clear record and he made use of his mother’s relationship with PW1 which allowed the defendant the chance to obtain the credit card.
In his mitigation letter, the defendant said because of the financial difficulty, the need to maintain his 2 kids and his girlfriend’s health problem, he committed the offences out of impulse and was sorry for his mistake. His mother also suffered because of the defendant’s foolish acts. The defendant pleads for leniency and will turn a new leaf to become a responsible man for his family. The defendant’s mother wrote that she is not in good health and with her son being imprisoned, no one is around to take care of her. This incident has brought great pain to her and she felt that the defendant is in great pain too.
The Court of Appeal in HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242, took the view that the sentencing principles and considerations of those false credit card frauds are equally applicable to credit card fraud offences in which genuine credit cards are used. The Court of Appeal saw no good reason why the 3 year starting point for simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence [para 40 of the judgment].
Had PW1 not made a report to the police, I think this case might not be come to light. That said, it does not mean the defendant is not culpable, but it shows that the credit card fraud was not sophisticated and was not well planned. The defendant was greedy and he did try to maximize the ‘benefits’ of his theft of the credit card. He made fraudulent transactions on more than 12 occasions and at the end of the day made an illicit gain of some $126,400 odd. At this juncture, I would say there was no breach of trust element in the offences committed by the defendant as there was no trust relationship between the defendant and PW1.
There is no strong mitigating factor for the defendant but his early guilty pleas to 13 out of 16 charges which will effect a 1/3 discount in sentence.
Taking all factors into account, I would sentence the defendant as follows: –
Charge 1
I adopt the starting point of 9 months’ imprisonment, and with 1/3 discount, the sentence is reduced to 6 months.
Charges 2 to 11, 14 and 16
These offences were committed consequent upon the theft of the credit card and can be considered as a series of offences stemmed from the use of the stolen credit card. I would adopt a starting point of 3 years for all the charges in this group. With his guilty pleas, the sentence is reduced to 2 years for each charge and the sentence is to run concurrently.
I also have to consider the totality principle. I will take a lenient stance and order that all the sentences are to run concurrently. That means the defendant is sentenced to 2 years’ imprisonment.
( Stanley Chan )
District Judge
DCCC177/2021
姚勳智
區院
不認罪
罪成
兼職侍應
26
串謀作出具煽動意圖作為
判囚
15
網上
DCCC 177/2021
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 177 OF 2021
—————————
HKSAR
v
NG CHEUK KIT, NEVILLE
—————————-
Before: HH Judge Stanley Chan
Date: 17 September 2021
Present: Ms Ivy Y.Y. Lau, Counsel on Fiat, for HKSAR
Mr Jeffrey H.J. Lai, instructed by Littlewoods, assigned by the Director of Legal Aid, for the defendant
Offence: [1] & [9] Theft (盜竊罪)
[2] to [8] & [10] to [16] Obtaining property by deception (以 欺騙手段取得財產)
—————————————–
REASONS FOR SENTENCE
—————————————–
The defendant faced a total of 16 charges. Upon plea bargain, the defendant now pleaded guilty to Charges 1 and 9 [the theft offences] and Charges 2 to 6, 10, 11, 14 and 16 [the offences of obtaining property by deception]. The remaining charges, namely, Charges 12, 13 and 15, are left on court file. The defendant was convicted accordingly.
Brief Facts
Charge 1
PW1 Liu is aged 86. Since February 2020, PW1 moved to live with the defendant’s mother in Cheung On Estate Tsing Yi. In the early hours of 9 May 2020, PW1 was sent to hospital till 25 May 2020. On 15 May 2020, PW2, son of PW1, went to the flat to get PW1’s personal belongings and did not realize that PW1’s credit card issued by the Bank of China [BoC] with the account number 5520-1604-2499-0028 was gone missing.
PW1 received a message from BoC saying that the credit limit of his credit card was being exceeded. On 4 June 2020, PW1 went to the bank with a staff of the elderly home to make enquiry and found out that there were various transactions made between 14 May to 25 May 2020 which was effected without his knowledge and authority. A report was made to the police.
Charges 2 to 11, 14 and 16
On 14 May 2020, the defendant presented the abovesaid credit card at Diamond ICQ Ltd in Tsimshatsui to buy 2 diamond earrings worth $14,500. [Charge 2]
On 15 May 2020, the defendant went to K Channel Digital Co in Mongkok and used the credit card to buy one Macbook worth $6,200. [Charge 3]
On the same day, he went to Wireless Express Telecom in Mongkok and used the credit card to buy one iPhone worth $8,050. [Charge 4]
He then proceeded to Diamond ICQ in TST and used the credit card to buy one diamond ring worth $41,200. [Charge 5]
The defendant went to Yuen Long and used the credit card to buy some groceries totaled $716.6 in the supermarket Fusion. [Charge 6]
On the next day, 16 May, the defendant went to Galaxy Camera in Mongkok and used the credit card to buy one camera worth $6,180. [Charge 7]
He then proceeded to Sham Wo Digit in Mongkok and used the credit card to buy 2 camera lens worth $6,100. [Charge 8]
Later on the day, the defendant went to Fortress shop in Mongkok and stole 4 iPhones worth $41,596 through a successful Apply Pay transaction by using the credit limit of the credit card. [Charge 9]
On 21 May 2020, the defendant used the credit card to buy one sex toy worth $399 at Sex Zone in Mongkok. [Charge 10]
On 22 May 2020, the defendant used the credit card to buy some groceries worth $321.9 in the supermarket Fusion in Yuen Long. [Charge 11]
On 25 May 2020, at Colourmix shop in Lai Chi Kok, the defendant used the credit card to buy 2 skincare products worth $880. [Charge 14]
On the same day, the defendant used the credit card to buy some products worth $258 at a shop called Top Grade Computer Products in Mongkok. [Charge 16]
Arrest of the defendant
Based on the CCTV footage and other information, the police were able to identify the defendant. The defendant was arrested on 29 July 2020.
Videoed interview under caution
On 30 July 2020, under caution, the defendant made certain admissions [note: several paragraphs are simplified]: –
He was a friend of PW1.
The defendant visited his mother at her home a few times in April and May 2020.
The defendant had asked PW1 to lend him money but PW1 refused.
The defendant used the credit card to buy some valuable items and then sold them off.
The defendant knew that it was illegal to use other’s credit card.
The defendant admitted that he used the credit card to purchase the Apple products, diamonds and mobile phones in May 2020.
He had been to Diamond ICQ on 14 and 15 May 2020.
PW1 had no knowledge of the various transactions made by the defendant with PW1’s credit card in May 2020.
He had sold all the goods, except the groceries and the sex toy, and got about $170,000.
He acted alone and falsified PW1’s signature when signing the credit card imprints.
The total amount that the defendant stole or obtained through the use of the stolen card is about $126,400 odd.
Mitigation
The defendant is aged 42, and was born in China. He came to Hong Kong in 1987. He studied up to Form 5. He was divorced and his former wife has the custody of their 2 kids. The defendant had a clear record. In the written mitigation submission, the defence accepted that “the theft of credit card may contain breach of trust element” [para 7 of the submission] but it was an opportunistic act for the defendant. PW1 was the boyfriend of the defendant’s mother. All along, only one credit card was involved and the transactions were made within one month. The stolen property worth about $126,400 odd and it can be regarded as ‘small to medium scale’ in credit card fraud cases.
The defence cited a few sentencing cases and also submitted the mitigation letter of the defendant and his mother. It is urged that given the defendant’s clear record and timely guilty plea, this Court can pass a lenient sentence.
Sentence
There is no dispute that only one stolen credit card was used, and the defendant entered a buying spree shortly after the theft and within the month of May. The defendant used the stolen card to buy iPhones and diamonds etc and then realized the stolen property. He had spent all the money.
The defendant had a clear record and he made use of his mother’s relationship with PW1 which allowed the defendant the chance to obtain the credit card.
In his mitigation letter, the defendant said because of the financial difficulty, the need to maintain his 2 kids and his girlfriend’s health problem, he committed the offences out of impulse and was sorry for his mistake. His mother also suffered because of the defendant’s foolish acts. The defendant pleads for leniency and will turn a new leaf to become a responsible man for his family. The defendant’s mother wrote that she is not in good health and with her son being imprisoned, no one is around to take care of her. This incident has brought great pain to her and she felt that the defendant is in great pain too.
The Court of Appeal in HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242, took the view that the sentencing principles and considerations of those false credit card frauds are equally applicable to credit card fraud offences in which genuine credit cards are used. The Court of Appeal saw no good reason why the 3 year starting point for simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence [para 40 of the judgment].
Had PW1 not made a report to the police, I think this case might not be come to light. That said, it does not mean the defendant is not culpable, but it shows that the credit card fraud was not sophisticated and was not well planned. The defendant was greedy and he did try to maximize the ‘benefits’ of his theft of the credit card. He made fraudulent transactions on more than 12 occasions and at the end of the day made an illicit gain of some $126,400 odd. At this juncture, I would say there was no breach of trust element in the offences committed by the defendant as there was no trust relationship between the defendant and PW1.
There is no strong mitigating factor for the defendant but his early guilty pleas to 13 out of 16 charges which will effect a 1/3 discount in sentence.
Taking all factors into account, I would sentence the defendant as follows: –
Charge 1
I adopt the starting point of 9 months’ imprisonment, and with 1/3 discount, the sentence is reduced to 6 months.
Charges 2 to 11, 14 and 16
These offences were committed consequent upon the theft of the credit card and can be considered as a series of offences stemmed from the use of the stolen credit card. I would adopt a starting point of 3 years for all the charges in this group. With his guilty pleas, the sentence is reduced to 2 years for each charge and the sentence is to run concurrently.
I also have to consider the totality principle. I will take a lenient stance and order that all the sentences are to run concurrently. That means the defendant is sentenced to 2 years’ imprisonment.
( Stanley Chan )
District Judge
DCCC 537/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 537 OF 2020
————————————–
HKSAR
v
LAI CHEE YING (D1)
YEUNG SUM (D2)
LEE CHEUK YAN (D3)
—————————————
Before: Her Honour Judge A J Woodcock in Court
Date: 16 April 2021
Present: Ms Priscilia Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Acting) and Mr Edward Lau, Public Prosecutor, for HKSAR/ Director of Public Prosecutions
Mr Edwin Choy leading Mr Jeffrey Tam C K and Mr Ernie Tung, instructed by Robertsons, for the 1st defendant
Mr Man Ho Ching of Ho Tse Wai & Partners, for the 2nd defendant
Mr Anson Wong Yu Yat, instructed by JCC Cheung & Co, for the 3rd defendant
Offence: Knowingly taking part in an unauthorized assembly (明知而參與未經批准集結)
—————————————–
REASONS FOR SENTENCE
—————————————–
The 3 defendants pleaded guilty to one charge of knowingly taking part in an unauthorized assembly, contrary to section 17A(3)(a) of the Public Order Ordinance, Cap 245. An indication of their plea came a few days before their trial was due to commence.
The particulars are that on 31 August 2019, without lawful authority or reasonable excuse, all 3 defendants knowingly took part in a public procession which took place in contravention of section 13 of the Public Order Ordinance which was an unauthorized assembly by virtue of section 17A(2)(a) of the same Ordinance.
The Facts
All 3 defendants agreed the Amended Summary of Facts. By way of background, it was agreed that from June 2019 there were many violent incidents that erupted during certain protest events including confrontations between members of the public and members of the Hong Kong Police Force.
The Civil Human Rights Front, “CHRF” had submitted a notification of an intention to hold a public meeting and procession on 31 August 2019. They intended to hold a public meeting at Chater Garden, Central and then a public procession from Chater Garden to the Liaison Office of the Central People’s Government in the HKSAR. The subject matter of the meeting and procession was anti-government and a demand for universal suffrage.
In light of the ongoing prevailing social unrest and violent incidents in the preceding weeks and having regard to the interests of public order, public safety and for the protection of the rights and freedom of others, the Commissioner of Police prohibited the holding of the public meeting and objected to the holding of the public procession. There was an appeal that was dismissed.
After that, there was a call on line and amongst netizens appealing to the public to gather at Southorn Playground in Wanchai at around 12:30 pm on 31 August 2019 to participate in a “Pray for Sinners” procession. They were to assemble at 12:30 pm and start a procession at 1 pm. It was erroneously announced that a religious procession did not need police notification or permission.
They were to walk from the playground along Hennessy Road to Queensway to Upper Albert Road and to Government House. They would make stops to pray for “sinners” at the Chinese Methodist Church in Wanchai then the Police Headquarters as well as St John’s Cathedral before proceeding to Government House. The Commissioner of Police never received any notification from any person or organisation either pursuant to section 8 or 13A of the Public Order Ordinance.
On 30 August 2019 the Regional Commander of Hong Kong Island held a press conference and explained the reasons why the CHRF public meeting and the public procession was prohibited. He also corrected the rumour that a religious procession was exempted under the Public Order Ordinance. This news report was widely broadcast and printed in at least 13 media outlets. Annex 1 of the Summary of Facts contains those details.
An unauthorized assembly did take place on 31 August 2019. By 12:35 pm, the 2nd defendant was videoed assembled together with large crowds at Southorn Playground and chanting political slogans; anti-government and anti-police slogans. The police use an amplifier and gave a “level 2A” warning to the crowds whilst a yellow warning flag was raised and displayed with the warning printed on it for all to see. The crowd was warned that the meeting was an unauthorized assembly and they may be prosecuted for a criminal offence.
Instead of dispersing, some members of the crowd approached the police with hostility and verbally abused as well as insulted those officers present. In order not to escalate rising emotions and to avoid any conflict, these police officers withdrew and return to Police Headquarters to guard that building and monitor the situation.
By 1 pm the crowds had swelled inside the Playground and by then the other 2 defendants, the 1st and 3rd defendants were present. During the whole day the 3 defendants were almost, at all times, together during the meeting and procession. The 3rd defendant was holding a placard and interviewed by a reporter in the Playground. He said that he knew the police had banned all marches that day but they had a right to march. They wanted to gather and protest for the 5 demands.
At 1:30 pm the procession began and the 3 defendants with a large number of participants marched to the Chinese Methodist Church and stayed there for a while blocking the carriageways of Johnston Road and Fenwick Street. They then marched to the Police Headquarters and blocked the junction of Fenwick Street and Hennessy Road as well as Lockhart Road and Arsenal Street. The 3rd defendant had to resort to directing traffic and reminding the crowds to beware of vehicles.
A 2nd warning was given from the steps of the Police Headquarters in light of the traffic disruption and crowds on the carriageways. The police gave another warning verbally and displayed a yellow flag. Despite this the defendants and others continued to occupy the carriageways. They did not disperse.
The 1st defendant was interviewed by reporters outside the Police Headquarters and stated he had come out that day in order to express the view that they would continue to fight for “5 demands”. He did not answer the question when asked if he was worried he may be arrested for participating in a procession.
In total on 4 occasions “Level 2B” warnings were given from the steps of the Police Headquarters with yellow flags raised at the same time. The 3 defendants together with hundreds then walked towards Queensway and occupied at least 2 carriageways outside Pacific Place making it difficult for vehicles to pass. Again the 3rd defendant had to direct traffic and the crowds with the assistance of the 2nd defendant.
The 1st defendant was interviewed again and said he was participating in the procession to show that Hong Kong citizens would not be intimidated by the actions of the police.
In the video footage when the defendants reached the junction of Garden Road and Queensway, the 2nd and 3rd defendants can be seen shouting at participants to go to St John’s Cathedral first. The crowds occupied the carriageways and affected traffic again. As participants followed directions, there was chanting of political slogans. The 3 defendants were last seen stood together outside St John’s Cathedral at about 2:25 pm singing religious songs.
From there, the police did not allow the procession to proceed towards Government House. Whilst others in the procession proceeded up Garden Road to attempt to go to Government House, the 3 defendants were no longer seen in the procession. The procession was directed away by the police.
At that point the police issued another verbal warning and raised a yellow flag. Whilst these warnings were given, the police again were subjected to abuse and insults by participants of the procession. There was even an attempt by a woman to break through the police cordon line but was unsuccessful.
All of the news footage and interviews as well as the police videos of the meeting at Southorn Playground and the public procession are attached to the Summary of Facts in Annex 2. All the relevant videos identifying the defendants, what they said to the press and what they said in speeches and slogans is in Annex 2. MFI-4 is a record of all of the video footage and what was played in open court.
It was admitted that during the public procession the crowds with the defendants walked on carriageways which caused serious disruption to the traffic. Vehicles including public transport were stuck on many roads around Wanchai, Queensway as well as Garden Road and Lower Albert Road. In fact, the traffic on Garden Road was affected until 8 pm that night.
The 1st defendant, Mr Lai Chee Ying and the 3rd defendant, Mr Lee Cheuk Yan were convicted by me on 1 April 2021 of organising and knowingly taking part in a public procession which was an unauthorized assembly on 18 August 2019, only 14 days before the unauthorized assembly of this charge.
Mitigation and background information of the defendants
The 1st defendant
The 1st defendant is now 73 years old and has no previous convictions. He was born in the Mainland and came to Hong Kong as a teenager by himself. He started from humble beginnings working as a handyman in a factory to become a self-made and successful businessman. He founded the retail brand Giordano. He sold his shares in that to focus on the media industry in the 1990s. He had by then founded “Next Digital Ltd” which later listed on the Hong Kong Stock Exchange.
He is married with 6 children and many grandchildren. In mitigation I have been urged to take into account that he has through his businesses made significant contributions to the media industry and the economy in Hong Kong. His more advanced age has been stressed as well as several medical conditions controlled by medication. Written mitigation is at MFI-1.
The 2nd defendant
The 2nd defendant is 72 years old and on the date of this offence had no previous convictions. After he was convicted of this sole charge on his own plea, he discharged his legal team to mitigate for himself. It was confirmed that his plea was unequivocal before I released his legal representation. Despite this, his counsel did inform me in open court that he was a Justice of the Peace and had been awarded the Silver Bauhinia Star in 2009. He is a married man with children. He was a teacher and then an Assistant Professor at the University of Hong Kong. He is still an Honorary Assistant Professor now after retirement. It is also well-known he served several terms as a Legislator and was actively involved with the Democratic Party and other pro-democracy parties.
It appeared his legal team was discharged because he did not want to put forward any mitigation. He did however want to make a statement. He read out in court a statement pertaining to why he broke the law, it is marked MFI-2. He pleaded guilty but would not plead for leniency because he had no remorse nor did anything wrong.
His motivation was civil disobedience. He wanted to protest against the Public Order Ordinance by means of civil disobedience. He participated because the right of demonstration and procession is constitutionally guaranteed. He also wanted to protest against the abuse of power by the police for prohibiting peaceful demonstrations and processions. He therefore defied the law in the name of civil disobedience in a peaceful manner. He had nothing to say in mitigation.
The 3rd defendant
The 3rd defendant is 64 years old and on the date of this offence had no previous convictions. He was a politician and was a serving member of the Legislature for many years. He founded and is still connected to the Labour Party. He is now the General Secretary of the Hong Kong Confederation of Trade Unions and Vice-chairman of the Labour Party.
He graduated from the University of Hong Kong in 1978 with a civil engineering degree. I have heard full mitigation, MFI-3, including a letter from the 3rd defendant read out in open court.
He too admits he broke the law but his motivation was like the 2nd defendant, civil disobedience. He pleaded guilty but does not admit he has done anything wrong in affirming the rights of Hong Kong people to peaceful procession. He too says he participated because the right of procession is constitutionally guaranteed. He too defied the law in the name of civil disobedience in a peaceful manner. I have read his letter and I know where he gets his inspiration from.
Mitigation
The 2nd and 3rd defendants do not express regret or admit wrongdoing because of their political beliefs or demands and are entitled to take or express this stance. Their political beliefs or demands are not my concern in sentencing. I have had the benefit of written submissions prepared by counsel and need not set it out here.
I do not agree with the submission in mitigation that they were just like any other participant that day answering a call to pray for sinners; that they were no different from any other person there. The 3 defendants are well known and stood out from the crowd. Protesters are seen following their directions as to traffic and route.
Civil Disobedience
The 2nd and 3rd defendants raise the concept of civil disobedience to justify their breaches of the law. This concept is recognised in the Courts of Hong Kong. The conscientious objections and genuine beliefs of a defendant may be taken into consideration as the motive for offending but the court will not evaluate the worthiness of any causes espoused by an offender. The weight to be attached to a motive will vary depending on the circumstances.
As the Court of Final Appeal said in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at para 75 that it is not the task of the courts to take sides on issues that are political or to prefer one set of social or other values over another. In any event, the act of civil disobedience here was not expressly directed towards section 17A of the Public Order Ordinance as an unjust law but was committed in the course of protesting against the government and the police over several issues.
Principles of Sentencing
There are no prevailing guidelines or tariffs for sentences for the present charge that existed at the time of the offence. The great majority of the past cases with a similar offence do either involve a bind over order or a financial penalty but none of those cases referred to stem from the social unrest and turmoil of 2019.
Public order offences have been established as an exception to the general principle that a deterrent sentence should not be passed on a person with a clear record and I have referred myself to page 13, lines 4-9 of R v Nguyen Quang Thong & Ors (1992) 2 HKCLR 10. All defendants here had a clear record.
I have been referred to reasons for judgement arising from HKSAR v Chow Ting HCMA 374/2020, a bail application pending a magistracy appeal. I thank the prosecution for a translation of those reasons. There, Barnes J refused bail pending appeal for the applicant Chow Ting. She had been sentenced to 10 months’ imprisonment for incitement to knowingly take part in an unauthorized assembly and knowingly taking part in an unauthorized assembly.
The facts of that case are set out in those Reasons for Judgement and involve large crowds of protesters gathering first in the vicinity of the Central Government Offices on 21 June 2019 before more crowds proceeded to besiege the Police Headquarters. That was a day that ended in violence, conflict, damage to property, an attack on the police headquarters itself and its operation as well as severe traffic disruption until the early hours of the morning.
The relevance of that case and the Reasons for Judgement is because the learned Magistrate referred to the sentencing considerations and factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699; sentencing guidelines for offences of unlawful assembly.
Barnes J was only concerned with the application for bail pending appeal and not the appeal itself which is still to be heard but she did state the reasons why she found the applicant had failed to demonstrate that her appeal had a very high or reasonable prospect of success. More importantly, and relied on heavily by the prosecution here is that she agreed with the learned Magistrate and found nothing wrong with her “drawing on” the sentencing factors in Wong Chi Fung when deciding a custodial sentence was appropriate and said it was clearly far from being wrong in principle.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. In the context of unlawful assemblies involving violence, it was held by the court that the sentencing court’s main consideration is the punishment of the offender, as well as deterring others from breaking the law in a similar manner. These are the weighty factors and the offender’s personal circumstances will not be regarded as significant mitigation. The Court of Final Appeal endorsed those observations in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35.
The Court of Appeal found it necessary to expound on the principles on sentencing in unlawful assemblies that involved violence. In paragraph 108 Poon JA, as he then was, set out the sentencing principles applicable to the charges. Particularly, in paragraph 127 he stressed that the sentence imposed must be appropriate to the punishment of the offenders but also takes into account the factor of deterrence on the basic premise that public order must be maintained and reflects the gravamen of the offence of unlawful assembly.
In paragraph 135 he identified facts relevant and pertinent to unlawful assembly offences involving violence. But before that Poon JA discussed not only unlawful assembly involving violence but also unlawful assembly involving no actual violence.
In the judgement of Secretary for Justice v Chung Ka Ho CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen from Wong Chi Fung that cases that warrant the courts serious treatment include an unlawful assembly without actual violence, which could become imminent, given the overall circumstances. Essentially, the Court of Appeal said it is artificial and unreasonable to divide unlawful assemblies by violence when passing sentence; it all depends on the actual circumstances in each case. Equally, the Court of Appeal did not say deterrent sentences should not be imposed in the absence of actual violence.
The Court of Appeal in Chung Ka Ho at paragraph 55 point out that the factors identified by Poon JA in paragraph 135 in Wong Chi Fung can if adjusted, apply equally to unlawful assemblies with no violence. Therefore, it is not right to suggest that the judgement in Wong Chi Fung is solely applicable to unlawful assembly involving violence.
Although Wong Chi Fung involved an unlawful assembly involving violence, Barnes J saw nothing wrong with the magistrate drawing on the sentencing considerations because the charges in both Wong Chi Fung and Chow Ting were contrary to the Public Order Ordinance. Secondly the maximum penalty for those offences in those cases were the same. Thirdly both cases were of a similar nature in that they involved crowd gatherings and lastly those demonstrations and gatherings arose from social issues.
Although this case before me involves an unauthorized assembly on 31 August, if I take into account the overall circumstances, the social unrest witnessed from June 2019 that was as relentless as it was violent and disturbing then I find I can consider sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I too can draw on the sentencing principles in that authority but bear in mind this charge involves an unauthorised not an unlawful assembly.
The facts of this case and offence affected the public; members of the public not participating. There was traffic disruption and carriageways were blocked. By listing as a principle “meting out penalties”, the Court of Appeal were reiterating the obvious and that is any sentence imposed ought to be commensurate with the offence committed. One that reflects the seriousness of the offence and the culpability of the offender. The open condemnation factor is self-explanatory, the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender.
The factor of deterrence serves as a warning to others and prevents the offender from reoffending. The need for deterrent sentences cannot be limited to an unlawful assemblies or more serious public order offences. The need to consider a deterrent sentence will often depend on the prevailing circumstances at the time. In fact, all sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation of 2019.
The fact I draw on the aforesaid sentencing principles does not mean I am retrospectively imposing a more severe sentence based on new sentencing guidelines from the Court of Appeal in Wong Chi Fung.
Reasons for Sentence
This unauthorized procession was peacefully but we know from experience, in particular in those volatile months in 2019 that when a large number of demonstrators gather, emotions are likely to run high which means those situations have an inherent risk of breaking out into violence.
It is a serious factor that despite that risk and knowing the Commissioner of Police had banned all meetings and processions of the CHRF that day and why, the defendants went to join with others in Southorn Playground to participate in a procession and ignore the ban and reasons for it.
An unauthorized assembly was planned in advance to protest against the government and the police, calling it a “Pray for sinners” march. All 3 defendants made a conscious decision to take part in it and to then deliberately ignore all the police verbal warnings and flags telling them to disperse or face prosecution.
It was deliberately provocative and inflammatory, in light of the prevailing social unrest and previous attacks on the Police Headquarters to specifically march there. The Police Headquarters was not a church so the insinuation according to the theme and route of the procession was that the police were sinners.
Their decision to participate and their decision to ignore the numerous police warnings, because of who they are, may have encouraged others to participate and believe they can break the law with impunity. People can be influenced by their peers to adopt certain behaviour and follow certain actions. Influential people can draw a crowd and can wield a certain influence.
This is why after careful consideration of the above principles and factors; I find an immediate term of imprisonment the only appropriate sentencing option. This offence was committed deliberately and intentionally at a time when there were incidents of social unrest almost daily. They chose to participate in yet another unauthorised assembly with a significant crowd when they must have known the chances were high of more violence erupting.
The background and facts of this case call for a custodial sentence. I have referred myself to Wong Chi Fung at paragraph 172 where what Pang JA said is applicable to this case and the circumstances that were prevailing in Hong Kong at that time. That is even though the charge was more serious. I quote;
“172. I agree with the judgements of Yeung VP and Poon JA. The more one feels about an issue, the more one wishes to press one’s point and the more one desires that there should be progress in the matter. This is all very understandable. However, if in the course of advocating one’s demand, one is given to the position that some long and well established law is but an unreasonable restriction on the right to freedom of expression, plus indulging one in the self-satisfaction of having broken the law as one pleases, that is not a situation which would on any ground enable the courts to pass unduly lenient sentences. An offender who is inflicted with such an attitude not only breaks the law in conduct, but in his mind too he harbours contempt and regards himself as being above the law. With respect to controversial matters of public debate where emotions are easily stirred, the grave consequences of such an attitude gaining ground are self-evident. …”
Starting Point and Sentence
I have taken into account all mitigation put forward on behalf of the defendants and although the 2nd defendant did not put forward any personal mitigation for the court to consider, I did have information placed before me pertaining to his positive good character.
I have borne in mind the offence, facts of the case and the relevant sentencing principles referred to above in particular deterrence. I stress the fact this offence was committed deliberately and intentionally at a time when there were frequent and prevailing incidents of social unrest and violence. It was a direct challenge to law and order despite a ban from the Commissioner of Police.
After all matters are taken into consideration including the fact the procession was peaceful, in my judgement, the starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas less than a week before their trial commenced. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% to the starting point for their pleas. This reduces the starting point to a sentence of 9 months’ imprisonment.
That discount for a guilty plea has an allowance for a clear record built into it. Unless there is more, such as evidence of positive good character then, there should be no further discount for a clear record. All the defendants here had a clear record at the time of the offence.
The 1st defendant
The 1st defendant is 73 years old. I have heard mitigation relating to that and his health. I will give the 1st defendant a further reduction of one month for these factors which would bring the sentence down to 8 months’ imprisonment.
I can see no reason to reduce that sentence any further. Therefore, I sentence the 1st defendant to 8 months’ imprisonment.
The 2nd defendant
The 2nd defendant is 72 years old. I will give the 2nd defendant a further reduction of one month for that factor. This brings his sentence down to 8 months’ imprisonment.
He wants no leniency from this court as he says his actions were to protect his right of assembly and an act of civil disobedience. Certainly the civil disobedience was non-violent. I have taken account what he said in MFI-2 but much of his statement and grievances relate to what happened in Hong Kong after he committed this offence.
Other than his service as a Legislator for many years, the 2nd defendant is known for his dedication to education and social work especially at the grassroots level. His Silver Bauhinia Star Award under the honours system of Hong Kong means he was recognised for either taking a leading role in public affairs or voluntary work over a long period of time for the good of Hong Kong.
I find that award to be evidence of exceptional public service and commitment therefore, that fact as well as his age gives me a valid reason to suspend that 8-month term of imprisonment.
I sentence the 2nd defendant to 8 months’ imprisonment suspended for 12 months.
The 2nd defendant is warned that if he is convicted of an offence punishable by imprisonment in the following 12 months from today then he will almost certainly serve this term of 8 months.
The 3rd defendant
The 3rd defendant is 64 years old. From information received, I have considered his commitment and contribution to public service especially where the welfare of workers is concerned. Such service deserves recognition and for that I give the 3rd defendant a further discount of 3 months.
I can see no reason to reduce that sentence any further. Therefore, I sentence the 3rd defendant to 6 months’ imprisonment.
( A J Woodcock )
District Judge
DCCC 537/2020
胡雅文
區院
不認罪
罪成
64
明知而參與未經批准集結
判囚
6
灣仔
DCCC 537/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 537 OF 2020
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HKSAR
v
LAI CHEE YING (D1)
YEUNG SUM (D2)
LEE CHEUK YAN (D3)
—————————————
Before: Her Honour Judge A J Woodcock in Court
Date: 16 April 2021
Present: Ms Priscilia Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Acting) and Mr Edward Lau, Public Prosecutor, for HKSAR/ Director of Public Prosecutions
Mr Edwin Choy leading Mr Jeffrey Tam C K and Mr Ernie Tung, instructed by Robertsons, for the 1st defendant
Mr Man Ho Ching of Ho Tse Wai & Partners, for the 2nd defendant
Mr Anson Wong Yu Yat, instructed by JCC Cheung & Co, for the 3rd defendant
Offence: Knowingly taking part in an unauthorized assembly (明知而參與未經批准集結)
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REASONS FOR SENTENCE
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The 3 defendants pleaded guilty to one charge of knowingly taking part in an unauthorized assembly, contrary to section 17A(3)(a) of the Public Order Ordinance, Cap 245. An indication of their plea came a few days before their trial was due to commence.
The particulars are that on 31 August 2019, without lawful authority or reasonable excuse, all 3 defendants knowingly took part in a public procession which took place in contravention of section 13 of the Public Order Ordinance which was an unauthorized assembly by virtue of section 17A(2)(a) of the same Ordinance.
The Facts
All 3 defendants agreed the Amended Summary of Facts. By way of background, it was agreed that from June 2019 there were many violent incidents that erupted during certain protest events including confrontations between members of the public and members of the Hong Kong Police Force.
The Civil Human Rights Front, “CHRF” had submitted a notification of an intention to hold a public meeting and procession on 31 August 2019. They intended to hold a public meeting at Chater Garden, Central and then a public procession from Chater Garden to the Liaison Office of the Central People’s Government in the HKSAR. The subject matter of the meeting and procession was anti-government and a demand for universal suffrage.
In light of the ongoing prevailing social unrest and violent incidents in the preceding weeks and having regard to the interests of public order, public safety and for the protection of the rights and freedom of others, the Commissioner of Police prohibited the holding of the public meeting and objected to the holding of the public procession. There was an appeal that was dismissed.
After that, there was a call on line and amongst netizens appealing to the public to gather at Southorn Playground in Wanchai at around 12:30 pm on 31 August 2019 to participate in a “Pray for Sinners” procession. They were to assemble at 12:30 pm and start a procession at 1 pm. It was erroneously announced that a religious procession did not need police notification or permission.
They were to walk from the playground along Hennessy Road to Queensway to Upper Albert Road and to Government House. They would make stops to pray for “sinners” at the Chinese Methodist Church in Wanchai then the Police Headquarters as well as St John’s Cathedral before proceeding to Government House. The Commissioner of Police never received any notification from any person or organisation either pursuant to section 8 or 13A of the Public Order Ordinance.
On 30 August 2019 the Regional Commander of Hong Kong Island held a press conference and explained the reasons why the CHRF public meeting and the public procession was prohibited. He also corrected the rumour that a religious procession was exempted under the Public Order Ordinance. This news report was widely broadcast and printed in at least 13 media outlets. Annex 1 of the Summary of Facts contains those details.
An unauthorized assembly did take place on 31 August 2019. By 12:35 pm, the 2nd defendant was videoed assembled together with large crowds at Southorn Playground and chanting political slogans; anti-government and anti-police slogans. The police use an amplifier and gave a “level 2A” warning to the crowds whilst a yellow warning flag was raised and displayed with the warning printed on it for all to see. The crowd was warned that the meeting was an unauthorized assembly and they may be prosecuted for a criminal offence.
Instead of dispersing, some members of the crowd approached the police with hostility and verbally abused as well as insulted those officers present. In order not to escalate rising emotions and to avoid any conflict, these police officers withdrew and return to Police Headquarters to guard that building and monitor the situation.
By 1 pm the crowds had swelled inside the Playground and by then the other 2 defendants, the 1st and 3rd defendants were present. During the whole day the 3 defendants were almost, at all times, together during the meeting and procession. The 3rd defendant was holding a placard and interviewed by a reporter in the Playground. He said that he knew the police had banned all marches that day but they had a right to march. They wanted to gather and protest for the 5 demands.
At 1:30 pm the procession began and the 3 defendants with a large number of participants marched to the Chinese Methodist Church and stayed there for a while blocking the carriageways of Johnston Road and Fenwick Street. They then marched to the Police Headquarters and blocked the junction of Fenwick Street and Hennessy Road as well as Lockhart Road and Arsenal Street. The 3rd defendant had to resort to directing traffic and reminding the crowds to beware of vehicles.
A 2nd warning was given from the steps of the Police Headquarters in light of the traffic disruption and crowds on the carriageways. The police gave another warning verbally and displayed a yellow flag. Despite this the defendants and others continued to occupy the carriageways. They did not disperse.
The 1st defendant was interviewed by reporters outside the Police Headquarters and stated he had come out that day in order to express the view that they would continue to fight for “5 demands”. He did not answer the question when asked if he was worried he may be arrested for participating in a procession.
In total on 4 occasions “Level 2B” warnings were given from the steps of the Police Headquarters with yellow flags raised at the same time. The 3 defendants together with hundreds then walked towards Queensway and occupied at least 2 carriageways outside Pacific Place making it difficult for vehicles to pass. Again the 3rd defendant had to direct traffic and the crowds with the assistance of the 2nd defendant.
The 1st defendant was interviewed again and said he was participating in the procession to show that Hong Kong citizens would not be intimidated by the actions of the police.
In the video footage when the defendants reached the junction of Garden Road and Queensway, the 2nd and 3rd defendants can be seen shouting at participants to go to St John’s Cathedral first. The crowds occupied the carriageways and affected traffic again. As participants followed directions, there was chanting of political slogans. The 3 defendants were last seen stood together outside St John’s Cathedral at about 2:25 pm singing religious songs.
From there, the police did not allow the procession to proceed towards Government House. Whilst others in the procession proceeded up Garden Road to attempt to go to Government House, the 3 defendants were no longer seen in the procession. The procession was directed away by the police.
At that point the police issued another verbal warning and raised a yellow flag. Whilst these warnings were given, the police again were subjected to abuse and insults by participants of the procession. There was even an attempt by a woman to break through the police cordon line but was unsuccessful.
All of the news footage and interviews as well as the police videos of the meeting at Southorn Playground and the public procession are attached to the Summary of Facts in Annex 2. All the relevant videos identifying the defendants, what they said to the press and what they said in speeches and slogans is in Annex 2. MFI-4 is a record of all of the video footage and what was played in open court.
It was admitted that during the public procession the crowds with the defendants walked on carriageways which caused serious disruption to the traffic. Vehicles including public transport were stuck on many roads around Wanchai, Queensway as well as Garden Road and Lower Albert Road. In fact, the traffic on Garden Road was affected until 8 pm that night.
The 1st defendant, Mr Lai Chee Ying and the 3rd defendant, Mr Lee Cheuk Yan were convicted by me on 1 April 2021 of organising and knowingly taking part in a public procession which was an unauthorized assembly on 18 August 2019, only 14 days before the unauthorized assembly of this charge.
Mitigation and background information of the defendants
The 1st defendant
The 1st defendant is now 73 years old and has no previous convictions. He was born in the Mainland and came to Hong Kong as a teenager by himself. He started from humble beginnings working as a handyman in a factory to become a self-made and successful businessman. He founded the retail brand Giordano. He sold his shares in that to focus on the media industry in the 1990s. He had by then founded “Next Digital Ltd” which later listed on the Hong Kong Stock Exchange.
He is married with 6 children and many grandchildren. In mitigation I have been urged to take into account that he has through his businesses made significant contributions to the media industry and the economy in Hong Kong. His more advanced age has been stressed as well as several medical conditions controlled by medication. Written mitigation is at MFI-1.
The 2nd defendant
The 2nd defendant is 72 years old and on the date of this offence had no previous convictions. After he was convicted of this sole charge on his own plea, he discharged his legal team to mitigate for himself. It was confirmed that his plea was unequivocal before I released his legal representation. Despite this, his counsel did inform me in open court that he was a Justice of the Peace and had been awarded the Silver Bauhinia Star in 2009. He is a married man with children. He was a teacher and then an Assistant Professor at the University of Hong Kong. He is still an Honorary Assistant Professor now after retirement. It is also well-known he served several terms as a Legislator and was actively involved with the Democratic Party and other pro-democracy parties.
It appeared his legal team was discharged because he did not want to put forward any mitigation. He did however want to make a statement. He read out in court a statement pertaining to why he broke the law, it is marked MFI-2. He pleaded guilty but would not plead for leniency because he had no remorse nor did anything wrong.
His motivation was civil disobedience. He wanted to protest against the Public Order Ordinance by means of civil disobedience. He participated because the right of demonstration and procession is constitutionally guaranteed. He also wanted to protest against the abuse of power by the police for prohibiting peaceful demonstrations and processions. He therefore defied the law in the name of civil disobedience in a peaceful manner. He had nothing to say in mitigation.
The 3rd defendant
The 3rd defendant is 64 years old and on the date of this offence had no previous convictions. He was a politician and was a serving member of the Legislature for many years. He founded and is still connected to the Labour Party. He is now the General Secretary of the Hong Kong Confederation of Trade Unions and Vice-chairman of the Labour Party.
He graduated from the University of Hong Kong in 1978 with a civil engineering degree. I have heard full mitigation, MFI-3, including a letter from the 3rd defendant read out in open court.
He too admits he broke the law but his motivation was like the 2nd defendant, civil disobedience. He pleaded guilty but does not admit he has done anything wrong in affirming the rights of Hong Kong people to peaceful procession. He too says he participated because the right of procession is constitutionally guaranteed. He too defied the law in the name of civil disobedience in a peaceful manner. I have read his letter and I know where he gets his inspiration from.
Mitigation
The 2nd and 3rd defendants do not express regret or admit wrongdoing because of their political beliefs or demands and are entitled to take or express this stance. Their political beliefs or demands are not my concern in sentencing. I have had the benefit of written submissions prepared by counsel and need not set it out here.
I do not agree with the submission in mitigation that they were just like any other participant that day answering a call to pray for sinners; that they were no different from any other person there. The 3 defendants are well known and stood out from the crowd. Protesters are seen following their directions as to traffic and route.
Civil Disobedience
The 2nd and 3rd defendants raise the concept of civil disobedience to justify their breaches of the law. This concept is recognised in the Courts of Hong Kong. The conscientious objections and genuine beliefs of a defendant may be taken into consideration as the motive for offending but the court will not evaluate the worthiness of any causes espoused by an offender. The weight to be attached to a motive will vary depending on the circumstances.
As the Court of Final Appeal said in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at para 75 that it is not the task of the courts to take sides on issues that are political or to prefer one set of social or other values over another. In any event, the act of civil disobedience here was not expressly directed towards section 17A of the Public Order Ordinance as an unjust law but was committed in the course of protesting against the government and the police over several issues.
Principles of Sentencing
There are no prevailing guidelines or tariffs for sentences for the present charge that existed at the time of the offence. The great majority of the past cases with a similar offence do either involve a bind over order or a financial penalty but none of those cases referred to stem from the social unrest and turmoil of 2019.
Public order offences have been established as an exception to the general principle that a deterrent sentence should not be passed on a person with a clear record and I have referred myself to page 13, lines 4-9 of R v Nguyen Quang Thong & Ors (1992) 2 HKCLR 10. All defendants here had a clear record.
I have been referred to reasons for judgement arising from HKSAR v Chow Ting HCMA 374/2020, a bail application pending a magistracy appeal. I thank the prosecution for a translation of those reasons. There, Barnes J refused bail pending appeal for the applicant Chow Ting. She had been sentenced to 10 months’ imprisonment for incitement to knowingly take part in an unauthorized assembly and knowingly taking part in an unauthorized assembly.
The facts of that case are set out in those Reasons for Judgement and involve large crowds of protesters gathering first in the vicinity of the Central Government Offices on 21 June 2019 before more crowds proceeded to besiege the Police Headquarters. That was a day that ended in violence, conflict, damage to property, an attack on the police headquarters itself and its operation as well as severe traffic disruption until the early hours of the morning.
The relevance of that case and the Reasons for Judgement is because the learned Magistrate referred to the sentencing considerations and factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699; sentencing guidelines for offences of unlawful assembly.
Barnes J was only concerned with the application for bail pending appeal and not the appeal itself which is still to be heard but she did state the reasons why she found the applicant had failed to demonstrate that her appeal had a very high or reasonable prospect of success. More importantly, and relied on heavily by the prosecution here is that she agreed with the learned Magistrate and found nothing wrong with her “drawing on” the sentencing factors in Wong Chi Fung when deciding a custodial sentence was appropriate and said it was clearly far from being wrong in principle.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. In the context of unlawful assemblies involving violence, it was held by the court that the sentencing court’s main consideration is the punishment of the offender, as well as deterring others from breaking the law in a similar manner. These are the weighty factors and the offender’s personal circumstances will not be regarded as significant mitigation. The Court of Final Appeal endorsed those observations in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35.
The Court of Appeal found it necessary to expound on the principles on sentencing in unlawful assemblies that involved violence. In paragraph 108 Poon JA, as he then was, set out the sentencing principles applicable to the charges. Particularly, in paragraph 127 he stressed that the sentence imposed must be appropriate to the punishment of the offenders but also takes into account the factor of deterrence on the basic premise that public order must be maintained and reflects the gravamen of the offence of unlawful assembly.
In paragraph 135 he identified facts relevant and pertinent to unlawful assembly offences involving violence. But before that Poon JA discussed not only unlawful assembly involving violence but also unlawful assembly involving no actual violence.
In the judgement of Secretary for Justice v Chung Ka Ho CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen from Wong Chi Fung that cases that warrant the courts serious treatment include an unlawful assembly without actual violence, which could become imminent, given the overall circumstances. Essentially, the Court of Appeal said it is artificial and unreasonable to divide unlawful assemblies by violence when passing sentence; it all depends on the actual circumstances in each case. Equally, the Court of Appeal did not say deterrent sentences should not be imposed in the absence of actual violence.
The Court of Appeal in Chung Ka Ho at paragraph 55 point out that the factors identified by Poon JA in paragraph 135 in Wong Chi Fung can if adjusted, apply equally to unlawful assemblies with no violence. Therefore, it is not right to suggest that the judgement in Wong Chi Fung is solely applicable to unlawful assembly involving violence.
Although Wong Chi Fung involved an unlawful assembly involving violence, Barnes J saw nothing wrong with the magistrate drawing on the sentencing considerations because the charges in both Wong Chi Fung and Chow Ting were contrary to the Public Order Ordinance. Secondly the maximum penalty for those offences in those cases were the same. Thirdly both cases were of a similar nature in that they involved crowd gatherings and lastly those demonstrations and gatherings arose from social issues.
Although this case before me involves an unauthorized assembly on 31 August, if I take into account the overall circumstances, the social unrest witnessed from June 2019 that was as relentless as it was violent and disturbing then I find I can consider sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I too can draw on the sentencing principles in that authority but bear in mind this charge involves an unauthorised not an unlawful assembly.
The facts of this case and offence affected the public; members of the public not participating. There was traffic disruption and carriageways were blocked. By listing as a principle “meting out penalties”, the Court of Appeal were reiterating the obvious and that is any sentence imposed ought to be commensurate with the offence committed. One that reflects the seriousness of the offence and the culpability of the offender. The open condemnation factor is self-explanatory, the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender.
The factor of deterrence serves as a warning to others and prevents the offender from reoffending. The need for deterrent sentences cannot be limited to an unlawful assemblies or more serious public order offences. The need to consider a deterrent sentence will often depend on the prevailing circumstances at the time. In fact, all sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation of 2019.
The fact I draw on the aforesaid sentencing principles does not mean I am retrospectively imposing a more severe sentence based on new sentencing guidelines from the Court of Appeal in Wong Chi Fung.
Reasons for Sentence
This unauthorized procession was peacefully but we know from experience, in particular in those volatile months in 2019 that when a large number of demonstrators gather, emotions are likely to run high which means those situations have an inherent risk of breaking out into violence.
It is a serious factor that despite that risk and knowing the Commissioner of Police had banned all meetings and processions of the CHRF that day and why, the defendants went to join with others in Southorn Playground to participate in a procession and ignore the ban and reasons for it.
An unauthorized assembly was planned in advance to protest against the government and the police, calling it a “Pray for sinners” march. All 3 defendants made a conscious decision to take part in it and to then deliberately ignore all the police verbal warnings and flags telling them to disperse or face prosecution.
It was deliberately provocative and inflammatory, in light of the prevailing social unrest and previous attacks on the Police Headquarters to specifically march there. The Police Headquarters was not a church so the insinuation according to the theme and route of the procession was that the police were sinners.
Their decision to participate and their decision to ignore the numerous police warnings, because of who they are, may have encouraged others to participate and believe they can break the law with impunity. People can be influenced by their peers to adopt certain behaviour and follow certain actions. Influential people can draw a crowd and can wield a certain influence.
This is why after careful consideration of the above principles and factors; I find an immediate term of imprisonment the only appropriate sentencing option. This offence was committed deliberately and intentionally at a time when there were incidents of social unrest almost daily. They chose to participate in yet another unauthorised assembly with a significant crowd when they must have known the chances were high of more violence erupting.
The background and facts of this case call for a custodial sentence. I have referred myself to Wong Chi Fung at paragraph 172 where what Pang JA said is applicable to this case and the circumstances that were prevailing in Hong Kong at that time. That is even though the charge was more serious. I quote;
“172. I agree with the judgements of Yeung VP and Poon JA. The more one feels about an issue, the more one wishes to press one’s point and the more one desires that there should be progress in the matter. This is all very understandable. However, if in the course of advocating one’s demand, one is given to the position that some long and well established law is but an unreasonable restriction on the right to freedom of expression, plus indulging one in the self-satisfaction of having broken the law as one pleases, that is not a situation which would on any ground enable the courts to pass unduly lenient sentences. An offender who is inflicted with such an attitude not only breaks the law in conduct, but in his mind too he harbours contempt and regards himself as being above the law. With respect to controversial matters of public debate where emotions are easily stirred, the grave consequences of such an attitude gaining ground are self-evident. …”
Starting Point and Sentence
I have taken into account all mitigation put forward on behalf of the defendants and although the 2nd defendant did not put forward any personal mitigation for the court to consider, I did have information placed before me pertaining to his positive good character.
I have borne in mind the offence, facts of the case and the relevant sentencing principles referred to above in particular deterrence. I stress the fact this offence was committed deliberately and intentionally at a time when there were frequent and prevailing incidents of social unrest and violence. It was a direct challenge to law and order despite a ban from the Commissioner of Police.
After all matters are taken into consideration including the fact the procession was peaceful, in my judgement, the starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas less than a week before their trial commenced. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% to the starting point for their pleas. This reduces the starting point to a sentence of 9 months’ imprisonment.
That discount for a guilty plea has an allowance for a clear record built into it. Unless there is more, such as evidence of positive good character then, there should be no further discount for a clear record. All the defendants here had a clear record at the time of the offence.
The 1st defendant
The 1st defendant is 73 years old. I have heard mitigation relating to that and his health. I will give the 1st defendant a further reduction of one month for these factors which would bring the sentence down to 8 months’ imprisonment.
I can see no reason to reduce that sentence any further. Therefore, I sentence the 1st defendant to 8 months’ imprisonment.
The 2nd defendant
The 2nd defendant is 72 years old. I will give the 2nd defendant a further reduction of one month for that factor. This brings his sentence down to 8 months’ imprisonment.
He wants no leniency from this court as he says his actions were to protect his right of assembly and an act of civil disobedience. Certainly the civil disobedience was non-violent. I have taken account what he said in MFI-2 but much of his statement and grievances relate to what happened in Hong Kong after he committed this offence.
Other than his service as a Legislator for many years, the 2nd defendant is known for his dedication to education and social work especially at the grassroots level. His Silver Bauhinia Star Award under the honours system of Hong Kong means he was recognised for either taking a leading role in public affairs or voluntary work over a long period of time for the good of Hong Kong.
I find that award to be evidence of exceptional public service and commitment therefore, that fact as well as his age gives me a valid reason to suspend that 8-month term of imprisonment.
I sentence the 2nd defendant to 8 months’ imprisonment suspended for 12 months.
The 2nd defendant is warned that if he is convicted of an offence punishable by imprisonment in the following 12 months from today then he will almost certainly serve this term of 8 months.
The 3rd defendant
The 3rd defendant is 64 years old. From information received, I have considered his commitment and contribution to public service especially where the welfare of workers is concerned. Such service deserves recognition and for that I give the 3rd defendant a further discount of 3 months.
I can see no reason to reduce that sentence any further. Therefore, I sentence the 3rd defendant to 6 months’ imprisonment.
( A J Woodcock )
District Judge
DCCC 536/2020
胡雅文
區院
不認罪
罪成
73
組織未經批准集結
判囚
12
維園
DCCC 536/2020
[2021] HKDC 457
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 536 OF 2020
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HKSAR
v
LAI CHEE YING (D1)
LEE CHEUK YAN (D2)
NG NGOI YEE MARGARET (D3)
LEUNG KWOK HUNG (D4)
HO SAU LAN CYD (D5)
HO CHUN YAN (D6)
LEUNG YIU CHUNG (D7)
LEE CHU MING MARTIN (D8)
AU NOK HIN (D9)
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Before: Her Honour Judge A J Woodcock in Court
Date: 16 April 2021
Present: Ms Priscilia T Y Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Public Prosecutor, for HKSAR/Director of Public Prosecutions
Ms Audrey Eu, S C and Mr Edwin W B Choy, S C leading Mr Jeffrey C K Tam and Mr Ernie Tung instructed by Robertsons for the 1st defendant
Mr Philip J Dykes, S C leading Mr Chris C L Ng, Mr Christopher P H Kan and Mr Timothy R Wong instructed by JCC Cheung & Co for the 2nd & 5th defendants
Mr Ambrose Ho, S C leading Isaac C K Chan instructed by Ho Tse Wai & Partners for the 3rd defendant
Mr Hectar H Pun, S C leading Mr Anson Wong Yu Yat instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 4th defendant
Mr Graham Harris, S C and Mr Lawrence Lok, S C leading Ms Po Wing Kay, Mr Geoffrey Yeung and Mr Simon Kwok instructed by Ho Tse Wai & Partners for the 6th & 8th defendants
Mr Paul Harris, S C leading Ms Jacqueline H Y Lam, instructed by K B Chau & Co for the 7th defendant
Mr Man Ho Ching of Ho Tse Wai & Partners for the 9th defendant
Offence: [1] Organizing an unauthorized assembly（組織一個未經批准集結）
[2] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結）
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REASONS FOR SENTENCE
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I delivered my verdict on 1 April 2021 and convicted all defendants except D7 and D9 after trial of organising an unauthorised assembly under section 17A(3)(b)(i) and knowingly taking part in an unauthorised assembly under section 17A(3)(a) of the Public Order Ordinance, Cap 245, Charges 1 and 2.
D9 had indicated his intention to plead guilty to these 2 charges at the earliest opportunity and I convicted him after his plea on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
D7 indicated his plea of guilty to charge 2 after the trial was set down but before the 1st day commenced. The prosecution did not proceed with charge 1 and it was kept on the court file. D7 was convicted of charge 2 on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
The facts
My findings of fact are set out in full in my verdict. I do not intend to repeat the facts of the case nor my findings.
I found that the defendants had organised and knowingly taken part in a public procession from Victoria Park to Chater Road Central on 18 August 2019 when that public procession had been objected to by the Commissioner of Police and that objection upheld by a subsequent Appeal Board hearing.
I found the public procession constituted an unauthorised assembly by consisting of more than 30 people and being organised for a common purpose which was to “stop the police and gangsters from plunging Hong Kong into chaos, implement the 5 demands”.
All the defendants organized and formed the head of a procession carrying a long banner displaying the common purpose and led thousands of participants from Victoria Park at about 3pm to walk to Chater Road. The timing of it and the route they took mirrored the public procession banned by the Commissioner of police.
I found the defendants deliberately defied the law and circumvented the ban by alleging they acted on the invitation and instructions of the organisers of the authorised public meeting in Victoria Park, the Civil Human Rights Front, the CHRF, to assist in their dispersal plan of participants. The CHRF had described their method of dispersal of participants as a water flow meeting for the sole purpose of facilitating the ingress and egress of participants only.
I found the defendants had no reasonable excuse or lawful authority for taking part in an unauthorised assembly. I found no evidence of police tacit consent or implied authority for the CHRF to handle the dispersal of participants in this manner.
I found it was not a dispersal plan implemented with the assistance of the defendants but a planned unauthorised assembly to challenge the authority of the Police. It was planned in advance, announced in advance but those interviewed stopped short of admitting a plan to break the law. Nevertheless, what was said very publicly before the 18 August and what was organised on 18 August was irrefutable evidence when viewed as a whole of a premeditated intention to commit these offences.
This intention was succinctly verbalised by a Hong Kong-based singer and actress interviewed by a news channel immediately after the banner was laid down by the defendants on Chater Road outside the Court of Final Appeal at what was declared as the end of the procession. In exhibit P35, a media outlet “HK01” interviewed this participant in the procession at 4:48pm and she explained the procession was a way to get around the ban.
This interviewee said there was no choice but to use a different method if a public procession was not allowed. She said it showed how flexible and elastic Hong Kong people were if banned. It was not a public procession but only people leaving Victoria Park. She was not speaking for the defendants but it shows a participant knew it was not a dispersal plan for safety reasons.
I found the unauthorised assembly caused citywide traffic disruptions and road closures far beyond the vicinity of Victoria Park and the authorised public meeting. The evidence I accepted which was not disputed showed road closures late into the evening that would have affected traffic and road users. Many forms of public transport were either disrupted or diverted on both sides of the Harbour.
The Constitutional challenges on a systemic and operational level also failed. There was no successful challenge to the constitutionality of section 17A or its sanctions. There was no action taken on the day by the police that was excessive or without tolerance in mind.
I have heard full mitigation on behalf of all the defendants. The reality is that for all of these defendants before me, bar none, their reputations and careers are well known to all in Hong Kong. Many have provided me with a significant number of mitigation letters. I have read and taken them into account.
Background information of the defendants
The 1st defendant
The 1st defendant is now 73 years old and has no previous convictions. He was born in the Mainland and came to Hong Kong as a teenager by himself. He started from humble beginnings working as a handyman in a factory to become a self-made and successful businessman. He founded the retail brand Giordano. He sold his shares in that to focus on the media industry in the 1990s. He had by then founded “Next Digital Ltd” which later listed on the Hong Kong stock exchange. His mitigation submitted is at MFI-10.
He is married with 6 children and many grandchildren. In mitigation I have been urged to take into account that he has through his businesses made significant contributions to the media industry and the economy in Hong Kong. His more advanced age has been stressed as well as several medical conditions controlled by medication.
The 2nd defendant
The 2nd defendant is 64 years old and has no previous convictions. He graduated from the University of Hong Kong in 1978 with a bachelor of civil engineering degree. He was a politician and was a serving member of the legislature for many years.
He founded and is still connected to the Labour Party. He is now the general secretary of the Hong Kong Federation of Trade Unions and vice chairman of the Labour Party. His background and career in public service was provided to me in mitigation in open court.
The 3rd defendant
The 3rd defendant is 73 years old and she has no previous convictions. She is a barrister and politician who devoted 18 years to public service and the legal functional constituency. She is also a well-known journalist and author in Hong Kong. After retirement from the legislative Council in 2012 she dedicated her time to fighting for racial equality, serving the underprivileged, ethnic minorities and in particular, seeking equitable education for ethnic minority children.
To pursue those aims and give her time to those causes, the 3rd defendant has been a member and then Chair of the Executive Committee of Hong Kong Unison. I have had many letters of mitigation from highly respected members of the Hong Kong community. They make for impressive reading. Her mitigation submitted is at MFI-11.
She decided to discharge her legal representatives before mitigation and spoke for herself. I have taken on board all she has said. A copy of what she said is at MFI-11A.
The 4th defendant
The 4th defendant is now 65 years old. He too has been a member of the legislative Council for 12 years. He has many previous convictions, 17 in total with 3 similar to charges 1 and 2. All his other criminal convictions involve offences of a similar nature and many relate to public order offences. None of his previous convictions were offences motivated by greed, corruption, anger or dishonesty.
I have had sight of a radiologists report detailing the results of a calcium scoring and CT coronary angiography. There is no medical diagnosis obviously in this report but I have been told that two out of three heart blood vessels have blockages and he is on medication now. His mitigation submitted is at MFI-12.
The 5th defendant
The 5th defendant is now 66 years old and she has no previous convictions. She is a former legislator with many years’ service as well as a founding member of the Labour Party. She was appointed a Justice of the Peace in 2014. She too has devoted years to public service and I have had sight of numerous letters containing details of her commitment and support of many diverse sectors of society, from education resources for underprivileged children to sexual inequality. Her mitigation submitted is at MFI-13.
The 6th defendant
The 6th defendant is now 69 years old and has no previous convictions. He is a solicitor and founder of his own firm as well as a seasoned politician. He too is a former district councillor and legislative councillor with over 20 years’ service and has been a core member of the Democratic party.
He has campaigned for democracy and human rights for nearly 40 years and it is stressed always in a peaceful, rational and nonviolent manner. In written submissions the full details of his long career and commitment to public service is set out succinctly. His mitigation submitted is at MFI-14.
The 7th defendant
The 7th defendant is now 67 years old, pleaded guilty to charge 2 and has no previous convictions. He has served a lifetime of community and public service. The mitigation bundle prepared is detailed and contains a chronology of his career as a teacher, district board member then a member of the legislative Council. His contributions to Hong Kong and his campaigning for the underprivileged and minority groups are well-known. I have read the many impressive letters written on his behalf by respectable members of Hong Kong society from all walks of life.
The defendant is not a man who advocates violence. This is illustrated by a video of news footage of 1st July 2019 (Annex 3 of his mitigation bundle MFI-15) where he tries to get between rioters trying to break the glass doors of LEGCO. He opposed the attempt to enter the Legislative Council and tried to stop the crowds by standing in front of the glass doors but is bundled aside by black clad rioters.
The 8th defendant
The 8th defendant is 2 months’ shy of 83 years old and has no previous convictions. He is a leading Senior Counsel and served as the Chairman of the Hong Kong Bar Association. He is infamous for his distinguished legal career and pro bono work. He served as a member of the Hong Kong Basic Law Drafting Committee. He was one of the longest serving members of the Legislative Council; a service of over 22 years.
He has devoted much time and effort in serving the public and his constituency. He, like all the defendants here, is committed and dedicated to democracy and human rights. His mitigation submitted is at MFI-14.
The 9th defendant
The 9th defendant is now 33 years old and had no previous convictions at the time of the offence. I repeat he indicated his plea of guilty at the very earliest opportunity. He was a district councillor for 8 years and briefly a member of the Legislative Council as well as a lecturer in many tertiary educational institutions in Hong Kong. There are many letters of mitigation from friends and colleagues; they stress his public and community service should not be ignored. Many stress his peaceful, non-violent approach and principles. It is submitted his academic and social achievements are especially noteworthy as he is only 33 years old.
His substantial efforts in pursuing a career in academia and politics appear to be fading with his recent conviction of assaulting a police officer and other pending criminal charges. In his own mitigation letter he explains why he pleaded guilty, why he will no longer seek a career in politics and how he will seek to rebuild his life away from political activism. His mitigation submitted is at MFI-16.
Mitigation
I have heard full mitigation in open court and have the benefit of submissions prepared by counsel and need not set it out here.
All defendants submit that these charges and facts do not call for a custodial sentence. There are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been suggested that previous cases with similar charges have attracted financial penalties.
The call for a financial penalty is supported by the submission that the procession was peaceful with no violent incidents or conflicts arising. Severe sanctions are inappropriate and disproportionate. The disruption to the roads and public transport system was not severe nor wholly related to the unauthorised assembly. Much of the traffic congestion around Victoria Park was related to the authorised public meeting.
Principles of Sentencing
It is correct there are no prevailing guidelines or tariffs for sentences for the present charges. The great majority of the past cases with similar offences do either involve a bind over order or a financial penalty but none of those cases I have been referred to by the defence stem from the social unrest and turmoil of 2019 or anything like it.
Public order offences have been established as an exception to the general principle that a deterrent sentence should not be passed on a person with a clear record and I have referred myself to page 13 of R v Nguyen Quang Thong & Ors (1992) 2 HKCLR 10. All defendants here but the 4th defendant had a clear record.
I have been referred to reasons for judgement arising from HKSAR v Chow Ting HCMA 374/2020, a bail application pending a magistracy appeal. I thank the prosecution for a translation of those reasons. There, Barnes J refused bail pending appeal for the applicant Chow Ting. She had been sentenced to 10 months’ imprisonment for incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly.
The facts of that case are set out in those reasons for judgement and involve large crowds of protesters gathering first in the vicinity of the Central Government Offices on 21 June 2019 before more crowds proceeded to besiege the Police Headquarters. That was a day that ended in violence, conflict, damage to property, an attack on the police headquarters itself and its operation as well as severe traffic disruption until the early hours of the morning.
The relevance of that case and the reasons for judgement is because the learned Magistrate referred to the sentencing considerations and factors set out in the Secretary for Justice v Wong Chi Fung 2018 2 HKLRD 699; sentencing guidelines for offences of unlawful assembly.
Barnes J was only concerned with the application for bail pending appeal and not the appeal itself which is still to be heard but she did state the reasons why she found the applicant had failed to demonstrate that her appeal had a very high or reasonable prospect of success.
More importantly, and relied on heavily by the prosecution here is that she agreed with the learned magistrate and found nothing wrong with her “drawing on” the sentencing factors in Wong Chi Fung when deciding a custodial sentence was appropriate for an unauthorized assembly and said it was clearly far from being wrong in principle.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. In the context of unlawful assemblies involving violence, it was held by the court that the sentencing court’s main consideration is the punishment of the offender, as well as deterring others from breaking the law in a similar manner. These are the weighty factors and the offender’s personal circumstances will not be regarded as significant mitigation. The Court of Final Appeal endorsed those observations in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35.
The Court of Appeal found it necessary to expound on the principles on sentencing in unlawful assemblies that involved violence. In paragraph 108 Poon JA, as he then was, set out the sentencing principles applicable to the charges. Particularly, in paragraph 127 he stressed that the sentence imposed must be appropriate to the punishment of the offenders but also takes into account the factor of deterrence on the basic premise that public order must be maintained and reflects the gravamen of the offence of unlawful assembly.
In paragraph 135 he identified facts relevant and pertinent to unlawful assembly offences involving violence. But before that Poon JA discussed not only unlawful assembly involving violence but also unlawful assembly involving no actual violence.
In the judgement of Secretary for Justice v Chung Ka Ho CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen from Wong Chi Fung that cases that warrant the courts serious treatment include an unlawful assembly without actual violence, which could become imminent, given the overall circumstances. Essentially, the Court of Appeal said it is artificial and unreasonable to divide unlawful assemblies by violence when passing sentence; it all depends on the actual circumstances in each case. Equally, the Court of Appeal did not say deterrent sentences should not be imposed in the absence of actual violence.
The Court of Appeal in Chung Ka Ho at paragraph 55 point out that the factors identified by Poon JA in paragraph 135 in Wong Chi Fung can if adjusted, apply equally to unlawful assemblies with no violence. Therefore, it is not right to suggest that the judgement in Wong Chi Fung is solely applicable to unlawful assembly involving violence.
Although Wong Chi Fung involved an unlawful assembly involving violence, Barnes J saw nothing wrong with the magistrate drawing on the sentencing considerations because the charges in both Wong Chi Fung and Chow Ting were contrary to the Public Order Ordinance. Secondly the maximum penalty for those offences in those cases were the same. Thirdly both cases were of a similar nature in that they involved crowd gatherings and lastly those demonstrations and gatherings arose from social issues.
Although this case before me involves an unauthorised assembly on 18 August, if I take into account the overall circumstances, the social unrest witnessed from June 2019 that was as relentless as it was violent and disturbing then I find I can and should consider sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I too can draw on the sentencing principles in that authority but bear in mind these charges involve an unauthorised not an unlawful assembly.
The facts of this case and offences affected the public; members of the public not participating. There was widespread traffic and public transport disruption. By identifying as a principle “meting out penalties”, the Court of Appeal were reiterating the obvious and that is any sentence imposed ought to be commensurate with the offence committed. One that reflects the seriousness of the offence and the culpability of the offender. The open condemnation factor is self-explanatory, the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender.
The factor of deterrence serves as a warning to others and prevents the offender from reoffending. The need for deterrent sentences cannot be limited to an unlawful assembly or more serious public order offences. The need to consider a deterrent sentence will often depend on the prevailing circumstances at the time. In fact, all sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation of 2019.
The fact that I draw on the aforesaid sentencing principles does not mean I am retrospectively imposing a more severe sentence based on new sentencing guidelines from the Court of Appeal in Wong Chi Fung.
Reasons for Sentence
I repeat here as I said in my verdict that the Basic Law guarantees freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional. Those freedoms are enjoyed subject to those restrictions irrespective of a defendant’s politics. The common purpose of the procession as well as the politics and stance of any participant that day on 18 August 2019 are irrelevant to sentencing just as they were irrelevant to the legal issues that arose during the trial.
This unauthorised procession did proceed peacefully but we know from experience, in particular in those volatile months in 2019 that when a large number of demonstrators gather, emotions are likely to run high which means those situations have an inherent latent risk of breaking out into violence.
We know from the prosecution witnesses that the police were most concerned that unruly elements may be present amongst peaceful protesters who would seize the opportunity to achieve the very objective of inciting or brewing violence. The police then decided to be invisible so as not to provide an opportunity or an excuse for conflict.
The present case involved a direct challenge to the authority of the police, law and order. The Commissioner of Police had banned a public procession and a 2nd public meeting but authorised a meeting in Victoria Park. In a police conference an explanation was given why consent was not forthcoming to the CHRF.
Yet, despite that and the risk above, the defendants went on to organise it; all defendants were well known figures that together as the head of a procession were guaranteed to draw a crowd and followers. Influential people can draw a crowd and can wield a certain influence.
The fact that these particular defendants made a conscious decision to break the law and challenge public order in this manner during such volatile times was serious. That I find an aggravating factor or the gravamen of these facts I found proved. Actions have consequences for everyone irrespective of who they are. This is more so when I have a duty in sentencing to ensure public order.
In addition, I take into account the background behind the commission of these offences. I take into account my finding that the unauthorised assembly was premeditated with prior planning to thwart the police ban. It was made known that there was a plan to circumvent the ban despite calling the procession a dispersal plan or water flow meeting. There were many prior calls publicly for as many people as possible to jam pack Victoria Park and to participate in this water flow meeting. It was no coincident that the dispersal plan mirrored the timing and route of the banned procession.
The scale of the unauthorised assembly is relevant; the procession from Victoria Park to Chater Gardens was on a massive scale and long-lasting. That is notwithstanding I accept there would have been disruptions in the vicinity of Victoria Park from the authorized public meeting. Moreover, as I have noted above, taking into account the circumstances prevailing in Hong Kong at that time, a procession of that size posed an inherent latent risk of possible violence.
Therefore, the procession may have been peaceful but there was a significant degree of disruption to roads for hours and public transport routes that stretched across the harbour.
As a result, and after careful consideration of the above principles and factors as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
The fact all but the 7th and 9th defendant were convicted after trial as well as being a premeditated and direct challenge to law and order when emotions were running so high in Hong Kong means a community service order would not be appropriate.
The background and facts of this case call for a custodial sentence. I have referred myself to Wong Chi Fung at paragraph 172 where what Pang JA said is applicable to this case and the circumstances that were prevailing in Hong Kong at that time. That is even though the charge there was more serious. I quote;
“172. I agree with the judgements of Yeung VP and Poon JA. The more one feels about an issue, the more one wishes to press one’s point and the more one desires that there should be progress in the matter. This is all very understandable. However, if in the course of advocating one’s demand, one is given to the position that some long and well established law is but an unreasonable restriction on the right to freedom of expression, plus indulging one in the self-satisfaction of having broken the law as one pleases, that is not a situation which would on any ground enable the courts to pass unduly lenient sentences. An offender who is inflicted with such an attitude not only breaks the law in conduct, but in his mind too he harbours contempt and regards himself as being above the law. With respect to controversial matters of public debate where emotions are easily stirred, the grave consequences of such an attitude gaining ground are self-evident…”
I have taken into account the facts, the mitigation and all submissions put forward on behalf of all defendants. I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
Having said that, where applicable and because it was a peaceful assembly, the positive good character of some defendants, the even more significant and worthy public service from others will be taken into account. It is impossible to list the individual significant commitment and contributions of some to the law, society, children, the underprivileged, minority groups, education issues, sexual and racial equality but it is weighty.
I also say here that I intend to make the sentences for Charges 1 and 2 concurrent for every defendant in light of the facts, close nature of the charges and totality principle.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, organising an unauthorised assembly, I do differentiate between some of the defendants. I made it clear in my verdict that the evidence showed that the 2nd, 4th and 9th defendant appeared at press conferences, either immediately after the CHRF appeal was dismissed or the following day, 17 August 2019, in Victoria Park and were very vocal. I won’t repeat what they said but I found they encouraged crowds to come to “jam pack” Victoria Park and insinuated there would be a procession out of there despite the police ban. What they and in particular, the 4th defendant had to say almost amounted to a rallying cry.
After all relevant factors are taken into consideration, in my judgement, for the 2nd, 4th and 9th defendant a starting point of 18 months’ imprisonment is appropriate.
For the remaining defendants, in my judgement, a starting point of 15 months’ imprisonment is appropriate.
Charge 2 – Starting Point
I find all defendants equally culpable in knowingly taking part in this unauthorised assembly. It is true some walked in silence, some replied to political slogans and others took the lead to chant those slogans but I do not differentiate between them for the purposes of this offence.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
Reductions
I am aware that a clear record is not significant mitigation where public order offences are concerned nor are personal mitigating circumstances where deterrent sentences are to be imposed. Nevertheless, in light of the more advanced ages of most of the defendants here and their public service to Hong Kong, I cannot ignore this type of mitigation altogether.
The 1st defendant
I have considered his age, clear record and health issues. The 1st defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
Therefore, the 1st defendant is sentenced to 12 months’ imprisonment for charge 1 and 9 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 2nd defendant
I have considered his age and clear record. For that, the 2nd defendant is given a three-month reduction from the 18 months and 12 months of charges 1 and 2 respectively.
From information provided today, I have considered his commitment and contribution to public service especially where the welfare of workers is concerned. Such service deserves recognition and for that I give the 2nd defendant a further discount of 3 months.
Therefore, the 2nd defendant is sentenced to 12 months’ imprisonment for charge 1 and 6 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 3rd defendant
I have considered her age of 73, clear record as well as her exceptional and obvious commitment over decades to public service. Not only is she a person of positive good character, but an altruist; her dedication to the community when a legislator and in her retirement is worthy of note. I am impressed by the letters referring to her lifelong dedication and contributions.
Against that background of her age and exceptional public service, I find there to be valid reason and justification to suspend the terms of imprisonment I have imposed. I first reduce the 15 months of charge 1 and 12 months of charge 2 by 3 months.
After that reduction is applied, the 3rd defendant is sentenced to 12 months for charge 1 and 9 months for charge 2. Both to be served concurrently. Both those sentences are suspended for 24 months.
Therefore, the 3rd defendant is sentenced to a total of 12 months’ imprisonment suspended for 24 months.
The 3rd defendant is warned that if she is convicted of an offence punishable by imprisonment in the following 24 months from today then she will most certainly serve this twelve-month term of imprisonment.
The 4th defendant
I have considered his age and health. It appears his ailment is under control with medication; I am not informed otherwise. The 4th defendant has a good number of previous convictions; he does not have the benefit of a clear record. However, I have considered the nature of his previous convictions and do not impose a heavier sentence on the 4th defendant on account of his criminal record.
What it does mean is that I see no reason to reduce the sentences any further. Therefore, for the reasons given, the 4th defendant is sentenced to 18 months’ imprisonment for charge 1 and 12 months’ imprisonment for charge 2, to be served concurrently; a total of 18 months’ imprisonment.
The 5th defendant
I have considered her age and clear record. The 5th defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
From the information I have, she too can be described as a person of positive good character. By that I
DCCC 536/2020
胡雅文
區院
不認罪
罪成
64
組織未經批准集結
判囚
12
維園
DCCC 536/2020
[2021] HKDC 457
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 536 OF 2020
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HKSAR
v
LAI CHEE YING (D1)
LEE CHEUK YAN (D2)
NG NGOI YEE MARGARET (D3)
LEUNG KWOK HUNG (D4)
HO SAU LAN CYD (D5)
HO CHUN YAN (D6)
LEUNG YIU CHUNG (D7)
LEE CHU MING MARTIN (D8)
AU NOK HIN (D9)
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 16 April 2021
Present: Ms Priscilia T Y Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Public Prosecutor, for HKSAR/Director of Public Prosecutions
Ms Audrey Eu, S C and Mr Edwin W B Choy, S C leading Mr Jeffrey C K Tam and Mr Ernie Tung instructed by Robertsons for the 1st defendant
Mr Philip J Dykes, S C leading Mr Chris C L Ng, Mr Christopher P H Kan and Mr Timothy R Wong instructed by JCC Cheung & Co for the 2nd & 5th defendants
Mr Ambrose Ho, S C leading Isaac C K Chan instructed by Ho Tse Wai & Partners for the 3rd defendant
Mr Hectar H Pun, S C leading Mr Anson Wong Yu Yat instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 4th defendant
Mr Graham Harris, S C and Mr Lawrence Lok, S C leading Ms Po Wing Kay, Mr Geoffrey Yeung and Mr Simon Kwok instructed by Ho Tse Wai & Partners for the 6th & 8th defendants
Mr Paul Harris, S C leading Ms Jacqueline H Y Lam, instructed by K B Chau & Co for the 7th defendant
Mr Man Ho Ching of Ho Tse Wai & Partners for the 9th defendant
Offence: [1] Organizing an unauthorized assembly（組織一個未經批准集結）
[2] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結）
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REASONS FOR SENTENCE
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I delivered my verdict on 1 April 2021 and convicted all defendants except D7 and D9 after trial of organising an unauthorised assembly under section 17A(3)(b)(i) and knowingly taking part in an unauthorised assembly under section 17A(3)(a) of the Public Order Ordinance, Cap 245, Charges 1 and 2.
D9 had indicated his intention to plead guilty to these 2 charges at the earliest opportunity and I convicted him after his plea on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
D7 indicated his plea of guilty to charge 2 after the trial was set down but before the 1st day commenced. The prosecution did not proceed with charge 1 and it was kept on the court file. D7 was convicted of charge 2 on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
The facts
My findings of fact are set out in full in my verdict. I do not intend to repeat the facts of the case nor my findings.
I found that the defendants had organised and knowingly taken part in a public procession from Victoria Park to Chater Road Central on 18 August 2019 when that public procession had been objected to by the Commissioner of Police and that objection upheld by a subsequent Appeal Board hearing.
I found the public procession constituted an unauthorised assembly by consisting of more than 30 people and being organised for a common purpose which was to “stop the police and gangsters from plunging Hong Kong into chaos, implement the 5 demands”.
All the defendants organized and formed the head of a procession carrying a long banner displaying the common purpose and led thousands of participants from Victoria Park at about 3pm to walk to Chater Road. The timing of it and the route they took mirrored the public procession banned by the Commissioner of police.
I found the defendants deliberately defied the law and circumvented the ban by alleging they acted on the invitation and instructions of the organisers of the authorised public meeting in Victoria Park, the Civil Human Rights Front, the CHRF, to assist in their dispersal plan of participants. The CHRF had described their method of dispersal of participants as a water flow meeting for the sole purpose of facilitating the ingress and egress of participants only.
I found the defendants had no reasonable excuse or lawful authority for taking part in an unauthorised assembly. I found no evidence of police tacit consent or implied authority for the CHRF to handle the dispersal of participants in this manner.
I found it was not a dispersal plan implemented with the assistance of the defendants but a planned unauthorised assembly to challenge the authority of the Police. It was planned in advance, announced in advance but those interviewed stopped short of admitting a plan to break the law. Nevertheless, what was said very publicly before the 18 August and what was organised on 18 August was irrefutable evidence when viewed as a whole of a premeditated intention to commit these offences.
This intention was succinctly verbalised by a Hong Kong-based singer and actress interviewed by a news channel immediately after the banner was laid down by the defendants on Chater Road outside the Court of Final Appeal at what was declared as the end of the procession. In exhibit P35, a media outlet “HK01” interviewed this participant in the procession at 4:48pm and she explained the procession was a way to get around the ban.
This interviewee said there was no choice but to use a different method if a public procession was not allowed. She said it showed how flexible and elastic Hong Kong people were if banned. It was not a public procession but only people leaving Victoria Park. She was not speaking for the defendants but it shows a participant knew it was not a dispersal plan for safety reasons.
I found the unauthorised assembly caused citywide traffic disruptions and road closures far beyond the vicinity of Victoria Park and the authorised public meeting. The evidence I accepted which was not disputed showed road closures late into the evening that would have affected traffic and road users. Many forms of public transport were either disrupted or diverted on both sides of the Harbour.
The Constitutional challenges on a systemic and operational level also failed. There was no successful challenge to the constitutionality of section 17A or its sanctions. There was no action taken on the day by the police that was excessive or without tolerance in mind.
I have heard full mitigation on behalf of all the defendants. The reality is that for all of these defendants before me, bar none, their reputations and careers are well known to all in Hong Kong. Many have provided me with a significant number of mitigation letters. I have read and taken them into account.
Background information of the defendants
The 1st defendant
The 1st defendant is now 73 years old and has no previous convictions. He was born in the Mainland and came to Hong Kong as a teenager by himself. He started from humble beginnings working as a handyman in a factory to become a self-made and successful businessman. He founded the retail brand Giordano. He sold his shares in that to focus on the media industry in the 1990s. He had by then founded “Next Digital Ltd” which later listed on the Hong Kong stock exchange. His mitigation submitted is at MFI-10.
He is married with 6 children and many grandchildren. In mitigation I have been urged to take into account that he has through his businesses made significant contributions to the media industry and the economy in Hong Kong. His more advanced age has been stressed as well as several medical conditions controlled by medication.
The 2nd defendant
The 2nd defendant is 64 years old and has no previous convictions. He graduated from the University of Hong Kong in 1978 with a bachelor of civil engineering degree. He was a politician and was a serving member of the legislature for many years.
He founded and is still connected to the Labour Party. He is now the general secretary of the Hong Kong Federation of Trade Unions and vice chairman of the Labour Party. His background and career in public service was provided to me in mitigation in open court.
The 3rd defendant
The 3rd defendant is 73 years old and she has no previous convictions. She is a barrister and politician who devoted 18 years to public service and the legal functional constituency. She is also a well-known journalist and author in Hong Kong. After retirement from the legislative Council in 2012 she dedicated her time to fighting for racial equality, serving the underprivileged, ethnic minorities and in particular, seeking equitable education for ethnic minority children.
To pursue those aims and give her time to those causes, the 3rd defendant has been a member and then Chair of the Executive Committee of Hong Kong Unison. I have had many letters of mitigation from highly respected members of the Hong Kong community. They make for impressive reading. Her mitigation submitted is at MFI-11.
She decided to discharge her legal representatives before mitigation and spoke for herself. I have taken on board all she has said. A copy of what she said is at MFI-11A.
The 4th defendant
The 4th defendant is now 65 years old. He too has been a member of the legislative Council for 12 years. He has many previous convictions, 17 in total with 3 similar to charges 1 and 2. All his other criminal convictions involve offences of a similar nature and many relate to public order offences. None of his previous convictions were offences motivated by greed, corruption, anger or dishonesty.
I have had sight of a radiologists report detailing the results of a calcium scoring and CT coronary angiography. There is no medical diagnosis obviously in this report but I have been told that two out of three heart blood vessels have blockages and he is on medication now. His mitigation submitted is at MFI-12.
The 5th defendant
The 5th defendant is now 66 years old and she has no previous convictions. She is a former legislator with many years’ service as well as a founding member of the Labour Party. She was appointed a Justice of the Peace in 2014. She too has devoted years to public service and I have had sight of numerous letters containing details of her commitment and support of many diverse sectors of society, from education resources for underprivileged children to sexual inequality. Her mitigation submitted is at MFI-13.
The 6th defendant
The 6th defendant is now 69 years old and has no previous convictions. He is a solicitor and founder of his own firm as well as a seasoned politician. He too is a former district councillor and legislative councillor with over 20 years’ service and has been a core member of the Democratic party.
He has campaigned for democracy and human rights for nearly 40 years and it is stressed always in a peaceful, rational and nonviolent manner. In written submissions the full details of his long career and commitment to public service is set out succinctly. His mitigation submitted is at MFI-14.
The 7th defendant
The 7th defendant is now 67 years old, pleaded guilty to charge 2 and has no previous convictions. He has served a lifetime of community and public service. The mitigation bundle prepared is detailed and contains a chronology of his career as a teacher, district board member then a member of the legislative Council. His contributions to Hong Kong and his campaigning for the underprivileged and minority groups are well-known. I have read the many impressive letters written on his behalf by respectable members of Hong Kong society from all walks of life.
The defendant is not a man who advocates violence. This is illustrated by a video of news footage of 1st July 2019 (Annex 3 of his mitigation bundle MFI-15) where he tries to get between rioters trying to break the glass doors of LEGCO. He opposed the attempt to enter the Legislative Council and tried to stop the crowds by standing in front of the glass doors but is bundled aside by black clad rioters.
The 8th defendant
The 8th defendant is 2 months’ shy of 83 years old and has no previous convictions. He is a leading Senior Counsel and served as the Chairman of the Hong Kong Bar Association. He is infamous for his distinguished legal career and pro bono work. He served as a member of the Hong Kong Basic Law Drafting Committee. He was one of the longest serving members of the Legislative Council; a service of over 22 years.
He has devoted much time and effort in serving the public and his constituency. He, like all the defendants here, is committed and dedicated to democracy and human rights. His mitigation submitted is at MFI-14.
The 9th defendant
The 9th defendant is now 33 years old and had no previous convictions at the time of the offence. I repeat he indicated his plea of guilty at the very earliest opportunity. He was a district councillor for 8 years and briefly a member of the Legislative Council as well as a lecturer in many tertiary educational institutions in Hong Kong. There are many letters of mitigation from friends and colleagues; they stress his public and community service should not be ignored. Many stress his peaceful, non-violent approach and principles. It is submitted his academic and social achievements are especially noteworthy as he is only 33 years old.
His substantial efforts in pursuing a career in academia and politics appear to be fading with his recent conviction of assaulting a police officer and other pending criminal charges. In his own mitigation letter he explains why he pleaded guilty, why he will no longer seek a career in politics and how he will seek to rebuild his life away from political activism. His mitigation submitted is at MFI-16.
Mitigation
I have heard full mitigation in open court and have the benefit of submissions prepared by counsel and need not set it out here.
All defendants submit that these charges and facts do not call for a custodial sentence. There are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been suggested that previous cases with similar charges have attracted financial penalties.
The call for a financial penalty is supported by the submission that the procession was peaceful with no violent incidents or conflicts arising. Severe sanctions are inappropriate and disproportionate. The disruption to the roads and public transport system was not severe nor wholly related to the unauthorised assembly. Much of the traffic congestion around Victoria Park was related to the authorised public meeting.
Principles of Sentencing
It is correct there are no prevailing guidelines or tariffs for sentences for the present charges. The great majority of the past cases with similar offences do either involve a bind over order or a financial penalty but none of those cases I have been referred to by the defence stem from the social unrest and turmoil of 2019 or anything like it.
Public order offences have been established as an exception to the general principle that a deterrent sentence should not be passed on a person with a clear record and I have referred myself to page 13 of R v Nguyen Quang Thong & Ors (1992) 2 HKCLR 10. All defendants here but the 4th defendant had a clear record.
I have been referred to reasons for judgement arising from HKSAR v Chow Ting HCMA 374/2020, a bail application pending a magistracy appeal. I thank the prosecution for a translation of those reasons. There, Barnes J refused bail pending appeal for the applicant Chow Ting. She had been sentenced to 10 months’ imprisonment for incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly.
The facts of that case are set out in those reasons for judgement and involve large crowds of protesters gathering first in the vicinity of the Central Government Offices on 21 June 2019 before more crowds proceeded to besiege the Police Headquarters. That was a day that ended in violence, conflict, damage to property, an attack on the police headquarters itself and its operation as well as severe traffic disruption until the early hours of the morning.
The relevance of that case and the reasons for judgement is because the learned Magistrate referred to the sentencing considerations and factors set out in the Secretary for Justice v Wong Chi Fung 2018 2 HKLRD 699; sentencing guidelines for offences of unlawful assembly.
Barnes J was only concerned with the application for bail pending appeal and not the appeal itself which is still to be heard but she did state the reasons why she found the applicant had failed to demonstrate that her appeal had a very high or reasonable prospect of success.
More importantly, and relied on heavily by the prosecution here is that she agreed with the learned magistrate and found nothing wrong with her “drawing on” the sentencing factors in Wong Chi Fung when deciding a custodial sentence was appropriate for an unauthorized assembly and said it was clearly far from being wrong in principle.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. In the context of unlawful assemblies involving violence, it was held by the court that the sentencing court’s main consideration is the punishment of the offender, as well as deterring others from breaking the law in a similar manner. These are the weighty factors and the offender’s personal circumstances will not be regarded as significant mitigation. The Court of Final Appeal endorsed those observations in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35.
The Court of Appeal found it necessary to expound on the principles on sentencing in unlawful assemblies that involved violence. In paragraph 108 Poon JA, as he then was, set out the sentencing principles applicable to the charges. Particularly, in paragraph 127 he stressed that the sentence imposed must be appropriate to the punishment of the offenders but also takes into account the factor of deterrence on the basic premise that public order must be maintained and reflects the gravamen of the offence of unlawful assembly.
In paragraph 135 he identified facts relevant and pertinent to unlawful assembly offences involving violence. But before that Poon JA discussed not only unlawful assembly involving violence but also unlawful assembly involving no actual violence.
In the judgement of Secretary for Justice v Chung Ka Ho CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen from Wong Chi Fung that cases that warrant the courts serious treatment include an unlawful assembly without actual violence, which could become imminent, given the overall circumstances. Essentially, the Court of Appeal said it is artificial and unreasonable to divide unlawful assemblies by violence when passing sentence; it all depends on the actual circumstances in each case. Equally, the Court of Appeal did not say deterrent sentences should not be imposed in the absence of actual violence.
The Court of Appeal in Chung Ka Ho at paragraph 55 point out that the factors identified by Poon JA in paragraph 135 in Wong Chi Fung can if adjusted, apply equally to unlawful assemblies with no violence. Therefore, it is not right to suggest that the judgement in Wong Chi Fung is solely applicable to unlawful assembly involving violence.
Although Wong Chi Fung involved an unlawful assembly involving violence, Barnes J saw nothing wrong with the magistrate drawing on the sentencing considerations because the charges in both Wong Chi Fung and Chow Ting were contrary to the Public Order Ordinance. Secondly the maximum penalty for those offences in those cases were the same. Thirdly both cases were of a similar nature in that they involved crowd gatherings and lastly those demonstrations and gatherings arose from social issues.
Although this case before me involves an unauthorised assembly on 18 August, if I take into account the overall circumstances, the social unrest witnessed from June 2019 that was as relentless as it was violent and disturbing then I find I can and should consider sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I too can draw on the sentencing principles in that authority but bear in mind these charges involve an unauthorised not an unlawful assembly.
The facts of this case and offences affected the public; members of the public not participating. There was widespread traffic and public transport disruption. By identifying as a principle “meting out penalties”, the Court of Appeal were reiterating the obvious and that is any sentence imposed ought to be commensurate with the offence committed. One that reflects the seriousness of the offence and the culpability of the offender. The open condemnation factor is self-explanatory, the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender.
The factor of deterrence serves as a warning to others and prevents the offender from reoffending. The need for deterrent sentences cannot be limited to an unlawful assembly or more serious public order offences. The need to consider a deterrent sentence will often depend on the prevailing circumstances at the time. In fact, all sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation of 2019.
The fact that I draw on the aforesaid sentencing principles does not mean I am retrospectively imposing a more severe sentence based on new sentencing guidelines from the Court of Appeal in Wong Chi Fung.
Reasons for Sentence
I repeat here as I said in my verdict that the Basic Law guarantees freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional. Those freedoms are enjoyed subject to those restrictions irrespective of a defendant’s politics. The common purpose of the procession as well as the politics and stance of any participant that day on 18 August 2019 are irrelevant to sentencing just as they were irrelevant to the legal issues that arose during the trial.
This unauthorised procession did proceed peacefully but we know from experience, in particular in those volatile months in 2019 that when a large number of demonstrators gather, emotions are likely to run high which means those situations have an inherent latent risk of breaking out into violence.
We know from the prosecution witnesses that the police were most concerned that unruly elements may be present amongst peaceful protesters who would seize the opportunity to achieve the very objective of inciting or brewing violence. The police then decided to be invisible so as not to provide an opportunity or an excuse for conflict.
The present case involved a direct challenge to the authority of the police, law and order. The Commissioner of Police had banned a public procession and a 2nd public meeting but authorised a meeting in Victoria Park. In a police conference an explanation was given why consent was not forthcoming to the CHRF.
Yet, despite that and the risk above, the defendants went on to organise it; all defendants were well known figures that together as the head of a procession were guaranteed to draw a crowd and followers. Influential people can draw a crowd and can wield a certain influence.
The fact that these particular defendants made a conscious decision to break the law and challenge public order in this manner during such volatile times was serious. That I find an aggravating factor or the gravamen of these facts I found proved. Actions have consequences for everyone irrespective of who they are. This is more so when I have a duty in sentencing to ensure public order.
In addition, I take into account the background behind the commission of these offences. I take into account my finding that the unauthorised assembly was premeditated with prior planning to thwart the police ban. It was made known that there was a plan to circumvent the ban despite calling the procession a dispersal plan or water flow meeting. There were many prior calls publicly for as many people as possible to jam pack Victoria Park and to participate in this water flow meeting. It was no coincident that the dispersal plan mirrored the timing and route of the banned procession.
The scale of the unauthorised assembly is relevant; the procession from Victoria Park to Chater Gardens was on a massive scale and long-lasting. That is notwithstanding I accept there would have been disruptions in the vicinity of Victoria Park from the authorized public meeting. Moreover, as I have noted above, taking into account the circumstances prevailing in Hong Kong at that time, a procession of that size posed an inherent latent risk of possible violence.
Therefore, the procession may have been peaceful but there was a significant degree of disruption to roads for hours and public transport routes that stretched across the harbour.
As a result, and after careful consideration of the above principles and factors as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
The fact all but the 7th and 9th defendant were convicted after trial as well as being a premeditated and direct challenge to law and order when emotions were running so high in Hong Kong means a community service order would not be appropriate.
The background and facts of this case call for a custodial sentence. I have referred myself to Wong Chi Fung at paragraph 172 where what Pang JA said is applicable to this case and the circumstances that were prevailing in Hong Kong at that time. That is even though the charge there was more serious. I quote;
“172. I agree with the judgements of Yeung VP and Poon JA. The more one feels about an issue, the more one wishes to press one’s point and the more one desires that there should be progress in the matter. This is all very understandable. However, if in the course of advocating one’s demand, one is given to the position that some long and well established law is but an unreasonable restriction on the right to freedom of expression, plus indulging one in the self-satisfaction of having broken the law as one pleases, that is not a situation which would on any ground enable the courts to pass unduly lenient sentences. An offender who is inflicted with such an attitude not only breaks the law in conduct, but in his mind too he harbours contempt and regards himself as being above the law. With respect to controversial matters of public debate where emotions are easily stirred, the grave consequences of such an attitude gaining ground are self-evident…”
I have taken into account the facts, the mitigation and all submissions put forward on behalf of all defendants. I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
Having said that, where applicable and because it was a peaceful assembly, the positive good character of some defendants, the even more significant and worthy public service from others will be taken into account. It is impossible to list the individual significant commitment and contributions of some to the law, society, children, the underprivileged, minority groups, education issues, sexual and racial equality but it is weighty.
I also say here that I intend to make the sentences for Charges 1 and 2 concurrent for every defendant in light of the facts, close nature of the charges and totality principle.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, organising an unauthorised assembly, I do differentiate between some of the defendants. I made it clear in my verdict that the evidence showed that the 2nd, 4th and 9th defendant appeared at press conferences, either immediately after the CHRF appeal was dismissed or the following day, 17 August 2019, in Victoria Park and were very vocal. I won’t repeat what they said but I found they encouraged crowds to come to “jam pack” Victoria Park and insinuated there would be a procession out of there despite the police ban. What they and in particular, the 4th defendant had to say almost amounted to a rallying cry.
After all relevant factors are taken into consideration, in my judgement, for the 2nd, 4th and 9th defendant a starting point of 18 months’ imprisonment is appropriate.
For the remaining defendants, in my judgement, a starting point of 15 months’ imprisonment is appropriate.
Charge 2 – Starting Point
I find all defendants equally culpable in knowingly taking part in this unauthorised assembly. It is true some walked in silence, some replied to political slogans and others took the lead to chant those slogans but I do not differentiate between them for the purposes of this offence.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
Reductions
I am aware that a clear record is not significant mitigation where public order offences are concerned nor are personal mitigating circumstances where deterrent sentences are to be imposed. Nevertheless, in light of the more advanced ages of most of the defendants here and their public service to Hong Kong, I cannot ignore this type of mitigation altogether.
The 1st defendant
I have considered his age, clear record and health issues. The 1st defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
Therefore, the 1st defendant is sentenced to 12 months’ imprisonment for charge 1 and 9 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 2nd defendant
I have considered his age and clear record. For that, the 2nd defendant is given a three-month reduction from the 18 months and 12 months of charges 1 and 2 respectively.
From information provided today, I have considered his commitment and contribution to public service especially where the welfare of workers is concerned. Such service deserves recognition and for that I give the 2nd defendant a further discount of 3 months.
Therefore, the 2nd defendant is sentenced to 12 months’ imprisonment for charge 1 and 6 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 3rd defendant
I have considered her age of 73, clear record as well as her exceptional and obvious commitment over decades to public service. Not only is she a person of positive good character, but an altruist; her dedication to the community when a legislator and in her retirement is worthy of note. I am impressed by the letters referring to her lifelong dedication and contributions.
Against that background of her age and exceptional public service, I find there to be valid reason and justification to suspend the terms of imprisonment I have imposed. I first reduce the 15 months of charge 1 and 12 months of charge 2 by 3 months.
After that reduction is applied, the 3rd defendant is sentenced to 12 months for charge 1 and 9 months for charge 2. Both to be served concurrently. Both those sentences are suspended for 24 months.
Therefore, the 3rd defendant is sentenced to a total of 12 months’ imprisonment suspended for 24 months.
The 3rd defendant is warned that if she is convicted of an offence punishable by imprisonment in the following 24 months from today then she will most certainly serve this twelve-month term of imprisonment.
The 4th defendant
I have considered his age and health. It appears his ailment is under control with medication; I am not informed otherwise. The 4th defendant has a good number of previous convictions; he does not have the benefit of a clear record. However, I have considered the nature of his previous convictions and do not impose a heavier sentence on the 4th defendant on account of his criminal record.
What it does mean is that I see no reason to reduce the sentences any further. Therefore, for the reasons given, the 4th defendant is sentenced to 18 months’ imprisonment for charge 1 and 12 months’ imprisonment for charge 2, to be served concurrently; a total of 18 months’ imprisonment.
The 5th defendant
I have considered her age and clear record. The 5th defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
From the information I have, she too can be described as a person of positive good character. By that I
DCCC 536/2020
胡雅文
區院
不認罪
罪成
65
組織未經批准集結
判囚
18
維園
DCCC 536/2020
[2021] HKDC 457
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 536 OF 2020
—————————–
HKSAR
v
LAI CHEE YING (D1)
LEE CHEUK YAN (D2)
NG NGOI YEE MARGARET (D3)
LEUNG KWOK HUNG (D4)
HO SAU LAN CYD (D5)
HO CHUN YAN (D6)
LEUNG YIU CHUNG (D7)
LEE CHU MING MARTIN (D8)
AU NOK HIN (D9)
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 16 April 2021
Present: Ms Priscilia T Y Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Public Prosecutor, for HKSAR/Director of Public Prosecutions
Ms Audrey Eu, S C and Mr Edwin W B Choy, S C leading Mr Jeffrey C K Tam and Mr Ernie Tung instructed by Robertsons for the 1st defendant
Mr Philip J Dykes, S C leading Mr Chris C L Ng, Mr Christopher P H Kan and Mr Timothy R Wong instructed by JCC Cheung & Co for the 2nd & 5th defendants
Mr Ambrose Ho, S C leading Isaac C K Chan instructed by Ho Tse Wai & Partners for the 3rd defendant
Mr Hectar H Pun, S C leading Mr Anson Wong Yu Yat instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 4th defendant
Mr Graham Harris, S C and Mr Lawrence Lok, S C leading Ms Po Wing Kay, Mr Geoffrey Yeung and Mr Simon Kwok instructed by Ho Tse Wai & Partners for the 6th & 8th defendants
Mr Paul Harris, S C leading Ms Jacqueline H Y Lam, instructed by K B Chau & Co for the 7th defendant
Mr Man Ho Ching of Ho Tse Wai & Partners for the 9th defendant
Offence: [1] Organizing an unauthorized assembly（組織一個未經批准集結）
[2] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結）
—————————————–
REASONS FOR SENTENCE
—————————————–
I delivered my verdict on 1 April 2021 and convicted all defendants except D7 and D9 after trial of organising an unauthorised assembly under section 17A(3)(b)(i) and knowingly taking part in an unauthorised assembly under section 17A(3)(a) of the Public Order Ordinance, Cap 245, Charges 1 and 2.
D9 had indicated his intention to plead guilty to these 2 charges at the earliest opportunity and I convicted him after his plea on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
D7 indicated his plea of guilty to charge 2 after the trial was set down but before the 1st day commenced. The prosecution did not proceed with charge 1 and it was kept on the court file. D7 was convicted of charge 2 on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
The facts
My findings of fact are set out in full in my verdict. I do not intend to repeat the facts of the case nor my findings.
I found that the defendants had organised and knowingly taken part in a public procession from Victoria Park to Chater Road Central on 18 August 2019 when that public procession had been objected to by the Commissioner of Police and that objection upheld by a subsequent Appeal Board hearing.
I found the public procession constituted an unauthorised assembly by consisting of more than 30 people and being organised for a common purpose which was to “stop the police and gangsters from plunging Hong Kong into chaos, implement the 5 demands”.
All the defendants organized and formed the head of a procession carrying a long banner displaying the common purpose and led thousands of participants from Victoria Park at about 3pm to walk to Chater Road. The timing of it and the route they took mirrored the public procession banned by the Commissioner of police.
I found the defendants deliberately defied the law and circumvented the ban by alleging they acted on the invitation and instructions of the organisers of the authorised public meeting in Victoria Park, the Civil Human Rights Front, the CHRF, to assist in their dispersal plan of participants. The CHRF had described their method of dispersal of participants as a water flow meeting for the sole purpose of facilitating the ingress and egress of participants only.
I found the defendants had no reasonable excuse or lawful authority for taking part in an unauthorised assembly. I found no evidence of police tacit consent or implied authority for the CHRF to handle the dispersal of participants in this manner.
I found it was not a dispersal plan implemented with the assistance of the defendants but a planned unauthorised assembly to challenge the authority of the Police. It was planned in advance, announced in advance but those interviewed stopped short of admitting a plan to break the law. Nevertheless, what was said very publicly before the 18 August and what was organised on 18 August was irrefutable evidence when viewed as a whole of a premeditated intention to commit these offences.
This intention was succinctly verbalised by a Hong Kong-based singer and actress interviewed by a news channel immediately after the banner was laid down by the defendants on Chater Road outside the Court of Final Appeal at what was declared as the end of the procession. In exhibit P35, a media outlet “HK01” interviewed this participant in the procession at 4:48pm and she explained the procession was a way to get around the ban.
This interviewee said there was no choice but to use a different method if a public procession was not allowed. She said it showed how flexible and elastic Hong Kong people were if banned. It was not a public procession but only people leaving Victoria Park. She was not speaking for the defendants but it shows a participant knew it was not a dispersal plan for safety reasons.
I found the unauthorised assembly caused citywide traffic disruptions and road closures far beyond the vicinity of Victoria Park and the authorised public meeting. The evidence I accepted which was not disputed showed road closures late into the evening that would have affected traffic and road users. Many forms of public transport were either disrupted or diverted on both sides of the Harbour.
The Constitutional challenges on a systemic and operational level also failed. There was no successful challenge to the constitutionality of section 17A or its sanctions. There was no action taken on the day by the police that was excessive or without tolerance in mind.
I have heard full mitigation on behalf of all the defendants. The reality is that for all of these defendants before me, bar none, their reputations and careers are well known to all in Hong Kong. Many have provided me with a significant number of mitigation letters. I have read and taken them into account.
Background information of the defendants
The 1st defendant
The 1st defendant is now 73 years old and has no previous convictions. He was born in the Mainland and came to Hong Kong as a teenager by himself. He started from humble beginnings working as a handyman in a factory to become a self-made and successful businessman. He founded the retail brand Giordano. He sold his shares in that to focus on the media industry in the 1990s. He had by then founded “Next Digital Ltd” which later listed on the Hong Kong stock exchange. His mitigation submitted is at MFI-10.
He is married with 6 children and many grandchildren. In mitigation I have been urged to take into account that he has through his businesses made significant contributions to the media industry and the economy in Hong Kong. His more advanced age has been stressed as well as several medical conditions controlled by medication.
The 2nd defendant
The 2nd defendant is 64 years old and has no previous convictions. He graduated from the University of Hong Kong in 1978 with a bachelor of civil engineering degree. He was a politician and was a serving member of the legislature for many years.
He founded and is still connected to the Labour Party. He is now the general secretary of the Hong Kong Federation of Trade Unions and vice chairman of the Labour Party. His background and career in public service was provided to me in mitigation in open court.
The 3rd defendant
The 3rd defendant is 73 years old and she has no previous convictions. She is a barrister and politician who devoted 18 years to public service and the legal functional constituency. She is also a well-known journalist and author in Hong Kong. After retirement from the legislative Council in 2012 she dedicated her time to fighting for racial equality, serving the underprivileged, ethnic minorities and in particular, seeking equitable education for ethnic minority children.
To pursue those aims and give her time to those causes, the 3rd defendant has been a member and then Chair of the Executive Committee of Hong Kong Unison. I have had many letters of mitigation from highly respected members of the Hong Kong community. They make for impressive reading. Her mitigation submitted is at MFI-11.
She decided to discharge her legal representatives before mitigation and spoke for herself. I have taken on board all she has said. A copy of what she said is at MFI-11A.
The 4th defendant
The 4th defendant is now 65 years old. He too has been a member of the legislative Council for 12 years. He has many previous convictions, 17 in total with 3 similar to charges 1 and 2. All his other criminal convictions involve offences of a similar nature and many relate to public order offences. None of his previous convictions were offences motivated by greed, corruption, anger or dishonesty.
I have had sight of a radiologists report detailing the results of a calcium scoring and CT coronary angiography. There is no medical diagnosis obviously in this report but I have been told that two out of three heart blood vessels have blockages and he is on medication now. His mitigation submitted is at MFI-12.
The 5th defendant
The 5th defendant is now 66 years old and she has no previous convictions. She is a former legislator with many years’ service as well as a founding member of the Labour Party. She was appointed a Justice of the Peace in 2014. She too has devoted years to public service and I have had sight of numerous letters containing details of her commitment and support of many diverse sectors of society, from education resources for underprivileged children to sexual inequality. Her mitigation submitted is at MFI-13.
The 6th defendant
The 6th defendant is now 69 years old and has no previous convictions. He is a solicitor and founder of his own firm as well as a seasoned politician. He too is a former district councillor and legislative councillor with over 20 years’ service and has been a core member of the Democratic party.
He has campaigned for democracy and human rights for nearly 40 years and it is stressed always in a peaceful, rational and nonviolent manner. In written submissions the full details of his long career and commitment to public service is set out succinctly. His mitigation submitted is at MFI-14.
The 7th defendant
The 7th defendant is now 67 years old, pleaded guilty to charge 2 and has no previous convictions. He has served a lifetime of community and public service. The mitigation bundle prepared is detailed and contains a chronology of his career as a teacher, district board member then a member of the legislative Council. His contributions to Hong Kong and his campaigning for the underprivileged and minority groups are well-known. I have read the many impressive letters written on his behalf by respectable members of Hong Kong society from all walks of life.
The defendant is not a man who advocates violence. This is illustrated by a video of news footage of 1st July 2019 (Annex 3 of his mitigation bundle MFI-15) where he tries to get between rioters trying to break the glass doors of LEGCO. He opposed the attempt to enter the Legislative Council and tried to stop the crowds by standing in front of the glass doors but is bundled aside by black clad rioters.
The 8th defendant
The 8th defendant is 2 months’ shy of 83 years old and has no previous convictions. He is a leading Senior Counsel and served as the Chairman of the Hong Kong Bar Association. He is infamous for his distinguished legal career and pro bono work. He served as a member of the Hong Kong Basic Law Drafting Committee. He was one of the longest serving members of the Legislative Council; a service of over 22 years.
He has devoted much time and effort in serving the public and his constituency. He, like all the defendants here, is committed and dedicated to democracy and human rights. His mitigation submitted is at MFI-14.
The 9th defendant
The 9th defendant is now 33 years old and had no previous convictions at the time of the offence. I repeat he indicated his plea of guilty at the very earliest opportunity. He was a district councillor for 8 years and briefly a member of the Legislative Council as well as a lecturer in many tertiary educational institutions in Hong Kong. There are many letters of mitigation from friends and colleagues; they stress his public and community service should not be ignored. Many stress his peaceful, non-violent approach and principles. It is submitted his academic and social achievements are especially noteworthy as he is only 33 years old.
His substantial efforts in pursuing a career in academia and politics appear to be fading with his recent conviction of assaulting a police officer and other pending criminal charges. In his own mitigation letter he explains why he pleaded guilty, why he will no longer seek a career in politics and how he will seek to rebuild his life away from political activism. His mitigation submitted is at MFI-16.
Mitigation
I have heard full mitigation in open court and have the benefit of submissions prepared by counsel and need not set it out here.
All defendants submit that these charges and facts do not call for a custodial sentence. There are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been suggested that previous cases with similar charges have attracted financial penalties.
The call for a financial penalty is supported by the submission that the procession was peaceful with no violent incidents or conflicts arising. Severe sanctions are inappropriate and disproportionate. The disruption to the roads and public transport system was not severe nor wholly related to the unauthorised assembly. Much of the traffic congestion around Victoria Park was related to the authorised public meeting.
Principles of Sentencing
It is correct there are no prevailing guidelines or tariffs for sentences for the present charges. The great majority of the past cases with similar offences do either involve a bind over order or a financial penalty but none of those cases I have been referred to by the defence stem from the social unrest and turmoil of 2019 or anything like it.
Public order offences have been established as an exception to the general principle that a deterrent sentence should not be passed on a person with a clear record and I have referred myself to page 13 of R v Nguyen Quang Thong & Ors (1992) 2 HKCLR 10. All defendants here but the 4th defendant had a clear record.
I have been referred to reasons for judgement arising from HKSAR v Chow Ting HCMA 374/2020, a bail application pending a magistracy appeal. I thank the prosecution for a translation of those reasons. There, Barnes J refused bail pending appeal for the applicant Chow Ting. She had been sentenced to 10 months’ imprisonment for incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly.
The facts of that case are set out in those reasons for judgement and involve large crowds of protesters gathering first in the vicinity of the Central Government Offices on 21 June 2019 before more crowds proceeded to besiege the Police Headquarters. That was a day that ended in violence, conflict, damage to property, an attack on the police headquarters itself and its operation as well as severe traffic disruption until the early hours of the morning.
The relevance of that case and the reasons for judgement is because the learned Magistrate referred to the sentencing considerations and factors set out in the Secretary for Justice v Wong Chi Fung 2018 2 HKLRD 699; sentencing guidelines for offences of unlawful assembly.
Barnes J was only concerned with the application for bail pending appeal and not the appeal itself which is still to be heard but she did state the reasons why she found the applicant had failed to demonstrate that her appeal had a very high or reasonable prospect of success.
More importantly, and relied on heavily by the prosecution here is that she agreed with the learned magistrate and found nothing wrong with her “drawing on” the sentencing factors in Wong Chi Fung when deciding a custodial sentence was appropriate for an unauthorized assembly and said it was clearly far from being wrong in principle.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. In the context of unlawful assemblies involving violence, it was held by the court that the sentencing court’s main consideration is the punishment of the offender, as well as deterring others from breaking the law in a similar manner. These are the weighty factors and the offender’s personal circumstances will not be regarded as significant mitigation. The Court of Final Appeal endorsed those observations in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35.
The Court of Appeal found it necessary to expound on the principles on sentencing in unlawful assemblies that involved violence. In paragraph 108 Poon JA, as he then was, set out the sentencing principles applicable to the charges. Particularly, in paragraph 127 he stressed that the sentence imposed must be appropriate to the punishment of the offenders but also takes into account the factor of deterrence on the basic premise that public order must be maintained and reflects the gravamen of the offence of unlawful assembly.
In paragraph 135 he identified facts relevant and pertinent to unlawful assembly offences involving violence. But before that Poon JA discussed not only unlawful assembly involving violence but also unlawful assembly involving no actual violence.
In the judgement of Secretary for Justice v Chung Ka Ho CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen from Wong Chi Fung that cases that warrant the courts serious treatment include an unlawful assembly without actual violence, which could become imminent, given the overall circumstances. Essentially, the Court of Appeal said it is artificial and unreasonable to divide unlawful assemblies by violence when passing sentence; it all depends on the actual circumstances in each case. Equally, the Court of Appeal did not say deterrent sentences should not be imposed in the absence of actual violence.
The Court of Appeal in Chung Ka Ho at paragraph 55 point out that the factors identified by Poon JA in paragraph 135 in Wong Chi Fung can if adjusted, apply equally to unlawful assemblies with no violence. Therefore, it is not right to suggest that the judgement in Wong Chi Fung is solely applicable to unlawful assembly involving violence.
Although Wong Chi Fung involved an unlawful assembly involving violence, Barnes J saw nothing wrong with the magistrate drawing on the sentencing considerations because the charges in both Wong Chi Fung and Chow Ting were contrary to the Public Order Ordinance. Secondly the maximum penalty for those offences in those cases were the same. Thirdly both cases were of a similar nature in that they involved crowd gatherings and lastly those demonstrations and gatherings arose from social issues.
Although this case before me involves an unauthorised assembly on 18 August, if I take into account the overall circumstances, the social unrest witnessed from June 2019 that was as relentless as it was violent and disturbing then I find I can and should consider sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I too can draw on the sentencing principles in that authority but bear in mind these charges involve an unauthorised not an unlawful assembly.
The facts of this case and offences affected the public; members of the public not participating. There was widespread traffic and public transport disruption. By identifying as a principle “meting out penalties”, the Court of Appeal were reiterating the obvious and that is any sentence imposed ought to be commensurate with the offence committed. One that reflects the seriousness of the offence and the culpability of the offender. The open condemnation factor is self-explanatory, the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender.
The factor of deterrence serves as a warning to others and prevents the offender from reoffending. The need for deterrent sentences cannot be limited to an unlawful assembly or more serious public order offences. The need to consider a deterrent sentence will often depend on the prevailing circumstances at the time. In fact, all sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation of 2019.
The fact that I draw on the aforesaid sentencing principles does not mean I am retrospectively imposing a more severe sentence based on new sentencing guidelines from the Court of Appeal in Wong Chi Fung.
Reasons for Sentence
I repeat here as I said in my verdict that the Basic Law guarantees freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional. Those freedoms are enjoyed subject to those restrictions irrespective of a defendant’s politics. The common purpose of the procession as well as the politics and stance of any participant that day on 18 August 2019 are irrelevant to sentencing just as they were irrelevant to the legal issues that arose during the trial.
This unauthorised procession did proceed peacefully but we know from experience, in particular in those volatile months in 2019 that when a large number of demonstrators gather, emotions are likely to run high which means those situations have an inherent latent risk of breaking out into violence.
We know from the prosecution witnesses that the police were most concerned that unruly elements may be present amongst peaceful protesters who would seize the opportunity to achieve the very objective of inciting or brewing violence. The police then decided to be invisible so as not to provide an opportunity or an excuse for conflict.
The present case involved a direct challenge to the authority of the police, law and order. The Commissioner of Police had banned a public procession and a 2nd public meeting but authorised a meeting in Victoria Park. In a police conference an explanation was given why consent was not forthcoming to the CHRF.
Yet, despite that and the risk above, the defendants went on to organise it; all defendants were well known figures that together as the head of a procession were guaranteed to draw a crowd and followers. Influential people can draw a crowd and can wield a certain influence.
The fact that these particular defendants made a conscious decision to break the law and challenge public order in this manner during such volatile times was serious. That I find an aggravating factor or the gravamen of these facts I found proved. Actions have consequences for everyone irrespective of who they are. This is more so when I have a duty in sentencing to ensure public order.
In addition, I take into account the background behind the commission of these offences. I take into account my finding that the unauthorised assembly was premeditated with prior planning to thwart the police ban. It was made known that there was a plan to circumvent the ban despite calling the procession a dispersal plan or water flow meeting. There were many prior calls publicly for as many people as possible to jam pack Victoria Park and to participate in this water flow meeting. It was no coincident that the dispersal plan mirrored the timing and route of the banned procession.
The scale of the unauthorised assembly is relevant; the procession from Victoria Park to Chater Gardens was on a massive scale and long-lasting. That is notwithstanding I accept there would have been disruptions in the vicinity of Victoria Park from the authorized public meeting. Moreover, as I have noted above, taking into account the circumstances prevailing in Hong Kong at that time, a procession of that size posed an inherent latent risk of possible violence.
Therefore, the procession may have been peaceful but there was a significant degree of disruption to roads for hours and public transport routes that stretched across the harbour.
As a result, and after careful consideration of the above principles and factors as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
The fact all but the 7th and 9th defendant were convicted after trial as well as being a premeditated and direct challenge to law and order when emotions were running so high in Hong Kong means a community service order would not be appropriate.
The background and facts of this case call for a custodial sentence. I have referred myself to Wong Chi Fung at paragraph 172 where what Pang JA said is applicable to this case and the circumstances that were prevailing in Hong Kong at that time. That is even though the charge there was more serious. I quote;
“172. I agree with the judgements of Yeung VP and Poon JA. The more one feels about an issue, the more one wishes to press one’s point and the more one desires that there should be progress in the matter. This is all very understandable. However, if in the course of advocating one’s demand, one is given to the position that some long and well established law is but an unreasonable restriction on the right to freedom of expression, plus indulging one in the self-satisfaction of having broken the law as one pleases, that is not a situation which would on any ground enable the courts to pass unduly lenient sentences. An offender who is inflicted with such an attitude not only breaks the law in conduct, but in his mind too he harbours contempt and regards himself as being above the law. With respect to controversial matters of public debate where emotions are easily stirred, the grave consequences of such an attitude gaining ground are self-evident…”
I have taken into account the facts, the mitigation and all submissions put forward on behalf of all defendants. I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
Having said that, where applicable and because it was a peaceful assembly, the positive good character of some defendants, the even more significant and worthy public service from others will be taken into account. It is impossible to list the individual significant commitment and contributions of some to the law, society, children, the underprivileged, minority groups, education issues, sexual and racial equality but it is weighty.
I also say here that I intend to make the sentences for Charges 1 and 2 concurrent for every defendant in light of the facts, close nature of the charges and totality principle.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, organising an unauthorised assembly, I do differentiate between some of the defendants. I made it clear in my verdict that the evidence showed that the 2nd, 4th and 9th defendant appeared at press conferences, either immediately after the CHRF appeal was dismissed or the following day, 17 August 2019, in Victoria Park and were very vocal. I won’t repeat what they said but I found they encouraged crowds to come to “jam pack” Victoria Park and insinuated there would be a procession out of there despite the police ban. What they and in particular, the 4th defendant had to say almost amounted to a rallying cry.
After all relevant factors are taken into consideration, in my judgement, for the 2nd, 4th and 9th defendant a starting point of 18 months’ imprisonment is appropriate.
For the remaining defendants, in my judgement, a starting point of 15 months’ imprisonment is appropriate.
Charge 2 – Starting Point
I find all defendants equally culpable in knowingly taking part in this unauthorised assembly. It is true some walked in silence, some replied to political slogans and others took the lead to chant those slogans but I do not differentiate between them for the purposes of this offence.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
Reductions
I am aware that a clear record is not significant mitigation where public order offences are concerned nor are personal mitigating circumstances where deterrent sentences are to be imposed. Nevertheless, in light of the more advanced ages of most of the defendants here and their public service to Hong Kong, I cannot ignore this type of mitigation altogether.
The 1st defendant
I have considered his age, clear record and health issues. The 1st defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
Therefore, the 1st defendant is sentenced to 12 months’ imprisonment for charge 1 and 9 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 2nd defendant
I have considered his age and clear record. For that, the 2nd defendant is given a three-month reduction from the 18 months and 12 months of charges 1 and 2 respectively.
From information provided today, I have considered his commitment and contribution to public service especially where the welfare of workers is concerned. Such service deserves recognition and for that I give the 2nd defendant a further discount of 3 months.
Therefore, the 2nd defendant is sentenced to 12 months’ imprisonment for charge 1 and 6 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 3rd defendant
I have considered her age of 73, clear record as well as her exceptional and obvious commitment over decades to public service. Not only is she a person of positive good character, but an altruist; her dedication to the community when a legislator and in her retirement is worthy of note. I am impressed by the letters referring to her lifelong dedication and contributions.
Against that background of her age and exceptional public service, I find there to be valid reason and justification to suspend the terms of imprisonment I have imposed. I first reduce the 15 months of charge 1 and 12 months of charge 2 by 3 months.
After that reduction is applied, the 3rd defendant is sentenced to 12 months for charge 1 and 9 months for charge 2. Both to be served concurrently. Both those sentences are suspended for 24 months.
Therefore, the 3rd defendant is sentenced to a total of 12 months’ imprisonment suspended for 24 months.
The 3rd defendant is warned that if she is convicted of an offence punishable by imprisonment in the following 24 months from today then she will most certainly serve this twelve-month term of imprisonment.
The 4th defendant
I have considered his age and health. It appears his ailment is under control with medication; I am not informed otherwise. The 4th defendant has a good number of previous convictions; he does not have the benefit of a clear record. However, I have considered the nature of his previous convictions and do not impose a heavier sentence on the 4th defendant on account of his criminal record.
What it does mean is that I see no reason to reduce the sentences any further. Therefore, for the reasons given, the 4th defendant is sentenced to 18 months’ imprisonment for charge 1 and 12 months’ imprisonment for charge 2, to be served concurrently; a total of 18 months’ imprisonment.
The 5th defendant
I have considered her age and clear record. The 5th defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
From the information I have, she too can be described as a person of positive good character. By that I
DCCC 536/2020
胡雅文
區院
不認罪
罪成
66
組織未經批准集結
判囚
8
維園
DCCC 536/2020
[2021] HKDC 457
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 536 OF 2020
—————————–
HKSAR
v
LAI CHEE YING (D1)
LEE CHEUK YAN (D2)
NG NGOI YEE MARGARET (D3)
LEUNG KWOK HUNG (D4)
HO SAU LAN CYD (D5)
HO CHUN YAN (D6)
LEUNG YIU CHUNG (D7)
LEE CHU MING MARTIN (D8)
AU NOK HIN (D9)
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 16 April 2021
Present: Ms Priscilia T Y Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Public Prosecutor, for HKSAR/Director of Public Prosecutions
Ms Audrey Eu, S C and Mr Edwin W B Choy, S C leading Mr Jeffrey C K Tam and Mr Ernie Tung instructed by Robertsons for the 1st defendant
Mr Philip J Dykes, S C leading Mr Chris C L Ng, Mr Christopher P H Kan and Mr Timothy R Wong instructed by JCC Cheung & Co for the 2nd & 5th defendants
Mr Ambrose Ho, S C leading Isaac C K Chan instructed by Ho Tse Wai & Partners for the 3rd defendant
Mr Hectar H Pun, S C leading Mr Anson Wong Yu Yat instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 4th defendant
Mr Graham Harris, S C and Mr Lawrence Lok, S C leading Ms Po Wing Kay, Mr Geoffrey Yeung and Mr Simon Kwok instructed by Ho Tse Wai & Partners for the 6th & 8th defendants
Mr Paul Harris, S C leading Ms Jacqueline H Y Lam, instructed by K B Chau & Co for the 7th defendant
Mr Man Ho Ching of Ho Tse Wai & Partners for the 9th defendant
Offence: [1] Organizing an unauthorized assembly（組織一個未經批准集結）
[2] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結）
—————————————–
REASONS FOR SENTENCE
—————————————–
I delivered my verdict on 1 April 2021 and convicted all defendants except D7 and D9 after trial of organising an unauthorised assembly under section 17A(3)(b)(i) and knowingly taking part in an unauthorised assembly under section 17A(3)(a) of the Public Order Ordinance, Cap 245, Charges 1 and 2.
D9 had indicated his intention to plead guilty to these 2 charges at the earliest opportunity and I convicted him after his plea on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
D7 indicated his plea of guilty to charge 2 after the trial was set down but before the 1st day commenced. The prosecution did not proceed with charge 1 and it was kept on the court file. D7 was convicted of charge 2 on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
The facts
My findings of fact are set out in full in my verdict. I do not intend to repeat the facts of the case nor my findings.
I found that the defendants had organised and knowingly taken part in a public procession from Victoria Park to Chater Road Central on 18 August 2019 when that public procession had been objected to by the Commissioner of Police and that objection upheld by a subsequent Appeal Board hearing.
I found the public procession constituted an unauthorised assembly by consisting of more than 30 people and being organised for a common purpose which was to “stop the police and gangsters from plunging Hong Kong into chaos, implement the 5 demands”.
All the defendants organized and formed the head of a procession carrying a long banner displaying the common purpose and led thousands of participants from Victoria Park at about 3pm to walk to Chater Road. The timing of it and the route they took mirrored the public procession banned by the Commissioner of police.
I found the defendants deliberately defied the law and circumvented the ban by alleging they acted on the invitation and instructions of the organisers of the authorised public meeting in Victoria Park, the Civil Human Rights Front, the CHRF, to assist in their dispersal plan of participants. The CHRF had described their method of dispersal of participants as a water flow meeting for the sole purpose of facilitating the ingress and egress of participants only.
I found the defendants had no reasonable excuse or lawful authority for taking part in an unauthorised assembly. I found no evidence of police tacit consent or implied authority for the CHRF to handle the dispersal of participants in this manner.
I found it was not a dispersal plan implemented with the assistance of the defendants but a planned unauthorised assembly to challenge the authority of the Police. It was planned in advance, announced in advance but those interviewed stopped short of admitting a plan to break the law. Nevertheless, what was said very publicly before the 18 August and what was organised on 18 August was irrefutable evidence when viewed as a whole of a premeditated intention to commit these offences.
This intention was succinctly verbalised by a Hong Kong-based singer and actress interviewed by a news channel immediately after the banner was laid down by the defendants on Chater Road outside the Court of Final Appeal at what was declared as the end of the procession. In exhibit P35, a media outlet “HK01” interviewed this participant in the procession at 4:48pm and she explained the procession was a way to get around the ban.
This interviewee said there was no choice but to use a different method if a public procession was not allowed. She said it showed how flexible and elastic Hong Kong people were if banned. It was not a public procession but only people leaving Victoria Park. She was not speaking for the defendants but it shows a participant knew it was not a dispersal plan for safety reasons.
I found the unauthorised assembly caused citywide traffic disruptions and road closures far beyond the vicinity of Victoria Park and the authorised public meeting. The evidence I accepted which was not disputed showed road closures late into the evening that would have affected traffic and road users. Many forms of public transport were either disrupted or diverted on both sides of the Harbour.
The Constitutional challenges on a systemic and operational level also failed. There was no successful challenge to the constitutionality of section 17A or its sanctions. There was no action taken on the day by the police that was excessive or without tolerance in mind.
I have heard full mitigation on behalf of all the defendants. The reality is that for all of these defendants before me, bar none, their reputations and careers are well known to all in Hong Kong. Many have provided me with a significant number of mitigation letters. I have read and taken them into account.
Background information of the defendants
The 1st defendant
The 1st defendant is now 73 years old and has no previous convictions. He was born in the Mainland and came to Hong Kong as a teenager by himself. He started from humble beginnings working as a handyman in a factory to become a self-made and successful businessman. He founded the retail brand Giordano. He sold his shares in that to focus on the media industry in the 1990s. He had by then founded “Next Digital Ltd” which later listed on the Hong Kong stock exchange. His mitigation submitted is at MFI-10.
He is married with 6 children and many grandchildren. In mitigation I have been urged to take into account that he has through his businesses made significant contributions to the media industry and the economy in Hong Kong. His more advanced age has been stressed as well as several medical conditions controlled by medication.
The 2nd defendant
The 2nd defendant is 64 years old and has no previous convictions. He graduated from the University of Hong Kong in 1978 with a bachelor of civil engineering degree. He was a politician and was a serving member of the legislature for many years.
He founded and is still connected to the Labour Party. He is now the general secretary of the Hong Kong Federation of Trade Unions and vice chairman of the Labour Party. His background and career in public service was provided to me in mitigation in open court.
The 3rd defendant
The 3rd defendant is 73 years old and she has no previous convictions. She is a barrister and politician who devoted 18 years to public service and the legal functional constituency. She is also a well-known journalist and author in Hong Kong. After retirement from the legislative Council in 2012 she dedicated her time to fighting for racial equality, serving the underprivileged, ethnic minorities and in particular, seeking equitable education for ethnic minority children.
To pursue those aims and give her time to those causes, the 3rd defendant has been a member and then Chair of the Executive Committee of Hong Kong Unison. I have had many letters of mitigation from highly respected members of the Hong Kong community. They make for impressive reading. Her mitigation submitted is at MFI-11.
She decided to discharge her legal representatives before mitigation and spoke for herself. I have taken on board all she has said. A copy of what she said is at MFI-11A.
The 4th defendant
The 4th defendant is now 65 years old. He too has been a member of the legislative Council for 12 years. He has many previous convictions, 17 in total with 3 similar to charges 1 and 2. All his other criminal convictions involve offences of a similar nature and many relate to public order offences. None of his previous convictions were offences motivated by greed, corruption, anger or dishonesty.
I have had sight of a radiologists report detailing the results of a calcium scoring and CT coronary angiography. There is no medical diagnosis obviously in this report but I have been told that two out of three heart blood vessels have blockages and he is on medication now. His mitigation submitted is at MFI-12.
The 5th defendant
The 5th defendant is now 66 years old and she has no previous convictions. She is a former legislator with many years’ service as well as a founding member of the Labour Party. She was appointed a Justice of the Peace in 2014. She too has devoted years to public service and I have had sight of numerous letters containing details of her commitment and support of many diverse sectors of society, from education resources for underprivileged children to sexual inequality. Her mitigation submitted is at MFI-13.
The 6th defendant
The 6th defendant is now 69 years old and has no previous convictions. He is a solicitor and founder of his own firm as well as a seasoned politician. He too is a former district councillor and legislative councillor with over 20 years’ service and has been a core member of the Democratic party.
He has campaigned for democracy and human rights for nearly 40 years and it is stressed always in a peaceful, rational and nonviolent manner. In written submissions the full details of his long career and commitment to public service is set out succinctly. His mitigation submitted is at MFI-14.
The 7th defendant
The 7th defendant is now 67 years old, pleaded guilty to charge 2 and has no previous convictions. He has served a lifetime of community and public service. The mitigation bundle prepared is detailed and contains a chronology of his career as a teacher, district board member then a member of the legislative Council. His contributions to Hong Kong and his campaigning for the underprivileged and minority groups are well-known. I have read the many impressive letters written on his behalf by respectable members of Hong Kong society from all walks of life.
The defendant is not a man who advocates violence. This is illustrated by a video of news footage of 1st July 2019 (Annex 3 of his mitigation bundle MFI-15) where he tries to get between rioters trying to break the glass doors of LEGCO. He opposed the attempt to enter the Legislative Council and tried to stop the crowds by standing in front of the glass doors but is bundled aside by black clad rioters.
The 8th defendant
The 8th defendant is 2 months’ shy of 83 years old and has no previous convictions. He is a leading Senior Counsel and served as the Chairman of the Hong Kong Bar Association. He is infamous for his distinguished legal career and pro bono work. He served as a member of the Hong Kong Basic Law Drafting Committee. He was one of the longest serving members of the Legislative Council; a service of over 22 years.
He has devoted much time and effort in serving the public and his constituency. He, like all the defendants here, is committed and dedicated to democracy and human rights. His mitigation submitted is at MFI-14.
The 9th defendant
The 9th defendant is now 33 years old and had no previous convictions at the time of the offence. I repeat he indicated his plea of guilty at the very earliest opportunity. He was a district councillor for 8 years and briefly a member of the Legislative Council as well as a lecturer in many tertiary educational institutions in Hong Kong. There are many letters of mitigation from friends and colleagues; they stress his public and community service should not be ignored. Many stress his peaceful, non-violent approach and principles. It is submitted his academic and social achievements are especially noteworthy as he is only 33 years old.
His substantial efforts in pursuing a career in academia and politics appear to be fading with his recent conviction of assaulting a police officer and other pending criminal charges. In his own mitigation letter he explains why he pleaded guilty, why he will no longer seek a career in politics and how he will seek to rebuild his life away from political activism. His mitigation submitted is at MFI-16.
Mitigation
I have heard full mitigation in open court and have the benefit of submissions prepared by counsel and need not set it out here.
All defendants submit that these charges and facts do not call for a custodial sentence. There are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been suggested that previous cases with similar charges have attracted financial penalties.
The call for a financial penalty is supported by the submission that the procession was peaceful with no violent incidents or conflicts arising. Severe sanctions are inappropriate and disproportionate. The disruption to the roads and public transport system was not severe nor wholly related to the unauthorised assembly. Much of the traffic congestion around Victoria Park was related to the authorised public meeting.
Principles of Sentencing
It is correct there are no prevailing guidelines or tariffs for sentences for the present charges. The great majority of the past cases with similar offences do either involve a bind over order or a financial penalty but none of those cases I have been referred to by the defence stem from the social unrest and turmoil of 2019 or anything like it.
Public order offences have been established as an exception to the general principle that a deterrent sentence should not be passed on a person with a clear record and I have referred myself to page 13 of R v Nguyen Quang Thong & Ors (1992) 2 HKCLR 10. All defendants here but the 4th defendant had a clear record.
I have been referred to reasons for judgement arising from HKSAR v Chow Ting HCMA 374/2020, a bail application pending a magistracy appeal. I thank the prosecution for a translation of those reasons. There, Barnes J refused bail pending appeal for the applicant Chow Ting. She had been sentenced to 10 months’ imprisonment for incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly.
The facts of that case are set out in those reasons for judgement and involve large crowds of protesters gathering first in the vicinity of the Central Government Offices on 21 June 2019 before more crowds proceeded to besiege the Police Headquarters. That was a day that ended in violence, conflict, damage to property, an attack on the police headquarters itself and its operation as well as severe traffic disruption until the early hours of the morning.
The relevance of that case and the reasons for judgement is because the learned Magistrate referred to the sentencing considerations and factors set out in the Secretary for Justice v Wong Chi Fung 2018 2 HKLRD 699; sentencing guidelines for offences of unlawful assembly.
Barnes J was only concerned with the application for bail pending appeal and not the appeal itself which is still to be heard but she did state the reasons why she found the applicant had failed to demonstrate that her appeal had a very high or reasonable prospect of success.
More importantly, and relied on heavily by the prosecution here is that she agreed with the learned magistrate and found nothing wrong with her “drawing on” the sentencing factors in Wong Chi Fung when deciding a custodial sentence was appropriate for an unauthorized assembly and said it was clearly far from being wrong in principle.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. In the context of unlawful assemblies involving violence, it was held by the court that the sentencing court’s main consideration is the punishment of the offender, as well as deterring others from breaking the law in a similar manner. These are the weighty factors and the offender’s personal circumstances will not be regarded as significant mitigation. The Court of Final Appeal endorsed those observations in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35.
The Court of Appeal found it necessary to expound on the principles on sentencing in unlawful assemblies that involved violence. In paragraph 108 Poon JA, as he then was, set out the sentencing principles applicable to the charges. Particularly, in paragraph 127 he stressed that the sentence imposed must be appropriate to the punishment of the offenders but also takes into account the factor of deterrence on the basic premise that public order must be maintained and reflects the gravamen of the offence of unlawful assembly.
In paragraph 135 he identified facts relevant and pertinent to unlawful assembly offences involving violence. But before that Poon JA discussed not only unlawful assembly involving violence but also unlawful assembly involving no actual violence.
In the judgement of Secretary for Justice v Chung Ka Ho CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen from Wong Chi Fung that cases that warrant the courts serious treatment include an unlawful assembly without actual violence, which could become imminent, given the overall circumstances. Essentially, the Court of Appeal said it is artificial and unreasonable to divide unlawful assemblies by violence when passing sentence; it all depends on the actual circumstances in each case. Equally, the Court of Appeal did not say deterrent sentences should not be imposed in the absence of actual violence.
The Court of Appeal in Chung Ka Ho at paragraph 55 point out that the factors identified by Poon JA in paragraph 135 in Wong Chi Fung can if adjusted, apply equally to unlawful assemblies with no violence. Therefore, it is not right to suggest that the judgement in Wong Chi Fung is solely applicable to unlawful assembly involving violence.
Although Wong Chi Fung involved an unlawful assembly involving violence, Barnes J saw nothing wrong with the magistrate drawing on the sentencing considerations because the charges in both Wong Chi Fung and Chow Ting were contrary to the Public Order Ordinance. Secondly the maximum penalty for those offences in those cases were the same. Thirdly both cases were of a similar nature in that they involved crowd gatherings and lastly those demonstrations and gatherings arose from social issues.
Although this case before me involves an unauthorised assembly on 18 August, if I take into account the overall circumstances, the social unrest witnessed from June 2019 that was as relentless as it was violent and disturbing then I find I can and should consider sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I too can draw on the sentencing principles in that authority but bear in mind these charges involve an unauthorised not an unlawful assembly.
The facts of this case and offences affected the public; members of the public not participating. There was widespread traffic and public transport disruption. By identifying as a principle “meting out penalties”, the Court of Appeal were reiterating the obvious and that is any sentence imposed ought to be commensurate with the offence committed. One that reflects the seriousness of the offence and the culpability of the offender. The open condemnation factor is self-explanatory, the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender.
The factor of deterrence serves as a warning to others and prevents the offender from reoffending. The need for deterrent sentences cannot be limited to an unlawful assembly or more serious public order offences. The need to consider a deterrent sentence will often depend on the prevailing circumstances at the time. In fact, all sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation of 2019.
The fact that I draw on the aforesaid sentencing principles does not mean I am retrospectively imposing a more severe sentence based on new sentencing guidelines from the Court of Appeal in Wong Chi Fung.
Reasons for Sentence
I repeat here as I said in my verdict that the Basic Law guarantees freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional. Those freedoms are enjoyed subject to those restrictions irrespective of a defendant’s politics. The common purpose of the procession as well as the politics and stance of any participant that day on 18 August 2019 are irrelevant to sentencing just as they were irrelevant to the legal issues that arose during the trial.
This unauthorised procession did proceed peacefully but we know from experience, in particular in those volatile months in 2019 that when a large number of demonstrators gather, emotions are likely to run high which means those situations have an inherent latent risk of breaking out into violence.
We know from the prosecution witnesses that the police were most concerned that unruly elements may be present amongst peaceful protesters who would seize the opportunity to achieve the very objective of inciting or brewing violence. The police then decided to be invisible so as not to provide an opportunity or an excuse for conflict.
The present case involved a direct challenge to the authority of the police, law and order. The Commissioner of Police had banned a public procession and a 2nd public meeting but authorised a meeting in Victoria Park. In a police conference an explanation was given why consent was not forthcoming to the CHRF.
Yet, despite that and the risk above, the defendants went on to organise it; all defendants were well known figures that together as the head of a procession were guaranteed to draw a crowd and followers. Influential people can draw a crowd and can wield a certain influence.
The fact that these particular defendants made a conscious decision to break the law and challenge public order in this manner during such volatile times was serious. That I find an aggravating factor or the gravamen of these facts I found proved. Actions have consequences for everyone irrespective of who they are. This is more so when I have a duty in sentencing to ensure public order.
In addition, I take into account the background behind the commission of these offences. I take into account my finding that the unauthorised assembly was premeditated with prior planning to thwart the police ban. It was made known that there was a plan to circumvent the ban despite calling the procession a dispersal plan or water flow meeting. There were many prior calls publicly for as many people as possible to jam pack Victoria Park and to participate in this water flow meeting. It was no coincident that the dispersal plan mirrored the timing and route of the banned procession.
The scale of the unauthorised assembly is relevant; the procession from Victoria Park to Chater Gardens was on a massive scale and long-lasting. That is notwithstanding I accept there would have been disruptions in the vicinity of Victoria Park from the authorized public meeting. Moreover, as I have noted above, taking into account the circumstances prevailing in Hong Kong at that time, a procession of that size posed an inherent latent risk of possible violence.
Therefore, the procession may have been peaceful but there was a significant degree of disruption to roads for hours and public transport routes that stretched across the harbour.
As a result, and after careful consideration of the above principles and factors as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
The fact all but the 7th and 9th defendant were convicted after trial as well as being a premeditated and direct challenge to law and order when emotions were running so high in Hong Kong means a community service order would not be appropriate.
The background and facts of this case call for a custodial sentence. I have referred myself to Wong Chi Fung at paragraph 172 where what Pang JA said is applicable to this case and the circumstances that were prevailing in Hong Kong at that time. That is even though the charge there was more serious. I quote;
“172. I agree with the judgements of Yeung VP and Poon JA. The more one feels about an issue, the more one wishes to press one’s point and the more one desires that there should be progress in the matter. This is all very understandable. However, if in the course of advocating one’s demand, one is given to the position that some long and well established law is but an unreasonable restriction on the right to freedom of expression, plus indulging one in the self-satisfaction of having broken the law as one pleases, that is not a situation which would on any ground enable the courts to pass unduly lenient sentences. An offender who is inflicted with such an attitude not only breaks the law in conduct, but in his mind too he harbours contempt and regards himself as being above the law. With respect to controversial matters of public debate where emotions are easily stirred, the grave consequences of such an attitude gaining ground are self-evident…”
I have taken into account the facts, the mitigation and all submissions put forward on behalf of all defendants. I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
Having said that, where applicable and because it was a peaceful assembly, the positive good character of some defendants, the even more significant and worthy public service from others will be taken into account. It is impossible to list the individual significant commitment and contributions of some to the law, society, children, the underprivileged, minority groups, education issues, sexual and racial equality but it is weighty.
I also say here that I intend to make the sentences for Charges 1 and 2 concurrent for every defendant in light of the facts, close nature of the charges and totality principle.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, organising an unauthorised assembly, I do differentiate between some of the defendants. I made it clear in my verdict that the evidence showed that the 2nd, 4th and 9th defendant appeared at press conferences, either immediately after the CHRF appeal was dismissed or the following day, 17 August 2019, in Victoria Park and were very vocal. I won’t repeat what they said but I found they encouraged crowds to come to “jam pack” Victoria Park and insinuated there would be a procession out of there despite the police ban. What they and in particular, the 4th defendant had to say almost amounted to a rallying cry.
After all relevant factors are taken into consideration, in my judgement, for the 2nd, 4th and 9th defendant a starting point of 18 months’ imprisonment is appropriate.
For the remaining defendants, in my judgement, a starting point of 15 months’ imprisonment is appropriate.
Charge 2 – Starting Point
I find all defendants equally culpable in knowingly taking part in this unauthorised assembly. It is true some walked in silence, some replied to political slogans and others took the lead to chant those slogans but I do not differentiate between them for the purposes of this offence.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
Reductions
I am aware that a clear record is not significant mitigation where public order offences are concerned nor are personal mitigating circumstances where deterrent sentences are to be imposed. Nevertheless, in light of the more advanced ages of most of the defendants here and their public service to Hong Kong, I cannot ignore this type of mitigation altogether.
The 1st defendant
I have considered his age, clear record and health issues. The 1st defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
Therefore, the 1st defendant is sentenced to 12 months’ imprisonment for charge 1 and 9 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 2nd defendant
I have considered his age and clear record. For that, the 2nd defendant is given a three-month reduction from the 18 months and 12 months of charges 1 and 2 respectively.
From information provided today, I have considered his commitment and contribution to public service especially where the welfare of workers is concerned. Such service deserves recognition and for that I give the 2nd defendant a further discount of 3 months.
Therefore, the 2nd defendant is sentenced to 12 months’ imprisonment for charge 1 and 6 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 3rd defendant
I have considered her age of 73, clear record as well as her exceptional and obvious commitment over decades to public service. Not only is she a person of positive good character, but an altruist; her dedication to the community when a legislator and in her retirement is worthy of note. I am impressed by the letters referring to her lifelong dedication and contributions.
Against that background of her age and exceptional public service, I find there to be valid reason and justification to suspend the terms of imprisonment I have imposed. I first reduce the 15 months of charge 1 and 12 months of charge 2 by 3 months.
After that reduction is applied, the 3rd defendant is sentenced to 12 months for charge 1 and 9 months for charge 2. Both to be served concurrently. Both those sentences are suspended for 24 months.
Therefore, the 3rd defendant is sentenced to a total of 12 months’ imprisonment suspended for 24 months.
The 3rd defendant is warned that if she is convicted of an offence punishable by imprisonment in the following 24 months from today then she will most certainly serve this twelve-month term of imprisonment.
The 4th defendant
I have considered his age and health. It appears his ailment is under control with medication; I am not informed otherwise. The 4th defendant has a good number of previous convictions; he does not have the benefit of a clear record. However, I have considered the nature of his previous convictions and do not impose a heavier sentence on the 4th defendant on account of his criminal record.
What it does mean is that I see no reason to reduce the sentences any further. Therefore, for the reasons given, the 4th defendant is sentenced to 18 months’ imprisonment for charge 1 and 12 months’ imprisonment for charge 2, to be served concurrently; a total of 18 months’ imprisonment.
The 5th defendant
I have considered her age and clear record. The 5th defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
From the information I have, she too can be described as a person of positive good character. By that I
DCCC 536/2020
胡雅文
區院
不認罪
罪成
前立法會議員
33
組織未經批准集結
判囚
10
維園
DCCC 536/2020
[2021] HKDC 457
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 536 OF 2020
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HKSAR
v
LAI CHEE YING (D1)
LEE CHEUK YAN (D2)
NG NGOI YEE MARGARET (D3)
LEUNG KWOK HUNG (D4)
HO SAU LAN CYD (D5)
HO CHUN YAN (D6)
LEUNG YIU CHUNG (D7)
LEE CHU MING MARTIN (D8)
AU NOK HIN (D9)
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 16 April 2021
Present: Ms Priscilia T Y Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Public Prosecutor, for HKSAR/Director of Public Prosecutions
Ms Audrey Eu, S C and Mr Edwin W B Choy, S C leading Mr Jeffrey C K Tam and Mr Ernie Tung instructed by Robertsons for the 1st defendant
Mr Philip J Dykes, S C leading Mr Chris C L Ng, Mr Christopher P H Kan and Mr Timothy R Wong instructed by JCC Cheung & Co for the 2nd & 5th defendants
Mr Ambrose Ho, S C leading Isaac C K Chan instructed by Ho Tse Wai & Partners for the 3rd defendant
Mr Hectar H Pun, S C leading Mr Anson Wong Yu Yat instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 4th defendant
Mr Graham Harris, S C and Mr Lawrence Lok, S C leading Ms Po Wing Kay, Mr Geoffrey Yeung and Mr Simon Kwok instructed by Ho Tse Wai & Partners for the 6th & 8th defendants
Mr Paul Harris, S C leading Ms Jacqueline H Y Lam, instructed by K B Chau & Co for the 7th defendant
Mr Man Ho Ching of Ho Tse Wai & Partners for the 9th defendant
Offence: [1] Organizing an unauthorized assembly（組織一個未經批准集結）
[2] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結）
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REASONS FOR SENTENCE
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I delivered my verdict on 1 April 2021 and convicted all defendants except D7 and D9 after trial of organising an unauthorised assembly under section 17A(3)(b)(i) and knowingly taking part in an unauthorised assembly under section 17A(3)(a) of the Public Order Ordinance, Cap 245, Charges 1 and 2.
D9 had indicated his intention to plead guilty to these 2 charges at the earliest opportunity and I convicted him after his plea on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
D7 indicated his plea of guilty to charge 2 after the trial was set down but before the 1st day commenced. The prosecution did not proceed with charge 1 and it was kept on the court file. D7 was convicted of charge 2 on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
The facts
My findings of fact are set out in full in my verdict. I do not intend to repeat the facts of the case nor my findings.
I found that the defendants had organised and knowingly taken part in a public procession from Victoria Park to Chater Road Central on 18 August 2019 when that public procession had been objected to by the Commissioner of Police and that objection upheld by a subsequent Appeal Board hearing.
I found the public procession constituted an unauthorised assembly by consisting of more than 30 people and being organised for a common purpose which was to “stop the police and gangsters from plunging Hong Kong into chaos, implement the 5 demands”.
All the defendants organized and formed the head of a procession carrying a long banner displaying the common purpose and led thousands of participants from Victoria Park at about 3pm to walk to Chater Road. The timing of it and the route they took mirrored the public procession banned by the Commissioner of police.
I found the defendants deliberately defied the law and circumvented the ban by alleging they acted on the invitation and instructions of the organisers of the authorised public meeting in Victoria Park, the Civil Human Rights Front, the CHRF, to assist in their dispersal plan of participants. The CHRF had described their method of dispersal of participants as a water flow meeting for the sole purpose of facilitating the ingress and egress of participants only.
I found the defendants had no reasonable excuse or lawful authority for taking part in an unauthorised assembly. I found no evidence of police tacit consent or implied authority for the CHRF to handle the dispersal of participants in this manner.
I found it was not a dispersal plan implemented with the assistance of the defendants but a planned unauthorised assembly to challenge the authority of the Police. It was planned in advance, announced in advance but those interviewed stopped short of admitting a plan to break the law. Nevertheless, what was said very publicly before the 18 August and what was organised on 18 August was irrefutable evidence when viewed as a whole of a premeditated intention to commit these offences.
This intention was succinctly verbalised by a Hong Kong-based singer and actress interviewed by a news channel immediately after the banner was laid down by the defendants on Chater Road outside the Court of Final Appeal at what was declared as the end of the procession. In exhibit P35, a media outlet “HK01” interviewed this participant in the procession at 4:48pm and she explained the procession was a way to get around the ban.
This interviewee said there was no choice but to use a different method if a public procession was not allowed. She said it showed how flexible and elastic Hong Kong people were if banned. It was not a public procession but only people leaving Victoria Park. She was not speaking for the defendants but it shows a participant knew it was not a dispersal plan for safety reasons.
I found the unauthorised assembly caused citywide traffic disruptions and road closures far beyond the vicinity of Victoria Park and the authorised public meeting. The evidence I accepted which was not disputed showed road closures late into the evening that would have affected traffic and road users. Many forms of public transport were either disrupted or diverted on both sides of the Harbour.
The Constitutional challenges on a systemic and operational level also failed. There was no successful challenge to the constitutionality of section 17A or its sanctions. There was no action taken on the day by the police that was excessive or without tolerance in mind.
I have heard full mitigation on behalf of all the defendants. The reality is that for all of these defendants before me, bar none, their reputations and careers are well known to all in Hong Kong. Many have provided me with a significant number of mitigation letters. I have read and taken them into account.
Background information of the defendants
The 1st defendant
The 1st defendant is now 73 years old and has no previous convictions. He was born in the Mainland and came to Hong Kong as a teenager by himself. He started from humble beginnings working as a handyman in a factory to become a self-made and successful businessman. He founded the retail brand Giordano. He sold his shares in that to focus on the media industry in the 1990s. He had by then founded “Next Digital Ltd” which later listed on the Hong Kong stock exchange. His mitigation submitted is at MFI-10.
He is married with 6 children and many grandchildren. In mitigation I have been urged to take into account that he has through his businesses made significant contributions to the media industry and the economy in Hong Kong. His more advanced age has been stressed as well as several medical conditions controlled by medication.
The 2nd defendant
The 2nd defendant is 64 years old and has no previous convictions. He graduated from the University of Hong Kong in 1978 with a bachelor of civil engineering degree. He was a politician and was a serving member of the legislature for many years.
He founded and is still connected to the Labour Party. He is now the general secretary of the Hong Kong Federation of Trade Unions and vice chairman of the Labour Party. His background and career in public service was provided to me in mitigation in open court.
The 3rd defendant
The 3rd defendant is 73 years old and she has no previous convictions. She is a barrister and politician who devoted 18 years to public service and the legal functional constituency. She is also a well-known journalist and author in Hong Kong. After retirement from the legislative Council in 2012 she dedicated her time to fighting for racial equality, serving the underprivileged, ethnic minorities and in particular, seeking equitable education for ethnic minority children.
To pursue those aims and give her time to those causes, the 3rd defendant has been a member and then Chair of the Executive Committee of Hong Kong Unison. I have had many letters of mitigation from highly respected members of the Hong Kong community. They make for impressive reading. Her mitigation submitted is at MFI-11.
She decided to discharge her legal representatives before mitigation and spoke for herself. I have taken on board all she has said. A copy of what she said is at MFI-11A.
The 4th defendant
The 4th defendant is now 65 years old. He too has been a member of the legislative Council for 12 years. He has many previous convictions, 17 in total with 3 similar to charges 1 and 2. All his other criminal convictions involve offences of a similar nature and many relate to public order offences. None of his previous convictions were offences motivated by greed, corruption, anger or dishonesty.
I have had sight of a radiologists report detailing the results of a calcium scoring and CT coronary angiography. There is no medical diagnosis obviously in this report but I have been told that two out of three heart blood vessels have blockages and he is on medication now. His mitigation submitted is at MFI-12.
The 5th defendant
The 5th defendant is now 66 years old and she has no previous convictions. She is a former legislator with many years’ service as well as a founding member of the Labour Party. She was appointed a Justice of the Peace in 2014. She too has devoted years to public service and I have had sight of numerous letters containing details of her commitment and support of many diverse sectors of society, from education resources for underprivileged children to sexual inequality. Her mitigation submitted is at MFI-13.
The 6th defendant
The 6th defendant is now 69 years old and has no previous convictions. He is a solicitor and founder of his own firm as well as a seasoned politician. He too is a former district councillor and legislative councillor with over 20 years’ service and has been a core member of the Democratic party.
He has campaigned for democracy and human rights for nearly 40 years and it is stressed always in a peaceful, rational and nonviolent manner. In written submissions the full details of his long career and commitment to public service is set out succinctly. His mitigation submitted is at MFI-14.
The 7th defendant
The 7th defendant is now 67 years old, pleaded guilty to charge 2 and has no previous convictions. He has served a lifetime of community and public service. The mitigation bundle prepared is detailed and contains a chronology of his career as a teacher, district board member then a member of the legislative Council. His contributions to Hong Kong and his campaigning for the underprivileged and minority groups are well-known. I have read the many impressive letters written on his behalf by respectable members of Hong Kong society from all walks of life.
The defendant is not a man who advocates violence. This is illustrated by a video of news footage of 1st July 2019 (Annex 3 of his mitigation bundle MFI-15) where he tries to get between rioters trying to break the glass doors of LEGCO. He opposed the attempt to enter the Legislative Council and tried to stop the crowds by standing in front of the glass doors but is bundled aside by black clad rioters.
The 8th defendant
The 8th defendant is 2 months’ shy of 83 years old and has no previous convictions. He is a leading Senior Counsel and served as the Chairman of the Hong Kong Bar Association. He is infamous for his distinguished legal career and pro bono work. He served as a member of the Hong Kong Basic Law Drafting Committee. He was one of the longest serving members of the Legislative Council; a service of over 22 years.
He has devoted much time and effort in serving the public and his constituency. He, like all the defendants here, is committed and dedicated to democracy and human rights. His mitigation submitted is at MFI-14.
The 9th defendant
The 9th defendant is now 33 years old and had no previous convictions at the time of the offence. I repeat he indicated his plea of guilty at the very earliest opportunity. He was a district councillor for 8 years and briefly a member of the Legislative Council as well as a lecturer in many tertiary educational institutions in Hong Kong. There are many letters of mitigation from friends and colleagues; they stress his public and community service should not be ignored. Many stress his peaceful, non-violent approach and principles. It is submitted his academic and social achievements are especially noteworthy as he is only 33 years old.
His substantial efforts in pursuing a career in academia and politics appear to be fading with his recent conviction of assaulting a police officer and other pending criminal charges. In his own mitigation letter he explains why he pleaded guilty, why he will no longer seek a career in politics and how he will seek to rebuild his life away from political activism. His mitigation submitted is at MFI-16.
Mitigation
I have heard full mitigation in open court and have the benefit of submissions prepared by counsel and need not set it out here.
All defendants submit that these charges and facts do not call for a custodial sentence. There are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been suggested that previous cases with similar charges have attracted financial penalties.
The call for a financial penalty is supported by the submission that the procession was peaceful with no violent incidents or conflicts arising. Severe sanctions are inappropriate and disproportionate. The disruption to the roads and public transport system was not severe nor wholly related to the unauthorised assembly. Much of the traffic congestion around Victoria Park was related to the authorised public meeting.
Principles of Sentencing
It is correct there are no prevailing guidelines or tariffs for sentences for the present charges. The great majority of the past cases with similar offences do either involve a bind over order or a financial penalty but none of those cases I have been referred to by the defence stem from the social unrest and turmoil of 2019 or anything like it.
Public order offences have been established as an exception to the general principle that a deterrent sentence should not be passed on a person with a clear record and I have referred myself to page 13 of R v Nguyen Quang Thong & Ors (1992) 2 HKCLR 10. All defendants here but the 4th defendant had a clear record.
I have been referred to reasons for judgement arising from HKSAR v Chow Ting HCMA 374/2020, a bail application pending a magistracy appeal. I thank the prosecution for a translation of those reasons. There, Barnes J refused bail pending appeal for the applicant Chow Ting. She had been sentenced to 10 months’ imprisonment for incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly.
The facts of that case are set out in those reasons for judgement and involve large crowds of protesters gathering first in the vicinity of the Central Government Offices on 21 June 2019 before more crowds proceeded to besiege the Police Headquarters. That was a day that ended in violence, conflict, damage to property, an attack on the police headquarters itself and its operation as well as severe traffic disruption until the early hours of the morning.
The relevance of that case and the reasons for judgement is because the learned Magistrate referred to the sentencing considerations and factors set out in the Secretary for Justice v Wong Chi Fung 2018 2 HKLRD 699; sentencing guidelines for offences of unlawful assembly.
Barnes J was only concerned with the application for bail pending appeal and not the appeal itself which is still to be heard but she did state the reasons why she found the applicant had failed to demonstrate that her appeal had a very high or reasonable prospect of success.
More importantly, and relied on heavily by the prosecution here is that she agreed with the learned magistrate and found nothing wrong with her “drawing on” the sentencing factors in Wong Chi Fung when deciding a custodial sentence was appropriate for an unauthorized assembly and said it was clearly far from being wrong in principle.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. In the context of unlawful assemblies involving violence, it was held by the court that the sentencing court’s main consideration is the punishment of the offender, as well as deterring others from breaking the law in a similar manner. These are the weighty factors and the offender’s personal circumstances will not be regarded as significant mitigation. The Court of Final Appeal endorsed those observations in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35.
The Court of Appeal found it necessary to expound on the principles on sentencing in unlawful assemblies that involved violence. In paragraph 108 Poon JA, as he then was, set out the sentencing principles applicable to the charges. Particularly, in paragraph 127 he stressed that the sentence imposed must be appropriate to the punishment of the offenders but also takes into account the factor of deterrence on the basic premise that public order must be maintained and reflects the gravamen of the offence of unlawful assembly.
In paragraph 135 he identified facts relevant and pertinent to unlawful assembly offences involving violence. But before that Poon JA discussed not only unlawful assembly involving violence but also unlawful assembly involving no actual violence.
In the judgement of Secretary for Justice v Chung Ka Ho CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen from Wong Chi Fung that cases that warrant the courts serious treatment include an unlawful assembly without actual violence, which could become imminent, given the overall circumstances. Essentially, the Court of Appeal said it is artificial and unreasonable to divide unlawful assemblies by violence when passing sentence; it all depends on the actual circumstances in each case. Equally, the Court of Appeal did not say deterrent sentences should not be imposed in the absence of actual violence.
The Court of Appeal in Chung Ka Ho at paragraph 55 point out that the factors identified by Poon JA in paragraph 135 in Wong Chi Fung can if adjusted, apply equally to unlawful assemblies with no violence. Therefore, it is not right to suggest that the judgement in Wong Chi Fung is solely applicable to unlawful assembly involving violence.
Although Wong Chi Fung involved an unlawful assembly involving violence, Barnes J saw nothing wrong with the magistrate drawing on the sentencing considerations because the charges in both Wong Chi Fung and Chow Ting were contrary to the Public Order Ordinance. Secondly the maximum penalty for those offences in those cases were the same. Thirdly both cases were of a similar nature in that they involved crowd gatherings and lastly those demonstrations and gatherings arose from social issues.
Although this case before me involves an unauthorised assembly on 18 August, if I take into account the overall circumstances, the social unrest witnessed from June 2019 that was as relentless as it was violent and disturbing then I find I can and should consider sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I too can draw on the sentencing principles in that authority but bear in mind these charges involve an unauthorised not an unlawful assembly.
The facts of this case and offences affected the public; members of the public not participating. There was widespread traffic and public transport disruption. By identifying as a principle “meting out penalties”, the Court of Appeal were reiterating the obvious and that is any sentence imposed ought to be commensurate with the offence committed. One that reflects the seriousness of the offence and the culpability of the offender. The open condemnation factor is self-explanatory, the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender.
The factor of deterrence serves as a warning to others and prevents the offender from reoffending. The need for deterrent sentences cannot be limited to an unlawful assembly or more serious public order offences. The need to consider a deterrent sentence will often depend on the prevailing circumstances at the time. In fact, all sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation of 2019.
The fact that I draw on the aforesaid sentencing principles does not mean I am retrospectively imposing a more severe sentence based on new sentencing guidelines from the Court of Appeal in Wong Chi Fung.
Reasons for Sentence
I repeat here as I said in my verdict that the Basic Law guarantees freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional. Those freedoms are enjoyed subject to those restrictions irrespective of a defendant’s politics. The common purpose of the procession as well as the politics and stance of any participant that day on 18 August 2019 are irrelevant to sentencing just as they were irrelevant to the legal issues that arose during the trial.
This unauthorised procession did proceed peacefully but we know from experience, in particular in those volatile months in 2019 that when a large number of demonstrators gather, emotions are likely to run high which means those situations have an inherent latent risk of breaking out into violence.
We know from the prosecution witnesses that the police were most concerned that unruly elements may be present amongst peaceful protesters who would seize the opportunity to achieve the very objective of inciting or brewing violence. The police then decided to be invisible so as not to provide an opportunity or an excuse for conflict.
The present case involved a direct challenge to the authority of the police, law and order. The Commissioner of Police had banned a public procession and a 2nd public meeting but authorised a meeting in Victoria Park. In a police conference an explanation was given why consent was not forthcoming to the CHRF.
Yet, despite that and the risk above, the defendants went on to organise it; all defendants were well known figures that together as the head of a procession were guaranteed to draw a crowd and followers. Influential people can draw a crowd and can wield a certain influence.
The fact that these particular defendants made a conscious decision to break the law and challenge public order in this manner during such volatile times was serious. That I find an aggravating factor or the gravamen of these facts I found proved. Actions have consequences for everyone irrespective of who they are. This is more so when I have a duty in sentencing to ensure public order.
In addition, I take into account the background behind the commission of these offences. I take into account my finding that the unauthorised assembly was premeditated with prior planning to thwart the police ban. It was made known that there was a plan to circumvent the ban despite calling the procession a dispersal plan or water flow meeting. There were many prior calls publicly for as many people as possible to jam pack Victoria Park and to participate in this water flow meeting. It was no coincident that the dispersal plan mirrored the timing and route of the banned procession.
The scale of the unauthorised assembly is relevant; the procession from Victoria Park to Chater Gardens was on a massive scale and long-lasting. That is notwithstanding I accept there would have been disruptions in the vicinity of Victoria Park from the authorized public meeting. Moreover, as I have noted above, taking into account the circumstances prevailing in Hong Kong at that time, a procession of that size posed an inherent latent risk of possible violence.
Therefore, the procession may have been peaceful but there was a significant degree of disruption to roads for hours and public transport routes that stretched across the harbour.
As a result, and after careful consideration of the above principles and factors as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
The fact all but the 7th and 9th defendant were convicted after trial as well as being a premeditated and direct challenge to law and order when emotions were running so high in Hong Kong means a community service order would not be appropriate.
The background and facts of this case call for a custodial sentence. I have referred myself to Wong Chi Fung at paragraph 172 where what Pang JA said is applicable to this case and the circumstances that were prevailing in Hong Kong at that time. That is even though the charge there was more serious. I quote;
“172. I agree with the judgements of Yeung VP and Poon JA. The more one feels about an issue, the more one wishes to press one’s point and the more one desires that there should be progress in the matter. This is all very understandable. However, if in the course of advocating one’s demand, one is given to the position that some long and well established law is but an unreasonable restriction on the right to freedom of expression, plus indulging one in the self-satisfaction of having broken the law as one pleases, that is not a situation which would on any ground enable the courts to pass unduly lenient sentences. An offender who is inflicted with such an attitude not only breaks the law in conduct, but in his mind too he harbours contempt and regards himself as being above the law. With respect to controversial matters of public debate where emotions are easily stirred, the grave consequences of such an attitude gaining ground are self-evident…”
I have taken into account the facts, the mitigation and all submissions put forward on behalf of all defendants. I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
Having said that, where applicable and because it was a peaceful assembly, the positive good character of some defendants, the even more significant and worthy public service from others will be taken into account. It is impossible to list the individual significant commitment and contributions of some to the law, society, children, the underprivileged, minority groups, education issues, sexual and racial equality but it is weighty.
I also say here that I intend to make the sentences for Charges 1 and 2 concurrent for every defendant in light of the facts, close nature of the charges and totality principle.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, organising an unauthorised assembly, I do differentiate between some of the defendants. I made it clear in my verdict that the evidence showed that the 2nd, 4th and 9th defendant appeared at press conferences, either immediately after the CHRF appeal was dismissed or the following day, 17 August 2019, in Victoria Park and were very vocal. I won’t repeat what they said but I found they encouraged crowds to come to “jam pack” Victoria Park and insinuated there would be a procession out of there despite the police ban. What they and in particular, the 4th defendant had to say almost amounted to a rallying cry.
After all relevant factors are taken into consideration, in my judgement, for the 2nd, 4th and 9th defendant a starting point of 18 months’ imprisonment is appropriate.
For the remaining defendants, in my judgement, a starting point of 15 months’ imprisonment is appropriate.
Charge 2 – Starting Point
I find all defendants equally culpable in knowingly taking part in this unauthorised assembly. It is true some walked in silence, some replied to political slogans and others took the lead to chant those slogans but I do not differentiate between them for the purposes of this offence.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
Reductions
I am aware that a clear record is not significant mitigation where public order offences are concerned nor are personal mitigating circumstances where deterrent sentences are to be imposed. Nevertheless, in light of the more advanced ages of most of the defendants here and their public service to Hong Kong, I cannot ignore this type of mitigation altogether.
The 1st defendant
I have considered his age, clear record and health issues. The 1st defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
Therefore, the 1st defendant is sentenced to 12 months’ imprisonment for charge 1 and 9 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 2nd defendant
I have considered his age and clear record. For that, the 2nd defendant is given a three-month reduction from the 18 months and 12 months of charges 1 and 2 respectively.
From information provided today, I have considered his commitment and contribution to public service especially where the welfare of workers is concerned. Such service deserves recognition and for that I give the 2nd defendant a further discount of 3 months.
Therefore, the 2nd defendant is sentenced to 12 months’ imprisonment for charge 1 and 6 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 3rd defendant
I have considered her age of 73, clear record as well as her exceptional and obvious commitment over decades to public service. Not only is she a person of positive good character, but an altruist; her dedication to the community when a legislator and in her retirement is worthy of note. I am impressed by the letters referring to her lifelong dedication and contributions.
Against that background of her age and exceptional public service, I find there to be valid reason and justification to suspend the terms of imprisonment I have imposed. I first reduce the 15 months of charge 1 and 12 months of charge 2 by 3 months.
After that reduction is applied, the 3rd defendant is sentenced to 12 months for charge 1 and 9 months for charge 2. Both to be served concurrently. Both those sentences are suspended for 24 months.
Therefore, the 3rd defendant is sentenced to a total of 12 months’ imprisonment suspended for 24 months.
The 3rd defendant is warned that if she is convicted of an offence punishable by imprisonment in the following 24 months from today then she will most certainly serve this twelve-month term of imprisonment.
The 4th defendant
I have considered his age and health. It appears his ailment is under control with medication; I am not informed otherwise. The 4th defendant has a good number of previous convictions; he does not have the benefit of a clear record. However, I have considered the nature of his previous convictions and do not impose a heavier sentence on the 4th defendant on account of his criminal record.
What it does mean is that I see no reason to reduce the sentences any further. Therefore, for the reasons given, the 4th defendant is sentenced to 18 months’ imprisonment for charge 1 and 12 months’ imprisonment for charge 2, to be served concurrently; a total of 18 months’ imprisonment.
The 5th defendant
I have considered her age and clear record. The 5th defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
From the information I have, she too can be described as a person of positive good character. By that I
STCC2646/2020
潘兆初、彭偉昌、潘敏琦
裁判法院
認罪
罪成
16
刑事毀壞
入更生中心
沙田
DCCC 537/2020
胡雅文
區院
不認罪
罪成
73
明知而參與未經批准集結
緩刑
灣仔
DCCC 537/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 537 OF 2020
————————————–
HKSAR
v
LAI CHEE YING (D1)
YEUNG SUM (D2)
LEE CHEUK YAN (D3)
—————————————
Before: Her Honour Judge A J Woodcock in Court
Date: 16 April 2021
Present: Ms Priscilia Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Acting) and Mr Edward Lau, Public Prosecutor, for HKSAR/ Director of Public Prosecutions
Mr Edwin Choy leading Mr Jeffrey Tam C K and Mr Ernie Tung, instructed by Robertsons, for the 1st defendant
Mr Man Ho Ching of Ho Tse Wai & Partners, for the 2nd defendant
Mr Anson Wong Yu Yat, instructed by JCC Cheung & Co, for the 3rd defendant
Offence: Knowingly taking part in an unauthorized assembly (明知而參與未經批准集結)
—————————————–
REASONS FOR SENTENCE
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The 3 defendants pleaded guilty to one charge of knowingly taking part in an unauthorized assembly, contrary to section 17A(3)(a) of the Public Order Ordinance, Cap 245. An indication of their plea came a few days before their trial was due to commence.
The particulars are that on 31 August 2019, without lawful authority or reasonable excuse, all 3 defendants knowingly took part in a public procession which took place in contravention of section 13 of the Public Order Ordinance which was an unauthorized assembly by virtue of section 17A(2)(a) of the same Ordinance.
The Facts
All 3 defendants agreed the Amended Summary of Facts. By way of background, it was agreed that from June 2019 there were many violent incidents that erupted during certain protest events including confrontations between members of the public and members of the Hong Kong Police Force.
The Civil Human Rights Front, “CHRF” had submitted a notification of an intention to hold a public meeting and procession on 31 August 2019. They intended to hold a public meeting at Chater Garden, Central and then a public procession from Chater Garden to the Liaison Office of the Central People’s Government in the HKSAR. The subject matter of the meeting and procession was anti-government and a demand for universal suffrage.
In light of the ongoing prevailing social unrest and violent incidents in the preceding weeks and having regard to the interests of public order, public safety and for the protection of the rights and freedom of others, the Commissioner of Police prohibited the holding of the public meeting and objected to the holding of the public procession. There was an appeal that was dismissed.
After that, there was a call on line and amongst netizens appealing to the public to gather at Southorn Playground in Wanchai at around 12:30 pm on 31 August 2019 to participate in a “Pray for Sinners” procession. They were to assemble at 12:30 pm and start a procession at 1 pm. It was erroneously announced that a religious procession did not need police notification or permission.
They were to walk from the playground along Hennessy Road to Queensway to Upper Albert Road and to Government House. They would make stops to pray for “sinners” at the Chinese Methodist Church in Wanchai then the Police Headquarters as well as St John’s Cathedral before proceeding to Government House. The Commissioner of Police never received any notification from any person or organisation either pursuant to section 8 or 13A of the Public Order Ordinance.
On 30 August 2019 the Regional Commander of Hong Kong Island held a press conference and explained the reasons why the CHRF public meeting and the public procession was prohibited. He also corrected the rumour that a religious procession was exempted under the Public Order Ordinance. This news report was widely broadcast and printed in at least 13 media outlets. Annex 1 of the Summary of Facts contains those details.
An unauthorized assembly did take place on 31 August 2019. By 12:35 pm, the 2nd defendant was videoed assembled together with large crowds at Southorn Playground and chanting political slogans; anti-government and anti-police slogans. The police use an amplifier and gave a “level 2A” warning to the crowds whilst a yellow warning flag was raised and displayed with the warning printed on it for all to see. The crowd was warned that the meeting was an unauthorized assembly and they may be prosecuted for a criminal offence.
Instead of dispersing, some members of the crowd approached the police with hostility and verbally abused as well as insulted those officers present. In order not to escalate rising emotions and to avoid any conflict, these police officers withdrew and return to Police Headquarters to guard that building and monitor the situation.
By 1 pm the crowds had swelled inside the Playground and by then the other 2 defendants, the 1st and 3rd defendants were present. During the whole day the 3 defendants were almost, at all times, together during the meeting and procession. The 3rd defendant was holding a placard and interviewed by a reporter in the Playground. He said that he knew the police had banned all marches that day but they had a right to march. They wanted to gather and protest for the 5 demands.
At 1:30 pm the procession began and the 3 defendants with a large number of participants marched to the Chinese Methodist Church and stayed there for a while blocking the carriageways of Johnston Road and Fenwick Street. They then marched to the Police Headquarters and blocked the junction of Fenwick Street and Hennessy Road as well as Lockhart Road and Arsenal Street. The 3rd defendant had to resort to directing traffic and reminding the crowds to beware of vehicles.
A 2nd warning was given from the steps of the Police Headquarters in light of the traffic disruption and crowds on the carriageways. The police gave another warning verbally and displayed a yellow flag. Despite this the defendants and others continued to occupy the carriageways. They did not disperse.
The 1st defendant was interviewed by reporters outside the Police Headquarters and stated he had come out that day in order to express the view that they would continue to fight for “5 demands”. He did not answer the question when asked if he was worried he may be arrested for participating in a procession.
In total on 4 occasions “Level 2B” warnings were given from the steps of the Police Headquarters with yellow flags raised at the same time. The 3 defendants together with hundreds then walked towards Queensway and occupied at least 2 carriageways outside Pacific Place making it difficult for vehicles to pass. Again the 3rd defendant had to direct traffic and the crowds with the assistance of the 2nd defendant.
The 1st defendant was interviewed again and said he was participating in the procession to show that Hong Kong citizens would not be intimidated by the actions of the police.
In the video footage when the defendants reached the junction of Garden Road and Queensway, the 2nd and 3rd defendants can be seen shouting at participants to go to St John’s Cathedral first. The crowds occupied the carriageways and affected traffic again. As participants followed directions, there was chanting of political slogans. The 3 defendants were last seen stood together outside St John’s Cathedral at about 2:25 pm singing religious songs.
From there, the police did not allow the procession to proceed towards Government House. Whilst others in the procession proceeded up Garden Road to attempt to go to Government House, the 3 defendants were no longer seen in the procession. The procession was directed away by the police.
At that point the police issued another verbal warning and raised a yellow flag. Whilst these warnings were given, the police again were subjected to abuse and insults by participants of the procession. There was even an attempt by a woman to break through the police cordon line but was unsuccessful.
All of the news footage and interviews as well as the police videos of the meeting at Southorn Playground and the public procession are attached to the Summary of Facts in Annex 2. All the relevant videos identifying the defendants, what they said to the press and what they said in speeches and slogans is in Annex 2. MFI-4 is a record of all of the video footage and what was played in open court.
It was admitted that during the public procession the crowds with the defendants walked on carriageways which caused serious disruption to the traffic. Vehicles including public transport were stuck on many roads around Wanchai, Queensway as well as Garden Road and Lower Albert Road. In fact, the traffic on Garden Road was affected until 8 pm that night.
The 1st defendant, Mr Lai Chee Ying and the 3rd defendant, Mr Lee Cheuk Yan were convicted by me on 1 April 2021 of organising and knowingly taking part in a public procession which was an unauthorized assembly on 18 August 2019, only 14 days before the unauthorized assembly of this charge.
Mitigation and background information of the defendants
The 1st defendant
The 1st defendant is now 73 years old and has no previous convictions. He was born in the Mainland and came to Hong Kong as a teenager by himself. He started from humble beginnings working as a handyman in a factory to become a self-made and successful businessman. He founded the retail brand Giordano. He sold his shares in that to focus on the media industry in the 1990s. He had by then founded “Next Digital Ltd” which later listed on the Hong Kong Stock Exchange.
He is married with 6 children and many grandchildren. In mitigation I have been urged to take into account that he has through his businesses made significant contributions to the media industry and the economy in Hong Kong. His more advanced age has been stressed as well as several medical conditions controlled by medication. Written mitigation is at MFI-1.
The 2nd defendant
The 2nd defendant is 72 years old and on the date of this offence had no previous convictions. After he was convicted of this sole charge on his own plea, he discharged his legal team to mitigate for himself. It was confirmed that his plea was unequivocal before I released his legal representation. Despite this, his counsel did inform me in open court that he was a Justice of the Peace and had been awarded the Silver Bauhinia Star in 2009. He is a married man with children. He was a teacher and then an Assistant Professor at the University of Hong Kong. He is still an Honorary Assistant Professor now after retirement. It is also well-known he served several terms as a Legislator and was actively involved with the Democratic Party and other pro-democracy parties.
It appeared his legal team was discharged because he did not want to put forward any mitigation. He did however want to make a statement. He read out in court a statement pertaining to why he broke the law, it is marked MFI-2. He pleaded guilty but would not plead for leniency because he had no remorse nor did anything wrong.
His motivation was civil disobedience. He wanted to protest against the Public Order Ordinance by means of civil disobedience. He participated because the right of demonstration and procession is constitutionally guaranteed. He also wanted to protest against the abuse of power by the police for prohibiting peaceful demonstrations and processions. He therefore defied the law in the name of civil disobedience in a peaceful manner. He had nothing to say in mitigation.
The 3rd defendant
The 3rd defendant is 64 years old and on the date of this offence had no previous convictions. He was a politician and was a serving member of the Legislature for many years. He founded and is still connected to the Labour Party. He is now the General Secretary of the Hong Kong Confederation of Trade Unions and Vice-chairman of the Labour Party.
He graduated from the University of Hong Kong in 1978 with a civil engineering degree. I have heard full mitigation, MFI-3, including a letter from the 3rd defendant read out in open court.
He too admits he broke the law but his motivation was like the 2nd defendant, civil disobedience. He pleaded guilty but does not admit he has done anything wrong in affirming the rights of Hong Kong people to peaceful procession. He too says he participated because the right of procession is constitutionally guaranteed. He too defied the law in the name of civil disobedience in a peaceful manner. I have read his letter and I know where he gets his inspiration from.
Mitigation
The 2nd and 3rd defendants do not express regret or admit wrongdoing because of their political beliefs or demands and are entitled to take or express this stance. Their political beliefs or demands are not my concern in sentencing. I have had the benefit of written submissions prepared by counsel and need not set it out here.
I do not agree with the submission in mitigation that they were just like any other participant that day answering a call to pray for sinners; that they were no different from any other person there. The 3 defendants are well known and stood out from the crowd. Protesters are seen following their directions as to traffic and route.
Civil Disobedience
The 2nd and 3rd defendants raise the concept of civil disobedience to justify their breaches of the law. This concept is recognised in the Courts of Hong Kong. The conscientious objections and genuine beliefs of a defendant may be taken into consideration as the motive for offending but the court will not evaluate the worthiness of any causes espoused by an offender. The weight to be attached to a motive will vary depending on the circumstances.
As the Court of Final Appeal said in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at para 75 that it is not the task of the courts to take sides on issues that are political or to prefer one set of social or other values over another. In any event, the act of civil disobedience here was not expressly directed towards section 17A of the Public Order Ordinance as an unjust law but was committed in the course of protesting against the government and the police over several issues.
Principles of Sentencing
There are no prevailing guidelines or tariffs for sentences for the present charge that existed at the time of the offence. The great majority of the past cases with a similar offence do either involve a bind over order or a financial penalty but none of those cases referred to stem from the social unrest and turmoil of 2019.
Public order offences have been established as an exception to the general principle that a deterrent sentence should not be passed on a person with a clear record and I have referred myself to page 13, lines 4-9 of R v Nguyen Quang Thong & Ors (1992) 2 HKCLR 10. All defendants here had a clear record.
I have been referred to reasons for judgement arising from HKSAR v Chow Ting HCMA 374/2020, a bail application pending a magistracy appeal. I thank the prosecution for a translation of those reasons. There, Barnes J refused bail pending appeal for the applicant Chow Ting. She had been sentenced to 10 months’ imprisonment for incitement to knowingly take part in an unauthorized assembly and knowingly taking part in an unauthorized assembly.
The facts of that case are set out in those Reasons for Judgement and involve large crowds of protesters gathering first in the vicinity of the Central Government Offices on 21 June 2019 before more crowds proceeded to besiege the Police Headquarters. That was a day that ended in violence, conflict, damage to property, an attack on the police headquarters itself and its operation as well as severe traffic disruption until the early hours of the morning.
The relevance of that case and the Reasons for Judgement is because the learned Magistrate referred to the sentencing considerations and factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699; sentencing guidelines for offences of unlawful assembly.
Barnes J was only concerned with the application for bail pending appeal and not the appeal itself which is still to be heard but she did state the reasons why she found the applicant had failed to demonstrate that her appeal had a very high or reasonable prospect of success. More importantly, and relied on heavily by the prosecution here is that she agreed with the learned Magistrate and found nothing wrong with her “drawing on” the sentencing factors in Wong Chi Fung when deciding a custodial sentence was appropriate and said it was clearly far from being wrong in principle.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. In the context of unlawful assemblies involving violence, it was held by the court that the sentencing court’s main consideration is the punishment of the offender, as well as deterring others from breaking the law in a similar manner. These are the weighty factors and the offender’s personal circumstances will not be regarded as significant mitigation. The Court of Final Appeal endorsed those observations in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35.
The Court of Appeal found it necessary to expound on the principles on sentencing in unlawful assemblies that involved violence. In paragraph 108 Poon JA, as he then was, set out the sentencing principles applicable to the charges. Particularly, in paragraph 127 he stressed that the sentence imposed must be appropriate to the punishment of the offenders but also takes into account the factor of deterrence on the basic premise that public order must be maintained and reflects the gravamen of the offence of unlawful assembly.
In paragraph 135 he identified facts relevant and pertinent to unlawful assembly offences involving violence. But before that Poon JA discussed not only unlawful assembly involving violence but also unlawful assembly involving no actual violence.
In the judgement of Secretary for Justice v Chung Ka Ho CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen from Wong Chi Fung that cases that warrant the courts serious treatment include an unlawful assembly without actual violence, which could become imminent, given the overall circumstances. Essentially, the Court of Appeal said it is artificial and unreasonable to divide unlawful assemblies by violence when passing sentence; it all depends on the actual circumstances in each case. Equally, the Court of Appeal did not say deterrent sentences should not be imposed in the absence of actual violence.
The Court of Appeal in Chung Ka Ho at paragraph 55 point out that the factors identified by Poon JA in paragraph 135 in Wong Chi Fung can if adjusted, apply equally to unlawful assemblies with no violence. Therefore, it is not right to suggest that the judgement in Wong Chi Fung is solely applicable to unlawful assembly involving violence.
Although Wong Chi Fung involved an unlawful assembly involving violence, Barnes J saw nothing wrong with the magistrate drawing on the sentencing considerations because the charges in both Wong Chi Fung and Chow Ting were contrary to the Public Order Ordinance. Secondly the maximum penalty for those offences in those cases were the same. Thirdly both cases were of a similar nature in that they involved crowd gatherings and lastly those demonstrations and gatherings arose from social issues.
Although this case before me involves an unauthorized assembly on 31 August, if I take into account the overall circumstances, the social unrest witnessed from June 2019 that was as relentless as it was violent and disturbing then I find I can consider sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I too can draw on the sentencing principles in that authority but bear in mind this charge involves an unauthorised not an unlawful assembly.
The facts of this case and offence affected the public; members of the public not participating. There was traffic disruption and carriageways were blocked. By listing as a principle “meting out penalties”, the Court of Appeal were reiterating the obvious and that is any sentence imposed ought to be commensurate with the offence committed. One that reflects the seriousness of the offence and the culpability of the offender. The open condemnation factor is self-explanatory, the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender.
The factor of deterrence serves as a warning to others and prevents the offender from reoffending. The need for deterrent sentences cannot be limited to an unlawful assemblies or more serious public order offences. The need to consider a deterrent sentence will often depend on the prevailing circumstances at the time. In fact, all sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation of 2019.
The fact I draw on the aforesaid sentencing principles does not mean I am retrospectively imposing a more severe sentence based on new sentencing guidelines from the Court of Appeal in Wong Chi Fung.
Reasons for Sentence
This unauthorized procession was peacefully but we know from experience, in particular in those volatile months in 2019 that when a large number of demonstrators gather, emotions are likely to run high which means those situations have an inherent risk of breaking out into violence.
It is a serious factor that despite that risk and knowing the Commissioner of Police had banned all meetings and processions of the CHRF that day and why, the defendants went to join with others in Southorn Playground to participate in a procession and ignore the ban and reasons for it.
An unauthorized assembly was planned in advance to protest against the government and the police, calling it a “Pray for sinners” march. All 3 defendants made a conscious decision to take part in it and to then deliberately ignore all the police verbal warnings and flags telling them to disperse or face prosecution.
It was deliberately provocative and inflammatory, in light of the prevailing social unrest and previous attacks on the Police Headquarters to specifically march there. The Police Headquarters was not a church so the insinuation according to the theme and route of the procession was that the police were sinners.
Their decision to participate and their decision to ignore the numerous police warnings, because of who they are, may have encouraged others to participate and believe they can break the law with impunity. People can be influenced by their peers to adopt certain behaviour and follow certain actions. Influential people can draw a crowd and can wield a certain influence.
This is why after careful consideration of the above principles and factors; I find an immediate term of imprisonment the only appropriate sentencing option. This offence was committed deliberately and intentionally at a time when there were incidents of social unrest almost daily. They chose to participate in yet another unauthorised assembly with a significant crowd when they must have known the chances were high of more violence erupting.
The background and facts of this case call for a custodial sentence. I have referred myself to Wong Chi Fung at paragraph 172 where what Pang JA said is applicable to this case and the circumstances that were prevailing in Hong Kong at that time. That is even though the charge was more serious. I quote;
“172. I agree with the judgements of Yeung VP and Poon JA. The more one feels about an issue, the more one wishes to press one’s point and the more one desires that there should be progress in the matter. This is all very understandable. However, if in the course of advocating one’s demand, one is given to the position that some long and well established law is but an unreasonable restriction on the right to freedom of expression, plus indulging one in the self-satisfaction of having broken the law as one pleases, that is not a situation which would on any ground enable the courts to pass unduly lenient sentences. An offender who is inflicted with such an attitude not only breaks the law in conduct, but in his mind too he harbours contempt and regards himself as being above the law. With respect to controversial matters of public debate where emotions are easily stirred, the grave consequences of such an attitude gaining ground are self-evident. …”
Starting Point and Sentence
I have taken into account all mitigation put forward on behalf of the defendants and although the 2nd defendant did not put forward any personal mitigation for the court to consider, I did have information placed before me pertaining to his positive good character.
I have borne in mind the offence, facts of the case and the relevant sentencing principles referred to above in particular deterrence. I stress the fact this offence was committed deliberately and intentionally at a time when there were frequent and prevailing incidents of social unrest and violence. It was a direct challenge to law and order despite a ban from the Commissioner of Police.
After all matters are taken into consideration including the fact the procession was peaceful, in my judgement, the starting point of 12 months’ imprisonment is appropriate.
All defendants indicated their pleas less than a week before their trial commenced. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% to the starting point for their pleas. This reduces the starting point to a sentence of 9 months’ imprisonment.
That discount for a guilty plea has an allowance for a clear record built into it. Unless there is more, such as evidence of positive good character then, there should be no further discount for a clear record. All the defendants here had a clear record at the time of the offence.
The 1st defendant
The 1st defendant is 73 years old. I have heard mitigation relating to that and his health. I will give the 1st defendant a further reduction of one month for these factors which would bring the sentence down to 8 months’ imprisonment.
I can see no reason to reduce that sentence any further. Therefore, I sentence the 1st defendant to 8 months’ imprisonment.
The 2nd defendant
The 2nd defendant is 72 years old. I will give the 2nd defendant a further reduction of one month for that factor. This brings his sentence down to 8 months’ imprisonment.
He wants no leniency from this court as he says his actions were to protect his right of assembly and an act of civil disobedience. Certainly the civil disobedience was non-violent. I have taken account what he said in MFI-2 but much of his statement and grievances relate to what happened in Hong Kong after he committed this offence.
Other than his service as a Legislator for many years, the 2nd defendant is known for his dedication to education and social work especially at the grassroots level. His Silver Bauhinia Star Award under the honours system of Hong Kong means he was recognised for either taking a leading role in public affairs or voluntary work over a long period of time for the good of Hong Kong.
I find that award to be evidence of exceptional public service and commitment therefore, that fact as well as his age gives me a valid reason to suspend that 8-month term of imprisonment.
I sentence the 2nd defendant to 8 months’ imprisonment suspended for 12 months.
The 2nd defendant is warned that if he is convicted of an offence punishable by imprisonment in the following 12 months from today then he will almost certainly serve this term of 8 months.
The 3rd defendant
The 3rd defendant is 64 years old. From information received, I have considered his commitment and contribution to public service especially where the welfare of workers is concerned. Such service deserves recognition and for that I give the 3rd defendant a further discount of 3 months.
I can see no reason to reduce that sentence any further. Therefore, I sentence the 3rd defendant to 6 months’ imprisonment.
( A J Woodcock )
District Judge
DCCC 536/2020
胡雅文
區院
不認罪
罪成
73
組織未經批准集結
緩刑
維園
DCCC 536/2020
[2021] HKDC 457
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 536 OF 2020
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HKSAR
v
LAI CHEE YING (D1)
LEE CHEUK YAN (D2)
NG NGOI YEE MARGARET (D3)
LEUNG KWOK HUNG (D4)
HO SAU LAN CYD (D5)
HO CHUN YAN (D6)
LEUNG YIU CHUNG (D7)
LEE CHU MING MARTIN (D8)
AU NOK HIN (D9)
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Before: Her Honour Judge A J Woodcock in Court
Date: 16 April 2021
Present: Ms Priscilia T Y Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Public Prosecutor, for HKSAR/Director of Public Prosecutions
Ms Audrey Eu, S C and Mr Edwin W B Choy, S C leading Mr Jeffrey C K Tam and Mr Ernie Tung instructed by Robertsons for the 1st defendant
Mr Philip J Dykes, S C leading Mr Chris C L Ng, Mr Christopher P H Kan and Mr Timothy R Wong instructed by JCC Cheung & Co for the 2nd & 5th defendants
Mr Ambrose Ho, S C leading Isaac C K Chan instructed by Ho Tse Wai & Partners for the 3rd defendant
Mr Hectar H Pun, S C leading Mr Anson Wong Yu Yat instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 4th defendant
Mr Graham Harris, S C and Mr Lawrence Lok, S C leading Ms Po Wing Kay, Mr Geoffrey Yeung and Mr Simon Kwok instructed by Ho Tse Wai & Partners for the 6th & 8th defendants
Mr Paul Harris, S C leading Ms Jacqueline H Y Lam, instructed by K B Chau & Co for the 7th defendant
Mr Man Ho Ching of Ho Tse Wai & Partners for the 9th defendant
Offence: [1] Organizing an unauthorized assembly（組織一個未經批准集結）
[2] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結）
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REASONS FOR SENTENCE
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I delivered my verdict on 1 April 2021 and convicted all defendants except D7 and D9 after trial of organising an unauthorised assembly under section 17A(3)(b)(i) and knowingly taking part in an unauthorised assembly under section 17A(3)(a) of the Public Order Ordinance, Cap 245, Charges 1 and 2.
D9 had indicated his intention to plead guilty to these 2 charges at the earliest opportunity and I convicted him after his plea on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
D7 indicated his plea of guilty to charge 2 after the trial was set down but before the 1st day commenced. The prosecution did not proceed with charge 1 and it was kept on the court file. D7 was convicted of charge 2 on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
The facts
My findings of fact are set out in full in my verdict. I do not intend to repeat the facts of the case nor my findings.
I found that the defendants had organised and knowingly taken part in a public procession from Victoria Park to Chater Road Central on 18 August 2019 when that public procession had been objected to by the Commissioner of Police and that objection upheld by a subsequent Appeal Board hearing.
I found the public procession constituted an unauthorised assembly by consisting of more than 30 people and being organised for a common purpose which was to “stop the police and gangsters from plunging Hong Kong into chaos, implement the 5 demands”.
All the defendants organized and formed the head of a procession carrying a long banner displaying the common purpose and led thousands of participants from Victoria Park at about 3pm to walk to Chater Road. The timing of it and the route they took mirrored the public procession banned by the Commissioner of police.
I found the defendants deliberately defied the law and circumvented the ban by alleging they acted on the invitation and instructions of the organisers of the authorised public meeting in Victoria Park, the Civil Human Rights Front, the CHRF, to assist in their dispersal plan of participants. The CHRF had described their method of dispersal of participants as a water flow meeting for the sole purpose of facilitating the ingress and egress of participants only.
I found the defendants had no reasonable excuse or lawful authority for taking part in an unauthorised assembly. I found no evidence of police tacit consent or implied authority for the CHRF to handle the dispersal of participants in this manner.
I found it was not a dispersal plan implemented with the assistance of the defendants but a planned unauthorised assembly to challenge the authority of the Police. It was planned in advance, announced in advance but those interviewed stopped short of admitting a plan to break the law. Nevertheless, what was said very publicly before the 18 August and what was organised on 18 August was irrefutable evidence when viewed as a whole of a premeditated intention to commit these offences.
This intention was succinctly verbalised by a Hong Kong-based singer and actress interviewed by a news channel immediately after the banner was laid down by the defendants on Chater Road outside the Court of Final Appeal at what was declared as the end of the procession. In exhibit P35, a media outlet “HK01” interviewed this participant in the procession at 4:48pm and she explained the procession was a way to get around the ban.
This interviewee said there was no choice but to use a different method if a public procession was not allowed. She said it showed how flexible and elastic Hong Kong people were if banned. It was not a public procession but only people leaving Victoria Park. She was not speaking for the defendants but it shows a participant knew it was not a dispersal plan for safety reasons.
I found the unauthorised assembly caused citywide traffic disruptions and road closures far beyond the vicinity of Victoria Park and the authorised public meeting. The evidence I accepted which was not disputed showed road closures late into the evening that would have affected traffic and road users. Many forms of public transport were either disrupted or diverted on both sides of the Harbour.
The Constitutional challenges on a systemic and operational level also failed. There was no successful challenge to the constitutionality of section 17A or its sanctions. There was no action taken on the day by the police that was excessive or without tolerance in mind.
I have heard full mitigation on behalf of all the defendants. The reality is that for all of these defendants before me, bar none, their reputations and careers are well known to all in Hong Kong. Many have provided me with a significant number of mitigation letters. I have read and taken them into account.
Background information of the defendants
The 1st defendant
The 1st defendant is now 73 years old and has no previous convictions. He was born in the Mainland and came to Hong Kong as a teenager by himself. He started from humble beginnings working as a handyman in a factory to become a self-made and successful businessman. He founded the retail brand Giordano. He sold his shares in that to focus on the media industry in the 1990s. He had by then founded “Next Digital Ltd” which later listed on the Hong Kong stock exchange. His mitigation submitted is at MFI-10.
He is married with 6 children and many grandchildren. In mitigation I have been urged to take into account that he has through his businesses made significant contributions to the media industry and the economy in Hong Kong. His more advanced age has been stressed as well as several medical conditions controlled by medication.
The 2nd defendant
The 2nd defendant is 64 years old and has no previous convictions. He graduated from the University of Hong Kong in 1978 with a bachelor of civil engineering degree. He was a politician and was a serving member of the legislature for many years.
He founded and is still connected to the Labour Party. He is now the general secretary of the Hong Kong Federation of Trade Unions and vice chairman of the Labour Party. His background and career in public service was provided to me in mitigation in open court.
The 3rd defendant
The 3rd defendant is 73 years old and she has no previous convictions. She is a barrister and politician who devoted 18 years to public service and the legal functional constituency. She is also a well-known journalist and author in Hong Kong. After retirement from the legislative Council in 2012 she dedicated her time to fighting for racial equality, serving the underprivileged, ethnic minorities and in particular, seeking equitable education for ethnic minority children.
To pursue those aims and give her time to those causes, the 3rd defendant has been a member and then Chair of the Executive Committee of Hong Kong Unison. I have had many letters of mitigation from highly respected members of the Hong Kong community. They make for impressive reading. Her mitigation submitted is at MFI-11.
She decided to discharge her legal representatives before mitigation and spoke for herself. I have taken on board all she has said. A copy of what she said is at MFI-11A.
The 4th defendant
The 4th defendant is now 65 years old. He too has been a member of the legislative Council for 12 years. He has many previous convictions, 17 in total with 3 similar to charges 1 and 2. All his other criminal convictions involve offences of a similar nature and many relate to public order offences. None of his previous convictions were offences motivated by greed, corruption, anger or dishonesty.
I have had sight of a radiologists report detailing the results of a calcium scoring and CT coronary angiography. There is no medical diagnosis obviously in this report but I have been told that two out of three heart blood vessels have blockages and he is on medication now. His mitigation submitted is at MFI-12.
The 5th defendant
The 5th defendant is now 66 years old and she has no previous convictions. She is a former legislator with many years’ service as well as a founding member of the Labour Party. She was appointed a Justice of the Peace in 2014. She too has devoted years to public service and I have had sight of numerous letters containing details of her commitment and support of many diverse sectors of society, from education resources for underprivileged children to sexual inequality. Her mitigation submitted is at MFI-13.
The 6th defendant
The 6th defendant is now 69 years old and has no previous convictions. He is a solicitor and founder of his own firm as well as a seasoned politician. He too is a former district councillor and legislative councillor with over 20 years’ service and has been a core member of the Democratic party.
He has campaigned for democracy and human rights for nearly 40 years and it is stressed always in a peaceful, rational and nonviolent manner. In written submissions the full details of his long career and commitment to public service is set out succinctly. His mitigation submitted is at MFI-14.
The 7th defendant
The 7th defendant is now 67 years old, pleaded guilty to charge 2 and has no previous convictions. He has served a lifetime of community and public service. The mitigation bundle prepared is detailed and contains a chronology of his career as a teacher, district board member then a member of the legislative Council. His contributions to Hong Kong and his campaigning for the underprivileged and minority groups are well-known. I have read the many impressive letters written on his behalf by respectable members of Hong Kong society from all walks of life.
The defendant is not a man who advocates violence. This is illustrated by a video of news footage of 1st July 2019 (Annex 3 of his mitigation bundle MFI-15) where he tries to get between rioters trying to break the glass doors of LEGCO. He opposed the attempt to enter the Legislative Council and tried to stop the crowds by standing in front of the glass doors but is bundled aside by black clad rioters.
The 8th defendant
The 8th defendant is 2 months’ shy of 83 years old and has no previous convictions. He is a leading Senior Counsel and served as the Chairman of the Hong Kong Bar Association. He is infamous for his distinguished legal career and pro bono work. He served as a member of the Hong Kong Basic Law Drafting Committee. He was one of the longest serving members of the Legislative Council; a service of over 22 years.
He has devoted much time and effort in serving the public and his constituency. He, like all the defendants here, is committed and dedicated to democracy and human rights. His mitigation submitted is at MFI-14.
The 9th defendant
The 9th defendant is now 33 years old and had no previous convictions at the time of the offence. I repeat he indicated his plea of guilty at the very earliest opportunity. He was a district councillor for 8 years and briefly a member of the Legislative Council as well as a lecturer in many tertiary educational institutions in Hong Kong. There are many letters of mitigation from friends and colleagues; they stress his public and community service should not be ignored. Many stress his peaceful, non-violent approach and principles. It is submitted his academic and social achievements are especially noteworthy as he is only 33 years old.
His substantial efforts in pursuing a career in academia and politics appear to be fading with his recent conviction of assaulting a police officer and other pending criminal charges. In his own mitigation letter he explains why he pleaded guilty, why he will no longer seek a career in politics and how he will seek to rebuild his life away from political activism. His mitigation submitted is at MFI-16.
Mitigation
I have heard full mitigation in open court and have the benefit of submissions prepared by counsel and need not set it out here.
All defendants submit that these charges and facts do not call for a custodial sentence. There are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been suggested that previous cases with similar charges have attracted financial penalties.
The call for a financial penalty is supported by the submission that the procession was peaceful with no violent incidents or conflicts arising. Severe sanctions are inappropriate and disproportionate. The disruption to the roads and public transport system was not severe nor wholly related to the unauthorised assembly. Much of the traffic congestion around Victoria Park was related to the authorised public meeting.
Principles of Sentencing
It is correct there are no prevailing guidelines or tariffs for sentences for the present charges. The great majority of the past cases with similar offences do either involve a bind over order or a financial penalty but none of those cases I have been referred to by the defence stem from the social unrest and turmoil of 2019 or anything like it.
Public order offences have been established as an exception to the general principle that a deterrent sentence should not be passed on a person with a clear record and I have referred myself to page 13 of R v Nguyen Quang Thong & Ors (1992) 2 HKCLR 10. All defendants here but the 4th defendant had a clear record.
I have been referred to reasons for judgement arising from HKSAR v Chow Ting HCMA 374/2020, a bail application pending a magistracy appeal. I thank the prosecution for a translation of those reasons. There, Barnes J refused bail pending appeal for the applicant Chow Ting. She had been sentenced to 10 months’ imprisonment for incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly.
The facts of that case are set out in those reasons for judgement and involve large crowds of protesters gathering first in the vicinity of the Central Government Offices on 21 June 2019 before more crowds proceeded to besiege the Police Headquarters. That was a day that ended in violence, conflict, damage to property, an attack on the police headquarters itself and its operation as well as severe traffic disruption until the early hours of the morning.
The relevance of that case and the reasons for judgement is because the learned Magistrate referred to the sentencing considerations and factors set out in the Secretary for Justice v Wong Chi Fung 2018 2 HKLRD 699; sentencing guidelines for offences of unlawful assembly.
Barnes J was only concerned with the application for bail pending appeal and not the appeal itself which is still to be heard but she did state the reasons why she found the applicant had failed to demonstrate that her appeal had a very high or reasonable prospect of success.
More importantly, and relied on heavily by the prosecution here is that she agreed with the learned magistrate and found nothing wrong with her “drawing on” the sentencing factors in Wong Chi Fung when deciding a custodial sentence was appropriate for an unauthorized assembly and said it was clearly far from being wrong in principle.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. In the context of unlawful assemblies involving violence, it was held by the court that the sentencing court’s main consideration is the punishment of the offender, as well as deterring others from breaking the law in a similar manner. These are the weighty factors and the offender’s personal circumstances will not be regarded as significant mitigation. The Court of Final Appeal endorsed those observations in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35.
The Court of Appeal found it necessary to expound on the principles on sentencing in unlawful assemblies that involved violence. In paragraph 108 Poon JA, as he then was, set out the sentencing principles applicable to the charges. Particularly, in paragraph 127 he stressed that the sentence imposed must be appropriate to the punishment of the offenders but also takes into account the factor of deterrence on the basic premise that public order must be maintained and reflects the gravamen of the offence of unlawful assembly.
In paragraph 135 he identified facts relevant and pertinent to unlawful assembly offences involving violence. But before that Poon JA discussed not only unlawful assembly involving violence but also unlawful assembly involving no actual violence.
In the judgement of Secretary for Justice v Chung Ka Ho CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen from Wong Chi Fung that cases that warrant the courts serious treatment include an unlawful assembly without actual violence, which could become imminent, given the overall circumstances. Essentially, the Court of Appeal said it is artificial and unreasonable to divide unlawful assemblies by violence when passing sentence; it all depends on the actual circumstances in each case. Equally, the Court of Appeal did not say deterrent sentences should not be imposed in the absence of actual violence.
The Court of Appeal in Chung Ka Ho at paragraph 55 point out that the factors identified by Poon JA in paragraph 135 in Wong Chi Fung can if adjusted, apply equally to unlawful assemblies with no violence. Therefore, it is not right to suggest that the judgement in Wong Chi Fung is solely applicable to unlawful assembly involving violence.
Although Wong Chi Fung involved an unlawful assembly involving violence, Barnes J saw nothing wrong with the magistrate drawing on the sentencing considerations because the charges in both Wong Chi Fung and Chow Ting were contrary to the Public Order Ordinance. Secondly the maximum penalty for those offences in those cases were the same. Thirdly both cases were of a similar nature in that they involved crowd gatherings and lastly those demonstrations and gatherings arose from social issues.
Although this case before me involves an unauthorised assembly on 18 August, if I take into account the overall circumstances, the social unrest witnessed from June 2019 that was as relentless as it was violent and disturbing then I find I can and should consider sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I too can draw on the sentencing principles in that authority but bear in mind these charges involve an unauthorised not an unlawful assembly.
The facts of this case and offences affected the public; members of the public not participating. There was widespread traffic and public transport disruption. By identifying as a principle “meting out penalties”, the Court of Appeal were reiterating the obvious and that is any sentence imposed ought to be commensurate with the offence committed. One that reflects the seriousness of the offence and the culpability of the offender. The open condemnation factor is self-explanatory, the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender.
The factor of deterrence serves as a warning to others and prevents the offender from reoffending. The need for deterrent sentences cannot be limited to an unlawful assembly or more serious public order offences. The need to consider a deterrent sentence will often depend on the prevailing circumstances at the time. In fact, all sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation of 2019.
The fact that I draw on the aforesaid sentencing principles does not mean I am retrospectively imposing a more severe sentence based on new sentencing guidelines from the Court of Appeal in Wong Chi Fung.
Reasons for Sentence
I repeat here as I said in my verdict that the Basic Law guarantees freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional. Those freedoms are enjoyed subject to those restrictions irrespective of a defendant’s politics. The common purpose of the procession as well as the politics and stance of any participant that day on 18 August 2019 are irrelevant to sentencing just as they were irrelevant to the legal issues that arose during the trial.
This unauthorised procession did proceed peacefully but we know from experience, in particular in those volatile months in 2019 that when a large number of demonstrators gather, emotions are likely to run high which means those situations have an inherent latent risk of breaking out into violence.
We know from the prosecution witnesses that the police were most concerned that unruly elements may be present amongst peaceful protesters who would seize the opportunity to achieve the very objective of inciting or brewing violence. The police then decided to be invisible so as not to provide an opportunity or an excuse for conflict.
The present case involved a direct challenge to the authority of the police, law and order. The Commissioner of Police had banned a public procession and a 2nd public meeting but authorised a meeting in Victoria Park. In a police conference an explanation was given why consent was not forthcoming to the CHRF.
Yet, despite that and the risk above, the defendants went on to organise it; all defendants were well known figures that together as the head of a procession were guaranteed to draw a crowd and followers. Influential people can draw a crowd and can wield a certain influence.
The fact that these particular defendants made a conscious decision to break the law and challenge public order in this manner during such volatile times was serious. That I find an aggravating factor or the gravamen of these facts I found proved. Actions have consequences for everyone irrespective of who they are. This is more so when I have a duty in sentencing to ensure public order.
In addition, I take into account the background behind the commission of these offences. I take into account my finding that the unauthorised assembly was premeditated with prior planning to thwart the police ban. It was made known that there was a plan to circumvent the ban despite calling the procession a dispersal plan or water flow meeting. There were many prior calls publicly for as many people as possible to jam pack Victoria Park and to participate in this water flow meeting. It was no coincident that the dispersal plan mirrored the timing and route of the banned procession.
The scale of the unauthorised assembly is relevant; the procession from Victoria Park to Chater Gardens was on a massive scale and long-lasting. That is notwithstanding I accept there would have been disruptions in the vicinity of Victoria Park from the authorized public meeting. Moreover, as I have noted above, taking into account the circumstances prevailing in Hong Kong at that time, a procession of that size posed an inherent latent risk of possible violence.
Therefore, the procession may have been peaceful but there was a significant degree of disruption to roads for hours and public transport routes that stretched across the harbour.
As a result, and after careful consideration of the above principles and factors as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
The fact all but the 7th and 9th defendant were convicted after trial as well as being a premeditated and direct challenge to law and order when emotions were running so high in Hong Kong means a community service order would not be appropriate.
The background and facts of this case call for a custodial sentence. I have referred myself to Wong Chi Fung at paragraph 172 where what Pang JA said is applicable to this case and the circumstances that were prevailing in Hong Kong at that time. That is even though the charge there was more serious. I quote;
“172. I agree with the judgements of Yeung VP and Poon JA. The more one feels about an issue, the more one wishes to press one’s point and the more one desires that there should be progress in the matter. This is all very understandable. However, if in the course of advocating one’s demand, one is given to the position that some long and well established law is but an unreasonable restriction on the right to freedom of expression, plus indulging one in the self-satisfaction of having broken the law as one pleases, that is not a situation which would on any ground enable the courts to pass unduly lenient sentences. An offender who is inflicted with such an attitude not only breaks the law in conduct, but in his mind too he harbours contempt and regards himself as being above the law. With respect to controversial matters of public debate where emotions are easily stirred, the grave consequences of such an attitude gaining ground are self-evident…”
I have taken into account the facts, the mitigation and all submissions put forward on behalf of all defendants. I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
Having said that, where applicable and because it was a peaceful assembly, the positive good character of some defendants, the even more significant and worthy public service from others will be taken into account. It is impossible to list the individual significant commitment and contributions of some to the law, society, children, the underprivileged, minority groups, education issues, sexual and racial equality but it is weighty.
I also say here that I intend to make the sentences for Charges 1 and 2 concurrent for every defendant in light of the facts, close nature of the charges and totality principle.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, organising an unauthorised assembly, I do differentiate between some of the defendants. I made it clear in my verdict that the evidence showed that the 2nd, 4th and 9th defendant appeared at press conferences, either immediately after the CHRF appeal was dismissed or the following day, 17 August 2019, in Victoria Park and were very vocal. I won’t repeat what they said but I found they encouraged crowds to come to “jam pack” Victoria Park and insinuated there would be a procession out of there despite the police ban. What they and in particular, the 4th defendant had to say almost amounted to a rallying cry.
After all relevant factors are taken into consideration, in my judgement, for the 2nd, 4th and 9th defendant a starting point of 18 months’ imprisonment is appropriate.
For the remaining defendants, in my judgement, a starting point of 15 months’ imprisonment is appropriate.
Charge 2 – Starting Point
I find all defendants equally culpable in knowingly taking part in this unauthorised assembly. It is true some walked in silence, some replied to political slogans and others took the lead to chant those slogans but I do not differentiate between them for the purposes of this offence.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
Reductions
I am aware that a clear record is not significant mitigation where public order offences are concerned nor are personal mitigating circumstances where deterrent sentences are to be imposed. Nevertheless, in light of the more advanced ages of most of the defendants here and their public service to Hong Kong, I cannot ignore this type of mitigation altogether.
The 1st defendant
I have considered his age, clear record and health issues. The 1st defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
Therefore, the 1st defendant is sentenced to 12 months’ imprisonment for charge 1 and 9 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 2nd defendant
I have considered his age and clear record. For that, the 2nd defendant is given a three-month reduction from the 18 months and 12 months of charges 1 and 2 respectively.
From information provided today, I have considered his commitment and contribution to public service especially where the welfare of workers is concerned. Such service deserves recognition and for that I give the 2nd defendant a further discount of 3 months.
Therefore, the 2nd defendant is sentenced to 12 months’ imprisonment for charge 1 and 6 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 3rd defendant
I have considered her age of 73, clear record as well as her exceptional and obvious commitment over decades to public service. Not only is she a person of positive good character, but an altruist; her dedication to the community when a legislator and in her retirement is worthy of note. I am impressed by the letters referring to her lifelong dedication and contributions.
Against that background of her age and exceptional public service, I find there to be valid reason and justification to suspend the terms of imprisonment I have imposed. I first reduce the 15 months of charge 1 and 12 months of charge 2 by 3 months.
After that reduction is applied, the 3rd defendant is sentenced to 12 months for charge 1 and 9 months for charge 2. Both to be served concurrently. Both those sentences are suspended for 24 months.
Therefore, the 3rd defendant is sentenced to a total of 12 months’ imprisonment suspended for 24 months.
The 3rd defendant is warned that if she is convicted of an offence punishable by imprisonment in the following 24 months from today then she will most certainly serve this twelve-month term of imprisonment.
The 4th defendant
I have considered his age and health. It appears his ailment is under control with medication; I am not informed otherwise. The 4th defendant has a good number of previous convictions; he does not have the benefit of a clear record. However, I have considered the nature of his previous convictions and do not impose a heavier sentence on the 4th defendant on account of his criminal record.
What it does mean is that I see no reason to reduce the sentences any further. Therefore, for the reasons given, the 4th defendant is sentenced to 18 months’ imprisonment for charge 1 and 12 months’ imprisonment for charge 2, to be served concurrently; a total of 18 months’ imprisonment.
The 5th defendant
I have considered her age and clear record. The 5th defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
From the information I have, she too can be described as a person of positive good character. By that I
DCCC 536/2020
胡雅文
區院
不認罪
罪成
70
組織未經批准集結
緩刑
維園
DCCC 536/2020
[2021] HKDC 457
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 536 OF 2020
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HKSAR
v
LAI CHEE YING (D1)
LEE CHEUK YAN (D2)
NG NGOI YEE MARGARET (D3)
LEUNG KWOK HUNG (D4)
HO SAU LAN CYD (D5)
HO CHUN YAN (D6)
LEUNG YIU CHUNG (D7)
LEE CHU MING MARTIN (D8)
AU NOK HIN (D9)
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 16 April 2021
Present: Ms Priscilia T Y Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Public Prosecutor, for HKSAR/Director of Public Prosecutions
Ms Audrey Eu, S C and Mr Edwin W B Choy, S C leading Mr Jeffrey C K Tam and Mr Ernie Tung instructed by Robertsons for the 1st defendant
Mr Philip J Dykes, S C leading Mr Chris C L Ng, Mr Christopher P H Kan and Mr Timothy R Wong instructed by JCC Cheung & Co for the 2nd & 5th defendants
Mr Ambrose Ho, S C leading Isaac C K Chan instructed by Ho Tse Wai & Partners for the 3rd defendant
Mr Hectar H Pun, S C leading Mr Anson Wong Yu Yat instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 4th defendant
Mr Graham Harris, S C and Mr Lawrence Lok, S C leading Ms Po Wing Kay, Mr Geoffrey Yeung and Mr Simon Kwok instructed by Ho Tse Wai & Partners for the 6th & 8th defendants
Mr Paul Harris, S C leading Ms Jacqueline H Y Lam, instructed by K B Chau & Co for the 7th defendant
Mr Man Ho Ching of Ho Tse Wai & Partners for the 9th defendant
Offence: [1] Organizing an unauthorized assembly（組織一個未經批准集結）
[2] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結）
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REASONS FOR SENTENCE
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I delivered my verdict on 1 April 2021 and convicted all defendants except D7 and D9 after trial of organising an unauthorised assembly under section 17A(3)(b)(i) and knowingly taking part in an unauthorised assembly under section 17A(3)(a) of the Public Order Ordinance, Cap 245, Charges 1 and 2.
D9 had indicated his intention to plead guilty to these 2 charges at the earliest opportunity and I convicted him after his plea on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
D7 indicated his plea of guilty to charge 2 after the trial was set down but before the 1st day commenced. The prosecution did not proceed with charge 1 and it was kept on the court file. D7 was convicted of charge 2 on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
The facts
My findings of fact are set out in full in my verdict. I do not intend to repeat the facts of the case nor my findings.
I found that the defendants had organised and knowingly taken part in a public procession from Victoria Park to Chater Road Central on 18 August 2019 when that public procession had been objected to by the Commissioner of Police and that objection upheld by a subsequent Appeal Board hearing.
I found the public procession constituted an unauthorised assembly by consisting of more than 30 people and being organised for a common purpose which was to “stop the police and gangsters from plunging Hong Kong into chaos, implement the 5 demands”.
All the defendants organized and formed the head of a procession carrying a long banner displaying the common purpose and led thousands of participants from Victoria Park at about 3pm to walk to Chater Road. The timing of it and the route they took mirrored the public procession banned by the Commissioner of police.
I found the defendants deliberately defied the law and circumvented the ban by alleging they acted on the invitation and instructions of the organisers of the authorised public meeting in Victoria Park, the Civil Human Rights Front, the CHRF, to assist in their dispersal plan of participants. The CHRF had described their method of dispersal of participants as a water flow meeting for the sole purpose of facilitating the ingress and egress of participants only.
I found the defendants had no reasonable excuse or lawful authority for taking part in an unauthorised assembly. I found no evidence of police tacit consent or implied authority for the CHRF to handle the dispersal of participants in this manner.
I found it was not a dispersal plan implemented with the assistance of the defendants but a planned unauthorised assembly to challenge the authority of the Police. It was planned in advance, announced in advance but those interviewed stopped short of admitting a plan to break the law. Nevertheless, what was said very publicly before the 18 August and what was organised on 18 August was irrefutable evidence when viewed as a whole of a premeditated intention to commit these offences.
This intention was succinctly verbalised by a Hong Kong-based singer and actress interviewed by a news channel immediately after the banner was laid down by the defendants on Chater Road outside the Court of Final Appeal at what was declared as the end of the procession. In exhibit P35, a media outlet “HK01” interviewed this participant in the procession at 4:48pm and she explained the procession was a way to get around the ban.
This interviewee said there was no choice but to use a different method if a public procession was not allowed. She said it showed how flexible and elastic Hong Kong people were if banned. It was not a public procession but only people leaving Victoria Park. She was not speaking for the defendants but it shows a participant knew it was not a dispersal plan for safety reasons.
I found the unauthorised assembly caused citywide traffic disruptions and road closures far beyond the vicinity of Victoria Park and the authorised public meeting. The evidence I accepted which was not disputed showed road closures late into the evening that would have affected traffic and road users. Many forms of public transport were either disrupted or diverted on both sides of the Harbour.
The Constitutional challenges on a systemic and operational level also failed. There was no successful challenge to the constitutionality of section 17A or its sanctions. There was no action taken on the day by the police that was excessive or without tolerance in mind.
I have heard full mitigation on behalf of all the defendants. The reality is that for all of these defendants before me, bar none, their reputations and careers are well known to all in Hong Kong. Many have provided me with a significant number of mitigation letters. I have read and taken them into account.
Background information of the defendants
The 1st defendant
The 1st defendant is now 73 years old and has no previous convictions. He was born in the Mainland and came to Hong Kong as a teenager by himself. He started from humble beginnings working as a handyman in a factory to become a self-made and successful businessman. He founded the retail brand Giordano. He sold his shares in that to focus on the media industry in the 1990s. He had by then founded “Next Digital Ltd” which later listed on the Hong Kong stock exchange. His mitigation submitted is at MFI-10.
He is married with 6 children and many grandchildren. In mitigation I have been urged to take into account that he has through his businesses made significant contributions to the media industry and the economy in Hong Kong. His more advanced age has been stressed as well as several medical conditions controlled by medication.
The 2nd defendant
The 2nd defendant is 64 years old and has no previous convictions. He graduated from the University of Hong Kong in 1978 with a bachelor of civil engineering degree. He was a politician and was a serving member of the legislature for many years.
He founded and is still connected to the Labour Party. He is now the general secretary of the Hong Kong Federation of Trade Unions and vice chairman of the Labour Party. His background and career in public service was provided to me in mitigation in open court.
The 3rd defendant
The 3rd defendant is 73 years old and she has no previous convictions. She is a barrister and politician who devoted 18 years to public service and the legal functional constituency. She is also a well-known journalist and author in Hong Kong. After retirement from the legislative Council in 2012 she dedicated her time to fighting for racial equality, serving the underprivileged, ethnic minorities and in particular, seeking equitable education for ethnic minority children.
To pursue those aims and give her time to those causes, the 3rd defendant has been a member and then Chair of the Executive Committee of Hong Kong Unison. I have had many letters of mitigation from highly respected members of the Hong Kong community. They make for impressive reading. Her mitigation submitted is at MFI-11.
She decided to discharge her legal representatives before mitigation and spoke for herself. I have taken on board all she has said. A copy of what she said is at MFI-11A.
The 4th defendant
The 4th defendant is now 65 years old. He too has been a member of the legislative Council for 12 years. He has many previous convictions, 17 in total with 3 similar to charges 1 and 2. All his other criminal convictions involve offences of a similar nature and many relate to public order offences. None of his previous convictions were offences motivated by greed, corruption, anger or dishonesty.
I have had sight of a radiologists report detailing the results of a calcium scoring and CT coronary angiography. There is no medical diagnosis obviously in this report but I have been told that two out of three heart blood vessels have blockages and he is on medication now. His mitigation submitted is at MFI-12.
The 5th defendant
The 5th defendant is now 66 years old and she has no previous convictions. She is a former legislator with many years’ service as well as a founding member of the Labour Party. She was appointed a Justice of the Peace in 2014. She too has devoted years to public service and I have had sight of numerous letters containing details of her commitment and support of many diverse sectors of society, from education resources for underprivileged children to sexual inequality. Her mitigation submitted is at MFI-13.
The 6th defendant
The 6th defendant is now 69 years old and has no previous convictions. He is a solicitor and founder of his own firm as well as a seasoned politician. He too is a former district councillor and legislative councillor with over 20 years’ service and has been a core member of the Democratic party.
He has campaigned for democracy and human rights for nearly 40 years and it is stressed always in a peaceful, rational and nonviolent manner. In written submissions the full details of his long career and commitment to public service is set out succinctly. His mitigation submitted is at MFI-14.
The 7th defendant
The 7th defendant is now 67 years old, pleaded guilty to charge 2 and has no previous convictions. He has served a lifetime of community and public service. The mitigation bundle prepared is detailed and contains a chronology of his career as a teacher, district board member then a member of the legislative Council. His contributions to Hong Kong and his campaigning for the underprivileged and minority groups are well-known. I have read the many impressive letters written on his behalf by respectable members of Hong Kong society from all walks of life.
The defendant is not a man who advocates violence. This is illustrated by a video of news footage of 1st July 2019 (Annex 3 of his mitigation bundle MFI-15) where he tries to get between rioters trying to break the glass doors of LEGCO. He opposed the attempt to enter the Legislative Council and tried to stop the crowds by standing in front of the glass doors but is bundled aside by black clad rioters.
The 8th defendant
The 8th defendant is 2 months’ shy of 83 years old and has no previous convictions. He is a leading Senior Counsel and served as the Chairman of the Hong Kong Bar Association. He is infamous for his distinguished legal career and pro bono work. He served as a member of the Hong Kong Basic Law Drafting Committee. He was one of the longest serving members of the Legislative Council; a service of over 22 years.
He has devoted much time and effort in serving the public and his constituency. He, like all the defendants here, is committed and dedicated to democracy and human rights. His mitigation submitted is at MFI-14.
The 9th defendant
The 9th defendant is now 33 years old and had no previous convictions at the time of the offence. I repeat he indicated his plea of guilty at the very earliest opportunity. He was a district councillor for 8 years and briefly a member of the Legislative Council as well as a lecturer in many tertiary educational institutions in Hong Kong. There are many letters of mitigation from friends and colleagues; they stress his public and community service should not be ignored. Many stress his peaceful, non-violent approach and principles. It is submitted his academic and social achievements are especially noteworthy as he is only 33 years old.
His substantial efforts in pursuing a career in academia and politics appear to be fading with his recent conviction of assaulting a police officer and other pending criminal charges. In his own mitigation letter he explains why he pleaded guilty, why he will no longer seek a career in politics and how he will seek to rebuild his life away from political activism. His mitigation submitted is at MFI-16.
Mitigation
I have heard full mitigation in open court and have the benefit of submissions prepared by counsel and need not set it out here.
All defendants submit that these charges and facts do not call for a custodial sentence. There are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been suggested that previous cases with similar charges have attracted financial penalties.
The call for a financial penalty is supported by the submission that the procession was peaceful with no violent incidents or conflicts arising. Severe sanctions are inappropriate and disproportionate. The disruption to the roads and public transport system was not severe nor wholly related to the unauthorised assembly. Much of the traffic congestion around Victoria Park was related to the authorised public meeting.
Principles of Sentencing
It is correct there are no prevailing guidelines or tariffs for sentences for the present charges. The great majority of the past cases with similar offences do either involve a bind over order or a financial penalty but none of those cases I have been referred to by the defence stem from the social unrest and turmoil of 2019 or anything like it.
Public order offences have been established as an exception to the general principle that a deterrent sentence should not be passed on a person with a clear record and I have referred myself to page 13 of R v Nguyen Quang Thong & Ors (1992) 2 HKCLR 10. All defendants here but the 4th defendant had a clear record.
I have been referred to reasons for judgement arising from HKSAR v Chow Ting HCMA 374/2020, a bail application pending a magistracy appeal. I thank the prosecution for a translation of those reasons. There, Barnes J refused bail pending appeal for the applicant Chow Ting. She had been sentenced to 10 months’ imprisonment for incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly.
The facts of that case are set out in those reasons for judgement and involve large crowds of protesters gathering first in the vicinity of the Central Government Offices on 21 June 2019 before more crowds proceeded to besiege the Police Headquarters. That was a day that ended in violence, conflict, damage to property, an attack on the police headquarters itself and its operation as well as severe traffic disruption until the early hours of the morning.
The relevance of that case and the reasons for judgement is because the learned Magistrate referred to the sentencing considerations and factors set out in the Secretary for Justice v Wong Chi Fung 2018 2 HKLRD 699; sentencing guidelines for offences of unlawful assembly.
Barnes J was only concerned with the application for bail pending appeal and not the appeal itself which is still to be heard but she did state the reasons why she found the applicant had failed to demonstrate that her appeal had a very high or reasonable prospect of success.
More importantly, and relied on heavily by the prosecution here is that she agreed with the learned magistrate and found nothing wrong with her “drawing on” the sentencing factors in Wong Chi Fung when deciding a custodial sentence was appropriate for an unauthorized assembly and said it was clearly far from being wrong in principle.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. In the context of unlawful assemblies involving violence, it was held by the court that the sentencing court’s main consideration is the punishment of the offender, as well as deterring others from breaking the law in a similar manner. These are the weighty factors and the offender’s personal circumstances will not be regarded as significant mitigation. The Court of Final Appeal endorsed those observations in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35.
The Court of Appeal found it necessary to expound on the principles on sentencing in unlawful assemblies that involved violence. In paragraph 108 Poon JA, as he then was, set out the sentencing principles applicable to the charges. Particularly, in paragraph 127 he stressed that the sentence imposed must be appropriate to the punishment of the offenders but also takes into account the factor of deterrence on the basic premise that public order must be maintained and reflects the gravamen of the offence of unlawful assembly.
In paragraph 135 he identified facts relevant and pertinent to unlawful assembly offences involving violence. But before that Poon JA discussed not only unlawful assembly involving violence but also unlawful assembly involving no actual violence.
In the judgement of Secretary for Justice v Chung Ka Ho CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen from Wong Chi Fung that cases that warrant the courts serious treatment include an unlawful assembly without actual violence, which could become imminent, given the overall circumstances. Essentially, the Court of Appeal said it is artificial and unreasonable to divide unlawful assemblies by violence when passing sentence; it all depends on the actual circumstances in each case. Equally, the Court of Appeal did not say deterrent sentences should not be imposed in the absence of actual violence.
The Court of Appeal in Chung Ka Ho at paragraph 55 point out that the factors identified by Poon JA in paragraph 135 in Wong Chi Fung can if adjusted, apply equally to unlawful assemblies with no violence. Therefore, it is not right to suggest that the judgement in Wong Chi Fung is solely applicable to unlawful assembly involving violence.
Although Wong Chi Fung involved an unlawful assembly involving violence, Barnes J saw nothing wrong with the magistrate drawing on the sentencing considerations because the charges in both Wong Chi Fung and Chow Ting were contrary to the Public Order Ordinance. Secondly the maximum penalty for those offences in those cases were the same. Thirdly both cases were of a similar nature in that they involved crowd gatherings and lastly those demonstrations and gatherings arose from social issues.
Although this case before me involves an unauthorised assembly on 18 August, if I take into account the overall circumstances, the social unrest witnessed from June 2019 that was as relentless as it was violent and disturbing then I find I can and should consider sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I too can draw on the sentencing principles in that authority but bear in mind these charges involve an unauthorised not an unlawful assembly.
The facts of this case and offences affected the public; members of the public not participating. There was widespread traffic and public transport disruption. By identifying as a principle “meting out penalties”, the Court of Appeal were reiterating the obvious and that is any sentence imposed ought to be commensurate with the offence committed. One that reflects the seriousness of the offence and the culpability of the offender. The open condemnation factor is self-explanatory, the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender.
The factor of deterrence serves as a warning to others and prevents the offender from reoffending. The need for deterrent sentences cannot be limited to an unlawful assembly or more serious public order offences. The need to consider a deterrent sentence will often depend on the prevailing circumstances at the time. In fact, all sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation of 2019.
The fact that I draw on the aforesaid sentencing principles does not mean I am retrospectively imposing a more severe sentence based on new sentencing guidelines from the Court of Appeal in Wong Chi Fung.
Reasons for Sentence
I repeat here as I said in my verdict that the Basic Law guarantees freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional. Those freedoms are enjoyed subject to those restrictions irrespective of a defendant’s politics. The common purpose of the procession as well as the politics and stance of any participant that day on 18 August 2019 are irrelevant to sentencing just as they were irrelevant to the legal issues that arose during the trial.
This unauthorised procession did proceed peacefully but we know from experience, in particular in those volatile months in 2019 that when a large number of demonstrators gather, emotions are likely to run high which means those situations have an inherent latent risk of breaking out into violence.
We know from the prosecution witnesses that the police were most concerned that unruly elements may be present amongst peaceful protesters who would seize the opportunity to achieve the very objective of inciting or brewing violence. The police then decided to be invisible so as not to provide an opportunity or an excuse for conflict.
The present case involved a direct challenge to the authority of the police, law and order. The Commissioner of Police had banned a public procession and a 2nd public meeting but authorised a meeting in Victoria Park. In a police conference an explanation was given why consent was not forthcoming to the CHRF.
Yet, despite that and the risk above, the defendants went on to organise it; all defendants were well known figures that together as the head of a procession were guaranteed to draw a crowd and followers. Influential people can draw a crowd and can wield a certain influence.
The fact that these particular defendants made a conscious decision to break the law and challenge public order in this manner during such volatile times was serious. That I find an aggravating factor or the gravamen of these facts I found proved. Actions have consequences for everyone irrespective of who they are. This is more so when I have a duty in sentencing to ensure public order.
In addition, I take into account the background behind the commission of these offences. I take into account my finding that the unauthorised assembly was premeditated with prior planning to thwart the police ban. It was made known that there was a plan to circumvent the ban despite calling the procession a dispersal plan or water flow meeting. There were many prior calls publicly for as many people as possible to jam pack Victoria Park and to participate in this water flow meeting. It was no coincident that the dispersal plan mirrored the timing and route of the banned procession.
The scale of the unauthorised assembly is relevant; the procession from Victoria Park to Chater Gardens was on a massive scale and long-lasting. That is notwithstanding I accept there would have been disruptions in the vicinity of Victoria Park from the authorized public meeting. Moreover, as I have noted above, taking into account the circumstances prevailing in Hong Kong at that time, a procession of that size posed an inherent latent risk of possible violence.
Therefore, the procession may have been peaceful but there was a significant degree of disruption to roads for hours and public transport routes that stretched across the harbour.
As a result, and after careful consideration of the above principles and factors as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
The fact all but the 7th and 9th defendant were convicted after trial as well as being a premeditated and direct challenge to law and order when emotions were running so high in Hong Kong means a community service order would not be appropriate.
The background and facts of this case call for a custodial sentence. I have referred myself to Wong Chi Fung at paragraph 172 where what Pang JA said is applicable to this case and the circumstances that were prevailing in Hong Kong at that time. That is even though the charge there was more serious. I quote;
“172. I agree with the judgements of Yeung VP and Poon JA. The more one feels about an issue, the more one wishes to press one’s point and the more one desires that there should be progress in the matter. This is all very understandable. However, if in the course of advocating one’s demand, one is given to the position that some long and well established law is but an unreasonable restriction on the right to freedom of expression, plus indulging one in the self-satisfaction of having broken the law as one pleases, that is not a situation which would on any ground enable the courts to pass unduly lenient sentences. An offender who is inflicted with such an attitude not only breaks the law in conduct, but in his mind too he harbours contempt and regards himself as being above the law. With respect to controversial matters of public debate where emotions are easily stirred, the grave consequences of such an attitude gaining ground are self-evident…”
I have taken into account the facts, the mitigation and all submissions put forward on behalf of all defendants. I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
Having said that, where applicable and because it was a peaceful assembly, the positive good character of some defendants, the even more significant and worthy public service from others will be taken into account. It is impossible to list the individual significant commitment and contributions of some to the law, society, children, the underprivileged, minority groups, education issues, sexual and racial equality but it is weighty.
I also say here that I intend to make the sentences for Charges 1 and 2 concurrent for every defendant in light of the facts, close nature of the charges and totality principle.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, organising an unauthorised assembly, I do differentiate between some of the defendants. I made it clear in my verdict that the evidence showed that the 2nd, 4th and 9th defendant appeared at press conferences, either immediately after the CHRF appeal was dismissed or the following day, 17 August 2019, in Victoria Park and were very vocal. I won’t repeat what they said but I found they encouraged crowds to come to “jam pack” Victoria Park and insinuated there would be a procession out of there despite the police ban. What they and in particular, the 4th defendant had to say almost amounted to a rallying cry.
After all relevant factors are taken into consideration, in my judgement, for the 2nd, 4th and 9th defendant a starting point of 18 months’ imprisonment is appropriate.
For the remaining defendants, in my judgement, a starting point of 15 months’ imprisonment is appropriate.
Charge 2 – Starting Point
I find all defendants equally culpable in knowingly taking part in this unauthorised assembly. It is true some walked in silence, some replied to political slogans and others took the lead to chant those slogans but I do not differentiate between them for the purposes of this offence.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
Reductions
I am aware that a clear record is not significant mitigation where public order offences are concerned nor are personal mitigating circumstances where deterrent sentences are to be imposed. Nevertheless, in light of the more advanced ages of most of the defendants here and their public service to Hong Kong, I cannot ignore this type of mitigation altogether.
The 1st defendant
I have considered his age, clear record and health issues. The 1st defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
Therefore, the 1st defendant is sentenced to 12 months’ imprisonment for charge 1 and 9 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 2nd defendant
I have considered his age and clear record. For that, the 2nd defendant is given a three-month reduction from the 18 months and 12 months of charges 1 and 2 respectively.
From information provided today, I have considered his commitment and contribution to public service especially where the welfare of workers is concerned. Such service deserves recognition and for that I give the 2nd defendant a further discount of 3 months.
Therefore, the 2nd defendant is sentenced to 12 months’ imprisonment for charge 1 and 6 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 3rd defendant
I have considered her age of 73, clear record as well as her exceptional and obvious commitment over decades to public service. Not only is she a person of positive good character, but an altruist; her dedication to the community when a legislator and in her retirement is worthy of note. I am impressed by the letters referring to her lifelong dedication and contributions.
Against that background of her age and exceptional public service, I find there to be valid reason and justification to suspend the terms of imprisonment I have imposed. I first reduce the 15 months of charge 1 and 12 months of charge 2 by 3 months.
After that reduction is applied, the 3rd defendant is sentenced to 12 months for charge 1 and 9 months for charge 2. Both to be served concurrently. Both those sentences are suspended for 24 months.
Therefore, the 3rd defendant is sentenced to a total of 12 months’ imprisonment suspended for 24 months.
The 3rd defendant is warned that if she is convicted of an offence punishable by imprisonment in the following 24 months from today then she will most certainly serve this twelve-month term of imprisonment.
The 4th defendant
I have considered his age and health. It appears his ailment is under control with medication; I am not informed otherwise. The 4th defendant has a good number of previous convictions; he does not have the benefit of a clear record. However, I have considered the nature of his previous convictions and do not impose a heavier sentence on the 4th defendant on account of his criminal record.
What it does mean is that I see no reason to reduce the sentences any further. Therefore, for the reasons given, the 4th defendant is sentenced to 18 months’ imprisonment for charge 1 and 12 months’ imprisonment for charge 2, to be served concurrently; a total of 18 months’ imprisonment.
The 5th defendant
I have considered her age and clear record. The 5th defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
From the information I have, she too can be described as a person of positive good character. By that I
DCCC 536/2020
胡雅文
區院
不認罪
罪成
82
組織未經批准集結
緩刑
維園
DCCC 536/2020
[2021] HKDC 457
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 536 OF 2020
—————————–
HKSAR
v
LAI CHEE YING (D1)
LEE CHEUK YAN (D2)
NG NGOI YEE MARGARET (D3)
LEUNG KWOK HUNG (D4)
HO SAU LAN CYD (D5)
HO CHUN YAN (D6)
LEUNG YIU CHUNG (D7)
LEE CHU MING MARTIN (D8)
AU NOK HIN (D9)
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 16 April 2021
Present: Ms Priscilia T Y Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Public Prosecutor, for HKSAR/Director of Public Prosecutions
Ms Audrey Eu, S C and Mr Edwin W B Choy, S C leading Mr Jeffrey C K Tam and Mr Ernie Tung instructed by Robertsons for the 1st defendant
Mr Philip J Dykes, S C leading Mr Chris C L Ng, Mr Christopher P H Kan and Mr Timothy R Wong instructed by JCC Cheung & Co for the 2nd & 5th defendants
Mr Ambrose Ho, S C leading Isaac C K Chan instructed by Ho Tse Wai & Partners for the 3rd defendant
Mr Hectar H Pun, S C leading Mr Anson Wong Yu Yat instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 4th defendant
Mr Graham Harris, S C and Mr Lawrence Lok, S C leading Ms Po Wing Kay, Mr Geoffrey Yeung and Mr Simon Kwok instructed by Ho Tse Wai & Partners for the 6th & 8th defendants
Mr Paul Harris, S C leading Ms Jacqueline H Y Lam, instructed by K B Chau & Co for the 7th defendant
Mr Man Ho Ching of Ho Tse Wai & Partners for the 9th defendant
Offence: [1] Organizing an unauthorized assembly（組織一個未經批准集結）
[2] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結）
—————————————–
REASONS FOR SENTENCE
—————————————–
I delivered my verdict on 1 April 2021 and convicted all defendants except D7 and D9 after trial of organising an unauthorised assembly under section 17A(3)(b)(i) and knowingly taking part in an unauthorised assembly under section 17A(3)(a) of the Public Order Ordinance, Cap 245, Charges 1 and 2.
D9 had indicated his intention to plead guilty to these 2 charges at the earliest opportunity and I convicted him after his plea on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
D7 indicated his plea of guilty to charge 2 after the trial was set down but before the 1st day commenced. The prosecution did not proceed with charge 1 and it was kept on the court file. D7 was convicted of charge 2 on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
The facts
My findings of fact are set out in full in my verdict. I do not intend to repeat the facts of the case nor my findings.
I found that the defendants had organised and knowingly taken part in a public procession from Victoria Park to Chater Road Central on 18 August 2019 when that public procession had been objected to by the Commissioner of Police and that objection upheld by a subsequent Appeal Board hearing.
I found the public procession constituted an unauthorised assembly by consisting of more than 30 people and being organised for a common purpose which was to “stop the police and gangsters from plunging Hong Kong into chaos, implement the 5 demands”.
All the defendants organized and formed the head of a procession carrying a long banner displaying the common purpose and led thousands of participants from Victoria Park at about 3pm to walk to Chater Road. The timing of it and the route they took mirrored the public procession banned by the Commissioner of police.
I found the defendants deliberately defied the law and circumvented the ban by alleging they acted on the invitation and instructions of the organisers of the authorised public meeting in Victoria Park, the Civil Human Rights Front, the CHRF, to assist in their dispersal plan of participants. The CHRF had described their method of dispersal of participants as a water flow meeting for the sole purpose of facilitating the ingress and egress of participants only.
I found the defendants had no reasonable excuse or lawful authority for taking part in an unauthorised assembly. I found no evidence of police tacit consent or implied authority for the CHRF to handle the dispersal of participants in this manner.
I found it was not a dispersal plan implemented with the assistance of the defendants but a planned unauthorised assembly to challenge the authority of the Police. It was planned in advance, announced in advance but those interviewed stopped short of admitting a plan to break the law. Nevertheless, what was said very publicly before the 18 August and what was organised on 18 August was irrefutable evidence when viewed as a whole of a premeditated intention to commit these offences.
This intention was succinctly verbalised by a Hong Kong-based singer and actress interviewed by a news channel immediately after the banner was laid down by the defendants on Chater Road outside the Court of Final Appeal at what was declared as the end of the procession. In exhibit P35, a media outlet “HK01” interviewed this participant in the procession at 4:48pm and she explained the procession was a way to get around the ban.
This interviewee said there was no choice but to use a different method if a public procession was not allowed. She said it showed how flexible and elastic Hong Kong people were if banned. It was not a public procession but only people leaving Victoria Park. She was not speaking for the defendants but it shows a participant knew it was not a dispersal plan for safety reasons.
I found the unauthorised assembly caused citywide traffic disruptions and road closures far beyond the vicinity of Victoria Park and the authorised public meeting. The evidence I accepted which was not disputed showed road closures late into the evening that would have affected traffic and road users. Many forms of public transport were either disrupted or diverted on both sides of the Harbour.
The Constitutional challenges on a systemic and operational level also failed. There was no successful challenge to the constitutionality of section 17A or its sanctions. There was no action taken on the day by the police that was excessive or without tolerance in mind.
I have heard full mitigation on behalf of all the defendants. The reality is that for all of these defendants before me, bar none, their reputations and careers are well known to all in Hong Kong. Many have provided me with a significant number of mitigation letters. I have read and taken them into account.
Background information of the defendants
The 1st defendant
The 1st defendant is now 73 years old and has no previous convictions. He was born in the Mainland and came to Hong Kong as a teenager by himself. He started from humble beginnings working as a handyman in a factory to become a self-made and successful businessman. He founded the retail brand Giordano. He sold his shares in that to focus on the media industry in the 1990s. He had by then founded “Next Digital Ltd” which later listed on the Hong Kong stock exchange. His mitigation submitted is at MFI-10.
He is married with 6 children and many grandchildren. In mitigation I have been urged to take into account that he has through his businesses made significant contributions to the media industry and the economy in Hong Kong. His more advanced age has been stressed as well as several medical conditions controlled by medication.
The 2nd defendant
The 2nd defendant is 64 years old and has no previous convictions. He graduated from the University of Hong Kong in 1978 with a bachelor of civil engineering degree. He was a politician and was a serving member of the legislature for many years.
He founded and is still connected to the Labour Party. He is now the general secretary of the Hong Kong Federation of Trade Unions and vice chairman of the Labour Party. His background and career in public service was provided to me in mitigation in open court.
The 3rd defendant
The 3rd defendant is 73 years old and she has no previous convictions. She is a barrister and politician who devoted 18 years to public service and the legal functional constituency. She is also a well-known journalist and author in Hong Kong. After retirement from the legislative Council in 2012 she dedicated her time to fighting for racial equality, serving the underprivileged, ethnic minorities and in particular, seeking equitable education for ethnic minority children.
To pursue those aims and give her time to those causes, the 3rd defendant has been a member and then Chair of the Executive Committee of Hong Kong Unison. I have had many letters of mitigation from highly respected members of the Hong Kong community. They make for impressive reading. Her mitigation submitted is at MFI-11.
She decided to discharge her legal representatives before mitigation and spoke for herself. I have taken on board all she has said. A copy of what she said is at MFI-11A.
The 4th defendant
The 4th defendant is now 65 years old. He too has been a member of the legislative Council for 12 years. He has many previous convictions, 17 in total with 3 similar to charges 1 and 2. All his other criminal convictions involve offences of a similar nature and many relate to public order offences. None of his previous convictions were offences motivated by greed, corruption, anger or dishonesty.
I have had sight of a radiologists report detailing the results of a calcium scoring and CT coronary angiography. There is no medical diagnosis obviously in this report but I have been told that two out of three heart blood vessels have blockages and he is on medication now. His mitigation submitted is at MFI-12.
The 5th defendant
The 5th defendant is now 66 years old and she has no previous convictions. She is a former legislator with many years’ service as well as a founding member of the Labour Party. She was appointed a Justice of the Peace in 2014. She too has devoted years to public service and I have had sight of numerous letters containing details of her commitment and support of many diverse sectors of society, from education resources for underprivileged children to sexual inequality. Her mitigation submitted is at MFI-13.
The 6th defendant
The 6th defendant is now 69 years old and has no previous convictions. He is a solicitor and founder of his own firm as well as a seasoned politician. He too is a former district councillor and legislative councillor with over 20 years’ service and has been a core member of the Democratic party.
He has campaigned for democracy and human rights for nearly 40 years and it is stressed always in a peaceful, rational and nonviolent manner. In written submissions the full details of his long career and commitment to public service is set out succinctly. His mitigation submitted is at MFI-14.
The 7th defendant
The 7th defendant is now 67 years old, pleaded guilty to charge 2 and has no previous convictions. He has served a lifetime of community and public service. The mitigation bundle prepared is detailed and contains a chronology of his career as a teacher, district board member then a member of the legislative Council. His contributions to Hong Kong and his campaigning for the underprivileged and minority groups are well-known. I have read the many impressive letters written on his behalf by respectable members of Hong Kong society from all walks of life.
The defendant is not a man who advocates violence. This is illustrated by a video of news footage of 1st July 2019 (Annex 3 of his mitigation bundle MFI-15) where he tries to get between rioters trying to break the glass doors of LEGCO. He opposed the attempt to enter the Legislative Council and tried to stop the crowds by standing in front of the glass doors but is bundled aside by black clad rioters.
The 8th defendant
The 8th defendant is 2 months’ shy of 83 years old and has no previous convictions. He is a leading Senior Counsel and served as the Chairman of the Hong Kong Bar Association. He is infamous for his distinguished legal career and pro bono work. He served as a member of the Hong Kong Basic Law Drafting Committee. He was one of the longest serving members of the Legislative Council; a service of over 22 years.
He has devoted much time and effort in serving the public and his constituency. He, like all the defendants here, is committed and dedicated to democracy and human rights. His mitigation submitted is at MFI-14.
The 9th defendant
The 9th defendant is now 33 years old and had no previous convictions at the time of the offence. I repeat he indicated his plea of guilty at the very earliest opportunity. He was a district councillor for 8 years and briefly a member of the Legislative Council as well as a lecturer in many tertiary educational institutions in Hong Kong. There are many letters of mitigation from friends and colleagues; they stress his public and community service should not be ignored. Many stress his peaceful, non-violent approach and principles. It is submitted his academic and social achievements are especially noteworthy as he is only 33 years old.
His substantial efforts in pursuing a career in academia and politics appear to be fading with his recent conviction of assaulting a police officer and other pending criminal charges. In his own mitigation letter he explains why he pleaded guilty, why he will no longer seek a career in politics and how he will seek to rebuild his life away from political activism. His mitigation submitted is at MFI-16.
Mitigation
I have heard full mitigation in open court and have the benefit of submissions prepared by counsel and need not set it out here.
All defendants submit that these charges and facts do not call for a custodial sentence. There are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been suggested that previous cases with similar charges have attracted financial penalties.
The call for a financial penalty is supported by the submission that the procession was peaceful with no violent incidents or conflicts arising. Severe sanctions are inappropriate and disproportionate. The disruption to the roads and public transport system was not severe nor wholly related to the unauthorised assembly. Much of the traffic congestion around Victoria Park was related to the authorised public meeting.
Principles of Sentencing
It is correct there are no prevailing guidelines or tariffs for sentences for the present charges. The great majority of the past cases with similar offences do either involve a bind over order or a financial penalty but none of those cases I have been referred to by the defence stem from the social unrest and turmoil of 2019 or anything like it.
Public order offences have been established as an exception to the general principle that a deterrent sentence should not be passed on a person with a clear record and I have referred myself to page 13 of R v Nguyen Quang Thong & Ors (1992) 2 HKCLR 10. All defendants here but the 4th defendant had a clear record.
I have been referred to reasons for judgement arising from HKSAR v Chow Ting HCMA 374/2020, a bail application pending a magistracy appeal. I thank the prosecution for a translation of those reasons. There, Barnes J refused bail pending appeal for the applicant Chow Ting. She had been sentenced to 10 months’ imprisonment for incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly.
The facts of that case are set out in those reasons for judgement and involve large crowds of protesters gathering first in the vicinity of the Central Government Offices on 21 June 2019 before more crowds proceeded to besiege the Police Headquarters. That was a day that ended in violence, conflict, damage to property, an attack on the police headquarters itself and its operation as well as severe traffic disruption until the early hours of the morning.
The relevance of that case and the reasons for judgement is because the learned Magistrate referred to the sentencing considerations and factors set out in the Secretary for Justice v Wong Chi Fung 2018 2 HKLRD 699; sentencing guidelines for offences of unlawful assembly.
Barnes J was only concerned with the application for bail pending appeal and not the appeal itself which is still to be heard but she did state the reasons why she found the applicant had failed to demonstrate that her appeal had a very high or reasonable prospect of success.
More importantly, and relied on heavily by the prosecution here is that she agreed with the learned magistrate and found nothing wrong with her “drawing on” the sentencing factors in Wong Chi Fung when deciding a custodial sentence was appropriate for an unauthorized assembly and said it was clearly far from being wrong in principle.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. In the context of unlawful assemblies involving violence, it was held by the court that the sentencing court’s main consideration is the punishment of the offender, as well as deterring others from breaking the law in a similar manner. These are the weighty factors and the offender’s personal circumstances will not be regarded as significant mitigation. The Court of Final Appeal endorsed those observations in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35.
The Court of Appeal found it necessary to expound on the principles on sentencing in unlawful assemblies that involved violence. In paragraph 108 Poon JA, as he then was, set out the sentencing principles applicable to the charges. Particularly, in paragraph 127 he stressed that the sentence imposed must be appropriate to the punishment of the offenders but also takes into account the factor of deterrence on the basic premise that public order must be maintained and reflects the gravamen of the offence of unlawful assembly.
In paragraph 135 he identified facts relevant and pertinent to unlawful assembly offences involving violence. But before that Poon JA discussed not only unlawful assembly involving violence but also unlawful assembly involving no actual violence.
In the judgement of Secretary for Justice v Chung Ka Ho CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen from Wong Chi Fung that cases that warrant the courts serious treatment include an unlawful assembly without actual violence, which could become imminent, given the overall circumstances. Essentially, the Court of Appeal said it is artificial and unreasonable to divide unlawful assemblies by violence when passing sentence; it all depends on the actual circumstances in each case. Equally, the Court of Appeal did not say deterrent sentences should not be imposed in the absence of actual violence.
The Court of Appeal in Chung Ka Ho at paragraph 55 point out that the factors identified by Poon JA in paragraph 135 in Wong Chi Fung can if adjusted, apply equally to unlawful assemblies with no violence. Therefore, it is not right to suggest that the judgement in Wong Chi Fung is solely applicable to unlawful assembly involving violence.
Although Wong Chi Fung involved an unlawful assembly involving violence, Barnes J saw nothing wrong with the magistrate drawing on the sentencing considerations because the charges in both Wong Chi Fung and Chow Ting were contrary to the Public Order Ordinance. Secondly the maximum penalty for those offences in those cases were the same. Thirdly both cases were of a similar nature in that they involved crowd gatherings and lastly those demonstrations and gatherings arose from social issues.
Although this case before me involves an unauthorised assembly on 18 August, if I take into account the overall circumstances, the social unrest witnessed from June 2019 that was as relentless as it was violent and disturbing then I find I can and should consider sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I too can draw on the sentencing principles in that authority but bear in mind these charges involve an unauthorised not an unlawful assembly.
The facts of this case and offences affected the public; members of the public not participating. There was widespread traffic and public transport disruption. By identifying as a principle “meting out penalties”, the Court of Appeal were reiterating the obvious and that is any sentence imposed ought to be commensurate with the offence committed. One that reflects the seriousness of the offence and the culpability of the offender. The open condemnation factor is self-explanatory, the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender.
The factor of deterrence serves as a warning to others and prevents the offender from reoffending. The need for deterrent sentences cannot be limited to an unlawful assembly or more serious public order offences. The need to consider a deterrent sentence will often depend on the prevailing circumstances at the time. In fact, all sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation of 2019.
The fact that I draw on the aforesaid sentencing principles does not mean I am retrospectively imposing a more severe sentence based on new sentencing guidelines from the Court of Appeal in Wong Chi Fung.
Reasons for Sentence
I repeat here as I said in my verdict that the Basic Law guarantees freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional. Those freedoms are enjoyed subject to those restrictions irrespective of a defendant’s politics. The common purpose of the procession as well as the politics and stance of any participant that day on 18 August 2019 are irrelevant to sentencing just as they were irrelevant to the legal issues that arose during the trial.
This unauthorised procession did proceed peacefully but we know from experience, in particular in those volatile months in 2019 that when a large number of demonstrators gather, emotions are likely to run high which means those situations have an inherent latent risk of breaking out into violence.
We know from the prosecution witnesses that the police were most concerned that unruly elements may be present amongst peaceful protesters who would seize the opportunity to achieve the very objective of inciting or brewing violence. The police then decided to be invisible so as not to provide an opportunity or an excuse for conflict.
The present case involved a direct challenge to the authority of the police, law and order. The Commissioner of Police had banned a public procession and a 2nd public meeting but authorised a meeting in Victoria Park. In a police conference an explanation was given why consent was not forthcoming to the CHRF.
Yet, despite that and the risk above, the defendants went on to organise it; all defendants were well known figures that together as the head of a procession were guaranteed to draw a crowd and followers. Influential people can draw a crowd and can wield a certain influence.
The fact that these particular defendants made a conscious decision to break the law and challenge public order in this manner during such volatile times was serious. That I find an aggravating factor or the gravamen of these facts I found proved. Actions have consequences for everyone irrespective of who they are. This is more so when I have a duty in sentencing to ensure public order.
In addition, I take into account the background behind the commission of these offences. I take into account my finding that the unauthorised assembly was premeditated with prior planning to thwart the police ban. It was made known that there was a plan to circumvent the ban despite calling the procession a dispersal plan or water flow meeting. There were many prior calls publicly for as many people as possible to jam pack Victoria Park and to participate in this water flow meeting. It was no coincident that the dispersal plan mirrored the timing and route of the banned procession.
The scale of the unauthorised assembly is relevant; the procession from Victoria Park to Chater Gardens was on a massive scale and long-lasting. That is notwithstanding I accept there would have been disruptions in the vicinity of Victoria Park from the authorized public meeting. Moreover, as I have noted above, taking into account the circumstances prevailing in Hong Kong at that time, a procession of that size posed an inherent latent risk of possible violence.
Therefore, the procession may have been peaceful but there was a significant degree of disruption to roads for hours and public transport routes that stretched across the harbour.
As a result, and after careful consideration of the above principles and factors as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
The fact all but the 7th and 9th defendant were convicted after trial as well as being a premeditated and direct challenge to law and order when emotions were running so high in Hong Kong means a community service order would not be appropriate.
The background and facts of this case call for a custodial sentence. I have referred myself to Wong Chi Fung at paragraph 172 where what Pang JA said is applicable to this case and the circumstances that were prevailing in Hong Kong at that time. That is even though the charge there was more serious. I quote;
“172. I agree with the judgements of Yeung VP and Poon JA. The more one feels about an issue, the more one wishes to press one’s point and the more one desires that there should be progress in the matter. This is all very understandable. However, if in the course of advocating one’s demand, one is given to the position that some long and well established law is but an unreasonable restriction on the right to freedom of expression, plus indulging one in the self-satisfaction of having broken the law as one pleases, that is not a situation which would on any ground enable the courts to pass unduly lenient sentences. An offender who is inflicted with such an attitude not only breaks the law in conduct, but in his mind too he harbours contempt and regards himself as being above the law. With respect to controversial matters of public debate where emotions are easily stirred, the grave consequences of such an attitude gaining ground are self-evident…”
I have taken into account the facts, the mitigation and all submissions put forward on behalf of all defendants. I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
Having said that, where applicable and because it was a peaceful assembly, the positive good character of some defendants, the even more significant and worthy public service from others will be taken into account. It is impossible to list the individual significant commitment and contributions of some to the law, society, children, the underprivileged, minority groups, education issues, sexual and racial equality but it is weighty.
I also say here that I intend to make the sentences for Charges 1 and 2 concurrent for every defendant in light of the facts, close nature of the charges and totality principle.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, organising an unauthorised assembly, I do differentiate between some of the defendants. I made it clear in my verdict that the evidence showed that the 2nd, 4th and 9th defendant appeared at press conferences, either immediately after the CHRF appeal was dismissed or the following day, 17 August 2019, in Victoria Park and were very vocal. I won’t repeat what they said but I found they encouraged crowds to come to “jam pack” Victoria Park and insinuated there would be a procession out of there despite the police ban. What they and in particular, the 4th defendant had to say almost amounted to a rallying cry.
After all relevant factors are taken into consideration, in my judgement, for the 2nd, 4th and 9th defendant a starting point of 18 months’ imprisonment is appropriate.
For the remaining defendants, in my judgement, a starting point of 15 months’ imprisonment is appropriate.
Charge 2 – Starting Point
I find all defendants equally culpable in knowingly taking part in this unauthorised assembly. It is true some walked in silence, some replied to political slogans and others took the lead to chant those slogans but I do not differentiate between them for the purposes of this offence.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
Reductions
I am aware that a clear record is not significant mitigation where public order offences are concerned nor are personal mitigating circumstances where deterrent sentences are to be imposed. Nevertheless, in light of the more advanced ages of most of the defendants here and their public service to Hong Kong, I cannot ignore this type of mitigation altogether.
The 1st defendant
I have considered his age, clear record and health issues. The 1st defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
Therefore, the 1st defendant is sentenced to 12 months’ imprisonment for charge 1 and 9 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 2nd defendant
I have considered his age and clear record. For that, the 2nd defendant is given a three-month reduction from the 18 months and 12 months of charges 1 and 2 respectively.
From information provided today, I have considered his commitment and contribution to public service especially where the welfare of workers is concerned. Such service deserves recognition and for that I give the 2nd defendant a further discount of 3 months.
Therefore, the 2nd defendant is sentenced to 12 months’ imprisonment for charge 1 and 6 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 3rd defendant
I have considered her age of 73, clear record as well as her exceptional and obvious commitment over decades to public service. Not only is she a person of positive good character, but an altruist; her dedication to the community when a legislator and in her retirement is worthy of note. I am impressed by the letters referring to her lifelong dedication and contributions.
Against that background of her age and exceptional public service, I find there to be valid reason and justification to suspend the terms of imprisonment I have imposed. I first reduce the 15 months of charge 1 and 12 months of charge 2 by 3 months.
After that reduction is applied, the 3rd defendant is sentenced to 12 months for charge 1 and 9 months for charge 2. Both to be served concurrently. Both those sentences are suspended for 24 months.
Therefore, the 3rd defendant is sentenced to a total of 12 months’ imprisonment suspended for 24 months.
The 3rd defendant is warned that if she is convicted of an offence punishable by imprisonment in the following 24 months from today then she will most certainly serve this twelve-month term of imprisonment.
The 4th defendant
I have considered his age and health. It appears his ailment is under control with medication; I am not informed otherwise. The 4th defendant has a good number of previous convictions; he does not have the benefit of a clear record. However, I have considered the nature of his previous convictions and do not impose a heavier sentence on the 4th defendant on account of his criminal record.
What it does mean is that I see no reason to reduce the sentences any further. Therefore, for the reasons given, the 4th defendant is sentenced to 18 months’ imprisonment for charge 1 and 12 months’ imprisonment for charge 2, to be served concurrently; a total of 18 months’ imprisonment.
The 5th defendant
I have considered her age and clear record. The 5th defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
From the information I have, she too can be described as a person of positive good character. By that I
DCCC 536/2020
胡雅文
區院
不認罪
罪成
67
組織未經批准集結
緩刑
維園
DCCC 536/2020
[2021] HKDC 457
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 536 OF 2020
—————————–
HKSAR
v
LAI CHEE YING (D1)
LEE CHEUK YAN (D2)
NG NGOI YEE MARGARET (D3)
LEUNG KWOK HUNG (D4)
HO SAU LAN CYD (D5)
HO CHUN YAN (D6)
LEUNG YIU CHUNG (D7)
LEE CHU MING MARTIN (D8)
AU NOK HIN (D9)
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 16 April 2021
Present: Ms Priscilia T Y Lam, Counsel on Fiat, Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward Lau, Public Prosecutor, for HKSAR/Director of Public Prosecutions
Ms Audrey Eu, S C and Mr Edwin W B Choy, S C leading Mr Jeffrey C K Tam and Mr Ernie Tung instructed by Robertsons for the 1st defendant
Mr Philip J Dykes, S C leading Mr Chris C L Ng, Mr Christopher P H Kan and Mr Timothy R Wong instructed by JCC Cheung & Co for the 2nd & 5th defendants
Mr Ambrose Ho, S C leading Isaac C K Chan instructed by Ho Tse Wai & Partners for the 3rd defendant
Mr Hectar H Pun, S C leading Mr Anson Wong Yu Yat instructed by Kenneth Lam Solicitors, assigned by the Director of Legal Aid, for the 4th defendant
Mr Graham Harris, S C and Mr Lawrence Lok, S C leading Ms Po Wing Kay, Mr Geoffrey Yeung and Mr Simon Kwok instructed by Ho Tse Wai & Partners for the 6th & 8th defendants
Mr Paul Harris, S C leading Ms Jacqueline H Y Lam, instructed by K B Chau & Co for the 7th defendant
Mr Man Ho Ching of Ho Tse Wai & Partners for the 9th defendant
Offence: [1] Organizing an unauthorized assembly（組織一個未經批准集結）
[2] Knowingly taking part in an unauthorized assembly（明知而參與未經批准集結）
—————————————–
REASONS FOR SENTENCE
—————————————–
I delivered my verdict on 1 April 2021 and convicted all defendants except D7 and D9 after trial of organising an unauthorised assembly under section 17A(3)(b)(i) and knowingly taking part in an unauthorised assembly under section 17A(3)(a) of the Public Order Ordinance, Cap 245, Charges 1 and 2.
D9 had indicated his intention to plead guilty to these 2 charges at the earliest opportunity and I convicted him after his plea on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
D7 indicated his plea of guilty to charge 2 after the trial was set down but before the 1st day commenced. The prosecution did not proceed with charge 1 and it was kept on the court file. D7 was convicted of charge 2 on the 1st day of trial. His mitigation and sentence was adjourned until the end of the trial.
The facts
My findings of fact are set out in full in my verdict. I do not intend to repeat the facts of the case nor my findings.
I found that the defendants had organised and knowingly taken part in a public procession from Victoria Park to Chater Road Central on 18 August 2019 when that public procession had been objected to by the Commissioner of Police and that objection upheld by a subsequent Appeal Board hearing.
I found the public procession constituted an unauthorised assembly by consisting of more than 30 people and being organised for a common purpose which was to “stop the police and gangsters from plunging Hong Kong into chaos, implement the 5 demands”.
All the defendants organized and formed the head of a procession carrying a long banner displaying the common purpose and led thousands of participants from Victoria Park at about 3pm to walk to Chater Road. The timing of it and the route they took mirrored the public procession banned by the Commissioner of police.
I found the defendants deliberately defied the law and circumvented the ban by alleging they acted on the invitation and instructions of the organisers of the authorised public meeting in Victoria Park, the Civil Human Rights Front, the CHRF, to assist in their dispersal plan of participants. The CHRF had described their method of dispersal of participants as a water flow meeting for the sole purpose of facilitating the ingress and egress of participants only.
I found the defendants had no reasonable excuse or lawful authority for taking part in an unauthorised assembly. I found no evidence of police tacit consent or implied authority for the CHRF to handle the dispersal of participants in this manner.
I found it was not a dispersal plan implemented with the assistance of the defendants but a planned unauthorised assembly to challenge the authority of the Police. It was planned in advance, announced in advance but those interviewed stopped short of admitting a plan to break the law. Nevertheless, what was said very publicly before the 18 August and what was organised on 18 August was irrefutable evidence when viewed as a whole of a premeditated intention to commit these offences.
This intention was succinctly verbalised by a Hong Kong-based singer and actress interviewed by a news channel immediately after the banner was laid down by the defendants on Chater Road outside the Court of Final Appeal at what was declared as the end of the procession. In exhibit P35, a media outlet “HK01” interviewed this participant in the procession at 4:48pm and she explained the procession was a way to get around the ban.
This interviewee said there was no choice but to use a different method if a public procession was not allowed. She said it showed how flexible and elastic Hong Kong people were if banned. It was not a public procession but only people leaving Victoria Park. She was not speaking for the defendants but it shows a participant knew it was not a dispersal plan for safety reasons.
I found the unauthorised assembly caused citywide traffic disruptions and road closures far beyond the vicinity of Victoria Park and the authorised public meeting. The evidence I accepted which was not disputed showed road closures late into the evening that would have affected traffic and road users. Many forms of public transport were either disrupted or diverted on both sides of the Harbour.
The Constitutional challenges on a systemic and operational level also failed. There was no successful challenge to the constitutionality of section 17A or its sanctions. There was no action taken on the day by the police that was excessive or without tolerance in mind.
I have heard full mitigation on behalf of all the defendants. The reality is that for all of these defendants before me, bar none, their reputations and careers are well known to all in Hong Kong. Many have provided me with a significant number of mitigation letters. I have read and taken them into account.
Background information of the defendants
The 1st defendant
The 1st defendant is now 73 years old and has no previous convictions. He was born in the Mainland and came to Hong Kong as a teenager by himself. He started from humble beginnings working as a handyman in a factory to become a self-made and successful businessman. He founded the retail brand Giordano. He sold his shares in that to focus on the media industry in the 1990s. He had by then founded “Next Digital Ltd” which later listed on the Hong Kong stock exchange. His mitigation submitted is at MFI-10.
He is married with 6 children and many grandchildren. In mitigation I have been urged to take into account that he has through his businesses made significant contributions to the media industry and the economy in Hong Kong. His more advanced age has been stressed as well as several medical conditions controlled by medication.
The 2nd defendant
The 2nd defendant is 64 years old and has no previous convictions. He graduated from the University of Hong Kong in 1978 with a bachelor of civil engineering degree. He was a politician and was a serving member of the legislature for many years.
He founded and is still connected to the Labour Party. He is now the general secretary of the Hong Kong Federation of Trade Unions and vice chairman of the Labour Party. His background and career in public service was provided to me in mitigation in open court.
The 3rd defendant
The 3rd defendant is 73 years old and she has no previous convictions. She is a barrister and politician who devoted 18 years to public service and the legal functional constituency. She is also a well-known journalist and author in Hong Kong. After retirement from the legislative Council in 2012 she dedicated her time to fighting for racial equality, serving the underprivileged, ethnic minorities and in particular, seeking equitable education for ethnic minority children.
To pursue those aims and give her time to those causes, the 3rd defendant has been a member and then Chair of the Executive Committee of Hong Kong Unison. I have had many letters of mitigation from highly respected members of the Hong Kong community. They make for impressive reading. Her mitigation submitted is at MFI-11.
She decided to discharge her legal representatives before mitigation and spoke for herself. I have taken on board all she has said. A copy of what she said is at MFI-11A.
The 4th defendant
The 4th defendant is now 65 years old. He too has been a member of the legislative Council for 12 years. He has many previous convictions, 17 in total with 3 similar to charges 1 and 2. All his other criminal convictions involve offences of a similar nature and many relate to public order offences. None of his previous convictions were offences motivated by greed, corruption, anger or dishonesty.
I have had sight of a radiologists report detailing the results of a calcium scoring and CT coronary angiography. There is no medical diagnosis obviously in this report but I have been told that two out of three heart blood vessels have blockages and he is on medication now. His mitigation submitted is at MFI-12.
The 5th defendant
The 5th defendant is now 66 years old and she has no previous convictions. She is a former legislator with many years’ service as well as a founding member of the Labour Party. She was appointed a Justice of the Peace in 2014. She too has devoted years to public service and I have had sight of numerous letters containing details of her commitment and support of many diverse sectors of society, from education resources for underprivileged children to sexual inequality. Her mitigation submitted is at MFI-13.
The 6th defendant
The 6th defendant is now 69 years old and has no previous convictions. He is a solicitor and founder of his own firm as well as a seasoned politician. He too is a former district councillor and legislative councillor with over 20 years’ service and has been a core member of the Democratic party.
He has campaigned for democracy and human rights for nearly 40 years and it is stressed always in a peaceful, rational and nonviolent manner. In written submissions the full details of his long career and commitment to public service is set out succinctly. His mitigation submitted is at MFI-14.
The 7th defendant
The 7th defendant is now 67 years old, pleaded guilty to charge 2 and has no previous convictions. He has served a lifetime of community and public service. The mitigation bundle prepared is detailed and contains a chronology of his career as a teacher, district board member then a member of the legislative Council. His contributions to Hong Kong and his campaigning for the underprivileged and minority groups are well-known. I have read the many impressive letters written on his behalf by respectable members of Hong Kong society from all walks of life.
The defendant is not a man who advocates violence. This is illustrated by a video of news footage of 1st July 2019 (Annex 3 of his mitigation bundle MFI-15) where he tries to get between rioters trying to break the glass doors of LEGCO. He opposed the attempt to enter the Legislative Council and tried to stop the crowds by standing in front of the glass doors but is bundled aside by black clad rioters.
The 8th defendant
The 8th defendant is 2 months’ shy of 83 years old and has no previous convictions. He is a leading Senior Counsel and served as the Chairman of the Hong Kong Bar Association. He is infamous for his distinguished legal career and pro bono work. He served as a member of the Hong Kong Basic Law Drafting Committee. He was one of the longest serving members of the Legislative Council; a service of over 22 years.
He has devoted much time and effort in serving the public and his constituency. He, like all the defendants here, is committed and dedicated to democracy and human rights. His mitigation submitted is at MFI-14.
The 9th defendant
The 9th defendant is now 33 years old and had no previous convictions at the time of the offence. I repeat he indicated his plea of guilty at the very earliest opportunity. He was a district councillor for 8 years and briefly a member of the Legislative Council as well as a lecturer in many tertiary educational institutions in Hong Kong. There are many letters of mitigation from friends and colleagues; they stress his public and community service should not be ignored. Many stress his peaceful, non-violent approach and principles. It is submitted his academic and social achievements are especially noteworthy as he is only 33 years old.
His substantial efforts in pursuing a career in academia and politics appear to be fading with his recent conviction of assaulting a police officer and other pending criminal charges. In his own mitigation letter he explains why he pleaded guilty, why he will no longer seek a career in politics and how he will seek to rebuild his life away from political activism. His mitigation submitted is at MFI-16.
Mitigation
I have heard full mitigation in open court and have the benefit of submissions prepared by counsel and need not set it out here.
All defendants submit that these charges and facts do not call for a custodial sentence. There are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies. It has been suggested that previous cases with similar charges have attracted financial penalties.
The call for a financial penalty is supported by the submission that the procession was peaceful with no violent incidents or conflicts arising. Severe sanctions are inappropriate and disproportionate. The disruption to the roads and public transport system was not severe nor wholly related to the unauthorised assembly. Much of the traffic congestion around Victoria Park was related to the authorised public meeting.
Principles of Sentencing
It is correct there are no prevailing guidelines or tariffs for sentences for the present charges. The great majority of the past cases with similar offences do either involve a bind over order or a financial penalty but none of those cases I have been referred to by the defence stem from the social unrest and turmoil of 2019 or anything like it.
Public order offences have been established as an exception to the general principle that a deterrent sentence should not be passed on a person with a clear record and I have referred myself to page 13 of R v Nguyen Quang Thong & Ors (1992) 2 HKCLR 10. All defendants here but the 4th defendant had a clear record.
I have been referred to reasons for judgement arising from HKSAR v Chow Ting HCMA 374/2020, a bail application pending a magistracy appeal. I thank the prosecution for a translation of those reasons. There, Barnes J refused bail pending appeal for the applicant Chow Ting. She had been sentenced to 10 months’ imprisonment for incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly.
The facts of that case are set out in those reasons for judgement and involve large crowds of protesters gathering first in the vicinity of the Central Government Offices on 21 June 2019 before more crowds proceeded to besiege the Police Headquarters. That was a day that ended in violence, conflict, damage to property, an attack on the police headquarters itself and its operation as well as severe traffic disruption until the early hours of the morning.
The relevance of that case and the reasons for judgement is because the learned Magistrate referred to the sentencing considerations and factors set out in the Secretary for Justice v Wong Chi Fung 2018 2 HKLRD 699; sentencing guidelines for offences of unlawful assembly.
Barnes J was only concerned with the application for bail pending appeal and not the appeal itself which is still to be heard but she did state the reasons why she found the applicant had failed to demonstrate that her appeal had a very high or reasonable prospect of success.
More importantly, and relied on heavily by the prosecution here is that she agreed with the learned magistrate and found nothing wrong with her “drawing on” the sentencing factors in Wong Chi Fung when deciding a custodial sentence was appropriate for an unauthorized assembly and said it was clearly far from being wrong in principle.
Wong Chi Fung was an application for review for offences relating to unlawful assemblies. In the context of unlawful assemblies involving violence, it was held by the court that the sentencing court’s main consideration is the punishment of the offender, as well as deterring others from breaking the law in a similar manner. These are the weighty factors and the offender’s personal circumstances will not be regarded as significant mitigation. The Court of Final Appeal endorsed those observations in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35.
The Court of Appeal found it necessary to expound on the principles on sentencing in unlawful assemblies that involved violence. In paragraph 108 Poon JA, as he then was, set out the sentencing principles applicable to the charges. Particularly, in paragraph 127 he stressed that the sentence imposed must be appropriate to the punishment of the offenders but also takes into account the factor of deterrence on the basic premise that public order must be maintained and reflects the gravamen of the offence of unlawful assembly.
In paragraph 135 he identified facts relevant and pertinent to unlawful assembly offences involving violence. But before that Poon JA discussed not only unlawful assembly involving violence but also unlawful assembly involving no actual violence.
In the judgement of Secretary for Justice v Chung Ka Ho CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen from Wong Chi Fung that cases that warrant the courts serious treatment include an unlawful assembly without actual violence, which could become imminent, given the overall circumstances. Essentially, the Court of Appeal said it is artificial and unreasonable to divide unlawful assemblies by violence when passing sentence; it all depends on the actual circumstances in each case. Equally, the Court of Appeal did not say deterrent sentences should not be imposed in the absence of actual violence.
The Court of Appeal in Chung Ka Ho at paragraph 55 point out that the factors identified by Poon JA in paragraph 135 in Wong Chi Fung can if adjusted, apply equally to unlawful assemblies with no violence. Therefore, it is not right to suggest that the judgement in Wong Chi Fung is solely applicable to unlawful assembly involving violence.
Although Wong Chi Fung involved an unlawful assembly involving violence, Barnes J saw nothing wrong with the magistrate drawing on the sentencing considerations because the charges in both Wong Chi Fung and Chow Ting were contrary to the Public Order Ordinance. Secondly the maximum penalty for those offences in those cases were the same. Thirdly both cases were of a similar nature in that they involved crowd gatherings and lastly those demonstrations and gatherings arose from social issues.
Although this case before me involves an unauthorised assembly on 18 August, if I take into account the overall circumstances, the social unrest witnessed from June 2019 that was as relentless as it was violent and disturbing then I find I can and should consider sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I too can draw on the sentencing principles in that authority but bear in mind these charges involve an unauthorised not an unlawful assembly.
The facts of this case and offences affected the public; members of the public not participating. There was widespread traffic and public transport disruption. By identifying as a principle “meting out penalties”, the Court of Appeal were reiterating the obvious and that is any sentence imposed ought to be commensurate with the offence committed. One that reflects the seriousness of the offence and the culpability of the offender. The open condemnation factor is self-explanatory, the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender.
The factor of deterrence serves as a warning to others and prevents the offender from reoffending. The need for deterrent sentences cannot be limited to an unlawful assembly or more serious public order offences. The need to consider a deterrent sentence will often depend on the prevailing circumstances at the time. In fact, all sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation of 2019.
The fact that I draw on the aforesaid sentencing principles does not mean I am retrospectively imposing a more severe sentence based on new sentencing guidelines from the Court of Appeal in Wong Chi Fung.
Reasons for Sentence
I repeat here as I said in my verdict that the Basic Law guarantees freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional. Those freedoms are enjoyed subject to those restrictions irrespective of a defendant’s politics. The common purpose of the procession as well as the politics and stance of any participant that day on 18 August 2019 are irrelevant to sentencing just as they were irrelevant to the legal issues that arose during the trial.
This unauthorised procession did proceed peacefully but we know from experience, in particular in those volatile months in 2019 that when a large number of demonstrators gather, emotions are likely to run high which means those situations have an inherent latent risk of breaking out into violence.
We know from the prosecution witnesses that the police were most concerned that unruly elements may be present amongst peaceful protesters who would seize the opportunity to achieve the very objective of inciting or brewing violence. The police then decided to be invisible so as not to provide an opportunity or an excuse for conflict.
The present case involved a direct challenge to the authority of the police, law and order. The Commissioner of Police had banned a public procession and a 2nd public meeting but authorised a meeting in Victoria Park. In a police conference an explanation was given why consent was not forthcoming to the CHRF.
Yet, despite that and the risk above, the defendants went on to organise it; all defendants were well known figures that together as the head of a procession were guaranteed to draw a crowd and followers. Influential people can draw a crowd and can wield a certain influence.
The fact that these particular defendants made a conscious decision to break the law and challenge public order in this manner during such volatile times was serious. That I find an aggravating factor or the gravamen of these facts I found proved. Actions have consequences for everyone irrespective of who they are. This is more so when I have a duty in sentencing to ensure public order.
In addition, I take into account the background behind the commission of these offences. I take into account my finding that the unauthorised assembly was premeditated with prior planning to thwart the police ban. It was made known that there was a plan to circumvent the ban despite calling the procession a dispersal plan or water flow meeting. There were many prior calls publicly for as many people as possible to jam pack Victoria Park and to participate in this water flow meeting. It was no coincident that the dispersal plan mirrored the timing and route of the banned procession.
The scale of the unauthorised assembly is relevant; the procession from Victoria Park to Chater Gardens was on a massive scale and long-lasting. That is notwithstanding I accept there would have been disruptions in the vicinity of Victoria Park from the authorized public meeting. Moreover, as I have noted above, taking into account the circumstances prevailing in Hong Kong at that time, a procession of that size posed an inherent latent risk of possible violence.
Therefore, the procession may have been peaceful but there was a significant degree of disruption to roads for hours and public transport routes that stretched across the harbour.
As a result, and after careful consideration of the above principles and factors as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.
The fact all but the 7th and 9th defendant were convicted after trial as well as being a premeditated and direct challenge to law and order when emotions were running so high in Hong Kong means a community service order would not be appropriate.
The background and facts of this case call for a custodial sentence. I have referred myself to Wong Chi Fung at paragraph 172 where what Pang JA said is applicable to this case and the circumstances that were prevailing in Hong Kong at that time. That is even though the charge there was more serious. I quote;
“172. I agree with the judgements of Yeung VP and Poon JA. The more one feels about an issue, the more one wishes to press one’s point and the more one desires that there should be progress in the matter. This is all very understandable. However, if in the course of advocating one’s demand, one is given to the position that some long and well established law is but an unreasonable restriction on the right to freedom of expression, plus indulging one in the self-satisfaction of having broken the law as one pleases, that is not a situation which would on any ground enable the courts to pass unduly lenient sentences. An offender who is inflicted with such an attitude not only breaks the law in conduct, but in his mind too he harbours contempt and regards himself as being above the law. With respect to controversial matters of public debate where emotions are easily stirred, the grave consequences of such an attitude gaining ground are self-evident…”
I have taken into account the facts, the mitigation and all submissions put forward on behalf of all defendants. I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.
Having said that, where applicable and because it was a peaceful assembly, the positive good character of some defendants, the even more significant and worthy public service from others will be taken into account. It is impossible to list the individual significant commitment and contributions of some to the law, society, children, the underprivileged, minority groups, education issues, sexual and racial equality but it is weighty.
I also say here that I intend to make the sentences for Charges 1 and 2 concurrent for every defendant in light of the facts, close nature of the charges and totality principle.
Charge 1 – Starting Point
To arrive at an appropriate starting point for charge 1, organising an unauthorised assembly, I do differentiate between some of the defendants. I made it clear in my verdict that the evidence showed that the 2nd, 4th and 9th defendant appeared at press conferences, either immediately after the CHRF appeal was dismissed or the following day, 17 August 2019, in Victoria Park and were very vocal. I won’t repeat what they said but I found they encouraged crowds to come to “jam pack” Victoria Park and insinuated there would be a procession out of there despite the police ban. What they and in particular, the 4th defendant had to say almost amounted to a rallying cry.
After all relevant factors are taken into consideration, in my judgement, for the 2nd, 4th and 9th defendant a starting point of 18 months’ imprisonment is appropriate.
For the remaining defendants, in my judgement, a starting point of 15 months’ imprisonment is appropriate.
Charge 2 – Starting Point
I find all defendants equally culpable in knowingly taking part in this unauthorised assembly. It is true some walked in silence, some replied to political slogans and others took the lead to chant those slogans but I do not differentiate between them for the purposes of this offence.
After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.
Reductions
I am aware that a clear record is not significant mitigation where public order offences are concerned nor are personal mitigating circumstances where deterrent sentences are to be imposed. Nevertheless, in light of the more advanced ages of most of the defendants here and their public service to Hong Kong, I cannot ignore this type of mitigation altogether.
The 1st defendant
I have considered his age, clear record and health issues. The 1st defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
Therefore, the 1st defendant is sentenced to 12 months’ imprisonment for charge 1 and 9 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 2nd defendant
I have considered his age and clear record. For that, the 2nd defendant is given a three-month reduction from the 18 months and 12 months of charges 1 and 2 respectively.
From information provided today, I have considered his commitment and contribution to public service especially where the welfare of workers is concerned. Such service deserves recognition and for that I give the 2nd defendant a further discount of 3 months.
Therefore, the 2nd defendant is sentenced to 12 months’ imprisonment for charge 1 and 6 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.
The 3rd defendant
I have considered her age of 73, clear record as well as her exceptional and obvious commitment over decades to public service. Not only is she a person of positive good character, but an altruist; her dedication to the community when a legislator and in her retirement is worthy of note. I am impressed by the letters referring to her lifelong dedication and contributions.
Against that background of her age and exceptional public service, I find there to be valid reason and justification to suspend the terms of imprisonment I have imposed. I first reduce the 15 months of charge 1 and 12 months of charge 2 by 3 months.
After that reduction is applied, the 3rd defendant is sentenced to 12 months for charge 1 and 9 months for charge 2. Both to be served concurrently. Both those sentences are suspended for 24 months.
Therefore, the 3rd defendant is sentenced to a total of 12 months’ imprisonment suspended for 24 months.
The 3rd defendant is warned that if she is convicted of an offence punishable by imprisonment in the following 24 months from today then she will most certainly serve this twelve-month term of imprisonment.
The 4th defendant
I have considered his age and health. It appears his ailment is under control with medication; I am not informed otherwise. The 4th defendant has a good number of previous convictions; he does not have the benefit of a clear record. However, I have considered the nature of his previous convictions and do not impose a heavier sentence on the 4th defendant on account of his criminal record.
What it does mean is that I see no reason to reduce the sentences any further. Therefore, for the reasons given, the 4th defendant is sentenced to 18 months’ imprisonment for charge 1 and 12 months’ imprisonment for charge 2, to be served concurrently; a total of 18 months’ imprisonment.
The 5th defendant
I have considered her age and clear record. The 5th defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.
From the information I have, she too can be described as a person of positive good character. By that I
DCCC 285/2020
香港特別行政區
區域法院
刑事案件2020年第285號
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香港特別行政區
訴
林龍秋
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主審法官： 區域法院暫委法官羅志霖
日期： 2020年12月4日
出席人士： 律政司高級檢控官鄧銘聰，代表香港特別行政區
許淑儀大律師，由法律援助署委派的余劍鋒‧孫波‧丘志強‧麥言之律師行延聘，代表被告人
控罪： [1] 危險駕駛引致他人死亡（Causing death by dangerous driving）
[2] 在道路上使用汽車，而該汽車的窗門作出改動，以減低其安全玻璃或安全透眀物料的透光能力（Using a motor vehicle on the road where alteration was made to its windows whereby the ability of their safety glass or safety glazing to transmit light was decreased）
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判刑理由書
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背景
被告人林龍秋面對二項控罪：－
危險駕駛引致他人死亡；
在道路上使用汽車，而該汽車的窗門作出改動，以減低其安全玻璃或安全透眀物料的透光能力。
被告人承認第二項控罪，否認第一項控罪，但表明承認較輕微的不小心駕駛罪。控方不接納被告人對此項控罪的答辯，法庭就第一項控罪展開聆訊。
就控罪一，經審訊後被告人被裁定罪名成立。
事發於2019年7月3日下午約5時09分，在香港新界葵涌貨櫃碼頭亞洲貨櫃物流中心4A層及4B層之間的行車通道，被告人駕駛重型貨車登記號碼UC695l（「該貨車」）撞倒及輾過剛下車的乘客（本案的死者），引致他的死亡 [詳情可參考本案之裁決理由書]。
至於控罪二，被告人承認的事實顯示，在控罪一的交通意外發生後，汽車檢驗主任證實，被告人在案發時使用的該貨車，兩邊車門的窗門玻璃均裝配有有色薄膜，以減少玻璃的透光度，違反相關法例。
輕判請求
被告人現年55歲，已婚，與妻子同住。
被告人過往沒有任何刑事或交通定罪紀錄，自1996年已在鴻興印刷集團任職司機，有20多年駕駛重型貨車的經驗。
辯方呈交了一共38封的求情信，分別由被告人的家人、親戚、上司、同事及牧師等撰寫，各人在信中均給予被告人正面的評價，包括他對家人照顧有加、為人處事處處得到稱讚，同時亦表達了事件對被告人和家人生活上帶來的衝擊。特別的是，本案死者的妻子和兒子也為被告人寫信求情，希望法庭從輕發落，這除了顯示他們有寛大的量度外，亦反映出兩家人之間關係的密切和良好。
辯方同時亦呈上被告人的精神科醫生報告，證明被告人因為是次意外做成多年拍檔的死亡，感到非常悲痛及內疚，承受著極大的心理壓力，因而患上「嚴重抑鬱症」，還需要定時覆診。
辯方亦呈上一系列的案例供法庭作參考。
相關法律
《道路交通條例》第36(1) – (2A) 規定：—
“(1) 任何人在道路上危險駕駛汽車引致他人死亡，即屬犯罪 ——
一經循公訴程序定罪，可處第5級罰款及監禁10年；（由2008年第23號第5條修訂）
一經循簡易程序定罪，可處第4級罰款及監禁2年。
(2) 如法庭或裁判官裁定任何人犯了第(1)款所訂的罪行，則法庭或裁判官除非基於特別理由，命令取消該人的駕駛資格一段較短期間，或命令不取消該人的駕駛資格，否則須命令按照第(2A)或(2B)款取消該人的駕駛資格。（由2008年第23號第5條代替）
(2A) 在不抵觸第(2B)款的條文下 ——
（如屬首次被定罪）上述的人的駕駛資格須取消至少5年；
（如屬再次被定罪）上述的人的駕駛資格須取消至少10年。（由2008年第23號第5條增補。由2011年第24號第6條修訂）”
上訴庭在律政司司長 訴 潘永基及另一人 一案中所提到的以下判刑考慮因素：—
在大多數的危險駕駛個案中，犯罪者顯然知道自己危險駕駛及應當因此受罰。記着這一點是很重要的。因為在某些情況下，確實是不應該將違反交通法例的人視為真正刑事罪犯，但話雖如此，對於危險駕駛引致他人死亡等罪行的犯罪者，就無必要如此仁慈地看待他們了。
2) 危險駕駛引致他人死亡，明顯會令死者的家人深感悲痛。對別人一生造成的影響，在判刑時應予考慮。
3) 另一點重要的，就是法庭必須清楚傳達一項信息；危險駕駛的行為有時候可能帶來極嚴重的後果，亦因此在判多宗涉及危險駕駛的個案時，便有需要記住阻嚇的效用。很多人往往可能忘記，駕駛汽車如達不到規定的標準，是可以奪去或殘害生命的。道路交通法例及其他規則載有在法律上規定駕車人士須達致的標準，這是要確保所有可能接觸到汽車的人（不論是其他駕車人士、乘客或行人）安全，生命不受害。
4) 儘管可以在清單上一一臚列加重刑罰和減輕刑罰的因素，但判刑的法庭還須審視整體情況及犯罪者的整體刑責。在評估罪案的整體嚴重性時，刑責往往是主要的因素。這並不是說數一數有幾多項加重刑罰或減輕刑罰的因素，然後機械式地計出有關的刑罰。量刑不是這般精密地進行計算，法庭而是必須充分靈活地考慮整體情況，以定出適當的判刑。一些個案（就如本案一樣）即使只有某些加重刑罰因素，但其他加重刑罰因素則欠奉，仍可令該等個案歸入非常嚴重一類。
5) 有一項主因，可視為支持重判的加重刑罰因素，即駕駛者自私地罔顧其他道路使用者或其車上乘客（或我們想補充的行人）的安全或在某程度上魯莽駕駛。」
在潘永基案後，有關「危險駕駛引致他人死亡」罪的判刑方面，上訴庭在Secretary for Justice v Liu Kwok Chun （廖國鎮）一案中有更詳盡考慮。值得留意的是，廖國鎮案控罪被干犯時的法定刑罰上限是5年監禁。而非現在的10年監禁，但是Cooksley （Robert Charles） 的判刑指引則以當時英國的最高刑罰10年監禁為基礎。上訴庭進一步把加重罪責因素分為4大類：「高罪責」、「慣性以低於可接受標準駕駛」、「控罪的後果」、「案發時的不負責任行為」。上訴庭在案例第39段列出一些法庭在判刑時應該考慮的求情因素，包括良好駕駛紀錄、沒有前科、適時認罪、真誠的震驚或悔意、年紀及駕駛者本身在意外中也受傷。上訴庭亦建議可以把罪責程度與Cooksley案例中的建議刑期比對。
上訴庭於律政司司長 訴 房濟民 一案，採納了Cooksley以下所羅列的加刑因素：—
因犯案時的駕駛水準而須負高度刑責
服用藥物（包括已知道會引致昏昏欲睡的法定藥物）或飲用酒精，嚴重程度由喝了幾杯到“駕車串酒吧”
嚴重超速；賽車；與另一輛汽車競逐；“向友儕炫耀”
不理會同車乘客的警告
長期、持續及蓄意的十分不良駕駛方式
放肆的駕駛行為（例如行車時太接近前面車輛、持續不適當地企圖超車或超車後切線）
駕駛者駕駛時不集中注意力（這原是可避免的），例如駕駛時閱讀或使用流動電話（尤其是使用手持流動電話）
明知身體不適會大大影響駕駛技術而仍駕駛
明知缺乏充足的睡眠或休息而仍駕駛
駕駛一輛維修不善或危險地負載的車輛，尤其這是出於商業理由所引致的
慣常以低於可接受的水準駕駛
同時犯了其他罪行，例如未持有執照而駕駛；在取消駕駛資格期間駕駛；無保險而駕駛；在沒有督導的情況下以學習駕駛人士的身分駕駛；未獲同意而取用汽車；駕駛被盜車輛
以往曾就交通罪行被定罪，特別是涉及不良駕駛的罪行或涉及駕駛前飲用過量酒精的罪行。
上訴庭在香港特別行政區 訴 陳水華 援引Cooksley，指出危險駕駛罪責分4級。一端為意外發生屬駕駛者的一時判斷錯誤。另一端則為最嚴重的，即駕駛者自私地罔顧其他道路使用者或自己乘客的安全，或駕駛帶某程度上的魯莽。視乎其他在Cooksley一案第15段提到的加重罪責因素的存在，以沒有加刑因素的追究程度而言，判刑基準應為12至18個月即時監禁。
考慮到相關案例、本案的情節及辯方的輕判求情，本席認為被告人在案發時所犯下的疏忽，雖則屬於短暫，但情節相當嚴重，更奪去自己拍檔的生命；此外，本席看不到其他的加刑因素，因此本案嚴重之餘，仍然屬於「低罪責」的一種。經小心考慮本案的整體情況後，本席認為以15個月作為量刑起點是恰當的方式。
被告人自1995年獲取駕駛執照後，一直有良好的駕駛紀錄，這點是難得的。再者，被告人因今次交通意外造成自己多年拍檔的死亡，在過去的日子裏一直愧疚自責，承受了不少的心理壓力，甚至需要接受精神科醫生的治療。在香港特別行政區 訴 鄭子軒 一案，上訴庭指，一名被告人在危險駕駛引致他人死亡之後，在一定程度上因真誠地感到歉疚和後悔而患上創傷後壓力症候群，這是一項減刑因素。因此，本席認為可以將量刑起點酌量減低1個月至14個月即時監禁。
基於本案沒有特別理由不跟隨法例的要求，因此，本席下令被告人需要被停牌，為期5年，並由今天起生效。
同時根據第72A條的要求，本席下令被告人須在上述停牌令的最後3個月內，自費修習和完成駕駛改進課程。
至於第二項控罪，根據條例，控罪的最高刑罰為罰款10,000元及監禁6個月。本席以1,500元作為判罰起點，被告人認罪減至罰款1,000元處理，全數從被告人的保釋金中扣除。
無論如何，若被告人沒有在今天起14日內支付有關罰款，將根據香港法例第221章《刑事訴訟程序條例》第113A條以7天監禁（與控罪一分期）代替。
總結
就控罪一，被告人被判14個月即時監禁，另加即日生效的5年期停牌令及需要如前述般修讀及完成駕駛改進課程。
就控罪二，被告人被判罰款 $1,000，需在14天內支付，有違便以7天監禁代替。
（ 羅志霖 ）
區域法院暫委法官
WKCC1805/2020
劉淑嫻
裁判法院
不認罪
罪成
學生
25
管有任何物品意圖摧毀或損壞財產
錘
判囚
3
11/12/2019
荃灣
DCCC372/2020
祁士偉
區院
認罪
罪成
調酒師
20
暴動
判囚
39
11/03/2019
旺角
DCCC 372/2020
[2021] HKDC 452
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 372 OF 2020
———————-
HKSAR
v
Sum Chun-kit
———————-
Before: HH Judge Casewell
Date: 31 March 2021
Present: Ms Angela Wong, SPP (Ag) of the Department of Justice, for HKSAR
Ms Jacqueline Lam Hoi-yee, instructed by S C Ho & Co, assigned by DLA, for the defendant
Offence: (1) Riot (暴動)
———————
Reasons for Sentence
———————
The defendant has pleaded guilty to a single charge of riot, contrary to sections 19(1) and (2) of the Public Order Ordinance, Cap 245, on 3 November 2019.
The facts admitted show that, on 2 November 2019, several thousand protesters gathered in Tsim Sha Tsui. They eventually retreated to Mong Kok. By 2100 hours, hundreds of people were gathered at the junction of Nathan Road and Argyle Street. Barricades were set up using metal railings, road signs and rubbish. East and South bound traffic was blocked.
At around 2 am, a fire was set at Nathan Road near Argyle Street by several culprits. The defendant was seen to put garbage on the fire at about 2.03 am.
Shortly after that, another fire was set outside exit C1 of Mong Kok MTR station. The defendant was observed putting Styrofoam boxes and wooden pallets onto the fire to increase its severity. This fire caused damage and burnt the sliding gate, the ceiling, the floor, the ceiling tiles and the staircase of the station. The damage to the station is estimated at $10,400. At the time the fire was set, the station was closed.
The defendant was eventually arrested on 31 December 2019. He made admissions after arrest and co-operated with the police in their investigation. In summary, he admitted that he had joined the demonstrators in Mong Kok at around 0030 hours on 3 November 2019. He had thrown items on the road and put items on a fire that had been set by others, and he did that in order to accelerate the burning. He also put Styrofoam boxes over the fire by the C1 exit of the MTR station. He had worn a mask to avoid identification. He had done these actions for fun. He had left some time after 2 am and went home.
In summary, the defendant admits the 10th paragraph of the admitted facts, which are that at all material times the defendant, together with other persons unknown, took part in a riot at Nathan Road near the junction of Argyle Street in Mong Kok, in that they committed acts of breach of the peace including setting fire and accelerating fire in the middle of the road and outside exit C1 of Mong Kok MTR station respectively, and on that basis the defendant has been convicted of the offence to which he pleaded guilty.
As far as the defendant’s background is concerned, that can be seen initially from an antecedent statement taken in the course of investigation and produced on 3 March 2021. The defendant is now aged 20. He has no conviction record. He was a cook and porter prior to his current job as a bartender. His health condition is normal.
These bare facts have been fleshed out by both mitigation and by detailed reports taken on the defendant from the Probation Services and also by the Correctional Services Department, when the defendant was assessed for his suitability for a Training Centre order.
The Probation Services report is detailed and helpful. It sets out the defendant’s background and how he came to be in this position before me today. I will read some extracts from the conclusion because I find it is a very well-considered and detailed report and is very helpful to me.
It says that the gathered information reveal that the accused, now aged 20, grew up in a tragic family where he was born as an illegitimate child and abandoned by his parents. The accused was under the care of his maternal grandparents since birth. It says that his academic performance has been far from satisfactory.
Nevertheless, the defendant would not continue his studies after school too but maintained gainful employment with income. The accused – that is the defendant – has made continuing stable financial contributions to his maternal grandparents, which is particularly important as both the grandparents are retired. The defendant has not only provided financial support but also care and concern to his maternal grandparents.
The report also shows that the defendant has co-operated with the police since the day after he was arrested and has pleaded guilty in court. He took part in the incident, he says, merely for fun and he had no relationship with any political stand or anti-government position.
A social worker who has known the defendant for many years has praised the defendant as a good hearted and caring person who had not intended to destroy the peace of society. The defendant, according to the Probation Services, is remorseful and responsible for his wrongdoing and has learnt a bitter lesson which he said he would not forget.
The defendant was in fact working right up until the time that he was remanded for this offence and was working for PARKnSHOP at the time.
I had also noted in the report that when talking to the Probation Services the defendant said that, while looking back, the defendant realised he was foolish. He has admitted his responsibility in the incident from the first day, co-operated with the police in investigation and pleaded guilty in court.
No recommendation of course is made in the background report as none was asked for by the court.
As far as the report for Commissioner of Correctional Services is concerned, the defendant is of course aged only 20 and is said to be mentally and physically fit for detention in a training centre. He is considered suitable for detention in a training centre where he would undergo comprehensive programmes that the court is well aware of. The defendant in fact expressed that as a preference for sentencing in his own case.
I now turn to the suggested approach to sentence in these cases.
The appellate level courts have considered the appropriate approach to sentence.
I have been referred to the case of HKSAR v Leung Tin Kei [2020] 4 HKLRD 462 and at page 463. In that case, the appellate court set out the general principles of approach that the court must take in its approach to sentencing. So the general principles applicable to sentencing of riot were:
maintaining the rule of law and public order;
punishment and deterrence – an immediate custodial sentence was generally appropriate for both unlawful assembly involving violence and riot;
the offender’s rationale for committing the offence was not a mitigating factor;
gravamen of the offence of riot was the participants acting in large numbers to achieve their common purpose with violence.
Generally, the factors to be taken into account in sentencing included:
whether the riot was spontaneous or premeditated and how detailed the plan was;
the number of participants;
the degree of violence used, including whether weapons were used, what kind and quantity;
the scale of the riot, including the time, location and the number of areas;
the duration of the riot, including whether it continued after repeated warnings;
the harm caused by the riot to persons and properties;
the imminence and gravity of threat caused by the riot;
the nuisance caused to the public by the riot;
the impact of the riot on community relations;
the burden on public expenditure caused by the riot;
the offender’s role and degree of participation in the riot; and
whether the offender committed any other offences during the riot.
The sentence would depend on the circumstances of each case, with the sentencing in other cases not providing much guidance.
Those are the general principles that I will need to consider and bear in mind when determining the level and appropriate sentence for the defendant.
I have also considered the case of HKSAR v Yeung Ka Lun [2019] 1 HKC 296, where the defendant faces charges of riot and arson when participating in a riot by setting fire to an urban taxi intending to damage it. This related to offences in Mong Kok at an earlier period. After conviction after trial, a starting point of 5 years’ imprisonment was adopted for the riot charge and 4 years 3 months for arson. Those sentences were described by the Court of Appeal on appeal as not being manifestly excessive.
I have been referred to a number of mitigating factors which I have been asked to consider when determining the appropriate level of sentencing.
Firstly, the defendant did not originate either fire. That is clear from the admitted facts. He was involved in maintaining fires that were already set.
The defendant saw the disturbance on television and did not arrive until 0030 hours on 3 November although the civil disturbance had been in operation for a long period before that, where it is said that the number of protestors had reduced down to the level of 20 to 30.
The defendant’s participation in the riotous situation was not as a leader.
No weapons were used that evening nor injuries suffered that the court is aware of.
The defendant in his actions, his intention was to damage property not persons.
The MTR station and its exit was closed at the time when the fires were set and the defendant added the accelerant materials to them.
The defendant at the time of this incident was 19 years of age. He exercised very poor judgment and is deeply remorseful and regretful. He has a clear record. He has a history that I have read of volunteering and is civic minded. He has pleaded guilty at what is the earliest opportunity and co-operated with investigators.
Furthermore, he has offered to or may at this point have paid compensation to the MTR Corporation, which will cover the cost of all the damage caused by the fire.
When approaching sentence, the court must of course consider the fact that the defendant has offered compensation as a mitigating factor. Restitution can be and is a mitigating factor the court must consider.
In the case of HKSAR v Leung Shuk Man [2002] 3 HKC 424, the Court of Appeal described restitution as a powerful factor in mitigating, which justified a reduction in sentence beyond the usual one-third.
In HKSAR v Tsang Pui Yu, Shirlina [2014] 5 HKC 111, the Court of Appeal also said there must be a specific discount in addition to the one-third discount for pleading guilty awarded to an offender who makes restitution.
Now, I will outline my general and specific approach for this defendant, taking into account both the aggravating factors set out in the commission of this what is a serious offence, for which a sentence of imprisonment must be imposed, where public property was damaged by fire.
I consider firstly that although the defendant is said to be suitable for a Training Centre order, given the need for a generally deterrent sentence in respect of the events relating to civil disturbances in November of 2019, I do not consider it would be an appropriate disposal for the defendant in this case.
In sentencing, I bear in mind the factors already iterated earlier. In respect of the nature of the defendant’s role, his participation, the size and duration of the civil disturbance, and the fact that this occurred during a period of heightened, elevated civil disorder in 2019, where events of this nature took place with regularity, in determining the starting point of sentence, I take into account the true gravamen of the defendant’s involvement relating to the use of a fire to block roads and to cause damage to property in the early hours of the morning. Naturally, the use of fire to damage property is serious. However, it belongs to a lesser class of severity in acts of riot where the unlawful violence is intended to cause harm to person.
I note the general starting point adopted in earlier cases of up to 5 years’ imprisonment for riot cases. I consider the appropriate starting point in this case to be one of 63 months’ imprisonment. The defendant is naturally entitled to his one-third discount from that. By my calculations, the one-third discount would lead to a final sentence of 42 months’ imprisonment.
As I have earlier outlined, the defendant is of course entitled to a further discount from that sentence in respect of the restitution that he has and will pay to the court. I must clearly take into account the defendant’s payment of full compensation and restitution in this case. I also take into account his youth and his full co-operation with the investigation.
I will accord a further discount of 3 months’ imprisonment to recognise these mitigating factors.
That leads to a final sentence in this case, by my calculation, of 39 months’ imprisonment.
(Confirmation of calculation)
That will be the sentence of the court.
(Discussion re compensation order)
The compensation order that was offered of $10,400 is made. It will be taken from the bail, which will be applied, and the balance will be refunded to the defendant or his representative.
(T Casewell)
District Judge
DCCC 285/2020
香港特別行政區
區域法院
刑事案件2020年第285號
—————————-
香港特別行政區
訴
林龍秋
—————————-
主審法官： 區域法院暫委法官羅志霖
日期： 2020年12月4日
出席人士： 律政司高級檢控官鄧銘聰，代表香港特別行政區
許淑儀大律師，由法律援助署委派的余劍鋒‧孫波‧丘志強‧麥言之律師行延聘，代表被告人
控罪： [1] 危險駕駛引致他人死亡（Causing death by dangerous driving）
[2] 在道路上使用汽車，而該汽車的窗門作出改動，以減低其安全玻璃或安全透眀物料的透光能力（Using a motor vehicle on the road where alteration was made to its windows whereby the ability of their safety glass or safety glazing to transmit light was decreased）
———————
判刑理由書
———————
背景
被告人林龍秋面對二項控罪：－
危險駕駛引致他人死亡；
在道路上使用汽車，而該汽車的窗門作出改動，以減低其安全玻璃或安全透眀物料的透光能力。
被告人承認第二項控罪，否認第一項控罪，但表明承認較輕微的不小心駕駛罪。控方不接納被告人對此項控罪的答辯，法庭就第一項控罪展開聆訊。
就控罪一，經審訊後被告人被裁定罪名成立。
事發於2019年7月3日下午約5時09分，在香港新界葵涌貨櫃碼頭亞洲貨櫃物流中心4A層及4B層之間的行車通道，被告人駕駛重型貨車登記號碼UC695l（「該貨車」）撞倒及輾過剛下車的乘客（本案的死者），引致他的死亡 [詳情可參考本案之裁決理由書]。
至於控罪二，被告人承認的事實顯示，在控罪一的交通意外發生後，汽車檢驗主任證實，被告人在案發時使用的該貨車，兩邊車門的窗門玻璃均裝配有有色薄膜，以減少玻璃的透光度，違反相關法例。
輕判請求
被告人現年55歲，已婚，與妻子同住。
被告人過往沒有任何刑事或交通定罪紀錄，自1996年已在鴻興印刷集團任職司機，有20多年駕駛重型貨車的經驗。
辯方呈交了一共38封的求情信，分別由被告人的家人、親戚、上司、同事及牧師等撰寫，各人在信中均給予被告人正面的評價，包括他對家人照顧有加、為人處事處處得到稱讚，同時亦表達了事件對被告人和家人生活上帶來的衝擊。特別的是，本案死者的妻子和兒子也為被告人寫信求情，希望法庭從輕發落，這除了顯示他們有寛大的量度外，亦反映出兩家人之間關係的密切和良好。
辯方同時亦呈上被告人的精神科醫生報告，證明被告人因為是次意外做成多年拍檔的死亡，感到非常悲痛及內疚，承受著極大的心理壓力，因而患上「嚴重抑鬱症」，還需要定時覆診。
辯方亦呈上一系列的案例供法庭作參考。
相關法律
《道路交通條例》第36(1) – (2A) 規定：—
“(1) 任何人在道路上危險駕駛汽車引致他人死亡，即屬犯罪 ——
一經循公訴程序定罪，可處第5級罰款及監禁10年；（由2008年第23號第5條修訂）
一經循簡易程序定罪，可處第4級罰款及監禁2年。
(2) 如法庭或裁判官裁定任何人犯了第(1)款所訂的罪行，則法庭或裁判官除非基於特別理由，命令取消該人的駕駛資格一段較短期間，或命令不取消該人的駕駛資格，否則須命令按照第(2A)或(2B)款取消該人的駕駛資格。（由2008年第23號第5條代替）
(2A) 在不抵觸第(2B)款的條文下 ——
（如屬首次被定罪）上述的人的駕駛資格須取消至少5年；
（如屬再次被定罪）上述的人的駕駛資格須取消至少10年。（由2008年第23號第5條增補。由2011年第24號第6條修訂）”
上訴庭在律政司司長 訴 潘永基及另一人 一案中所提到的以下判刑考慮因素：—
在大多數的危險駕駛個案中，犯罪者顯然知道自己危險駕駛及應當因此受罰。記着這一點是很重要的。因為在某些情況下，確實是不應該將違反交通法例的人視為真正刑事罪犯，但話雖如此，對於危險駕駛引致他人死亡等罪行的犯罪者，就無必要如此仁慈地看待他們了。
2) 危險駕駛引致他人死亡，明顯會令死者的家人深感悲痛。對別人一生造成的影響，在判刑時應予考慮。
3) 另一點重要的，就是法庭必須清楚傳達一項信息；危險駕駛的行為有時候可能帶來極嚴重的後果，亦因此在判多宗涉及危險駕駛的個案時，便有需要記住阻嚇的效用。很多人往往可能忘記，駕駛汽車如達不到規定的標準，是可以奪去或殘害生命的。道路交通法例及其他規則載有在法律上規定駕車人士須達致的標準，這是要確保所有可能接觸到汽車的人（不論是其他駕車人士、乘客或行人）安全，生命不受害。
4) 儘管可以在清單上一一臚列加重刑罰和減輕刑罰的因素，但判刑的法庭還須審視整體情況及犯罪者的整體刑責。在評估罪案的整體嚴重性時，刑責往往是主要的因素。這並不是說數一數有幾多項加重刑罰或減輕刑罰的因素，然後機械式地計出有關的刑罰。量刑不是這般精密地進行計算，法庭而是必須充分靈活地考慮整體情況，以定出適當的判刑。一些個案（就如本案一樣）即使只有某些加重刑罰因素，但其他加重刑罰因素則欠奉，仍可令該等個案歸入非常嚴重一類。
5) 有一項主因，可視為支持重判的加重刑罰因素，即駕駛者自私地罔顧其他道路使用者或其車上乘客（或我們想補充的行人）的安全或在某程度上魯莽駕駛。」
在潘永基案後，有關「危險駕駛引致他人死亡」罪的判刑方面，上訴庭在Secretary for Justice v Liu Kwok Chun （廖國鎮）一案中有更詳盡考慮。值得留意的是，廖國鎮案控罪被干犯時的法定刑罰上限是5年監禁。而非現在的10年監禁，但是Cooksley （Robert Charles） 的判刑指引則以當時英國的最高刑罰10年監禁為基礎。上訴庭進一步把加重罪責因素分為4大類：「高罪責」、「慣性以低於可接受標準駕駛」、「控罪的後果」、「案發時的不負責任行為」。上訴庭在案例第39段列出一些法庭在判刑時應該考慮的求情因素，包括良好駕駛紀錄、沒有前科、適時認罪、真誠的震驚或悔意、年紀及駕駛者本身在意外中也受傷。上訴庭亦建議可以把罪責程度與Cooksley案例中的建議刑期比對。
上訴庭於律政司司長 訴 房濟民 一案，採納了Cooksley以下所羅列的加刑因素：—
因犯案時的駕駛水準而須負高度刑責
服用藥物（包括已知道會引致昏昏欲睡的法定藥物）或飲用酒精，嚴重程度由喝了幾杯到“駕車串酒吧”
嚴重超速；賽車；與另一輛汽車競逐；“向友儕炫耀”
不理會同車乘客的警告
長期、持續及蓄意的十分不良駕駛方式
放肆的駕駛行為（例如行車時太接近前面車輛、持續不適當地企圖超車或超車後切線）
駕駛者駕駛時不集中注意力（這原是可避免的），例如駕駛時閱讀或使用流動電話（尤其是使用手持流動電話）
明知身體不適會大大影響駕駛技術而仍駕駛
明知缺乏充足的睡眠或休息而仍駕駛
駕駛一輛維修不善或危險地負載的車輛，尤其這是出於商業理由所引致的
慣常以低於可接受的水準駕駛
同時犯了其他罪行，例如未持有執照而駕駛；在取消駕駛資格期間駕駛；無保險而駕駛；在沒有督導的情況下以學習駕駛人士的身分駕駛；未獲同意而取用汽車；駕駛被盜車輛
以往曾就交通罪行被定罪，特別是涉及不良駕駛的罪行或涉及駕駛前飲用過量酒精的罪行。
上訴庭在香港特別行政區 訴 陳水華 援引Cooksley，指出危險駕駛罪責分4級。一端為意外發生屬駕駛者的一時判斷錯誤。另一端則為最嚴重的，即駕駛者自私地罔顧其他道路使用者或自己乘客的安全，或駕駛帶某程度上的魯莽。視乎其他在Cooksley一案第15段提到的加重罪責因素的存在，以沒有加刑因素的追究程度而言，判刑基準應為12至18個月即時監禁。
考慮到相關案例、本案的情節及辯方的輕判求情，本席認為被告人在案發時所犯下的疏忽，雖則屬於短暫，但情節相當嚴重，更奪去自己拍檔的生命；此外，本席看不到其他的加刑因素，因此本案嚴重之餘，仍然屬於「低罪責」的一種。經小心考慮本案的整體情況後，本席認為以15個月作為量刑起點是恰當的方式。
被告人自1995年獲取駕駛執照後，一直有良好的駕駛紀錄，這點是難得的。再者，被告人因今次交通意外造成自己多年拍檔的死亡，在過去的日子裏一直愧疚自責，承受了不少的心理壓力，甚至需要接受精神科醫生的治療。在香港特別行政區 訴 鄭子軒 一案，上訴庭指，一名被告人在危險駕駛引致他人死亡之後，在一定程度上因真誠地感到歉疚和後悔而患上創傷後壓力症候群，這是一項減刑因素。因此，本席認為可以將量刑起點酌量減低1個月至14個月即時監禁。
基於本案沒有特別理由不跟隨法例的要求，因此，本席下令被告人需要被停牌，為期5年，並由今天起生效。
同時根據第72A條的要求，本席下令被告人須在上述停牌令的最後3個月內，自費修習和完成駕駛改進課程。
至於第二項控罪，根據條例，控罪的最高刑罰為罰款10,000元及監禁6個月。本席以1,500元作為判罰起點，被告人認罪減至罰款1,000元處理，全數從被告人的保釋金中扣除。
無論如何，若被告人沒有在今天起14日內支付有關罰款，將根據香港法例第221章《刑事訴訟程序條例》第113A條以7天監禁（與控罪一分期）代替。
總結
就控罪一，被告人被判14個月即時監禁，另加即日生效的5年期停牌令及需要如前述般修讀及完成駕駛改進課程。
就控罪二，被告人被判罰款 $1,000，需在14天內支付，有違便以7天監禁代替。
（ 羅志霖 ）
區域法院暫委法官
DCCC 285/2020
杜大偉
區院
撤控
學生
20
在公眾地方管有攻擊性武器
深水埗
DCCC 285/2020
香港特別行政區
區域法院
刑事案件2020年第285號
—————————-
香港特別行政區
訴
林龍秋
—————————-
主審法官： 區域法院暫委法官羅志霖
日期： 2020年12月4日
出席人士： 律政司高級檢控官鄧銘聰，代表香港特別行政區
許淑儀大律師，由法律援助署委派的余劍鋒‧孫波‧丘志強‧麥言之律師行延聘，代表被告人
控罪： [1] 危險駕駛引致他人死亡（Causing death by dangerous driving）
[2] 在道路上使用汽車，而該汽車的窗門作出改動，以減低其安全玻璃或安全透眀物料的透光能力（Using a motor vehicle on the road where alteration was made to its windows whereby the ability of their safety glass or safety glazing to transmit light was decreased）
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判刑理由書
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背景
被告人林龍秋面對二項控罪：－
危險駕駛引致他人死亡；
在道路上使用汽車，而該汽車的窗門作出改動，以減低其安全玻璃或安全透眀物料的透光能力。
被告人承認第二項控罪，否認第一項控罪，但表明承認較輕微的不小心駕駛罪。控方不接納被告人對此項控罪的答辯，法庭就第一項控罪展開聆訊。
就控罪一，經審訊後被告人被裁定罪名成立。
事發於2019年7月3日下午約5時09分，在香港新界葵涌貨櫃碼頭亞洲貨櫃物流中心4A層及4B層之間的行車通道，被告人駕駛重型貨車登記號碼UC695l（「該貨車」）撞倒及輾過剛下車的乘客（本案的死者），引致他的死亡 [詳情可參考本案之裁決理由書]。
至於控罪二，被告人承認的事實顯示，在控罪一的交通意外發生後，汽車檢驗主任證實，被告人在案發時使用的該貨車，兩邊車門的窗門玻璃均裝配有有色薄膜，以減少玻璃的透光度，違反相關法例。
輕判請求
被告人現年55歲，已婚，與妻子同住。
被告人過往沒有任何刑事或交通定罪紀錄，自1996年已在鴻興印刷集團任職司機，有20多年駕駛重型貨車的經驗。
辯方呈交了一共38封的求情信，分別由被告人的家人、親戚、上司、同事及牧師等撰寫，各人在信中均給予被告人正面的評價，包括他對家人照顧有加、為人處事處處得到稱讚，同時亦表達了事件對被告人和家人生活上帶來的衝擊。特別的是，本案死者的妻子和兒子也為被告人寫信求情，希望法庭從輕發落，這除了顯示他們有寛大的量度外，亦反映出兩家人之間關係的密切和良好。
辯方同時亦呈上被告人的精神科醫生報告，證明被告人因為是次意外做成多年拍檔的死亡，感到非常悲痛及內疚，承受著極大的心理壓力，因而患上「嚴重抑鬱症」，還需要定時覆診。
辯方亦呈上一系列的案例供法庭作參考。
相關法律
《道路交通條例》第36(1) – (2A) 規定：—
“(1) 任何人在道路上危險駕駛汽車引致他人死亡，即屬犯罪 ——
一經循公訴程序定罪，可處第5級罰款及監禁10年；（由2008年第23號第5條修訂）
一經循簡易程序定罪，可處第4級罰款及監禁2年。
(2) 如法庭或裁判官裁定任何人犯了第(1)款所訂的罪行，則法庭或裁判官除非基於特別理由，命令取消該人的駕駛資格一段較短期間，或命令不取消該人的駕駛資格，否則須命令按照第(2A)或(2B)款取消該人的駕駛資格。（由2008年第23號第5條代替）
(2A) 在不抵觸第(2B)款的條文下 ——
（如屬首次被定罪）上述的人的駕駛資格須取消至少5年；
（如屬再次被定罪）上述的人的駕駛資格須取消至少10年。（由2008年第23號第5條增補。由2011年第24號第6條修訂）”
上訴庭在律政司司長 訴 潘永基及另一人 一案中所提到的以下判刑考慮因素：—
在大多數的危險駕駛個案中，犯罪者顯然知道自己危險駕駛及應當因此受罰。記着這一點是很重要的。因為在某些情況下，確實是不應該將違反交通法例的人視為真正刑事罪犯，但話雖如此，對於危險駕駛引致他人死亡等罪行的犯罪者，就無必要如此仁慈地看待他們了。
2) 危險駕駛引致他人死亡，明顯會令死者的家人深感悲痛。對別人一生造成的影響，在判刑時應予考慮。
3) 另一點重要的，就是法庭必須清楚傳達一項信息；危險駕駛的行為有時候可能帶來極嚴重的後果，亦因此在判多宗涉及危險駕駛的個案時，便有需要記住阻嚇的效用。很多人往往可能忘記，駕駛汽車如達不到規定的標準，是可以奪去或殘害生命的。道路交通法例及其他規則載有在法律上規定駕車人士須達致的標準，這是要確保所有可能接觸到汽車的人（不論是其他駕車人士、乘客或行人）安全，生命不受害。
4) 儘管可以在清單上一一臚列加重刑罰和減輕刑罰的因素，但判刑的法庭還須審視整體情況及犯罪者的整體刑責。在評估罪案的整體嚴重性時，刑責往往是主要的因素。這並不是說數一數有幾多項加重刑罰或減輕刑罰的因素，然後機械式地計出有關的刑罰。量刑不是這般精密地進行計算，法庭而是必須充分靈活地考慮整體情況，以定出適當的判刑。一些個案（就如本案一樣）即使只有某些加重刑罰因素，但其他加重刑罰因素則欠奉，仍可令該等個案歸入非常嚴重一類。
5) 有一項主因，可視為支持重判的加重刑罰因素，即駕駛者自私地罔顧其他道路使用者或其車上乘客（或我們想補充的行人）的安全或在某程度上魯莽駕駛。」
在潘永基案後，有關「危險駕駛引致他人死亡」罪的判刑方面，上訴庭在Secretary for Justice v Liu Kwok Chun （廖國鎮）一案中有更詳盡考慮。值得留意的是，廖國鎮案控罪被干犯時的法定刑罰上限是5年監禁。而非現在的10年監禁，但是Cooksley （Robert Charles） 的判刑指引則以當時英國的最高刑罰10年監禁為基礎。上訴庭進一步把加重罪責因素分為4大類：「高罪責」、「慣性以低於可接受標準駕駛」、「控罪的後果」、「案發時的不負責任行為」。上訴庭在案例第39段列出一些法庭在判刑時應該考慮的求情因素，包括良好駕駛紀錄、沒有前科、適時認罪、真誠的震驚或悔意、年紀及駕駛者本身在意外中也受傷。上訴庭亦建議可以把罪責程度與Cooksley案例中的建議刑期比對。
上訴庭於律政司司長 訴 房濟民 一案，採納了Cooksley以下所羅列的加刑因素：—
因犯案時的駕駛水準而須負高度刑責
服用藥物（包括已知道會引致昏昏欲睡的法定藥物）或飲用酒精，嚴重程度由喝了幾杯到“駕車串酒吧”
嚴重超速；賽車；與另一輛汽車競逐；“向友儕炫耀”
不理會同車乘客的警告
長期、持續及蓄意的十分不良駕駛方式
放肆的駕駛行為（例如行車時太接近前面車輛、持續不適當地企圖超車或超車後切線）
駕駛者駕駛時不集中注意力（這原是可避免的），例如駕駛時閱讀或使用流動電話（尤其是使用手持流動電話）
明知身體不適會大大影響駕駛技術而仍駕駛
明知缺乏充足的睡眠或休息而仍駕駛
駕駛一輛維修不善或危險地負載的車輛，尤其這是出於商業理由所引致的
慣常以低於可接受的水準駕駛
同時犯了其他罪行，例如未持有執照而駕駛；在取消駕駛資格期間駕駛；無保險而駕駛；在沒有督導的情況下以學習駕駛人士的身分駕駛；未獲同意而取用汽車；駕駛被盜車輛
以往曾就交通罪行被定罪，特別是涉及不良駕駛的罪行或涉及駕駛前飲用過量酒精的罪行。
上訴庭在香港特別行政區 訴 陳水華 援引Cooksley，指出危險駕駛罪責分4級。一端為意外發生屬駕駛者的一時判斷錯誤。另一端則為最嚴重的，即駕駛者自私地罔顧其他道路使用者或自己乘客的安全，或駕駛帶某程度上的魯莽。視乎其他在Cooksley一案第15段提到的加重罪責因素的存在，以沒有加刑因素的追究程度而言，判刑基準應為12至18個月即時監禁。
考慮到相關案例、本案的情節及辯方的輕判求情，本席認為被告人在案發時所犯下的疏忽，雖則屬於短暫，但情節相當嚴重，更奪去自己拍檔的生命；此外，本席看不到其他的加刑因素，因此本案嚴重之餘，仍然屬於「低罪責」的一種。經小心考慮本案的整體情況後，本席認為以15個月作為量刑起點是恰當的方式。
被告人自1995年獲取駕駛執照後，一直有良好的駕駛紀錄，這點是難得的。再者，被告人因今次交通意外造成自己多年拍檔的死亡，在過去的日子裏一直愧疚自責，承受了不少的心理壓力，甚至需要接受精神科醫生的治療。在香港特別行政區 訴 鄭子軒 一案，上訴庭指，一名被告人在危險駕駛引致他人死亡之後，在一定程度上因真誠地感到歉疚和後悔而患上創傷後壓力症候群，這是一項減刑因素。因此，本席認為可以將量刑起點酌量減低1個月至14個月即時監禁。
基於本案沒有特別理由不跟隨法例的要求，因此，本席下令被告人需要被停牌，為期5年，並由今天起生效。
同時根據第72A條的要求，本席下令被告人須在上述停牌令的最後3個月內，自費修習和完成駕駛改進課程。
至於第二項控罪，根據條例，控罪的最高刑罰為罰款10,000元及監禁6個月。本席以1,500元作為判罰起點，被告人認罪減至罰款1,000元處理，全數從被告人的保釋金中扣除。
無論如何，若被告人沒有在今天起14日內支付有關罰款，將根據香港法例第221章《刑事訴訟程序條例》第113A條以7天監禁（與控罪一分期）代替。
總結
就控罪一，被告人被判14個月即時監禁，另加即日生效的5年期停牌令及需要如前述般修讀及完成駕駛改進課程。
就控罪二，被告人被判罰款 $1,000，需在14天內支付，有違便以7天監禁代替。
（ 羅志霖 ）
區域法院暫委法官
KCCC2970/2020
鄭念慈
裁判法院
認罪
罪成
學生
17
在公眾地方造成阻礙
感化令
旺角
KCCC2970/2020
鄭念慈
裁判法院
認罪
罪成
學生
19
在公眾地方造成阻礙
感化令
旺角
DCCC372/2020
祁士偉
區院
撤控
調酒師
20
蒙面
11/03/2019
旺角
DCCC 372/2020
[2021] HKDC 452
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 372 OF 2020
———————-
HKSAR
v
Sum Chun-kit
———————-
Before: HH Judge Casewell
Date: 31 March 2021
Present: Ms Angela Wong, SPP (Ag) of the Department of Justice, for HKSAR
Ms Jacqueline Lam Hoi-yee, instructed by S C Ho & Co, assigned by DLA, for the defendant
Offence: (1) Riot (暴動)
———————
Reasons for Sentence
———————
The defendant has pleaded guilty to a single charge of riot, contrary to sections 19(1) and (2) of the Public Order Ordinance, Cap 245, on 3 November 2019.
The facts admitted show that, on 2 November 2019, several thousand protesters gathered in Tsim Sha Tsui. They eventually retreated to Mong Kok. By 2100 hours, hundreds of people were gathered at the junction of Nathan Road and Argyle Street. Barricades were set up using metal railings, road signs and rubbish. East and South bound traffic was blocked.
At around 2 am, a fire was set at Nathan Road near Argyle Street by several culprits. The defendant was seen to put garbage on the fire at about 2.03 am.
Shortly after that, another fire was set outside exit C1 of Mong Kok MTR station. The defendant was observed putting Styrofoam boxes and wooden pallets onto the fire to increase its severity. This fire caused damage and burnt the sliding gate, the ceiling, the floor, the ceiling tiles and the staircase of the station. The damage to the station is estimated at $10,400. At the time the fire was set, the station was closed.
The defendant was eventually arrested on 31 December 2019. He made admissions after arrest and co-operated with the police in their investigation. In summary, he admitted that he had joined the demonstrators in Mong Kok at around 0030 hours on 3 November 2019. He had thrown items on the road and put items on a fire that had been set by others, and he did that in order to accelerate the burning. He also put Styrofoam boxes over the fire by the C1 exit of the MTR station. He had worn a mask to avoid identification. He had done these actions for fun. He had left some time after 2 am and went home.
In summary, the defendant admits the 10th paragraph of the admitted facts, which are that at all material times the defendant, together with other persons unknown, took part in a riot at Nathan Road near the junction of Argyle Street in Mong Kok, in that they committed acts of breach of the peace including setting fire and accelerating fire in the middle of the road and outside exit C1 of Mong Kok MTR station respectively, and on that basis the defendant has been convicted of the offence to which he pleaded guilty.
As far as the defendant’s background is concerned, that can be seen initially from an antecedent statement taken in the course of investigation and produced on 3 March 2021. The defendant is now aged 20. He has no conviction record. He was a cook and porter prior to his current job as a bartender. His health condition is normal.
These bare facts have been fleshed out by both mitigation and by detailed reports taken on the defendant from the Probation Services and also by the Correctional Services Department, when the defendant was assessed for his suitability for a Training Centre order.
The Probation Services report is detailed and helpful. It sets out the defendant’s background and how he came to be in this position before me today. I will read some extracts from the conclusion because I find it is a very well-considered and detailed report and is very helpful to me.
It says that the gathered information reveal that the accused, now aged 20, grew up in a tragic family where he was born as an illegitimate child and abandoned by his parents. The accused was under the care of his maternal grandparents since birth. It says that his academic performance has been far from satisfactory.
Nevertheless, the defendant would not continue his studies after school too but maintained gainful employment with income. The accused – that is the defendant – has made continuing stable financial contributions to his maternal grandparents, which is particularly important as both the grandparents are retired. The defendant has not only provided financial support but also care and concern to his maternal grandparents.
The report also shows that the defendant has co-operated with the police since the day after he was arrested and has pleaded guilty in court. He took part in the incident, he says, merely for fun and he had no relationship with any political stand or anti-government position.
A social worker who has known the defendant for many years has praised the defendant as a good hearted and caring person who had not intended to destroy the peace of society. The defendant, according to the Probation Services, is remorseful and responsible for his wrongdoing and has learnt a bitter lesson which he said he would not forget.
The defendant was in fact working right up until the time that he was remanded for this offence and was working for PARKnSHOP at the time.
I had also noted in the report that when talking to the Probation Services the defendant said that, while looking back, the defendant realised he was foolish. He has admitted his responsibility in the incident from the first day, co-operated with the police in investigation and pleaded guilty in court.
No recommendation of course is made in the background report as none was asked for by the court.
As far as the report for Commissioner of Correctional Services is concerned, the defendant is of course aged only 20 and is said to be mentally and physically fit for detention in a training centre. He is considered suitable for detention in a training centre where he would undergo comprehensive programmes that the court is well aware of. The defendant in fact expressed that as a preference for sentencing in his own case.
I now turn to the suggested approach to sentence in these cases.
The appellate level courts have considered the appropriate approach to sentence.
I have been referred to the case of HKSAR v Leung Tin Kei [2020] 4 HKLRD 462 and at page 463. In that case, the appellate court set out the general principles of approach that the court must take in its approach to sentencing. So the general principles applicable to sentencing of riot were:
maintaining the rule of law and public order;
punishment and deterrence – an immediate custodial sentence was generally appropriate for both unlawful assembly involving violence and riot;
the offender’s rationale for committing the offence was not a mitigating factor;
gravamen of the offence of riot was the participants acting in large numbers to achieve their common purpose with violence.
Generally, the factors to be taken into account in sentencing included:
whether the riot was spontaneous or premeditated and how detailed the plan was;
the number of participants;
the degree of violence used, including whether weapons were used, what kind and quantity;
the scale of the riot, including the time, location and the number of areas;
the duration of the riot, including whether it continued after repeated warnings;
the harm caused by the riot to persons and properties;
the imminence and gravity of threat caused by the riot;
the nuisance caused to the public by the riot;
the impact of the riot on community relations;
the burden on public expenditure caused by the riot;
the offender’s role and degree of participation in the riot; and
whether the offender committed any other offences during the riot.
The sentence would depend on the circumstances of each case, with the sentencing in other cases not providing much guidance.
Those are the general principles that I will need to consider and bear in mind when determining the level and appropriate sentence for the defendant.
I have also considered the case of HKSAR v Yeung Ka Lun [2019] 1 HKC 296, where the defendant faces charges of riot and arson when participating in a riot by setting fire to an urban taxi intending to damage it. This related to offences in Mong Kok at an earlier period. After conviction after trial, a starting point of 5 years’ imprisonment was adopted for the riot charge and 4 years 3 months for arson. Those sentences were described by the Court of Appeal on appeal as not being manifestly excessive.
I have been referred to a number of mitigating factors which I have been asked to consider when determining the appropriate level of sentencing.
Firstly, the defendant did not originate either fire. That is clear from the admitted facts. He was involved in maintaining fires that were already set.
The defendant saw the disturbance on television and did not arrive until 0030 hours on 3 November although the civil disturbance had been in operation for a long period before that, where it is said that the number of protestors had reduced down to the level of 20 to 30.
The defendant’s participation in the riotous situation was not as a leader.
No weapons were used that evening nor injuries suffered that the court is aware of.
The defendant in his actions, his intention was to damage property not persons.
The MTR station and its exit was closed at the time when the fires were set and the defendant added the accelerant materials to them.
The defendant at the time of this incident was 19 years of age. He exercised very poor judgment and is deeply remorseful and regretful. He has a clear record. He has a history that I have read of volunteering and is civic minded. He has pleaded guilty at what is the earliest opportunity and co-operated with investigators.
Furthermore, he has offered to or may at this point have paid compensation to the MTR Corporation, which will cover the cost of all the damage caused by the fire.
When approaching sentence, the court must of course consider the fact that the defendant has offered compensation as a mitigating factor. Restitution can be and is a mitigating factor the court must consider.
In the case of HKSAR v Leung Shuk Man [2002] 3 HKC 424, the Court of Appeal described restitution as a powerful factor in mitigating, which justified a reduction in sentence beyond the usual one-third.
In HKSAR v Tsang Pui Yu, Shirlina [2014] 5 HKC 111, the Court of Appeal also said there must be a specific discount in addition to the one-third discount for pleading guilty awarded to an offender who makes restitution.
Now, I will outline my general and specific approach for this defendant, taking into account both the aggravating factors set out in the commission of this what is a serious offence, for which a sentence of imprisonment must be imposed, where public property was damaged by fire.
I consider firstly that although the defendant is said to be suitable for a Training Centre order, given the need for a generally deterrent sentence in respect of the events relating to civil disturbances in November of 2019, I do not consider it would be an appropriate disposal for the defendant in this case.
In sentencing, I bear in mind the factors already iterated earlier. In respect of the nature of the defendant’s role, his participation, the size and duration of the civil disturbance, and the fact that this occurred during a period of heightened, elevated civil disorder in 2019, where events of this nature took place with regularity, in determining the starting point of sentence, I take into account the true gravamen of the defendant’s involvement relating to the use of a fire to block roads and to cause damage to property in the early hours of the morning. Naturally, the use of fire to damage property is serious. However, it belongs to a lesser class of severity in acts of riot where the unlawful violence is intended to cause harm to person.
I note the general starting point adopted in earlier cases of up to 5 years’ imprisonment for riot cases. I consider the appropriate starting point in this case to be one of 63 months’ imprisonment. The defendant is naturally entitled to his one-third discount from that. By my calculations, the one-third discount would lead to a final sentence of 42 months’ imprisonment.
As I have earlier outlined, the defendant is of course entitled to a further discount from that sentence in respect of the restitution that he has and will pay to the court. I must clearly take into account the defendant’s payment of full compensation and restitution in this case. I also take into account his youth and his full co-operation with the investigation.
I will accord a further discount of 3 months’ imprisonment to recognise these mitigating factors.
That leads to a final sentence in this case, by my calculation, of 39 months’ imprisonment.
(Confirmation of calculation)
That will be the sentence of the court.
(Discussion re compensation order)
The compensation order that was offered of $10,400 is made. It will be taken from the bail, which will be applied, and the balance will be refunded to the defendant or his representative.
(T Casewell)
District Judge
DCCC372/2020
祁士偉
區院
撤控
調酒師
20
縱火
11/03/2019
旺角
DCCC 372/2020
[2021] HKDC 452
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 372 OF 2020
———————-
HKSAR
v
Sum Chun-kit
———————-
Before: HH Judge Casewell
Date: 31 March 2021
Present: Ms Angela Wong, SPP (Ag) of the Department of Justice, for HKSAR
Ms Jacqueline Lam Hoi-yee, instructed by S C Ho & Co, assigned by DLA, for the defendant
Offence: (1) Riot (暴動)
———————
Reasons for Sentence
———————
The defendant has pleaded guilty to a single charge of riot, contrary to sections 19(1) and (2) of the Public Order Ordinance, Cap 245, on 3 November 2019.
The facts admitted show that, on 2 November 2019, several thousand protesters gathered in Tsim Sha Tsui. They eventually retreated to Mong Kok. By 2100 hours, hundreds of people were gathered at the junction of Nathan Road and Argyle Street. Barricades were set up using metal railings, road signs and rubbish. East and South bound traffic was blocked.
At around 2 am, a fire was set at Nathan Road near Argyle Street by several culprits. The defendant was seen to put garbage on the fire at about 2.03 am.
Shortly after that, another fire was set outside exit C1 of Mong Kok MTR station. The defendant was observed putting Styrofoam boxes and wooden pallets onto the fire to increase its severity. This fire caused damage and burnt the sliding gate, the ceiling, the floor, the ceiling tiles and the staircase of the station. The damage to the station is estimated at $10,400. At the time the fire was set, the station was closed.
The defendant was eventually arrested on 31 December 2019. He made admissions after arrest and co-operated with the police in their investigation. In summary, he admitted that he had joined the demonstrators in Mong Kok at around 0030 hours on 3 November 2019. He had thrown items on the road and put items on a fire that had been set by others, and he did that in order to accelerate the burning. He also put Styrofoam boxes over the fire by the C1 exit of the MTR station. He had worn a mask to avoid identification. He had done these actions for fun. He had left some time after 2 am and went home.
In summary, the defendant admits the 10th paragraph of the admitted facts, which are that at all material times the defendant, together with other persons unknown, took part in a riot at Nathan Road near the junction of Argyle Street in Mong Kok, in that they committed acts of breach of the peace including setting fire and accelerating fire in the middle of the road and outside exit C1 of Mong Kok MTR station respectively, and on that basis the defendant has been convicted of the offence to which he pleaded guilty.
As far as the defendant’s background is concerned, that can be seen initially from an antecedent statement taken in the course of investigation and produced on 3 March 2021. The defendant is now aged 20. He has no conviction record. He was a cook and porter prior to his current job as a bartender. His health condition is normal.
These bare facts have been fleshed out by both mitigation and by detailed reports taken on the defendant from the Probation Services and also by the Correctional Services Department, when the defendant was assessed for his suitability for a Training Centre order.
The Probation Services report is detailed and helpful. It sets out the defendant’s background and how he came to be in this position before me today. I will read some extracts from the conclusion because I find it is a very well-considered and detailed report and is very helpful to me.
It says that the gathered information reveal that the accused, now aged 20, grew up in a tragic family where he was born as an illegitimate child and abandoned by his parents. The accused was under the care of his maternal grandparents since birth. It says that his academic performance has been far from satisfactory.
Nevertheless, the defendant would not continue his studies after school too but maintained gainful employment with income. The accused – that is the defendant – has made continuing stable financial contributions to his maternal grandparents, which is particularly important as both the grandparents are retired. The defendant has not only provided financial support but also care and concern to his maternal grandparents.
The report also shows that the defendant has co-operated with the police since the day after he was arrested and has pleaded guilty in court. He took part in the incident, he says, merely for fun and he had no relationship with any political stand or anti-government position.
A social worker who has known the defendant for many years has praised the defendant as a good hearted and caring person who had not intended to destroy the peace of society. The defendant, according to the Probation Services, is remorseful and responsible for his wrongdoing and has learnt a bitter lesson which he said he would not forget.
The defendant was in fact working right up until the time that he was remanded for this offence and was working for PARKnSHOP at the time.
I had also noted in the report that when talking to the Probation Services the defendant said that, while looking back, the defendant realised he was foolish. He has admitted his responsibility in the incident from the first day, co-operated with the police in investigation and pleaded guilty in court.
No recommendation of course is made in the background report as none was asked for by the court.
As far as the report for Commissioner of Correctional Services is concerned, the defendant is of course aged only 20 and is said to be mentally and physically fit for detention in a training centre. He is considered suitable for detention in a training centre where he would undergo comprehensive programmes that the court is well aware of. The defendant in fact expressed that as a preference for sentencing in his own case.
I now turn to the suggested approach to sentence in these cases.
The appellate level courts have considered the appropriate approach to sentence.
I have been referred to the case of HKSAR v Leung Tin Kei [2020] 4 HKLRD 462 and at page 463. In that case, the appellate court set out the general principles of approach that the court must take in its approach to sentencing. So the general principles applicable to sentencing of riot were:
maintaining the rule of law and public order;
punishment and deterrence – an immediate custodial sentence was generally appropriate for both unlawful assembly involving violence and riot;
the offender’s rationale for committing the offence was not a mitigating factor;
gravamen of the offence of riot was the participants acting in large numbers to achieve their common purpose with violence.
Generally, the factors to be taken into account in sentencing included:
whether the riot was spontaneous or premeditated and how detailed the plan was;
the number of participants;
the degree of violence used, including whether weapons were used, what kind and quantity;
the scale of the riot, including the time, location and the number of areas;
the duration of the riot, including whether it continued after repeated warnings;
the harm caused by the riot to persons and properties;
the imminence and gravity of threat caused by the riot;
the nuisance caused to the public by the riot;
the impact of the riot on community relations;
the burden on public expenditure caused by the riot;
the offender’s role and degree of participation in the riot; and
whether the offender committed any other offences during the riot.
The sentence would depend on the circumstances of each case, with the sentencing in other cases not providing much guidance.
Those are the general principles that I will need to consider and bear in mind when determining the level and appropriate sentence for the defendant.
I have also considered the case of HKSAR v Yeung Ka Lun [2019] 1 HKC 296, where the defendant faces charges of riot and arson when participating in a riot by setting fire to an urban taxi intending to damage it. This related to offences in Mong Kok at an earlier period. After conviction after trial, a starting point of 5 years’ imprisonment was adopted for the riot charge and 4 years 3 months for arson. Those sentences were described by the Court of Appeal on appeal as not being manifestly excessive.
I have been referred to a number of mitigating factors which I have been asked to consider when determining the appropriate level of sentencing.
Firstly, the defendant did not originate either fire. That is clear from the admitted facts. He was involved in maintaining fires that were already set.
The defendant saw the disturbance on television and did not arrive until 0030 hours on 3 November although the civil disturbance had been in operation for a long period before that, where it is said that the number of protestors had reduced down to the level of 20 to 30.
The defendant’s participation in the riotous situation was not as a leader.
No weapons were used that evening nor injuries suffered that the court is aware of.
The defendant in his actions, his intention was to damage property not persons.
The MTR station and its exit was closed at the time when the fires were set and the defendant added the accelerant materials to them.
The defendant at the time of this incident was 19 years of age. He exercised very poor judgment and is deeply remorseful and regretful. He has a clear record. He has a history that I have read of volunteering and is civic minded. He has pleaded guilty at what is the earliest opportunity and co-operated with investigators.
Furthermore, he has offered to or may at this point have paid compensation to the MTR Corporation, which will cover the cost of all the damage caused by the fire.
When approaching sentence, the court must of course consider the fact that the defendant has offered compensation as a mitigating factor. Restitution can be and is a mitigating factor the court must consider.
In the case of HKSAR v Leung Shuk Man [2002] 3 HKC 424, the Court of Appeal described restitution as a powerful factor in mitigating, which justified a reduction in sentence beyond the usual one-third.
In HKSAR v Tsang Pui Yu, Shirlina [2014] 5 HKC 111, the Court of Appeal also said there must be a specific discount in addition to the one-third discount for pleading guilty awarded to an offender who makes restitution.
Now, I will outline my general and specific approach for this defendant, taking into account both the aggravating factors set out in the commission of this what is a serious offence, for which a sentence of imprisonment must be imposed, where public property was damaged by fire.
I consider firstly that although the defendant is said to be suitable for a Training Centre order, given the need for a generally deterrent sentence in respect of the events relating to civil disturbances in November of 2019, I do not consider it would be an appropriate disposal for the defendant in this case.
In sentencing, I bear in mind the factors already iterated earlier. In respect of the nature of the defendant’s role, his participation, the size and duration of the civil disturbance, and the fact that this occurred during a period of heightened, elevated civil disorder in 2019, where events of this nature took place with regularity, in determining the starting point of sentence, I take into account the true gravamen of the defendant’s involvement relating to the use of a fire to block roads and to cause damage to property in the early hours of the morning. Naturally, the use of fire to damage property is serious. However, it belongs to a lesser class of severity in acts of riot where the unlawful violence is intended to cause harm to person.
I note the general starting point adopted in earlier cases of up to 5 years’ imprisonment for riot cases. I consider the appropriate starting point in this case to be one of 63 months’ imprisonment. The defendant is naturally entitled to his one-third discount from that. By my calculations, the one-third discount would lead to a final sentence of 42 months’ imprisonment.
As I have earlier outlined, the defendant is of course entitled to a further discount from that sentence in respect of the restitution that he has and will pay to the court. I must clearly take into account the defendant’s payment of full compensation and restitution in this case. I also take into account his youth and his full co-operation with the investigation.
I will accord a further discount of 3 months’ imprisonment to recognise these mitigating factors.
That leads to a final sentence in this case, by my calculation, of 39 months’ imprisonment.
(Confirmation of calculation)
That will be the sentence of the court.
(Discussion re compensation order)
The compensation order that was offered of $10,400 is made. It will be taken from the bail, which will be applied, and the balance will be refunded to the defendant or his representative.
(T Casewell)
District Judge
DCCC 778/2020
[2021] HKDC 1621
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 778 OF 2020
____________
HKSAR
v
CHAN Pak-yin (D1)
CHEUNG Ho-yin (D2)
CHAN Hon-leung (D3)
CHUNG Man-chung (D4)
____________
Before : H.H. Judge G. Lam
Date : 23 December 2021
Present : Ms. Paggie Lee, SPP, of the Department of Justice, for HKSAR.
Ms. Liza Yip instructed by M/s Eric Cheung & Lau, assigned by the Director of Legal Aid, for D1.
Mr. Clement Lau instructed by M/s Au-Yeung, Chan & Ho, assigned by the Director of Legal Aid, for D2.
Ms. Cindy Lee instructed by M/s Louis K.Y. Pau & Co., assigned by the Director of Legal Aid, for D3.
Mr. Gibson Shaw instructed by M/s A Lee & Partners, assigned by the Director of Legal Aid, for D4.
Offences : (1) to (3) Conspiracy to defraud（串謀詐騙）
(4) Possession of dangerous drugs （管有危險藥物）
(5) Possession of apparatuses fit and intended for the inhalation of a dangerous drug（管有適合於及擬用作吸服危險藥物的器具）
REASONS FOR SENTENCE
D1 to D4 are jointly charged with 3 offences of “Conspiracy to defraud” (Charges 1 to 3). D3 and D4 are also jointly charged with an offence of “Possession of dangerous drugs” (Charge 4) and an offence of “Possession of apparatuses fit and intended for the inhalation of a dangerous drug” (Charge 5).
2. D1 to D3 pleaded guilty to Charges 1 to 3. D4 pleaded guilty to Charges 3 to 5. The prosecution applied to leave Charges 1 and 2 against D4, and Charges 4 and 5 against D3 in the court file; not to be proceeded against them without leave of court. I granted the application.
Summary of Facts
Background
3. About 7:30 p.m. on 17 February 2020, Mr. Chu (PW4) parked his private car at Chatham Road South, Tsim Sha Tsui. He returned around 4:00 a.m. on 18 February 2020 and found a window of his car broken. Amongst other things, a cheque book of PW4’s account with Chiyu Bank (“the Stolen Cheque Book”) was found missing from the car. PW4 reported loss of the Stolen Cheque Book with the bank and closed the relevant account on the same day.
Charge 1
4. Mr. Tsang (PW1) was the operator of GIA Watch & Jewellery Limited (“GIA”), which engaged in the sale of Rolex watches in Tsim Sha Tsui (“Shop 1”).
5. On 8 March 2020, PW1 received a WhatsApp message from someone using mobile phone number 5499 1274 (“SIM 1”) with an account name “Ken” about the purchase of a Rolex watch. After negotiation, PW1 agreed to sell the watch to Ken at $548,000. Both parties agreed to complete the transaction around 1:00 to 2:00 p.m. on the following day. Ken agreed to deposit the purchase price in full into GIA’s account with Hang Seng Bank (“Account 1”).
6. About 8:23 a.m. on 9 March 2020, PW1 received a WhatsApp message from Ken requesting to collect the watch at 12:15 p.m. by Ken’s assistant. PW1 then asked Ken for the full name, HKID card number and mobile phone number of his assistant.
7. About 11:11 in the same morning, PW1 received a WhatsApp message from mobile phone number 5318 0551 (“SIM 2”), claiming to be Ken’s assistant and that he would collect the Rolex watch. Ken then sent PW1 a photo of a HKID card bearing the name “CHAN Ka-sun” (E1) and a photo of a letter from “WONG Ka-chun” authorizing CHAN Ka-sun to collect the Rolex watch.
8. About 1:34 p.m. on the same day, D1 arrived at Shop 1 to collect the Rolex watch on behalf of Ken. PW1 asked D1 for his HKID card but D1 claimed that he did not have it with him. Instead, D1 sent a photo of E1 to PW1 via WhatsApp. About 1:41, PW1 received from Ken a photo of a deposit receipt purporting to show that Ken had deposited cash in the sum of $548,000 into Account 1 at 1:40 p.m. on 9 March 2020.
9. Since D1 was unable to produce his HKID card, PW1 refused to hand over the Rolex watch to him. PW1 also began to grow suspicion on Ken. PW1 then checked the records of Account 1 by online banking and discovered that the sum which Ken claimed to have deposited was by cheque instead of cash.
10. About 1:45 p.m. on the same day, D1 claimed that he needed to use the washroom and left Shop 1. Ken later informed PW1 via WhatsApp that he no longer wished to purchase to watch. PW1 alerted the Police.
11. In a formal identification parade held on 13 March 2020, PW1 identified D1 as the person who went to Shop 1 requesting to collect the Rolex watch on behalf of Ken.
12. PW1 subsequently retrieved the cheque deposited by Ken (E2); it was a blank cheque originated from the Stolen Cheque Book. The Police later found D2’s left thumbprint on E2.
Charge 2
13. Mr. Tang (PW2) operated “Basel One Jewellery & Watch”, which engaged in the sale of Rolex watches in Tsim Sha Tsui (“Shop 2”).
14. About 11:55 p.m. on 8 March 2020, PW2 received WhatsApp messages from someone using SIM 1 with an account name “Ken” about the purchase of different models of Rolex watches. Eventually, Ken made his pick and PW2 agreed to sell the watch at $279,000. Both parties agreed to complete the transaction around 2:00 p.m. on the following day. Ken agreed to deposit the purchase price in full into PW2’s HSBC account.
15. About 11:00 a.m. on 9 March 2020, Ken informed PW2 via WhatsApp that he would send his assistant to Shop 2 to collect the watch.
16. About 1:44 p.m. on the same day, PW2 received voice calls from phone number 5420 8204 (“SIM 3”). Claiming to be Ken’s assistant, the caller told PW2 that he would collect the watch at Shop 2. PW2 later discovered that there were missed calls made from SIM 2 to his phone. PW2 called back SIM 2. The person who answered the call claimed to be Ken’s assistant and told PW2 that he would attend Shop 2 later.
17. About 2:09 in the same afternoon, D1 arrived at Shop 2 requesting to pick up the Rolex watch on behalf of his boss. PW2 informed Ken that his assistant had arrived; whereas Ken claimed that he would arrange for his accounting staff to deposit the purchase price.
18. About 2:37, Ken informed PW2 that he could not make the deposit since there were some problems with PW2’s bank account. PW2 asked Ken to pay cash at Shop 2. Ken refused claiming that he would arrange for his accounting staff to deposit the money at a bank counter. PW2 grew suspicion and took a photo of D1. D1 later claimed that he needed to use the washroom and left Shop 2.
19. In a formal identification parade held on 13 March 2020, PW2 identified D1 as the person who went to Shop 2 requesting to collect the Rolex watch on behalf of Ken.
Charge 3
20. Madam Tang (PW3) worked at “Alpha Watch & Jewellery”, which engaged in the sale of Rolex watches in Tsim Sha Tsui (“Shop 3”).
21. About 8:04 a.m. on 8 March 2020, PW3 received WhatsApp messages from someone using SIM 1 with an account name “Ken” about Rolex watches. On 9 March 2020, Ken made his pick and agreed to buy the watch at $280,000. Ken claimed that he would arrange for his colleague to collect the watch and would deposit the full purchase price in cash into PW3’s HSBC account (“Account 2”) by bank transfer.
22. About 2:14 p.m. on 9 March 2020, PW3 learned about the incident in relation to Charge 1 from her WhatsApp contacts. She alerted the Police because she recognized SIM 1 being the phone number used by Ken to contact her. About 2:26 in the same afternoon, Ken sent a photo of a HKID card bearing the name “CHAN Ka-sun” (E3) to PW3 telling her that the said person would collect the Rolex watch on his behalf. E3 and E1 were later on found to be the same image.
23. About 3:13 p.m. on the same day, D1 arrived at Shop 3 claiming to be Ken’s assistant and requesting to collect the watch. About 3:26, PW3 received from Ken via WhatsApp a photo of an HSBC deposit slip purporting to show that cash in the sum of $280,000 was deposited into Account 2. At the same time, police officers arrived at Shop 3 and detained D1 for enquiry.
24. Having checked the records of Account 2, PW3 discovered that the sum which Ken claimed to have deposited was by cheque instead of cash. The cheque was bounced later. PW3 subsequently retrieved the cheque deposited by Ken (E4); it was a blank cheque originated from the Stolen Cheque Book. The Police later found D2’s left thumbprint on E4.
Controlled delivery and arrest
25. DSIP Tang made enquiries with D1 at Shop 3. D1’s phone rang during the enquiries. He told the Police that it was Ken’s call asking him to deliver the Rolex watch to Mongkok MTR Station. D1 agreed to assist the Police in a controlled delivery.
26. Meanwhile, PW3 was instructed by the Police to inform Ken via WhatsApp that she had received his payment. PW3 then gave a paper bag containing an empty watch box (collectively “the Bag”) to the Police for D1’s delivery.
27. About 4:35, near Exit C at Mongkok MTR Station, D1 handed the Bag to D2. Police officers arrested both D1 and D2. Under caution, D2 claimed that he was asked by “Ah Wai” to collect the watch. Upon search, 2 mobile phones (one containing SIM 2) were found on D1; and 1 mobile phone was found on D2.
28. During the investigation, D2 received a call from SIM 3. He told the Police that someone had just instructed him to pass the Bag to another man. D2 agreed to assist the Police in a controlled delivery.
29. D2 called back the person at SIM 3, who then told D2 to go to Mongkok New Town Mall to make the delivery. D2 took the Bag there. During his journey, police officers saw D3 observing D2. They arrested D3. Upon search, a mobile phone and a key card to Room 1211, Kowloon Harbourfront Hotel, Hung Hom (“the Room”) were found on D3.
30. With D3’s consent, the Police inspected his mobile phone. They found some dialogues between D3 and D4 and a photo of a card containing details of Shop 3.
Seizure of exhibits from the Room (Charges 4 and 5)
31. According to the hotel’s record, D4 became a registered occupant of the Room on 28 February 2020. D3 was registered as an additional occupant on 8 March 2020.
32. About 7:35 p.m. on 9 March 2020, the Police searched the Room and seized the following items :-
(a) On a table in the living room: a laptop computer (containing files of the HSBC deposit slip received by PW3; an image of the HKID card of “WONG Ka-chun”; an image of D1’s HKID card; an image of D4’s HKID card; an image of a HKID card which is the same as E1 and E3; and a series of images purporting to be bank drafts with GIA, PW1 and PW2 as payees); a photocopy of a HKID card which is the same as E1 and E3; 2 pieces of paper which contained the contact details of Shop 1 (with D3’s fingerprints); and some printed copies of purported bank drafts with Shop 1, PW2, PW3 as payees (with D4’s fingerprints);
(b) On the sofa and near the television set: the card cover of SIM 1; and a printer with a copy of a bank draft with PW2 as payee;
(c) On a desk in the bedroom: 1 plastic bag which contained 0.45 gramme of a crystalline solid containing 0.45 gramme of methamphetamine hydrochloride (E7); 1 glass tube shaped as a bulb at one end which contained 0.04 gramme of a solid containing methamphetamine hydrochloride (E8); 1 glass tube shaped as a bulb at one end which contained 0.06 gramme of a solid containing methamphetamine hydrochloride (E9); 1 glass tube shaped as a bulb at one end (E10); and a one-piece set up consisting of 2 glass bottles bridged by 1 glass tube and each glass bottle had 1 opening (one of the glass bottles was inserted with 1 plastic tube fitted into the plastic straw outside the glass bottle) which contained 14 millilitres of a liquid containing traces of methamphetamine (E11). E8 to E10 could be fitted into E11 to form an inhaling device; and
(d) Inside an unlocked safe in the bedroom: 1 glass bottle with 2 openings (one of which was inserted with 1 plastic tube) which contained 13 millilitres of a liquid containing traces of methamphetamine (E12).
E8 to E12 were apparatuses fit and intended for inhalation of methamphetamine. D4 now admits that he had possession of E7 to E12 on 9 March 2020.
Arrest of D4
33. D4 was arrested on 13 March 2020 in Sham Shui Po. He remained silent under caution. A mobile phone was found on him.
D1’s admissions
34. D1 admitted that in the forenoon on 9 March 2020, D2 asked him to meet up in Mongkok. When they met, D2 gave him a mobile phone containing SIM 2 (“the Work Phone”) and instructed him to collect a Rolex watch in Tsim Sha Tsui. D1 then received WhatsApp messages from Ken through the Work Phone asking him to collect a Rolex watch at Shop 1.
35. As requested by Ken, D1 took a photo of his own HKID card and sent it to Ken by WhatsApp using the Work Phone. Ken later sent D1 a photo of a HKID card bearing D1’s photo but with particulars of another person. Ken asked D1 to memorize the personal particulars which appeared on that HKID card.
36. D1 admitted he knew that D2 and Ken were making use of some dishonoured cheques with a view to inducing the respective proprietors of Shops 1 to 3 to pass the respective Rolex watches to him.
D2’s admissions
37. D2 admitted that he met a person named “Ah Wai” about half a year ago. On 8 March 2020, Ah Wai used SIM 3 to call D2 asking him to go to Mongkok in the next morning. Ah Wai also asked D2 to recruit one more person, so D2 brought in D1.
38. About 8:30 a.m. on 9 March 2020, D2 met Ah Wai in Mongkok. Ah Wai gave him a mobile phone and 2 SIM cards (one being SIM 2). D2 inserted SIM 2 into that mobile phone and gave it to D1 around 9:00 a.m. on the same day. D2 also inserted the other SIM card into his own mobile phone.
39. Later, Ah Wai used SIM 3 to call D2 asking him to collect a watch at Exit C of Mongkok MTR Station around 4:00 p.m. on the same day. D2 was arrested by the Police after collecting the Bag from D1.
D3 and D4
40. D3 admitted his mobile phone number under caution. D4 remained silent under caution.
Examination of mobile phones seized from D1 to D3
41. The WhatsApp records contained in the Work Phone showed that D1 had been discussing the events which took place at Shops 1 to 3 with someone named Ken who was using SIM 3. Ken was giving instructions to D1 all along.
42. The WeChat records contained in D2’s mobile phone showed that D2 had asked D1 to meet up in Mongkok in the morning on 9 March 2020. The WhatsApp records contained in D2’s mobile phone showed that D2 was in contact with someone named Ken who was using SIM 3 in relation to the collection and delivery of the Bag.
43. The WhatsApp records contained in D3’s mobile phone showed that D4 had asked D3 to monitor D1 for the collection of the watch from Shop 3 as well as giving instructions to D3 in relation to the collection of the watch from D2.
CCTV footage
44. CCTV footage of Shops 2 and 3 captured the respective incidents described by PWs 2 and 3.
45. CCTV footage of Hang Seng Bank and HSBC captured D2 depositing the cheques related to Charges 1 and 3 (namely E2 and E4).
46. CCTV footage of Kowloon Harbourfront Hotel captured D3 and D4 going to and leaving the 12th Floor every day between 29 February and 9 March 2020.
Mitigation
D1
47. He is 16 and has a clear record. His counsel Ms. Yip informed me that D1 was only 15 when he committed the present offences. He has studied up to F.3 level. In 2019, D1 enrolled in a 4-year Building Engineering Services programme at the Vocational Training Council. He has completed the first 2 years. He now works full-time for an air-conditioning systems contractor of the MTR Corporation 5 days a week, and attends classes on Wednesdays.
48. In mitigation, Ms. Yip submitted that D1 committed the present offences out of momentary greed and foolishness. D1 has a supportive family; his parents are still young (aged 40 and 36 respectively) and both have stable jobs. Ms. Yip stressed that D1 has been co-operative with the Police throughout, which led to the arrest of D2. He also gave an NPS and was accepted by the prosecution to give evidence against D2 at trial. Ms. Yip also submitted that D1 has completed half of his vocational training programme, and has been gainfully employed for 1 year and 3 months with a stable income.
D2
49. He is 19 and has a clear record. His counsel Mr. Lau informed me that D2 was 17 when he committed the present offences. Similar to D1, D2 has also studied up to F.3 level. After leaving school, D2 has worked different jobs and enrolled in a 3-year hair styling course. He, however, did not complete the course due to lack of interest. In May 2021, he became an apprentice at a fire engineering company earning $750 per day.
50. In mitigation, Mr. Lau submitted that D2 was used by other adults as a courier in the present case. He has been co-operative with the Police throughout, which led to the arrest of D3. With his usual fairness, Mr. Lau accepts that credit should be given to D1 for leading to D2’s guilty pleas. Mr. Lau stressed that D2 has shown his remorse by pleading guilty to all 3 charges, even though his plea indication came a bit late.
D3
51. He is 31 and has 7 conviction records (which included 3 “Theft” offences and 1 “Robbery” offence). D3 was released from prison on 25 February 2020 and he committed the present offences in early March 2020. His counsel Ms. Lee informed me that D3 is single and resides with his parents. D3 has studied up to F.2.
52. In mitigation, Ms. Lee submitted that D3 did not know D1 or D2. Although he was introduced to D4 through some friends, D3 barely knew D4. Ms. Lee explained that after his release from prison, D3 had real difficulty in finding a job owing to his conviction records, the social unrest and the pandemic. As a result, he was disappointed and started to hang out with his friend “Ho Chai” in the Room. Ms. Lee submitted that D3 was lured into becoming a courier in the present case by Ho Chai. Attracted by the free room and board as well as a reward of $700, D3 foolishly agreed to play a part in this scam.
D4
53. He is 33 and has 10 conviction records (which included 1 “Theft” offence, 1 “Robbery” offence, 10 “Burglary” offences, 11 deception/fraud-related offences and 2 “simple possession” offences). His counsel Mr. Shaw informed me that D4 is divorced. He has a 10-year-old daughter with his ex-wife and a 6-year-old son with his girlfriend. His daughter now resides with her maternal grandmother. Unfortunately, D4’s girlfriend passed away in 2015. His son now resides with D4’s mother (aged 60). Prior to his arrest, D4 was a self-employed tattoo artist earning $25,000 per month. He contributed $15,000 each month on supporting his children and mother.
54. In mitigation, Mr. Shaw explained that the Room was rented by D4’s female friend Tung. D4 used the Room to provide tattooing service to his clients. Owing to the pandemic, D4’s business dropped substantially. As a result, he agreed to help one of his clients, Ho Chai, to print certain documents in return for a reward of $5,000. Mr. Shaw submitted that D4 has learned his lessons. He has shown genuine remorse by pleading guilty to the charges.
Sentence
55. I will deal with D3 and D4 first.
56. Although Charges 1 to 3 do not involve the Barrick type of breach of trust, I find the sentencing guidelines laid down by the Court of Appeal in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 nevertheless relevant. In my view, such guidelines are simply a yardstick. For cases which are not of the Barrick type, the court may still follow the guidelines in Ng Kwok Wing or impose a sentence which is higher or lower than the guidelines, depending on the facts of each case.
57. The present case is not a cybercrime, which normally deceives victims of their money directly online. Images of misleading deposit receipts were sent to the victims by phone in order to deceive their goods. I also accept that the syndicate did not target at elderly people or people with certain vulnerabilities. Although images of forged HKID cards were involved, I do not consider the scam to be a sophisticated one. The most crucial deceptive element was each misleading deposit receipt.
58. D3 and D4 both denied being the mastermind. For the purpose of sentencing, I need not determine who played a lesser role. As revealed in the Summary of Facts, what each culprit did is clear. They might have played different roles, but they each contributed to the planning and/or execution of the scam and are equally culpable. There is no need to distinguish their roles or to apportion their culpability.
59. Based on the scam employed in the present case, I consider the seriousness of this case commensurate with the sentencing guidelines in Ng Kwok Wing. Hence, I will follow those guidelines. I am aware that none of the attempts to deceive a Rolex watch was successful. Thus, PWs 1 to 3 suffered no financial loss. I will adjust the starting points accordingly.
60. The sum involved in Charge 1 was $548,000. According to Ng Kwok Wing, for $500,000, the starting point is 2.5 years’ imprisonment. I consider it appropriate for this charge.
61. The sum involved in Charge 2 was $279,000. According to Ng Kwok Wing, for $250,000, the starting point is 2 years’ imprisonment. I consider it appropriate for this charge.
62. The sum involved in Charge 3 was $280,000. The appropriate starting point for this charge is 2 years’ imprisonment.
D3
63. He is no stranger to theft-related offences, but has no conviction of deception/fraud-related offences. On the other hand, he committed the present offences in just 10 days after his release from prison. I consider it an aggravating factor. I will increase the starting point of each charge by 3 months.
64. For Charge 1, I adopt a starting point of 33 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 22 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D3 to 22 months’ imprisonment.
65. For Charge 2, I adopt a starting point of 27 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 18 months. I sentence D3 to 18 months’ imprisonment.
66. For Charge 3, I adopt a starting point of 27 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 18 months. I sentence D3 to 18 months’ imprisonment.
67. The total sum involved in Charges 1 to 3 is approximately $1.1 million. According to Ng Kwok Wing, for $1 million, the starting point is 3 years’ imprisonment. PWs 1 to 3 suffered no financial loss but D3 re-offended shortly after his release from prison, I consider a global starting point of 3 years’ imprisonment appropriate for all 3 charges. With the timely guilty pleas, the overall sentence is reduced to 24 months. To achieve this, I order the sentences to run in the following manner :-
(i) 1 month in Charge 2 consecutive to Charge 1; and
(ii) 1 month in Charge 3 consecutive to Charges 1 and 2.
D4
68. For Charge 3, he has a long history of theft-related offences and deception/fraud-related offences, which puts him in the repeated offender category. I will increase the starting point by 3 months. Hence, I adopt a starting point of 27 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 18 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D4 to 18 months’ imprisonment.
69. For Charge 4, at most a total of 0.55 gramme of ICE is involved. D4’s last similar conviction took place over 10 years ago. I adopt a starting point of 12 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 8 months. I sentence D4 to 8 months’ imprisonment.
70. For Charge 5, the usual sentence is 3 months’ imprisonment after plea. I have no reason not to follow it. Hence, I adopt a starting point of 4.5 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 3 months. I sentence D4 to 3 months’ imprisonment.
71. Bearing in mind the totality principle and the nature of the 3 offences, a global starting point of 33 months’ imprisonment is appropriate for Charges 3 to 5. With the timely guilty pleas, the overall sentence is reduced to 22 months. To achieve this, I order the sentences to run in the following manner :-
(i) Charges 4 and 5 concurrent; and
(ii) 4 months in Charges 4 and 5 consecutive to Charge 3.
D1 and D2
72. D1 is only 16; and D2, 19. Both are under 21, which means imprisonment should be the last resort in terms of sentencing. As a general principle, rehabilitation (rather than punishment) plays an important role in reforming young offenders. I cannot overlook their need for rehabilitation. I am also aware that both of them have experienced some in-born learning difficulties when they were young, which probably contributed to their poor academic performance through no fault of their own.
73. Pre-sentencing reports indicated that both are fit for detention in a Rehabilitation Centre or a Training Centre. Both are also suitable for a Community Service Order. The Young Offender Assessment Panel recommended a Community Service Order for long duration for both D1 and D2.
74. Based on the materials before me, I accept that D1 and D2 were both used as foot soldiers by the major players who orchestrated the fraud in this case. Their culpability is probably the least within the syndicate.
75. D1 is half way through his vocational training and has a stable job with positive comments from his employer. I am inclined not to disrupt his training and employment as it might do him more harm than good by placing him in a correctional institution. D2 also received favourable comments from his current employer. Likewise, I am prepared to give him one last chance.
76. I agree with the comments made by the Young Offender Assessment Panel and will follow their recommendations. I consider a Community Service Order to be an appropriate and just punishment for D1 and D2 at this moment.
[Requirements of Community Service Order explained. D1 and D2 understood and are willing to comply.]
I sentence D1 to 160 hours of Community Service each for Charges 1 to 3; and D2 to 200 hours of Community Service each for Charges 1 to 3.
DCCC778/2020
陳仲衡
區院
不認罪
罪成
法律行政文員
24
在公眾地方作出擾亂秩序的行為
判囚
66
沙田
DCCC 778/2020
[2021] HKDC 1621
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 778 OF 2020
____________
HKSAR
v
CHAN Pak-yin (D1)
CHEUNG Ho-yin (D2)
CHAN Hon-leung (D3)
CHUNG Man-chung (D4)
____________
Before : H.H. Judge G. Lam
Date : 23 December 2021
Present : Ms. Paggie Lee, SPP, of the Department of Justice, for HKSAR.
Ms. Liza Yip instructed by M/s Eric Cheung & Lau, assigned by the Director of Legal Aid, for D1.
Mr. Clement Lau instructed by M/s Au-Yeung, Chan & Ho, assigned by the Director of Legal Aid, for D2.
Ms. Cindy Lee instructed by M/s Louis K.Y. Pau & Co., assigned by the Director of Legal Aid, for D3.
Mr. Gibson Shaw instructed by M/s A Lee & Partners, assigned by the Director of Legal Aid, for D4.
Offences : (1) to (3) Conspiracy to defraud（串謀詐騙）
(4) Possession of dangerous drugs （管有危險藥物）
(5) Possession of apparatuses fit and intended for the inhalation of a dangerous drug（管有適合於及擬用作吸服危險藥物的器具）
REASONS FOR SENTENCE
D1 to D4 are jointly charged with 3 offences of “Conspiracy to defraud” (Charges 1 to 3). D3 and D4 are also jointly charged with an offence of “Possession of dangerous drugs” (Charge 4) and an offence of “Possession of apparatuses fit and intended for the inhalation of a dangerous drug” (Charge 5).
2. D1 to D3 pleaded guilty to Charges 1 to 3. D4 pleaded guilty to Charges 3 to 5. The prosecution applied to leave Charges 1 and 2 against D4, and Charges 4 and 5 against D3 in the court file; not to be proceeded against them without leave of court. I granted the application.
Summary of Facts
Background
3. About 7:30 p.m. on 17 February 2020, Mr. Chu (PW4) parked his private car at Chatham Road South, Tsim Sha Tsui. He returned around 4:00 a.m. on 18 February 2020 and found a window of his car broken. Amongst other things, a cheque book of PW4’s account with Chiyu Bank (“the Stolen Cheque Book”) was found missing from the car. PW4 reported loss of the Stolen Cheque Book with the bank and closed the relevant account on the same day.
Charge 1
4. Mr. Tsang (PW1) was the operator of GIA Watch & Jewellery Limited (“GIA”), which engaged in the sale of Rolex watches in Tsim Sha Tsui (“Shop 1”).
5. On 8 March 2020, PW1 received a WhatsApp message from someone using mobile phone number 5499 1274 (“SIM 1”) with an account name “Ken” about the purchase of a Rolex watch. After negotiation, PW1 agreed to sell the watch to Ken at $548,000. Both parties agreed to complete the transaction around 1:00 to 2:00 p.m. on the following day. Ken agreed to deposit the purchase price in full into GIA’s account with Hang Seng Bank (“Account 1”).
6. About 8:23 a.m. on 9 March 2020, PW1 received a WhatsApp message from Ken requesting to collect the watch at 12:15 p.m. by Ken’s assistant. PW1 then asked Ken for the full name, HKID card number and mobile phone number of his assistant.
7. About 11:11 in the same morning, PW1 received a WhatsApp message from mobile phone number 5318 0551 (“SIM 2”), claiming to be Ken’s assistant and that he would collect the Rolex watch. Ken then sent PW1 a photo of a HKID card bearing the name “CHAN Ka-sun” (E1) and a photo of a letter from “WONG Ka-chun” authorizing CHAN Ka-sun to collect the Rolex watch.
8. About 1:34 p.m. on the same day, D1 arrived at Shop 1 to collect the Rolex watch on behalf of Ken. PW1 asked D1 for his HKID card but D1 claimed that he did not have it with him. Instead, D1 sent a photo of E1 to PW1 via WhatsApp. About 1:41, PW1 received from Ken a photo of a deposit receipt purporting to show that Ken had deposited cash in the sum of $548,000 into Account 1 at 1:40 p.m. on 9 March 2020.
9. Since D1 was unable to produce his HKID card, PW1 refused to hand over the Rolex watch to him. PW1 also began to grow suspicion on Ken. PW1 then checked the records of Account 1 by online banking and discovered that the sum which Ken claimed to have deposited was by cheque instead of cash.
10. About 1:45 p.m. on the same day, D1 claimed that he needed to use the washroom and left Shop 1. Ken later informed PW1 via WhatsApp that he no longer wished to purchase to watch. PW1 alerted the Police.
11. In a formal identification parade held on 13 March 2020, PW1 identified D1 as the person who went to Shop 1 requesting to collect the Rolex watch on behalf of Ken.
12. PW1 subsequently retrieved the cheque deposited by Ken (E2); it was a blank cheque originated from the Stolen Cheque Book. The Police later found D2’s left thumbprint on E2.
Charge 2
13. Mr. Tang (PW2) operated “Basel One Jewellery & Watch”, which engaged in the sale of Rolex watches in Tsim Sha Tsui (“Shop 2”).
14. About 11:55 p.m. on 8 March 2020, PW2 received WhatsApp messages from someone using SIM 1 with an account name “Ken” about the purchase of different models of Rolex watches. Eventually, Ken made his pick and PW2 agreed to sell the watch at $279,000. Both parties agreed to complete the transaction around 2:00 p.m. on the following day. Ken agreed to deposit the purchase price in full into PW2’s HSBC account.
15. About 11:00 a.m. on 9 March 2020, Ken informed PW2 via WhatsApp that he would send his assistant to Shop 2 to collect the watch.
16. About 1:44 p.m. on the same day, PW2 received voice calls from phone number 5420 8204 (“SIM 3”). Claiming to be Ken’s assistant, the caller told PW2 that he would collect the watch at Shop 2. PW2 later discovered that there were missed calls made from SIM 2 to his phone. PW2 called back SIM 2. The person who answered the call claimed to be Ken’s assistant and told PW2 that he would attend Shop 2 later.
17. About 2:09 in the same afternoon, D1 arrived at Shop 2 requesting to pick up the Rolex watch on behalf of his boss. PW2 informed Ken that his assistant had arrived; whereas Ken claimed that he would arrange for his accounting staff to deposit the purchase price.
18. About 2:37, Ken informed PW2 that he could not make the deposit since there were some problems with PW2’s bank account. PW2 asked Ken to pay cash at Shop 2. Ken refused claiming that he would arrange for his accounting staff to deposit the money at a bank counter. PW2 grew suspicion and took a photo of D1. D1 later claimed that he needed to use the washroom and left Shop 2.
19. In a formal identification parade held on 13 March 2020, PW2 identified D1 as the person who went to Shop 2 requesting to collect the Rolex watch on behalf of Ken.
Charge 3
20. Madam Tang (PW3) worked at “Alpha Watch & Jewellery”, which engaged in the sale of Rolex watches in Tsim Sha Tsui (“Shop 3”).
21. About 8:04 a.m. on 8 March 2020, PW3 received WhatsApp messages from someone using SIM 1 with an account name “Ken” about Rolex watches. On 9 March 2020, Ken made his pick and agreed to buy the watch at $280,000. Ken claimed that he would arrange for his colleague to collect the watch and would deposit the full purchase price in cash into PW3’s HSBC account (“Account 2”) by bank transfer.
22. About 2:14 p.m. on 9 March 2020, PW3 learned about the incident in relation to Charge 1 from her WhatsApp contacts. She alerted the Police because she recognized SIM 1 being the phone number used by Ken to contact her. About 2:26 in the same afternoon, Ken sent a photo of a HKID card bearing the name “CHAN Ka-sun” (E3) to PW3 telling her that the said person would collect the Rolex watch on his behalf. E3 and E1 were later on found to be the same image.
23. About 3:13 p.m. on the same day, D1 arrived at Shop 3 claiming to be Ken’s assistant and requesting to collect the watch. About 3:26, PW3 received from Ken via WhatsApp a photo of an HSBC deposit slip purporting to show that cash in the sum of $280,000 was deposited into Account 2. At the same time, police officers arrived at Shop 3 and detained D1 for enquiry.
24. Having checked the records of Account 2, PW3 discovered that the sum which Ken claimed to have deposited was by cheque instead of cash. The cheque was bounced later. PW3 subsequently retrieved the cheque deposited by Ken (E4); it was a blank cheque originated from the Stolen Cheque Book. The Police later found D2’s left thumbprint on E4.
Controlled delivery and arrest
25. DSIP Tang made enquiries with D1 at Shop 3. D1’s phone rang during the enquiries. He told the Police that it was Ken’s call asking him to deliver the Rolex watch to Mongkok MTR Station. D1 agreed to assist the Police in a controlled delivery.
26. Meanwhile, PW3 was instructed by the Police to inform Ken via WhatsApp that she had received his payment. PW3 then gave a paper bag containing an empty watch box (collectively “the Bag”) to the Police for D1’s delivery.
27. About 4:35, near Exit C at Mongkok MTR Station, D1 handed the Bag to D2. Police officers arrested both D1 and D2. Under caution, D2 claimed that he was asked by “Ah Wai” to collect the watch. Upon search, 2 mobile phones (one containing SIM 2) were found on D1; and 1 mobile phone was found on D2.
28. During the investigation, D2 received a call from SIM 3. He told the Police that someone had just instructed him to pass the Bag to another man. D2 agreed to assist the Police in a controlled delivery.
29. D2 called back the person at SIM 3, who then told D2 to go to Mongkok New Town Mall to make the delivery. D2 took the Bag there. During his journey, police officers saw D3 observing D2. They arrested D3. Upon search, a mobile phone and a key card to Room 1211, Kowloon Harbourfront Hotel, Hung Hom (“the Room”) were found on D3.
30. With D3’s consent, the Police inspected his mobile phone. They found some dialogues between D3 and D4 and a photo of a card containing details of Shop 3.
Seizure of exhibits from the Room (Charges 4 and 5)
31. According to the hotel’s record, D4 became a registered occupant of the Room on 28 February 2020. D3 was registered as an additional occupant on 8 March 2020.
32. About 7:35 p.m. on 9 March 2020, the Police searched the Room and seized the following items :-
(a) On a table in the living room: a laptop computer (containing files of the HSBC deposit slip received by PW3; an image of the HKID card of “WONG Ka-chun”; an image of D1’s HKID card; an image of D4’s HKID card; an image of a HKID card which is the same as E1 and E3; and a series of images purporting to be bank drafts with GIA, PW1 and PW2 as payees); a photocopy of a HKID card which is the same as E1 and E3; 2 pieces of paper which contained the contact details of Shop 1 (with D3’s fingerprints); and some printed copies of purported bank drafts with Shop 1, PW2, PW3 as payees (with D4’s fingerprints);
(b) On the sofa and near the television set: the card cover of SIM 1; and a printer with a copy of a bank draft with PW2 as payee;
(c) On a desk in the bedroom: 1 plastic bag which contained 0.45 gramme of a crystalline solid containing 0.45 gramme of methamphetamine hydrochloride (E7); 1 glass tube shaped as a bulb at one end which contained 0.04 gramme of a solid containing methamphetamine hydrochloride (E8); 1 glass tube shaped as a bulb at one end which contained 0.06 gramme of a solid containing methamphetamine hydrochloride (E9); 1 glass tube shaped as a bulb at one end (E10); and a one-piece set up consisting of 2 glass bottles bridged by 1 glass tube and each glass bottle had 1 opening (one of the glass bottles was inserted with 1 plastic tube fitted into the plastic straw outside the glass bottle) which contained 14 millilitres of a liquid containing traces of methamphetamine (E11). E8 to E10 could be fitted into E11 to form an inhaling device; and
(d) Inside an unlocked safe in the bedroom: 1 glass bottle with 2 openings (one of which was inserted with 1 plastic tube) which contained 13 millilitres of a liquid containing traces of methamphetamine (E12).
E8 to E12 were apparatuses fit and intended for inhalation of methamphetamine. D4 now admits that he had possession of E7 to E12 on 9 March 2020.
Arrest of D4
33. D4 was arrested on 13 March 2020 in Sham Shui Po. He remained silent under caution. A mobile phone was found on him.
D1’s admissions
34. D1 admitted that in the forenoon on 9 March 2020, D2 asked him to meet up in Mongkok. When they met, D2 gave him a mobile phone containing SIM 2 (“the Work Phone”) and instructed him to collect a Rolex watch in Tsim Sha Tsui. D1 then received WhatsApp messages from Ken through the Work Phone asking him to collect a Rolex watch at Shop 1.
35. As requested by Ken, D1 took a photo of his own HKID card and sent it to Ken by WhatsApp using the Work Phone. Ken later sent D1 a photo of a HKID card bearing D1’s photo but with particulars of another person. Ken asked D1 to memorize the personal particulars which appeared on that HKID card.
36. D1 admitted he knew that D2 and Ken were making use of some dishonoured cheques with a view to inducing the respective proprietors of Shops 1 to 3 to pass the respective Rolex watches to him.
D2’s admissions
37. D2 admitted that he met a person named “Ah Wai” about half a year ago. On 8 March 2020, Ah Wai used SIM 3 to call D2 asking him to go to Mongkok in the next morning. Ah Wai also asked D2 to recruit one more person, so D2 brought in D1.
38. About 8:30 a.m. on 9 March 2020, D2 met Ah Wai in Mongkok. Ah Wai gave him a mobile phone and 2 SIM cards (one being SIM 2). D2 inserted SIM 2 into that mobile phone and gave it to D1 around 9:00 a.m. on the same day. D2 also inserted the other SIM card into his own mobile phone.
39. Later, Ah Wai used SIM 3 to call D2 asking him to collect a watch at Exit C of Mongkok MTR Station around 4:00 p.m. on the same day. D2 was arrested by the Police after collecting the Bag from D1.
D3 and D4
40. D3 admitted his mobile phone number under caution. D4 remained silent under caution.
Examination of mobile phones seized from D1 to D3
41. The WhatsApp records contained in the Work Phone showed that D1 had been discussing the events which took place at Shops 1 to 3 with someone named Ken who was using SIM 3. Ken was giving instructions to D1 all along.
42. The WeChat records contained in D2’s mobile phone showed that D2 had asked D1 to meet up in Mongkok in the morning on 9 March 2020. The WhatsApp records contained in D2’s mobile phone showed that D2 was in contact with someone named Ken who was using SIM 3 in relation to the collection and delivery of the Bag.
43. The WhatsApp records contained in D3’s mobile phone showed that D4 had asked D3 to monitor D1 for the collection of the watch from Shop 3 as well as giving instructions to D3 in relation to the collection of the watch from D2.
CCTV footage
44. CCTV footage of Shops 2 and 3 captured the respective incidents described by PWs 2 and 3.
45. CCTV footage of Hang Seng Bank and HSBC captured D2 depositing the cheques related to Charges 1 and 3 (namely E2 and E4).
46. CCTV footage of Kowloon Harbourfront Hotel captured D3 and D4 going to and leaving the 12th Floor every day between 29 February and 9 March 2020.
Mitigation
D1
47. He is 16 and has a clear record. His counsel Ms. Yip informed me that D1 was only 15 when he committed the present offences. He has studied up to F.3 level. In 2019, D1 enrolled in a 4-year Building Engineering Services programme at the Vocational Training Council. He has completed the first 2 years. He now works full-time for an air-conditioning systems contractor of the MTR Corporation 5 days a week, and attends classes on Wednesdays.
48. In mitigation, Ms. Yip submitted that D1 committed the present offences out of momentary greed and foolishness. D1 has a supportive family; his parents are still young (aged 40 and 36 respectively) and both have stable jobs. Ms. Yip stressed that D1 has been co-operative with the Police throughout, which led to the arrest of D2. He also gave an NPS and was accepted by the prosecution to give evidence against D2 at trial. Ms. Yip also submitted that D1 has completed half of his vocational training programme, and has been gainfully employed for 1 year and 3 months with a stable income.
D2
49. He is 19 and has a clear record. His counsel Mr. Lau informed me that D2 was 17 when he committed the present offences. Similar to D1, D2 has also studied up to F.3 level. After leaving school, D2 has worked different jobs and enrolled in a 3-year hair styling course. He, however, did not complete the course due to lack of interest. In May 2021, he became an apprentice at a fire engineering company earning $750 per day.
50. In mitigation, Mr. Lau submitted that D2 was used by other adults as a courier in the present case. He has been co-operative with the Police throughout, which led to the arrest of D3. With his usual fairness, Mr. Lau accepts that credit should be given to D1 for leading to D2’s guilty pleas. Mr. Lau stressed that D2 has shown his remorse by pleading guilty to all 3 charges, even though his plea indication came a bit late.
D3
51. He is 31 and has 7 conviction records (which included 3 “Theft” offences and 1 “Robbery” offence). D3 was released from prison on 25 February 2020 and he committed the present offences in early March 2020. His counsel Ms. Lee informed me that D3 is single and resides with his parents. D3 has studied up to F.2.
52. In mitigation, Ms. Lee submitted that D3 did not know D1 or D2. Although he was introduced to D4 through some friends, D3 barely knew D4. Ms. Lee explained that after his release from prison, D3 had real difficulty in finding a job owing to his conviction records, the social unrest and the pandemic. As a result, he was disappointed and started to hang out with his friend “Ho Chai” in the Room. Ms. Lee submitted that D3 was lured into becoming a courier in the present case by Ho Chai. Attracted by the free room and board as well as a reward of $700, D3 foolishly agreed to play a part in this scam.
D4
53. He is 33 and has 10 conviction records (which included 1 “Theft” offence, 1 “Robbery” offence, 10 “Burglary” offences, 11 deception/fraud-related offences and 2 “simple possession” offences). His counsel Mr. Shaw informed me that D4 is divorced. He has a 10-year-old daughter with his ex-wife and a 6-year-old son with his girlfriend. His daughter now resides with her maternal grandmother. Unfortunately, D4’s girlfriend passed away in 2015. His son now resides with D4’s mother (aged 60). Prior to his arrest, D4 was a self-employed tattoo artist earning $25,000 per month. He contributed $15,000 each month on supporting his children and mother.
54. In mitigation, Mr. Shaw explained that the Room was rented by D4’s female friend Tung. D4 used the Room to provide tattooing service to his clients. Owing to the pandemic, D4’s business dropped substantially. As a result, he agreed to help one of his clients, Ho Chai, to print certain documents in return for a reward of $5,000. Mr. Shaw submitted that D4 has learned his lessons. He has shown genuine remorse by pleading guilty to the charges.
Sentence
55. I will deal with D3 and D4 first.
56. Although Charges 1 to 3 do not involve the Barrick type of breach of trust, I find the sentencing guidelines laid down by the Court of Appeal in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 nevertheless relevant. In my view, such guidelines are simply a yardstick. For cases which are not of the Barrick type, the court may still follow the guidelines in Ng Kwok Wing or impose a sentence which is higher or lower than the guidelines, depending on the facts of each case.
57. The present case is not a cybercrime, which normally deceives victims of their money directly online. Images of misleading deposit receipts were sent to the victims by phone in order to deceive their goods. I also accept that the syndicate did not target at elderly people or people with certain vulnerabilities. Although images of forged HKID cards were involved, I do not consider the scam to be a sophisticated one. The most crucial deceptive element was each misleading deposit receipt.
58. D3 and D4 both denied being the mastermind. For the purpose of sentencing, I need not determine who played a lesser role. As revealed in the Summary of Facts, what each culprit did is clear. They might have played different roles, but they each contributed to the planning and/or execution of the scam and are equally culpable. There is no need to distinguish their roles or to apportion their culpability.
59. Based on the scam employed in the present case, I consider the seriousness of this case commensurate with the sentencing guidelines in Ng Kwok Wing. Hence, I will follow those guidelines. I am aware that none of the attempts to deceive a Rolex watch was successful. Thus, PWs 1 to 3 suffered no financial loss. I will adjust the starting points accordingly.
60. The sum involved in Charge 1 was $548,000. According to Ng Kwok Wing, for $500,000, the starting point is 2.5 years’ imprisonment. I consider it appropriate for this charge.
61. The sum involved in Charge 2 was $279,000. According to Ng Kwok Wing, for $250,000, the starting point is 2 years’ imprisonment. I consider it appropriate for this charge.
62. The sum involved in Charge 3 was $280,000. The appropriate starting point for this charge is 2 years’ imprisonment.
D3
63. He is no stranger to theft-related offences, but has no conviction of deception/fraud-related offences. On the other hand, he committed the present offences in just 10 days after his release from prison. I consider it an aggravating factor. I will increase the starting point of each charge by 3 months.
64. For Charge 1, I adopt a starting point of 33 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 22 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D3 to 22 months’ imprisonment.
65. For Charge 2, I adopt a starting point of 27 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 18 months. I sentence D3 to 18 months’ imprisonment.
66. For Charge 3, I adopt a starting point of 27 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 18 months. I sentence D3 to 18 months’ imprisonment.
67. The total sum involved in Charges 1 to 3 is approximately $1.1 million. According to Ng Kwok Wing, for $1 million, the starting point is 3 years’ imprisonment. PWs 1 to 3 suffered no financial loss but D3 re-offended shortly after his release from prison, I consider a global starting point of 3 years’ imprisonment appropriate for all 3 charges. With the timely guilty pleas, the overall sentence is reduced to 24 months. To achieve this, I order the sentences to run in the following manner :-
(i) 1 month in Charge 2 consecutive to Charge 1; and
(ii) 1 month in Charge 3 consecutive to Charges 1 and 2.
D4
68. For Charge 3, he has a long history of theft-related offences and deception/fraud-related offences, which puts him in the repeated offender category. I will increase the starting point by 3 months. Hence, I adopt a starting point of 27 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 18 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D4 to 18 months’ imprisonment.
69. For Charge 4, at most a total of 0.55 gramme of ICE is involved. D4’s last similar conviction took place over 10 years ago. I adopt a starting point of 12 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 8 months. I sentence D4 to 8 months’ imprisonment.
70. For Charge 5, the usual sentence is 3 months’ imprisonment after plea. I have no reason not to follow it. Hence, I adopt a starting point of 4.5 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 3 months. I sentence D4 to 3 months’ imprisonment.
71. Bearing in mind the totality principle and the nature of the 3 offences, a global starting point of 33 months’ imprisonment is appropriate for Charges 3 to 5. With the timely guilty pleas, the overall sentence is reduced to 22 months. To achieve this, I order the sentences to run in the following manner :-
(i) Charges 4 and 5 concurrent; and
(ii) 4 months in Charges 4 and 5 consecutive to Charge 3.
D1 and D2
72. D1 is only 16; and D2, 19. Both are under 21, which means imprisonment should be the last resort in terms of sentencing. As a general principle, rehabilitation (rather than punishment) plays an important role in reforming young offenders. I cannot overlook their need for rehabilitation. I am also aware that both of them have experienced some in-born learning difficulties when they were young, which probably contributed to their poor academic performance through no fault of their own.
73. Pre-sentencing reports indicated that both are fit for detention in a Rehabilitation Centre or a Training Centre. Both are also suitable for a Community Service Order. The Young Offender Assessment Panel recommended a Community Service Order for long duration for both D1 and D2.
74. Based on the materials before me, I accept that D1 and D2 were both used as foot soldiers by the major players who orchestrated the fraud in this case. Their culpability is probably the least within the syndicate.
75. D1 is half way through his vocational training and has a stable job with positive comments from his employer. I am inclined not to disrupt his training and employment as it might do him more harm than good by placing him in a correctional institution. D2 also received favourable comments from his current employer. Likewise, I am prepared to give him one last chance.
76. I agree with the comments made by the Young Offender Assessment Panel and will follow their recommendations. I consider a Community Service Order to be an appropriate and just punishment for D1 and D2 at this moment.
[Requirements of Community Service Order explained. D1 and D2 understood and are willing to comply.]
I sentence D1 to 160 hours of Community Service each for Charges 1 to 3; and D2 to 200 hours of Community Service each for Charges 1 to 3.
DCCC778/2020
陳仲衡
區院
不認罪
罪成
法律行政文員
24
傷人或對他人身體加以嚴重傷害
判囚
16
沙田
DCCC 778/2020
[2021] HKDC 1621
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 778 OF 2020
____________
HKSAR
v
CHAN Pak-yin (D1)
CHEUNG Ho-yin (D2)
CHAN Hon-leung (D3)
CHUNG Man-chung (D4)
____________
Before : H.H. Judge G. Lam
Date : 23 December 2021
Present : Ms. Paggie Lee, SPP, of the Department of Justice, for HKSAR.
Ms. Liza Yip instructed by M/s Eric Cheung & Lau, assigned by the Director of Legal Aid, for D1.
Mr. Clement Lau instructed by M/s Au-Yeung, Chan & Ho, assigned by the Director of Legal Aid, for D2.
Ms. Cindy Lee instructed by M/s Louis K.Y. Pau & Co., assigned by the Director of Legal Aid, for D3.
Mr. Gibson Shaw instructed by M/s A Lee & Partners, assigned by the Director of Legal Aid, for D4.
Offences : (1) to (3) Conspiracy to defraud（串謀詐騙）
(4) Possession of dangerous drugs （管有危險藥物）
(5) Possession of apparatuses fit and intended for the inhalation of a dangerous drug（管有適合於及擬用作吸服危險藥物的器具）
REASONS FOR SENTENCE
D1 to D4 are jointly charged with 3 offences of “Conspiracy to defraud” (Charges 1 to 3). D3 and D4 are also jointly charged with an offence of “Possession of dangerous drugs” (Charge 4) and an offence of “Possession of apparatuses fit and intended for the inhalation of a dangerous drug” (Charge 5).
2. D1 to D3 pleaded guilty to Charges 1 to 3. D4 pleaded guilty to Charges 3 to 5. The prosecution applied to leave Charges 1 and 2 against D4, and Charges 4 and 5 against D3 in the court file; not to be proceeded against them without leave of court. I granted the application.
Summary of Facts
Background
3. About 7:30 p.m. on 17 February 2020, Mr. Chu (PW4) parked his private car at Chatham Road South, Tsim Sha Tsui. He returned around 4:00 a.m. on 18 February 2020 and found a window of his car broken. Amongst other things, a cheque book of PW4’s account with Chiyu Bank (“the Stolen Cheque Book”) was found missing from the car. PW4 reported loss of the Stolen Cheque Book with the bank and closed the relevant account on the same day.
Charge 1
4. Mr. Tsang (PW1) was the operator of GIA Watch & Jewellery Limited (“GIA”), which engaged in the sale of Rolex watches in Tsim Sha Tsui (“Shop 1”).
5. On 8 March 2020, PW1 received a WhatsApp message from someone using mobile phone number 5499 1274 (“SIM 1”) with an account name “Ken” about the purchase of a Rolex watch. After negotiation, PW1 agreed to sell the watch to Ken at $548,000. Both parties agreed to complete the transaction around 1:00 to 2:00 p.m. on the following day. Ken agreed to deposit the purchase price in full into GIA’s account with Hang Seng Bank (“Account 1”).
6. About 8:23 a.m. on 9 March 2020, PW1 received a WhatsApp message from Ken requesting to collect the watch at 12:15 p.m. by Ken’s assistant. PW1 then asked Ken for the full name, HKID card number and mobile phone number of his assistant.
7. About 11:11 in the same morning, PW1 received a WhatsApp message from mobile phone number 5318 0551 (“SIM 2”), claiming to be Ken’s assistant and that he would collect the Rolex watch. Ken then sent PW1 a photo of a HKID card bearing the name “CHAN Ka-sun” (E1) and a photo of a letter from “WONG Ka-chun” authorizing CHAN Ka-sun to collect the Rolex watch.
8. About 1:34 p.m. on the same day, D1 arrived at Shop 1 to collect the Rolex watch on behalf of Ken. PW1 asked D1 for his HKID card but D1 claimed that he did not have it with him. Instead, D1 sent a photo of E1 to PW1 via WhatsApp. About 1:41, PW1 received from Ken a photo of a deposit receipt purporting to show that Ken had deposited cash in the sum of $548,000 into Account 1 at 1:40 p.m. on 9 March 2020.
9. Since D1 was unable to produce his HKID card, PW1 refused to hand over the Rolex watch to him. PW1 also began to grow suspicion on Ken. PW1 then checked the records of Account 1 by online banking and discovered that the sum which Ken claimed to have deposited was by cheque instead of cash.
10. About 1:45 p.m. on the same day, D1 claimed that he needed to use the washroom and left Shop 1. Ken later informed PW1 via WhatsApp that he no longer wished to purchase to watch. PW1 alerted the Police.
11. In a formal identification parade held on 13 March 2020, PW1 identified D1 as the person who went to Shop 1 requesting to collect the Rolex watch on behalf of Ken.
12. PW1 subsequently retrieved the cheque deposited by Ken (E2); it was a blank cheque originated from the Stolen Cheque Book. The Police later found D2’s left thumbprint on E2.
Charge 2
13. Mr. Tang (PW2) operated “Basel One Jewellery & Watch”, which engaged in the sale of Rolex watches in Tsim Sha Tsui (“Shop 2”).
14. About 11:55 p.m. on 8 March 2020, PW2 received WhatsApp messages from someone using SIM 1 with an account name “Ken” about the purchase of different models of Rolex watches. Eventually, Ken made his pick and PW2 agreed to sell the watch at $279,000. Both parties agreed to complete the transaction around 2:00 p.m. on the following day. Ken agreed to deposit the purchase price in full into PW2’s HSBC account.
15. About 11:00 a.m. on 9 March 2020, Ken informed PW2 via WhatsApp that he would send his assistant to Shop 2 to collect the watch.
16. About 1:44 p.m. on the same day, PW2 received voice calls from phone number 5420 8204 (“SIM 3”). Claiming to be Ken’s assistant, the caller told PW2 that he would collect the watch at Shop 2. PW2 later discovered that there were missed calls made from SIM 2 to his phone. PW2 called back SIM 2. The person who answered the call claimed to be Ken’s assistant and told PW2 that he would attend Shop 2 later.
17. About 2:09 in the same afternoon, D1 arrived at Shop 2 requesting to pick up the Rolex watch on behalf of his boss. PW2 informed Ken that his assistant had arrived; whereas Ken claimed that he would arrange for his accounting staff to deposit the purchase price.
18. About 2:37, Ken informed PW2 that he could not make the deposit since there were some problems with PW2’s bank account. PW2 asked Ken to pay cash at Shop 2. Ken refused claiming that he would arrange for his accounting staff to deposit the money at a bank counter. PW2 grew suspicion and took a photo of D1. D1 later claimed that he needed to use the washroom and left Shop 2.
19. In a formal identification parade held on 13 March 2020, PW2 identified D1 as the person who went to Shop 2 requesting to collect the Rolex watch on behalf of Ken.
Charge 3
20. Madam Tang (PW3) worked at “Alpha Watch & Jewellery”, which engaged in the sale of Rolex watches in Tsim Sha Tsui (“Shop 3”).
21. About 8:04 a.m. on 8 March 2020, PW3 received WhatsApp messages from someone using SIM 1 with an account name “Ken” about Rolex watches. On 9 March 2020, Ken made his pick and agreed to buy the watch at $280,000. Ken claimed that he would arrange for his colleague to collect the watch and would deposit the full purchase price in cash into PW3’s HSBC account (“Account 2”) by bank transfer.
22. About 2:14 p.m. on 9 March 2020, PW3 learned about the incident in relation to Charge 1 from her WhatsApp contacts. She alerted the Police because she recognized SIM 1 being the phone number used by Ken to contact her. About 2:26 in the same afternoon, Ken sent a photo of a HKID card bearing the name “CHAN Ka-sun” (E3) to PW3 telling her that the said person would collect the Rolex watch on his behalf. E3 and E1 were later on found to be the same image.
23. About 3:13 p.m. on the same day, D1 arrived at Shop 3 claiming to be Ken’s assistant and requesting to collect the watch. About 3:26, PW3 received from Ken via WhatsApp a photo of an HSBC deposit slip purporting to show that cash in the sum of $280,000 was deposited into Account 2. At the same time, police officers arrived at Shop 3 and detained D1 for enquiry.
24. Having checked the records of Account 2, PW3 discovered that the sum which Ken claimed to have deposited was by cheque instead of cash. The cheque was bounced later. PW3 subsequently retrieved the cheque deposited by Ken (E4); it was a blank cheque originated from the Stolen Cheque Book. The Police later found D2’s left thumbprint on E4.
Controlled delivery and arrest
25. DSIP Tang made enquiries with D1 at Shop 3. D1’s phone rang during the enquiries. He told the Police that it was Ken’s call asking him to deliver the Rolex watch to Mongkok MTR Station. D1 agreed to assist the Police in a controlled delivery.
26. Meanwhile, PW3 was instructed by the Police to inform Ken via WhatsApp that she had received his payment. PW3 then gave a paper bag containing an empty watch box (collectively “the Bag”) to the Police for D1’s delivery.
27. About 4:35, near Exit C at Mongkok MTR Station, D1 handed the Bag to D2. Police officers arrested both D1 and D2. Under caution, D2 claimed that he was asked by “Ah Wai” to collect the watch. Upon search, 2 mobile phones (one containing SIM 2) were found on D1; and 1 mobile phone was found on D2.
28. During the investigation, D2 received a call from SIM 3. He told the Police that someone had just instructed him to pass the Bag to another man. D2 agreed to assist the Police in a controlled delivery.
29. D2 called back the person at SIM 3, who then told D2 to go to Mongkok New Town Mall to make the delivery. D2 took the Bag there. During his journey, police officers saw D3 observing D2. They arrested D3. Upon search, a mobile phone and a key card to Room 1211, Kowloon Harbourfront Hotel, Hung Hom (“the Room”) were found on D3.
30. With D3’s consent, the Police inspected his mobile phone. They found some dialogues between D3 and D4 and a photo of a card containing details of Shop 3.
Seizure of exhibits from the Room (Charges 4 and 5)
31. According to the hotel’s record, D4 became a registered occupant of the Room on 28 February 2020. D3 was registered as an additional occupant on 8 March 2020.
32. About 7:35 p.m. on 9 March 2020, the Police searched the Room and seized the following items :-
(a) On a table in the living room: a laptop computer (containing files of the HSBC deposit slip received by PW3; an image of the HKID card of “WONG Ka-chun”; an image of D1’s HKID card; an image of D4’s HKID card; an image of a HKID card which is the same as E1 and E3; and a series of images purporting to be bank drafts with GIA, PW1 and PW2 as payees); a photocopy of a HKID card which is the same as E1 and E3; 2 pieces of paper which contained the contact details of Shop 1 (with D3’s fingerprints); and some printed copies of purported bank drafts with Shop 1, PW2, PW3 as payees (with D4’s fingerprints);
(b) On the sofa and near the television set: the card cover of SIM 1; and a printer with a copy of a bank draft with PW2 as payee;
(c) On a desk in the bedroom: 1 plastic bag which contained 0.45 gramme of a crystalline solid containing 0.45 gramme of methamphetamine hydrochloride (E7); 1 glass tube shaped as a bulb at one end which contained 0.04 gramme of a solid containing methamphetamine hydrochloride (E8); 1 glass tube shaped as a bulb at one end which contained 0.06 gramme of a solid containing methamphetamine hydrochloride (E9); 1 glass tube shaped as a bulb at one end (E10); and a one-piece set up consisting of 2 glass bottles bridged by 1 glass tube and each glass bottle had 1 opening (one of the glass bottles was inserted with 1 plastic tube fitted into the plastic straw outside the glass bottle) which contained 14 millilitres of a liquid containing traces of methamphetamine (E11). E8 to E10 could be fitted into E11 to form an inhaling device; and
(d) Inside an unlocked safe in the bedroom: 1 glass bottle with 2 openings (one of which was inserted with 1 plastic tube) which contained 13 millilitres of a liquid containing traces of methamphetamine (E12).
E8 to E12 were apparatuses fit and intended for inhalation of methamphetamine. D4 now admits that he had possession of E7 to E12 on 9 March 2020.
Arrest of D4
33. D4 was arrested on 13 March 2020 in Sham Shui Po. He remained silent under caution. A mobile phone was found on him.
D1’s admissions
34. D1 admitted that in the forenoon on 9 March 2020, D2 asked him to meet up in Mongkok. When they met, D2 gave him a mobile phone containing SIM 2 (“the Work Phone”) and instructed him to collect a Rolex watch in Tsim Sha Tsui. D1 then received WhatsApp messages from Ken through the Work Phone asking him to collect a Rolex watch at Shop 1.
35. As requested by Ken, D1 took a photo of his own HKID card and sent it to Ken by WhatsApp using the Work Phone. Ken later sent D1 a photo of a HKID card bearing D1’s photo but with particulars of another person. Ken asked D1 to memorize the personal particulars which appeared on that HKID card.
36. D1 admitted he knew that D2 and Ken were making use of some dishonoured cheques with a view to inducing the respective proprietors of Shops 1 to 3 to pass the respective Rolex watches to him.
D2’s admissions
37. D2 admitted that he met a person named “Ah Wai” about half a year ago. On 8 March 2020, Ah Wai used SIM 3 to call D2 asking him to go to Mongkok in the next morning. Ah Wai also asked D2 to recruit one more person, so D2 brought in D1.
38. About 8:30 a.m. on 9 March 2020, D2 met Ah Wai in Mongkok. Ah Wai gave him a mobile phone and 2 SIM cards (one being SIM 2). D2 inserted SIM 2 into that mobile phone and gave it to D1 around 9:00 a.m. on the same day. D2 also inserted the other SIM card into his own mobile phone.
39. Later, Ah Wai used SIM 3 to call D2 asking him to collect a watch at Exit C of Mongkok MTR Station around 4:00 p.m. on the same day. D2 was arrested by the Police after collecting the Bag from D1.
D3 and D4
40. D3 admitted his mobile phone number under caution. D4 remained silent under caution.
Examination of mobile phones seized from D1 to D3
41. The WhatsApp records contained in the Work Phone showed that D1 had been discussing the events which took place at Shops 1 to 3 with someone named Ken who was using SIM 3. Ken was giving instructions to D1 all along.
42. The WeChat records contained in D2’s mobile phone showed that D2 had asked D1 to meet up in Mongkok in the morning on 9 March 2020. The WhatsApp records contained in D2’s mobile phone showed that D2 was in contact with someone named Ken who was using SIM 3 in relation to the collection and delivery of the Bag.
43. The WhatsApp records contained in D3’s mobile phone showed that D4 had asked D3 to monitor D1 for the collection of the watch from Shop 3 as well as giving instructions to D3 in relation to the collection of the watch from D2.
CCTV footage
44. CCTV footage of Shops 2 and 3 captured the respective incidents described by PWs 2 and 3.
45. CCTV footage of Hang Seng Bank and HSBC captured D2 depositing the cheques related to Charges 1 and 3 (namely E2 and E4).
46. CCTV footage of Kowloon Harbourfront Hotel captured D3 and D4 going to and leaving the 12th Floor every day between 29 February and 9 March 2020.
Mitigation
D1
47. He is 16 and has a clear record. His counsel Ms. Yip informed me that D1 was only 15 when he committed the present offences. He has studied up to F.3 level. In 2019, D1 enrolled in a 4-year Building Engineering Services programme at the Vocational Training Council. He has completed the first 2 years. He now works full-time for an air-conditioning systems contractor of the MTR Corporation 5 days a week, and attends classes on Wednesdays.
48. In mitigation, Ms. Yip submitted that D1 committed the present offences out of momentary greed and foolishness. D1 has a supportive family; his parents are still young (aged 40 and 36 respectively) and both have stable jobs. Ms. Yip stressed that D1 has been co-operative with the Police throughout, which led to the arrest of D2. He also gave an NPS and was accepted by the prosecution to give evidence against D2 at trial. Ms. Yip also submitted that D1 has completed half of his vocational training programme, and has been gainfully employed for 1 year and 3 months with a stable income.
D2
49. He is 19 and has a clear record. His counsel Mr. Lau informed me that D2 was 17 when he committed the present offences. Similar to D1, D2 has also studied up to F.3 level. After leaving school, D2 has worked different jobs and enrolled in a 3-year hair styling course. He, however, did not complete the course due to lack of interest. In May 2021, he became an apprentice at a fire engineering company earning $750 per day.
50. In mitigation, Mr. Lau submitted that D2 was used by other adults as a courier in the present case. He has been co-operative with the Police throughout, which led to the arrest of D3. With his usual fairness, Mr. Lau accepts that credit should be given to D1 for leading to D2’s guilty pleas. Mr. Lau stressed that D2 has shown his remorse by pleading guilty to all 3 charges, even though his plea indication came a bit late.
D3
51. He is 31 and has 7 conviction records (which included 3 “Theft” offences and 1 “Robbery” offence). D3 was released from prison on 25 February 2020 and he committed the present offences in early March 2020. His counsel Ms. Lee informed me that D3 is single and resides with his parents. D3 has studied up to F.2.
52. In mitigation, Ms. Lee submitted that D3 did not know D1 or D2. Although he was introduced to D4 through some friends, D3 barely knew D4. Ms. Lee explained that after his release from prison, D3 had real difficulty in finding a job owing to his conviction records, the social unrest and the pandemic. As a result, he was disappointed and started to hang out with his friend “Ho Chai” in the Room. Ms. Lee submitted that D3 was lured into becoming a courier in the present case by Ho Chai. Attracted by the free room and board as well as a reward of $700, D3 foolishly agreed to play a part in this scam.
D4
53. He is 33 and has 10 conviction records (which included 1 “Theft” offence, 1 “Robbery” offence, 10 “Burglary” offences, 11 deception/fraud-related offences and 2 “simple possession” offences). His counsel Mr. Shaw informed me that D4 is divorced. He has a 10-year-old daughter with his ex-wife and a 6-year-old son with his girlfriend. His daughter now resides with her maternal grandmother. Unfortunately, D4’s girlfriend passed away in 2015. His son now resides with D4’s mother (aged 60). Prior to his arrest, D4 was a self-employed tattoo artist earning $25,000 per month. He contributed $15,000 each month on supporting his children and mother.
54. In mitigation, Mr. Shaw explained that the Room was rented by D4’s female friend Tung. D4 used the Room to provide tattooing service to his clients. Owing to the pandemic, D4’s business dropped substantially. As a result, he agreed to help one of his clients, Ho Chai, to print certain documents in return for a reward of $5,000. Mr. Shaw submitted that D4 has learned his lessons. He has shown genuine remorse by pleading guilty to the charges.
Sentence
55. I will deal with D3 and D4 first.
56. Although Charges 1 to 3 do not involve the Barrick type of breach of trust, I find the sentencing guidelines laid down by the Court of Appeal in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 nevertheless relevant. In my view, such guidelines are simply a yardstick. For cases which are not of the Barrick type, the court may still follow the guidelines in Ng Kwok Wing or impose a sentence which is higher or lower than the guidelines, depending on the facts of each case.
57. The present case is not a cybercrime, which normally deceives victims of their money directly online. Images of misleading deposit receipts were sent to the victims by phone in order to deceive their goods. I also accept that the syndicate did not target at elderly people or people with certain vulnerabilities. Although images of forged HKID cards were involved, I do not consider the scam to be a sophisticated one. The most crucial deceptive element was each misleading deposit receipt.
58. D3 and D4 both denied being the mastermind. For the purpose of sentencing, I need not determine who played a lesser role. As revealed in the Summary of Facts, what each culprit did is clear. They might have played different roles, but they each contributed to the planning and/or execution of the scam and are equally culpable. There is no need to distinguish their roles or to apportion their culpability.
59. Based on the scam employed in the present case, I consider the seriousness of this case commensurate with the sentencing guidelines in Ng Kwok Wing. Hence, I will follow those guidelines. I am aware that none of the attempts to deceive a Rolex watch was successful. Thus, PWs 1 to 3 suffered no financial loss. I will adjust the starting points accordingly.
60. The sum involved in Charge 1 was $548,000. According to Ng Kwok Wing, for $500,000, the starting point is 2.5 years’ imprisonment. I consider it appropriate for this charge.
61. The sum involved in Charge 2 was $279,000. According to Ng Kwok Wing, for $250,000, the starting point is 2 years’ imprisonment. I consider it appropriate for this charge.
62. The sum involved in Charge 3 was $280,000. The appropriate starting point for this charge is 2 years’ imprisonment.
D3
63. He is no stranger to theft-related offences, but has no conviction of deception/fraud-related offences. On the other hand, he committed the present offences in just 10 days after his release from prison. I consider it an aggravating factor. I will increase the starting point of each charge by 3 months.
64. For Charge 1, I adopt a starting point of 33 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 22 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D3 to 22 months’ imprisonment.
65. For Charge 2, I adopt a starting point of 27 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 18 months. I sentence D3 to 18 months’ imprisonment.
66. For Charge 3, I adopt a starting point of 27 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 18 months. I sentence D3 to 18 months’ imprisonment.
67. The total sum involved in Charges 1 to 3 is approximately $1.1 million. According to Ng Kwok Wing, for $1 million, the starting point is 3 years’ imprisonment. PWs 1 to 3 suffered no financial loss but D3 re-offended shortly after his release from prison, I consider a global starting point of 3 years’ imprisonment appropriate for all 3 charges. With the timely guilty pleas, the overall sentence is reduced to 24 months. To achieve this, I order the sentences to run in the following manner :-
(i) 1 month in Charge 2 consecutive to Charge 1; and
(ii) 1 month in Charge 3 consecutive to Charges 1 and 2.
D4
68. For Charge 3, he has a long history of theft-related offences and deception/fraud-related offences, which puts him in the repeated offender category. I will increase the starting point by 3 months. Hence, I adopt a starting point of 27 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 18 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D4 to 18 months’ imprisonment.
69. For Charge 4, at most a total of 0.55 gramme of ICE is involved. D4’s last similar conviction took place over 10 years ago. I adopt a starting point of 12 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 8 months. I sentence D4 to 8 months’ imprisonment.
70. For Charge 5, the usual sentence is 3 months’ imprisonment after plea. I have no reason not to follow it. Hence, I adopt a starting point of 4.5 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 3 months. I sentence D4 to 3 months’ imprisonment.
71. Bearing in mind the totality principle and the nature of the 3 offences, a global starting point of 33 months’ imprisonment is appropriate for Charges 3 to 5. With the timely guilty pleas, the overall sentence is reduced to 22 months. To achieve this, I order the sentences to run in the following manner :-
(i) Charges 4 and 5 concurrent; and
(ii) 4 months in Charges 4 and 5 consecutive to Charge 3.
D1 and D2
72. D1 is only 16; and D2, 19. Both are under 21, which means imprisonment should be the last resort in terms of sentencing. As a general principle, rehabilitation (rather than punishment) plays an important role in reforming young offenders. I cannot overlook their need for rehabilitation. I am also aware that both of them have experienced some in-born learning difficulties when they were young, which probably contributed to their poor academic performance through no fault of their own.
73. Pre-sentencing reports indicated that both are fit for detention in a Rehabilitation Centre or a Training Centre. Both are also suitable for a Community Service Order. The Young Offender Assessment Panel recommended a Community Service Order for long duration for both D1 and D2.
74. Based on the materials before me, I accept that D1 and D2 were both used as foot soldiers by the major players who orchestrated the fraud in this case. Their culpability is probably the least within the syndicate.
75. D1 is half way through his vocational training and has a stable job with positive comments from his employer. I am inclined not to disrupt his training and employment as it might do him more harm than good by placing him in a correctional institution. D2 also received favourable comments from his current employer. Likewise, I am prepared to give him one last chance.
76. I agree with the comments made by the Young Offender Assessment Panel and will follow their recommendations. I consider a Community Service Order to be an appropriate and just punishment for D1 and D2 at this moment.
[Requirements of Community Service Order explained. D1 and D2 understood and are willing to comply.]
I sentence D1 to 160 hours of Community Service each for Charges 1 to 3; and D2 to 200 hours of Community Service each for Charges 1 to 3.
DCCC778/2020
陳仲衡
區院
不認罪
罪成
法律行政文員
24
意圖傷人
判囚
54
沙田
DCCC 778/2020
[2021] HKDC 1621
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 778 OF 2020
____________
HKSAR
v
CHAN Pak-yin (D1)
CHEUNG Ho-yin (D2)
CHAN Hon-leung (D3)
CHUNG Man-chung (D4)
____________
Before : H.H. Judge G. Lam
Date : 23 December 2021
Present : Ms. Paggie Lee, SPP, of the Department of Justice, for HKSAR.
Ms. Liza Yip instructed by M/s Eric Cheung & Lau, assigned by the Director of Legal Aid, for D1.
Mr. Clement Lau instructed by M/s Au-Yeung, Chan & Ho, assigned by the Director of Legal Aid, for D2.
Ms. Cindy Lee instructed by M/s Louis K.Y. Pau & Co., assigned by the Director of Legal Aid, for D3.
Mr. Gibson Shaw instructed by M/s A Lee & Partners, assigned by the Director of Legal Aid, for D4.
Offences : (1) to (3) Conspiracy to defraud（串謀詐騙）
(4) Possession of dangerous drugs （管有危險藥物）
(5) Possession of apparatuses fit and intended for the inhalation of a dangerous drug（管有適合於及擬用作吸服危險藥物的器具）
REASONS FOR SENTENCE
D1 to D4 are jointly charged with 3 offences of “Conspiracy to defraud” (Charges 1 to 3). D3 and D4 are also jointly charged with an offence of “Possession of dangerous drugs” (Charge 4) and an offence of “Possession of apparatuses fit and intended for the inhalation of a dangerous drug” (Charge 5).
2. D1 to D3 pleaded guilty to Charges 1 to 3. D4 pleaded guilty to Charges 3 to 5. The prosecution applied to leave Charges 1 and 2 against D4, and Charges 4 and 5 against D3 in the court file; not to be proceeded against them without leave of court. I granted the application.
Summary of Facts
Background
3. About 7:30 p.m. on 17 February 2020, Mr. Chu (PW4) parked his private car at Chatham Road South, Tsim Sha Tsui. He returned around 4:00 a.m. on 18 February 2020 and found a window of his car broken. Amongst other things, a cheque book of PW4’s account with Chiyu Bank (“the Stolen Cheque Book”) was found missing from the car. PW4 reported loss of the Stolen Cheque Book with the bank and closed the relevant account on the same day.
Charge 1
4. Mr. Tsang (PW1) was the operator of GIA Watch & Jewellery Limited (“GIA”), which engaged in the sale of Rolex watches in Tsim Sha Tsui (“Shop 1”).
5. On 8 March 2020, PW1 received a WhatsApp message from someone using mobile phone number 5499 1274 (“SIM 1”) with an account name “Ken” about the purchase of a Rolex watch. After negotiation, PW1 agreed to sell the watch to Ken at $548,000. Both parties agreed to complete the transaction around 1:00 to 2:00 p.m. on the following day. Ken agreed to deposit the purchase price in full into GIA’s account with Hang Seng Bank (“Account 1”).
6. About 8:23 a.m. on 9 March 2020, PW1 received a WhatsApp message from Ken requesting to collect the watch at 12:15 p.m. by Ken’s assistant. PW1 then asked Ken for the full name, HKID card number and mobile phone number of his assistant.
7. About 11:11 in the same morning, PW1 received a WhatsApp message from mobile phone number 5318 0551 (“SIM 2”), claiming to be Ken’s assistant and that he would collect the Rolex watch. Ken then sent PW1 a photo of a HKID card bearing the name “CHAN Ka-sun” (E1) and a photo of a letter from “WONG Ka-chun” authorizing CHAN Ka-sun to collect the Rolex watch.
8. About 1:34 p.m. on the same day, D1 arrived at Shop 1 to collect the Rolex watch on behalf of Ken. PW1 asked D1 for his HKID card but D1 claimed that he did not have it with him. Instead, D1 sent a photo of E1 to PW1 via WhatsApp. About 1:41, PW1 received from Ken a photo of a deposit receipt purporting to show that Ken had deposited cash in the sum of $548,000 into Account 1 at 1:40 p.m. on 9 March 2020.
9. Since D1 was unable to produce his HKID card, PW1 refused to hand over the Rolex watch to him. PW1 also began to grow suspicion on Ken. PW1 then checked the records of Account 1 by online banking and discovered that the sum which Ken claimed to have deposited was by cheque instead of cash.
10. About 1:45 p.m. on the same day, D1 claimed that he needed to use the washroom and left Shop 1. Ken later informed PW1 via WhatsApp that he no longer wished to purchase to watch. PW1 alerted the Police.
11. In a formal identification parade held on 13 March 2020, PW1 identified D1 as the person who went to Shop 1 requesting to collect the Rolex watch on behalf of Ken.
12. PW1 subsequently retrieved the cheque deposited by Ken (E2); it was a blank cheque originated from the Stolen Cheque Book. The Police later found D2’s left thumbprint on E2.
Charge 2
13. Mr. Tang (PW2) operated “Basel One Jewellery & Watch”, which engaged in the sale of Rolex watches in Tsim Sha Tsui (“Shop 2”).
14. About 11:55 p.m. on 8 March 2020, PW2 received WhatsApp messages from someone using SIM 1 with an account name “Ken” about the purchase of different models of Rolex watches. Eventually, Ken made his pick and PW2 agreed to sell the watch at $279,000. Both parties agreed to complete the transaction around 2:00 p.m. on the following day. Ken agreed to deposit the purchase price in full into PW2’s HSBC account.
15. About 11:00 a.m. on 9 March 2020, Ken informed PW2 via WhatsApp that he would send his assistant to Shop 2 to collect the watch.
16. About 1:44 p.m. on the same day, PW2 received voice calls from phone number 5420 8204 (“SIM 3”). Claiming to be Ken’s assistant, the caller told PW2 that he would collect the watch at Shop 2. PW2 later discovered that there were missed calls made from SIM 2 to his phone. PW2 called back SIM 2. The person who answered the call claimed to be Ken’s assistant and told PW2 that he would attend Shop 2 later.
17. About 2:09 in the same afternoon, D1 arrived at Shop 2 requesting to pick up the Rolex watch on behalf of his boss. PW2 informed Ken that his assistant had arrived; whereas Ken claimed that he would arrange for his accounting staff to deposit the purchase price.
18. About 2:37, Ken informed PW2 that he could not make the deposit since there were some problems with PW2’s bank account. PW2 asked Ken to pay cash at Shop 2. Ken refused claiming that he would arrange for his accounting staff to deposit the money at a bank counter. PW2 grew suspicion and took a photo of D1. D1 later claimed that he needed to use the washroom and left Shop 2.
19. In a formal identification parade held on 13 March 2020, PW2 identified D1 as the person who went to Shop 2 requesting to collect the Rolex watch on behalf of Ken.
Charge 3
20. Madam Tang (PW3) worked at “Alpha Watch & Jewellery”, which engaged in the sale of Rolex watches in Tsim Sha Tsui (“Shop 3”).
21. About 8:04 a.m. on 8 March 2020, PW3 received WhatsApp messages from someone using SIM 1 with an account name “Ken” about Rolex watches. On 9 March 2020, Ken made his pick and agreed to buy the watch at $280,000. Ken claimed that he would arrange for his colleague to collect the watch and would deposit the full purchase price in cash into PW3’s HSBC account (“Account 2”) by bank transfer.
22. About 2:14 p.m. on 9 March 2020, PW3 learned about the incident in relation to Charge 1 from her WhatsApp contacts. She alerted the Police because she recognized SIM 1 being the phone number used by Ken to contact her. About 2:26 in the same afternoon, Ken sent a photo of a HKID card bearing the name “CHAN Ka-sun” (E3) to PW3 telling her that the said person would collect the Rolex watch on his behalf. E3 and E1 were later on found to be the same image.
23. About 3:13 p.m. on the same day, D1 arrived at Shop 3 claiming to be Ken’s assistant and requesting to collect the watch. About 3:26, PW3 received from Ken via WhatsApp a photo of an HSBC deposit slip purporting to show that cash in the sum of $280,000 was deposited into Account 2. At the same time, police officers arrived at Shop 3 and detained D1 for enquiry.
24. Having checked the records of Account 2, PW3 discovered that the sum which Ken claimed to have deposited was by cheque instead of cash. The cheque was bounced later. PW3 subsequently retrieved the cheque deposited by Ken (E4); it was a blank cheque originated from the Stolen Cheque Book. The Police later found D2’s left thumbprint on E4.
Controlled delivery and arrest
25. DSIP Tang made enquiries with D1 at Shop 3. D1’s phone rang during the enquiries. He told the Police that it was Ken’s call asking him to deliver the Rolex watch to Mongkok MTR Station. D1 agreed to assist the Police in a controlled delivery.
26. Meanwhile, PW3 was instructed by the Police to inform Ken via WhatsApp that she had received his payment. PW3 then gave a paper bag containing an empty watch box (collectively “the Bag”) to the Police for D1’s delivery.
27. About 4:35, near Exit C at Mongkok MTR Station, D1 handed the Bag to D2. Police officers arrested both D1 and D2. Under caution, D2 claimed that he was asked by “Ah Wai” to collect the watch. Upon search, 2 mobile phones (one containing SIM 2) were found on D1; and 1 mobile phone was found on D2.
28. During the investigation, D2 received a call from SIM 3. He told the Police that someone had just instructed him to pass the Bag to another man. D2 agreed to assist the Police in a controlled delivery.
29. D2 called back the person at SIM 3, who then told D2 to go to Mongkok New Town Mall to make the delivery. D2 took the Bag there. During his journey, police officers saw D3 observing D2. They arrested D3. Upon search, a mobile phone and a key card to Room 1211, Kowloon Harbourfront Hotel, Hung Hom (“the Room”) were found on D3.
30. With D3’s consent, the Police inspected his mobile phone. They found some dialogues between D3 and D4 and a photo of a card containing details of Shop 3.
Seizure of exhibits from the Room (Charges 4 and 5)
31. According to the hotel’s record, D4 became a registered occupant of the Room on 28 February 2020. D3 was registered as an additional occupant on 8 March 2020.
32. About 7:35 p.m. on 9 March 2020, the Police searched the Room and seized the following items :-
(a) On a table in the living room: a laptop computer (containing files of the HSBC deposit slip received by PW3; an image of the HKID card of “WONG Ka-chun”; an image of D1’s HKID card; an image of D4’s HKID card; an image of a HKID card which is the same as E1 and E3; and a series of images purporting to be bank drafts with GIA, PW1 and PW2 as payees); a photocopy of a HKID card which is the same as E1 and E3; 2 pieces of paper which contained the contact details of Shop 1 (with D3’s fingerprints); and some printed copies of purported bank drafts with Shop 1, PW2, PW3 as payees (with D4’s fingerprints);
(b) On the sofa and near the television set: the card cover of SIM 1; and a printer with a copy of a bank draft with PW2 as payee;
(c) On a desk in the bedroom: 1 plastic bag which contained 0.45 gramme of a crystalline solid containing 0.45 gramme of methamphetamine hydrochloride (E7); 1 glass tube shaped as a bulb at one end which contained 0.04 gramme of a solid containing methamphetamine hydrochloride (E8); 1 glass tube shaped as a bulb at one end which contained 0.06 gramme of a solid containing methamphetamine hydrochloride (E9); 1 glass tube shaped as a bulb at one end (E10); and a one-piece set up consisting of 2 glass bottles bridged by 1 glass tube and each glass bottle had 1 opening (one of the glass bottles was inserted with 1 plastic tube fitted into the plastic straw outside the glass bottle) which contained 14 millilitres of a liquid containing traces of methamphetamine (E11). E8 to E10 could be fitted into E11 to form an inhaling device; and
(d) Inside an unlocked safe in the bedroom: 1 glass bottle with 2 openings (one of which was inserted with 1 plastic tube) which contained 13 millilitres of a liquid containing traces of methamphetamine (E12).
E8 to E12 were apparatuses fit and intended for inhalation of methamphetamine. D4 now admits that he had possession of E7 to E12 on 9 March 2020.
Arrest of D4
33. D4 was arrested on 13 March 2020 in Sham Shui Po. He remained silent under caution. A mobile phone was found on him.
D1’s admissions
34. D1 admitted that in the forenoon on 9 March 2020, D2 asked him to meet up in Mongkok. When they met, D2 gave him a mobile phone containing SIM 2 (“the Work Phone”) and instructed him to collect a Rolex watch in Tsim Sha Tsui. D1 then received WhatsApp messages from Ken through the Work Phone asking him to collect a Rolex watch at Shop 1.
35. As requested by Ken, D1 took a photo of his own HKID card and sent it to Ken by WhatsApp using the Work Phone. Ken later sent D1 a photo of a HKID card bearing D1’s photo but with particulars of another person. Ken asked D1 to memorize the personal particulars which appeared on that HKID card.
36. D1 admitted he knew that D2 and Ken were making use of some dishonoured cheques with a view to inducing the respective proprietors of Shops 1 to 3 to pass the respective Rolex watches to him.
D2’s admissions
37. D2 admitted that he met a person named “Ah Wai” about half a year ago. On 8 March 2020, Ah Wai used SIM 3 to call D2 asking him to go to Mongkok in the next morning. Ah Wai also asked D2 to recruit one more person, so D2 brought in D1.
38. About 8:30 a.m. on 9 March 2020, D2 met Ah Wai in Mongkok. Ah Wai gave him a mobile phone and 2 SIM cards (one being SIM 2). D2 inserted SIM 2 into that mobile phone and gave it to D1 around 9:00 a.m. on the same day. D2 also inserted the other SIM card into his own mobile phone.
39. Later, Ah Wai used SIM 3 to call D2 asking him to collect a watch at Exit C of Mongkok MTR Station around 4:00 p.m. on the same day. D2 was arrested by the Police after collecting the Bag from D1.
D3 and D4
40. D3 admitted his mobile phone number under caution. D4 remained silent under caution.
Examination of mobile phones seized from D1 to D3
41. The WhatsApp records contained in the Work Phone showed that D1 had been discussing the events which took place at Shops 1 to 3 with someone named Ken who was using SIM 3. Ken was giving instructions to D1 all along.
42. The WeChat records contained in D2’s mobile phone showed that D2 had asked D1 to meet up in Mongkok in the morning on 9 March 2020. The WhatsApp records contained in D2’s mobile phone showed that D2 was in contact with someone named Ken who was using SIM 3 in relation to the collection and delivery of the Bag.
43. The WhatsApp records contained in D3’s mobile phone showed that D4 had asked D3 to monitor D1 for the collection of the watch from Shop 3 as well as giving instructions to D3 in relation to the collection of the watch from D2.
CCTV footage
44. CCTV footage of Shops 2 and 3 captured the respective incidents described by PWs 2 and 3.
45. CCTV footage of Hang Seng Bank and HSBC captured D2 depositing the cheques related to Charges 1 and 3 (namely E2 and E4).
46. CCTV footage of Kowloon Harbourfront Hotel captured D3 and D4 going to and leaving the 12th Floor every day between 29 February and 9 March 2020.
Mitigation
D1
47. He is 16 and has a clear record. His counsel Ms. Yip informed me that D1 was only 15 when he committed the present offences. He has studied up to F.3 level. In 2019, D1 enrolled in a 4-year Building Engineering Services programme at the Vocational Training Council. He has completed the first 2 years. He now works full-time for an air-conditioning systems contractor of the MTR Corporation 5 days a week, and attends classes on Wednesdays.
48. In mitigation, Ms. Yip submitted that D1 committed the present offences out of momentary greed and foolishness. D1 has a supportive family; his parents are still young (aged 40 and 36 respectively) and both have stable jobs. Ms. Yip stressed that D1 has been co-operative with the Police throughout, which led to the arrest of D2. He also gave an NPS and was accepted by the prosecution to give evidence against D2 at trial. Ms. Yip also submitted that D1 has completed half of his vocational training programme, and has been gainfully employed for 1 year and 3 months with a stable income.
D2
49. He is 19 and has a clear record. His counsel Mr. Lau informed me that D2 was 17 when he committed the present offences. Similar to D1, D2 has also studied up to F.3 level. After leaving school, D2 has worked different jobs and enrolled in a 3-year hair styling course. He, however, did not complete the course due to lack of interest. In May 2021, he became an apprentice at a fire engineering company earning $750 per day.
50. In mitigation, Mr. Lau submitted that D2 was used by other adults as a courier in the present case. He has been co-operative with the Police throughout, which led to the arrest of D3. With his usual fairness, Mr. Lau accepts that credit should be given to D1 for leading to D2’s guilty pleas. Mr. Lau stressed that D2 has shown his remorse by pleading guilty to all 3 charges, even though his plea indication came a bit late.
D3
51. He is 31 and has 7 conviction records (which included 3 “Theft” offences and 1 “Robbery” offence). D3 was released from prison on 25 February 2020 and he committed the present offences in early March 2020. His counsel Ms. Lee informed me that D3 is single and resides with his parents. D3 has studied up to F.2.
52. In mitigation, Ms. Lee submitted that D3 did not know D1 or D2. Although he was introduced to D4 through some friends, D3 barely knew D4. Ms. Lee explained that after his release from prison, D3 had real difficulty in finding a job owing to his conviction records, the social unrest and the pandemic. As a result, he was disappointed and started to hang out with his friend “Ho Chai” in the Room. Ms. Lee submitted that D3 was lured into becoming a courier in the present case by Ho Chai. Attracted by the free room and board as well as a reward of $700, D3 foolishly agreed to play a part in this scam.
D4
53. He is 33 and has 10 conviction records (which included 1 “Theft” offence, 1 “Robbery” offence, 10 “Burglary” offences, 11 deception/fraud-related offences and 2 “simple possession” offences). His counsel Mr. Shaw informed me that D4 is divorced. He has a 10-year-old daughter with his ex-wife and a 6-year-old son with his girlfriend. His daughter now resides with her maternal grandmother. Unfortunately, D4’s girlfriend passed away in 2015. His son now resides with D4’s mother (aged 60). Prior to his arrest, D4 was a self-employed tattoo artist earning $25,000 per month. He contributed $15,000 each month on supporting his children and mother.
54. In mitigation, Mr. Shaw explained that the Room was rented by D4’s female friend Tung. D4 used the Room to provide tattooing service to his clients. Owing to the pandemic, D4’s business dropped substantially. As a result, he agreed to help one of his clients, Ho Chai, to print certain documents in return for a reward of $5,000. Mr. Shaw submitted that D4 has learned his lessons. He has shown genuine remorse by pleading guilty to the charges.
Sentence
55. I will deal with D3 and D4 first.
56. Although Charges 1 to 3 do not involve the Barrick type of breach of trust, I find the sentencing guidelines laid down by the Court of Appeal in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 nevertheless relevant. In my view, such guidelines are simply a yardstick. For cases which are not of the Barrick type, the court may still follow the guidelines in Ng Kwok Wing or impose a sentence which is higher or lower than the guidelines, depending on the facts of each case.
57. The present case is not a cybercrime, which normally deceives victims of their money directly online. Images of misleading deposit receipts were sent to the victims by phone in order to deceive their goods. I also accept that the syndicate did not target at elderly people or people with certain vulnerabilities. Although images of forged HKID cards were involved, I do not consider the scam to be a sophisticated one. The most crucial deceptive element was each misleading deposit receipt.
58. D3 and D4 both denied being the mastermind. For the purpose of sentencing, I need not determine who played a lesser role. As revealed in the Summary of Facts, what each culprit did is clear. They might have played different roles, but they each contributed to the planning and/or execution of the scam and are equally culpable. There is no need to distinguish their roles or to apportion their culpability.
59. Based on the scam employed in the present case, I consider the seriousness of this case commensurate with the sentencing guidelines in Ng Kwok Wing. Hence, I will follow those guidelines. I am aware that none of the attempts to deceive a Rolex watch was successful. Thus, PWs 1 to 3 suffered no financial loss. I will adjust the starting points accordingly.
60. The sum involved in Charge 1 was $548,000. According to Ng Kwok Wing, for $500,000, the starting point is 2.5 years’ imprisonment. I consider it appropriate for this charge.
61. The sum involved in Charge 2 was $279,000. According to Ng Kwok Wing, for $250,000, the starting point is 2 years’ imprisonment. I consider it appropriate for this charge.
62. The sum involved in Charge 3 was $280,000. The appropriate starting point for this charge is 2 years’ imprisonment.
D3
63. He is no stranger to theft-related offences, but has no conviction of deception/fraud-related offences. On the other hand, he committed the present offences in just 10 days after his release from prison. I consider it an aggravating factor. I will increase the starting point of each charge by 3 months.
64. For Charge 1, I adopt a starting point of 33 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 22 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D3 to 22 months’ imprisonment.
65. For Charge 2, I adopt a starting point of 27 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 18 months. I sentence D3 to 18 months’ imprisonment.
66. For Charge 3, I adopt a starting point of 27 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 18 months. I sentence D3 to 18 months’ imprisonment.
67. The total sum involved in Charges 1 to 3 is approximately $1.1 million. According to Ng Kwok Wing, for $1 million, the starting point is 3 years’ imprisonment. PWs 1 to 3 suffered no financial loss but D3 re-offended shortly after his release from prison, I consider a global starting point of 3 years’ imprisonment appropriate for all 3 charges. With the timely guilty pleas, the overall sentence is reduced to 24 months. To achieve this, I order the sentences to run in the following manner :-
(i) 1 month in Charge 2 consecutive to Charge 1; and
(ii) 1 month in Charge 3 consecutive to Charges 1 and 2.
D4
68. For Charge 3, he has a long history of theft-related offences and deception/fraud-related offences, which puts him in the repeated offender category. I will increase the starting point by 3 months. Hence, I adopt a starting point of 27 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 18 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D4 to 18 months’ imprisonment.
69. For Charge 4, at most a total of 0.55 gramme of ICE is involved. D4’s last similar conviction took place over 10 years ago. I adopt a starting point of 12 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 8 months. I sentence D4 to 8 months’ imprisonment.
70. For Charge 5, the usual sentence is 3 months’ imprisonment after plea. I have no reason not to follow it. Hence, I adopt a starting point of 4.5 months’ imprisonment. With the timely guilty plea, the sentence is reduced to 3 months. I sentence D4 to 3 months’ imprisonment.
71. Bearing in mind the totality principle and the nature of the 3 offences, a global starting point of 33 months’ imprisonment is appropriate for Charges 3 to 5. With the timely guilty pleas, the overall sentence is reduced to 22 months. To achieve this, I order the sentences to run in the following manner :-
(i) Charges 4 and 5 concurrent; and
(ii) 4 months in Charges 4 and 5 consecutive to Charge 3.
D1 and D2
72. D1 is only 16; and D2, 19. Both are under 21, which means imprisonment should be the last resort in terms of sentencing. As a general principle, rehabilitation (rather than punishment) plays an important role in reforming young offenders. I cannot overlook their need for rehabilitation. I am also aware that both of them have experienced some in-born learning difficulties when they were young, which probably contributed to their poor academic performance through no fault of their own.
73. Pre-sentencing reports indicated that both are fit for detention in a Rehabilitation Centre or a Training Centre. Both are also suitable for a Community Service Order. The Young Offender Assessment Panel recommended a Community Service Order for long duration for both D1 and D2.
74. Based on the materials before me, I accept that D1 and D2 were both used as foot soldiers by the major players who orchestrated the fraud in this case. Their culpability is probably the least within the syndicate.
75. D1 is half way through his vocational training and has a stable job with positive comments from his employer. I am inclined not to disrupt his training and employment as it might do him more harm than good by placing him in a correctional institution. D2 also received favourable comments from his current employer. Likewise, I am prepared to give him one last chance.
76. I agree with the comments made by the Young Offender Assessment Panel and will follow their recommendations. I consider a Community Service Order to be an appropriate and just punishment for D1 and D2 at this moment.
[Requirements of Community Service Order explained. D1 and D2 understood and are willing to comply.]
I sentence D1 to 160 hours of Community Service each for Charges 1 to 3; and D2 to 200 hours of Community Service each for Charges 1 to 3.
DCCC 909/2019
[2021] HKDC 292
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 909 OF 2019
———————-
HKSAR
v
Lo Chun-hei
———————-
Before: HH Judge Casewell
Date: 4 February 2021 at 2.36 pm
Present: Ms Karen Ng, Ag.SPP of the Department of Justice, for HKSAR
Ms Catherine Wong Kam-kuen, instructed by S T Cheng & Co, assigned by DLA, for the defendant
Offence: (1) Possession of explosive substances (管有爆炸品)
(3) Possessing things with intent to damage property (管有物品意圖損壞財產)
———————
Reasons for Sentence
———————
The defendant, Mr Lo, has pleaded guilty to two charges on this indictment. The 1st charge of possession of explosive substance, contrary to section 55(1) of the Crimes Ordinance, substances being listed as potassium nitrate, sucrose (that is, sugar), sodium bicarbonate and magnesium carbonate. The defendant also pleaded guilty to a 3rd charge, which is under the Crimes Ordinance, section 62(a), possessing things with intent to damage property. Those items are not particularised in the charge but can be found in the agreed facts.
The defendant agreed the set of facts put forward by the prosecution, which set out the following, that: on 1 August of 2019, a search warrant was executed at a premises where the defendant was resident, an un-partitioned premises in Tin Shui Wai.
A search of those premises revealed a number of items. The first search was conducted in the kitchen, where a number of items were found, particularly exhibits 4 to 7, which contain a total of 30 what are described as improvised devices comprising a paper roll sealed with adhesive tape. Each sealed paper roll contained pyrotechnic mix, which are defined as explosive substances. There were also 27 incomplete improvised devices also containing pyrotechnic mixes. Another description of the pyrotechnic mix will be to describe these items as smoke bombs. Together with these items, items were also found for the assembling of these improvised devices and a notebook with instructions on how to improvise these devices.
A further search of the premises found other matters and these are the items that will be dealt with under Charge 3.
In the area of the beds, some 19 beer bottles were found: 16 were empty, 3 had some residues in them. 10 bottles of lighter fluid, five of which were empty. Five bottles of alcohol. Some cotton balls, matches, further magnesium powder and potassium chloride. Also found in that area were helmets and protective gear, cold packs, hammers, plastic pipes, extendable baton, and a knife.
The items found, particularly those concerning the bottles of lighter fluid, beer bottles and alcohol, were items from which flammable devices could be constructed. These could properly be described as petrol bombs or Molotov cocktails. They form the substance of Charge 3.
On arrest and caution, the defendant admitted the items in the kitchen belonged to him; the notebook and the handwriting belonged to him.
There was an examination of the items seized. Samples of the various chemicals were taken. The conclusions reached can be found in relation to the charges.
As far as the 1st charge is concerned, the analysis showed and the conclusion is that the items discovered were explosive substances, namely solid mixtures of potassium nitrate, sucrose, sodium bicarbonate, magnesium carbonate. These are substances used or manufactured with a view to producing a practical effect by way of a pyrotechnic effect. The said explosive substances being placed and sealed inside what is described as exhibit 6 would generate a large amount of smoke when exhibit 6 is ignited at the protruded end of the straw. It is said that the other incomplete devices would, if completed, have the same purpose. That means the items that I am concerned with in Charge 1, relating to possession of explosives, are smoke bombs.
As far as Charge 3 is concerned, a different matter entirely, this is a charge of possessing things with intent to damage property. The defendant had under his custody, and he admits this, exhibits 8 to 12. These items could be used to damage property by setting fire. It is agreed by the defendant he obtained the same without lawful excuse. Exhibits 9 and 10 are the flammable devices and they can be used together with exhibit 8, which is the bottles, and exhibit 11, which would be cotton balls inflammable liquid can be poured into exhibit 8 and then ignited and thrown at a surface or object, which will cause damage to the said surface or object by fire.
Those are basically the facts that the defendant has admitted to in this case.
The defendant himself, Mr Lo, is aged 24 years. He is still a relatively young man. He has a clear record and he would have been 23 at the time of these offences. He lives together with his mother and elder sister at a flat in Tin Shui Wai.
I have obtained reports about the defendant: background and psychological reports. I think a summary of those without disclosing too much personal information, would say the defendant has had a difficult childhood with many family difficulties, but he has surmounted those and since the age of 18 has been employed and most recently employed in a container terminal working in the area of cranes. There are commendations of his performance and work ethic.
Defendant himself has expressed regret for his actions. He is remorseful and concerned for his family. He has expressed his remorse in the form of letters and also in the background report. He does express in the background report that the construction of the smoke bombs was for an experiment and he said he had come a long way towards their production.
The psychological report obtained on the defendant contains an assessment of him. It says that his risk of general and violent re-offending against others is estimated to be low. He has maintained stable employment and lived with his parents and shows no past tendency towards aggression or inter-personal problems. There is no need for psychological intervention.
I turn to the general approach to sentencing in cases of this nature.
The first issue that must be made clear is the timing of these offences. The offence occurred in August of 2019 and can be seen against the background of what the Final Court of Appeal in the case of Final Court of Appeal 6 of 2020, Kwok Wing Hang & 23 Ors, described as a period of disrupted social order that occurred from 9 June 2019 to 4 October 2019. I am quoting from the Court of Appeal judgment, where they said over some 400 public order events arising from the Fugitive Offenders Bill were staged and led to significant numbers of outbreaks of violence, public order events taking place in various parts of Hong Kong at frequent intervals weekly involving hundreds and at times thousands of participants.
The Court of Final Appeal goes on to describe the forms of violence that were perpetrated during these demonstrations: damaging private shopping malls, shops and restaurants; looting damaged shops; damaging residential premises, harassing residents; attacking members of the public. Weapons included high-powered laser pointers, slingshots, sharpened objects, throwing petrol bombs at police vehicles and police stations, damaging and obstructing the operation of critical infrastructure, and it is against that background that these offences had been committed.
In respect of the 1st charge, there are no general guideline sentences from the Court of Appeal. However, an approach to sentence can be seen from a case in the High Court, Chan Yiu Shing & Ors [2018] 1 HKLRD 421. Some general observations were made in that case about the nature of the 1st charge, the explosive charge.
The High Court judgment sets out that offences for the possession or making of explosive substances fall within the category of sentences where sentences must be imposed for offending of this nature must reflect the gravity and seriousness of the criminality disclosed. They normally demand the imposition of a custodial sentence that acts both as a specific and general deterrent. The court’s preoccupation in sentencing will be the facts and circumstances of the offence and of the offender as considered and evaluated by an application of the relevant sentencing guidelines. Offences will vary greatly but it needs to be appreciated that persons involved in researching or making explosive substances are likely to face severe punishments. It is noted that the offences of possession or making an explosive substance are contained in section 55(1) of the Crimes Ordinance, Cap 200. In relation to offences, the maximum penalty on conviction upon indictment can be a term of up to 14 years’ imprisonment.
In that case, the court dealt with in Count 1 a conspiracy count, where it is said by the court that the two defendants convicted had conspired together to make explosive substances which were particularised in Count 1 as “a mixture of nitrate salts capable of producing a pyrotechnic effect”. The generic description of the explosive substances is smoke bombs. That again is the generic description of the explosive substances that I am dealing with in the facts of this case.
The final outcome of that case, after consideration of a number of similar cases in Hong Kong, was that in Count 1, conspiracy to make a mixture of nitrate salts capable of producing a pyrotechnic effect, a starting point of 2 years’ imprisonment was adopted by the court.
In respect of the 3rd charge, to which the defendant pleaded guilty, the possession of things with intent to damage property, what is alleged and agreed here in the facts is possession of things from which flammable devices can be made: simply stated, petrol bombs.
Again, there is no guideline sentence for possession of these items. The Court of Appeal has looked at cases where petrol bombs have been used in demonstrations and have been ignited or attempted to be ignited. In that case, they are charged as arson offences or attempted arson offences where there is an attempt to endanger life and can carry, on conviction, a life sentence.
In HKSAR v Yiu Siu Hong [2020] HKCA 1087, the Court of Appeal observed, “From an overview of these cases in the District Court, it seems that a starting point of about 5 years has been adopted”. Sentences can range up to 6 years.
However, I do note in sentencing this defendant that the charge in this case is a different charge entirely, under Charge 62(a) of the Crimes Ordinance, Cap 200, and the allegation in this case is these items were possessed with the intent to use the thing to damage property belonging to some other person. This charge is different in that it alleges an intent to damage property, a less serious iteration of the possession of such items than the arson charges, which the Court of Appeal has dealt with.
There again is again no authority relevant to the possession of such items under section 62(a) of Cap 200. However, an examination of comparable sentences in this court have ranged between 3 to 4½ years’ imprisonment as a starting point.
I bear in mind all those factors when passing sentence on this defendant.
In determining the starting point for sentences on both the 1st and the 3rd charge, I bear in mind the quantities of explosive materials and flammable materials found by the investigating officers when they conducted searches at the defendant’s premises on 1 August 2019. I also note the number of potential inflammable petrol device objects that could be constructed in relation to Charge 3. These charges, as set out in the authorities I have already referred to, require deterrent sentences, where the personal or individual factors of the defendant are less relevant. Furthermore, their possession at a time of violent civil disorder is also an aggravating factor, as these items would have represented a clear escalation of such disorder at that time.
Balanced against this is the fact that a large number of the devices in Charge 1 remained to be assembled and that the devices themselves are purely designed to produce smoke. Also, in Charge 3, the items themselves were not assembled and were possessed in the home of the defendant. They were not deployed on the street or at a place of disorder, although they may have been the end use intended for these items.
I also bear in mind the defendant’s clear record, the fact he has shown remorse, his low likelihood of re-offending, and the fact he has no tendency to use aggression to solve interpersonal problems and he has generally positive reports.
Taking all those factors into consideration, I will adopt the following starting points for sentence on these charges.
On Charge 1, I will adopt a starting point which reflects the items’ seriousness. That will be a starting point of 24 months’ imprisonment. This will be reduced to 16 months’ imprisonment, having regard to the defendant’s plea of guilty.
Again, on Charge 3, I will adopt a starting point for sentence that reflects the seriousness of the offences and the necessity for a deterrent sentence. The starting point for sentence will be 45 months’ imprisonment. That will be reduced to 30 months’ imprisonment for the defendant’s plea of guilty.
I must now determine what the overall total sentence to be imposed must be.
These items were all found in the same place and at the same time. However, they constitute separate offences and so they can be served, if necessary, consecutively. To order a consecutive sentence — consecutive serving these sentences would, in my view, lead to a sentence that would be excessive in this case, so I must consider what element of these should be served consecutively and concurrently.
I do bear in mind when making this determination that the possession of two items together may well have a multiplication effect involved in the use and production of different types of explosive and inflammatory devices.
I have determined that an overall sentence of 38 months’ imprisonment should be imposed for these two offences. I will achieve that by ordering that 8 months of Charge 1 be served consecutively to Charge 3 and the balance concurrently.
(T Casewell)
District Judge
DCCC909/2019
02/04/2021
祁士偉
區院
認罪
罪成
起重機司機
23
無牌管有彈藥
判囚
25
08/01/2019
天水圍
DCCC 909/2019
[2021] HKDC 292
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 909 OF 2019
———————-
HKSAR
v
Lo Chun-hei
———————-
Before: HH Judge Casewell
Date: 4 February 2021 at 2.36 pm
Present: Ms Karen Ng, Ag.SPP of the Department of Justice, for HKSAR
Ms Catherine Wong Kam-kuen, instructed by S T Cheng & Co, assigned by DLA, for the defendant
Offence: (1) Possession of explosive substances (管有爆炸品)
(3) Possessing things with intent to damage property (管有物品意圖損壞財產)
———————
Reasons for Sentence
———————
The defendant, Mr Lo, has pleaded guilty to two charges on this indictment. The 1st charge of possession of explosive substance, contrary to section 55(1) of the Crimes Ordinance, substances being listed as potassium nitrate, sucrose (that is, sugar), sodium bicarbonate and magnesium carbonate. The defendant also pleaded guilty to a 3rd charge, which is under the Crimes Ordinance, section 62(a), possessing things with intent to damage property. Those items are not particularised in the charge but can be found in the agreed facts.
The defendant agreed the set of facts put forward by the prosecution, which set out the following, that: on 1 August of 2019, a search warrant was executed at a premises where the defendant was resident, an un-partitioned premises in Tin Shui Wai.
A search of those premises revealed a number of items. The first search was conducted in the kitchen, where a number of items were found, particularly exhibits 4 to 7, which contain a total of 30 what are described as improvised devices comprising a paper roll sealed with adhesive tape. Each sealed paper roll contained pyrotechnic mix, which are defined as explosive substances. There were also 27 incomplete improvised devices also containing pyrotechnic mixes. Another description of the pyrotechnic mix will be to describe these items as smoke bombs. Together with these items, items were also found for the assembling of these improvised devices and a notebook with instructions on how to improvise these devices.
A further search of the premises found other matters and these are the items that will be dealt with under Charge 3.
In the area of the beds, some 19 beer bottles were found: 16 were empty, 3 had some residues in them. 10 bottles of lighter fluid, five of which were empty. Five bottles of alcohol. Some cotton balls, matches, further magnesium powder and potassium chloride. Also found in that area were helmets and protective gear, cold packs, hammers, plastic pipes, extendable baton, and a knife.
The items found, particularly those concerning the bottles of lighter fluid, beer bottles and alcohol, were items from which flammable devices could be constructed. These could properly be described as petrol bombs or Molotov cocktails. They form the substance of Charge 3.
On arrest and caution, the defendant admitted the items in the kitchen belonged to him; the notebook and the handwriting belonged to him.
There was an examination of the items seized. Samples of the various chemicals were taken. The conclusions reached can be found in relation to the charges.
As far as the 1st charge is concerned, the analysis showed and the conclusion is that the items discovered were explosive substances, namely solid mixtures of potassium nitrate, sucrose, sodium bicarbonate, magnesium carbonate. These are substances used or manufactured with a view to producing a practical effect by way of a pyrotechnic effect. The said explosive substances being placed and sealed inside what is described as exhibit 6 would generate a large amount of smoke when exhibit 6 is ignited at the protruded end of the straw. It is said that the other incomplete devices would, if completed, have the same purpose. That means the items that I am concerned with in Charge 1, relating to possession of explosives, are smoke bombs.
As far as Charge 3 is concerned, a different matter entirely, this is a charge of possessing things with intent to damage property. The defendant had under his custody, and he admits this, exhibits 8 to 12. These items could be used to damage property by setting fire. It is agreed by the defendant he obtained the same without lawful excuse. Exhibits 9 and 10 are the flammable devices and they can be used together with exhibit 8, which is the bottles, and exhibit 11, which would be cotton balls inflammable liquid can be poured into exhibit 8 and then ignited and thrown at a surface or object, which will cause damage to the said surface or object by fire.
Those are basically the facts that the defendant has admitted to in this case.
The defendant himself, Mr Lo, is aged 24 years. He is still a relatively young man. He has a clear record and he would have been 23 at the time of these offences. He lives together with his mother and elder sister at a flat in Tin Shui Wai.
I have obtained reports about the defendant: background and psychological reports. I think a summary of those without disclosing too much personal information, would say the defendant has had a difficult childhood with many family difficulties, but he has surmounted those and since the age of 18 has been employed and most recently employed in a container terminal working in the area of cranes. There are commendations of his performance and work ethic.
Defendant himself has expressed regret for his actions. He is remorseful and concerned for his family. He has expressed his remorse in the form of letters and also in the background report. He does express in the background report that the construction of the smoke bombs was for an experiment and he said he had come a long way towards their production.
The psychological report obtained on the defendant contains an assessment of him. It says that his risk of general and violent re-offending against others is estimated to be low. He has maintained stable employment and lived with his parents and shows no past tendency towards aggression or inter-personal problems. There is no need for psychological intervention.
I turn to the general approach to sentencing in cases of this nature.
The first issue that must be made clear is the timing of these offences. The offence occurred in August of 2019 and can be seen against the background of what the Final Court of Appeal in the case of Final Court of Appeal 6 of 2020, Kwok Wing Hang & 23 Ors, described as a period of disrupted social order that occurred from 9 June 2019 to 4 October 2019. I am quoting from the Court of Appeal judgment, where they said over some 400 public order events arising from the Fugitive Offenders Bill were staged and led to significant numbers of outbreaks of violence, public order events taking place in various parts of Hong Kong at frequent intervals weekly involving hundreds and at times thousands of participants.
The Court of Final Appeal goes on to describe the forms of violence that were perpetrated during these demonstrations: damaging private shopping malls, shops and restaurants; looting damaged shops; damaging residential premises, harassing residents; attacking members of the public. Weapons included high-powered laser pointers, slingshots, sharpened objects, throwing petrol bombs at police vehicles and police stations, damaging and obstructing the operation of critical infrastructure, and it is against that background that these offences had been committed.
In respect of the 1st charge, there are no general guideline sentences from the Court of Appeal. However, an approach to sentence can be seen from a case in the High Court, Chan Yiu Shing & Ors [2018] 1 HKLRD 421. Some general observations were made in that case about the nature of the 1st charge, the explosive charge.
The High Court judgment sets out that offences for the possession or making of explosive substances fall within the category of sentences where sentences must be imposed for offending of this nature must reflect the gravity and seriousness of the criminality disclosed. They normally demand the imposition of a custodial sentence that acts both as a specific and general deterrent. The court’s preoccupation in sentencing will be the facts and circumstances of the offence and of the offender as considered and evaluated by an application of the relevant sentencing guidelines. Offences will vary greatly but it needs to be appreciated that persons involved in researching or making explosive substances are likely to face severe punishments. It is noted that the offences of possession or making an explosive substance are contained in section 55(1) of the Crimes Ordinance, Cap 200. In relation to offences, the maximum penalty on conviction upon indictment can be a term of up to 14 years’ imprisonment.
In that case, the court dealt with in Count 1 a conspiracy count, where it is said by the court that the two defendants convicted had conspired together to make explosive substances which were particularised in Count 1 as “a mixture of nitrate salts capable of producing a pyrotechnic effect”. The generic description of the explosive substances is smoke bombs. That again is the generic description of the explosive substances that I am dealing with in the facts of this case.
The final outcome of that case, after consideration of a number of similar cases in Hong Kong, was that in Count 1, conspiracy to make a mixture of nitrate salts capable of producing a pyrotechnic effect, a starting point of 2 years’ imprisonment was adopted by the court.
In respect of the 3rd charge, to which the defendant pleaded guilty, the possession of things with intent to damage property, what is alleged and agreed here in the facts is possession of things from which flammable devices can be made: simply stated, petrol bombs.
Again, there is no guideline sentence for possession of these items. The Court of Appeal has looked at cases where petrol bombs have been used in demonstrations and have been ignited or attempted to be ignited. In that case, they are charged as arson offences or attempted arson offences where there is an attempt to endanger life and can carry, on conviction, a life sentence.
In HKSAR v Yiu Siu Hong [2020] HKCA 1087, the Court of Appeal observed, “From an overview of these cases in the District Court, it seems that a starting point of about 5 years has been adopted”. Sentences can range up to 6 years.
However, I do note in sentencing this defendant that the charge in this case is a different charge entirely, under Charge 62(a) of the Crimes Ordinance, Cap 200, and the allegation in this case is these items were possessed with the intent to use the thing to damage property belonging to some other person. This charge is different in that it alleges an intent to damage property, a less serious iteration of the possession of such items than the arson charges, which the Court of Appeal has dealt with.
There again is again no authority relevant to the possession of such items under section 62(a) of Cap 200. However, an examination of comparable sentences in this court have ranged between 3 to 4½ years’ imprisonment as a starting point.
I bear in mind all those factors when passing sentence on this defendant.
In determining the starting point for sentences on both the 1st and the 3rd charge, I bear in mind the quantities of explosive materials and flammable materials found by the investigating officers when they conducted searches at the defendant’s premises on 1 August 2019. I also note the number of potential inflammable petrol device objects that could be constructed in relation to Charge 3. These charges, as set out in the authorities I have already referred to, require deterrent sentences, where the personal or individual factors of the defendant are less relevant. Furthermore, their possession at a time of violent civil disorder is also an aggravating factor, as these items would have represented a clear escalation of such disorder at that time.
Balanced against this is the fact that a large number of the devices in Charge 1 remained to be assembled and that the devices themselves are purely designed to produce smoke. Also, in Charge 3, the items themselves were not assembled and were possessed in the home of the defendant. They were not deployed on the street or at a place of disorder, although they may have been the end use intended for these items.
I also bear in mind the defendant’s clear record, the fact he has shown remorse, his low likelihood of re-offending, and the fact he has no tendency to use aggression to solve interpersonal problems and he has generally positive reports.
Taking all those factors into consideration, I will adopt the following starting points for sentence on these charges.
On Charge 1, I will adopt a starting point which reflects the items’ seriousness. That will be a starting point of 24 months’ imprisonment. This will be reduced to 16 months’ imprisonment, having regard to the defendant’s plea of guilty.
Again, on Charge 3, I will adopt a starting point for sentence that reflects the seriousness of the offences and the necessity for a deterrent sentence. The starting point for sentence will be 45 months’ imprisonment. That will be reduced to 30 months’ imprisonment for the defendant’s plea of guilty.
I must now determine what the overall total sentence to be imposed must be.
These items were all found in the same place and at the same time. However, they constitute separate offences and so they can be served, if necessary, consecutively. To order a consecutive sentence — consecutive serving these sentences would, in my view, lead to a sentence that would be excessive in this case, so I must consider what element of these should be served consecutively and concurrently.
I do bear in mind when making this determination that the possession of two items together may well have a multiplication effect involved in the use and production of different types of explosive and inflammatory devices.
I have determined that an overall sentence of 38 months’ imprisonment should be imposed for these two offences. I will achieve that by ordering that 8 months of Charge 1 be served consecutively to Charge 3 and the balance concurrently.
(T Casewell)
District Judge
DCCC 9/2020
[2021] HKDC 90
香港特別行政區
區域法院
刑事案件2020年第9號
—————-
香港特別行政區
訴
陳佐豪（第一被告人）
—————-
主審法官：區域法院法官姚勳智
日期： 2021年1月18日上午10時54分
出席人士：律政司檢控官黃恩寧小姐，代表香港特別行政區
潘熙資深大律師帶領黃宇逸先生，由法律援助署委派的鄭瑞泰律師事務所延聘，以及陳曉姸女士，由鄭瑞泰律師事務所以義助服務形式延聘，代表第一被告人
控罪： [1] 暴動（Riot）
[2] 無牌管有無線電通訊器具（Possession of apparatus for
radiocommunications without a licence）
—————-
判刑理由書
—————-
第一被告經審訊後被裁定一項「暴動罪」及一項「無牌管有無線電通訊器具罪」罪名成立，分別違反香港法例第245章《公安條例》第19（1）及（2）條，以及香港法例第106章《電訊條例》第8（1）（b）及20條。
2019年8月31日晚上從8時許至9時06分，在銅鑼灣記利佐治街1號一帶，亦即在軒尼詩道崇光百貨（SOGO）外，現場已有約300人左右聚集，霸佔馬路，大多身穿黑衫黑褲，部份人更身穿護甲頭盔，有人手執長形狀物體，亦有為數10人左右在縱火，焚燒雜物，亦有人向警方投擲汽油彈，也有鐳射光束照向警方，向警員辱罵，且不斷傳出巨大敲擊聲響，並高聲叫囂等等。警方則在約100米外軒尼詩道希慎廣場外築起防線，雙方對峙，其間警方已多次發出警告，表明他們是非法集結，警告他們離開，否則會作出拘捕及驅散。約在晚上8時58分左右警方再展示黑旗及作出相同警告，而在約2106時左右，暴徒於東角道與記利佐治街交界（即記利佐治街1號）地上的雜物縱火，警方正式向前推進，暴徒則沿記利佐利街向東或沿東角道向北方向逃走，警方追截並在百德新街拘捕了第一被告。
第一被告被發現與其他人士衝落珠城大廈之電梯逃走。但被截停，緊貼其後的夥伴則襲擊警員以助第一被告逃脫但失敗。第一被告當時身穿胸口護甲、雙臂護甲，穿黑衫黑褲黑鞋，更跌出無線電對講機，其辯稱只是急救員難以被接納。以當時的時間及第一被告身處的位置、其整全防衛的裝備、其逃走及其夥伴攻擊警方的情況，第一被告必然是曾參與上述暴動的人士。因此，暴動罪罪名成立。
此外，第一被告被制服時從其身上亦跌出一部對講機，經專家測試並發現其輸出及接收的範圍須至申領牌照的規定，但第一被告並未有相關牌照。因此，第二項無牌管有無線電通訊器具罪亦罪名成立。
第一被告現年25歲，過往在2013年曾因販運危險藥物罪被判入教導所。潘資深大律師求情指出，第一被告曾從事運輸行業，因此案而失去工作，他過往並無同類犯案紀錄，且已多年沒有犯事。他在2006年已參與急救課程及實踐所學，多名朋友及區議員的信件也指出，第一被告熱心助人，為人善良。其母親也指出，第一被告曾患有過度活躍症，後來更適應不了學校生活，她很是內疚，也因太激動而患上抑鬱症，第一被告亦因此很早輟學來幫補家計，非常孝順。第一被告自己的求情信更表明，明白自己犯下過錯，須承擔責任，現決心痛改前非，重新做人。
潘資深大律師亦指出，沒有證據指出第一被告曾作出任何暴力行動，身上也並無攻擊性武器，並非激進參與暴力的示威者，因此或可採納較低量刑起點。而就第二項控罪而言，考慮到被告的背景及並無工作，可望判予較低的罰款等等。
暴動罪是嚴重罪行，如香港特別行政區 訴 梁天琦 [2020] HKCA 275一案，上訴法庭指出，一般而言，暴動罪判刑的考慮因素包括：
（1） 暴動是即場突然發生，還是預先計劃的，若是後者，計劃周詳及精密的程度為何；
（2） 參與暴動人數多少；
（3） 暴動者所使用暴力的程度，包括有否使用武器，若有的話，是甚麼武器和數量；
（4） 暴動的規模，包括發生暴動的時間、所在之處、地點數目及範圍；
（5） 暴動歷時多久，包括暴動有否延長；是否經警方或其他公職人員重複警告後仍然進行；
（6） 暴動所造成的傷害：例如有否對財物造成任何損失或破壞，若有的話，其程度為何；是否有人受傷，及若有的話，傷者人數及傷勢為何；
（7） 暴動造成之威脅的嚴重性及逼近程度為何；
（8） 暴動對公眾造成滋擾的性質和程度；
（9） 暴動對社群關係的影響；
（10） 暴動對公共開支造成的負擔；
（11） 犯案者的角色及參與程度，如除自己有參與暴動外，有否安排、帶領、號召、煽動或鼓吹他人參與暴動；以及
（12） 犯案者在暴動發生期間，有沒有干犯其他罪行。
而因為每宗暴動罪行所涉及的背景和案情都有差異，判刑上要視乎每宗案件而定，其他案件判刑的指導性作用不大。
就本案而言，暴動顯然並非在非常突然的情況下發生，參與暴動的人數逾300人，規模很大，他們霸佔馬路，部分人身穿護甲頭盔，手執長形狀物體，也有人在縱火焚燒雜物，向警方投擲汽油彈，及用鐳射光束照向警方，為時約逾半個多小時，甚具威脅性。以此背景而言，已可判予5年或以上的監禁。
潘資深大律師多次強調，第一被告在案中，沒證據顯示他個人曾使用任何暴力。但如上訴法院在HKSAR v Tang Ho Yin [2019] 3 HKLRD 502指出，暴動罪的嚴重性不單在其個人的行為，而在其參與的整個群體所做的事：
“24. … the gravity of the offence of riot is not to be judged merely by what the individual did (or did not do), but by what the group to whose number he lent his support did…”
但無論如何，在本案中並無證據顯示第一被告為帶領或號召角色，可幸事件中亦無證供顯示造成嚴重的人命傷亡。考慮所有事實的背景及第一被告的情況而言，可予4年半監禁為量刑起點，再考慮到第一被告在此案其實承認了大部分控方案情，節省了不少法庭時間及資源，以及考慮到其所有個人背景及求情理由，經考慮後，本席認為適當地，就控罪一可減為4年監禁。第一被告經審訊後被定罪，並無其他可再作減刑之理由。因此，就此控罪，第一被告被判予4年監禁。而就次項無牌管有無線電通訊器具罪，考慮到他的背景及經濟狀況而言，予以罰款5,000元，可從他的擔保金扣除。
因此，各項控罪判刑如下：
第一項控罪，4年監禁；
第二項控罪，罰款5,000元，可從第一被告的擔保金扣除。
姚勳智
區域法院法官
DCCC 9/2020
[2021] HKDC 90
香港特別行政區
區域法院
刑事案件2020年第9號
—————-
香港特別行政區
訴
陳佐豪（第一被告人）
—————-
主審法官：區域法院法官姚勳智
日期： 2021年1月18日上午10時54分
出席人士：律政司檢控官黃恩寧小姐，代表香港特別行政區
潘熙資深大律師帶領黃宇逸先生，由法律援助署委派的鄭瑞泰律師事務所延聘，以及陳曉姸女士，由鄭瑞泰律師事務所以義助服務形式延聘，代表第一被告人
控罪： [1] 暴動（Riot）
[2] 無牌管有無線電通訊器具（Possession of apparatus for
radiocommunications without a licence）
—————-
判刑理由書
—————-
第一被告經審訊後被裁定一項「暴動罪」及一項「無牌管有無線電通訊器具罪」罪名成立，分別違反香港法例第245章《公安條例》第19（1）及（2）條，以及香港法例第106章《電訊條例》第8（1）（b）及20條。
2019年8月31日晚上從8時許至9時06分，在銅鑼灣記利佐治街1號一帶，亦即在軒尼詩道崇光百貨（SOGO）外，現場已有約300人左右聚集，霸佔馬路，大多身穿黑衫黑褲，部份人更身穿護甲頭盔，有人手執長形狀物體，亦有為數10人左右在縱火，焚燒雜物，亦有人向警方投擲汽油彈，也有鐳射光束照向警方，向警員辱罵，且不斷傳出巨大敲擊聲響，並高聲叫囂等等。警方則在約100米外軒尼詩道希慎廣場外築起防線，雙方對峙，其間警方已多次發出警告，表明他們是非法集結，警告他們離開，否則會作出拘捕及驅散。約在晚上8時58分左右警方再展示黑旗及作出相同警告，而在約2106時左右，暴徒於東角道與記利佐治街交界（即記利佐治街1號）地上的雜物縱火，警方正式向前推進，暴徒則沿記利佐利街向東或沿東角道向北方向逃走，警方追截並在百德新街拘捕了第一被告。
第一被告被發現與其他人士衝落珠城大廈之電梯逃走。但被截停，緊貼其後的夥伴則襲擊警員以助第一被告逃脫但失敗。第一被告當時身穿胸口護甲、雙臂護甲，穿黑衫黑褲黑鞋，更跌出無線電對講機，其辯稱只是急救員難以被接納。以當時的時間及第一被告身處的位置、其整全防衛的裝備、其逃走及其夥伴攻擊警方的情況，第一被告必然是曾參與上述暴動的人士。因此，暴動罪罪名成立。
此外，第一被告被制服時從其身上亦跌出一部對講機，經專家測試並發現其輸出及接收的範圍須至申領牌照的規定，但第一被告並未有相關牌照。因此，第二項無牌管有無線電通訊器具罪亦罪名成立。
第一被告現年25歲，過往在2013年曾因販運危險藥物罪被判入教導所。潘資深大律師求情指出，第一被告曾從事運輸行業，因此案而失去工作，他過往並無同類犯案紀錄，且已多年沒有犯事。他在2006年已參與急救課程及實踐所學，多名朋友及區議員的信件也指出，第一被告熱心助人，為人善良。其母親也指出，第一被告曾患有過度活躍症，後來更適應不了學校生活，她很是內疚，也因太激動而患上抑鬱症，第一被告亦因此很早輟學來幫補家計，非常孝順。第一被告自己的求情信更表明，明白自己犯下過錯，須承擔責任，現決心痛改前非，重新做人。
潘資深大律師亦指出，沒有證據指出第一被告曾作出任何暴力行動，身上也並無攻擊性武器，並非激進參與暴力的示威者，因此或可採納較低量刑起點。而就第二項控罪而言，考慮到被告的背景及並無工作，可望判予較低的罰款等等。
暴動罪是嚴重罪行，如香港特別行政區 訴 梁天琦 [2020] HKCA 275一案，上訴法庭指出，一般而言，暴動罪判刑的考慮因素包括：
（1） 暴動是即場突然發生，還是預先計劃的，若是後者，計劃周詳及精密的程度為何；
（2） 參與暴動人數多少；
（3） 暴動者所使用暴力的程度，包括有否使用武器，若有的話，是甚麼武器和數量；
（4） 暴動的規模，包括發生暴動的時間、所在之處、地點數目及範圍；
（5） 暴動歷時多久，包括暴動有否延長；是否經警方或其他公職人員重複警告後仍然進行；
（6） 暴動所造成的傷害：例如有否對財物造成任何損失或破壞，若有的話，其程度為何；是否有人受傷，及若有的話，傷者人數及傷勢為何；
（7） 暴動造成之威脅的嚴重性及逼近程度為何；
（8） 暴動對公眾造成滋擾的性質和程度；
（9） 暴動對社群關係的影響；
（10） 暴動對公共開支造成的負擔；
（11） 犯案者的角色及參與程度，如除自己有參與暴動外，有否安排、帶領、號召、煽動或鼓吹他人參與暴動；以及
（12） 犯案者在暴動發生期間，有沒有干犯其他罪行。
而因為每宗暴動罪行所涉及的背景和案情都有差異，判刑上要視乎每宗案件而定，其他案件判刑的指導性作用不大。
就本案而言，暴動顯然並非在非常突然的情況下發生，參與暴動的人數逾300人，規模很大，他們霸佔馬路，部分人身穿護甲頭盔，手執長形狀物體，也有人在縱火焚燒雜物，向警方投擲汽油彈，及用鐳射光束照向警方，為時約逾半個多小時，甚具威脅性。以此背景而言，已可判予5年或以上的監禁。
潘資深大律師多次強調，第一被告在案中，沒證據顯示他個人曾使用任何暴力。但如上訴法院在HKSAR v Tang Ho Yin [2019] 3 HKLRD 502指出，暴動罪的嚴重性不單在其個人的行為，而在其參與的整個群體所做的事：
“24. … the gravity of the offence of riot is not to be judged merely by what the individual did (or did not do), but by what the group to whose number he lent his support did…”
但無論如何，在本案中並無證據顯示第一被告為帶領或號召角色，可幸事件中亦無證供顯示造成嚴重的人命傷亡。考慮所有事實的背景及第一被告的情況而言，可予4年半監禁為量刑起點，再考慮到第一被告在此案其實承認了大部分控方案情，節省了不少法庭時間及資源，以及考慮到其所有個人背景及求情理由，經考慮後，本席認為適當地，就控罪一可減為4年監禁。第一被告經審訊後被定罪，並無其他可再作減刑之理由。因此，就此控罪，第一被告被判予4年監禁。而就次項無牌管有無線電通訊器具罪，考慮到他的背景及經濟狀況而言，予以罰款5,000元，可從他的擔保金扣除。
因此，各項控罪判刑如下：
第一項控罪，4年監禁；
第二項控罪，罰款5,000元，可從第一被告的擔保金扣除。
姚勳智
區域法院法官
DCCC 259/2020
祁士偉
區院
認罪
罪成
17
非法集結
入更生中心
11/10/2019
旺角
DCCC 259/2020
[2021] HKDC 234
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 259 OF 2020
———————-
HKSAR
v
Fong Chi-hung (D1)
Lam Chin-to (D2)
Chiu Ho-chun (D4)
———————-
Before: HH Judge Casewell
Date: 15 January 2021 at 11.18 am
Present: Mr Wayne Lee, PP of the Department of Justice, for HKSAR
Ms Fiona Nam Hoi-yan, instructed by Cedric & Co, assigned by DLA, for the 1st defendant
Mr Edward Poon Ting-bond, instructed by S C Ho & Co, assigned by DLA, for the 2nd defendant
Ms Adgie N K Chan, instructed by C & Y Lawyers, for the 4th defendant
Offence: (1) Unlawful assembly (非法集結)
(against all defendants)
(2) Resisting a police officer in the due execution of his duty(抗拒在正當執行職務的警務人員)(against D1 only)
(3) Possession of a prohibited weapon (管有違禁武器) (against D1 only)
(4) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D1 only)
(5) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D4 only)
(7) Possession of apparatus for radiocommunications without a licence
(在沒有領有牌照的情況下管有作無線電通訊之用的器具)
(against D1 only)
———————
Reasons for Sentence
———————
I am asked to consider a sentencing in respect of three defendants on this indictment today. These three defendants have initially pleaded guilty to a joint charge of unlawful assembly regarding an event on 10 November 2019. Two of the defendants, namely the 1st and 4th defendants, have also pleaded guilty to additional charges in respect of items found upon them at the time of their arrest.
The background to the offence is that and the facts that support the convictions of the defendants are that on the evening of 10 November 2019 a large group of persons had assembled in the area of Nathan Road and Shantung Street. Some 100 people were assembled in that area. This assembly caused police units to be dispatched to disperse those persons so assembled. The defendants were arrested during the dispersal operation.
In the areas where these persons assembled, an unlawful assembly took place. The people assembled there barricaded roads, occupied road carriageways, used laser-pointing devices against police conducting the dispersal operation.
Police arrested the 4th defendant in an area where a large group of people occupied roads and blocked those roads with miscellaneous items. The 1st and 2nd defendants were arrested in a large group of people clad in black and masked. The roadway was blocked with bricks and miscellaneous items were strewn upon the ground.
The 1st defendant was seen to hold a petrol bomb in his hand, which he discarded by the side of the road. The 1st defendant is also said to have resisted his arrest by hitting the facial shield of the arresting officer and lifting the officer up when he was being subdued, and those are the facts that support the 2nd charge against the 1st defendant.
In another direction in the same area, large numbers of people were gathered, dressed in black, holding umbrellas and shining laser pointers.
On arrest, a number of items were found on the defendants, particularly the 1st and 4th defendants. Some form the particulars in the charges faced by the defendant.
The 1st defendant was found to be in possession of a spring-loaded knife and that can be found in Charge 3, a charge of possession of a prohibited weapon, contrary to the section 4 of the Weapons Ordinance. The 1st defendant was also found to be in possession of a wireless microphone. That is reflected in Charge 7 against him, possession of apparatus for radiocommunications without a licence. He was also found to be in possession of the following additional items: plastic straps, a hammer, scissors, a crowbar and four petrol bombs, one of those being the petrol bomb earlier seen, with three additional ones under his custody and control, and these form the charge against the 1st defendant, Charge 4.
The 4th defendant was also searched and found in his rucksack and on his person were two petrol bombs, two lighters and a bottle of isopropyl alcohol, and that forms the basis of the 5th charge against the 4th defendant.
It is noteworthy that these events on 11 November took place during what is described by the Final Court of Appeal as the “sudden and severe deterioration of law and order in Hong Kong arising from protests and social unrest” during the period of September to November 2019. The Final Court of Appeal case that I am referring to is HKSAR v Kwok Wing Hang, which was the Court of Appeal’s decision 9 of 2020, and I refer to what was described as unchallenged evidence in that case, where it was described that the situation in Hong Kong deteriorated during October and November and was described as a “further escalation of violence and vandalism especially since the week of 11 November”, which would be shortly after these events that we are dealing with today, and what was particularly frequent was extensive road blockages with dangerous items placed on vehicular passageways and railway lines and it is even said that even petrol bombs and hard objects were hurled at moving vehicles and the like.
The Court of Final Appeal also noted the following phenomena at paragraph 91, the phenomena of what they describe as “black bloc” tactics, people concealing identity and thereby evading arrest and prosecution, and describe protestors using black clothing with little or no distinguishing features, and that is, in fact, included in the facts at paragraph 6 in this case.
Those are the basic facts that the court has to rely on in this case and show a serious and violent disorder taking place involving violence towards property.
The three defendants before me range in ages, but they all are people of clear records. The 1st defendant is aged 34, the 2nd defendant is aged 17, and the 4th defendant is now aged 26.
I have received mitigation from all the three defendants I am dealing with today. As I say, they all have the common feature of being people of hitherto clear record before they came to this court. They all have individual aspects of mitigation which they wish to put before the court. I will have to summarise those for the purposes of the sentencing process, but I have read all the documents contained in their mitigation bundles, including the letters of support and commendation from many people, and I note their contents.
I have also obtained reports which give me the backgrounds of all three defendants. Because the 2nd defendant was only aged 17, I have obtained additional reports on him to investigate a number of options as to sentencing that defendant.
I shall simply précis the 1st defendant’s position in this matter. He is aged 34, of clear record, coming to Hong Kong when he was 12 years old. He graduated with a Higher Diploma in Marketing and Media in 2011 and joined the Fire Services Department and been working as a fireman from that date until the suspension following his arrest on 10 November 2019. That means that he has had 10 years’ service in the Fire Services Department and was at one point in respect of an operation in 2017 awarded a commendation by the Director of Fire Services in recognition of his professionalism and perseverance in his mission. I have had the opportunity of reading a number of mitigation letters which commend the defendant to me from colleagues and superiors.
He is a father of two young children aged 2 and 1 and certainly at the time of his arrest was the sole breadwinner of his family and provided financial support to his parents.
The defendant in mitigation does not suggest to me the charges are not serious. He acknowledges the severity of the charges against him and I am told he understands a custodial sentence will be imposed because of the nature of the deterrent effect. He expresses remorse and has again expressed it to the probation officer who has interviewed him for the background report and would wish eventually on release from custody to serve society in some way again. He expresses regret for causing pain to his family.
In mitigation, I am asked to consider that the particular form of unlawful assembly in this case did not involve or cause bodily harm or damage to people. The defendant’s resistance to arrest was for a short time and, in respect of some of the charges, in respect of all of the petrol bombs, there was no evidence that they had been used, although there is evidence that the defendant had one petrol bomb in his hand during the course of the unlawful assembly, and this defendant asks for leniency.
As far as the 2nd defendant is concerned, he is, as I have already said, a young man. On his arrest, I am told that he suffered some knee injury, involving him being hospitalised for three days. He was 16 years and 1 month old at the time of the offence, with a clear record, studying in Form 6, a good record of conduct in school. This defendant has a particular skill. He is a footballer of a high level of competence and skill, particularly in the area of what is described as futsal, which is a — I think, believe is a Brazilian form of football, on a smaller pitch than regular football. There are a number of letters of commendation from the school social worker and his football coach and others. He is regretful and remorseful and hopes to study in future for a Bachelor of Arts in Physical Education.
The submission in respect of this defendant is that no specific acts of violence can be attributed to him. His conviction relies solely on his presence at the unlawful assembly. He appears to be dressed at the time in a style that suggests he has just come from football training, which is what was said in mitigation. And, besides his presence at the unlawful assembly, no other, as it were, tools or items such as offensive weapons were found on him.
A number of reports have been obtained on this defendant. They reflect the mitigation that has been put forward. The defendant being of the age he is, 17 years old, the court also has other options for sentencing besides the normal range of sentences of imprisonment and community service orders and probation orders. Also, the defendant is eligible for detention in the facilities run by the Correctional Services Department for training of young people, which is detention centre, rehabilitation centre or training centre. I am told from the report from the Correctional Services Department there are places available for him and he could be sentenced to any one of those options.
I deal with the 4th defendant. The 4th defendant also has expressed his remorse to the court and also in the course of interviews by the Probation Services. He is now aged 26, born and brought up in Hong Kong. He studied in City University and worked as a part-time bank staff at the time; lives with his parents and younger sister, and there are health issues in respect of his parents which are dealt with in the background report. He is said as coming from a close-knit family and has a previous clear record.
There are a number of mitigation letters in respect of the defendant.
In the defendant’s mitigation, he of course admits his presence at the site of the unlawful assembly and the possession of the items found upon him. He suggests in mitigation that the rubbing alcohol found on him was to use to clean wounds and that the petrol bombs found on him had been given to him by other younger people at the assembly and he was, as it were, holding them for them, but at the time when he was intercepted he had not disposed of them.
As far as the unlawful assembly is concerned, it is said that the defendant, although present, there is on the facts no evidence indicating he performed violent acts. And, finally, the defendant shows a genuine remorse, comes from a decent character and will not reoffend, and asks for leniency in respect of those matters. I note, for this defendant, he has also been detained for 14 months at this point.
Now I turn to the approach to sentencing. Of course, the case that courts must in sentencing approach in a way that is consistent and achieve consistency in the outcomes. The charges that these defendants face do not have a — what I call a directly applicable guideline but there are guidelines available.
I will turn first to the offence of unlawful assembly, contrary to 18(1) of the Public Order Ordinance, which all defendants face. The factual basis for this, agreed by all three defendants, is that they all took place in an unlawful assembly at the area, where a large number of persons assembled involving acts of barricading and occupying road carriages, including the use of laser beams against police, which amounted to conduct of disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear the persons so assembled would a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace. That is the agreed fact.
It must be noted that unlawful assemblies cover a wide range of circumstances, but these facts, as agreed by the defendants, establish this was a case of violent civil disorder characterised by violence towards the property, whether manifested as blockage of throughways and roadways, and as such is a serious form of unlawful assembly, and also took place during the course of a period of serious social disorder in Hong Kong.
The general approach to sentencing in cases of unlawful assembly has been dealt with by both the Court of Appeal and Final Court of Appeal in Hong Kong. The case is Secretary for Justice v Wong Chi Fung & Ors CAAR No.4 of 2016. The relevant part of that judgment is where the Court of Appeal at page 77:
“(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence, and the sentencing factor of rehabilitation.
(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”
At paragraph 153 they say:
“For serious cases, the main purpose of the sentence is to punish and deter. So the overall consideration of the court should be inclined towards imposing an immediate custodial sentence. Unless there are very exceptional circumstances, and these circumstances by definition should be rare, sentences other than an immediate custodial sentence, including suspended sentences and community services, are not appropriate.”
That is the words of the Court of Appeal, and that is the approach that I must take in respect of the sentencing on Charge 1 in this case.
Both the 1st and 4th defendants face charges which particularise and criminalise their possession of various items. Of particular relevance are the petrol bombs, otherwise described as “Molotov cocktails”. This is charged under section 62A of the Crimes Ordinance, Cap 200. That particular section has a maximum sentence of 10 years’ imprisonment.
I note there are no guideline sentences from the Court of Appeal in respect of this particular case or charge. The Court of Appeal has recently considered a starting point for sentence, where petrol bombs are used and ignited and thrown under the charge — and those will be found under charges of arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA 1087, and those charges involved offences of arson where there was recklessness as to endangerment of life. So that authority is not directly relevant to the facts of this case or the charge in this case, which alleges an intent to damage property.
The overview of sentencing in HKSAR v Yiu Siu Hong suggests that, for those offences, depending on the circumstances of aggravation or mitigation, a starting point in the region of 5 to 6 years is appropriate. I have been referred to some concomitant District Court cases under section 62A, where starting points for sentence have ranged between 3½ to 4 years’ imprisonment for possession of these forms of what we are in effect explosive devices.
An important factor in this case when assessing the starting point for sentence under the charge under section 62A of the Crimes Ordinance is that these items were possessed in a public gathering, especially a serious public disorder. Possession of these items does reflect a major escalation of risk and a major escalation of danger to others.
I take from this summary that simple possession of a petrol bomb at a violent disorder type of unlawful assembly gathering will lead to a starting point for sentence which ranges between 3 to 4½ years’ imprisonment, subject to various mitigating or aggravating factors in the circumstances of commission.
I also note, as far as the other offences that are charged in this indictment, the 1st defendant faces a charge of possession of prohibited weapon, where a maximum sentence of up to 3 years could be imposed. Under Charge 7, possession of the radiocommunications without a licence, a sentence of up to 5 years’ imprisonment can be imposed. Under Charge 2, resisting arrest, a sentence of up to 6 months’ imprisonment can be imposed.
Having dealt with that résumé of the sentencing powers of the court, I now deal with the individual sentences that should be imposed in respect of the individual defendants.
As far as the 1st defendant is concerned, I do reiterate that I note the mitigation advanced in his case and the commendations for his previous service and the good impression made on his colleagues. But I also have to bear in mind that the purposes of sentencing, in at least the 1st and 4th charges the defendant faces, the court has to give weight to punishment and deterrence, and, when that weight is given, very little or no weight can be given as to defendant’s motives or reasons for committing the offence and his personal circumstances.
Naturally, the conviction and sentencing of this case will mean the defendant will have to be separated from his family and also will find that a career in public service is no longer available to him. These are substantial punishments against the 1st defendant before one turns to whatever the prison sentence must be.
As I said, he is convicted in respect of Charge 1 and 4, where the primary purpose of sentence is deterrence. Accordingly, his personal circumstances and motivations are of small relevance to sentencing. The defendant’s past commendations and public service must be set against the reputational damage incurred by his involvement in this disorder.
Defendant is naturally entitled to a full one-third discount from the starting points for sentences that I will indicate.
As far as Charge 1 is concerned, that is a serious violent disorder. Defendant was present. He was armed with a knife and four petrol bombs at the time.
The Charge 1 is to a certain extent mirrored in its considerations with Charge 4, as far as the defendant is concerned. In determining the defendant’s sentence on Charge 4, I bear in mind that, firstly, he was in possession of the four petrol bombs set out in the charge. His possession of the radio telecommunications devices suggest that he was involved in some co-ordinating role as well. Also, other serious weapons were seized at the time, including a hammer, crowbar and the knife.
Finally, in respect of the defendant’s possession of the petrol bomb which was seen to be in his hand, that would reflect a serious escalation of the unlawful assembly if the defendant had chosen to find a way of igniting the petrol bomb. The fact that he had it in his hand is certainly more serious than it being placed in his rucksack.
On the 1st charge, in respect of the 1st defendant, of an unlawful assembly, I will take a starting point at 30 months’ imprisonment, reduce that to 20 months’ imprisonment for his plea of guilty.
On the 2nd charge of resisting a police officer, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for his plea of guilty.
On the 3rd charge of possession of the prohibited weapon, again take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for plea of guilty.
On the 4th charge of possession of a thing with intent to damage property, I will take a starting point at 48 months’ imprisonment, which I will reduce to 32 months’ imprisonment for the defendant’s plea of guilty.
On the 7th charge, possession of apparatus for radiocommunications without a licence, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.
I must consider what appropriate overall total sentence should be for this defendant. There is of course a number of overlaps between the various charges, particularly the 1st and 4th charges. Having regard to the factors I have already set out, I shall order the 1st, 4th and 7th charges should be served concurrently to each other and the 2nd and 3rd charges should be served concurrently to each other but consecutively to the 1st, 4th and 7th charges. That would give an overall total of 34 months’ imprisonment for the 1st defendant.
I shall deal now with the 4th defendant because the considerations in respect of his offence are similar to those of the 1st defendant. Then I will return to the 2nd defendant at the end.
The 4th defendant, the calculation of the sentences against him is similar in a way to the 1st defendant and I will take the same starting point for sentence on the unlawful assembly. He was present at a serious disorder in possession of petrol bombs, two petrol bombs. So I will take a starting point of 30 months’ imprisonment, reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.
He also faces the 5th charge, possessing things with intent to damage property, contrary to section 62(a) of the Crimes Ordinance. I do take account of the defendant’s account of how he came to be in possession of those two petrol bombs, but the petrol bombs were possessed with the capacity to light them and the defendant has admitted that he possessed them intending without legal excuse to use the said things to damage property, so I must bear that in mind when assessing the appropriate starting point for sentence. Again, the possession of petrol bombs at an unlawful assembly represents substantial escalation of the danger and risk.
And, finally, this defendant was dressed in a “black bloc” fashion, which would be an aggravating factor for him.
I will take a starting point in respect of this defendant of 3½ years on the 5th charge, which is 42 months, reduced to 28 months’ imprisonment for his plea of guilty. Sentences on Charge 1 and 5 will be served concurrently. Total of 28 months’ imprisonment.
The 2nd defendant. Again, I have set out the sentencing factors in respect of the 2nd defendant and a range of sentences are available to him, bearing in mind he is 17 years old. The authority dealing with the unlawful assembly, as I have already iterated, sets out that serious unlawful assembly – so this must fall into the category of a serious unlawful assembly – the object of the court is to punish and deter and the court should be inclined to impose an immediate custodial sentence.
Having regard to the sentences already passed on the 1st and 4th defendants in respect of this 1st charge, clearly an immediate custodial sentence is the appropriate sentence to be imposed and the court could only depart from that if there are exceptional circumstances, which are rare.
When determining this defendant’s sentence, I do bear in mind the absence of aggravating factors such as the defendant being in possession of other items or being seen to be actively participating in the violence. But what must be noted about this particular unlawful assembly is, as far as the facts that I have before me show, it always was a violent disorder and so the 2nd defendant must have joined this violent disorder knowing that that was its character.
I consider that I am bound by the authorities before me to consider this as a case where a sentence of imprisonment is appropriate for any person of the defendant’s age. As far as the recommendations contained in the various reports I have, the defendant is actually not recommended for a community service order. It is thought that a probation order would be more appropriate for him. But, having regard to the appellate direction, a probation order would be seen to be too lenient to disposal, even for a defendant of this age.
This would leave me with the only custodial options being an immediate sentence of imprisonment or the three forms of training that would be offered by the Correctional Services Department, for which the defendant is suitable for and for which there are places for him. I am told by the Correctional Services Department that this defendant is more suited to a detention centre order than any other of the orders that they can offer to this defendant.
In sentencing this defendant, I have already said that I bear in mind his youth, his good character beforehand. He has become involved in an offence for which a sentence of imprisonment must be imposed. Because of his age, I can find an alternative to that and the alternative that I will direct for this defendant is, in respect of the charge that he faces, Charge 1, he be sentenced to a rehabilitation centre, which will provide a regime which may assist in a more speedy release from custody. That is the order I will make: a rehabilitation centre on Charge 1 for the 2nd defendant.
(T Casewell)
District Judge
DCCC 259/2020
祁士偉
區院
認罪
罪成
銀行職員
非法集結
判囚
20
11/10/2019
旺角
DCCC 259/2020
[2021] HKDC 234
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 259 OF 2020
———————-
HKSAR
v
Fong Chi-hung (D1)
Lam Chin-to (D2)
Chiu Ho-chun (D4)
———————-
Before: HH Judge Casewell
Date: 15 January 2021 at 11.18 am
Present: Mr Wayne Lee, PP of the Department of Justice, for HKSAR
Ms Fiona Nam Hoi-yan, instructed by Cedric & Co, assigned by DLA, for the 1st defendant
Mr Edward Poon Ting-bond, instructed by S C Ho & Co, assigned by DLA, for the 2nd defendant
Ms Adgie N K Chan, instructed by C & Y Lawyers, for the 4th defendant
Offence: (1) Unlawful assembly (非法集結)
(against all defendants)
(2) Resisting a police officer in the due execution of his duty(抗拒在正當執行職務的警務人員)(against D1 only)
(3) Possession of a prohibited weapon (管有違禁武器) (against D1 only)
(4) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D1 only)
(5) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D4 only)
(7) Possession of apparatus for radiocommunications without a licence
(在沒有領有牌照的情況下管有作無線電通訊之用的器具)
(against D1 only)
———————
Reasons for Sentence
———————
I am asked to consider a sentencing in respect of three defendants on this indictment today. These three defendants have initially pleaded guilty to a joint charge of unlawful assembly regarding an event on 10 November 2019. Two of the defendants, namely the 1st and 4th defendants, have also pleaded guilty to additional charges in respect of items found upon them at the time of their arrest.
The background to the offence is that and the facts that support the convictions of the defendants are that on the evening of 10 November 2019 a large group of persons had assembled in the area of Nathan Road and Shantung Street. Some 100 people were assembled in that area. This assembly caused police units to be dispatched to disperse those persons so assembled. The defendants were arrested during the dispersal operation.
In the areas where these persons assembled, an unlawful assembly took place. The people assembled there barricaded roads, occupied road carriageways, used laser-pointing devices against police conducting the dispersal operation.
Police arrested the 4th defendant in an area where a large group of people occupied roads and blocked those roads with miscellaneous items. The 1st and 2nd defendants were arrested in a large group of people clad in black and masked. The roadway was blocked with bricks and miscellaneous items were strewn upon the ground.
The 1st defendant was seen to hold a petrol bomb in his hand, which he discarded by the side of the road. The 1st defendant is also said to have resisted his arrest by hitting the facial shield of the arresting officer and lifting the officer up when he was being subdued, and those are the facts that support the 2nd charge against the 1st defendant.
In another direction in the same area, large numbers of people were gathered, dressed in black, holding umbrellas and shining laser pointers.
On arrest, a number of items were found on the defendants, particularly the 1st and 4th defendants. Some form the particulars in the charges faced by the defendant.
The 1st defendant was found to be in possession of a spring-loaded knife and that can be found in Charge 3, a charge of possession of a prohibited weapon, contrary to the section 4 of the Weapons Ordinance. The 1st defendant was also found to be in possession of a wireless microphone. That is reflected in Charge 7 against him, possession of apparatus for radiocommunications without a licence. He was also found to be in possession of the following additional items: plastic straps, a hammer, scissors, a crowbar and four petrol bombs, one of those being the petrol bomb earlier seen, with three additional ones under his custody and control, and these form the charge against the 1st defendant, Charge 4.
The 4th defendant was also searched and found in his rucksack and on his person were two petrol bombs, two lighters and a bottle of isopropyl alcohol, and that forms the basis of the 5th charge against the 4th defendant.
It is noteworthy that these events on 11 November took place during what is described by the Final Court of Appeal as the “sudden and severe deterioration of law and order in Hong Kong arising from protests and social unrest” during the period of September to November 2019. The Final Court of Appeal case that I am referring to is HKSAR v Kwok Wing Hang, which was the Court of Appeal’s decision 9 of 2020, and I refer to what was described as unchallenged evidence in that case, where it was described that the situation in Hong Kong deteriorated during October and November and was described as a “further escalation of violence and vandalism especially since the week of 11 November”, which would be shortly after these events that we are dealing with today, and what was particularly frequent was extensive road blockages with dangerous items placed on vehicular passageways and railway lines and it is even said that even petrol bombs and hard objects were hurled at moving vehicles and the like.
The Court of Final Appeal also noted the following phenomena at paragraph 91, the phenomena of what they describe as “black bloc” tactics, people concealing identity and thereby evading arrest and prosecution, and describe protestors using black clothing with little or no distinguishing features, and that is, in fact, included in the facts at paragraph 6 in this case.
Those are the basic facts that the court has to rely on in this case and show a serious and violent disorder taking place involving violence towards property.
The three defendants before me range in ages, but they all are people of clear records. The 1st defendant is aged 34, the 2nd defendant is aged 17, and the 4th defendant is now aged 26.
I have received mitigation from all the three defendants I am dealing with today. As I say, they all have the common feature of being people of hitherto clear record before they came to this court. They all have individual aspects of mitigation which they wish to put before the court. I will have to summarise those for the purposes of the sentencing process, but I have read all the documents contained in their mitigation bundles, including the letters of support and commendation from many people, and I note their contents.
I have also obtained reports which give me the backgrounds of all three defendants. Because the 2nd defendant was only aged 17, I have obtained additional reports on him to investigate a number of options as to sentencing that defendant.
I shall simply précis the 1st defendant’s position in this matter. He is aged 34, of clear record, coming to Hong Kong when he was 12 years old. He graduated with a Higher Diploma in Marketing and Media in 2011 and joined the Fire Services Department and been working as a fireman from that date until the suspension following his arrest on 10 November 2019. That means that he has had 10 years’ service in the Fire Services Department and was at one point in respect of an operation in 2017 awarded a commendation by the Director of Fire Services in recognition of his professionalism and perseverance in his mission. I have had the opportunity of reading a number of mitigation letters which commend the defendant to me from colleagues and superiors.
He is a father of two young children aged 2 and 1 and certainly at the time of his arrest was the sole breadwinner of his family and provided financial support to his parents.
The defendant in mitigation does not suggest to me the charges are not serious. He acknowledges the severity of the charges against him and I am told he understands a custodial sentence will be imposed because of the nature of the deterrent effect. He expresses remorse and has again expressed it to the probation officer who has interviewed him for the background report and would wish eventually on release from custody to serve society in some way again. He expresses regret for causing pain to his family.
In mitigation, I am asked to consider that the particular form of unlawful assembly in this case did not involve or cause bodily harm or damage to people. The defendant’s resistance to arrest was for a short time and, in respect of some of the charges, in respect of all of the petrol bombs, there was no evidence that they had been used, although there is evidence that the defendant had one petrol bomb in his hand during the course of the unlawful assembly, and this defendant asks for leniency.
As far as the 2nd defendant is concerned, he is, as I have already said, a young man. On his arrest, I am told that he suffered some knee injury, involving him being hospitalised for three days. He was 16 years and 1 month old at the time of the offence, with a clear record, studying in Form 6, a good record of conduct in school. This defendant has a particular skill. He is a footballer of a high level of competence and skill, particularly in the area of what is described as futsal, which is a — I think, believe is a Brazilian form of football, on a smaller pitch than regular football. There are a number of letters of commendation from the school social worker and his football coach and others. He is regretful and remorseful and hopes to study in future for a Bachelor of Arts in Physical Education.
The submission in respect of this defendant is that no specific acts of violence can be attributed to him. His conviction relies solely on his presence at the unlawful assembly. He appears to be dressed at the time in a style that suggests he has just come from football training, which is what was said in mitigation. And, besides his presence at the unlawful assembly, no other, as it were, tools or items such as offensive weapons were found on him.
A number of reports have been obtained on this defendant. They reflect the mitigation that has been put forward. The defendant being of the age he is, 17 years old, the court also has other options for sentencing besides the normal range of sentences of imprisonment and community service orders and probation orders. Also, the defendant is eligible for detention in the facilities run by the Correctional Services Department for training of young people, which is detention centre, rehabilitation centre or training centre. I am told from the report from the Correctional Services Department there are places available for him and he could be sentenced to any one of those options.
I deal with the 4th defendant. The 4th defendant also has expressed his remorse to the court and also in the course of interviews by the Probation Services. He is now aged 26, born and brought up in Hong Kong. He studied in City University and worked as a part-time bank staff at the time; lives with his parents and younger sister, and there are health issues in respect of his parents which are dealt with in the background report. He is said as coming from a close-knit family and has a previous clear record.
There are a number of mitigation letters in respect of the defendant.
In the defendant’s mitigation, he of course admits his presence at the site of the unlawful assembly and the possession of the items found upon him. He suggests in mitigation that the rubbing alcohol found on him was to use to clean wounds and that the petrol bombs found on him had been given to him by other younger people at the assembly and he was, as it were, holding them for them, but at the time when he was intercepted he had not disposed of them.
As far as the unlawful assembly is concerned, it is said that the defendant, although present, there is on the facts no evidence indicating he performed violent acts. And, finally, the defendant shows a genuine remorse, comes from a decent character and will not reoffend, and asks for leniency in respect of those matters. I note, for this defendant, he has also been detained for 14 months at this point.
Now I turn to the approach to sentencing. Of course, the case that courts must in sentencing approach in a way that is consistent and achieve consistency in the outcomes. The charges that these defendants face do not have a — what I call a directly applicable guideline but there are guidelines available.
I will turn first to the offence of unlawful assembly, contrary to 18(1) of the Public Order Ordinance, which all defendants face. The factual basis for this, agreed by all three defendants, is that they all took place in an unlawful assembly at the area, where a large number of persons assembled involving acts of barricading and occupying road carriages, including the use of laser beams against police, which amounted to conduct of disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear the persons so assembled would a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace. That is the agreed fact.
It must be noted that unlawful assemblies cover a wide range of circumstances, but these facts, as agreed by the defendants, establish this was a case of violent civil disorder characterised by violence towards the property, whether manifested as blockage of throughways and roadways, and as such is a serious form of unlawful assembly, and also took place during the course of a period of serious social disorder in Hong Kong.
The general approach to sentencing in cases of unlawful assembly has been dealt with by both the Court of Appeal and Final Court of Appeal in Hong Kong. The case is Secretary for Justice v Wong Chi Fung & Ors CAAR No.4 of 2016. The relevant part of that judgment is where the Court of Appeal at page 77:
“(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence, and the sentencing factor of rehabilitation.
(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”
At paragraph 153 they say:
“For serious cases, the main purpose of the sentence is to punish and deter. So the overall consideration of the court should be inclined towards imposing an immediate custodial sentence. Unless there are very exceptional circumstances, and these circumstances by definition should be rare, sentences other than an immediate custodial sentence, including suspended sentences and community services, are not appropriate.”
That is the words of the Court of Appeal, and that is the approach that I must take in respect of the sentencing on Charge 1 in this case.
Both the 1st and 4th defendants face charges which particularise and criminalise their possession of various items. Of particular relevance are the petrol bombs, otherwise described as “Molotov cocktails”. This is charged under section 62A of the Crimes Ordinance, Cap 200. That particular section has a maximum sentence of 10 years’ imprisonment.
I note there are no guideline sentences from the Court of Appeal in respect of this particular case or charge. The Court of Appeal has recently considered a starting point for sentence, where petrol bombs are used and ignited and thrown under the charge — and those will be found under charges of arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA 1087, and those charges involved offences of arson where there was recklessness as to endangerment of life. So that authority is not directly relevant to the facts of this case or the charge in this case, which alleges an intent to damage property.
The overview of sentencing in HKSAR v Yiu Siu Hong suggests that, for those offences, depending on the circumstances of aggravation or mitigation, a starting point in the region of 5 to 6 years is appropriate. I have been referred to some concomitant District Court cases under section 62A, where starting points for sentence have ranged between 3½ to 4 years’ imprisonment for possession of these forms of what we are in effect explosive devices.
An important factor in this case when assessing the starting point for sentence under the charge under section 62A of the Crimes Ordinance is that these items were possessed in a public gathering, especially a serious public disorder. Possession of these items does reflect a major escalation of risk and a major escalation of danger to others.
I take from this summary that simple possession of a petrol bomb at a violent disorder type of unlawful assembly gathering will lead to a starting point for sentence which ranges between 3 to 4½ years’ imprisonment, subject to various mitigating or aggravating factors in the circumstances of commission.
I also note, as far as the other offences that are charged in this indictment, the 1st defendant faces a charge of possession of prohibited weapon, where a maximum sentence of up to 3 years could be imposed. Under Charge 7, possession of the radiocommunications without a licence, a sentence of up to 5 years’ imprisonment can be imposed. Under Charge 2, resisting arrest, a sentence of up to 6 months’ imprisonment can be imposed.
Having dealt with that résumé of the sentencing powers of the court, I now deal with the individual sentences that should be imposed in respect of the individual defendants.
As far as the 1st defendant is concerned, I do reiterate that I note the mitigation advanced in his case and the commendations for his previous service and the good impression made on his colleagues. But I also have to bear in mind that the purposes of sentencing, in at least the 1st and 4th charges the defendant faces, the court has to give weight to punishment and deterrence, and, when that weight is given, very little or no weight can be given as to defendant’s motives or reasons for committing the offence and his personal circumstances.
Naturally, the conviction and sentencing of this case will mean the defendant will have to be separated from his family and also will find that a career in public service is no longer available to him. These are substantial punishments against the 1st defendant before one turns to whatever the prison sentence must be.
As I said, he is convicted in respect of Charge 1 and 4, where the primary purpose of sentence is deterrence. Accordingly, his personal circumstances and motivations are of small relevance to sentencing. The defendant’s past commendations and public service must be set against the reputational damage incurred by his involvement in this disorder.
Defendant is naturally entitled to a full one-third discount from the starting points for sentences that I will indicate.
As far as Charge 1 is concerned, that is a serious violent disorder. Defendant was present. He was armed with a knife and four petrol bombs at the time.
The Charge 1 is to a certain extent mirrored in its considerations with Charge 4, as far as the defendant is concerned. In determining the defendant’s sentence on Charge 4, I bear in mind that, firstly, he was in possession of the four petrol bombs set out in the charge. His possession of the radio telecommunications devices suggest that he was involved in some co-ordinating role as well. Also, other serious weapons were seized at the time, including a hammer, crowbar and the knife.
Finally, in respect of the defendant’s possession of the petrol bomb which was seen to be in his hand, that would reflect a serious escalation of the unlawful assembly if the defendant had chosen to find a way of igniting the petrol bomb. The fact that he had it in his hand is certainly more serious than it being placed in his rucksack.
On the 1st charge, in respect of the 1st defendant, of an unlawful assembly, I will take a starting point at 30 months’ imprisonment, reduce that to 20 months’ imprisonment for his plea of guilty.
On the 2nd charge of resisting a police officer, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for his plea of guilty.
On the 3rd charge of possession of the prohibited weapon, again take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for plea of guilty.
On the 4th charge of possession of a thing with intent to damage property, I will take a starting point at 48 months’ imprisonment, which I will reduce to 32 months’ imprisonment for the defendant’s plea of guilty.
On the 7th charge, possession of apparatus for radiocommunications without a licence, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.
I must consider what appropriate overall total sentence should be for this defendant. There is of course a number of overlaps between the various charges, particularly the 1st and 4th charges. Having regard to the factors I have already set out, I shall order the 1st, 4th and 7th charges should be served concurrently to each other and the 2nd and 3rd charges should be served concurrently to each other but consecutively to the 1st, 4th and 7th charges. That would give an overall total of 34 months’ imprisonment for the 1st defendant.
I shall deal now with the 4th defendant because the considerations in respect of his offence are similar to those of the 1st defendant. Then I will return to the 2nd defendant at the end.
The 4th defendant, the calculation of the sentences against him is similar in a way to the 1st defendant and I will take the same starting point for sentence on the unlawful assembly. He was present at a serious disorder in possession of petrol bombs, two petrol bombs. So I will take a starting point of 30 months’ imprisonment, reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.
He also faces the 5th charge, possessing things with intent to damage property, contrary to section 62(a) of the Crimes Ordinance. I do take account of the defendant’s account of how he came to be in possession of those two petrol bombs, but the petrol bombs were possessed with the capacity to light them and the defendant has admitted that he possessed them intending without legal excuse to use the said things to damage property, so I must bear that in mind when assessing the appropriate starting point for sentence. Again, the possession of petrol bombs at an unlawful assembly represents substantial escalation of the danger and risk.
And, finally, this defendant was dressed in a “black bloc” fashion, which would be an aggravating factor for him.
I will take a starting point in respect of this defendant of 3½ years on the 5th charge, which is 42 months, reduced to 28 months’ imprisonment for his plea of guilty. Sentences on Charge 1 and 5 will be served concurrently. Total of 28 months’ imprisonment.
The 2nd defendant. Again, I have set out the sentencing factors in respect of the 2nd defendant and a range of sentences are available to him, bearing in mind he is 17 years old. The authority dealing with the unlawful assembly, as I have already iterated, sets out that serious unlawful assembly – so this must fall into the category of a serious unlawful assembly – the object of the court is to punish and deter and the court should be inclined to impose an immediate custodial sentence.
Having regard to the sentences already passed on the 1st and 4th defendants in respect of this 1st charge, clearly an immediate custodial sentence is the appropriate sentence to be imposed and the court could only depart from that if there are exceptional circumstances, which are rare.
When determining this defendant’s sentence, I do bear in mind the absence of aggravating factors such as the defendant being in possession of other items or being seen to be actively participating in the violence. But what must be noted about this particular unlawful assembly is, as far as the facts that I have before me show, it always was a violent disorder and so the 2nd defendant must have joined this violent disorder knowing that that was its character.
I consider that I am bound by the authorities before me to consider this as a case where a sentence of imprisonment is appropriate for any person of the defendant’s age. As far as the recommendations contained in the various reports I have, the defendant is actually not recommended for a community service order. It is thought that a probation order would be more appropriate for him. But, having regard to the appellate direction, a probation order would be seen to be too lenient to disposal, even for a defendant of this age.
This would leave me with the only custodial options being an immediate sentence of imprisonment or the three forms of training that would be offered by the Correctional Services Department, for which the defendant is suitable for and for which there are places for him. I am told by the Correctional Services Department that this defendant is more suited to a detention centre order than any other of the orders that they can offer to this defendant.
In sentencing this defendant, I have already said that I bear in mind his youth, his good character beforehand. He has become involved in an offence for which a sentence of imprisonment must be imposed. Because of his age, I can find an alternative to that and the alternative that I will direct for this defendant is, in respect of the charge that he faces, Charge 1, he be sentenced to a rehabilitation centre, which will provide a regime which may assist in a more speedy release from custody. That is the order I will make: a rehabilitation centre on Charge 1 for the 2nd defendant.
(T Casewell)
District Judge
DCCC 259/2020
祁士偉
區院
認罪
罪成
銀行職員
管有適合作非法用途的工具
汽油彈、火機
判囚
28
11/10/2019
旺角
DCCC 259/2020
[2021] HKDC 234
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 259 OF 2020
———————-
HKSAR
v
Fong Chi-hung (D1)
Lam Chin-to (D2)
Chiu Ho-chun (D4)
———————-
Before: HH Judge Casewell
Date: 15 January 2021 at 11.18 am
Present: Mr Wayne Lee, PP of the Department of Justice, for HKSAR
Ms Fiona Nam Hoi-yan, instructed by Cedric & Co, assigned by DLA, for the 1st defendant
Mr Edward Poon Ting-bond, instructed by S C Ho & Co, assigned by DLA, for the 2nd defendant
Ms Adgie N K Chan, instructed by C & Y Lawyers, for the 4th defendant
Offence: (1) Unlawful assembly (非法集結)
(against all defendants)
(2) Resisting a police officer in the due execution of his duty(抗拒在正當執行職務的警務人員)(against D1 only)
(3) Possession of a prohibited weapon (管有違禁武器) (against D1 only)
(4) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D1 only)
(5) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D4 only)
(7) Possession of apparatus for radiocommunications without a licence
(在沒有領有牌照的情況下管有作無線電通訊之用的器具)
(against D1 only)
———————
Reasons for Sentence
———————
I am asked to consider a sentencing in respect of three defendants on this indictment today. These three defendants have initially pleaded guilty to a joint charge of unlawful assembly regarding an event on 10 November 2019. Two of the defendants, namely the 1st and 4th defendants, have also pleaded guilty to additional charges in respect of items found upon them at the time of their arrest.
The background to the offence is that and the facts that support the convictions of the defendants are that on the evening of 10 November 2019 a large group of persons had assembled in the area of Nathan Road and Shantung Street. Some 100 people were assembled in that area. This assembly caused police units to be dispatched to disperse those persons so assembled. The defendants were arrested during the dispersal operation.
In the areas where these persons assembled, an unlawful assembly took place. The people assembled there barricaded roads, occupied road carriageways, used laser-pointing devices against police conducting the dispersal operation.
Police arrested the 4th defendant in an area where a large group of people occupied roads and blocked those roads with miscellaneous items. The 1st and 2nd defendants were arrested in a large group of people clad in black and masked. The roadway was blocked with bricks and miscellaneous items were strewn upon the ground.
The 1st defendant was seen to hold a petrol bomb in his hand, which he discarded by the side of the road. The 1st defendant is also said to have resisted his arrest by hitting the facial shield of the arresting officer and lifting the officer up when he was being subdued, and those are the facts that support the 2nd charge against the 1st defendant.
In another direction in the same area, large numbers of people were gathered, dressed in black, holding umbrellas and shining laser pointers.
On arrest, a number of items were found on the defendants, particularly the 1st and 4th defendants. Some form the particulars in the charges faced by the defendant.
The 1st defendant was found to be in possession of a spring-loaded knife and that can be found in Charge 3, a charge of possession of a prohibited weapon, contrary to the section 4 of the Weapons Ordinance. The 1st defendant was also found to be in possession of a wireless microphone. That is reflected in Charge 7 against him, possession of apparatus for radiocommunications without a licence. He was also found to be in possession of the following additional items: plastic straps, a hammer, scissors, a crowbar and four petrol bombs, one of those being the petrol bomb earlier seen, with three additional ones under his custody and control, and these form the charge against the 1st defendant, Charge 4.
The 4th defendant was also searched and found in his rucksack and on his person were two petrol bombs, two lighters and a bottle of isopropyl alcohol, and that forms the basis of the 5th charge against the 4th defendant.
It is noteworthy that these events on 11 November took place during what is described by the Final Court of Appeal as the “sudden and severe deterioration of law and order in Hong Kong arising from protests and social unrest” during the period of September to November 2019. The Final Court of Appeal case that I am referring to is HKSAR v Kwok Wing Hang, which was the Court of Appeal’s decision 9 of 2020, and I refer to what was described as unchallenged evidence in that case, where it was described that the situation in Hong Kong deteriorated during October and November and was described as a “further escalation of violence and vandalism especially since the week of 11 November”, which would be shortly after these events that we are dealing with today, and what was particularly frequent was extensive road blockages with dangerous items placed on vehicular passageways and railway lines and it is even said that even petrol bombs and hard objects were hurled at moving vehicles and the like.
The Court of Final Appeal also noted the following phenomena at paragraph 91, the phenomena of what they describe as “black bloc” tactics, people concealing identity and thereby evading arrest and prosecution, and describe protestors using black clothing with little or no distinguishing features, and that is, in fact, included in the facts at paragraph 6 in this case.
Those are the basic facts that the court has to rely on in this case and show a serious and violent disorder taking place involving violence towards property.
The three defendants before me range in ages, but they all are people of clear records. The 1st defendant is aged 34, the 2nd defendant is aged 17, and the 4th defendant is now aged 26.
I have received mitigation from all the three defendants I am dealing with today. As I say, they all have the common feature of being people of hitherto clear record before they came to this court. They all have individual aspects of mitigation which they wish to put before the court. I will have to summarise those for the purposes of the sentencing process, but I have read all the documents contained in their mitigation bundles, including the letters of support and commendation from many people, and I note their contents.
I have also obtained reports which give me the backgrounds of all three defendants. Because the 2nd defendant was only aged 17, I have obtained additional reports on him to investigate a number of options as to sentencing that defendant.
I shall simply précis the 1st defendant’s position in this matter. He is aged 34, of clear record, coming to Hong Kong when he was 12 years old. He graduated with a Higher Diploma in Marketing and Media in 2011 and joined the Fire Services Department and been working as a fireman from that date until the suspension following his arrest on 10 November 2019. That means that he has had 10 years’ service in the Fire Services Department and was at one point in respect of an operation in 2017 awarded a commendation by the Director of Fire Services in recognition of his professionalism and perseverance in his mission. I have had the opportunity of reading a number of mitigation letters which commend the defendant to me from colleagues and superiors.
He is a father of two young children aged 2 and 1 and certainly at the time of his arrest was the sole breadwinner of his family and provided financial support to his parents.
The defendant in mitigation does not suggest to me the charges are not serious. He acknowledges the severity of the charges against him and I am told he understands a custodial sentence will be imposed because of the nature of the deterrent effect. He expresses remorse and has again expressed it to the probation officer who has interviewed him for the background report and would wish eventually on release from custody to serve society in some way again. He expresses regret for causing pain to his family.
In mitigation, I am asked to consider that the particular form of unlawful assembly in this case did not involve or cause bodily harm or damage to people. The defendant’s resistance to arrest was for a short time and, in respect of some of the charges, in respect of all of the petrol bombs, there was no evidence that they had been used, although there is evidence that the defendant had one petrol bomb in his hand during the course of the unlawful assembly, and this defendant asks for leniency.
As far as the 2nd defendant is concerned, he is, as I have already said, a young man. On his arrest, I am told that he suffered some knee injury, involving him being hospitalised for three days. He was 16 years and 1 month old at the time of the offence, with a clear record, studying in Form 6, a good record of conduct in school. This defendant has a particular skill. He is a footballer of a high level of competence and skill, particularly in the area of what is described as futsal, which is a — I think, believe is a Brazilian form of football, on a smaller pitch than regular football. There are a number of letters of commendation from the school social worker and his football coach and others. He is regretful and remorseful and hopes to study in future for a Bachelor of Arts in Physical Education.
The submission in respect of this defendant is that no specific acts of violence can be attributed to him. His conviction relies solely on his presence at the unlawful assembly. He appears to be dressed at the time in a style that suggests he has just come from football training, which is what was said in mitigation. And, besides his presence at the unlawful assembly, no other, as it were, tools or items such as offensive weapons were found on him.
A number of reports have been obtained on this defendant. They reflect the mitigation that has been put forward. The defendant being of the age he is, 17 years old, the court also has other options for sentencing besides the normal range of sentences of imprisonment and community service orders and probation orders. Also, the defendant is eligible for detention in the facilities run by the Correctional Services Department for training of young people, which is detention centre, rehabilitation centre or training centre. I am told from the report from the Correctional Services Department there are places available for him and he could be sentenced to any one of those options.
I deal with the 4th defendant. The 4th defendant also has expressed his remorse to the court and also in the course of interviews by the Probation Services. He is now aged 26, born and brought up in Hong Kong. He studied in City University and worked as a part-time bank staff at the time; lives with his parents and younger sister, and there are health issues in respect of his parents which are dealt with in the background report. He is said as coming from a close-knit family and has a previous clear record.
There are a number of mitigation letters in respect of the defendant.
In the defendant’s mitigation, he of course admits his presence at the site of the unlawful assembly and the possession of the items found upon him. He suggests in mitigation that the rubbing alcohol found on him was to use to clean wounds and that the petrol bombs found on him had been given to him by other younger people at the assembly and he was, as it were, holding them for them, but at the time when he was intercepted he had not disposed of them.
As far as the unlawful assembly is concerned, it is said that the defendant, although present, there is on the facts no evidence indicating he performed violent acts. And, finally, the defendant shows a genuine remorse, comes from a decent character and will not reoffend, and asks for leniency in respect of those matters. I note, for this defendant, he has also been detained for 14 months at this point.
Now I turn to the approach to sentencing. Of course, the case that courts must in sentencing approach in a way that is consistent and achieve consistency in the outcomes. The charges that these defendants face do not have a — what I call a directly applicable guideline but there are guidelines available.
I will turn first to the offence of unlawful assembly, contrary to 18(1) of the Public Order Ordinance, which all defendants face. The factual basis for this, agreed by all three defendants, is that they all took place in an unlawful assembly at the area, where a large number of persons assembled involving acts of barricading and occupying road carriages, including the use of laser beams against police, which amounted to conduct of disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear the persons so assembled would a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace. That is the agreed fact.
It must be noted that unlawful assemblies cover a wide range of circumstances, but these facts, as agreed by the defendants, establish this was a case of violent civil disorder characterised by violence towards the property, whether manifested as blockage of throughways and roadways, and as such is a serious form of unlawful assembly, and also took place during the course of a period of serious social disorder in Hong Kong.
The general approach to sentencing in cases of unlawful assembly has been dealt with by both the Court of Appeal and Final Court of Appeal in Hong Kong. The case is Secretary for Justice v Wong Chi Fung & Ors CAAR No.4 of 2016. The relevant part of that judgment is where the Court of Appeal at page 77:
“(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence, and the sentencing factor of rehabilitation.
(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”
At paragraph 153 they say:
“For serious cases, the main purpose of the sentence is to punish and deter. So the overall consideration of the court should be inclined towards imposing an immediate custodial sentence. Unless there are very exceptional circumstances, and these circumstances by definition should be rare, sentences other than an immediate custodial sentence, including suspended sentences and community services, are not appropriate.”
That is the words of the Court of Appeal, and that is the approach that I must take in respect of the sentencing on Charge 1 in this case.
Both the 1st and 4th defendants face charges which particularise and criminalise their possession of various items. Of particular relevance are the petrol bombs, otherwise described as “Molotov cocktails”. This is charged under section 62A of the Crimes Ordinance, Cap 200. That particular section has a maximum sentence of 10 years’ imprisonment.
I note there are no guideline sentences from the Court of Appeal in respect of this particular case or charge. The Court of Appeal has recently considered a starting point for sentence, where petrol bombs are used and ignited and thrown under the charge — and those will be found under charges of arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA 1087, and those charges involved offences of arson where there was recklessness as to endangerment of life. So that authority is not directly relevant to the facts of this case or the charge in this case, which alleges an intent to damage property.
The overview of sentencing in HKSAR v Yiu Siu Hong suggests that, for those offences, depending on the circumstances of aggravation or mitigation, a starting point in the region of 5 to 6 years is appropriate. I have been referred to some concomitant District Court cases under section 62A, where starting points for sentence have ranged between 3½ to 4 years’ imprisonment for possession of these forms of what we are in effect explosive devices.
An important factor in this case when assessing the starting point for sentence under the charge under section 62A of the Crimes Ordinance is that these items were possessed in a public gathering, especially a serious public disorder. Possession of these items does reflect a major escalation of risk and a major escalation of danger to others.
I take from this summary that simple possession of a petrol bomb at a violent disorder type of unlawful assembly gathering will lead to a starting point for sentence which ranges between 3 to 4½ years’ imprisonment, subject to various mitigating or aggravating factors in the circumstances of commission.
I also note, as far as the other offences that are charged in this indictment, the 1st defendant faces a charge of possession of prohibited weapon, where a maximum sentence of up to 3 years could be imposed. Under Charge 7, possession of the radiocommunications without a licence, a sentence of up to 5 years’ imprisonment can be imposed. Under Charge 2, resisting arrest, a sentence of up to 6 months’ imprisonment can be imposed.
Having dealt with that résumé of the sentencing powers of the court, I now deal with the individual sentences that should be imposed in respect of the individual defendants.
As far as the 1st defendant is concerned, I do reiterate that I note the mitigation advanced in his case and the commendations for his previous service and the good impression made on his colleagues. But I also have to bear in mind that the purposes of sentencing, in at least the 1st and 4th charges the defendant faces, the court has to give weight to punishment and deterrence, and, when that weight is given, very little or no weight can be given as to defendant’s motives or reasons for committing the offence and his personal circumstances.
Naturally, the conviction and sentencing of this case will mean the defendant will have to be separated from his family and also will find that a career in public service is no longer available to him. These are substantial punishments against the 1st defendant before one turns to whatever the prison sentence must be.
As I said, he is convicted in respect of Charge 1 and 4, where the primary purpose of sentence is deterrence. Accordingly, his personal circumstances and motivations are of small relevance to sentencing. The defendant’s past commendations and public service must be set against the reputational damage incurred by his involvement in this disorder.
Defendant is naturally entitled to a full one-third discount from the starting points for sentences that I will indicate.
As far as Charge 1 is concerned, that is a serious violent disorder. Defendant was present. He was armed with a knife and four petrol bombs at the time.
The Charge 1 is to a certain extent mirrored in its considerations with Charge 4, as far as the defendant is concerned. In determining the defendant’s sentence on Charge 4, I bear in mind that, firstly, he was in possession of the four petrol bombs set out in the charge. His possession of the radio telecommunications devices suggest that he was involved in some co-ordinating role as well. Also, other serious weapons were seized at the time, including a hammer, crowbar and the knife.
Finally, in respect of the defendant’s possession of the petrol bomb which was seen to be in his hand, that would reflect a serious escalation of the unlawful assembly if the defendant had chosen to find a way of igniting the petrol bomb. The fact that he had it in his hand is certainly more serious than it being placed in his rucksack.
On the 1st charge, in respect of the 1st defendant, of an unlawful assembly, I will take a starting point at 30 months’ imprisonment, reduce that to 20 months’ imprisonment for his plea of guilty.
On the 2nd charge of resisting a police officer, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for his plea of guilty.
On the 3rd charge of possession of the prohibited weapon, again take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for plea of guilty.
On the 4th charge of possession of a thing with intent to damage property, I will take a starting point at 48 months’ imprisonment, which I will reduce to 32 months’ imprisonment for the defendant’s plea of guilty.
On the 7th charge, possession of apparatus for radiocommunications without a licence, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.
I must consider what appropriate overall total sentence should be for this defendant. There is of course a number of overlaps between the various charges, particularly the 1st and 4th charges. Having regard to the factors I have already set out, I shall order the 1st, 4th and 7th charges should be served concurrently to each other and the 2nd and 3rd charges should be served concurrently to each other but consecutively to the 1st, 4th and 7th charges. That would give an overall total of 34 months’ imprisonment for the 1st defendant.
I shall deal now with the 4th defendant because the considerations in respect of his offence are similar to those of the 1st defendant. Then I will return to the 2nd defendant at the end.
The 4th defendant, the calculation of the sentences against him is similar in a way to the 1st defendant and I will take the same starting point for sentence on the unlawful assembly. He was present at a serious disorder in possession of petrol bombs, two petrol bombs. So I will take a starting point of 30 months’ imprisonment, reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.
He also faces the 5th charge, possessing things with intent to damage property, contrary to section 62(a) of the Crimes Ordinance. I do take account of the defendant’s account of how he came to be in possession of those two petrol bombs, but the petrol bombs were possessed with the capacity to light them and the defendant has admitted that he possessed them intending without legal excuse to use the said things to damage property, so I must bear that in mind when assessing the appropriate starting point for sentence. Again, the possession of petrol bombs at an unlawful assembly represents substantial escalation of the danger and risk.
And, finally, this defendant was dressed in a “black bloc” fashion, which would be an aggravating factor for him.
I will take a starting point in respect of this defendant of 3½ years on the 5th charge, which is 42 months, reduced to 28 months’ imprisonment for his plea of guilty. Sentences on Charge 1 and 5 will be served concurrently. Total of 28 months’ imprisonment.
The 2nd defendant. Again, I have set out the sentencing factors in respect of the 2nd defendant and a range of sentences are available to him, bearing in mind he is 17 years old. The authority dealing with the unlawful assembly, as I have already iterated, sets out that serious unlawful assembly – so this must fall into the category of a serious unlawful assembly – the object of the court is to punish and deter and the court should be inclined to impose an immediate custodial sentence.
Having regard to the sentences already passed on the 1st and 4th defendants in respect of this 1st charge, clearly an immediate custodial sentence is the appropriate sentence to be imposed and the court could only depart from that if there are exceptional circumstances, which are rare.
When determining this defendant’s sentence, I do bear in mind the absence of aggravating factors such as the defendant being in possession of other items or being seen to be actively participating in the violence. But what must be noted about this particular unlawful assembly is, as far as the facts that I have before me show, it always was a violent disorder and so the 2nd defendant must have joined this violent disorder knowing that that was its character.
I consider that I am bound by the authorities before me to consider this as a case where a sentence of imprisonment is appropriate for any person of the defendant’s age. As far as the recommendations contained in the various reports I have, the defendant is actually not recommended for a community service order. It is thought that a probation order would be more appropriate for him. But, having regard to the appellate direction, a probation order would be seen to be too lenient to disposal, even for a defendant of this age.
This would leave me with the only custodial options being an immediate sentence of imprisonment or the three forms of training that would be offered by the Correctional Services Department, for which the defendant is suitable for and for which there are places for him. I am told by the Correctional Services Department that this defendant is more suited to a detention centre order than any other of the orders that they can offer to this defendant.
In sentencing this defendant, I have already said that I bear in mind his youth, his good character beforehand. He has become involved in an offence for which a sentence of imprisonment must be imposed. Because of his age, I can find an alternative to that and the alternative that I will direct for this defendant is, in respect of the charge that he faces, Charge 1, he be sentenced to a rehabilitation centre, which will provide a regime which may assist in a more speedy release from custody. That is the order I will make: a rehabilitation centre on Charge 1 for the 2nd defendant.
(T Casewell)
District Judge
DCCC 259/2020
祁士偉
區院
認罪
罪成
消防員
34
非法集結
判囚
20
11/10/2019
旺角
DCCC 259/2020
[2021] HKDC 234
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 259 OF 2020
———————-
HKSAR
v
Fong Chi-hung (D1)
Lam Chin-to (D2)
Chiu Ho-chun (D4)
———————-
Before: HH Judge Casewell
Date: 15 January 2021 at 11.18 am
Present: Mr Wayne Lee, PP of the Department of Justice, for HKSAR
Ms Fiona Nam Hoi-yan, instructed by Cedric & Co, assigned by DLA, for the 1st defendant
Mr Edward Poon Ting-bond, instructed by S C Ho & Co, assigned by DLA, for the 2nd defendant
Ms Adgie N K Chan, instructed by C & Y Lawyers, for the 4th defendant
Offence: (1) Unlawful assembly (非法集結)
(against all defendants)
(2) Resisting a police officer in the due execution of his duty(抗拒在正當執行職務的警務人員)(against D1 only)
(3) Possession of a prohibited weapon (管有違禁武器) (against D1 only)
(4) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D1 only)
(5) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D4 only)
(7) Possession of apparatus for radiocommunications without a licence
(在沒有領有牌照的情況下管有作無線電通訊之用的器具)
(against D1 only)
———————
Reasons for Sentence
———————
I am asked to consider a sentencing in respect of three defendants on this indictment today. These three defendants have initially pleaded guilty to a joint charge of unlawful assembly regarding an event on 10 November 2019. Two of the defendants, namely the 1st and 4th defendants, have also pleaded guilty to additional charges in respect of items found upon them at the time of their arrest.
The background to the offence is that and the facts that support the convictions of the defendants are that on the evening of 10 November 2019 a large group of persons had assembled in the area of Nathan Road and Shantung Street. Some 100 people were assembled in that area. This assembly caused police units to be dispatched to disperse those persons so assembled. The defendants were arrested during the dispersal operation.
In the areas where these persons assembled, an unlawful assembly took place. The people assembled there barricaded roads, occupied road carriageways, used laser-pointing devices against police conducting the dispersal operation.
Police arrested the 4th defendant in an area where a large group of people occupied roads and blocked those roads with miscellaneous items. The 1st and 2nd defendants were arrested in a large group of people clad in black and masked. The roadway was blocked with bricks and miscellaneous items were strewn upon the ground.
The 1st defendant was seen to hold a petrol bomb in his hand, which he discarded by the side of the road. The 1st defendant is also said to have resisted his arrest by hitting the facial shield of the arresting officer and lifting the officer up when he was being subdued, and those are the facts that support the 2nd charge against the 1st defendant.
In another direction in the same area, large numbers of people were gathered, dressed in black, holding umbrellas and shining laser pointers.
On arrest, a number of items were found on the defendants, particularly the 1st and 4th defendants. Some form the particulars in the charges faced by the defendant.
The 1st defendant was found to be in possession of a spring-loaded knife and that can be found in Charge 3, a charge of possession of a prohibited weapon, contrary to the section 4 of the Weapons Ordinance. The 1st defendant was also found to be in possession of a wireless microphone. That is reflected in Charge 7 against him, possession of apparatus for radiocommunications without a licence. He was also found to be in possession of the following additional items: plastic straps, a hammer, scissors, a crowbar and four petrol bombs, one of those being the petrol bomb earlier seen, with three additional ones under his custody and control, and these form the charge against the 1st defendant, Charge 4.
The 4th defendant was also searched and found in his rucksack and on his person were two petrol bombs, two lighters and a bottle of isopropyl alcohol, and that forms the basis of the 5th charge against the 4th defendant.
It is noteworthy that these events on 11 November took place during what is described by the Final Court of Appeal as the “sudden and severe deterioration of law and order in Hong Kong arising from protests and social unrest” during the period of September to November 2019. The Final Court of Appeal case that I am referring to is HKSAR v Kwok Wing Hang, which was the Court of Appeal’s decision 9 of 2020, and I refer to what was described as unchallenged evidence in that case, where it was described that the situation in Hong Kong deteriorated during October and November and was described as a “further escalation of violence and vandalism especially since the week of 11 November”, which would be shortly after these events that we are dealing with today, and what was particularly frequent was extensive road blockages with dangerous items placed on vehicular passageways and railway lines and it is even said that even petrol bombs and hard objects were hurled at moving vehicles and the like.
The Court of Final Appeal also noted the following phenomena at paragraph 91, the phenomena of what they describe as “black bloc” tactics, people concealing identity and thereby evading arrest and prosecution, and describe protestors using black clothing with little or no distinguishing features, and that is, in fact, included in the facts at paragraph 6 in this case.
Those are the basic facts that the court has to rely on in this case and show a serious and violent disorder taking place involving violence towards property.
The three defendants before me range in ages, but they all are people of clear records. The 1st defendant is aged 34, the 2nd defendant is aged 17, and the 4th defendant is now aged 26.
I have received mitigation from all the three defendants I am dealing with today. As I say, they all have the common feature of being people of hitherto clear record before they came to this court. They all have individual aspects of mitigation which they wish to put before the court. I will have to summarise those for the purposes of the sentencing process, but I have read all the documents contained in their mitigation bundles, including the letters of support and commendation from many people, and I note their contents.
I have also obtained reports which give me the backgrounds of all three defendants. Because the 2nd defendant was only aged 17, I have obtained additional reports on him to investigate a number of options as to sentencing that defendant.
I shall simply précis the 1st defendant’s position in this matter. He is aged 34, of clear record, coming to Hong Kong when he was 12 years old. He graduated with a Higher Diploma in Marketing and Media in 2011 and joined the Fire Services Department and been working as a fireman from that date until the suspension following his arrest on 10 November 2019. That means that he has had 10 years’ service in the Fire Services Department and was at one point in respect of an operation in 2017 awarded a commendation by the Director of Fire Services in recognition of his professionalism and perseverance in his mission. I have had the opportunity of reading a number of mitigation letters which commend the defendant to me from colleagues and superiors.
He is a father of two young children aged 2 and 1 and certainly at the time of his arrest was the sole breadwinner of his family and provided financial support to his parents.
The defendant in mitigation does not suggest to me the charges are not serious. He acknowledges the severity of the charges against him and I am told he understands a custodial sentence will be imposed because of the nature of the deterrent effect. He expresses remorse and has again expressed it to the probation officer who has interviewed him for the background report and would wish eventually on release from custody to serve society in some way again. He expresses regret for causing pain to his family.
In mitigation, I am asked to consider that the particular form of unlawful assembly in this case did not involve or cause bodily harm or damage to people. The defendant’s resistance to arrest was for a short time and, in respect of some of the charges, in respect of all of the petrol bombs, there was no evidence that they had been used, although there is evidence that the defendant had one petrol bomb in his hand during the course of the unlawful assembly, and this defendant asks for leniency.
As far as the 2nd defendant is concerned, he is, as I have already said, a young man. On his arrest, I am told that he suffered some knee injury, involving him being hospitalised for three days. He was 16 years and 1 month old at the time of the offence, with a clear record, studying in Form 6, a good record of conduct in school. This defendant has a particular skill. He is a footballer of a high level of competence and skill, particularly in the area of what is described as futsal, which is a — I think, believe is a Brazilian form of football, on a smaller pitch than regular football. There are a number of letters of commendation from the school social worker and his football coach and others. He is regretful and remorseful and hopes to study in future for a Bachelor of Arts in Physical Education.
The submission in respect of this defendant is that no specific acts of violence can be attributed to him. His conviction relies solely on his presence at the unlawful assembly. He appears to be dressed at the time in a style that suggests he has just come from football training, which is what was said in mitigation. And, besides his presence at the unlawful assembly, no other, as it were, tools or items such as offensive weapons were found on him.
A number of reports have been obtained on this defendant. They reflect the mitigation that has been put forward. The defendant being of the age he is, 17 years old, the court also has other options for sentencing besides the normal range of sentences of imprisonment and community service orders and probation orders. Also, the defendant is eligible for detention in the facilities run by the Correctional Services Department for training of young people, which is detention centre, rehabilitation centre or training centre. I am told from the report from the Correctional Services Department there are places available for him and he could be sentenced to any one of those options.
I deal with the 4th defendant. The 4th defendant also has expressed his remorse to the court and also in the course of interviews by the Probation Services. He is now aged 26, born and brought up in Hong Kong. He studied in City University and worked as a part-time bank staff at the time; lives with his parents and younger sister, and there are health issues in respect of his parents which are dealt with in the background report. He is said as coming from a close-knit family and has a previous clear record.
There are a number of mitigation letters in respect of the defendant.
In the defendant’s mitigation, he of course admits his presence at the site of the unlawful assembly and the possession of the items found upon him. He suggests in mitigation that the rubbing alcohol found on him was to use to clean wounds and that the petrol bombs found on him had been given to him by other younger people at the assembly and he was, as it were, holding them for them, but at the time when he was intercepted he had not disposed of them.
As far as the unlawful assembly is concerned, it is said that the defendant, although present, there is on the facts no evidence indicating he performed violent acts. And, finally, the defendant shows a genuine remorse, comes from a decent character and will not reoffend, and asks for leniency in respect of those matters. I note, for this defendant, he has also been detained for 14 months at this point.
Now I turn to the approach to sentencing. Of course, the case that courts must in sentencing approach in a way that is consistent and achieve consistency in the outcomes. The charges that these defendants face do not have a — what I call a directly applicable guideline but there are guidelines available.
I will turn first to the offence of unlawful assembly, contrary to 18(1) of the Public Order Ordinance, which all defendants face. The factual basis for this, agreed by all three defendants, is that they all took place in an unlawful assembly at the area, where a large number of persons assembled involving acts of barricading and occupying road carriages, including the use of laser beams against police, which amounted to conduct of disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear the persons so assembled would a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace. That is the agreed fact.
It must be noted that unlawful assemblies cover a wide range of circumstances, but these facts, as agreed by the defendants, establish this was a case of violent civil disorder characterised by violence towards the property, whether manifested as blockage of throughways and roadways, and as such is a serious form of unlawful assembly, and also took place during the course of a period of serious social disorder in Hong Kong.
The general approach to sentencing in cases of unlawful assembly has been dealt with by both the Court of Appeal and Final Court of Appeal in Hong Kong. The case is Secretary for Justice v Wong Chi Fung & Ors CAAR No.4 of 2016. The relevant part of that judgment is where the Court of Appeal at page 77:
“(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence, and the sentencing factor of rehabilitation.
(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”
At paragraph 153 they say:
“For serious cases, the main purpose of the sentence is to punish and deter. So the overall consideration of the court should be inclined towards imposing an immediate custodial sentence. Unless there are very exceptional circumstances, and these circumstances by definition should be rare, sentences other than an immediate custodial sentence, including suspended sentences and community services, are not appropriate.”
That is the words of the Court of Appeal, and that is the approach that I must take in respect of the sentencing on Charge 1 in this case.
Both the 1st and 4th defendants face charges which particularise and criminalise their possession of various items. Of particular relevance are the petrol bombs, otherwise described as “Molotov cocktails”. This is charged under section 62A of the Crimes Ordinance, Cap 200. That particular section has a maximum sentence of 10 years’ imprisonment.
I note there are no guideline sentences from the Court of Appeal in respect of this particular case or charge. The Court of Appeal has recently considered a starting point for sentence, where petrol bombs are used and ignited and thrown under the charge — and those will be found under charges of arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA 1087, and those charges involved offences of arson where there was recklessness as to endangerment of life. So that authority is not directly relevant to the facts of this case or the charge in this case, which alleges an intent to damage property.
The overview of sentencing in HKSAR v Yiu Siu Hong suggests that, for those offences, depending on the circumstances of aggravation or mitigation, a starting point in the region of 5 to 6 years is appropriate. I have been referred to some concomitant District Court cases under section 62A, where starting points for sentence have ranged between 3½ to 4 years’ imprisonment for possession of these forms of what we are in effect explosive devices.
An important factor in this case when assessing the starting point for sentence under the charge under section 62A of the Crimes Ordinance is that these items were possessed in a public gathering, especially a serious public disorder. Possession of these items does reflect a major escalation of risk and a major escalation of danger to others.
I take from this summary that simple possession of a petrol bomb at a violent disorder type of unlawful assembly gathering will lead to a starting point for sentence which ranges between 3 to 4½ years’ imprisonment, subject to various mitigating or aggravating factors in the circumstances of commission.
I also note, as far as the other offences that are charged in this indictment, the 1st defendant faces a charge of possession of prohibited weapon, where a maximum sentence of up to 3 years could be imposed. Under Charge 7, possession of the radiocommunications without a licence, a sentence of up to 5 years’ imprisonment can be imposed. Under Charge 2, resisting arrest, a sentence of up to 6 months’ imprisonment can be imposed.
Having dealt with that résumé of the sentencing powers of the court, I now deal with the individual sentences that should be imposed in respect of the individual defendants.
As far as the 1st defendant is concerned, I do reiterate that I note the mitigation advanced in his case and the commendations for his previous service and the good impression made on his colleagues. But I also have to bear in mind that the purposes of sentencing, in at least the 1st and 4th charges the defendant faces, the court has to give weight to punishment and deterrence, and, when that weight is given, very little or no weight can be given as to defendant’s motives or reasons for committing the offence and his personal circumstances.
Naturally, the conviction and sentencing of this case will mean the defendant will have to be separated from his family and also will find that a career in public service is no longer available to him. These are substantial punishments against the 1st defendant before one turns to whatever the prison sentence must be.
As I said, he is convicted in respect of Charge 1 and 4, where the primary purpose of sentence is deterrence. Accordingly, his personal circumstances and motivations are of small relevance to sentencing. The defendant’s past commendations and public service must be set against the reputational damage incurred by his involvement in this disorder.
Defendant is naturally entitled to a full one-third discount from the starting points for sentences that I will indicate.
As far as Charge 1 is concerned, that is a serious violent disorder. Defendant was present. He was armed with a knife and four petrol bombs at the time.
The Charge 1 is to a certain extent mirrored in its considerations with Charge 4, as far as the defendant is concerned. In determining the defendant’s sentence on Charge 4, I bear in mind that, firstly, he was in possession of the four petrol bombs set out in the charge. His possession of the radio telecommunications devices suggest that he was involved in some co-ordinating role as well. Also, other serious weapons were seized at the time, including a hammer, crowbar and the knife.
Finally, in respect of the defendant’s possession of the petrol bomb which was seen to be in his hand, that would reflect a serious escalation of the unlawful assembly if the defendant had chosen to find a way of igniting the petrol bomb. The fact that he had it in his hand is certainly more serious than it being placed in his rucksack.
On the 1st charge, in respect of the 1st defendant, of an unlawful assembly, I will take a starting point at 30 months’ imprisonment, reduce that to 20 months’ imprisonment for his plea of guilty.
On the 2nd charge of resisting a police officer, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for his plea of guilty.
On the 3rd charge of possession of the prohibited weapon, again take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for plea of guilty.
On the 4th charge of possession of a thing with intent to damage property, I will take a starting point at 48 months’ imprisonment, which I will reduce to 32 months’ imprisonment for the defendant’s plea of guilty.
On the 7th charge, possession of apparatus for radiocommunications without a licence, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.
I must consider what appropriate overall total sentence should be for this defendant. There is of course a number of overlaps between the various charges, particularly the 1st and 4th charges. Having regard to the factors I have already set out, I shall order the 1st, 4th and 7th charges should be served concurrently to each other and the 2nd and 3rd charges should be served concurrently to each other but consecutively to the 1st, 4th and 7th charges. That would give an overall total of 34 months’ imprisonment for the 1st defendant.
I shall deal now with the 4th defendant because the considerations in respect of his offence are similar to those of the 1st defendant. Then I will return to the 2nd defendant at the end.
The 4th defendant, the calculation of the sentences against him is similar in a way to the 1st defendant and I will take the same starting point for sentence on the unlawful assembly. He was present at a serious disorder in possession of petrol bombs, two petrol bombs. So I will take a starting point of 30 months’ imprisonment, reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.
He also faces the 5th charge, possessing things with intent to damage property, contrary to section 62(a) of the Crimes Ordinance. I do take account of the defendant’s account of how he came to be in possession of those two petrol bombs, but the petrol bombs were possessed with the capacity to light them and the defendant has admitted that he possessed them intending without legal excuse to use the said things to damage property, so I must bear that in mind when assessing the appropriate starting point for sentence. Again, the possession of petrol bombs at an unlawful assembly represents substantial escalation of the danger and risk.
And, finally, this defendant was dressed in a “black bloc” fashion, which would be an aggravating factor for him.
I will take a starting point in respect of this defendant of 3½ years on the 5th charge, which is 42 months, reduced to 28 months’ imprisonment for his plea of guilty. Sentences on Charge 1 and 5 will be served concurrently. Total of 28 months’ imprisonment.
The 2nd defendant. Again, I have set out the sentencing factors in respect of the 2nd defendant and a range of sentences are available to him, bearing in mind he is 17 years old. The authority dealing with the unlawful assembly, as I have already iterated, sets out that serious unlawful assembly – so this must fall into the category of a serious unlawful assembly – the object of the court is to punish and deter and the court should be inclined to impose an immediate custodial sentence.
Having regard to the sentences already passed on the 1st and 4th defendants in respect of this 1st charge, clearly an immediate custodial sentence is the appropriate sentence to be imposed and the court could only depart from that if there are exceptional circumstances, which are rare.
When determining this defendant’s sentence, I do bear in mind the absence of aggravating factors such as the defendant being in possession of other items or being seen to be actively participating in the violence. But what must be noted about this particular unlawful assembly is, as far as the facts that I have before me show, it always was a violent disorder and so the 2nd defendant must have joined this violent disorder knowing that that was its character.
I consider that I am bound by the authorities before me to consider this as a case where a sentence of imprisonment is appropriate for any person of the defendant’s age. As far as the recommendations contained in the various reports I have, the defendant is actually not recommended for a community service order. It is thought that a probation order would be more appropriate for him. But, having regard to the appellate direction, a probation order would be seen to be too lenient to disposal, even for a defendant of this age.
This would leave me with the only custodial options being an immediate sentence of imprisonment or the three forms of training that would be offered by the Correctional Services Department, for which the defendant is suitable for and for which there are places for him. I am told by the Correctional Services Department that this defendant is more suited to a detention centre order than any other of the orders that they can offer to this defendant.
In sentencing this defendant, I have already said that I bear in mind his youth, his good character beforehand. He has become involved in an offence for which a sentence of imprisonment must be imposed. Because of his age, I can find an alternative to that and the alternative that I will direct for this defendant is, in respect of the charge that he faces, Charge 1, he be sentenced to a rehabilitation centre, which will provide a regime which may assist in a more speedy release from custody. That is the order I will make: a rehabilitation centre on Charge 1 for the 2nd defendant.
(T Casewell)
District Judge
DCCC 259/2020
祁士偉
區院
認罪
罪成
消防員
34
抗拒警務人員
判囚
2
11/11/2019
旺角
DCCC 259/2020
[2021] HKDC 234
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 259 OF 2020
———————-
HKSAR
v
Fong Chi-hung (D1)
Lam Chin-to (D2)
Chiu Ho-chun (D4)
———————-
Before: HH Judge Casewell
Date: 15 January 2021 at 11.18 am
Present: Mr Wayne Lee, PP of the Department of Justice, for HKSAR
Ms Fiona Nam Hoi-yan, instructed by Cedric & Co, assigned by DLA, for the 1st defendant
Mr Edward Poon Ting-bond, instructed by S C Ho & Co, assigned by DLA, for the 2nd defendant
Ms Adgie N K Chan, instructed by C & Y Lawyers, for the 4th defendant
Offence: (1) Unlawful assembly (非法集結)
(against all defendants)
(2) Resisting a police officer in the due execution of his duty(抗拒在正當執行職務的警務人員)(against D1 only)
(3) Possession of a prohibited weapon (管有違禁武器) (against D1 only)
(4) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D1 only)
(5) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D4 only)
(7) Possession of apparatus for radiocommunications without a licence
(在沒有領有牌照的情況下管有作無線電通訊之用的器具)
(against D1 only)
———————
Reasons for Sentence
———————
I am asked to consider a sentencing in respect of three defendants on this indictment today. These three defendants have initially pleaded guilty to a joint charge of unlawful assembly regarding an event on 10 November 2019. Two of the defendants, namely the 1st and 4th defendants, have also pleaded guilty to additional charges in respect of items found upon them at the time of their arrest.
The background to the offence is that and the facts that support the convictions of the defendants are that on the evening of 10 November 2019 a large group of persons had assembled in the area of Nathan Road and Shantung Street. Some 100 people were assembled in that area. This assembly caused police units to be dispatched to disperse those persons so assembled. The defendants were arrested during the dispersal operation.
In the areas where these persons assembled, an unlawful assembly took place. The people assembled there barricaded roads, occupied road carriageways, used laser-pointing devices against police conducting the dispersal operation.
Police arrested the 4th defendant in an area where a large group of people occupied roads and blocked those roads with miscellaneous items. The 1st and 2nd defendants were arrested in a large group of people clad in black and masked. The roadway was blocked with bricks and miscellaneous items were strewn upon the ground.
The 1st defendant was seen to hold a petrol bomb in his hand, which he discarded by the side of the road. The 1st defendant is also said to have resisted his arrest by hitting the facial shield of the arresting officer and lifting the officer up when he was being subdued, and those are the facts that support the 2nd charge against the 1st defendant.
In another direction in the same area, large numbers of people were gathered, dressed in black, holding umbrellas and shining laser pointers.
On arrest, a number of items were found on the defendants, particularly the 1st and 4th defendants. Some form the particulars in the charges faced by the defendant.
The 1st defendant was found to be in possession of a spring-loaded knife and that can be found in Charge 3, a charge of possession of a prohibited weapon, contrary to the section 4 of the Weapons Ordinance. The 1st defendant was also found to be in possession of a wireless microphone. That is reflected in Charge 7 against him, possession of apparatus for radiocommunications without a licence. He was also found to be in possession of the following additional items: plastic straps, a hammer, scissors, a crowbar and four petrol bombs, one of those being the petrol bomb earlier seen, with three additional ones under his custody and control, and these form the charge against the 1st defendant, Charge 4.
The 4th defendant was also searched and found in his rucksack and on his person were two petrol bombs, two lighters and a bottle of isopropyl alcohol, and that forms the basis of the 5th charge against the 4th defendant.
It is noteworthy that these events on 11 November took place during what is described by the Final Court of Appeal as the “sudden and severe deterioration of law and order in Hong Kong arising from protests and social unrest” during the period of September to November 2019. The Final Court of Appeal case that I am referring to is HKSAR v Kwok Wing Hang, which was the Court of Appeal’s decision 9 of 2020, and I refer to what was described as unchallenged evidence in that case, where it was described that the situation in Hong Kong deteriorated during October and November and was described as a “further escalation of violence and vandalism especially since the week of 11 November”, which would be shortly after these events that we are dealing with today, and what was particularly frequent was extensive road blockages with dangerous items placed on vehicular passageways and railway lines and it is even said that even petrol bombs and hard objects were hurled at moving vehicles and the like.
The Court of Final Appeal also noted the following phenomena at paragraph 91, the phenomena of what they describe as “black bloc” tactics, people concealing identity and thereby evading arrest and prosecution, and describe protestors using black clothing with little or no distinguishing features, and that is, in fact, included in the facts at paragraph 6 in this case.
Those are the basic facts that the court has to rely on in this case and show a serious and violent disorder taking place involving violence towards property.
The three defendants before me range in ages, but they all are people of clear records. The 1st defendant is aged 34, the 2nd defendant is aged 17, and the 4th defendant is now aged 26.
I have received mitigation from all the three defendants I am dealing with today. As I say, they all have the common feature of being people of hitherto clear record before they came to this court. They all have individual aspects of mitigation which they wish to put before the court. I will have to summarise those for the purposes of the sentencing process, but I have read all the documents contained in their mitigation bundles, including the letters of support and commendation from many people, and I note their contents.
I have also obtained reports which give me the backgrounds of all three defendants. Because the 2nd defendant was only aged 17, I have obtained additional reports on him to investigate a number of options as to sentencing that defendant.
I shall simply précis the 1st defendant’s position in this matter. He is aged 34, of clear record, coming to Hong Kong when he was 12 years old. He graduated with a Higher Diploma in Marketing and Media in 2011 and joined the Fire Services Department and been working as a fireman from that date until the suspension following his arrest on 10 November 2019. That means that he has had 10 years’ service in the Fire Services Department and was at one point in respect of an operation in 2017 awarded a commendation by the Director of Fire Services in recognition of his professionalism and perseverance in his mission. I have had the opportunity of reading a number of mitigation letters which commend the defendant to me from colleagues and superiors.
He is a father of two young children aged 2 and 1 and certainly at the time of his arrest was the sole breadwinner of his family and provided financial support to his parents.
The defendant in mitigation does not suggest to me the charges are not serious. He acknowledges the severity of the charges against him and I am told he understands a custodial sentence will be imposed because of the nature of the deterrent effect. He expresses remorse and has again expressed it to the probation officer who has interviewed him for the background report and would wish eventually on release from custody to serve society in some way again. He expresses regret for causing pain to his family.
In mitigation, I am asked to consider that the particular form of unlawful assembly in this case did not involve or cause bodily harm or damage to people. The defendant’s resistance to arrest was for a short time and, in respect of some of the charges, in respect of all of the petrol bombs, there was no evidence that they had been used, although there is evidence that the defendant had one petrol bomb in his hand during the course of the unlawful assembly, and this defendant asks for leniency.
As far as the 2nd defendant is concerned, he is, as I have already said, a young man. On his arrest, I am told that he suffered some knee injury, involving him being hospitalised for three days. He was 16 years and 1 month old at the time of the offence, with a clear record, studying in Form 6, a good record of conduct in school. This defendant has a particular skill. He is a footballer of a high level of competence and skill, particularly in the area of what is described as futsal, which is a — I think, believe is a Brazilian form of football, on a smaller pitch than regular football. There are a number of letters of commendation from the school social worker and his football coach and others. He is regretful and remorseful and hopes to study in future for a Bachelor of Arts in Physical Education.
The submission in respect of this defendant is that no specific acts of violence can be attributed to him. His conviction relies solely on his presence at the unlawful assembly. He appears to be dressed at the time in a style that suggests he has just come from football training, which is what was said in mitigation. And, besides his presence at the unlawful assembly, no other, as it were, tools or items such as offensive weapons were found on him.
A number of reports have been obtained on this defendant. They reflect the mitigation that has been put forward. The defendant being of the age he is, 17 years old, the court also has other options for sentencing besides the normal range of sentences of imprisonment and community service orders and probation orders. Also, the defendant is eligible for detention in the facilities run by the Correctional Services Department for training of young people, which is detention centre, rehabilitation centre or training centre. I am told from the report from the Correctional Services Department there are places available for him and he could be sentenced to any one of those options.
I deal with the 4th defendant. The 4th defendant also has expressed his remorse to the court and also in the course of interviews by the Probation Services. He is now aged 26, born and brought up in Hong Kong. He studied in City University and worked as a part-time bank staff at the time; lives with his parents and younger sister, and there are health issues in respect of his parents which are dealt with in the background report. He is said as coming from a close-knit family and has a previous clear record.
There are a number of mitigation letters in respect of the defendant.
In the defendant’s mitigation, he of course admits his presence at the site of the unlawful assembly and the possession of the items found upon him. He suggests in mitigation that the rubbing alcohol found on him was to use to clean wounds and that the petrol bombs found on him had been given to him by other younger people at the assembly and he was, as it were, holding them for them, but at the time when he was intercepted he had not disposed of them.
As far as the unlawful assembly is concerned, it is said that the defendant, although present, there is on the facts no evidence indicating he performed violent acts. And, finally, the defendant shows a genuine remorse, comes from a decent character and will not reoffend, and asks for leniency in respect of those matters. I note, for this defendant, he has also been detained for 14 months at this point.
Now I turn to the approach to sentencing. Of course, the case that courts must in sentencing approach in a way that is consistent and achieve consistency in the outcomes. The charges that these defendants face do not have a — what I call a directly applicable guideline but there are guidelines available.
I will turn first to the offence of unlawful assembly, contrary to 18(1) of the Public Order Ordinance, which all defendants face. The factual basis for this, agreed by all three defendants, is that they all took place in an unlawful assembly at the area, where a large number of persons assembled involving acts of barricading and occupying road carriages, including the use of laser beams against police, which amounted to conduct of disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear the persons so assembled would a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace. That is the agreed fact.
It must be noted that unlawful assemblies cover a wide range of circumstances, but these facts, as agreed by the defendants, establish this was a case of violent civil disorder characterised by violence towards the property, whether manifested as blockage of throughways and roadways, and as such is a serious form of unlawful assembly, and also took place during the course of a period of serious social disorder in Hong Kong.
The general approach to sentencing in cases of unlawful assembly has been dealt with by both the Court of Appeal and Final Court of Appeal in Hong Kong. The case is Secretary for Justice v Wong Chi Fung & Ors CAAR No.4 of 2016. The relevant part of that judgment is where the Court of Appeal at page 77:
“(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence, and the sentencing factor of rehabilitation.
(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”
At paragraph 153 they say:
“For serious cases, the main purpose of the sentence is to punish and deter. So the overall consideration of the court should be inclined towards imposing an immediate custodial sentence. Unless there are very exceptional circumstances, and these circumstances by definition should be rare, sentences other than an immediate custodial sentence, including suspended sentences and community services, are not appropriate.”
That is the words of the Court of Appeal, and that is the approach that I must take in respect of the sentencing on Charge 1 in this case.
Both the 1st and 4th defendants face charges which particularise and criminalise their possession of various items. Of particular relevance are the petrol bombs, otherwise described as “Molotov cocktails”. This is charged under section 62A of the Crimes Ordinance, Cap 200. That particular section has a maximum sentence of 10 years’ imprisonment.
I note there are no guideline sentences from the Court of Appeal in respect of this particular case or charge. The Court of Appeal has recently considered a starting point for sentence, where petrol bombs are used and ignited and thrown under the charge — and those will be found under charges of arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA 1087, and those charges involved offences of arson where there was recklessness as to endangerment of life. So that authority is not directly relevant to the facts of this case or the charge in this case, which alleges an intent to damage property.
The overview of sentencing in HKSAR v Yiu Siu Hong suggests that, for those offences, depending on the circumstances of aggravation or mitigation, a starting point in the region of 5 to 6 years is appropriate. I have been referred to some concomitant District Court cases under section 62A, where starting points for sentence have ranged between 3½ to 4 years’ imprisonment for possession of these forms of what we are in effect explosive devices.
An important factor in this case when assessing the starting point for sentence under the charge under section 62A of the Crimes Ordinance is that these items were possessed in a public gathering, especially a serious public disorder. Possession of these items does reflect a major escalation of risk and a major escalation of danger to others.
I take from this summary that simple possession of a petrol bomb at a violent disorder type of unlawful assembly gathering will lead to a starting point for sentence which ranges between 3 to 4½ years’ imprisonment, subject to various mitigating or aggravating factors in the circumstances of commission.
I also note, as far as the other offences that are charged in this indictment, the 1st defendant faces a charge of possession of prohibited weapon, where a maximum sentence of up to 3 years could be imposed. Under Charge 7, possession of the radiocommunications without a licence, a sentence of up to 5 years’ imprisonment can be imposed. Under Charge 2, resisting arrest, a sentence of up to 6 months’ imprisonment can be imposed.
Having dealt with that résumé of the sentencing powers of the court, I now deal with the individual sentences that should be imposed in respect of the individual defendants.
As far as the 1st defendant is concerned, I do reiterate that I note the mitigation advanced in his case and the commendations for his previous service and the good impression made on his colleagues. But I also have to bear in mind that the purposes of sentencing, in at least the 1st and 4th charges the defendant faces, the court has to give weight to punishment and deterrence, and, when that weight is given, very little or no weight can be given as to defendant’s motives or reasons for committing the offence and his personal circumstances.
Naturally, the conviction and sentencing of this case will mean the defendant will have to be separated from his family and also will find that a career in public service is no longer available to him. These are substantial punishments against the 1st defendant before one turns to whatever the prison sentence must be.
As I said, he is convicted in respect of Charge 1 and 4, where the primary purpose of sentence is deterrence. Accordingly, his personal circumstances and motivations are of small relevance to sentencing. The defendant’s past commendations and public service must be set against the reputational damage incurred by his involvement in this disorder.
Defendant is naturally entitled to a full one-third discount from the starting points for sentences that I will indicate.
As far as Charge 1 is concerned, that is a serious violent disorder. Defendant was present. He was armed with a knife and four petrol bombs at the time.
The Charge 1 is to a certain extent mirrored in its considerations with Charge 4, as far as the defendant is concerned. In determining the defendant’s sentence on Charge 4, I bear in mind that, firstly, he was in possession of the four petrol bombs set out in the charge. His possession of the radio telecommunications devices suggest that he was involved in some co-ordinating role as well. Also, other serious weapons were seized at the time, including a hammer, crowbar and the knife.
Finally, in respect of the defendant’s possession of the petrol bomb which was seen to be in his hand, that would reflect a serious escalation of the unlawful assembly if the defendant had chosen to find a way of igniting the petrol bomb. The fact that he had it in his hand is certainly more serious than it being placed in his rucksack.
On the 1st charge, in respect of the 1st defendant, of an unlawful assembly, I will take a starting point at 30 months’ imprisonment, reduce that to 20 months’ imprisonment for his plea of guilty.
On the 2nd charge of resisting a police officer, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for his plea of guilty.
On the 3rd charge of possession of the prohibited weapon, again take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for plea of guilty.
On the 4th charge of possession of a thing with intent to damage property, I will take a starting point at 48 months’ imprisonment, which I will reduce to 32 months’ imprisonment for the defendant’s plea of guilty.
On the 7th charge, possession of apparatus for radiocommunications without a licence, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.
I must consider what appropriate overall total sentence should be for this defendant. There is of course a number of overlaps between the various charges, particularly the 1st and 4th charges. Having regard to the factors I have already set out, I shall order the 1st, 4th and 7th charges should be served concurrently to each other and the 2nd and 3rd charges should be served concurrently to each other but consecutively to the 1st, 4th and 7th charges. That would give an overall total of 34 months’ imprisonment for the 1st defendant.
I shall deal now with the 4th defendant because the considerations in respect of his offence are similar to those of the 1st defendant. Then I will return to the 2nd defendant at the end.
The 4th defendant, the calculation of the sentences against him is similar in a way to the 1st defendant and I will take the same starting point for sentence on the unlawful assembly. He was present at a serious disorder in possession of petrol bombs, two petrol bombs. So I will take a starting point of 30 months’ imprisonment, reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.
He also faces the 5th charge, possessing things with intent to damage property, contrary to section 62(a) of the Crimes Ordinance. I do take account of the defendant’s account of how he came to be in possession of those two petrol bombs, but the petrol bombs were possessed with the capacity to light them and the defendant has admitted that he possessed them intending without legal excuse to use the said things to damage property, so I must bear that in mind when assessing the appropriate starting point for sentence. Again, the possession of petrol bombs at an unlawful assembly represents substantial escalation of the danger and risk.
And, finally, this defendant was dressed in a “black bloc” fashion, which would be an aggravating factor for him.
I will take a starting point in respect of this defendant of 3½ years on the 5th charge, which is 42 months, reduced to 28 months’ imprisonment for his plea of guilty. Sentences on Charge 1 and 5 will be served concurrently. Total of 28 months’ imprisonment.
The 2nd defendant. Again, I have set out the sentencing factors in respect of the 2nd defendant and a range of sentences are available to him, bearing in mind he is 17 years old. The authority dealing with the unlawful assembly, as I have already iterated, sets out that serious unlawful assembly – so this must fall into the category of a serious unlawful assembly – the object of the court is to punish and deter and the court should be inclined to impose an immediate custodial sentence.
Having regard to the sentences already passed on the 1st and 4th defendants in respect of this 1st charge, clearly an immediate custodial sentence is the appropriate sentence to be imposed and the court could only depart from that if there are exceptional circumstances, which are rare.
When determining this defendant’s sentence, I do bear in mind the absence of aggravating factors such as the defendant being in possession of other items or being seen to be actively participating in the violence. But what must be noted about this particular unlawful assembly is, as far as the facts that I have before me show, it always was a violent disorder and so the 2nd defendant must have joined this violent disorder knowing that that was its character.
I consider that I am bound by the authorities before me to consider this as a case where a sentence of imprisonment is appropriate for any person of the defendant’s age. As far as the recommendations contained in the various reports I have, the defendant is actually not recommended for a community service order. It is thought that a probation order would be more appropriate for him. But, having regard to the appellate direction, a probation order would be seen to be too lenient to disposal, even for a defendant of this age.
This would leave me with the only custodial options being an immediate sentence of imprisonment or the three forms of training that would be offered by the Correctional Services Department, for which the defendant is suitable for and for which there are places for him. I am told by the Correctional Services Department that this defendant is more suited to a detention centre order than any other of the orders that they can offer to this defendant.
In sentencing this defendant, I have already said that I bear in mind his youth, his good character beforehand. He has become involved in an offence for which a sentence of imprisonment must be imposed. Because of his age, I can find an alternative to that and the alternative that I will direct for this defendant is, in respect of the charge that he faces, Charge 1, he be sentenced to a rehabilitation centre, which will provide a regime which may assist in a more speedy release from custody. That is the order I will make: a rehabilitation centre on Charge 1 for the 2nd defendant.
(T Casewell)
District Judge
DCCC 259/2020
祁士偉
區院
認罪
罪成
消防員
34
管有違禁武器
判囚
2
11/12/2019
旺角
DCCC 259/2020
[2021] HKDC 234
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 259 OF 2020
———————-
HKSAR
v
Fong Chi-hung (D1)
Lam Chin-to (D2)
Chiu Ho-chun (D4)
———————-
Before: HH Judge Casewell
Date: 15 January 2021 at 11.18 am
Present: Mr Wayne Lee, PP of the Department of Justice, for HKSAR
Ms Fiona Nam Hoi-yan, instructed by Cedric & Co, assigned by DLA, for the 1st defendant
Mr Edward Poon Ting-bond, instructed by S C Ho & Co, assigned by DLA, for the 2nd defendant
Ms Adgie N K Chan, instructed by C & Y Lawyers, for the 4th defendant
Offence: (1) Unlawful assembly (非法集結)
(against all defendants)
(2) Resisting a police officer in the due execution of his duty(抗拒在正當執行職務的警務人員)(against D1 only)
(3) Possession of a prohibited weapon (管有違禁武器) (against D1 only)
(4) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D1 only)
(5) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D4 only)
(7) Possession of apparatus for radiocommunications without a licence
(在沒有領有牌照的情況下管有作無線電通訊之用的器具)
(against D1 only)
———————
Reasons for Sentence
———————
I am asked to consider a sentencing in respect of three defendants on this indictment today. These three defendants have initially pleaded guilty to a joint charge of unlawful assembly regarding an event on 10 November 2019. Two of the defendants, namely the 1st and 4th defendants, have also pleaded guilty to additional charges in respect of items found upon them at the time of their arrest.
The background to the offence is that and the facts that support the convictions of the defendants are that on the evening of 10 November 2019 a large group of persons had assembled in the area of Nathan Road and Shantung Street. Some 100 people were assembled in that area. This assembly caused police units to be dispatched to disperse those persons so assembled. The defendants were arrested during the dispersal operation.
In the areas where these persons assembled, an unlawful assembly took place. The people assembled there barricaded roads, occupied road carriageways, used laser-pointing devices against police conducting the dispersal operation.
Police arrested the 4th defendant in an area where a large group of people occupied roads and blocked those roads with miscellaneous items. The 1st and 2nd defendants were arrested in a large group of people clad in black and masked. The roadway was blocked with bricks and miscellaneous items were strewn upon the ground.
The 1st defendant was seen to hold a petrol bomb in his hand, which he discarded by the side of the road. The 1st defendant is also said to have resisted his arrest by hitting the facial shield of the arresting officer and lifting the officer up when he was being subdued, and those are the facts that support the 2nd charge against the 1st defendant.
In another direction in the same area, large numbers of people were gathered, dressed in black, holding umbrellas and shining laser pointers.
On arrest, a number of items were found on the defendants, particularly the 1st and 4th defendants. Some form the particulars in the charges faced by the defendant.
The 1st defendant was found to be in possession of a spring-loaded knife and that can be found in Charge 3, a charge of possession of a prohibited weapon, contrary to the section 4 of the Weapons Ordinance. The 1st defendant was also found to be in possession of a wireless microphone. That is reflected in Charge 7 against him, possession of apparatus for radiocommunications without a licence. He was also found to be in possession of the following additional items: plastic straps, a hammer, scissors, a crowbar and four petrol bombs, one of those being the petrol bomb earlier seen, with three additional ones under his custody and control, and these form the charge against the 1st defendant, Charge 4.
The 4th defendant was also searched and found in his rucksack and on his person were two petrol bombs, two lighters and a bottle of isopropyl alcohol, and that forms the basis of the 5th charge against the 4th defendant.
It is noteworthy that these events on 11 November took place during what is described by the Final Court of Appeal as the “sudden and severe deterioration of law and order in Hong Kong arising from protests and social unrest” during the period of September to November 2019. The Final Court of Appeal case that I am referring to is HKSAR v Kwok Wing Hang, which was the Court of Appeal’s decision 9 of 2020, and I refer to what was described as unchallenged evidence in that case, where it was described that the situation in Hong Kong deteriorated during October and November and was described as a “further escalation of violence and vandalism especially since the week of 11 November”, which would be shortly after these events that we are dealing with today, and what was particularly frequent was extensive road blockages with dangerous items placed on vehicular passageways and railway lines and it is even said that even petrol bombs and hard objects were hurled at moving vehicles and the like.
The Court of Final Appeal also noted the following phenomena at paragraph 91, the phenomena of what they describe as “black bloc” tactics, people concealing identity and thereby evading arrest and prosecution, and describe protestors using black clothing with little or no distinguishing features, and that is, in fact, included in the facts at paragraph 6 in this case.
Those are the basic facts that the court has to rely on in this case and show a serious and violent disorder taking place involving violence towards property.
The three defendants before me range in ages, but they all are people of clear records. The 1st defendant is aged 34, the 2nd defendant is aged 17, and the 4th defendant is now aged 26.
I have received mitigation from all the three defendants I am dealing with today. As I say, they all have the common feature of being people of hitherto clear record before they came to this court. They all have individual aspects of mitigation which they wish to put before the court. I will have to summarise those for the purposes of the sentencing process, but I have read all the documents contained in their mitigation bundles, including the letters of support and commendation from many people, and I note their contents.
I have also obtained reports which give me the backgrounds of all three defendants. Because the 2nd defendant was only aged 17, I have obtained additional reports on him to investigate a number of options as to sentencing that defendant.
I shall simply précis the 1st defendant’s position in this matter. He is aged 34, of clear record, coming to Hong Kong when he was 12 years old. He graduated with a Higher Diploma in Marketing and Media in 2011 and joined the Fire Services Department and been working as a fireman from that date until the suspension following his arrest on 10 November 2019. That means that he has had 10 years’ service in the Fire Services Department and was at one point in respect of an operation in 2017 awarded a commendation by the Director of Fire Services in recognition of his professionalism and perseverance in his mission. I have had the opportunity of reading a number of mitigation letters which commend the defendant to me from colleagues and superiors.
He is a father of two young children aged 2 and 1 and certainly at the time of his arrest was the sole breadwinner of his family and provided financial support to his parents.
The defendant in mitigation does not suggest to me the charges are not serious. He acknowledges the severity of the charges against him and I am told he understands a custodial sentence will be imposed because of the nature of the deterrent effect. He expresses remorse and has again expressed it to the probation officer who has interviewed him for the background report and would wish eventually on release from custody to serve society in some way again. He expresses regret for causing pain to his family.
In mitigation, I am asked to consider that the particular form of unlawful assembly in this case did not involve or cause bodily harm or damage to people. The defendant’s resistance to arrest was for a short time and, in respect of some of the charges, in respect of all of the petrol bombs, there was no evidence that they had been used, although there is evidence that the defendant had one petrol bomb in his hand during the course of the unlawful assembly, and this defendant asks for leniency.
As far as the 2nd defendant is concerned, he is, as I have already said, a young man. On his arrest, I am told that he suffered some knee injury, involving him being hospitalised for three days. He was 16 years and 1 month old at the time of the offence, with a clear record, studying in Form 6, a good record of conduct in school. This defendant has a particular skill. He is a footballer of a high level of competence and skill, particularly in the area of what is described as futsal, which is a — I think, believe is a Brazilian form of football, on a smaller pitch than regular football. There are a number of letters of commendation from the school social worker and his football coach and others. He is regretful and remorseful and hopes to study in future for a Bachelor of Arts in Physical Education.
The submission in respect of this defendant is that no specific acts of violence can be attributed to him. His conviction relies solely on his presence at the unlawful assembly. He appears to be dressed at the time in a style that suggests he has just come from football training, which is what was said in mitigation. And, besides his presence at the unlawful assembly, no other, as it were, tools or items such as offensive weapons were found on him.
A number of reports have been obtained on this defendant. They reflect the mitigation that has been put forward. The defendant being of the age he is, 17 years old, the court also has other options for sentencing besides the normal range of sentences of imprisonment and community service orders and probation orders. Also, the defendant is eligible for detention in the facilities run by the Correctional Services Department for training of young people, which is detention centre, rehabilitation centre or training centre. I am told from the report from the Correctional Services Department there are places available for him and he could be sentenced to any one of those options.
I deal with the 4th defendant. The 4th defendant also has expressed his remorse to the court and also in the course of interviews by the Probation Services. He is now aged 26, born and brought up in Hong Kong. He studied in City University and worked as a part-time bank staff at the time; lives with his parents and younger sister, and there are health issues in respect of his parents which are dealt with in the background report. He is said as coming from a close-knit family and has a previous clear record.
There are a number of mitigation letters in respect of the defendant.
In the defendant’s mitigation, he of course admits his presence at the site of the unlawful assembly and the possession of the items found upon him. He suggests in mitigation that the rubbing alcohol found on him was to use to clean wounds and that the petrol bombs found on him had been given to him by other younger people at the assembly and he was, as it were, holding them for them, but at the time when he was intercepted he had not disposed of them.
As far as the unlawful assembly is concerned, it is said that the defendant, although present, there is on the facts no evidence indicating he performed violent acts. And, finally, the defendant shows a genuine remorse, comes from a decent character and will not reoffend, and asks for leniency in respect of those matters. I note, for this defendant, he has also been detained for 14 months at this point.
Now I turn to the approach to sentencing. Of course, the case that courts must in sentencing approach in a way that is consistent and achieve consistency in the outcomes. The charges that these defendants face do not have a — what I call a directly applicable guideline but there are guidelines available.
I will turn first to the offence of unlawful assembly, contrary to 18(1) of the Public Order Ordinance, which all defendants face. The factual basis for this, agreed by all three defendants, is that they all took place in an unlawful assembly at the area, where a large number of persons assembled involving acts of barricading and occupying road carriages, including the use of laser beams against police, which amounted to conduct of disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear the persons so assembled would a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace. That is the agreed fact.
It must be noted that unlawful assemblies cover a wide range of circumstances, but these facts, as agreed by the defendants, establish this was a case of violent civil disorder characterised by violence towards the property, whether manifested as blockage of throughways and roadways, and as such is a serious form of unlawful assembly, and also took place during the course of a period of serious social disorder in Hong Kong.
The general approach to sentencing in cases of unlawful assembly has been dealt with by both the Court of Appeal and Final Court of Appeal in Hong Kong. The case is Secretary for Justice v Wong Chi Fung & Ors CAAR No.4 of 2016. The relevant part of that judgment is where the Court of Appeal at page 77:
“(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence, and the sentencing factor of rehabilitation.
(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”
At paragraph 153 they say:
“For serious cases, the main purpose of the sentence is to punish and deter. So the overall consideration of the court should be inclined towards imposing an immediate custodial sentence. Unless there are very exceptional circumstances, and these circumstances by definition should be rare, sentences other than an immediate custodial sentence, including suspended sentences and community services, are not appropriate.”
That is the words of the Court of Appeal, and that is the approach that I must take in respect of the sentencing on Charge 1 in this case.
Both the 1st and 4th defendants face charges which particularise and criminalise their possession of various items. Of particular relevance are the petrol bombs, otherwise described as “Molotov cocktails”. This is charged under section 62A of the Crimes Ordinance, Cap 200. That particular section has a maximum sentence of 10 years’ imprisonment.
I note there are no guideline sentences from the Court of Appeal in respect of this particular case or charge. The Court of Appeal has recently considered a starting point for sentence, where petrol bombs are used and ignited and thrown under the charge — and those will be found under charges of arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA 1087, and those charges involved offences of arson where there was recklessness as to endangerment of life. So that authority is not directly relevant to the facts of this case or the charge in this case, which alleges an intent to damage property.
The overview of sentencing in HKSAR v Yiu Siu Hong suggests that, for those offences, depending on the circumstances of aggravation or mitigation, a starting point in the region of 5 to 6 years is appropriate. I have been referred to some concomitant District Court cases under section 62A, where starting points for sentence have ranged between 3½ to 4 years’ imprisonment for possession of these forms of what we are in effect explosive devices.
An important factor in this case when assessing the starting point for sentence under the charge under section 62A of the Crimes Ordinance is that these items were possessed in a public gathering, especially a serious public disorder. Possession of these items does reflect a major escalation of risk and a major escalation of danger to others.
I take from this summary that simple possession of a petrol bomb at a violent disorder type of unlawful assembly gathering will lead to a starting point for sentence which ranges between 3 to 4½ years’ imprisonment, subject to various mitigating or aggravating factors in the circumstances of commission.
I also note, as far as the other offences that are charged in this indictment, the 1st defendant faces a charge of possession of prohibited weapon, where a maximum sentence of up to 3 years could be imposed. Under Charge 7, possession of the radiocommunications without a licence, a sentence of up to 5 years’ imprisonment can be imposed. Under Charge 2, resisting arrest, a sentence of up to 6 months’ imprisonment can be imposed.
Having dealt with that résumé of the sentencing powers of the court, I now deal with the individual sentences that should be imposed in respect of the individual defendants.
As far as the 1st defendant is concerned, I do reiterate that I note the mitigation advanced in his case and the commendations for his previous service and the good impression made on his colleagues. But I also have to bear in mind that the purposes of sentencing, in at least the 1st and 4th charges the defendant faces, the court has to give weight to punishment and deterrence, and, when that weight is given, very little or no weight can be given as to defendant’s motives or reasons for committing the offence and his personal circumstances.
Naturally, the conviction and sentencing of this case will mean the defendant will have to be separated from his family and also will find that a career in public service is no longer available to him. These are substantial punishments against the 1st defendant before one turns to whatever the prison sentence must be.
As I said, he is convicted in respect of Charge 1 and 4, where the primary purpose of sentence is deterrence. Accordingly, his personal circumstances and motivations are of small relevance to sentencing. The defendant’s past commendations and public service must be set against the reputational damage incurred by his involvement in this disorder.
Defendant is naturally entitled to a full one-third discount from the starting points for sentences that I will indicate.
As far as Charge 1 is concerned, that is a serious violent disorder. Defendant was present. He was armed with a knife and four petrol bombs at the time.
The Charge 1 is to a certain extent mirrored in its considerations with Charge 4, as far as the defendant is concerned. In determining the defendant’s sentence on Charge 4, I bear in mind that, firstly, he was in possession of the four petrol bombs set out in the charge. His possession of the radio telecommunications devices suggest that he was involved in some co-ordinating role as well. Also, other serious weapons were seized at the time, including a hammer, crowbar and the knife.
Finally, in respect of the defendant’s possession of the petrol bomb which was seen to be in his hand, that would reflect a serious escalation of the unlawful assembly if the defendant had chosen to find a way of igniting the petrol bomb. The fact that he had it in his hand is certainly more serious than it being placed in his rucksack.
On the 1st charge, in respect of the 1st defendant, of an unlawful assembly, I will take a starting point at 30 months’ imprisonment, reduce that to 20 months’ imprisonment for his plea of guilty.
On the 2nd charge of resisting a police officer, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for his plea of guilty.
On the 3rd charge of possession of the prohibited weapon, again take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for plea of guilty.
On the 4th charge of possession of a thing with intent to damage property, I will take a starting point at 48 months’ imprisonment, which I will reduce to 32 months’ imprisonment for the defendant’s plea of guilty.
On the 7th charge, possession of apparatus for radiocommunications without a licence, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.
I must consider what appropriate overall total sentence should be for this defendant. There is of course a number of overlaps between the various charges, particularly the 1st and 4th charges. Having regard to the factors I have already set out, I shall order the 1st, 4th and 7th charges should be served concurrently to each other and the 2nd and 3rd charges should be served concurrently to each other but consecutively to the 1st, 4th and 7th charges. That would give an overall total of 34 months’ imprisonment for the 1st defendant.
I shall deal now with the 4th defendant because the considerations in respect of his offence are similar to those of the 1st defendant. Then I will return to the 2nd defendant at the end.
The 4th defendant, the calculation of the sentences against him is similar in a way to the 1st defendant and I will take the same starting point for sentence on the unlawful assembly. He was present at a serious disorder in possession of petrol bombs, two petrol bombs. So I will take a starting point of 30 months’ imprisonment, reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.
He also faces the 5th charge, possessing things with intent to damage property, contrary to section 62(a) of the Crimes Ordinance. I do take account of the defendant’s account of how he came to be in possession of those two petrol bombs, but the petrol bombs were possessed with the capacity to light them and the defendant has admitted that he possessed them intending without legal excuse to use the said things to damage property, so I must bear that in mind when assessing the appropriate starting point for sentence. Again, the possession of petrol bombs at an unlawful assembly represents substantial escalation of the danger and risk.
And, finally, this defendant was dressed in a “black bloc” fashion, which would be an aggravating factor for him.
I will take a starting point in respect of this defendant of 3½ years on the 5th charge, which is 42 months, reduced to 28 months’ imprisonment for his plea of guilty. Sentences on Charge 1 and 5 will be served concurrently. Total of 28 months’ imprisonment.
The 2nd defendant. Again, I have set out the sentencing factors in respect of the 2nd defendant and a range of sentences are available to him, bearing in mind he is 17 years old. The authority dealing with the unlawful assembly, as I have already iterated, sets out that serious unlawful assembly – so this must fall into the category of a serious unlawful assembly – the object of the court is to punish and deter and the court should be inclined to impose an immediate custodial sentence.
Having regard to the sentences already passed on the 1st and 4th defendants in respect of this 1st charge, clearly an immediate custodial sentence is the appropriate sentence to be imposed and the court could only depart from that if there are exceptional circumstances, which are rare.
When determining this defendant’s sentence, I do bear in mind the absence of aggravating factors such as the defendant being in possession of other items or being seen to be actively participating in the violence. But what must be noted about this particular unlawful assembly is, as far as the facts that I have before me show, it always was a violent disorder and so the 2nd defendant must have joined this violent disorder knowing that that was its character.
I consider that I am bound by the authorities before me to consider this as a case where a sentence of imprisonment is appropriate for any person of the defendant’s age. As far as the recommendations contained in the various reports I have, the defendant is actually not recommended for a community service order. It is thought that a probation order would be more appropriate for him. But, having regard to the appellate direction, a probation order would be seen to be too lenient to disposal, even for a defendant of this age.
This would leave me with the only custodial options being an immediate sentence of imprisonment or the three forms of training that would be offered by the Correctional Services Department, for which the defendant is suitable for and for which there are places for him. I am told by the Correctional Services Department that this defendant is more suited to a detention centre order than any other of the orders that they can offer to this defendant.
In sentencing this defendant, I have already said that I bear in mind his youth, his good character beforehand. He has become involved in an offence for which a sentence of imprisonment must be imposed. Because of his age, I can find an alternative to that and the alternative that I will direct for this defendant is, in respect of the charge that he faces, Charge 1, he be sentenced to a rehabilitation centre, which will provide a regime which may assist in a more speedy release from custody. That is the order I will make: a rehabilitation centre on Charge 1 for the 2nd defendant.
(T Casewell)
District Judge
DCCC 259/2020
祁士偉
區院
認罪
罪成
消防員
34
管有任何物品意圖摧毀或損壞財產
刀、鎚、鐵筆、汽油彈
判囚
32
旺角
DCCC 259/2020
[2021] HKDC 234
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 259 OF 2020
———————-
HKSAR
v
Fong Chi-hung (D1)
Lam Chin-to (D2)
Chiu Ho-chun (D4)
———————-
Before: HH Judge Casewell
Date: 15 January 2021 at 11.18 am
Present: Mr Wayne Lee, PP of the Department of Justice, for HKSAR
Ms Fiona Nam Hoi-yan, instructed by Cedric & Co, assigned by DLA, for the 1st defendant
Mr Edward Poon Ting-bond, instructed by S C Ho & Co, assigned by DLA, for the 2nd defendant
Ms Adgie N K Chan, instructed by C & Y Lawyers, for the 4th defendant
Offence: (1) Unlawful assembly (非法集結)
(against all defendants)
(2) Resisting a police officer in the due execution of his duty(抗拒在正當執行職務的警務人員)(against D1 only)
(3) Possession of a prohibited weapon (管有違禁武器) (against D1 only)
(4) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D1 only)
(5) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D4 only)
(7) Possession of apparatus for radiocommunications without a licence
(在沒有領有牌照的情況下管有作無線電通訊之用的器具)
(against D1 only)
———————
Reasons for Sentence
———————
I am asked to consider a sentencing in respect of three defendants on this indictment today. These three defendants have initially pleaded guilty to a joint charge of unlawful assembly regarding an event on 10 November 2019. Two of the defendants, namely the 1st and 4th defendants, have also pleaded guilty to additional charges in respect of items found upon them at the time of their arrest.
The background to the offence is that and the facts that support the convictions of the defendants are that on the evening of 10 November 2019 a large group of persons had assembled in the area of Nathan Road and Shantung Street. Some 100 people were assembled in that area. This assembly caused police units to be dispatched to disperse those persons so assembled. The defendants were arrested during the dispersal operation.
In the areas where these persons assembled, an unlawful assembly took place. The people assembled there barricaded roads, occupied road carriageways, used laser-pointing devices against police conducting the dispersal operation.
Police arrested the 4th defendant in an area where a large group of people occupied roads and blocked those roads with miscellaneous items. The 1st and 2nd defendants were arrested in a large group of people clad in black and masked. The roadway was blocked with bricks and miscellaneous items were strewn upon the ground.
The 1st defendant was seen to hold a petrol bomb in his hand, which he discarded by the side of the road. The 1st defendant is also said to have resisted his arrest by hitting the facial shield of the arresting officer and lifting the officer up when he was being subdued, and those are the facts that support the 2nd charge against the 1st defendant.
In another direction in the same area, large numbers of people were gathered, dressed in black, holding umbrellas and shining laser pointers.
On arrest, a number of items were found on the defendants, particularly the 1st and 4th defendants. Some form the particulars in the charges faced by the defendant.
The 1st defendant was found to be in possession of a spring-loaded knife and that can be found in Charge 3, a charge of possession of a prohibited weapon, contrary to the section 4 of the Weapons Ordinance. The 1st defendant was also found to be in possession of a wireless microphone. That is reflected in Charge 7 against him, possession of apparatus for radiocommunications without a licence. He was also found to be in possession of the following additional items: plastic straps, a hammer, scissors, a crowbar and four petrol bombs, one of those being the petrol bomb earlier seen, with three additional ones under his custody and control, and these form the charge against the 1st defendant, Charge 4.
The 4th defendant was also searched and found in his rucksack and on his person were two petrol bombs, two lighters and a bottle of isopropyl alcohol, and that forms the basis of the 5th charge against the 4th defendant.
It is noteworthy that these events on 11 November took place during what is described by the Final Court of Appeal as the “sudden and severe deterioration of law and order in Hong Kong arising from protests and social unrest” during the period of September to November 2019. The Final Court of Appeal case that I am referring to is HKSAR v Kwok Wing Hang, which was the Court of Appeal’s decision 9 of 2020, and I refer to what was described as unchallenged evidence in that case, where it was described that the situation in Hong Kong deteriorated during October and November and was described as a “further escalation of violence and vandalism especially since the week of 11 November”, which would be shortly after these events that we are dealing with today, and what was particularly frequent was extensive road blockages with dangerous items placed on vehicular passageways and railway lines and it is even said that even petrol bombs and hard objects were hurled at moving vehicles and the like.
The Court of Final Appeal also noted the following phenomena at paragraph 91, the phenomena of what they describe as “black bloc” tactics, people concealing identity and thereby evading arrest and prosecution, and describe protestors using black clothing with little or no distinguishing features, and that is, in fact, included in the facts at paragraph 6 in this case.
Those are the basic facts that the court has to rely on in this case and show a serious and violent disorder taking place involving violence towards property.
The three defendants before me range in ages, but they all are people of clear records. The 1st defendant is aged 34, the 2nd defendant is aged 17, and the 4th defendant is now aged 26.
I have received mitigation from all the three defendants I am dealing with today. As I say, they all have the common feature of being people of hitherto clear record before they came to this court. They all have individual aspects of mitigation which they wish to put before the court. I will have to summarise those for the purposes of the sentencing process, but I have read all the documents contained in their mitigation bundles, including the letters of support and commendation from many people, and I note their contents.
I have also obtained reports which give me the backgrounds of all three defendants. Because the 2nd defendant was only aged 17, I have obtained additional reports on him to investigate a number of options as to sentencing that defendant.
I shall simply précis the 1st defendant’s position in this matter. He is aged 34, of clear record, coming to Hong Kong when he was 12 years old. He graduated with a Higher Diploma in Marketing and Media in 2011 and joined the Fire Services Department and been working as a fireman from that date until the suspension following his arrest on 10 November 2019. That means that he has had 10 years’ service in the Fire Services Department and was at one point in respect of an operation in 2017 awarded a commendation by the Director of Fire Services in recognition of his professionalism and perseverance in his mission. I have had the opportunity of reading a number of mitigation letters which commend the defendant to me from colleagues and superiors.
He is a father of two young children aged 2 and 1 and certainly at the time of his arrest was the sole breadwinner of his family and provided financial support to his parents.
The defendant in mitigation does not suggest to me the charges are not serious. He acknowledges the severity of the charges against him and I am told he understands a custodial sentence will be imposed because of the nature of the deterrent effect. He expresses remorse and has again expressed it to the probation officer who has interviewed him for the background report and would wish eventually on release from custody to serve society in some way again. He expresses regret for causing pain to his family.
In mitigation, I am asked to consider that the particular form of unlawful assembly in this case did not involve or cause bodily harm or damage to people. The defendant’s resistance to arrest was for a short time and, in respect of some of the charges, in respect of all of the petrol bombs, there was no evidence that they had been used, although there is evidence that the defendant had one petrol bomb in his hand during the course of the unlawful assembly, and this defendant asks for leniency.
As far as the 2nd defendant is concerned, he is, as I have already said, a young man. On his arrest, I am told that he suffered some knee injury, involving him being hospitalised for three days. He was 16 years and 1 month old at the time of the offence, with a clear record, studying in Form 6, a good record of conduct in school. This defendant has a particular skill. He is a footballer of a high level of competence and skill, particularly in the area of what is described as futsal, which is a — I think, believe is a Brazilian form of football, on a smaller pitch than regular football. There are a number of letters of commendation from the school social worker and his football coach and others. He is regretful and remorseful and hopes to study in future for a Bachelor of Arts in Physical Education.
The submission in respect of this defendant is that no specific acts of violence can be attributed to him. His conviction relies solely on his presence at the unlawful assembly. He appears to be dressed at the time in a style that suggests he has just come from football training, which is what was said in mitigation. And, besides his presence at the unlawful assembly, no other, as it were, tools or items such as offensive weapons were found on him.
A number of reports have been obtained on this defendant. They reflect the mitigation that has been put forward. The defendant being of the age he is, 17 years old, the court also has other options for sentencing besides the normal range of sentences of imprisonment and community service orders and probation orders. Also, the defendant is eligible for detention in the facilities run by the Correctional Services Department for training of young people, which is detention centre, rehabilitation centre or training centre. I am told from the report from the Correctional Services Department there are places available for him and he could be sentenced to any one of those options.
I deal with the 4th defendant. The 4th defendant also has expressed his remorse to the court and also in the course of interviews by the Probation Services. He is now aged 26, born and brought up in Hong Kong. He studied in City University and worked as a part-time bank staff at the time; lives with his parents and younger sister, and there are health issues in respect of his parents which are dealt with in the background report. He is said as coming from a close-knit family and has a previous clear record.
There are a number of mitigation letters in respect of the defendant.
In the defendant’s mitigation, he of course admits his presence at the site of the unlawful assembly and the possession of the items found upon him. He suggests in mitigation that the rubbing alcohol found on him was to use to clean wounds and that the petrol bombs found on him had been given to him by other younger people at the assembly and he was, as it were, holding them for them, but at the time when he was intercepted he had not disposed of them.
As far as the unlawful assembly is concerned, it is said that the defendant, although present, there is on the facts no evidence indicating he performed violent acts. And, finally, the defendant shows a genuine remorse, comes from a decent character and will not reoffend, and asks for leniency in respect of those matters. I note, for this defendant, he has also been detained for 14 months at this point.
Now I turn to the approach to sentencing. Of course, the case that courts must in sentencing approach in a way that is consistent and achieve consistency in the outcomes. The charges that these defendants face do not have a — what I call a directly applicable guideline but there are guidelines available.
I will turn first to the offence of unlawful assembly, contrary to 18(1) of the Public Order Ordinance, which all defendants face. The factual basis for this, agreed by all three defendants, is that they all took place in an unlawful assembly at the area, where a large number of persons assembled involving acts of barricading and occupying road carriages, including the use of laser beams against police, which amounted to conduct of disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear the persons so assembled would a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace. That is the agreed fact.
It must be noted that unlawful assemblies cover a wide range of circumstances, but these facts, as agreed by the defendants, establish this was a case of violent civil disorder characterised by violence towards the property, whether manifested as blockage of throughways and roadways, and as such is a serious form of unlawful assembly, and also took place during the course of a period of serious social disorder in Hong Kong.
The general approach to sentencing in cases of unlawful assembly has been dealt with by both the Court of Appeal and Final Court of Appeal in Hong Kong. The case is Secretary for Justice v Wong Chi Fung & Ors CAAR No.4 of 2016. The relevant part of that judgment is where the Court of Appeal at page 77:
“(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence, and the sentencing factor of rehabilitation.
(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”
At paragraph 153 they say:
“For serious cases, the main purpose of the sentence is to punish and deter. So the overall consideration of the court should be inclined towards imposing an immediate custodial sentence. Unless there are very exceptional circumstances, and these circumstances by definition should be rare, sentences other than an immediate custodial sentence, including suspended sentences and community services, are not appropriate.”
That is the words of the Court of Appeal, and that is the approach that I must take in respect of the sentencing on Charge 1 in this case.
Both the 1st and 4th defendants face charges which particularise and criminalise their possession of various items. Of particular relevance are the petrol bombs, otherwise described as “Molotov cocktails”. This is charged under section 62A of the Crimes Ordinance, Cap 200. That particular section has a maximum sentence of 10 years’ imprisonment.
I note there are no guideline sentences from the Court of Appeal in respect of this particular case or charge. The Court of Appeal has recently considered a starting point for sentence, where petrol bombs are used and ignited and thrown under the charge — and those will be found under charges of arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA 1087, and those charges involved offences of arson where there was recklessness as to endangerment of life. So that authority is not directly relevant to the facts of this case or the charge in this case, which alleges an intent to damage property.
The overview of sentencing in HKSAR v Yiu Siu Hong suggests that, for those offences, depending on the circumstances of aggravation or mitigation, a starting point in the region of 5 to 6 years is appropriate. I have been referred to some concomitant District Court cases under section 62A, where starting points for sentence have ranged between 3½ to 4 years’ imprisonment for possession of these forms of what we are in effect explosive devices.
An important factor in this case when assessing the starting point for sentence under the charge under section 62A of the Crimes Ordinance is that these items were possessed in a public gathering, especially a serious public disorder. Possession of these items does reflect a major escalation of risk and a major escalation of danger to others.
I take from this summary that simple possession of a petrol bomb at a violent disorder type of unlawful assembly gathering will lead to a starting point for sentence which ranges between 3 to 4½ years’ imprisonment, subject to various mitigating or aggravating factors in the circumstances of commission.
I also note, as far as the other offences that are charged in this indictment, the 1st defendant faces a charge of possession of prohibited weapon, where a maximum sentence of up to 3 years could be imposed. Under Charge 7, possession of the radiocommunications without a licence, a sentence of up to 5 years’ imprisonment can be imposed. Under Charge 2, resisting arrest, a sentence of up to 6 months’ imprisonment can be imposed.
Having dealt with that résumé of the sentencing powers of the court, I now deal with the individual sentences that should be imposed in respect of the individual defendants.
As far as the 1st defendant is concerned, I do reiterate that I note the mitigation advanced in his case and the commendations for his previous service and the good impression made on his colleagues. But I also have to bear in mind that the purposes of sentencing, in at least the 1st and 4th charges the defendant faces, the court has to give weight to punishment and deterrence, and, when that weight is given, very little or no weight can be given as to defendant’s motives or reasons for committing the offence and his personal circumstances.
Naturally, the conviction and sentencing of this case will mean the defendant will have to be separated from his family and also will find that a career in public service is no longer available to him. These are substantial punishments against the 1st defendant before one turns to whatever the prison sentence must be.
As I said, he is convicted in respect of Charge 1 and 4, where the primary purpose of sentence is deterrence. Accordingly, his personal circumstances and motivations are of small relevance to sentencing. The defendant’s past commendations and public service must be set against the reputational damage incurred by his involvement in this disorder.
Defendant is naturally entitled to a full one-third discount from the starting points for sentences that I will indicate.
As far as Charge 1 is concerned, that is a serious violent disorder. Defendant was present. He was armed with a knife and four petrol bombs at the time.
The Charge 1 is to a certain extent mirrored in its considerations with Charge 4, as far as the defendant is concerned. In determining the defendant’s sentence on Charge 4, I bear in mind that, firstly, he was in possession of the four petrol bombs set out in the charge. His possession of the radio telecommunications devices suggest that he was involved in some co-ordinating role as well. Also, other serious weapons were seized at the time, including a hammer, crowbar and the knife.
Finally, in respect of the defendant’s possession of the petrol bomb which was seen to be in his hand, that would reflect a serious escalation of the unlawful assembly if the defendant had chosen to find a way of igniting the petrol bomb. The fact that he had it in his hand is certainly more serious than it being placed in his rucksack.
On the 1st charge, in respect of the 1st defendant, of an unlawful assembly, I will take a starting point at 30 months’ imprisonment, reduce that to 20 months’ imprisonment for his plea of guilty.
On the 2nd charge of resisting a police officer, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for his plea of guilty.
On the 3rd charge of possession of the prohibited weapon, again take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for plea of guilty.
On the 4th charge of possession of a thing with intent to damage property, I will take a starting point at 48 months’ imprisonment, which I will reduce to 32 months’ imprisonment for the defendant’s plea of guilty.
On the 7th charge, possession of apparatus for radiocommunications without a licence, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.
I must consider what appropriate overall total sentence should be for this defendant. There is of course a number of overlaps between the various charges, particularly the 1st and 4th charges. Having regard to the factors I have already set out, I shall order the 1st, 4th and 7th charges should be served concurrently to each other and the 2nd and 3rd charges should be served concurrently to each other but consecutively to the 1st, 4th and 7th charges. That would give an overall total of 34 months’ imprisonment for the 1st defendant.
I shall deal now with the 4th defendant because the considerations in respect of his offence are similar to those of the 1st defendant. Then I will return to the 2nd defendant at the end.
The 4th defendant, the calculation of the sentences against him is similar in a way to the 1st defendant and I will take the same starting point for sentence on the unlawful assembly. He was present at a serious disorder in possession of petrol bombs, two petrol bombs. So I will take a starting point of 30 months’ imprisonment, reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.
He also faces the 5th charge, possessing things with intent to damage property, contrary to section 62(a) of the Crimes Ordinance. I do take account of the defendant’s account of how he came to be in possession of those two petrol bombs, but the petrol bombs were possessed with the capacity to light them and the defendant has admitted that he possessed them intending without legal excuse to use the said things to damage property, so I must bear that in mind when assessing the appropriate starting point for sentence. Again, the possession of petrol bombs at an unlawful assembly represents substantial escalation of the danger and risk.
And, finally, this defendant was dressed in a “black bloc” fashion, which would be an aggravating factor for him.
I will take a starting point in respect of this defendant of 3½ years on the 5th charge, which is 42 months, reduced to 28 months’ imprisonment for his plea of guilty. Sentences on Charge 1 and 5 will be served concurrently. Total of 28 months’ imprisonment.
The 2nd defendant. Again, I have set out the sentencing factors in respect of the 2nd defendant and a range of sentences are available to him, bearing in mind he is 17 years old. The authority dealing with the unlawful assembly, as I have already iterated, sets out that serious unlawful assembly – so this must fall into the category of a serious unlawful assembly – the object of the court is to punish and deter and the court should be inclined to impose an immediate custodial sentence.
Having regard to the sentences already passed on the 1st and 4th defendants in respect of this 1st charge, clearly an immediate custodial sentence is the appropriate sentence to be imposed and the court could only depart from that if there are exceptional circumstances, which are rare.
When determining this defendant’s sentence, I do bear in mind the absence of aggravating factors such as the defendant being in possession of other items or being seen to be actively participating in the violence. But what must be noted about this particular unlawful assembly is, as far as the facts that I have before me show, it always was a violent disorder and so the 2nd defendant must have joined this violent disorder knowing that that was its character.
I consider that I am bound by the authorities before me to consider this as a case where a sentence of imprisonment is appropriate for any person of the defendant’s age. As far as the recommendations contained in the various reports I have, the defendant is actually not recommended for a community service order. It is thought that a probation order would be more appropriate for him. But, having regard to the appellate direction, a probation order would be seen to be too lenient to disposal, even for a defendant of this age.
This would leave me with the only custodial options being an immediate sentence of imprisonment or the three forms of training that would be offered by the Correctional Services Department, for which the defendant is suitable for and for which there are places for him. I am told by the Correctional Services Department that this defendant is more suited to a detention centre order than any other of the orders that they can offer to this defendant.
In sentencing this defendant, I have already said that I bear in mind his youth, his good character beforehand. He has become involved in an offence for which a sentence of imprisonment must be imposed. Because of his age, I can find an alternative to that and the alternative that I will direct for this defendant is, in respect of the charge that he faces, Charge 1, he be sentenced to a rehabilitation centre, which will provide a regime which may assist in a more speedy release from custody. That is the order I will make: a rehabilitation centre on Charge 1 for the 2nd defendant.
(T Casewell)
District Judge
DCCC 259/2020
祁士偉
區院
認罪
罪成
消防員
34
無牌管有無線電通訊器具
判囚
2
11/10/2019
旺角
DCCC 259/2020
[2021] HKDC 234
IN THE DISTRICT COURT OF THE
SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 259 OF 2020
———————-
HKSAR
v
Fong Chi-hung (D1)
Lam Chin-to (D2)
Chiu Ho-chun (D4)
———————-
Before: HH Judge Casewell
Date: 15 January 2021 at 11.18 am
Present: Mr Wayne Lee, PP of the Department of Justice, for HKSAR
Ms Fiona Nam Hoi-yan, instructed by Cedric & Co, assigned by DLA, for the 1st defendant
Mr Edward Poon Ting-bond, instructed by S C Ho & Co, assigned by DLA, for the 2nd defendant
Ms Adgie N K Chan, instructed by C & Y Lawyers, for the 4th defendant
Offence: (1) Unlawful assembly (非法集結)
(against all defendants)
(2) Resisting a police officer in the due execution of his duty(抗拒在正當執行職務的警務人員)(against D1 only)
(3) Possession of a prohibited weapon (管有違禁武器) (against D1 only)
(4) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D1 only)
(5) Possessing things with intent to damage property (管有物品意圖損壞財產)(against D4 only)
(7) Possession of apparatus for radiocommunications without a licence
(在沒有領有牌照的情況下管有作無線電通訊之用的器具)
(against D1 only)
———————
Reasons for Sentence
———————
I am asked to consider a sentencing in respect of three defendants on this indictment today. These three defendants have initially pleaded guilty to a joint charge of unlawful assembly regarding an event on 10 November 2019. Two of the defendants, namely the 1st and 4th defendants, have also pleaded guilty to additional charges in respect of items found upon them at the time of their arrest.
The background to the offence is that and the facts that support the convictions of the defendants are that on the evening of 10 November 2019 a large group of persons had assembled in the area of Nathan Road and Shantung Street. Some 100 people were assembled in that area. This assembly caused police units to be dispatched to disperse those persons so assembled. The defendants were arrested during the dispersal operation.
In the areas where these persons assembled, an unlawful assembly took place. The people assembled there barricaded roads, occupied road carriageways, used laser-pointing devices against police conducting the dispersal operation.
Police arrested the 4th defendant in an area where a large group of people occupied roads and blocked those roads with miscellaneous items. The 1st and 2nd defendants were arrested in a large group of people clad in black and masked. The roadway was blocked with bricks and miscellaneous items were strewn upon the ground.
The 1st defendant was seen to hold a petrol bomb in his hand, which he discarded by the side of the road. The 1st defendant is also said to have resisted his arrest by hitting the facial shield of the arresting officer and lifting the officer up when he was being subdued, and those are the facts that support the 2nd charge against the 1st defendant.
In another direction in the same area, large numbers of people were gathered, dressed in black, holding umbrellas and shining laser pointers.
On arrest, a number of items were found on the defendants, particularly the 1st and 4th defendants. Some form the particulars in the charges faced by the defendant.
The 1st defendant was found to be in possession of a spring-loaded knife and that can be found in Charge 3, a charge of possession of a prohibited weapon, contrary to the section 4 of the Weapons Ordinance. The 1st defendant was also found to be in possession of a wireless microphone. That is reflected in Charge 7 against him, possession of apparatus for radiocommunications without a licence. He was also found to be in possession of the following additional items: plastic straps, a hammer, scissors, a crowbar and four petrol bombs, one of those being the petrol bomb earlier seen, with three additional ones under his custody and control, and these form the charge against the 1st defendant, Charge 4.
The 4th defendant was also searched and found in his rucksack and on his person were two petrol bombs, two lighters and a bottle of isopropyl alcohol, and that forms the basis of the 5th charge against the 4th defendant.
It is noteworthy that these events on 11 November took place during what is described by the Final Court of Appeal as the “sudden and severe deterioration of law and order in Hong Kong arising from protests and social unrest” during the period of September to November 2019. The Final Court of Appeal case that I am referring to is HKSAR v Kwok Wing Hang, which was the Court of Appeal’s decision 9 of 2020, and I refer to what was described as unchallenged evidence in that case, where it was described that the situation in Hong Kong deteriorated during October and November and was described as a “further escalation of violence and vandalism especially since the week of 11 November”, which would be shortly after these events that we are dealing with today, and what was particularly frequent was extensive road blockages with dangerous items placed on vehicular passageways and railway lines and it is even said that even petrol bombs and hard objects were hurled at moving vehicles and the like.
The Court of Final Appeal also noted the following phenomena at paragraph 91, the phenomena of what they describe as “black bloc” tactics, people concealing identity and thereby evading arrest and prosecution, and describe protestors using black clothing with little or no distinguishing features, and that is, in fact, included in the facts at paragraph 6 in this case.
Those are the basic facts that the court has to rely on in this case and show a serious and violent disorder taking place involving violence towards property.
The three defendants before me range in ages, but they all are people of clear records. The 1st defendant is aged 34, the 2nd defendant is aged 17, and the 4th defendant is now aged 26.
I have received mitigation from all the three defendants I am dealing with today. As I say, they all have the common feature of being people of hitherto clear record before they came to this court. They all have individual aspects of mitigation which they wish to put before the court. I will have to summarise those for the purposes of the sentencing process, but I have read all the documents contained in their mitigation bundles, including the letters of support and commendation from many people, and I note their contents.
I have also obtained reports which give me the backgrounds of all three defendants. Because the 2nd defendant was only aged 17, I have obtained additional reports on him to investigate a number of options as to sentencing that defendant.
I shall simply précis the 1st defendant’s position in this matter. He is aged 34, of clear record, coming to Hong Kong when he was 12 years old. He graduated with a Higher Diploma in Marketing and Media in 2011 and joined the Fire Services Department and been working as a fireman from that date until the suspension following his arrest on 10 November 2019. That means that he has had 10 years’ service in the Fire Services Department and was at one point in respect of an operation in 2017 awarded a commendation by the Director of Fire Services in recognition of his professionalism and perseverance in his mission. I have had the opportunity of reading a number of mitigation letters which commend the defendant to me from colleagues and superiors.
He is a father of two young children aged 2 and 1 and certainly at the time of his arrest was the sole breadwinner of his family and provided financial support to his parents.
The defendant in mitigation does not suggest to me the charges are not serious. He acknowledges the severity of the charges against him and I am told he understands a custodial sentence will be imposed because of the nature of the deterrent effect. He expresses remorse and has again expressed it to the probation officer who has interviewed him for the background report and would wish eventually on release from custody to serve society in some way again. He expresses regret for causing pain to his family.
In mitigation, I am asked to consider that the particular form of unlawful assembly in this case did not involve or cause bodily harm or damage to people. The defendant’s resistance to arrest was for a short time and, in respect of some of the charges, in respect of all of the petrol bombs, there was no evidence that they had been used, although there is evidence that the defendant had one petrol bomb in his hand during the course of the unlawful assembly, and this defendant asks for leniency.
As far as the 2nd defendant is concerned, he is, as I have already said, a young man. On his arrest, I am told that he suffered some knee injury, involving him being hospitalised for three days. He was 16 years and 1 month old at the time of the offence, with a clear record, studying in Form 6, a good record of conduct in school. This defendant has a particular skill. He is a footballer of a high level of competence and skill, particularly in the area of what is described as futsal, which is a — I think, believe is a Brazilian form of football, on a smaller pitch than regular football. There are a number of letters of commendation from the school social worker and his football coach and others. He is regretful and remorseful and hopes to study in future for a Bachelor of Arts in Physical Education.
The submission in respect of this defendant is that no specific acts of violence can be attributed to him. His conviction relies solely on his presence at the unlawful assembly. He appears to be dressed at the time in a style that suggests he has just come from football training, which is what was said in mitigation. And, besides his presence at the unlawful assembly, no other, as it were, tools or items such as offensive weapons were found on him.
A number of reports have been obtained on this defendant. They reflect the mitigation that has been put forward. The defendant being of the age he is, 17 years old, the court also has other options for sentencing besides the normal range of sentences of imprisonment and community service orders and probation orders. Also, the defendant is eligible for detention in the facilities run by the Correctional Services Department for training of young people, which is detention centre, rehabilitation centre or training centre. I am told from the report from the Correctional Services Department there are places available for him and he could be sentenced to any one of those options.
I deal with the 4th defendant. The 4th defendant also has expressed his remorse to the court and also in the course of interviews by the Probation Services. He is now aged 26, born and brought up in Hong Kong. He studied in City University and worked as a part-time bank staff at the time; lives with his parents and younger sister, and there are health issues in respect of his parents which are dealt with in the background report. He is said as coming from a close-knit family and has a previous clear record.
There are a number of mitigation letters in respect of the defendant.
In the defendant’s mitigation, he of course admits his presence at the site of the unlawful assembly and the possession of the items found upon him. He suggests in mitigation that the rubbing alcohol found on him was to use to clean wounds and that the petrol bombs found on him had been given to him by other younger people at the assembly and he was, as it were, holding them for them, but at the time when he was intercepted he had not disposed of them.
As far as the unlawful assembly is concerned, it is said that the defendant, although present, there is on the facts no evidence indicating he performed violent acts. And, finally, the defendant shows a genuine remorse, comes from a decent character and will not reoffend, and asks for leniency in respect of those matters. I note, for this defendant, he has also been detained for 14 months at this point.
Now I turn to the approach to sentencing. Of course, the case that courts must in sentencing approach in a way that is consistent and achieve consistency in the outcomes. The charges that these defendants face do not have a — what I call a directly applicable guideline but there are guidelines available.
I will turn first to the offence of unlawful assembly, contrary to 18(1) of the Public Order Ordinance, which all defendants face. The factual basis for this, agreed by all three defendants, is that they all took place in an unlawful assembly at the area, where a large number of persons assembled involving acts of barricading and occupying road carriages, including the use of laser beams against police, which amounted to conduct of disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear the persons so assembled would a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace. That is the agreed fact.
It must be noted that unlawful assemblies cover a wide range of circumstances, but these facts, as agreed by the defendants, establish this was a case of violent civil disorder characterised by violence towards the property, whether manifested as blockage of throughways and roadways, and as such is a serious form of unlawful assembly, and also took place during the course of a period of serious social disorder in Hong Kong.
The general approach to sentencing in cases of unlawful assembly has been dealt with by both the Court of Appeal and Final Court of Appeal in Hong Kong. The case is Secretary for Justice v Wong Chi Fung & Ors CAAR No.4 of 2016. The relevant part of that judgment is where the Court of Appeal at page 77:
“(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence, and the sentencing factor of rehabilitation.
(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”
At paragraph 153 they say:
“For serious cases, the main purpose of the sentence is to punish and deter. So the overall consideration of the court should be inclined towards imposing an immediate custodial sentence. Unless there are very exceptional circumstances, and these circumstances by definition should be rare, sentences other than an immediate custodial sentence, including suspended sentences and community services, are not appropriate.”
That is the words of the Court of Appeal, and that is the approach that I must take in respect of the sentencing on Charge 1 in this case.
Both the 1st and 4th defendants face charges which particularise and criminalise their possession of various items. Of particular relevance are the petrol bombs, otherwise described as “Molotov cocktails”. This is charged under section 62A of the Crimes Ordinance, Cap 200. That particular section has a maximum sentence of 10 years’ imprisonment.
I note there are no guideline sentences from the Court of Appeal in respect of this particular case or charge. The Court of Appeal has recently considered a starting point for sentence, where petrol bombs are used and ignited and thrown under the charge — and those will be found under charges of arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA 1087, and those charges involved offences of arson where there was recklessness as to endangerment of life. So that authority is not directly relevant to the facts of this case or the charge in this case, which alleges an intent to damage property.
The overview of sentencing in HKSAR v Yiu Siu Hong suggests that, for those offences, depending on the circumstances of aggravation or mitigation, a starting point in the region of 5 to 6 years is appropriate. I have been referred to some concomitant District Court cases under section 62A, where starting points for sentence have ranged between 3½ to 4 years’ imprisonment for possession of these forms of what we are in effect explosive devices.
An important factor in this case when assessing the starting point for sentence under the charge under section 62A of the Crimes Ordinance is that these items were possessed in a public gathering, especially a serious public disorder. Possession of these items does reflect a major escalation of risk and a major escalation of danger to others.
I take from this summary that simple possession of a petrol bomb at a violent disorder type of unlawful assembly gathering will lead to a starting point for sentence which ranges between 3 to 4½ years’ imprisonment, subject to various mitigating or aggravating factors in the circumstances of commission.
I also note, as far as the other offences that are charged in this indictment, the 1st defendant faces a charge of possession of prohibited weapon, where a maximum sentence of up to 3 years could be imposed. Under Charge 7, possession of the radiocommunications without a licence, a sentence of up to 5 years’ imprisonment can be imposed. Under Charge 2, resisting arrest, a sentence of up to 6 months’ imprisonment can be imposed.
Having dealt with that résumé of the sentencing powers of the court, I now deal with the individual sentences that should be imposed in respect of the individual defendants.
As far as the 1st defendant is concerned, I do reiterate that I note the mitigation advanced in his case and the commendations for his previous service and the good impression made on his colleagues. But I also have to bear in mind that the purposes of sentencing, in at least the 1st and 4th charges the defendant faces, the court has to give weight to punishment and deterrence, and, when that weight is given, very little or no weight can be given as to defendant’s motives or reasons for committing the offence and his personal circumstances.
Naturally, the conviction and sentencing of this case will mean the defendant will have to be separated from his family and also will find that a career in public service is no longer available to him. These are substantial punishments against the 1st defendant before one turns to whatever the prison sentence must be.
As I said, he is convicted in respect of Charge 1 and 4, where the primary purpose of sentence is deterrence. Accordingly, his personal circumstances and motivations are of small relevance to sentencing. The defendant’s past commendations and public service must be set against the reputational damage incurred by his involvement in this disorder.
Defendant is naturally entitled to a full one-third discount from the starting points for sentences that I will indicate.
As far as Charge 1 is concerned, that is a serious violent disorder. Defendant was present. He was armed with a knife and four petrol bombs at the time.
The Charge 1 is to a certain extent mirrored in its considerations with Charge 4, as far as the defendant is concerned. In determining the defendant’s sentence on Charge 4, I bear in mind that, firstly, he was in possession of the four petrol bombs set out in the charge. His possession of the radio telecommunications devices suggest that he was involved in some co-ordinating role as well. Also, other serious weapons were seized at the time, including a hammer, crowbar and the knife.
Finally, in respect of the defendant’s possession of the petrol bomb which was seen to be in his hand, that would reflect a serious escalation of the unlawful assembly if the defendant had chosen to find a way of igniting the petrol bomb. The fact that he had it in his hand is certainly more serious than it being placed in his rucksack.
On the 1st charge, in respect of the 1st defendant, of an unlawful assembly, I will take a starting point at 30 months’ imprisonment, reduce that to 20 months’ imprisonment for his plea of guilty.
On the 2nd charge of resisting a police officer, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for his plea of guilty.
On the 3rd charge of possession of the prohibited weapon, again take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for plea of guilty.
On the 4th charge of possession of a thing with intent to damage property, I will take a starting point at 48 months’ imprisonment, which I will reduce to 32 months’ imprisonment for the defendant’s plea of guilty.
On the 7th charge, possession of apparatus for radiocommunications without a licence, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.
I must consider what appropriate overall total sentence should be for this defendant. There is of course a number of overlaps between the various charges, particularly the 1st and 4th charges. Having regard to the factors I have already set out, I shall order the 1st, 4th and 7th charges should be served concurrently to each other and the 2nd and 3rd charges should be served concurrently to each other but consecutively to the 1st, 4th and 7th charges. That would give an overall total of 34 months’ imprisonment for the 1st defendant.
I shall deal now with the 4th defendant because the considerations in respect of his offence are similar to those of the 1st defendant. Then I will return to the 2nd defendant at the end.
The 4th defendant, the calculation of the sentences against him is similar in a way to the 1st defendant and I will take the same starting point for sentence on the unlawful assembly. He was present at a serious disorder in possession of petrol bombs, two petrol bombs. So I will take a starting point of 30 months’ imprisonment, reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.
He also faces the 5th charge, possessing things with intent to damage property, contrary to section 62(a) of the Crimes Ordinance. I do take account of the defendant’s account of how he came to be in possession of those two petrol bombs, but the petrol bombs were possessed with the capacity to light them and the defendant has admitted that he possessed them intending without legal excuse to use the said things to damage property, so I must bear that in mind when assessing the appropriate starting point for sentence. Again, the possession of petrol bombs at an unlawful assembly represents substantial escalation of the danger and risk.
And, finally, this defendant was dressed in a “black bloc” fashion, which would be an aggravating factor for him.
I will take a starting point in respect of this defendant of 3½ years on the 5th charge, which is 42 months, reduced to 28 months’ imprisonment for his plea of guilty. Sentences on Charge 1 and 5 will be served concurrently. Total of 28 months’ imprisonment.
The 2nd defendant. Again, I have set out the sentencing factors in respect of the 2nd defendant and a range of sentences are available to him, bearing in mind he is 17 years old. The authority dealing with the unlawful assembly, as I have already iterated, sets out that serious unlawful assembly – so this must fall into the category of a serious unlawful assembly – the object of the court is to punish and deter and the court should be inclined to impose an immediate custodial sentence.
Having regard to the sentences already passed on the 1st and 4th defendants in respect of this 1st charge, clearly an immediate custodial sentence is the appropriate sentence to be imposed and the court could only depart from that if there are exceptional circumstances, which are rare.
When determining this defendant’s sentence, I do bear in mind the absence of aggravating factors such as the defendant being in possession of other items or being seen to be actively participating in the violence. But what must be noted about this particular unlawful assembly is, as far as the facts that I have before me show, it always was a violent disorder and so the 2nd defendant must have joined this violent disorder knowing that that was its character.
I consider that I am bound by the authorities before me to consider this as a case where a sentence of imprisonment is appropriate for any person of the defendant’s age. As far as the recommendations contained in the various reports I have, the defendant is actually not recommended for a community service order. It is thought that a probation order would be more appropriate for him. But, having regard to the appellate direction, a probation order would be seen to be too lenient to disposal, even for a defendant of this age.
This would leave me with the only custodial options being an immediate sentence of imprisonment or the three forms of training that would be offered by the Correctional Services Department, for which the defendant is suitable for and for which there are places for him. I am told by the Correctional Services Department that this defendant is more suited to a detention centre order than any other of the orders that they can offer to this defendant.
In sentencing this defendant, I have already said that I bear in mind his youth, his good character beforehand. He has become involved in an offence for which a sentence of imprisonment must be imposed. Because of his age, I can find an alternative to that and the alternative that I will direct for this defendant is, in respect of the charge that he faces, Charge 1, he be sentenced to a rehabilitation centre, which will provide a regime which may assist in a more speedy release from custody. That is the order I will make: a rehabilitation centre on Charge 1 for the 2nd defendant.
(T Casewell)
District Judge
ESCC211/2020
劉綺雲
裁判法院
不認罪
罪成
退休人士
63
在公眾地方作出擾亂秩序的行為
判囚
5
金鐘
ESCC2567/2019
張志偉
裁判法院
認罪
罪成
司機
35
襲警
判囚
3
中環
ESCC2567/2019
張志偉
裁判法院
不認罪
罪成
司機
35
非法集結
判囚
6
中環
ESCC2567/2019
張志偉
裁判法院
不認罪
罪成
司機
35
蒙面
判囚
2
中環
KTCC465/20
梁少玲
裁判法院
不認罪
不成立
女學生
16
刑事毀壞
11/05/2019
觀塘
KTCC465/20
梁少玲
裁判法院
不認罪
不成立
女學生
12
刑事毀壞
11/05/2019
觀塘
KTCC465/20
梁少玲
裁判法院
不認罪
不成立
無業
19
刑事毀壞
11/05/2019
觀塘
KTCC465/20
梁少玲
裁判法院
不認罪
不成立
男學生
17
刑事毀壞
11/05/2019
觀塘
DCCC183/2020
姚勳智
區院
認罪
罪成
送貨員
32
暴動
判囚
40
元朗
DCCC 183/2020
[2021] HKDC 67
香港特別行政區
區域法院
刑事案件2020年第183號
—————-
香港特別行政區
訴
張裕泰（第一被告人）
羅曉鋒（第三被告人）
—————-
主審法官：區域法院法官姚勳智
日期： 2021年1月13日上午10時34分
出席人士：律政司高級檢控官羅天瑋先生，代表香港特別行政區
吳宗鑾先生，由張柱才律師事務所延聘，代表第一被告人
葉青菁小姐，由法律援助署委派的丘煥法律師事務所延聘，
代表第三被告人
控罪： [1] 非法集結（Unlawful assembly）
[5] 非法禁錮（False imprisonment）
[6] 暴動（Riot）
—————-
判刑理由書
—————-
第一被告承認兩項控罪，包括非法禁錮罪及暴動罪（控罪五及六），分別違反普通法並可根據香港法例第221章《刑事訴訟程序條例》第101I條予以懲處，以及違反香港法例第245章《公安條例》第19（1）及（2）條。而第三被告則承認一項非法集結罪（控罪一），違反上述《公安條例》第18（1）及（3）條。
2019年9月21日晚，大批人在元朗形點商場集會，一批人於集會後，在商場的另一期（形點II）非法集結（控罪一）。其後，商場或西鐵線元朗站附近集結或流連的人逐漸移向元朗市中心方向，包括康景街一帶。至2019年9月22日凌晨，一批人在康景街襲擊一名途人，非法禁錮他、集結暴動，並損壞他的電話（控罪五和六）。
控罪一
2019年9月21日晚上，大批人在集會後前往形點II（商場），當時西鐵線元朗站已關閉，但港鐵員工仍在站內工作，車站連接商場出口（F出口）亦已落下保安捲閘。
晚上9時左右，包括第三被告的一群人在保安閘處非法集結，他們大多穿黑色裝束，戴頭盔、蒙面或戴防毒面罩。約在9時至9時半的30分鐘內，第三被告和該非法集結的參與者在保安閘前面架設路障，阻塞閘口，並從閘口附近的商戶利華超級三文治搬走桌和椅，用該些桌椅和鐵鍊等物以作鞏固。參與者亦破壞閘口的消防裝置，例如消防警報燈及煙霧探測器等（為香港鐵路有限公司財產），火警鐘響起令消防員稍後到場。參與者又擅用消防設備，用消防喉噴濕地面及路障。參與者一起行動，亦會打開雨傘掩護那些正在毀壞他人財物的同夥。
第三被告參與上述非法集結，他和其他參與者不時交談及一起行動。他參與架設路障阻塞閘口，又用噴漆損壞商場的6組閉路電視鏡頭和利華的8組閉路電視鏡頭（為大家樂集團有限公司的財產，損失港幣7,000元）。
2019年9月22日凌晨（控罪五和六），在商場或西鐵線元朗站一帶流連聚集的人其後逐漸移往元朗市中心方向，包括康景街一帶。
控罪五
2019年9月22日零時33分左右，李先生下班回家，途中行經康景街。一群包括第一被告在內的人截停在馬路上步行的李先生，以侮辱和威嚇的方式質問他，他們指李先生曾於之前某個場合撕去連儂牆上的貼文。人群有人向李先生投擲水樽，第一被告特別追上截停李先生，第一被告阻止李先生繼續前行和阻礙他的活動自由。第一被告強逼李先生跪在馬路上，李先生被第一被告強行按倒時雙膝擦傷。
控罪六
現場旁觀者扶起李先生，多人繼續圍堵他，有人向他投擲玻璃樽，李先生被玻璃碎割傷，有旁觀者為他包紮。稍後，李先生在旁觀者護送下，移動到鄰近青山公路元朗段（大馬路），該群人（包括第一被告）尾隨並繼續威嚇辱罵李先生。李先生成功在大馬路輕鐵站路旁登上一輛綠色的士，該群人（包括第一被告）追上截停包圍的士。該群人恐嚇辱罵，要求李先生下車，他們不停敲打的士玻璃窗，又向李先生噴射疑似胡椒噴霧的噴劑等，該群人叫的士司機放下李先生離開，表示如照辦便不會牽涉到或毀壞的士。
在關鍵時間，該群人集結暴動，第一被告參與該暴動，暴動的情況和第一被告的犯案行為包括：
(1) 在的士左邊，人群中多人指罵李先生，要求他下車，至少兩人向車內的李先生噴射疑似胡椒噴霧，的士周圍的人亦因該刺鼻噴霧而咳嗽；
(2) 在的士右邊，人群中多人叫的士司機放下李先生離開，他們又表示如果李先生下車，的士便不會受毀壞。人群繼續指罵李先生期間，有人打開車門將李先生拉下車，的士則獲准離開；
(3) 李先生被拉下車後，繼續被圍在人群中央，第一被告在李先生身邊與他對峙，喝令他交出電話供檢查；
(4) 李先生重申自己無辜，他拿出電話之際，人群中有人伸手，用狀似金屬棍的物件抽打李先生的頭部一下，李先生隨即受傷倒地，同一時間，第一被告接過李先生的電話，然後把電話摔到地上，李先生電話（約值港幣2,500元）損毀；
(5) 李先生跌倒地上，該群人繼續指罵他。不久，救護員到場為他治理。李先生經治療後出院，醫療報告顯示李先生有擦傷和頭部受傷，頭部需要縫7針。
第一被告現年32歲，過往有4項刑事定罪紀錄，包括兩項刑事毀壞罪，及最後在本案發生前個多星期，在2019年9月12日干犯襲擊致造成身體傷害罪，被判監10天。
第三被告現年18歲，過往並無任何刑事定罪紀錄。
代表第一被告的吳大律師主要指出，第一被告是運輸工人，月入約11,000元，但他患有自閉症及過度活躍症等，致使他非常容易受環境及社會事件等影響。當晚他從手機及示威者中聽到事主李先生有他認為做得不對的地方，例如撕掉連儂牆的貼文及對穿黑衣者惡言相向等等，由於控制不到自己的情緒及激動下，他才非常愚蠢地與李先生對峙。其心理及精神科醫生報告亦指出，他患有自閉症，以往曾因此及情緒問題，須入住精神科病院接受治療，但其後因停藥，致使影響其病情及工作等等。
就非法禁錮罪而言，吳大律師援引R v Tsui Yun Chak [1991] HKCU 241及Secretary for Justice v Yiu Man Chun [2011] 3 HKC 125，但上述兩案分別是涉及收債及禁錮前女友的案件，與本案性質不同，但無論如何，上訴庭均指出此類案件的嚴重性。
至於參與暴動罪，吳大律師亦援引HKSAR v Tang Ho Yin [2019] 3 HKLRD 502及HKSAR v Yeung Ka Lun [2019] 1 HKC 296，兩案均以5年監禁為量刑起點。在Tang Ho Yin一案，因上訴人患有活躍症，再減刑6個月，而Yeung Ka Lun一案中，不涉及刻意縱火罪等，量刑起點亦減為4年半。
吳大律師指出，本案暴動的規模及情況不如上述兩宗案件般嚴重，況且，以第一被告本身的病況而言，望可以採納較低的量刑起點。而第一被告的求情信亦表明，因停服精神科藥物及沒去覆診，才致使自己容易受環境影響，自己輕率的決定犯下罪行，深感悔意。其母親亦表明，第一被告在中學階段時曾非常用心學習，後來在工作上非常勤奮，但因際遇不順利，第一被告的病況又惡化，才在衝動下犯案。第一被告現在亦願意賠償予事主等等，望予以輕判。
代表第三被告的葉大律師指出，第三被告在案發時只得16歲，並無刑事定罪紀錄，第三被告就讀中學期間成績不俗，活躍地參與學校活動，校長的信件亦指他友善及樂於助人。不幸的是在2017年其父親離世，但他亦主動地兼職來幫補家計，其曾工作的公司董事亦致函指他做事勤力主動，工作態度積極，相信他只因年少衝動才犯事。
第三被告對於干犯本案亦感到非常後悔，其求情信表明，辜負了母親對他的期望，明白到因自己的衝動，使用錯誤的方法表達是不對的，願意承擔責任。更希望日後可重返校園，因此，已報讀台灣朝陽科技大學，望可有一技之長，亦呈上該大學的入學證通知。
其母親亦致函指第三被告自幼聽話、孝順、善良、單純，但只因父親的突然離世，影響了整個家庭，望予以機會給他改過自新。同樣地，其親朋戚友及社工等亦多致函指出，第三被告的家庭因遇上巨變，第三被告因年少衝動才犯事，望予以輕判。此外，第三被告亦願意作出相關賠償，已存入7,000元予法庭，願意賠償予相關的公司。而勞教中心及教導所的報告亦正面，更建議第三被告到勞教中心較為適合，葉大律師亦認為此為合適的判刑等等。
首先就暴動罪而言，上訴法院在上述Tang Ho Yin一案指出，在判刑上應考慮三項原則，包括：
(1) 暴動罪的嚴重性關乎涉及其協助及支持的暴動群體其所作所為，而非單單其個人的行為；
(2) 暴動中涉及干犯其他罪行的亦是加刑因素；
(3) 涉及連同他人造成廣泛暴力和破壞的應予以阻嚇。
上述該案涉及在於旺角山東街的暴動中，約有100至200名暴動者對抗約60名警員，期間，該些人向警方投擲磚頭及玻璃樽。上訴人承認在較早前曾投擲過磚頭，該案被告亦患有活躍症，法庭最終以4年半監禁為量刑起點。
而在上述Yeung Ka Lun一案，涉及上訴人參與在旺角及豉油街的暴動，包括向警員掟磚，群眾亦破壞的士玻璃窗及縱火，上訴人在的士車尾放置燃燒的物件等等，法庭最終以5年監禁為量刑起點。
誠然，在本案中，相關片段所展示的暴動的規模並不如上述兩宗案件。可是，第一被告卻是非常主動及積極的參與者，片段顯示他直接從人群中上前指罵李先生，即使已離開步至遠處，第一被告仍然跟隨及逼令李先生下跪認錯等等，即使後來李先生已上了的士，但跟隨的人仍圍堵的士，更有人拉他下車。第一被告更要求李先生交出電話，及把他的電話摔在地上，第一被告的行為可說完全是暴力及非常野蠻的，難以想像在香港文明社會中，在眾目睽睽下，第一被告竟然會作出如此令人髮指的行為。
考慮到被告的主動角色、暴動的情節，更涉及非法禁錮的情況等等，經考慮後，應以5年半監禁為量刑起點，但考慮到被告人的個人病況，雖則此並非為任何的藉口，但他顯然亦知道其罪行的嚴重性，亦考慮到所有求情理由，被告坦白認罪，節省法庭時間及資源，經考慮後，法庭認為適當地可予5年監禁為量刑起點，認罪後減為40個月。
而就非法禁錮罪而言，李先生在眾暴動人士的脅逼下，根本無法離開，即使上了的士亦被拉下來，更被第一被告拿走電話，其他人士更襲擊李先生頭部，案情非常嚴重，適當地，應以兩年半監禁為量刑起點，認罪後減為20個月。
最後以整體量刑原則作考慮，在考慮暴動罪時，已考慮了第一被告的角色，包括非法禁錮李先生的元素在內，在此情況下，適當地兩罪可予同期執行。
就非法集結涉及暴力的案件而言，終審法院在Secretary for Justice v Wong Chi Fung FACC 8/2017，確立一些上訴法院訂下應予考慮的原則，包括：
(1) 突發或預謀情況；
(2) 施行暴力者人數；
(3) 暴力的程度；
(4) 暴力的規模；
(5) 暴力行為持續情況；
(6) 引致的後果；
(7) 造成的威脅之嚴重性及迫近程度；
(8) 角色和參與程度。
在本案中，從片段所見，在該商場的聚集人數逐漸增加並非突發而成，且有多人在閘口不斷加設檯凳、鐵鍊等，以作鞏固，更動用消防喉，第三被告的角色亦是非常主動，直接用噴漆遮蔽共10多個鏡頭，總體而言，案情亦是嚴重的。
第三被告雖然在案發時只得16歲，過往且並無任何刑事定罪紀錄，上訴法院在律政司司長 訴 SHY一案亦表明，若涉及嚴重控罪，公眾利益的考慮亦為重要，亦應予以阻嚇性刑罰。因此，毫無疑問，以此案情的嚴重性而言，若第三被告為成年人士，應直接判予即時監禁的情況，但考慮到他的年紀，勞教中心及教導所的報告亦非常正面，且建議第三被告較為適合到勞教中心，他亦願意作出賠償，過往且並無任何刑事定罪紀錄。在此情況下，本席認為適當地，第三被告就此控罪，可判予勞教中心，並作出相關賠償。
總結而言，第一被告：
第五項控罪，20個月監禁；
第六項控罪，40個月監禁；
兩項控罪同期執行；
共判予40個月監禁；
另外作出賠償令2,500元予李先生，7天內支付。
第三被告判予勞教中心，作出賠償令7,000元予大家樂集團有限公司，可從第三被告存放於法庭內的款項中扣除。
姚勳智
區域法院法官
DCCC183/2020
姚勳智
區院
認罪
罪成
送貨員
32
非法禁錮
判囚
40
元朗
DCCC 183/2020
[2021] HKDC 67
香港特別行政區
區域法院
刑事案件2020年第183號
—————-
香港特別行政區
訴
張裕泰（第一被告人）
羅曉鋒（第三被告人）
—————-
主審法官：區域法院法官姚勳智
日期： 2021年1月13日上午10時34分
出席人士：律政司高級檢控官羅天瑋先生，代表香港特別行政區
吳宗鑾先生，由張柱才律師事務所延聘，代表第一被告人
葉青菁小姐，由法律援助署委派的丘煥法律師事務所延聘，
代表第三被告人
控罪： [1] 非法集結（Unlawful assembly）
[5] 非法禁錮（False imprisonment）
[6] 暴動（Riot）
—————-
判刑理由書
—————-
第一被告承認兩項控罪，包括非法禁錮罪及暴動罪（控罪五及六），分別違反普通法並可根據香港法例第221章《刑事訴訟程序條例》第101I條予以懲處，以及違反香港法例第245章《公安條例》第19（1）及（2）條。而第三被告則承認一項非法集結罪（控罪一），違反上述《公安條例》第18（1）及（3）條。
2019年9月21日晚，大批人在元朗形點商場集會，一批人於集會後，在商場的另一期（形點II）非法集結（控罪一）。其後，商場或西鐵線元朗站附近集結或流連的人逐漸移向元朗市中心方向，包括康景街一帶。至2019年9月22日凌晨，一批人在康景街襲擊一名途人，非法禁錮他、集結暴動，並損壞他的電話（控罪五和六）。
控罪一
2019年9月21日晚上，大批人在集會後前往形點II（商場），當時西鐵線元朗站已關閉，但港鐵員工仍在站內工作，車站連接商場出口（F出口）亦已落下保安捲閘。
晚上9時左右，包括第三被告的一群人在保安閘處非法集結，他們大多穿黑色裝束，戴頭盔、蒙面或戴防毒面罩。約在9時至9時半的30分鐘內，第三被告和該非法集結的參與者在保安閘前面架設路障，阻塞閘口，並從閘口附近的商戶利華超級三文治搬走桌和椅，用該些桌椅和鐵鍊等物以作鞏固。參與者亦破壞閘口的消防裝置，例如消防警報燈及煙霧探測器等（為香港鐵路有限公司財產），火警鐘響起令消防員稍後到場。參與者又擅用消防設備，用消防喉噴濕地面及路障。參與者一起行動，亦會打開雨傘掩護那些正在毀壞他人財物的同夥。
第三被告參與上述非法集結，他和其他參與者不時交談及一起行動。他參與架設路障阻塞閘口，又用噴漆損壞商場的6組閉路電視鏡頭和利華的8組閉路電視鏡頭（為大家樂集團有限公司的財產，損失港幣7,000元）。
2019年9月22日凌晨（控罪五和六），在商場或西鐵線元朗站一帶流連聚集的人其後逐漸移往元朗市中心方向，包括康景街一帶。
控罪五
2019年9月22日零時33分左右，李先生下班回家，途中行經康景街。一群包括第一被告在內的人截停在馬路上步行的李先生，以侮辱和威嚇的方式質問他，他們指李先生曾於之前某個場合撕去連儂牆上的貼文。人群有人向李先生投擲水樽，第一被告特別追上截停李先生，第一被告阻止李先生繼續前行和阻礙他的活動自由。第一被告強逼李先生跪在馬路上，李先生被第一被告強行按倒時雙膝擦傷。
控罪六
現場旁觀者扶起李先生，多人繼續圍堵他，有人向他投擲玻璃樽，李先生被玻璃碎割傷，有旁觀者為他包紮。稍後，李先生在旁觀者護送下，移動到鄰近青山公路元朗段（大馬路），該群人（包括第一被告）尾隨並繼續威嚇辱罵李先生。李先生成功在大馬路輕鐵站路旁登上一輛綠色的士，該群人（包括第一被告）追上截停包圍的士。該群人恐嚇辱罵，要求李先生下車，他們不停敲打的士玻璃窗，又向李先生噴射疑似胡椒噴霧的噴劑等，該群人叫的士司機放下李先生離開，表示如照辦便不會牽涉到或毀壞的士。
在關鍵時間，該群人集結暴動，第一被告參與該暴動，暴動的情況和第一被告的犯案行為包括：
(1) 在的士左邊，人群中多人指罵李先生，要求他下車，至少兩人向車內的李先生噴射疑似胡椒噴霧，的士周圍的人亦因該刺鼻噴霧而咳嗽；
(2) 在的士右邊，人群中多人叫的士司機放下李先生離開，他們又表示如果李先生下車，的士便不會受毀壞。人群繼續指罵李先生期間，有人打開車門將李先生拉下車，的士則獲准離開；
(3) 李先生被拉下車後，繼續被圍在人群中央，第一被告在李先生身邊與他對峙，喝令他交出電話供檢查；
(4) 李先生重申自己無辜，他拿出電話之際，人群中有人伸手，用狀似金屬棍的物件抽打李先生的頭部一下，李先生隨即受傷倒地，同一時間，第一被告接過李先生的電話，然後把電話摔到地上，李先生電話（約值港幣2,500元）損毀；
(5) 李先生跌倒地上，該群人繼續指罵他。不久，救護員到場為他治理。李先生經治療後出院，醫療報告顯示李先生有擦傷和頭部受傷，頭部需要縫7針。
第一被告現年32歲，過往有4項刑事定罪紀錄，包括兩項刑事毀壞罪，及最後在本案發生前個多星期，在2019年9月12日干犯襲擊致造成身體傷害罪，被判監10天。
第三被告現年18歲，過往並無任何刑事定罪紀錄。
代表第一被告的吳大律師主要指出，第一被告是運輸工人，月入約11,000元，但他患有自閉症及過度活躍症等，致使他非常容易受環境及社會事件等影響。當晚他從手機及示威者中聽到事主李先生有他認為做得不對的地方，例如撕掉連儂牆的貼文及對穿黑衣者惡言相向等等，由於控制不到自己的情緒及激動下，他才非常愚蠢地與李先生對峙。其心理及精神科醫生報告亦指出，他患有自閉症，以往曾因此及情緒問題，須入住精神科病院接受治療，但其後因停藥，致使影響其病情及工作等等。
就非法禁錮罪而言，吳大律師援引R v Tsui Yun Chak [1991] HKCU 241及Secretary for Justice v Yiu Man Chun [2011] 3 HKC 125，但上述兩案分別是涉及收債及禁錮前女友的案件，與本案性質不同，但無論如何，上訴庭均指出此類案件的嚴重性。
至於參與暴動罪，吳大律師亦援引HKSAR v Tang Ho Yin [2019] 3 HKLRD 502及HKSAR v Yeung Ka Lun [2019] 1 HKC 296，兩案均以5年監禁為量刑起點。在Tang Ho Yin一案，因上訴人患有活躍症，再減刑6個月，而Yeung Ka Lun一案中，不涉及刻意縱火罪等，量刑起點亦減為4年半。
吳大律師指出，本案暴動的規模及情況不如上述兩宗案件般嚴重，況且，以第一被告本身的病況而言，望可以採納較低的量刑起點。而第一被告的求情信亦表明，因停服精神科藥物及沒去覆診，才致使自己容易受環境影響，自己輕率的決定犯下罪行，深感悔意。其母親亦表明，第一被告在中學階段時曾非常用心學習，後來在工作上非常勤奮，但因際遇不順利，第一被告的病況又惡化，才在衝動下犯案。第一被告現在亦願意賠償予事主等等，望予以輕判。
代表第三被告的葉大律師指出，第三被告在案發時只得16歲，並無刑事定罪紀錄，第三被告就讀中學期間成績不俗，活躍地參與學校活動，校長的信件亦指他友善及樂於助人。不幸的是在2017年其父親離世，但他亦主動地兼職來幫補家計，其曾工作的公司董事亦致函指他做事勤力主動，工作態度積極，相信他只因年少衝動才犯事。
第三被告對於干犯本案亦感到非常後悔，其求情信表明，辜負了母親對他的期望，明白到因自己的衝動，使用錯誤的方法表達是不對的，願意承擔責任。更希望日後可重返校園，因此，已報讀台灣朝陽科技大學，望可有一技之長，亦呈上該大學的入學證通知。
其母親亦致函指第三被告自幼聽話、孝順、善良、單純，但只因父親的突然離世，影響了整個家庭，望予以機會給他改過自新。同樣地，其親朋戚友及社工等亦多致函指出，第三被告的家庭因遇上巨變，第三被告因年少衝動才犯事，望予以輕判。此外，第三被告亦願意作出相關賠償，已存入7,000元予法庭，願意賠償予相關的公司。而勞教中心及教導所的報告亦正面，更建議第三被告到勞教中心較為適合，葉大律師亦認為此為合適的判刑等等。
首先就暴動罪而言，上訴法院在上述Tang Ho Yin一案指出，在判刑上應考慮三項原則，包括：
(1) 暴動罪的嚴重性關乎涉及其協助及支持的暴動群體其所作所為，而非單單其個人的行為；
(2) 暴動中涉及干犯其他罪行的亦是加刑因素；
(3) 涉及連同他人造成廣泛暴力和破壞的應予以阻嚇。
上述該案涉及在於旺角山東街的暴動中，約有100至200名暴動者對抗約60名警員，期間，該些人向警方投擲磚頭及玻璃樽。上訴人承認在較早前曾投擲過磚頭，該案被告亦患有活躍症，法庭最終以4年半監禁為量刑起點。
而在上述Yeung Ka Lun一案，涉及上訴人參與在旺角及豉油街的暴動，包括向警員掟磚，群眾亦破壞的士玻璃窗及縱火，上訴人在的士車尾放置燃燒的物件等等，法庭最終以5年監禁為量刑起點。
誠然，在本案中，相關片段所展示的暴動的規模並不如上述兩宗案件。可是，第一被告卻是非常主動及積極的參與者，片段顯示他直接從人群中上前指罵李先生，即使已離開步至遠處，第一被告仍然跟隨及逼令李先生下跪認錯等等，即使後來李先生已上了的士，但跟隨的人仍圍堵的士，更有人拉他下車。第一被告更要求李先生交出電話，及把他的電話摔在地上，第一被告的行為可說完全是暴力及非常野蠻的，難以想像在香港文明社會中，在眾目睽睽下，第一被告竟然會作出如此令人髮指的行為。
考慮到被告的主動角色、暴動的情節，更涉及非法禁錮的情況等等，經考慮後，應以5年半監禁為量刑起點，但考慮到被告人的個人病況，雖則此並非為任何的藉口，但他顯然亦知道其罪行的嚴重性，亦考慮到所有求情理由，被告坦白認罪，節省法庭時間及資源，經考慮後，法庭認為適當地可予5年監禁為量刑起點，認罪後減為40個月。
而就非法禁錮罪而言，李先生在眾暴動人士的脅逼下，根本無法離開，即使上了的士亦被拉下來，更被第一被告拿走電話，其他人士更襲擊李先生頭部，案情非常嚴重，適當地，應以兩年半監禁為量刑起點，認罪後減為20個月。
最後以整體量刑原則作考慮，在考慮暴動罪時，已考慮了第一被告的角色，包括非法禁錮李先生的元素在內，在此情況下，適當地兩罪可予同期執行。
就非法集結涉及暴力的案件而言，終審法院在Secretary for Justice v Wong Chi Fung FACC 8/2017，確立一些上訴法院訂下應予考慮的原則，包括：
(1) 突發或預謀情況；
(2) 施行暴力者人數；
(3) 暴力的程度；
(4) 暴力的規模；
(5) 暴力行為持續情況；
(6) 引致的後果；
(7) 造成的威脅之嚴重性及迫近程度；
(8) 角色和參與程度。
在本案中，從片段所見，在該商場的聚集人數逐漸增加並非突發而成，且有多人在閘口不斷加設檯凳、鐵鍊等，以作鞏固，更動用消防喉，第三被告的角色亦是非常主動，直接用噴漆遮蔽共10多個鏡頭，總體而言，案情亦是嚴重的。
第三被告雖然在案發時只得16歲，過往且並無任何刑事定罪紀錄，上訴法院在律政司司長 訴 SHY一案亦表明，若涉及嚴重控罪，公眾利益的考慮亦為重要，亦應予以阻嚇性刑罰。因此，毫無疑問，以此案情的嚴重性而言，若第三被告為成年人士，應直接判予即時監禁的情況，但考慮到他的年紀，勞教中心及教導所的報告亦非常正面，且建議第三被告較為適合到勞教中心，他亦願意作出賠償，過往且並無任何刑事定罪紀錄。在此情況下，本席認為適當地，第三被告就此控罪，可判予勞教中心，並作出相關賠償。
總結而言，第一被告：
第五項控罪，20個月監禁；
第六項控罪，40個月監禁；
兩項控罪同期執行；
共判予40個月監禁；
另外作出賠償令2,500元予李先生，7天內支付。
第三被告判予勞教中心，作出賠償令7,000元予大家樂集團有限公司，可從第三被告存放於法庭內的款項中扣除。
姚勳智
區域法院法官
DCCC183/2020
姚勳智
區院
認罪
罪成
學生
18
非法集結
入勞教中心
元朗
DCCC 183/2020
[2021] HKDC 67
香港特別行政區
區域法院
刑事案件2020年第183號
—————-
香港特別行政區
訴
張裕泰（第一被告人）
羅曉鋒（第三被告人）
—————-
主審法官：區域法院法官姚勳智
日期： 2021年1月13日上午10時34分
出席人士：律政司高級檢控官羅天瑋先生，代表香港特別行政區
吳宗鑾先生，由張柱才律師事務所延聘，代表第一被告人
葉青菁小姐，由法律援助署委派的丘煥法律師事務所延聘，
代表第三被告人
控罪： [1] 非法集結（Unlawful assembly）
[5] 非法禁錮（False imprisonment）
[6] 暴動（Riot）
—————-
判刑理由書
—————-
第一被告承認兩項控罪，包括非法禁錮罪及暴動罪（控罪五及六），分別違反普通法並可根據香港法例第221章《刑事訴訟程序條例》第101I條予以懲處，以及違反香港法例第245章《公安條例》第19（1）及（2）條。而第三被告則承認一項非法集結罪（控罪一），違反上述《公安條例》第18（1）及（3）條。
2019年9月21日晚，大批人在元朗形點商場集會，一批人於集會後，在商場的另一期（形點II）非法集結（控罪一）。其後，商場或西鐵線元朗站附近集結或流連的人逐漸移向元朗市中心方向，包括康景街一帶。至2019年9月22日凌晨，一批人在康景街襲擊一名途人，非法禁錮他、集結暴動，並損壞他的電話（控罪五和六）。
控罪一
2019年9月21日晚上，大批人在集會後前往形點II（商場），當時西鐵線元朗站已關閉，但港鐵員工仍在站內工作，車站連接商場出口（F出口）亦已落下保安捲閘。
晚上9時左右，包括第三被告的一群人在保安閘處非法集結，他們大多穿黑色裝束，戴頭盔、蒙面或戴防毒面罩。約在9時至9時半的30分鐘內，第三被告和該非法集結的參與者在保安閘前面架設路障，阻塞閘口，並從閘口附近的商戶利華超級三文治搬走桌和椅，用該些桌椅和鐵鍊等物以作鞏固。參與者亦破壞閘口的消防裝置，例如消防警報燈及煙霧探測器等（為香港鐵路有限公司財產），火警鐘響起令消防員稍後到場。參與者又擅用消防設備，用消防喉噴濕地面及路障。參與者一起行動，亦會打開雨傘掩護那些正在毀壞他人財物的同夥。
第三被告參與上述非法集結，他和其他參與者不時交談及一起行動。他參與架設路障阻塞閘口，又用噴漆損壞商場的6組閉路電視鏡頭和利華的8組閉路電視鏡頭（為大家樂集團有限公司的財產，損失港幣7,000元）。
2019年9月22日凌晨（控罪五和六），在商場或西鐵線元朗站一帶流連聚集的人其後逐漸移往元朗市中心方向，包括康景街一帶。
控罪五
2019年9月22日零時33分左右，李先生下班回家，途中行經康景街。一群包括第一被告在內的人截停在馬路上步行的李先生，以侮辱和威嚇的方式質問他，他們指李先生曾於之前某個場合撕去連儂牆上的貼文。人群有人向李先生投擲水樽，第一被告特別追上截停李先生，第一被告阻止李先生繼續前行和阻礙他的活動自由。第一被告強逼李先生跪在馬路上，李先生被第一被告強行按倒時雙膝擦傷。
控罪六
現場旁觀者扶起李先生，多人繼續圍堵他，有人向他投擲玻璃樽，李先生被玻璃碎割傷，有旁觀者為他包紮。稍後，李先生在旁觀者護送下，移動到鄰近青山公路元朗段（大馬路），該群人（包括第一被告）尾隨並繼續威嚇辱罵李先生。李先生成功在大馬路輕鐵站路旁登上一輛綠色的士，該群人（包括第一被告）追上截停包圍的士。該群人恐嚇辱罵，要求李先生下車，他們不停敲打的士玻璃窗，又向李先生噴射疑似胡椒噴霧的噴劑等，該群人叫的士司機放下李先生離開，表示如照辦便不會牽涉到或毀壞的士。
在關鍵時間，該群人集結暴動，第一被告參與該暴動，暴動的情況和第一被告的犯案行為包括：
(1) 在的士左邊，人群中多人指罵李先生，要求他下車，至少兩人向車內的李先生噴射疑似胡椒噴霧，的士周圍的人亦因該刺鼻噴霧而咳嗽；
(2) 在的士右邊，人群中多人叫的士司機放下李先生離開，他們又表示如果李先生下車，的士便不會受毀壞。人群繼續指罵李先生期間，有人打開車門將李先生拉下車，的士則獲准離開；
(3) 李先生被拉下車後，繼續被圍在人群中央，第一被告在李先生身邊與他對峙，喝令他交出電話供檢查；
(4) 李先生重申自己無辜，他拿出電話之際，人群中有人伸手，用狀似金屬棍的物件抽打李先生的頭部一下，李先生隨即受傷倒地，同一時間，第一被告接過李先生的電話，然後把電話摔到地上，李先生電話（約值港幣2,500元）損毀；
(5) 李先生跌倒地上，該群人繼續指罵他。不久，救護員到場為他治理。李先生經治療後出院，醫療報告顯示李先生有擦傷和頭部受傷，頭部需要縫7針。
第一被告現年32歲，過往有4項刑事定罪紀錄，包括兩項刑事毀壞罪，及最後在本案發生前個多星期，在2019年9月12日干犯襲擊致造成身體傷害罪，被判監10天。
第三被告現年18歲，過往並無任何刑事定罪紀錄。
代表第一被告的吳大律師主要指出，第一被告是運輸工人，月入約11,000元，但他患有自閉症及過度活躍症等，致使他非常容易受環境及社會事件等影響。當晚他從手機及示威者中聽到事主李先生有他認為做得不對的地方，例如撕掉連儂牆的貼文及對穿黑衣者惡言相向等等，由於控制不到自己的情緒及激動下，他才非常愚蠢地與李先生對峙。其心理及精神科醫生報告亦指出，他患有自閉症，以往曾因此及情緒問題，須入住精神科病院接受治療，但其後因停藥，致使影響其病情及工作等等。
就非法禁錮罪而言，吳大律師援引R v Tsui Yun Chak [1991] HKCU 241及Secretary for Justice v Yiu Man Chun [2011] 3 HKC 125，但上述兩案分別是涉及收債及禁錮前女友的案件，與本案性質不同，但無論如何，上訴庭均指出此類案件的嚴重性。
至於參與暴動罪，吳大律師亦援引HKSAR v Tang Ho Yin [2019] 3 HKLRD 502及HKSAR v Yeung Ka Lun [2019] 1 HKC 296，兩案均以5年監禁為量刑起點。在Tang Ho Yin一案，因上訴人患有活躍症，再減刑6個月，而Yeung Ka Lun一案中，不涉及刻意縱火罪等，量刑起點亦減為4年半。
吳大律師指出，本案暴動的規模及情況不如上述兩宗案件般嚴重，況且，以第一被告本身的病況而言，望可以採納較低的量刑起點。而第一被告的求情信亦表明，因停服精神科藥物及沒去覆診，才致使自己容易受環境影響，自己輕率的決定犯下罪行，深感悔意。其母親亦表明，第一被告在中學階段時曾非常用心學習，後來在工作上非常勤奮，但因際遇不順利，第一被告的病況又惡化，才在衝動下犯案。第一被告現在亦願意賠償予事主等等，望予以輕判。
代表第三被告的葉大律師指出，第三被告在案發時只得16歲，並無刑事定罪紀錄，第三被告就讀中學期間成績不俗，活躍地參與學校活動，校長的信件亦指他友善及樂於助人。不幸的是在2017年其父親離世，但他亦主動地兼職來幫補家計，其曾工作的公司董事亦致函指他做事勤力主動，工作態度積極，相信他只因年少衝動才犯事。
第三被告對於干犯本案亦感到非常後悔，其求情信表明，辜負了母親對他的期望，明白到因自己的衝動，使用錯誤的方法表達是不對的，願意承擔責任。更希望日後可重返校園，因此，已報讀台灣朝陽科技大學，望可有一技之長，亦呈上該大學的入學證通知。
其母親亦致函指第三被告自幼聽話、孝順、善良、單純，但只因父親的突然離世，影響了整個家庭，望予以機會給他改過自新。同樣地，其親朋戚友及社工等亦多致函指出，第三被告的家庭因遇上巨變，第三被告因年少衝動才犯事，望予以輕判。此外，第三被告亦願意作出相關賠償，已存入7,000元予法庭，願意賠償予相關的公司。而勞教中心及教導所的報告亦正面，更建議第三被告到勞教中心較為適合，葉大律師亦認為此為合適的判刑等等。
首先就暴動罪而言，上訴法院在上述Tang Ho Yin一案指出，在判刑上應考慮三項原則，包括：
(1) 暴動罪的嚴重性關乎涉及其協助及支持的暴動群體其所作所為，而非單單其個人的行為；
(2) 暴動中涉及干犯其他罪行的亦是加刑因素；
(3) 涉及連同他人造成廣泛暴力和破壞的應予以阻嚇。
上述該案涉及在於旺角山東街的暴動中，約有100至200名暴動者對抗約60名警員，期間，該些人向警方投擲磚頭及玻璃樽。上訴人承認在較早前曾投擲過磚頭，該案被告亦患有活躍症，法庭最終以4年半監禁為量刑起點。
而在上述Yeung Ka Lun一案，涉及上訴人參與在旺角及豉油街的暴動，包括向警員掟磚，群眾亦破壞的士玻璃窗及縱火，上訴人在的士車尾放置燃燒的物件等等，法庭最終以5年監禁為量刑起點。
誠然，在本案中，相關片段所展示的暴動的規模並不如上述兩宗案件。可是，第一被告卻是非常主動及積極的參與者，片段顯示他直接從人群中上前指罵李先生，即使已離開步至遠處，第一被告仍然跟隨及逼令李先生下跪認錯等等，即使後來李先生已上了的士，但跟隨的人仍圍堵的士，更有人拉他下車。第一被告更要求李先生交出電話，及把他的電話摔在地上，第一被告的行為可說完全是暴力及非常野蠻的，難以想像在香港文明社會中，在眾目睽睽下，第一被告竟然會作出如此令人髮指的行為。
考慮到被告的主動角色、暴動的情節，更涉及非法禁錮的情況等等，經考慮後，應以5年半監禁為量刑起點，但考慮到被告人的個人病況，雖則此並非為任何的藉口，但他顯然亦知道其罪行的嚴重性，亦考慮到所有求情理由，被告坦白認罪，節省法庭時間及資源，經考慮後，法庭認為適當地可予5年監禁為量刑起點，認罪後減為40個月。
而就非法禁錮罪而言，李先生在眾暴動人士的脅逼下，根本無法離開，即使上了的士亦被拉下來，更被第一被告拿走電話，其他人士更襲擊李先生頭部，案情非常嚴重，適當地，應以兩年半監禁為量刑起點，認罪後減為20個月。
最後以整體量刑原則作考慮，在考慮暴動罪時，已考慮了第一被告的角色，包括非法禁錮李先生的元素在內，在此情況下，適當地兩罪可予同期執行。
就非法集結涉及暴力的案件而言，終審法院在Secretary for Justice v Wong Chi Fung FACC 8/2017，確立一些上訴法院訂下應予考慮的原則，包括：
(1) 突發或預謀情況；
(2) 施行暴力者人數；
(3) 暴力的程度；
(4) 暴力的規模；
(5) 暴力行為持續情況；
(6) 引致的後果；
(7) 造成的威脅之嚴重性及迫近程度；
(8) 角色和參與程度。
在本案中，從片段所見，在該商場的聚集人數逐漸增加並非突發而成，且有多人在閘口不斷加設檯凳、鐵鍊等，以作鞏固，更動用消防喉，第三被告的角色亦是非常主動，直接用噴漆遮蔽共10多個鏡頭，總體而言，案情亦是嚴重的。
第三被告雖然在案發時只得16歲，過往且並無任何刑事定罪紀錄，上訴法院在律政司司長 訴 SHY一案亦表明，若涉及嚴重控罪，公眾利益的考慮亦為重要，亦應予以阻嚇性刑罰。因此，毫無疑問，以此案情的嚴重性而言，若第三被告為成年人士，應直接判予即時監禁的情況，但考慮到他的年紀，勞教中心及教導所的報告亦非常正面，且建議第三被告較為適合到勞教中心，他亦願意作出賠償，過往且並無任何刑事定罪紀錄。在此情況下，本席認為適當地，第三被告就此控罪，可判予勞教中心，並作出相關賠償。
總結而言，第一被告：
第五項控罪，20個月監禁；
第六項控罪，40個月監禁；
兩項控罪同期執行；
共判予40個月監禁；
另外作出賠償令2,500元予李先生，7天內支付。
第三被告判予勞教中心，作出賠償令7,000元予大家樂集團有限公司，可從第三被告存放於法庭內的款項中扣除。
姚勳智
區域法院法官
HCMP 1068/2020
[2020] HKCFI 3148
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 1068 OF 2020
IN THE MATTER of an application on behalf of the Secretary for Justice against Yiu Ka Yu (姚家瑜) for an Order of Committal
and
IN THE MATTER of civil proceedings in HCA 1957/2019
BETWEEN
SECRETARY FOR JUSTICE Plaintiff
and
YIU KA YU (姚家瑜) Defendant
________________
Before: Hon Coleman J in Court
Date of Hearing: 29 December 2020
Date of Decision: 29 December 2020
______________
D E C I S I O N
______________
A. Introduction
These committal proceedings relate to a civil contempt of court, for which the Defendant has admitted liability. Therefore, this is the mitigation and sentencing hearing.
The contempt arose on 11 November 2019, when the Defendant posted on a Telegram chat group (“TG Post”) the personal data of a particular police constable (“PW1”) and that of his wife. That conduct was in clear contravention of the injunction order made on 25 October 2019, as amended and re-amended on 28 and 31 October 2019, subsequently continued (though slightly varied) by me on 8 November 2019 (together “Doxxing Injunction”). The Doxxing Injunction was made in HCA 1957/2019 (“underlying action”).
The act constituting the contempt on 11 November 2019 was just two or three days after the continuation of the Doxxing Injunction Order on 8 November 2019, and the significant and widespread publicity that followed it.
The TG Post included a purported “warning” to readers not to re-post the data mentioned in the TG Post, and a reported “request” to readers not to forward it to third parties, and to have some mercy on the victim (ie. PW1). At the same time, the TG Post highlighted PW1’s residential address as being “important”. It is clear that the purported warning and request were the very opposite of what was intended (as the Defendant now accepts). In so far as anyone might think that stating matters in that way would shield them from legal responsibility for their wrongful acts, that is fundamentally misconceived.
The committal proceedings have been brought by the Secretary for Justice (“SJ”) by way of originating summons dated 7 August 2020, with prior leave granted by me on 31 July 2020. In support of the application, reliance is placed on the affirmation of PW1, as well as the affirmations/affidavits of other officers (PW2, PW3 and PW4) involved in investigating the TG Post.
The Defendant has herself filed an affirmation dated 30 November 2020, to which she has also exhibited her handwritten apology letter to the Court, and various mitigation letters from other persons. Earlier, on 28 August 2020, the Defendant (then acting in person) had filed her acknowledgement of service of the originating summons, in which she stated she did not intend to contest the proceedings.
At this hearing, the Secretary for Justice was represented by Counsel, Mr Martin Ho, and the Defendant was represented by Counsel, Mr Richard Yip.
B. Agreed Facts
On 7 December 2020, the parties (through their solicitors) jointly signed and filed a Statement of Admitted Facts. That document helpfully encapsulates the relevant background material, and in particular the material facts relied upon by the SJ in these committal proceedings that are not disputed by the Defendant. Some of its content can usefully be taken into this Decision. I accept those facts as stated and agreed between the parties.
I attach as Annex 1 to this Decision the history of the making of the Doxxing Injunction in the underlying action. The acts comprising the contempt in this case took place after the matters detailed in §§1-10 of Annex 1.
On the morning of 11 November 2019, PW1 used his firearm during a public order event in Sai Wan Ho to fire three rounds, one of which hit and injured a 21-year old male.
Since then, PW1 and his family have been subjected to widespread doxxing on social media platforms, such as Facebook, LIHKG (連登) and Telegram.
Upon investigation, Police identified a Telegram chat group named “SUCK 公海” (English translation: “high seas”) (web link: https://t.me/stuckwithyouopen) (“TG Chat Group”). Created in September 2019, the TG Chat Group is a public chat group which can be joined by any Telegram user. Anyone who has joined the TG Chat Group can read the messages in it, post messages, and share/forward messages. Members have been posting miscellaneous messages relating to protests against the introduction of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, including relevant court news, public order events (such as road/traffic blockage), as well as derogatory messages against the Police. As at 7 April 2020, there were 48,449 members who joined the TG Chat Group. As at the date of the TG Post, it may have been over 51,000.
Police investigation revealed that shortly after the firing incident in Sai Wan Ho in the morning of 11 November 2019, members of the TG Chat Group had been actively posting messages about the incident.
Furthermore, personal data of PW1 (including his name, residential address and photo) and those of his family (namely, his wife and his daughters) had since been widely disseminated in the TG Chat Group.
Among the messages, following a chain of posts and discussions on the Sai Wan Ho incident, at 10:56am, a member of the TG Chat Group named “生要見人死要見屍” (English translation: “Wanted, dead or alive”) (“TG Account”) published the residential address of “the Police Officer who just fired live ammunition” and the mobile phone number of “his wife” (“PW1’s Personal Data”) in a post (being the TG Post):
“我警告你地，唔好再post以下既資料，係剛剛開真槍個位正義警察叔叔既，同埋佢屋企人既。
最緊要
[地址]
佢老婆電話：[手提電話號碼] 呢個都唔可以再傳啦，拜託高抬貴手”
(English translation:
“I warn you. Never post the following data ever again. It’s about that righteous uncle policeman who has just fired live rounds, and his family.
Most importantly
[PW1’s address]
and his wife’s phone number [PW1’s wife’s mobile phone number]. Please don’t forward these data again. Please have some mercy.”)
Reading the TG Post in context (and with particular reference to the various posts immediately before the TG Post), the personal data divulged in the TG Post belonged to PW1 and his wife (and was believed by those making and reading the post to so belong). PW1 has subsequently confirmed that the personal data in the TG Post were correct information of himself and his wife.
Further, while the poster apparently asked others not to post or pass on the personal data of PW1 and his wife, the fact that the poster gave the detailed residential address and specific mobile phone number in a public chat group showed that she was facilitating others to disseminate the personal data, or that she was inciting others to intimidate, molest, harass and/or pester PW1 and his wife. There were other similar posts in the TG Chat Group in the morning on 11 November 2019 and in other online platforms in October and November 2019 with a similar tone.
Immediately after the TG Post, many other users copied or forwarded the same in the TG Chat Group.
The TG Post later came to the attention of the Police and an investigation was carried out.
The TG Account was linked to a local mobile phone number which had been used by the Defendant in a report of a “Dispute” case as an informant in June 2015. The Defendant had been residing at a flat in an Estate in Chai Wan, Hong Kong with her mother since 2011.
On 26 November 2019, at about 7:10am, PW2 together with PW3 and other police officers arrived at the Defendant’s residence. PW2 knocked on the door. A female (later known to be the Defendant) answered. PW2 identified himself and showed his warrant card and a search warrant to the Defendant. He explained the content of the search warrant to the Defendant and informed the Defendant that he was investigating into a case of “Disclosing Personal Data Obtained without Consent from Data Users” under section 64 of the Personal Data (Privacy) Ordinance Cap 486 (“PDPO”). The Defendant then let PW2 and his team in for investigation.
At about 7:15am, PW2 arrested and cautioned the Defendant for the offence of “Disclosing Personal Data Obtained without Consent from Data Users” under section 64(2) of the PDPO. Under caution, the Defendant admitted that she had used her mobile phone to post the TG Post, but she did not know that that was against the law. This was recorded in PW2’s notebook and was signed by the Defendant.
At about 7:26am, PW3 searched the Defendant’s residence and found, among other things, an Apple iPhone 11 and an Apple iPhone 6S Plus. The Defendant voluntarily unlocked the two iPhones for PW3’s investigation. The Defendant further showed PW3 her Telegram account linked to the Telegram app on her iPhone 6S Plus, as well as the TG Post posted from it.
In a subsequent video-recorded interview conducted at the Chai Wan Police Station from 10:55am to 11:12am on 26 November 2019, the Defendant stated under caution, amongst other things, the following:
the relevant mobile phone number was subscribed by her mother with SUN Mobile about 3 years before but used by the Defendant herself;
the Defendant registered the TG Account with the mobile phone number;
although the mobile phone service was terminated about 2 years before, the Defendant continued to link her TG Account to the mobile phone number;
the Defendant obtained the personal data of PW1 and his wife from a Telegram chat group (the name of which she could not recall);
someone asked for help to disseminate the personal data and the Defendant, without further thought, used the Telegram app on her iPhone 6S Plus to reproduce it in the TG Chat Group; and
the Defendant did not know the residential address or the mobile phone number mentioned in the TG Post or PW1.
PW1 had not given consent to any form of disclosure of his personal data.
Therefore, the Defendant accepts that:
by way of the TG Post, the Defendant used, published, communicated and/or disclosed in the TG Chat Group the personal data of and concerning PW1 and his wife, including PW1’s residential address and his wife’s mobile phone number, without their consent;
the Defendant, by using, publishing, communicating and/or disclosing the personal data of PW1 and his wife in her TG Post in the TG Chat Group and by making such information public, must have intended and/or been aware that her act(s) mentioned in sub-paragraph (1) above was/were likely to intimidate, molest, harass or pester PW1 and his wife;
the Defendant, by using, publishing, communicating and/or disclosing the personal data of PW1 and his wife in her TG Post in the TG Chat Group and by making such information public, intimidated, molested, harassed and/or pestered PW1 and his wife;
the Defendant, by using, publishing, communicating and/or disclosing the personal data of PW1 and his wife in her TG Post in the TG Chat Group, assisted, caused, counselled, procured, instigated, incited, aided, abetted and/or authorized others to commit or participate in any of the acts mentioned in sub-paragraphs (1), (2) and (3) above;
the Defendant knew of the terms of the Doxxing Injunction Orders when she committed the acts mentioned in sub-paragraphs (1), (2), (3) and (4) above; and
(6) the acts of the Defendant identified above constitute a breach of the Doxxing Injunction Orders and she takes full responsibility for them.
C. Effect of the Doxxing
In his affirmation, and by reference to a statement made on 4 December 2019, PW1 has described how he and his family have been subject to abuse after he was doxxed.
In summary only – which summary should not be taken as in any way making light of his and his family’s suffering – PW1 identifies that:
he has feared for the safety of himself and his family to the extent that he and his family have moved away from the address which had been made public;
there were continuous harassing calls made to PW1 and his family, as a result of which PW1 has stopped using his mobile phone number;
PW1 was also subject to fraudulent loan applications which were made using his personal data;
(4) the doxxing incident has had a negative impact on the family’s emotional well-being.
D. Defendant’s Evidence
In her affirmation, the Defendant identifies that:
she is 23 years old;
she was born and raised in Hong Kong and educated to Form 3;
at the time of the incident, she was working as a sales person, but she has now returned to study Form 6 and to prepare for the DSE examination scheduled in April 2021;
she lives with her mother in a public housing estate in Chai Wan;
her parents divorced when she was 14 because of domestic violence;
she has an older brother who followed her father, though they seldom meet;
she was raised solely by her mother, who works as a cleaner, earning about HK$10,000 per month and who sometimes takes on several part-time jobs to make ends meet;
life has been tough but they live happily;
to lighten the financial burden of her mother, she started working as a full-time waitress after finishing Form 3;
she currently works as a part-time salesperson, working once a week and earning HK$1,000 per month, and she has no other income;
with a low salary, she has not accumulated much in the way of savings;
she has no criminal record.
As to the circumstances of the breach of the Doxxing Injunction, the Defendant explains that she acted when she was upset and emotional about the shooting incident, and shared the post when she was “blinded by hatred”. Even though she had heard about the Doxxing Injunction, she forgot about it when she made the TG Post. She also did not realise the consequences of breaching the injunction.
The Defendant says that since her arrest she has refrained from sharing posts that contain sensitive personal information of others. She has become more cautious with the post she shares and the comments she leaves on the internet.
Later, she discovered she had also been subjected to doxxing and her personal information was put online. So she now feels how frustrating and stressful it was for PW1 and his family. She detests what she has done, and promises never to do the same again.
Just when she was putting herself “back together” to “turn a new leaf”, she was suddenly informed of the contempt proceedings. Since then she has been under tremendous stress, and even developed eczema. She worries constantly about the impact of the case on her future. It has been her dream to become a registered nurse, and she plans to study related courses after the DSE. But she is worried about the uncertainty cast by the case.
The Defendant expresses that she is genuinely sorry for her act, and has hand written a letter to convey her sincere apology to the Court. In that letter, she re-states some of the matters dealt with in her affirmation. She emphasises her deep regret for what she has done and, following self-retrospection, the lesson she has learned. When encountering frustration, she understands she should talk to teachers and professionals to express her emotions and opinion in an appropriate way, and not to act recklessly any more. She is seeing a social worker. In conclusion, she seeks a chance to repent, to be able to continue to take care of her mother and finish school, and to contribute to society afterwards as a nurse.
She also exhibits mitigation letters from her current employer, the leader of her theology group, the doctor who has treated her eczema, and her English teacher at her evening college. These letters from different responsible individuals with recent interaction with the Defendant provide strong mitigation:
Her employer describes the Defendant as polite, honest, responsible, patient, on time, well-prepared, open-minded in terms of accepting people’s opinions, trustworthy and reliable.
Her church group leader describes the Defendant as polite and dependable, shy and honest. He emphasises that she did not have the fortune to grow up in an ordinary family, instead witnessing violence and the divorce of her parents, and spending some time in small group homes. He notes her disrupted schooling meant she was not able to make friends in the real world, so that her friends are mostly virtual friends on the web. He is impressed by her attitude to learn, and she is determined to complete her secondary curriculum. He thinks her remorse is genuine.
The Defendant’s doctor describes her as an innocent and naive girl, and that the stress of the arrest and these proceedings has caused a flare-up of her skin condition. He regards her as having started on the wrong track due to lack of guidance, but now having made the decision to assist the community by pursuing a nursing career.
(4) Her English teacher describes the Defendant as a “wonderful student who always pays attention in class and studies hard”. Aware of the difficulties with her background, the teacher thinks the Defendant comes as a reformed person who is pleasant and ambitious to overcome the challenges ahead, and thinks she has shown true remorse.
E. Applicable Principles on Sentencing
In my previous decisions of Secretary for Justice v Chan Oi Yau Riyo [2020] 3 HKLRD 494 and Secretary for Justice v Cheng Lai King [2020] HKCFI 2687, I set out the appropriate principles. The gist of those principles can be repeated here.
As a superior court of record, the Court of First Instance is invested with the inherent power to punish for contempt in maintaining its authority and preventing its process from being obstructed and abused. The common law powers to fine or imprison, to give an immediate sentence or to postpone it, remain intact. The power of the Court to hand down a suspended sentence is specifically codified in Order 52 rule 7(1). The power to order payment of a fine, or giving security for good behaviour, is preserved by Order 52 rule 9.
The general principles on sentencing in cases of civil contempt are as follows:
In civil contempt, the prime consideration in sentencing is to demonstrate to litigants that orders of the court are to be obeyed. Contempt of civil court orders is a serious matter.
However, a delicate balance has to be maintained in the imposition of the penalty for civil contempt between the strong public interest in ensuring that orders of the Hong Kong Courts will not be flouted and the evaluation of the individual circumstances of each case.
Subject to mitigating factors, if any, the starting and primary penalty for contempt of court in breaching an order in the nature of an injunction is imprisonment. The normal penalty for breaches of injunction orders is imprisonment measured in months.
In a case where there has been a failure to comply with an order of the court and where there is no evidence to suggest that compliance was in any way difficult or impossible, a sentence of imprisonment would not be inappropriate. This would be particularly so in a case where the sentence was designed to enforce compliance. A sentence of imprisonment for a wilful failure to observe a court order can often be appropriate.
The court is empowered with quite a few sentencing options under its inherent powers and the common law.
Imprisonment should be regarded as a sanction of last resort in civil contempt, and any custodial term should be as short as possible and consistent with the circumstances of the case.
The court has an absolute discretion to suspend the sentence of imprisonment for such period and on such terms as it deems fit.
Where the conclusion is reached that the contempt was not deliberate or not contumelious, it would be only in very rare circumstances that a sentence of imprisonment would be appropriate.
Encompassed within the above principles are the factors that the Court should take into account when sentencing for civil contempt the degree of culpability (including considering whether the contempt was contumacious or unintentional), the reasons and motives and state of mind of the contemnor as well as whether the contempt has been purged.
The purpose of the law of contempt is not to protect the dignity of judges, but to prevent interference with the due administration of justice. The first principle is that court orders are made to be obeyed. They are not guidelines, to be ignored or paid lip service to at the behest of the parties affected. They are the building blocks by which the administration of justice is made workable. Litigants who wilfully breach orders do so at the risk of losing their liberty for being in contempt of court.
Indeed, it is fundamental to the rule of law that orders of the court are obeyed. Injunctions generally are granted, and the particular injunction in this case was granted, by the court only after careful consideration of the evidence and the applicable law and arguments advanced. If anyone suggests that the court has made an error in granting the injunction, there is the possibility of an appeal, or of a variation application.
In the Chan Oi Yau Riyo case, I also accepted as being particularly relevant to cases like this one that there is a difference between today and the pre-internet and social media era. That difference is the very easy practical way any individual can breach an order of the court and widely disseminate information. The facility to broadcast and publish material widely makes these breaches worse rather than less serious.
Again, there can be a reminder that rights and freedoms do not exist in a vacuum. They come with responsibilities.
F. Suggested Orders
For the SJ, Mr Ho submits that the Court should adopt the general position of the normal penalty imposed for breaches of injunction orders, namely a period of imprisonment measured in months. Mr Ho submits that it is appropriate to proceed on the basis of such a starting point, not only as a matter of principle, but also to take into account the following factors:
An objective reading of the TG Post shows that its maker was intent on instigating others to disseminate widely PW1’s Personal Data, despite the purported warnings not to re-post that data. The Court should correct any misguided belief that any contemnor can hide behind ironic language as to their motives when committing unlawful acts such as doxxing.
The Defendant claims that she shared the offending TG Post when blinded by hatred, without further thought, and when she “forgot” about the Doxxing Injunction at that moment. But, as the Court has previously recognised (see the Chan Oi Yau Riyo case at §75), that is precisely part of the problem: it is easy to post something on social media or the internet with just a few clicks or keystrokes, but the effects can be, and sometimes likely will be, far wider and last for far longer.
The fact that, in this internet-age, information can be disseminated very quickly and widely online makes the Defendant’s breach (by the utilisation of social media) worse rather than less serious. On the facts of this case, immediately after the Defendant made the TG Post, many other users copied or forwarded the same in the same Telegram chat group. The ‘ripple effect’ of one single post cannot be ignored.
The impact of doxxing on victims (here PW1 and his family) is severe and long-lasting. The Court should send a clear message to the public that such conduct is not to be tolerated in a civilised society. The sentence imposed should have a deterrent effect on would-be defendants or contemnors.
I accept those submissions.
Mr Ho also fairly accepts that certain mitigating factors may be advanced on behalf of the Defendant, including that (1) the Defendant’s breach appears to be one-off in nature; (2) the TG Post mainly consisted of re-posting of information found online, and the Defendant did not herself initiate the propagation of material; (3) she indicated her intention to admit liability at an early stage when she filed her acknowledgement of service; and (4) the Defendant’s breach was committed prior to the decision in the Chan Oi Yau Riyo case.
Mr Yip for the Defendant suggests the circumstances of this case are less serious than previous cases, and the Court could consider a bind over as a starting point for sentence. However, if the Court is to find that imprisonment is the appropriate starting point, Mr Yip submits that the sentence should be suspended, as that would sufficiently reflect the seriousness of the Defendant’s breach proportionately.
In particular, Mr Yip relies on the following points:
The Defendant came from a broken family and she is of young age.
She is genuinely remorseful for her conduct.
She is taking action to turn a new page in her life by studying for DSE, hoping to get into a nursing school, so that she could make a useful contribution to society.
She made an early admission of liability and cooperated with the Police.
Her acts were done on impulse, without the Doxxing Injunction in mind.
It was a one-off incident.
The TG Post did not contain captions inciting violence or any messages added by the Defendant herself.
The Defendant is not a public figure, and has little influence on other users of the group.
She is of good character.
She has already suffered serious consequences for her behaviour.
The case is one where the facts occurred prior to the Chan Oi Yau Riyo Decision.
Mr Yip also submits, and I accept, that the genuine remorse and repentance makes it unlikely that the Defendant would act in contempt of Court again, or commit any acts of doxxing, especially when she had herself also been subject to doxxing after this incident.
Indeed, I fully recognise that the deeply ugly behaviour of doxxing has not been limited to doxxing police officers, or doxxing activities by only one “side” of the recent social unrest against the other “side”. Any doxxing activity by any person or group against any other person or group is equally unacceptable, and equally seriously endangers society as a whole.
In terms of general deterrence, Mr Yip submits that the acknowledgement by the Defendant of her liability and her willingness to accept the sanction of the Court goes far to encourage observance towards the Court’s orders.
I take all those matters into account.
G. Sentence
However, even though the breach is less serious than in some other cases, I do not agree that the appropriate starting point is consideration of a bind-over. Rather, the appropriate starting point is one of a custodial sentence.
But, in light of the Defendant’s prior clear record, and the other strong mitigating factors I have outlined above, I think the contempt in this case would properly be reflected in a suspended custodial sentence.
I accept that an important lesson has been learned, that what the Defendant did was out of character, and that she is determined to be more careful and less impulsive in future. I hope the Defendant will now gain strength from the assistance which she is seeking and obtaining from various quarters, and that she will combine it with her own stated determination to become a responsible contributor to society. Her ambition to be a nurse is laudable, and I hope she achieves it.
In the circumstances, I pass a custodial sentence of 21 days, but suspended for 12 months.
H. Costs
As Mr Ho submits, the usual order in a successful committal procedure is for costs to follow the event and so to be payable by the person found guilty of contempt, and such costs are usually ordered to be paid on an indemnity basis. He refers to the fact that the Defendant was granted Legal Aid as from 5 October 2020, and seeks a summary assessment by reference to a statement of costs totalling HK$129,699 for the period up to that date and HK$103,633 for the period after.
Mr Yip points out that the Defendant is of very limited financial means, and asks me to make an order that the Defendant pay only a nominal contribution towards the costs for the period before the grant of Legal Aid, albeit that he accepts that costs thereafter can be paid on an indemnity basis, to be summarily assessed (as they might be met by Legal Aid). In part, Mr Yip relies upon the fact that I made a similar costs contribution order in the Chan Oi Yau Riyo case.
In that case, I said that approaching costs by requiring payment of a contribution only, rather than on a full indemnity basis, may in appropriate circumstances also reflect the appropriate degree of proportionality when the penalty and costs can be regarded as composite elements of the proceedings’ impact on a defendant.
Mr Ho says that as a matter of principle the usual costs order should be made, and the question of execution of the costs order is a different matter. But the practical effect of section 16C(1)(b)(ii) of the Legal Aid Ordinance Cap 91 is, he says, that for the period after the grant of Legal Aid in this case, neither the Director of Legal Aid nor the Defendant would be liable for the costs. I also note that it might be said that a costs order relating to the period after the grant of Legal Aid would, if enforceable, simply be moving public funds from one public body to another.
Taking into account all the circumstances, I order the Defendant to make a contribution to the SJ’s costs in the sum of HK$1,000 for the period up to 4 October 2020.
(Russell Coleman)
Judge of the Court of First Instance
High Court
Mr Martin Ho, instructed by Department of Justice, for the plaintiff
Mr Richard Yip, instructed by Ho Tse Wai & Partners, for the defendant
ANNEX 1
The Doxxing Injunction
On 25 October 2019, the SJ and the Commissioner of Police (suing on his own behalf and on behalf of all other Police Officers and Auxiliary Officers) as plaintiffs commenced the underlying action HCA 1957/2019 and made an ex parte application for an injunction against the defendants, being named as persons unlawfully and wilfully conducting themselves in any of the acts prohibited under paragraphs 1(a), (b) or (c) of the Indorsement of Claim.
The acts prohibited under paragraphs 1(a), (b) or (c) of the Indorsement of Claim are:
(a) using, publishing, communicating or disclosing to any other person the personal data of and concerning any Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children or siblings), including but not limited to their name, job title, residential address, office address, school address, email address, date of birth, telephone number, Hong Kong Identity Card number or identification number of any other official identity documents, Facebook Account ID, Instagram Account ID, car plate number, and any photograph of the Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children and siblings) (“Personal Data”), without the consent of the Police Officer(s) and/or their family member(s) (as the case may be) concerned;
(b) intimidating, molesting, harassing, threatening, pestering or interfering with any Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children or siblings); and/or
(c) assisting, causing, counselling, procuring, instigating, inciting, aiding, abetting or authorizing others to commit any of the aforesaid acts or participate in any of the aforesaid acts.
On the same day, Chow J granted an injunction order (“Interim Injunction Order”) effective until the return date on 8 November 2019. The granting of the Interim Injunction Order was widely reported in the mass media including, inter alia, English and Chinese newspapers with wide circulation in Hong Kong, major radio and television service providers such as Radio Television Hong Kong and various sources on the internet (“Local Media”).
On 28 October 2019, Chow J made an order to amend the Interim Injunction Order (“Amended Interim Injunction Order”). The material terms of the Amended Interim Injunction Order are as follows:
The Defendants and each of them, whether acting by themselves, their servants or agents, or otherwise howsoever, be restrained from doing any of the following acts:
using, publishing, communicating or disclosing to any other person the Personal Data, intended or likely to intimidate, molest, harass, threaten, pester or interfere with any Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children or siblings), without the consent of the Police Officer(s) and/or their family member(s) (as the case may be) concerned;
intimidating, molesting, harassing, threatening, pestering or interfering with any Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children or siblings); and
梁少玲
裁判法院
不認罪
不成立
侍應
28
在公眾地方管有攻擊性武器
火機
將軍澳
ESCC2689/2019
香淑嫻
裁判法院
不認罪
罪成
電梯技工
24
襲警
判囚
1
06/12/2019
金鐘
KTCC1144/2020
莫子聰
裁判法院
不認罪
罪成
救生員
37
在公眾地方管有攻擊性武器
雷射筆、指節銅套、刀
判囚
11
九龍灣
HCMP744/2020
高浩文
高院
認罪
罪成
佛牌店店主
27
藐視法庭
判囚
75
11/11/2019
網上
HCMP 744/2020
[2020] HKCFI 3147
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 744 OF 2020
IN THE MATTER of an application on behalf of the Secretary for Justice against CHAN Kin Chung (陳健聰) for an Order of Committal
and
IN THE MATTER of civil proceedings in HCA 1957/2019
BETWEEN
SECRETARY FOR JUSTICE Plaintiff
and
CHAN KIN CHUNG (陳健聰) Defendant
________________
Before: Hon Coleman J in Court
Date of Hearing: 28 December 2020
Date of Decision: 28 December 2020
______________
D E C I S I O N
______________
A. Introduction
These committal proceedings relate to a civil contempt of court, for which the Defendant has admitted liability. Therefore, this is the sentencing hearing.
The contempt arose when on 11 November 2019 the Defendant posted on his Facebook account a series of posts (“Facebook Posts”) containing the personal data of a particular police constable (“PW1”) and that of his family members. That conduct was in clear contravention of the injunction order made on 25 October 2019, as amended and re-amended on 28 and 31 October 2019, subsequently continued (though slightly varied) by me on 8 November 2019 together (“Doxxing Injunction”). The Doxxing Injunction was made in HCA 1957/2019 (“underlying action”).
The proximity of the acts constituting the contempt to the date of the continuation of the Doxxing Order, and the significant and widespread publicity that followed, is marked.
The committal proceedings have been brought by the Secretary for Justice (“SJ”) by way of originating summons dated 9 June 2020, with prior leave granted by me on 5 June 2020. In support of the application, reliance is placed on the affirmation of PW1, as well as the affirmations/affidavits of other officers (including PW2 and PW3) involved in investigating the Facebook Posts. There are also further affirmations to show the procedural history and service of documents on the Defendant.
The Defendant has himself filed an affirmation dated 13 November 2020, to which he has also exhibited a handwritten letter from him to the Court, and various mitigation letters from other persons. Earlier, on 25 September 2020, the Defendant’s solicitors had by letter stated that the Defendant did not intend to contest the proceedings and so would admit liability.
At this hearing, the Secretary for Justice was represented by Counsel, Mr Martin Ho, and the Defendant was represented by Counsel, Mr Steven Kwan.
B. Agreed Facts
On 4 December 2020, the parties (through their solicitors) jointly signed and filed a Statement of Admitted Facts. That document helpfully encapsulates the relevant background material, and in particular the material facts relied upon by the SJ in these committal proceedings that are not disputed by the Defendant. Some of its content can usefully be taken into this Decision. I accept those facts as stated and agreed between the parties.
I attach as Annex 1 to this Decision the history of the making of the Doxxing Injunction in the underlying action. The acts comprising the contempt in this case took place after the matters detailed in §§1-10 of Annex 1.
On the morning of 11 November 2019, PW1 used his firearm during a public order event in Sai Wan Ho, and a 21-year old person was injured by one shot.
Upon Police investigation, four doxxing messages – being the Facebook Posts – were found posted on the Defendant’s Facebook account. Although the first post was a photograph of PW1, it also had an added comment from the Defendant (see below). The Facebook Posts contained PW1’s Chinese name, Police unique identification number, residential address, Facebook address, mobile phone number, photo, his involvement in the affairs at his daughters’ school, his wife’s mobile phone number, the names of PW1’s two daughters, and the mobile phone number, Instagram ID and Facebook address of and school and class attended by one of PW1’s daughters. All of the data disclosed in the Facebook Posts were accurate personal data of PW1.
One of the Facebook Posts included the words “善惡到頭終有報” (English translation: “good and evil will have their just rewards”); another one the words “西灣河殺人犯” (English translation: “the Sai Wan Ho killer”); and another one the words “開真槍丫嘛? 有排同你玩香港警察 Hong Kong Police” (English translation: “Firing a real gun, eh? Will take (their) time playing with you, the Hong Kong Police, Hong Kong Police”).
The time of the four Facebook Posts, all posted on 11 November 2019, were respectively 8:48am, 9:06am, 9:25am and 10:15am. The status of the Facebook Posts, as shown by a “Globe” icon underneath the account name and next to the timestamps, was “Public” (ie. each of the Facebook Posts was publicly accessible by anyone with connection to the internet).
The person making the Facebook Posts was subsequently identified by Police as being the Defendant.
On the morning of 28 November 2019, PW2 and PW3 and other police officers approached the Defendant at his business premises. PW3 identified himself and showed his warrant card and a search warrant to the Defendant. He explained the content of the search warrant to the Defendant and informed the Defendant that he was investigating into a case of “doing an act with a seditious intention”. PW3 asked the Defendant to produce his identification document, and the Defendant complied.
The Defendant was arrested and cautioned. Under caution, the Defendant admitted that he was the “Michael Chan” on Facebook, that he had used the account to post messages, but he had already deleted them a few days later as he was overwhelmed by anger at the time of posting. This was recorded in PW3’s notebook and was signed by the Defendant.
PW3 searched the Defendant and seized an iPhone 11 Pro from the Defendant. The Defendant admitted that the iPhone belonged to him, and he voluntarily unlocked the iPhone with his passcode. PW2 examined the iPhone at the scene and found a Facebook application installed on it, logged into the same account of “Michael Chan” which posted the Facebook Posts.
In a subsequent video-recorded interview conducted at the Chai Wan Police Station on the afternoon of 28 November 2019, the Defendant stated under caution, amongst other things, the following:
his Facebook account name was “Michael Chan”;
he was the owner and sole user of the Facebook account, and he was the only person who knew the login password for the Facebook account;
he used his iPhone 11 Pro to log into the Facebook account and no other account;
on 11 November 2019, after reading the news about PW1’s shooting incident, he was filled with anger and hence he copied the personal data of PW1 and his family members somewhere from the internet, and posted them on his own Facebook page “Michael Chan” as the Facebook Posts;
by “開真槍丫嘛? 有排同你玩香港警察 Hong Kong Police” (English translation: “Will take time playing with you Hong Kong Police, Hong Kong Police”) in the Facebook Post at 8:48am, he meant he would continue to post photos of the Police in the future;
the Facebook Posts remained on the Facebook page “Michael Chan” for a few days until his alleged deletion;
he learned about PW1 only from the news and he did not know PW1’s family members;
he had not obtained the consent of PW1 or his family members to post their personal data and he believed that they would not have given such consent;
he believed that a person whose personal data is posted on the internet without his consent would be worried about his or his family members’ safety; and
he was self-employed, and he posted the Facebook Posts not for the purpose of performing any news activity.
Though not in the agreed facts, I also note that the Facebook Posts contained a description of PW1 as “cockroach”. Further, the description of PW1 as “西灣河殺人犯” (English translation: “the Sai Wan Ho killer”) was handwritten, though it is not clear who is the author of the handwritten note. In his evidence filed for this hearing, the Defendant says that he simply forwarded messages which he found from the Dadfindboy channel. As is clear from my previous decisions, that is a Telegram channel set up in part specifically for the doxxing of police officers.
C. Effect of the Doxxing
In his affirmation, and by reference to a statement made on 18 March 2020, PW1 has described how he and his family have been subject to abuse after he was doxxed.
In summary only – which summary should not be taken as in any way making light of his and his family’s suffering – PW1 identifies that:
he has feared that the safety of himself and his family would be under threat, and that his family would be harassed;
he and his family have moved away from the address which had been made public;
they have nevertheless remained worried about being attacked in public places;
his two daughters have been distanced and bullied by their schoolmates;
the doxxing incident has had very negative impact on the family’s emotion, including causing insomnia at night;
there have been continuous harassing calls made to their phone numbers;
calls have also been received from different banks and money lending companies alleging that PW1 had applied for loans and requesting provision of documents, when PW1 had not in fact applied for any loan;
PW1 has stopped using his prior phone number due to the constant malicious harassment.
In his written submissions, Mr Kwan points out that the identification of the impact of doxxing on PW1 and his family is restricted to the statement given by him on 18 March 2020. Whilst recognising that prejudice suffered by PW1 and his family is a highly relevant consideration in the sentencing exercise, Mr Kwan points out that there is no further evidence that the adverse impact on him and his family exacerbated after March 2020. Insofar as that submission seeks to suggest that any impact was effectively over by, or at least not exacerbated after, March 2020, I think that is not a good point.
D. Defendant’s Evidence
As summarised by Mr Kwan, the personal background matters of the Defendant as set out in his affirmation are as follows:
the Defendant is an ordinary citizen, and is not in a position of influence (by which I assume it is meant that he has no public or political appointment or other position of influence);
he has lived a law-abiding life, and the breach of the Doxxing Injunction would be a smear on his life;
he was born, raised and educated in Hong Kong, and aged 27 at the time of the breach;
in 2015, he started his own small business selling Thai Bhudda amulets, from a shop in Sai Wan Ho. In 2016, the shop was moved to another location in Sai Wan Ho;
he has always strived to promote Buddhist values through his business;
in 2018, his business was suspended because of a flare-up of eczema. The plan to relaunch the business was delayed by the social unrest in 2019;
he currently relies on savings derived from the time when the business was still running;
he does not own any landed property in Hong Kong, and his saving stood at HK$20,000 as of mid-November 2020;
his wife, who used to work as a sales-person, has been recently out of a job.
As to the circumstances leading to the breach of the Doxxing Injunction, the Defendant says he was reading the news feed on Facebook on 11 November 2019, when his attention was drawn to the widely-reported news that a traffic police officer (PW1) had opened fire striking a person the Defendant describes as “an unarmed protester”. The Defendant says he was particularly upset and emotional about this, since the incident took place in his neighbourhood and he was sympathetic to the shot protester who was still in his early 20s.
During last year, there was much news regarding public order events in Hong Kong. Like many others in Hong Kong, the Defendant closely followed the news and subscribed to many Telegram Channels providing such news, including the Dadfindboy channel – though the Defendant says that, although he subscribed to that channel, he seldom read the information on it and had muted it to prevent constant notifications from the channel.
Incidentally, it might conveniently be noted here that: (1) I do not think the Dadfindboy channel is properly described as a news channel, when one of its primary purposes appears to have been to facilitate and encourage the doxxing of police officers; and (2) the Defendant’s statement that he closely followed the news means that he cannot have failed to have seen the widespread publicity following the making of the Doxxing Injunction (and the fully-reasoned decision for doing so) just two or three days beforehand.
After the shooting incident on the morning of 11 November 2019, the Defendant saw on his Telegram chats a lot of messages in the Dadfindboy channel, and “out of curiosity” decided to click into it and scrolled through the messages showing the personal data of PW1 posted by other people. He says that “without a second thought” at around 8:48am he reposted a photograph of PW1 and made the personal comment “開真槍丫嘛? 有排同你玩香港警察 Hong Kong Police” (English translation: “Firing a real gun, eh? Will take time playing with you, the Hong Kong Police, Hong Kong police”) on his own Facebook page. He did so purely because he was so upset and overwhelmed by anger at that time. He says in his affirmation that he did not intend to incite any violence against PW1.
Subsequently, at 9:06am, 9:25am and 10:25am, the Defendant shared three posts copied from the channel onto his own Facebook page. The captions were simply copied from the posts. Again, he says, he was overwhelmed by anger at that time and without pausing to think copied the posts and re-posted them on his own Facebook page.
The Defendant also says that when he made the Facebook Posts, the Doxxing Injunction “was not in the forefront” of his mind. He did not put the acts together, but had he thought hard and calm enough to realise that his act would amount to a breach of the Doxxing Injunction, he certainly would not have done it. The Defendant says he has the utmost respect for the Courts of Hong Kong, and would not dream of deliberately breaching an order of the Court.
The Defendant also says that he did not realise the posts on his Facebook page were open to the public. Rather, he always thought his Facebook Posts were only accessible to his personal Facebook friends, at the time numbering around 600 (around 400 of whom were friends from Thailand, or clients, or people in the same business as him). So, he says, he did not intend to share his posts publicly to the public at large.
After a few days, he calmed down and started to realise he had done something out of line and wrong. Therefore, on the third day after the post, he deleted all four offending posts from his Facebook page.
As indicated above, the Defendant exhibited to the affirmation a letter to convey his sincere apology to the Court. The letter is dated 27 September 2020. Some of that letter essentially restates some of the content of his affirmation. However, it seems to me that there are some potentially significant differences or inconsistencies between the two documents. In the letter, the Defendant suggests that he did not pay attention to the news related to the Doxxing Injunction, and that it was not until he was arrested that he learned from the Police that there is such an injunction. But, in the affirmation, he says that the injunction was not at the forefront of his mind (and therefore, impliedly at least, did know about it), but had failed to make the connection between his own acts and the injunction. As Mr Kwan says, the affirmation must be the version accepted by the Court.
The letter emphasises that he has co-operated with the Police and admitted his mistake, and had earlier removed the Facebook Posts because he realised that publishing personal information of anyone is not correct. He says that after his arrest, he reflected and felt sorry for the mistake he made, and he promises never to commit any crimes again. He says he is a good citizen, and sticks to his moral and ethical principles and values. He believes in Buddhism, promoting it through his business. Indeed he says that, other than to earn a living, he founded the shop to promote Buddhist principles of kindness and the elimination of hatred between people. That idea is, of course, at odds with his own actions which comprise the breach of the Doxxing Injunction.
The letter goes on to admit that the Defendant acted on impulse, and did not consider the consequences of his actions, which were made out of anger and without thinking. He expresses understanding that there is freedom of speech in society, but that it is wrong to infringe other people’s privacy. He therefore offers his deepest apologies to any affected persons.
He has experienced much pressure as a result of the legal procedures and long wait, making him feel gloomy and deeply regretting his mistake. He says he felt like he was “already imprisoned”, but understands that he has to take responsibility for his mistake. Hence his plea of guilty after taking legal advice. The letter asks for the Defendant to be given a chance and for the Court’s leniency.
The letters of support exhibited to the affirmation come from his father, a good friend and client and a friend and former classmate. Each of them praises his character, including his integrity and sincerity. Each asserts that the mistake was caused by the social environment at the time, and that the clearer thinking later led to the deletion of the Facebook Posts. One says the deletion was to minimise the bad consequence that might possibly happen.
The Defendant also explains in his affirmation why he did not admit liability at the earliest opportunity. He received the originating summons and accompanying documents on 10 June 2020, and on 23 June 2020 gave notice of his intention to defend merely to preserve his position. On the same day, he applied for Legal Aid. As the Legal Aid application took some time, the originally fixed hearing for 10 September 2020 was adjourned to a later date. Notification of refusal of Legal Aid was given to the Defendant on 23 September 2020. Immediately thereafter, he sought legal advice from his current solicitors, and from Counsel, following which he decided to admit liability. That was indicated by his solicitors’ letter dated 25 September 2020. In those circumstances, the Defendant asks that notwithstanding the time taken, essentially to obtain legal advice, his admission should be regarded as “an early admission and [his] sincere wish to save Court’s time and resources”.
In light of the earlier cooperation with the Police, and the admissions made in the Police interview, I do not take the time taken for the Defendant to provide a formal admission of liability in these proceedings against him.
E. Applicable Principles on Sentencing
In my previous decisions of Secretary for Justice v Chan Oi Yau Riyo [2020] 3 HKLRD 494 and Secretary for Justice v Cheng Lai King [2020] HKCFI 2687, I set out the appropriate principles. The gist of those principles can be repeated here.
As a superior court of record, the Court of First Instance is invested with the inherent power to punish for contempt in maintaining its authority and preventing its process from being obstructed and abused. The common law powers to fine or imprison, to give an immediate sentence or to postpone it, remain intact. The power of the Court to hand down a suspended sentence is specifically codified in Order 52 rule 7(1). The power to order payment of a fine, or giving security for good behaviour, is preserved by Order 52 rule 9.
The general principles on sentencing in cases of civil contempt are as follows:
In civil contempt, the prime consideration in sentencing is to demonstrate to litigants that orders of the court are to be obeyed. Contempt of civil court orders is a serious matter.
However, a delicate balance has to be maintained in the imposition of the penalty for civil contempt between the strong public interest in ensuring that orders of the Hong Kong Courts will not be flouted and the evaluation of the individual circumstances of each case.
Subject to mitigating factors, if any, the starting and primary penalty for contempt of court in breaching an order in the nature of an injunction is imprisonment. The normal penalty for breaches of injunction orders is imprisonment measured in months.
In a case where there has been a failure to comply with an order of the court and where there is no evidence to suggest that compliance was in any way difficult or impossible, a sentence of imprisonment would not be inappropriate. This would be particularly so in a case where the sentence was designed to enforce compliance. A sentence of imprisonment for a wilful failure to observe a court order can often be appropriate.
The court is empowered with quite a few sentencing options under its inherent powers and the common law.
Imprisonment should be regarded as a sanction of last resort in civil contempt, and any custodial term should be as short as possible and consistent with the circumstances of the case.
The court has an absolute discretion to suspend the sentence of imprisonment for such period and on such terms as it deems fit.
Where the conclusion is reached that the contempt was not deliberate or not contumelious, it would be only in very rare circumstances that a sentence of imprisonment would be appropriate.
Encompassed within the above principles are the factors that the Court should take into account when sentencing for civil contempt the degree of culpability (including considering whether the contempt was contumacious or unintentional), the reasons and motives and state of mind of the contemnor as well as whether the contempt has been purged. Those factors can also be found referenced in the case of Crystal Mews Ltd v Metterick [2006] EWHC 3087 (Ch), to which Mr Kwan has drawn my attention.
The purpose of the law of contempt is not to protect the dignity of judges, but to prevent interference with the due administration of justice. The first principle is that court orders are made to be obeyed. They are not guidelines, to be ignored or paid lip service to at the behest of the parties affected. They are the building blocks by which the administration of justice is made workable. Litigants who wilfully breach orders do so at the risk of losing their liberty for being in contempt of court.
Indeed, it is fundamental to the rule of law that orders of the court are obeyed. Injunctions generally are granted, and the particular injunction in this case was granted, by the court only after careful consideration of the evidence and the applicable law and arguments advanced. If anyone suggests that the court has made an error in granting the injunction, there is the possibility of an appeal, or of a variation application.
In the Chan Oi Yau Riyo case, I also accepted as being particularly relevant to cases like this one that there is a difference between today and the pre-internet and social media era. That difference is the very easy practical way any individual can breach an order of the court and widely disseminate information. The facility to broadcast and publish material widely makes these breaches worse rather than less serious.
Again, there can be a reminder that rights and freedoms do not exist in a vacuum. They come with responsibilities.
F. Suggested Orders
For the SJ, Mr Ho submits that the Court should adopt the general position of the normal penalty imposed for breaches of injunction orders, namely a period of imprisonment measured in months. Mr Ho submits that it is appropriate to proceed on the basis of such a starting point, not only as a matter of principle, but also to take into account the following factors:
Not only was the Defendant “reckless” as he admitted, his first Facebook Post made it clear that he was intent on causing at least nuisance to PW1. However, it is fundamental to the rule of law that court orders are to be obeyed. Irrespective of one’s political stance, one should never engage in doxxing activities against other members of society, particularly when such an act is in contravention of an extant court order. There are proper channels to express one’s views, however strongly, in a legitimate and proper manner. Vigilantism has no place in Hong Kong.
Though the Defendant claims that he shared the offending Facebook Post without a second thought, when the Doxxing Injunction was not at the forefront of his mind, the Court has previously recognised (see the Chan Oi Yau Riyo case at §75) that that is precisely part of the problem: it is easy to post something on social media or the internet with just a few clicks or keystrokes, but the effects can be, and sometimes likely will be, far wider and last for far longer.
The Defendant posted a series of offending posts which extensively documented various aspects of the personal and private data of PW1, including publication of material relating to PW1’s daughter’s school (rather than just one post as in some previous cases).
The Defendant unlawfully and directly divulged extensive personal data of four victims – not only relating to PW1, but also to his wife and two young children.
All of the Defendant’s post were made public. Even on his own evidence, he knew that his Facebook posts were at least accessible to his 600 or so Facebook friends.
The fact that, in this internet-age, information can be disseminated very quickly and widely online makes the Defendant’s breach (by the utilisation of social media) worse rather than less serious.
The impact of doxxing on victims is severe and long-lasting. The Court should send a clear message to the public that such conduct is not to be tolerated in a civilised society. The sentence imposed should have a deterrent effect on would-be defendants or contemnors.
I accept those submissions.
Mr Ho also fairly accepts that certain mitigating factors may be advanced on behalf of the Defendant, including (1) that he removed the Facebook Posts a few days after he posted them; (2) that the Facebook Posts mainly consisted of re-posting of information found online, and the Defendant did not himself initiate the propagation of material; (3) he indicated his intention to admit liability at a relatively early stage of these proceedings; and (4) the Defendant’s breach was committed prior to the decision in the Chan Oi Yau Riyo case.
Mr Kwan for the Defendant does not contend that a custodial sentence is inappropriate in this case, but submits that the custodial sentence should be suspended on account of the various mitigating factors advanced. In particular, Mr Kwan relies on the points:
The prejudice to PW1 can be remedied, albeit not fully. The Police have taken steps to prevent further doxxing, and there is no evidence that the relevant doxxing continued unabated after March 2020.
The Defendant was acting under emotional pressure, partly because the shooting incident took place in his neighbourhood.
The breach was unintentional or at least not deliberate, and the Defendant seek used a Facebook account which did not in any way conceal his identity.
The degree of culpability is not great. The Defendant on his own initiative removed the posts well before the arrest.
The defendant did not obtain the personal data of PW1 from other sources or create the original posts on Telegram.
The Defendant has cooperated fully, and admitted liability at an early stage.
Subject to what follows, I take all those matters into account.
G. Sentence
However, I do not agree that the kind of prejudice which is caused to police officers and their families from doxxing activities is really able to be remedied. Once personal data has been publicly revealed on the internet or social media, even if the original point of revelation is subsequently removed, that personal data will almost certainly forever remain publicly available. That is the very nature of the internet and social media, and is the obvious consequence of the repeated re-posting of earlier posts. To use a phrase in common parlance, it is impossible to put the genie back into the bottle. The kind of damage caused is also likely to have long-lasting effect.
Indeed, the very point of doxxing activities is to put private personal data into the public domain, and precisely to facilitate or to encourage the kinds of interference and harassment as have typically followed. It is also to intended cause the kind of ‘ripple effect’ that has been seen, by wider and wider dissemination of the offending material. I do not think the ease of repeating the post “cuts both ways”, as Mr Kwan suggested.
In this very case, the Defendant clarified in his cautioned interview that when he added his own caption about taking time to play with the Police, he meant that he would continue to post photos of the Police in the future, and he must be taken to have intended to have caused nuisance at least PW1 himself. The taunting is unattractive and obvious.
I acknowledge that he seems to have thought better of it after a few days. This is obviously to his credit. But the initial intention is clear, and it seems to me it was deliberate. The data made public was extensive.
Further, the publication of the private and personal data of PW1’s wife and his two young daughters, which was bound to have similar adverse consequences for them, is also difficult to comprehend and is despicable. Most right-minded people (whatever their political views) would rightly think it wholly unforgivable, and that it should not be tolerated.
To assert that it was done without thinking about it or the consequences of it, seems to me to be not a matter of mitigation. Acting without any thought as to the obvious and logical consequences of that act – even if not consciously intended – is likely to be an aggravating feature. In any event, in this case, the taunting added by the Defendant suggests that the intention was conscious.
Acting out of anger is also an unimpressive piece of offered mitigation. In this case, the Defendant posted a series of offending posts. Even though they were all quite close in time, and might be thought of as a “single transaction” (in Mr Kwan’s words), this seems to me to be a more serious breach than a ‘one-off’ post. He also added his own comments. Of course, I also recognize that the Defendant accepts he has fallen below the standards he says it is his usual intention to promote. I accept his remorse is genuine. So, I hope that in future he will return to his higher standards.
But, notwithstanding the Defendant’s prior clear record, and the things said about him by those who know him, and the other matters of mitigation which I have taken into account, I do not think the contempt in this case would properly be reflected in a suspended custodial sentence. On the particular facts of this case, the mitigating factors are more properly reflected in the reduction of the custodial sentence to a relatively short period.
In the circumstances, the Defendant is to serve an immediate custodial sentence of 21 days.
H. Costs
As Mr Ho submits, the usual order in a successful committal procedure is for costs to follow the event and so to be payable by the person found guilty of contempt, and such costs are usually ordered to be paid on an indemnity basis. He seeks a summary assessment by reference to a statement of costs totalling around HK$276,000.
Mr Kwan points out that the Defendant is of limited financial means, and asks me to make an order that the Defendant pay only a contribution towards the costs. In part, Mr Kwan relies upon the fact that I made a similar order in the Chan Oi Yau Riyo case.
In that case, I said that approaching costs by requiring payment of a contribution only, rather than on a full indemnity basis, may in appropriate circumstances also reflect the appropriate degree of proportionality when the penalty and costs can be regarded as composite elements of the proceedings’ impact on a defendant.
Mr Kwan emphasises that though the Defendant’s Legal Aid application appears to have been refused in part because of his financial resources exceeding the statutory limit, the relevant financial resources are in fact a property owned by the Defendant’s wife in mainland China, held in her sole name, and where the Defendant’s father-in-law is now living. The Defendant’s own financial resources are in reality very limited; his savings amount to around HK$20,000 (though he has some financial support available from his wife).
Taking into account all the circumstan
DCCC 9/2020
[2021] HKDC 90
香港特別行政區
區域法院
刑事案件2020年第9號
—————-
香港特別行政區
訴
陳佐豪（第一被告人）
—————-
主審法官：區域法院法官姚勳智
日期： 2021年1月18日上午10時54分
出席人士：律政司檢控官黃恩寧小姐，代表香港特別行政區
潘熙資深大律師帶領黃宇逸先生，由法律援助署委派的鄭瑞泰律師事務所延聘，以及陳曉姸女士，由鄭瑞泰律師事務所以義助服務形式延聘，代表第一被告人
控罪： [1] 暴動（Riot）
[2] 無牌管有無線電通訊器具（Possession of apparatus for
radiocommunications without a licence）
—————-
判刑理由書
—————-
第一被告經審訊後被裁定一項「暴動罪」及一項「無牌管有無線電通訊器具罪」罪名成立，分別違反香港法例第245章《公安條例》第19（1）及（2）條，以及香港法例第106章《電訊條例》第8（1）（b）及20條。
2019年8月31日晚上從8時許至9時06分，在銅鑼灣記利佐治街1號一帶，亦即在軒尼詩道崇光百貨（SOGO）外，現場已有約300人左右聚集，霸佔馬路，大多身穿黑衫黑褲，部份人更身穿護甲頭盔，有人手執長形狀物體，亦有為數10人左右在縱火，焚燒雜物，亦有人向警方投擲汽油彈，也有鐳射光束照向警方，向警員辱罵，且不斷傳出巨大敲擊聲響，並高聲叫囂等等。警方則在約100米外軒尼詩道希慎廣場外築起防線，雙方對峙，其間警方已多次發出警告，表明他們是非法集結，警告他們離開，否則會作出拘捕及驅散。約在晚上8時58分左右警方再展示黑旗及作出相同警告，而在約2106時左右，暴徒於東角道與記利佐治街交界（即記利佐治街1號）地上的雜物縱火，警方正式向前推進，暴徒則沿記利佐利街向東或沿東角道向北方向逃走，警方追截並在百德新街拘捕了第一被告。
第一被告被發現與其他人士衝落珠城大廈之電梯逃走。但被截停，緊貼其後的夥伴則襲擊警員以助第一被告逃脫但失敗。第一被告當時身穿胸口護甲、雙臂護甲，穿黑衫黑褲黑鞋，更跌出無線電對講機，其辯稱只是急救員難以被接納。以當時的時間及第一被告身處的位置、其整全防衛的裝備、其逃走及其夥伴攻擊警方的情況，第一被告必然是曾參與上述暴動的人士。因此，暴動罪罪名成立。
此外，第一被告被制服時從其身上亦跌出一部對講機，經專家測試並發現其輸出及接收的範圍須至申領牌照的規定，但第一被告並未有相關牌照。因此，第二項無牌管有無線電通訊器具罪亦罪名成立。
第一被告現年25歲，過往在2013年曾因販運危險藥物罪被判入教導所。潘資深大律師求情指出，第一被告曾從事運輸行業，因此案而失去工作，他過往並無同類犯案紀錄，且已多年沒有犯事。他在2006年已參與急救課程及實踐所學，多名朋友及區議員的信件也指出，第一被告熱心助人，為人善良。其母親也指出，第一被告曾患有過度活躍症，後來更適應不了學校生活，她很是內疚，也因太激動而患上抑鬱症，第一被告亦因此很早輟學來幫補家計，非常孝順。第一被告自己的求情信更表明，明白自己犯下過錯，須承擔責任，現決心痛改前非，重新做人。
潘資深大律師亦指出，沒有證據指出第一被告曾作出任何暴力行動，身上也並無攻擊性武器，並非激進參與暴力的示威者，因此或可採納較低量刑起點。而就第二項控罪而言，考慮到被告的背景及並無工作，可望判予較低的罰款等等。
暴動罪是嚴重罪行，如香港特別行政區 訴 梁天琦 [2020] HKCA 275一案，上訴法庭指出，一般而言，暴動罪判刑的考慮因素包括：
（1） 暴動是即場突然發生，還是預先計劃的，若是後者，計劃周詳及精密的程度為何；
（2） 參與暴動人數多少；
（3） 暴動者所使用暴力的程度，包括有否使用武器，若有的話，是甚麼武器和數量；
（4） 暴動的規模，包括發生暴動的時間、所在之處、地點數目及範圍；
（5） 暴動歷時多久，包括暴動有否延長；是否經警方或其他公職人員重複警告後仍然進行；
（6） 暴動所造成的傷害：例如有否對財物造成任何損失或破壞，若有的話，其程度為何；是否有人受傷，及若有的話，傷者人數及傷勢為何；
（7） 暴動造成之威脅的嚴重性及逼近程度為何；
（8） 暴動對公眾造成滋擾的性質和程度；
（9） 暴動對社群關係的影響；
（10） 暴動對公共開支造成的負擔；
（11） 犯案者的角色及參與程度，如除自己有參與暴動外，有否安排、帶領、號召、煽動或鼓吹他人參與暴動；以及
（12） 犯案者在暴動發生期間，有沒有干犯其他罪行。
而因為每宗暴動罪行所涉及的背景和案情都有差異，判刑上要視乎每宗案件而定，其他案件判刑的指導性作用不大。
就本案而言，暴動顯然並非在非常突然的情況下發生，參與暴動的人數逾300人，規模很大，他們霸佔馬路，部分人身穿護甲頭盔，手執長形狀物體，也有人在縱火焚燒雜物，向警方投擲汽油彈，及用鐳射光束照向警方，為時約逾半個多小時，甚具威脅性。以此背景而言，已可判予5年或以上的監禁。
潘資深大律師多次強調，第一被告在案中，沒證據顯示他個人曾使用任何暴力。但如上訴法院在HKSAR v Tang Ho Yin [2019] 3 HKLRD 502指出，暴動罪的嚴重性不單在其個人的行為，而在其參與的整個群體所做的事：
“24. … the gravity of the offence of riot is not to be judged merely by what the individual did (or did not do), but by what the group to whose number he lent his support did…”
但無論如何，在本案中並無證據顯示第一被告為帶領或號召角色，可幸事件中亦無證供顯示造成嚴重的人命傷亡。考慮所有事實的背景及第一被告的情況而言，可予4年半監禁為量刑起點，再考慮到第一被告在此案其實承認了大部分控方案情，節省了不少法庭時間及資源，以及考慮到其所有個人背景及求情理由，經考慮後，本席認為適當地，就控罪一可減為4年監禁。第一被告經審訊後被定罪，並無其他可再作減刑之理由。因此，就此控罪，第一被告被判予4年監禁。而就次項無牌管有無線電通訊器具罪，考慮到他的背景及經濟狀況而言，予以罰款5,000元，可從他的擔保金扣除。
因此，各項控罪判刑如下：
第一項控罪，4年監禁；
第二項控罪，罰款5,000元，可從第一被告的擔保金扣除。
姚勳智
區域法院法官
DCCC 9/2020
[2021] HKDC 90
香港特別行政區
區域法院
刑事案件2020年第9號
—————-
香港特別行政區
訴
陳佐豪（第一被告人）
—————-
主審法官：區域法院法官姚勳智
日期： 2021年1月18日上午10時54分
出席人士：律政司檢控官黃恩寧小姐，代表香港特別行政區
潘熙資深大律師帶領黃宇逸先生，由法律援助署委派的鄭瑞泰律師事務所延聘，以及陳曉姸女士，由鄭瑞泰律師事務所以義助服務形式延聘，代表第一被告人
控罪： [1] 暴動（Riot）
[2] 無牌管有無線電通訊器具（Possession of apparatus for
radiocommunications without a licence）
—————-
判刑理由書
—————-
第一被告經審訊後被裁定一項「暴動罪」及一項「無牌管有無線電通訊器具罪」罪名成立，分別違反香港法例第245章《公安條例》第19（1）及（2）條，以及香港法例第106章《電訊條例》第8（1）（b）及20條。
2019年8月31日晚上從8時許至9時06分，在銅鑼灣記利佐治街1號一帶，亦即在軒尼詩道崇光百貨（SOGO）外，現場已有約300人左右聚集，霸佔馬路，大多身穿黑衫黑褲，部份人更身穿護甲頭盔，有人手執長形狀物體，亦有為數10人左右在縱火，焚燒雜物，亦有人向警方投擲汽油彈，也有鐳射光束照向警方，向警員辱罵，且不斷傳出巨大敲擊聲響，並高聲叫囂等等。警方則在約100米外軒尼詩道希慎廣場外築起防線，雙方對峙，其間警方已多次發出警告，表明他們是非法集結，警告他們離開，否則會作出拘捕及驅散。約在晚上8時58分左右警方再展示黑旗及作出相同警告，而在約2106時左右，暴徒於東角道與記利佐治街交界（即記利佐治街1號）地上的雜物縱火，警方正式向前推進，暴徒則沿記利佐利街向東或沿東角道向北方向逃走，警方追截並在百德新街拘捕了第一被告。
第一被告被發現與其他人士衝落珠城大廈之電梯逃走。但被截停，緊貼其後的夥伴則襲擊警員以助第一被告逃脫但失敗。第一被告當時身穿胸口護甲、雙臂護甲，穿黑衫黑褲黑鞋，更跌出無線電對講機，其辯稱只是急救員難以被接納。以當時的時間及第一被告身處的位置、其整全防衛的裝備、其逃走及其夥伴攻擊警方的情況，第一被告必然是曾參與上述暴動的人士。因此，暴動罪罪名成立。
此外，第一被告被制服時從其身上亦跌出一部對講機，經專家測試並發現其輸出及接收的範圍須至申領牌照的規定，但第一被告並未有相關牌照。因此，第二項無牌管有無線電通訊器具罪亦罪名成立。
第一被告現年25歲，過往在2013年曾因販運危險藥物罪被判入教導所。潘資深大律師求情指出，第一被告曾從事運輸行業，因此案而失去工作，他過往並無同類犯案紀錄，且已多年沒有犯事。他在2006年已參與急救課程及實踐所學，多名朋友及區議員的信件也指出，第一被告熱心助人，為人善良。其母親也指出，第一被告曾患有過度活躍症，後來更適應不了學校生活，她很是內疚，也因太激動而患上抑鬱症，第一被告亦因此很早輟學來幫補家計，非常孝順。第一被告自己的求情信更表明，明白自己犯下過錯，須承擔責任，現決心痛改前非，重新做人。
潘資深大律師亦指出，沒有證據指出第一被告曾作出任何暴力行動，身上也並無攻擊性武器，並非激進參與暴力的示威者，因此或可採納較低量刑起點。而就第二項控罪而言，考慮到被告的背景及並無工作，可望判予較低的罰款等等。
暴動罪是嚴重罪行，如香港特別行政區 訴 梁天琦 [2020] HKCA 275一案，上訴法庭指出，一般而言，暴動罪判刑的考慮因素包括：
（1） 暴動是即場突然發生，還是預先計劃的，若是後者，計劃周詳及精密的程度為何；
（2） 參與暴動人數多少；
（3） 暴動者所使用暴力的程度，包括有否使用武器，若有的話，是甚麼武器和數量；
（4） 暴動的規模，包括發生暴動的時間、所在之處、地點數目及範圍；
（5） 暴動歷時多久，包括暴動有否延長；是否經警方或其他公職人員重複警告後仍然進行；
（6） 暴動所造成的傷害：例如有否對財物造成任何損失或破壞，若有的話，其程度為何；是否有人受傷，及若有的話，傷者人數及傷勢為何；
（7） 暴動造成之威脅的嚴重性及逼近程度為何；
（8） 暴動對公眾造成滋擾的性質和程度；
（9） 暴動對社群關係的影響；
（10） 暴動對公共開支造成的負擔；
（11） 犯案者的角色及參與程度，如除自己有參與暴動外，有否安排、帶領、號召、煽動或鼓吹他人參與暴動；以及
（12） 犯案者在暴動發生期間，有沒有干犯其他罪行。
而因為每宗暴動罪行所涉及的背景和案情都有差異，判刑上要視乎每宗案件而定，其他案件判刑的指導性作用不大。
就本案而言，暴動顯然並非在非常突然的情況下發生，參與暴動的人數逾300人，規模很大，他們霸佔馬路，部分人身穿護甲頭盔，手執長形狀物體，也有人在縱火焚燒雜物，向警方投擲汽油彈，及用鐳射光束照向警方，為時約逾半個多小時，甚具威脅性。以此背景而言，已可判予5年或以上的監禁。
潘資深大律師多次強調，第一被告在案中，沒證據顯示他個人曾使用任何暴力。但如上訴法院在HKSAR v Tang Ho Yin [2019] 3 HKLRD 502指出，暴動罪的嚴重性不單在其個人的行為，而在其參與的整個群體所做的事：
“24. … the gravity of the offence of riot is not to be judged merely by what the individual did (or did not do), but by what the group to whose number he lent his support did…”
但無論如何，在本案中並無證據顯示第一被告為帶領或號召角色，可幸事件中亦無證供顯示造成嚴重的人命傷亡。考慮所有事實的背景及第一被告的情況而言，可予4年半監禁為量刑起點，再考慮到第一被告在此案其實承認了大部分控方案情，節省了不少法庭時間及資源，以及考慮到其所有個人背景及求情理由，經考慮後，本席認為適當地，就控罪一可減為4年監禁。第一被告經審訊後被定罪，並無其他可再作減刑之理由。因此，就此控罪，第一被告被判予4年監禁。而就次項無牌管有無線電通訊器具罪，考慮到他的背景及經濟狀況而言，予以罰款5,000元，可從他的擔保金扣除。
因此，各項控罪判刑如下：
第一項控罪，4年監禁；
第二項控罪，罰款5,000元，可從第一被告的擔保金扣除。
姚勳智
區域法院法官
DCCC 9/2020
[2021] HKDC 90
香港特別行政區
區域法院
刑事案件2020年第9號
—————-
香港特別行政區
訴
陳佐豪（第一被告人）
—————-
主審法官：區域法院法官姚勳智
日期： 2021年1月18日上午10時54分
出席人士：律政司檢控官黃恩寧小姐，代表香港特別行政區
潘熙資深大律師帶領黃宇逸先生，由法律援助署委派的鄭瑞泰律師事務所延聘，以及陳曉姸女士，由鄭瑞泰律師事務所以義助服務形式延聘，代表第一被告人
控罪： [1] 暴動（Riot）
[2] 無牌管有無線電通訊器具（Possession of apparatus for
radiocommunications without a licence）
—————-
判刑理由書
—————-
第一被告經審訊後被裁定一項「暴動罪」及一項「無牌管有無線電通訊器具罪」罪名成立，分別違反香港法例第245章《公安條例》第19（1）及（2）條，以及香港法例第106章《電訊條例》第8（1）（b）及20條。
2019年8月31日晚上從8時許至9時06分，在銅鑼灣記利佐治街1號一帶，亦即在軒尼詩道崇光百貨（SOGO）外，現場已有約300人左右聚集，霸佔馬路，大多身穿黑衫黑褲，部份人更身穿護甲頭盔，有人手執長形狀物體，亦有為數10人左右在縱火，焚燒雜物，亦有人向警方投擲汽油彈，也有鐳射光束照向警方，向警員辱罵，且不斷傳出巨大敲擊聲響，並高聲叫囂等等。警方則在約100米外軒尼詩道希慎廣場外築起防線，雙方對峙，其間警方已多次發出警告，表明他們是非法集結，警告他們離開，否則會作出拘捕及驅散。約在晚上8時58分左右警方再展示黑旗及作出相同警告，而在約2106時左右，暴徒於東角道與記利佐治街交界（即記利佐治街1號）地上的雜物縱火，警方正式向前推進，暴徒則沿記利佐利街向東或沿東角道向北方向逃走，警方追截並在百德新街拘捕了第一被告。
第一被告被發現與其他人士衝落珠城大廈之電梯逃走。但被截停，緊貼其後的夥伴則襲擊警員以助第一被告逃脫但失敗。第一被告當時身穿胸口護甲、雙臂護甲，穿黑衫黑褲黑鞋，更跌出無線電對講機，其辯稱只是急救員難以被接納。以當時的時間及第一被告身處的位置、其整全防衛的裝備、其逃走及其夥伴攻擊警方的情況，第一被告必然是曾參與上述暴動的人士。因此，暴動罪罪名成立。
此外，第一被告被制服時從其身上亦跌出一部對講機，經專家測試並發現其輸出及接收的範圍須至申領牌照的規定，但第一被告並未有相關牌照。因此，第二項無牌管有無線電通訊器具罪亦罪名成立。
第一被告現年25歲，過往在2013年曾因販運危險藥物罪被判入教導所。潘資深大律師求情指出，第一被告曾從事運輸行業，因此案而失去工作，他過往並無同類犯案紀錄，且已多年沒有犯事。他在2006年已參與急救課程及實踐所學，多名朋友及區議員的信件也指出，第一被告熱心助人，為人善良。其母親也指出，第一被告曾患有過度活躍症，後來更適應不了學校生活，她很是內疚，也因太激動而患上抑鬱症，第一被告亦因此很早輟學來幫補家計，非常孝順。第一被告自己的求情信更表明，明白自己犯下過錯，須承擔責任，現決心痛改前非，重新做人。
潘資深大律師亦指出，沒有證據指出第一被告曾作出任何暴力行動，身上也並無攻擊性武器，並非激進參與暴力的示威者，因此或可採納較低量刑起點。而就第二項控罪而言，考慮到被告的背景及並無工作，可望判予較低的罰款等等。
暴動罪是嚴重罪行，如香港特別行政區 訴 梁天琦 [2020] HKCA 275一案，上訴法庭指出，一般而言，暴動罪判刑的考慮因素包括：
（1） 暴動是即場突然發生，還是預先計劃的，若是後者，計劃周詳及精密的程度為何；
（2） 參與暴動人數多少；
（3） 暴動者所使用暴力的程度，包括有否使用武器，若有的話，是甚麼武器和數量；
（4） 暴動的規模，包括發生暴動的時間、所在之處、地點數目及範圍；
（5） 暴動歷時多久，包括暴動有否延長；是否經警方或其他公職人員重複警告後仍然進行；
（6） 暴動所造成的傷害：例如有否對財物造成任何損失或破壞，若有的話，其程度為何；是否有人受傷，及若有的話，傷者人數及傷勢為何；
（7） 暴動造成之威脅的嚴重性及逼近程度為何；
（8） 暴動對公眾造成滋擾的性質和程度；
（9） 暴動對社群關係的影響；
（10） 暴動對公共開支造成的負擔；
（11） 犯案者的角色及參與程度，如除自己有參與暴動外，有否安排、帶領、號召、煽動或鼓吹他人參與暴動；以及
（12） 犯案者在暴動發生期間，有沒有干犯其他罪行。
而因為每宗暴動罪行所涉及的背景和案情都有差異，判刑上要視乎每宗案件而定，其他案件判刑的指導性作用不大。
就本案而言，暴動顯然並非在非常突然的情況下發生，參與暴動的人數逾300人，規模很大，他們霸佔馬路，部分人身穿護甲頭盔，手執長形狀物體，也有人在縱火焚燒雜物，向警方投擲汽油彈，及用鐳射光束照向警方，為時約逾半個多小時，甚具威脅性。以此背景而言，已可判予5年或以上的監禁。
潘資深大律師多次強調，第一被告在案中，沒證據顯示他個人曾使用任何暴力。但如上訴法院在HKSAR v Tang Ho Yin [2019] 3 HKLRD 502指出，暴動罪的嚴重性不單在其個人的行為，而在其參與的整個群體所做的事：
“24. … the gravity of the offence of riot is not to be judged merely by what the individual did (or did not do), but by what the group to whose number he lent his support did…”
但無論如何，在本案中並無證據顯示第一被告為帶領或號召角色，可幸事件中亦無證供顯示造成嚴重的人命傷亡。考慮所有事實的背景及第一被告的情況而言，可予4年半監禁為量刑起點，再考慮到第一被告在此案其實承認了大部分控方案情，節省了不少法庭時間及資源，以及考慮到其所有個人背景及求情理由，經考慮後，本席認為適當地，就控罪一可減為4年監禁。第一被告經審訊後被定罪，並無其他可再作減刑之理由。因此，就此控罪，第一被告被判予4年監禁。而就次項無牌管有無線電通訊器具罪，考慮到他的背景及經濟狀況而言，予以罰款5,000元，可從他的擔保金扣除。
因此，各項控罪判刑如下：
第一項控罪，4年監禁；
第二項控罪，罰款5,000元，可從第一被告的擔保金扣除。
姚勳智
區域法院法官
DCCC 9/2020
[2021] HKDC 90
香港特別行政區
區域法院
刑事案件2020年第9號
—————-
香港特別行政區
訴
陳佐豪（第一被告人）
—————-
主審法官：區域法院法官姚勳智
日期： 2021年1月18日上午10時54分
出席人士：律政司檢控官黃恩寧小姐，代表香港特別行政區
潘熙資深大律師帶領黃宇逸先生，由法律援助署委派的鄭瑞泰律師事務所延聘，以及陳曉姸女士，由鄭瑞泰律師事務所以義助服務形式延聘，代表第一被告人
控罪： [1] 暴動（Riot）
[2] 無牌管有無線電通訊器具（Possession of apparatus for
radiocommunications without a licence）
—————-
判刑理由書
—————-
第一被告經審訊後被裁定一項「暴動罪」及一項「無牌管有無線電通訊器具罪」罪名成立，分別違反香港法例第245章《公安條例》第19（1）及（2）條，以及香港法例第106章《電訊條例》第8（1）（b）及20條。
2019年8月31日晚上從8時許至9時06分，在銅鑼灣記利佐治街1號一帶，亦即在軒尼詩道崇光百貨（SOGO）外，現場已有約300人左右聚集，霸佔馬路，大多身穿黑衫黑褲，部份人更身穿護甲頭盔，有人手執長形狀物體，亦有為數10人左右在縱火，焚燒雜物，亦有人向警方投擲汽油彈，也有鐳射光束照向警方，向警員辱罵，且不斷傳出巨大敲擊聲響，並高聲叫囂等等。警方則在約100米外軒尼詩道希慎廣場外築起防線，雙方對峙，其間警方已多次發出警告，表明他們是非法集結，警告他們離開，否則會作出拘捕及驅散。約在晚上8時58分左右警方再展示黑旗及作出相同警告，而在約2106時左右，暴徒於東角道與記利佐治街交界（即記利佐治街1號）地上的雜物縱火，警方正式向前推進，暴徒則沿記利佐利街向東或沿東角道向北方向逃走，警方追截並在百德新街拘捕了第一被告。
第一被告被發現與其他人士衝落珠城大廈之電梯逃走。但被截停，緊貼其後的夥伴則襲擊警員以助第一被告逃脫但失敗。第一被告當時身穿胸口護甲、雙臂護甲，穿黑衫黑褲黑鞋，更跌出無線電對講機，其辯稱只是急救員難以被接納。以當時的時間及第一被告身處的位置、其整全防衛的裝備、其逃走及其夥伴攻擊警方的情況，第一被告必然是曾參與上述暴動的人士。因此，暴動罪罪名成立。
此外，第一被告被制服時從其身上亦跌出一部對講機，經專家測試並發現其輸出及接收的範圍須至申領牌照的規定，但第一被告並未有相關牌照。因此，第二項無牌管有無線電通訊器具罪亦罪名成立。
第一被告現年25歲，過往在2013年曾因販運危險藥物罪被判入教導所。潘資深大律師求情指出，第一被告曾從事運輸行業，因此案而失去工作，他過往並無同類犯案紀錄，且已多年沒有犯事。他在2006年已參與急救課程及實踐所學，多名朋友及區議員的信件也指出，第一被告熱心助人，為人善良。其母親也指出，第一被告曾患有過度活躍症，後來更適應不了學校生活，她很是內疚，也因太激動而患上抑鬱症，第一被告亦因此很早輟學來幫補家計，非常孝順。第一被告自己的求情信更表明，明白自己犯下過錯，須承擔責任，現決心痛改前非，重新做人。
潘資深大律師亦指出，沒有證據指出第一被告曾作出任何暴力行動，身上也並無攻擊性武器，並非激進參與暴力的示威者，因此或可採納較低量刑起點。而就第二項控罪而言，考慮到被告的背景及並無工作，可望判予較低的罰款等等。
暴動罪是嚴重罪行，如香港特別行政區 訴 梁天琦 [2020] HKCA 275一案，上訴法庭指出，一般而言，暴動罪判刑的考慮因素包括：
（1） 暴動是即場突然發生，還是預先計劃的，若是後者，計劃周詳及精密的程度為何；
（2） 參與暴動人數多少；
（3） 暴動者所使用暴力的程度，包括有否使用武器，若有的話，是甚麼武器和數量；
（4） 暴動的規模，包括發生暴動的時間、所在之處、地點數目及範圍；
（5） 暴動歷時多久，包括暴動有否延長；是否經警方或其他公職人員重複警告後仍然進行；
（6） 暴動所造成的傷害：例如有否對財物造成任何損失或破壞，若有的話，其程度為何；是否有人受傷，及若有的話，傷者人數及傷勢為何；
（7） 暴動造成之威脅的嚴重性及逼近程度為何；
（8） 暴動對公眾造成滋擾的性質和程度；
（9） 暴動對社群關係的影響；
（10） 暴動對公共開支造成的負擔；
（11） 犯案者的角色及參與程度，如除自己有參與暴動外，有否安排、帶領、號召、煽動或鼓吹他人參與暴動；以及
（12） 犯案者在暴動發生期間，有沒有干犯其他罪行。
而因為每宗暴動罪行所涉及的背景和案情都有差異，判刑上要視乎每宗案件而定，其他案件判刑的指導性作用不大。
就本案而言，暴動顯然並非在非常突然的情況下發生，參與暴動的人數逾300人，規模很大，他們霸佔馬路，部分人身穿護甲頭盔，手執長形狀物體，也有人在縱火焚燒雜物，向警方投擲汽油彈，及用鐳射光束照向警方，為時約逾半個多小時，甚具威脅性。以此背景而言，已可判予5年或以上的監禁。
潘資深大律師多次強調，第一被告在案中，沒證據顯示他個人曾使用任何暴力。但如上訴法院在HKSAR v Tang Ho Yin [2019] 3 HKLRD 502指出，暴動罪的嚴重性不單在其個人的行為，而在其參與的整個群體所做的事：
“24. … the gravity of the offence of riot is not to be judged merely by what the individual did (or did not do), but by what the group to whose number he lent his support did…”
但無論如何，在本案中並無證據顯示第一被告為帶領或號召角色，可幸事件中亦無證供顯示造成嚴重的人命傷亡。考慮所有事實的背景及第一被告的情況而言，可予4年半監禁為量刑起點，再考慮到第一被告在此案其實承認了大部分控方案情，節省了不少法庭時間及資源，以及考慮到其所有個人背景及求情理由，經考慮後，本席認為適當地，就控罪一可減為4年監禁。第一被告經審訊後被定罪，並無其他可再作減刑之理由。因此，就此控罪，第一被告被判予4年監禁。而就次項無牌管有無線電通訊器具罪，考慮到他的背景及經濟狀況而言，予以罰款5,000元，可從他的擔保金扣除。
因此，各項控罪判刑如下：
第一項控罪，4年監禁；
第二項控罪，罰款5,000元，可從第一被告的擔保金扣除。
姚勳智
區域法院法官
DCCC 9/2020
[2021] HKDC 90
香港特別行政區
區域法院
刑事案件2020年第9號
—————-
香港特別行政區
訴
陳佐豪（第一被告人）
—————-
主審法官：區域法院法官姚勳智
日期： 2021年1月18日上午10時54分
出席人士：律政司檢控官黃恩寧小姐，代表香港特別行政區
潘熙資深大律師帶領黃宇逸先生，由法律援助署委派的鄭瑞泰律師事務所延聘，以及陳曉姸女士，由鄭瑞泰律師事務所以義助服務形式延聘，代表第一被告人
控罪： [1] 暴動（Riot）
[2] 無牌管有無線電通訊器具（Possession of apparatus for
radiocommunications without a licence）
—————-
判刑理由書
—————-
第一被告經審訊後被裁定一項「暴動罪」及一項「無牌管有無線電通訊器具罪」罪名成立，分別違反香港法例第245章《公安條例》第19（1）及（2）條，以及香港法例第106章《電訊條例》第8（1）（b）及20條。
2019年8月31日晚上從8時許至9時06分，在銅鑼灣記利佐治街1號一帶，亦即在軒尼詩道崇光百貨（SOGO）外，現場已有約300人左右聚集，霸佔馬路，大多身穿黑衫黑褲，部份人更身穿護甲頭盔，有人手執長形狀物體，亦有為數10人左右在縱火，焚燒雜物，亦有人向警方投擲汽油彈，也有鐳射光束照向警方，向警員辱罵，且不斷傳出巨大敲擊聲響，並高聲叫囂等等。警方則在約100米外軒尼詩道希慎廣場外築起防線，雙方對峙，其間警方已多次發出警告，表明他們是非法集結，警告他們離開，否則會作出拘捕及驅散。約在晚上8時58分左右警方再展示黑旗及作出相同警告，而在約2106時左右，暴徒於東角道與記利佐治街交界（即記利佐治街1號）地上的雜物縱火，警方正式向前推進，暴徒則沿記利佐利街向東或沿東角道向北方向逃走，警方追截並在百德新街拘捕了第一被告。
第一被告被發現與其他人士衝落珠城大廈之電梯逃走。但被截停，緊貼其後的夥伴則襲擊警員以助第一被告逃脫但失敗。第一被告當時身穿胸口護甲、雙臂護甲，穿黑衫黑褲黑鞋，更跌出無線電對講機，其辯稱只是急救員難以被接納。以當時的時間及第一被告身處的位置、其整全防衛的裝備、其逃走及其夥伴攻擊警方的情況，第一被告必然是曾參與上述暴動的人士。因此，暴動罪罪名成立。
此外，第一被告被制服時從其身上亦跌出一部對講機，經專家測試並發現其輸出及接收的範圍須至申領牌照的規定，但第一被告並未有相關牌照。因此，第二項無牌管有無線電通訊器具罪亦罪名成立。
第一被告現年25歲，過往在2013年曾因販運危險藥物罪被判入教導所。潘資深大律師求情指出，第一被告曾從事運輸行業，因此案而失去工作，他過往並無同類犯案紀錄，且已多年沒有犯事。他在2006年已參與急救課程及實踐所學，多名朋友及區議員的信件也指出，第一被告熱心助人，為人善良。其母親也指出，第一被告曾患有過度活躍症，後來更適應不了學校生活，她很是內疚，也因太激動而患上抑鬱症，第一被告亦因此很早輟學來幫補家計，非常孝順。第一被告自己的求情信更表明，明白自己犯下過錯，須承擔責任，現決心痛改前非，重新做人。
潘資深大律師亦指出，沒有證據指出第一被告曾作出任何暴力行動，身上也並無攻擊性武器，並非激進參與暴力的示威者，因此或可採納較低量刑起點。而就第二項控罪而言，考慮到被告的背景及並無工作，可望判予較低的罰款等等。
暴動罪是嚴重罪行，如香港特別行政區 訴 梁天琦 [2020] HKCA 275一案，上訴法庭指出，一般而言，暴動罪判刑的考慮因素包括：
（1） 暴動是即場突然發生，還是預先計劃的，若是後者，計劃周詳及精密的程度為何；
（2） 參與暴動人數多少；
（3） 暴動者所使用暴力的程度，包括有否使用武器，若有的話，是甚麼武器和數量；
（4） 暴動的規模，包括發生暴動的時間、所在之處、地點數目及範圍；
（5） 暴動歷時多久，包括暴動有否延長；是否經警方或其他公職人員重複警告後仍然進行；
（6） 暴動所造成的傷害：例如有否對財物造成任何損失或破壞，若有的話，其程度為何；是否有人受傷，及若有的話，傷者人數及傷勢為何；
（7） 暴動造成之威脅的嚴重性及逼近程度為何；
（8） 暴動對公眾造成滋擾的性質和程度；
（9） 暴動對社群關係的影響；
（10） 暴動對公共開支造成的負擔；
（11） 犯案者的角色及參與程度，如除自己有參與暴動外，有否安排、帶領、號召、煽動或鼓吹他人參與暴動；以及
（12） 犯案者在暴動發生期間，有沒有干犯其他罪行。
而因為每宗暴動罪行所涉及的背景和案情都有差異，判刑上要視乎每宗案件而定，其他案件判刑的指導性作用不大。
就本案而言，暴動顯然並非在非常突然的情況下發生，參與暴動的人數逾300人，規模很大，他們霸佔馬路，部分人身穿護甲頭盔，手執長形狀物體，也有人在縱火焚燒雜物，向警方投擲汽油彈，及用鐳射光束照向警方，為時約逾半個多小時，甚具威脅性。以此背景而言，已可判予5年或以上的監禁。
潘資深大律師多次強調，第一被告在案中，沒證據顯示他個人曾使用任何暴力。但如上訴法院在HKSAR v Tang Ho Yin [2019] 3 HKLRD 502指出，暴動罪的嚴重性不單在其個人的行為，而在其參與的整個群體所做的事：
“24. … the gravity of the offence of riot is not to be judged merely by what the individual did (or did not do), but by what the group to whose number he lent his support did…”
但無論如何，在本案中並無證據顯示第一被告為帶領或號召角色，可幸事件中亦無證供顯示造成嚴重的人命傷亡。考慮所有事實的背景及第一被告的情況而言，可予4年半監禁為量刑起點，再考慮到第一被告在此案其實承認了大部分控方案情，節省了不少法庭時間及資源，以及考慮到其所有個人背景及求情理由，經考慮後，本席認為適當地，就控罪一可減為4年監禁。第一被告經審訊後被定罪，並無其他可再作減刑之理由。因此，就此控罪，第一被告被判予4年監禁。而就次項無牌管有無線電通訊器具罪，考慮到他的背景及經濟狀況而言，予以罰款5,000元，可從他的擔保金扣除。
因此，各項控罪判刑如下：
第一項控罪，4年監禁；
第二項控罪，罰款5,000元，可從第一被告的擔保金扣除。
姚勳智
區域法院法官
DCCC 9/2020
[2021] HKDC 90
香港特別行政區
區域法院
刑事案件2020年第9號
—————-
香港特別行政區
訴
陳佐豪（第一被告人）
—————-
主審法官：區域法院法官姚勳智
日期： 2021年1月18日上午10時54分
出席人士：律政司檢控官黃恩寧小姐，代表香港特別行政區
潘熙資深大律師帶領黃宇逸先生，由法律援助署委派的鄭瑞泰律師事務所延聘，以及陳曉姸女士，由鄭瑞泰律師事務所以義助服務形式延聘，代表第一被告人
控罪： [1] 暴動（Riot）
[2] 無牌管有無線電通訊器具（Possession of apparatus for
radiocommunications without a licence）
—————-
判刑理由書
—————-
第一被告經審訊後被裁定一項「暴動罪」及一項「無牌管有無線電通訊器具罪」罪名成立，分別違反香港法例第245章《公安條例》第19（1）及（2）條，以及香港法例第106章《電訊條例》第8（1）（b）及20條。
2019年8月31日晚上從8時許至9時06分，在銅鑼灣記利佐治街1號一帶，亦即在軒尼詩道崇光百貨（SOGO）外，現場已有約300人左右聚集，霸佔馬路，大多身穿黑衫黑褲，部份人更身穿護甲頭盔，有人手執長形狀物體，亦有為數10人左右在縱火，焚燒雜物，亦有人向警方投擲汽油彈，也有鐳射光束照向警方，向警員辱罵，且不斷傳出巨大敲擊聲響，並高聲叫囂等等。警方則在約100米外軒尼詩道希慎廣場外築起防線，雙方對峙，其間警方已多次發出警告，表明他們是非法集結，警告他們離開，否則會作出拘捕及驅散。約在晚上8時58分左右警方再展示黑旗及作出相同警告，而在約2106時左右，暴徒於東角道與記利佐治街交界（即記利佐治街1號）地上的雜物縱火，警方正式向前推進，暴徒則沿記利佐利街向東或沿東角道向北方向逃走，警方追截並在百德新街拘捕了第一被告。
第一被告被發現與其他人士衝落珠城大廈之電梯逃走。但被截停，緊貼其後的夥伴則襲擊警員以助第一被告逃脫但失敗。第一被告當時身穿胸口護甲、雙臂護甲，穿黑衫黑褲黑鞋，更跌出無線電對講機，其辯稱只是急救員難以被接納。以當時的時間及第一被告身處的位置、其整全防衛的裝備、其逃走及其夥伴攻擊警方的情況，第一被告必然是曾參與上述暴動的人士。因此，暴動罪罪名成立。
此外，第一被告被制服時從其身上亦跌出一部對講機，經專家測試並發現其輸出及接收的範圍須至申領牌照的規定，但第一被告並未有相關牌照。因此，第二項無牌管有無線電通訊器具罪亦罪名成立。
第一被告現年25歲，過往在2013年曾因販運危險藥物罪被判入教導所。潘資深大律師求情指出，第一被告曾從事運輸行業，因此案而失去工作，他過往並無同類犯案紀錄，且已多年沒有犯事。他在2006年已參與急救課程及實踐所學，多名朋友及區議員的信件也指出，第一被告熱心助人，為人善良。其母親也指出，第一被告曾患有過度活躍症，後來更適應不了學校生活，她很是內疚，也因太激動而患上抑鬱症，第一被告亦因此很早輟學來幫補家計，非常孝順。第一被告自己的求情信更表明，明白自己犯下過錯，須承擔責任，現決心痛改前非，重新做人。
潘資深大律師亦指出，沒有證據指出第一被告曾作出任何暴力行動，身上也並無攻擊性武器，並非激進參與暴力的示威者，因此或可採納較低量刑起點。而就第二項控罪而言，考慮到被告的背景及並無工作，可望判予較低的罰款等等。
暴動罪是嚴重罪行，如香港特別行政區 訴 梁天琦 [2020] HKCA 275一案，上訴法庭指出，一般而言，暴動罪判刑的考慮因素包括：
（1） 暴動是即場突然發生，還是預先計劃的，若是後者，計劃周詳及精密的程度為何；
（2） 參與暴動人數多少；
（3） 暴動者所使用暴力的程度，包括有否使用武器，若有的話，是甚麼武器和數量；
（4） 暴動的規模，包括發生暴動的時間、所在之處、地點數目及範圍；
（5） 暴動歷時多久，包括暴動有否延長；是否經警方或其他公職人員重複警告後仍然進行；
（6） 暴動所造成的傷害：例如有否對財物造成任何損失或破壞，若有的話，其程度為何；是否有人受傷，及若有的話，傷者人數及傷勢為何；
（7） 暴動造成之威脅的嚴重性及逼近程度為何；
（8） 暴動對公眾造成滋擾的性質和程度；
（9） 暴動對社群關係的影響；
（10） 暴動對公共開支造成的負擔；
（11） 犯案者的角色及參與程度，如除自己有參與暴動外，有否安排、帶領、號召、煽動或鼓吹他人參與暴動；以及
（12） 犯案者在暴動發生期間，有沒有干犯其他罪行。
而因為每宗暴動罪行所涉及的背景和案情都有差異，判刑上要視乎每宗案件而定，其他案件判刑的指導性作用不大。
就本案而言，暴動顯然並非在非常突然的情況下發生，參與暴動的人數逾300人，規模很大，他們霸佔馬路，部分人身穿護甲頭盔，手執長形狀物體，也有人在縱火焚燒雜物，向警方投擲汽油彈，及用鐳射光束照向警方，為時約逾半個多小時，甚具威脅性。以此背景而言，已可判予5年或以上的監禁。
潘資深大律師多次強調，第一被告在案中，沒證據顯示他個人曾使用任何暴力。但如上訴法院在HKSAR v Tang Ho Yin [2019] 3 HKLRD 502指出，暴動罪的嚴重性不單在其個人的行為，而在其參與的整個群體所做的事：
“24. … the gravity of the offence of riot is not to be judged merely by what the individual did (or did not do), but by what the group to whose number he lent his support did…”
但無論如何，在本案中並無證據顯示第一被告為帶領或號召角色，可幸事件中亦無證供顯示造成嚴重的人命傷亡。考慮所有事實的背景及第一被告的情況而言，可予4年半監禁為量刑起點，再考慮到第一被告在此案其實承認了大部分控方案情，節省了不少法庭時間及資源，以及考慮到其所有個人背景及求情理由，經考慮後，本席認為適當地，就控罪一可減為4年監禁。第一被告經審訊後被定罪，並無其他可再作減刑之理由。因此，就此控罪，第一被告被判予4年監禁。而就次項無牌管有無線電通訊器具罪，考慮到他的背景及經濟狀況而言，予以罰款5,000元，可從他的擔保金扣除。
因此，各項控罪判刑如下：
第一項控罪，4年監禁；
第二項控罪，罰款5,000元，可從第一被告的擔保金扣除。
姚勳智
區域法院法官
DCCC 182/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 182 OF 2020
————————————–
HKSAR
v
LAI CHUN HUNG
—————————————
Before: Her Honour Judge A J Woodcock in Court
Date: 11 December 2020
Present: Mr Wong Chun Hin Derek, Senior Public Prosecutor, for HKSAR/ Director of Public Prosecutions
Mr Kwan Man Wai Steven, instructed by Ho Tse Wai & Partners, assigned by the Director of Legal Aid, for the defendant
Offences: [1] Attempted arson with intent (有意圖而企圖縱火)
[2] Possession of offensive weapons in a public place (在公眾地方管有攻擊性武器)
[3] Possession of things with intent to destroy or damage property (管有物品意圖摧毀或損壞財產)
—————————————–
REASONS FOR SENTENCE
—————————————–
The defendant pleaded guilty to Charges 1 and 2. He pleaded guilty to Attempted arson with intent, contrary to sections 60(2), 60(3), 63(1) and 159G of the Crimes Ordinance, Cap 200, Charge 1. On 18 November 2019 near the junction of Hak Po Street and Soy Street, Mong Kok, Kowloon, the defendant, without lawful excuse, attempted to destroy or damage by fire a police vehicle, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged, and being reckless as to whether the life of the passengers of the said police vehicle would be thereby endangered.
He pleaded guilty to Charge 2, Possession of offensive weapons in a public place, contrary to section 33(1) and (2) of the Public Order Ordinance, Cap 245. On the same date in a public place on Hak Po Street, Mong Kok, the defendant without lawful authority or reasonable excuse, had with him offensive weapons, namely one knife, one extendable batten and one bottle of pepper gel.
He pleaded not guilty to Charge 3, Possession of things with intent to destroy or damage property, contrary to section 62(a) and 63(2) of the Crimes Ordinance. The particulars were that on the same date the defendant had in his custody or under his control one gas torch attached to a gas canister, one can of gas canister, one multipurpose tool, one rope saw and one awl, intending without lawful excuse to use the said things or cause or permit another to use the said things to destroy or damage property belonging to some other person. This charge was put on the court file, not to be dealt with unless there was the required leave.
Facts of the Case
From June 2019, Hong Kong experienced a number of protests that escalated into serious social unrest and public disorder. In the early hours of the morning of 18 November 2019 a team of police officers in a police vehicle arrived in Mong Kok at around 5:43 am to disperse hundreds of protesters gathered in that area who had set up roadblocks and barricades.
When the police vehicle arrived at the junction of Waterloo Road and Yim Po Fong Road they saw around 100 protesters gathered there. As they drove up, the protesters scattered in different directions. The police vehicle drove on and 2 minutes later, it reached Hak Po Street near the junction of Soy Street.
It was near this junction that the police saw the defendant throw a petrol bomb towards them from around 5 to 10 m away. It landed near the right front of their vehicle but it did not explode, hence, the charge of attempted arson. This was caught on CCTV from a nearby camera. The CCTV captured a group of people in black at that junction who started to run when the police vehicle approached. It then captured someone hurling a bright and what appears to be a burning object towards the police vehicle and running away.
The defendant was wearing a black motorcycle helmet, a pink respirator, dark shirt, dark trousers and carrying a dark rucksack. Immediately after he threw the petrol bomb he fled. The police officers jumping out of the police vehicle and chasing him. They caught him some 60 to 70 m away.
He was subdued and searched and the police found either in his rucksack or attached to his waist belt amongst other things, the weapons of Charge 2.
The defendant admits that the bottle of pepper gel could discharge a liquid containing chemicals that would elicit a burning sensation in the soft muscosal tissues and qualified as noxious chemicals.
Additionally, he admits that the knife was 25 cm long with a 11 cm blade. The extendable batten was 32 cm long when extended.
It is admitted that a government forensic scientist found traces of petrol on the defendant’s shirt, trousers, shoes and gloves. Some burned debris was found on the ground where the bottle landed which also contained traces of petrol.
Mitigation
The defendant is now 25 years old and has a clear record. His best mitigation is his plea of guilty at the earliest opportunity.
He came to Hong Kong on a one-way permit from the Mainland with his mother when 14 years old. He seldom saw his father, his parents divorced and he and his mother are very close. His mother suffers from depression. They lived in a very small subdivided room and relied on his mother’s income working in fast food restaurants. He found it hard to adapt to life in Hong Kong where he faced racial abuse, prejudices and had no friends.
He threw himself into voluntary work at school and outside of school. He spent much time visiting elderly people, organising voluntary activities and helping people who were socially disadvantaged. His teacher praised him for his enthusiasm and kindness to others.
When he left school he studied and obtained a higher diploma in civil engineering 3 years ago. When he was arrested he was an electrical technician in and on construction sites earning $20,000 a month.
In 2018 he was diagnosed by a psychiatrist to have attention deficit and hyperactivity disorder (ADHD) as well as cyclothymic disorder. He was prescribed medication but in early 2019 he stopped taking it because of side-effects. I have a psychiatric report from United Christian hospital dated August 2020 and after plea was taken and mitigation heard, I adjourned for an another psychiatric report.
I don’t intend to repeat the contents or details of this most up to date report. The previous diagnosis is affirmed and the defendant confirmed he committed these offences. The defence position is that he was suffering from the symptoms of these disorders then but Mr Kwan for the defendant has specific instructions that the defendant knew what he was doing at the material time. Mr Kwan accepts that nothing in the psychiatrist report suggests that ADHD or cyclothymic played any part in the commission of these offences. The defendant knew what he was doing at the time and committed Charge 1 intentionally even though it was in the heat of the moment.
I have many mitigating letters and have considered the contents of them all especially the long letter from the defendant himself. I have letters from his mother and largely absent father. His fiancée has written to give me some background into his mental and emotional difficulties whilst continuing to support and stand by him. Teachers have written to tell me of the prejudices he suffered as an immigrant student which did not stop him trying hard and finding opportunities to help others instead of wallowing in self-pity.
Social workers, family friends, volunteers who visit prisoners on remand, legislative councilors who have come to know the defendant and even a fellow prisoner who is from Africa have written asking for leniency and mercy. The defendant has helped this fellow prisoner find ways to communicate with his family at home and finally receive long-awaited letters with recent photographs of his family from Africa. His actions demonstrate kindness. This prisoner calls the defendant an angel and feels blessed to call him a friend.
In mitigation it has been submitted that he did not make the petrol bomb himself or carry one on him to the scene. It was submitted that he picked it up from the ground. He admits he threw a burning petrol bomb which meant he lit it himself if he did pick it up from the ground. He has told the psychiatrist he is a non-smoker and a non-drinker yet he had a lighter on his person he used to light it. Whether or not he did pick it up off the ground, what is important is he made a conscious decision to light a petrol bomb in order to throw it at a police vehicle.
Mr Kwan has said all he can say on behalf of the defendant. He does reiterate that the plea to the 1st charge is tendered on the basis of recklessness as to whether property would be damaged and whether life would be endangered as opposed to an intent to damage property or endanger life. This is accepted by the prosecution.
Reasons for sentence
This 1st charge is an attempted arson with intent because the defendant attempted to destroy or damage a police vehicle with a petrol bomb. He admits he wanted to stop the police advancing on other protesters. He was reckless as to whether such property would be destroyed or damaged and was reckless as to whether the life of the passengers of the said police vehicle would be thereby endangered.
There should be no doubt in anyone’s mind that an offence of this nature, irrespective of motive or reason is to be taken and viewed with the utmost seriousness. It has been said that arson, because of the inherent danger in an uncontrollable fire, is always regarded as an offence of particular gravity. Arsonists have been described as exhibiting a reckless disregard for life and property.
Arson can attract a life sentence. Such a maximum sentence highlights the seriousness with which deliberately starting fires must be viewed. There are no tariff guidelines for arson. Each case very much depends on its own facts and circumstances; these vary so much in cases of arson. Courts must impose a sentence which properly reflects the gravity of the particular case and its own individual facts.
The police were in the area because of protesting and public disorder. The defendant’s act of throwing a petrol bomb or Molotov cocktail at the police vehicle is to be viewed as the defendant targeting police officers. He threw a petrol bomb at the police or in the direction of their vehicle to prevent them carrying out their duty. The fact it luckily did not explode does not make the offence any less serious. He acted with contempt and disdain for law and order.
There must be a sentence that deters the defendant and others. The defendant’s act of throwing a petrol bomb and possession of multiple offensive weapons shows he intended to commit arson and was well prepared.
There is planning and premeditation in his possession of a knife, extendable batten and pepper spray. He told the psychiatrist that he possessed the items in self defence in the social movement.
His criminal act of throwing a petrol bomb should never be confused or associated with legitimate and peaceful protest. The seriousness lies in the fact such a weapon is notoriously unstable.
Such planning, intention and recklessness is enough to warrant a sentence of significant length. Sentencing is a balancing act and in some cases the serious nature, circumstances and the prevalence of the offence in that period of time requires a custodial sentence that serves as a deterrent to others. Such a sentence will therefore take priority over the personal details and mitigation of the defendant.
Mr Kwan has directed me to the sentencing guidelines of the United Kingdom for arson with intent to endanger life or reckless as to whether life is endangered. Where an offender was reckless as to whether life was endangered, culpability B and the level of harm assessed as category 1 meaning there was a high-risk of very serious physical and/or psychological harm then the guidelines suggest a range of between 4 to 10 years’ imprisonment.
The same guidelines separately lists factors that would increase seriousness such as the use of an accelerant, significant degree of planning and premeditation, where multiple people could be endangered, where there may be a significant impact on the emergency services or resources amongst others. All of those factors are relevant here. The UK sentencing guidelines give an insight into how serious it is to throw a petrol bomb aimed at the police.
I have been referred to recent sentences imposed in the District Court for arson or attempted arson with intent arising from the social unrest and protests of 2019. I have been referred to sentences arising from the 1967 riots and the early 1990 riots in Vietnamese detention centres.
With respect, these cases reviewed are of little assistance to me in passing sentence. Some are not similar or comparable and I repeat, in any event each case very much depends on its own facts.
I have taken into account his age, previous clear record, mitigation letters and mitigation put forward on his behalf. I have taken into account the medical reports and their contents.
I have also taken into account as I have said above that there was some planning in the commission of these offences. He equipped himself with a variety of serious weapons to join a protest. His manner of dress was deliberately designed to avoid the risk of identification and arrest but ironically the motorcycle helmet may have hidden his face but made him easy to spot and follow.
It is an aggravating factor that for this attempted arson offence the defendant intended to use a petrol bomb to achieve his purpose of stopping the police advancing. The potential harm and mayhem that could have been caused was considerable because once a petrol bomb is ignited and thrown, it is quite impossible to foresee the possible or likely consequences. It is also possible an already volatile situation could have been made much worse.
Having considered all of the relevant factors, the facts of this case and everything put in mitigation I find a starting point of 5 years’ imprisonment appropriate for charge 1.
I find a starting point of 2 years and 6 months’ imprisonment appropriate for charge 2. I find it appropriate after considering the number of weapons and their variety as well as the injuries they could cause.
The defendant has pleaded guilty at the earliest opportunity therefore; he will receive a one-third reduction in his sentences. Other than this, there is nothing in mitigation I find would warrant any further reduction in sentences.
For charge 1, 5 years reduced by one-third will mean 3 years and 4 months’ imprisonment. For charge 2, 2 years and 6 months reduced by one-third will mean 1 year and 8 months’ imprisonment.
Taking into account the totality principle, I find it appropriate to order the sentences to be served concurrently. Therefore, the defendant is sentenced to a total of 3 years and 4 months’ imprisonment.
( A J Woodcock )
District Judge
DCCC 182/2020
12/11/2020
胡雅文
區院
認罪
罪成
地盤工
24
在公眾地方管有攻擊性武器
刀、伸縮棍、胡椒噴霧
判囚
20
旺角
DCCC 182/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 182 OF 2020
————————————–
HKSAR
v
LAI CHUN HUNG
—————————————
Before: Her Honour Judge A J Woodcock in Court
Date: 11 December 2020
Present: Mr Wong Chun Hin Derek, Senior Public Prosecutor, for HKSAR/ Director of Public Prosecutions
Mr Kwan Man Wai Steven, instructed by Ho Tse Wai & Partners, assigned by the Director of Legal Aid, for the defendant
Offences: [1] Attempted arson with intent (有意圖而企圖縱火)
[2] Possession of offensive weapons in a public place (在公眾地方管有攻擊性武器)
[3] Possession of things with intent to destroy or damage property (管有物品意圖摧毀或損壞財產)
—————————————–
REASONS FOR SENTENCE
—————————————–
The defendant pleaded guilty to Charges 1 and 2. He pleaded guilty to Attempted arson with intent, contrary to sections 60(2), 60(3), 63(1) and 159G of the Crimes Ordinance, Cap 200, Charge 1. On 18 November 2019 near the junction of Hak Po Street and Soy Street, Mong Kok, Kowloon, the defendant, without lawful excuse, attempted to destroy or damage by fire a police vehicle, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged, and being reckless as to whether the life of the passengers of the said police vehicle would be thereby endangered.
He pleaded guilty to Charge 2, Possession of offensive weapons in a public place, contrary to section 33(1) and (2) of the Public Order Ordinance, Cap 245. On the same date in a public place on Hak Po Street, Mong Kok, the defendant without lawful authority or reasonable excuse, had with him offensive weapons, namely one knife, one extendable batten and one bottle of pepper gel.
He pleaded not guilty to Charge 3, Possession of things with intent to destroy or damage property, contrary to section 62(a) and 63(2) of the Crimes Ordinance. The particulars were that on the same date the defendant had in his custody or under his control one gas torch attached to a gas canister, one can of gas canister, one multipurpose tool, one rope saw and one awl, intending without lawful excuse to use the said things or cause or permit another to use the said things to destroy or damage property belonging to some other person. This charge was put on the court file, not to be dealt with unless there was the required leave.
Facts of the Case
From June 2019, Hong Kong experienced a number of protests that escalated into serious social unrest and public disorder. In the early hours of the morning of 18 November 2019 a team of police officers in a police vehicle arrived in Mong Kok at around 5:43 am to disperse hundreds of protesters gathered in that area who had set up roadblocks and barricades.
When the police vehicle arrived at the junction of Waterloo Road and Yim Po Fong Road they saw around 100 protesters gathered there. As they drove up, the protesters scattered in different directions. The police vehicle drove on and 2 minutes later, it reached Hak Po Street near the junction of Soy Street.
It was near this junction that the police saw the defendant throw a petrol bomb towards them from around 5 to 10 m away. It landed near the right front of their vehicle but it did not explode, hence, the charge of attempted arson. This was caught on CCTV from a nearby camera. The CCTV captured a group of people in black at that junction who started to run when the police vehicle approached. It then captured someone hurling a bright and what appears to be a burning object towards the police vehicle and running away.
The defendant was wearing a black motorcycle helmet, a pink respirator, dark shirt, dark trousers and carrying a dark rucksack. Immediately after he threw the petrol bomb he fled. The police officers jumping out of the police vehicle and chasing him. They caught him some 60 to 70 m away.
He was subdued and searched and the police found either in his rucksack or attached to his waist belt amongst other things, the weapons of Charge 2.
The defendant admits that the bottle of pepper gel could discharge a liquid containing chemicals that would elicit a burning sensation in the soft muscosal tissues and qualified as noxious chemicals.
Additionally, he admits that the knife was 25 cm long with a 11 cm blade. The extendable batten was 32 cm long when extended.
It is admitted that a government forensic scientist found traces of petrol on the defendant’s shirt, trousers, shoes and gloves. Some burned debris was found on the ground where the bottle landed which also contained traces of petrol.
Mitigation
The defendant is now 25 years old and has a clear record. His best mitigation is his plea of guilty at the earliest opportunity.
He came to Hong Kong on a one-way permit from the Mainland with his mother when 14 years old. He seldom saw his father, his parents divorced and he and his mother are very close. His mother suffers from depression. They lived in a very small subdivided room and relied on his mother’s income working in fast food restaurants. He found it hard to adapt to life in Hong Kong where he faced racial abuse, prejudices and had no friends.
He threw himself into voluntary work at school and outside of school. He spent much time visiting elderly people, organising voluntary activities and helping people who were socially disadvantaged. His teacher praised him for his enthusiasm and kindness to others.
When he left school he studied and obtained a higher diploma in civil engineering 3 years ago. When he was arrested he was an electrical technician in and on construction sites earning $20,000 a month.
In 2018 he was diagnosed by a psychiatrist to have attention deficit and hyperactivity disorder (ADHD) as well as cyclothymic disorder. He was prescribed medication but in early 2019 he stopped taking it because of side-effects. I have a psychiatric report from United Christian hospital dated August 2020 and after plea was taken and mitigation heard, I adjourned for an another psychiatric report.
I don’t intend to repeat the contents or details of this most up to date report. The previous diagnosis is affirmed and the defendant confirmed he committed these offences. The defence position is that he was suffering from the symptoms of these disorders then but Mr Kwan for the defendant has specific instructions that the defendant knew what he was doing at the material time. Mr Kwan accepts that nothing in the psychiatrist report suggests that ADHD or cyclothymic played any part in the commission of these offences. The defendant knew what he was doing at the time and committed Charge 1 intentionally even though it was in the heat of the moment.
I have many mitigating letters and have considered the contents of them all especially the long letter from the defendant himself. I have letters from his mother and largely absent father. His fiancée has written to give me some background into his mental and emotional difficulties whilst continuing to support and stand by him. Teachers have written to tell me of the prejudices he suffered as an immigrant student which did not stop him trying hard and finding opportunities to help others instead of wallowing in self-pity.
Social workers, family friends, volunteers who visit prisoners on remand, legislative councilors who have come to know the defendant and even a fellow prisoner who is from Africa have written asking for leniency and mercy. The defendant has helped this fellow prisoner find ways to communicate with his family at home and finally receive long-awaited letters with recent photographs of his family from Africa. His actions demonstrate kindness. This prisoner calls the defendant an angel and feels blessed to call him a friend.
In mitigation it has been submitted that he did not make the petrol bomb himself or carry one on him to the scene. It was submitted that he picked it up from the ground. He admits he threw a burning petrol bomb which meant he lit it himself if he did pick it up from the ground. He has told the psychiatrist he is a non-smoker and a non-drinker yet he had a lighter on his person he used to light it. Whether or not he did pick it up off the ground, what is important is he made a conscious decision to light a petrol bomb in order to throw it at a police vehicle.
Mr Kwan has said all he can say on behalf of the defendant. He does reiterate that the plea to the 1st charge is tendered on the basis of recklessness as to whether property would be damaged and whether life would be endangered as opposed to an intent to damage property or endanger life. This is accepted by the prosecution.
Reasons for sentence
This 1st charge is an attempted arson with intent because the defendant attempted to destroy or damage a police vehicle with a petrol bomb. He admits he wanted to stop the police advancing on other protesters. He was reckless as to whether such property would be destroyed or damaged and was reckless as to whether the life of the passengers of the said police vehicle would be thereby endangered.
There should be no doubt in anyone’s mind that an offence of this nature, irrespective of motive or reason is to be taken and viewed with the utmost seriousness. It has been said that arson, because of the inherent danger in an uncontrollable fire, is always regarded as an offence of particular gravity. Arsonists have been described as exhibiting a reckless disregard for life and property.
Arson can attract a life sentence. Such a maximum sentence highlights the seriousness with which deliberately starting fires must be viewed. There are no tariff guidelines for arson. Each case very much depends on its own facts and circumstances; these vary so much in cases of arson. Courts must impose a sentence which properly reflects the gravity of the particular case and its own individual facts.
The police were in the area because of protesting and public disorder. The defendant’s act of throwing a petrol bomb or Molotov cocktail at the police vehicle is to be viewed as the defendant targeting police officers. He threw a petrol bomb at the police or in the direction of their vehicle to prevent them carrying out their duty. The fact it luckily did not explode does not make the offence any less serious. He acted with contempt and disdain for law and order.
There must be a sentence that deters the defendant and others. The defendant’s act of throwing a petrol bomb and possession of multiple offensive weapons shows he intended to commit arson and was well prepared.
There is planning and premeditation in his possession of a knife, extendable batten and pepper spray. He told the psychiatrist that he possessed the items in self defence in the social movement.
His criminal act of throwing a petrol bomb should never be confused or associated with legitimate and peaceful protest. The seriousness lies in the fact such a weapon is notoriously unstable.
Such planning, intention and recklessness is enough to warrant a sentence of significant length. Sentencing is a balancing act and in some cases the serious nature, circumstances and the prevalence of the offence in that period of time requires a custodial sentence that serves as a deterrent to others. Such a sentence will therefore take priority over the personal details and mitigation of the defendant.
Mr Kwan has directed me to the sentencing guidelines of the United Kingdom for arson with intent to endanger life or reckless as to whether life is endangered. Where an offender was reckless as to whether life was endangered, culpability B and the level of harm assessed as category 1 meaning there was a high-risk of very serious physical and/or psychological harm then the guidelines suggest a range of between 4 to 10 years’ imprisonment.
The same guidelines separately lists factors that would increase seriousness such as the use of an accelerant, significant degree of planning and premeditation, where multiple people could be endangered, where there may be a significant impact on the emergency services or resources amongst others. All of those factors are relevant here. The UK sentencing guidelines give an insight into how serious it is to throw a petrol bomb aimed at the police.
I have been referred to recent sentences imposed in the District Court for arson or attempted arson with intent arising from the social unrest and protests of 2019. I have been referred to sentences arising from the 1967 riots and the early 1990 riots in Vietnamese detention centres.
With respect, these cases reviewed are of little assistance to me in passing sentence. Some are not similar or comparable and I repeat, in any event each case very much depends on its own facts.
I have taken into account his age, previous clear record, mitigation letters and mitigation put forward on his behalf. I have taken into account the medical reports and their contents.
I have also taken into account as I have said above that there was some planning in the commission of these offences. He equipped himself with a variety of serious weapons to join a protest. His manner of dress was deliberately designed to avoid the risk of identification and arrest but ironically the motorcycle helmet may have hidden his face but made him easy to spot and follow.
It is an aggravating factor that for this attempted arson offence the defendant intended to use a petrol bomb to achieve his purpose of stopping the police advancing. The potential harm and mayhem that could have been caused was considerable because once a petrol bomb is ignited and thrown, it is quite impossible to foresee the possible or likely consequences. It is also possible an already volatile situation could have been made much worse.
Having considered all of the relevant factors, the facts of this case and everything put in mitigation I find a starting point of 5 years’ imprisonment appropriate for charge 1.
I find a starting point of 2 years and 6 months’ imprisonment appropriate for charge 2. I find it appropriate after considering the number of weapons and their variety as well as the injuries they could cause.
The defendant has pleaded guilty at the earliest opportunity therefore; he will receive a one-third reduction in his sentences. Other than this, there is nothing in mitigation I find would warrant any further reduction in sentences.
For charge 1, 5 years reduced by one-third will mean 3 years and 4 months’ imprisonment. For charge 2, 2 years and 6 months reduced by one-third will mean 1 year and 8 months’ imprisonment.
Taking into account the totality principle, I find it appropriate to order the sentences to be served concurrently. Therefore, the defendant is sentenced to a total of 3 years and 4 months’ imprisonment.
( A J Woodcock )
District Judge
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判囚
11
荃灣
ESCC502/2020
崔美霞
裁判法院
不認罪
罪成
裝修工人
25
管有攻擊性武器或適合作非法用途的工具
彈叉、彈射器、玻璃及金屬彈珠
判囚
11
荃灣
DCCC 125/2020
胡雅文
區院
認罪
罪成
無業
29
暴動
判囚
44
11/09/2019
將軍澳
DCCC 125/2020
[2020] HKDC 1131
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 125 OF 2020
—————————–
HKSAR
v
WONG YAM CHOI (D1)
CHAN MING KWAI (D2)
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 27 November 2020
Present: Mr Chen Timothy K H, Public Prosecutor, for HKSAR/ Director of Public Prosecutions
Mr Fung Chun Wah Keith, instructed by Keith Lau & Chan, assigned by the Director of Legal Aid, for the 1st defendant
Mr Chu Po Tien David, instructed by Cheung & Co, assigned by the Director of Legal Aid, for the 2nd defendant
Offence: [1] Riot (暴動)
[2] Wounding with intent (有意圖而傷人)
—————————————–
REASONS FOR SENTENCE
—————————————–
Both defendants pleaded guilty to Charge 1, a charge of Riot, contrary to section 19(1) and (2) of the Public Order Ordinance and Charge 2, Wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance.
The particulars of Charge 1 are that both defendants on or about 9 November 2019, outside Block 1, Beverley Garden, No 1 Tong Ming Street, Tseung Kwan O, New Territories together with other persons unknown, took part in a riot.
The particulars of Charge 2 are that both defendants on or about the same day at the same location, together with other persons unknown, unlawfully and maliciously wounded X with intent to do him grievous bodily harm.
Facts of the case
A few days prior to the date of these offences a university student fell from a height in a car park nearby. He unfortunately passed away on 8 November 2019 from his injuries. His fall led to incidents of unlawful assembly and protests which escalated on the night of his death.
Both defendants admit that just after midnight on 9 November 2019 protesters began to gather outside Block 1 of Beverley Garden and were shouting and chanting slogans loudly. The number of protesters grew which meant the noise they generated increased exponentially.
X is a resident of Beverley Garden and was woken up at about 2:30am by the noise coming from downstairs. He was unable to go back to sleep and about 15 minutes later he went downstairs to find a group of more than 20 protesters shouting incessantly. X did make a noise complaint to the police and told the group that he had to work the next day therefore could they quieten down. He was then surrounded by a large group of protesters, some people wearing press vests and others who appeared to be there to watch and film the incident.
The crowd surrounding X grew angry and aggressive. Men who appeared to be security guards did try and lead X away but it appears from the news footage that he was prevented from leaving. Both defendants admitted they were amongst the group of protesters, in fact, the 2nd defendant is very visible and it appears was present from the start and one of the instigators of the incident. He is seen and heard scolding X.
The 2nd defendant grabbed X’s arm and prevented him from leaving just before he was pushed to the ground. The 2nd defendant hit him with his bare hands. X was violently attacked by the defendants and others; he was punched, kicked and repeatedly hit with hard objects. He was trapped up against a wall. One can hear the objects hitting him in the news footage, the blows can actually be heard. The defendants admit this incident turned into a riot.
The attack on X was prolonged and only broke up when police officers arrived at the scene minutes later. The rioters dispersed. Within 10 minutes the police swept the area and arrested both defendants.
The 1st defendant was carrying a bag containing a black mask, a white mask and 2 pairs of gloves. The 2nd defendant had with him a black mask and gloves.
X sustained multiple injuries which included lacerations over his scalp that required 13 stitches as did other wounds. All over his body he sustained cuts, bruises and swollen limbs. He was hospitalised for 3 days.
The 1st defendant can be seen in news footage kicking X on the ground with the heel of her shoe as hard as she can on three separate occasions. Blood stains found on one of her shoes contained X’s DNA. A broken metal umbrella shaft was seized from the scene and covered in X’s blood.
Both defendants admit that at the material time they both together with other persons unknown took part in a riot and both together with other persons unknown unlawfully and maliciously wounded X with intent to cause him grievous bodily harm. The news footage from several sources clearly shows the commission of the offences; a riot that was senseless and violent leaving a man seriously injured. The riot and attack on X went on for nearly 10 minutes.
News camera footage
I have 3 discs marked as MFI-1 containing news footage from RTHK News, Now TV and Stand News. From the Stand News footage recorded at 37:07 minutes the victim X is heard telling the crowd surrounding him to please be quiet because he just wants to sleep. He has made a noise complaint to the police. He is then verbally abused and scolded. The 2nd defendant can be seen next to X and in the thick of it. The crowd including the 2nd defendant questioned whether he was a real resident and threatened him. For example, there were shouts to watch where he went and take note where he lived. He was asked for his residence card to prove he lived there. Many of them were demanding answers from him or felt entitled to demand he answer. Clearly he felt threatened and started to film the crowd surrounding him with his own phone. This phone was knocked out of his hand when he was attacked and also stolen. It was a highly aggressive scene.
2 men who may have been security guards from the estate tried to escort X away from the baying crowd. He was essentially prevented from leaving. At 47:10 minutes the 2nd defendant was very aggressively shouting at X and held his wrist. Seconds later he pushed X with other people and X fell to the ground. Many people attacked him on the ground and he was backed up against a wall. At 49:02 minutes there is a shout of “can the press back up” because they, rioters and voyeurs were obstructing any possible way for X to escape. Despite this, no one backed away or moved away at all.
From all of the news footage, there does not appear to have been any attempt by anyone to help X or give him room to escape. I use the word voyeur because there were clearly many who stood and filmed; the only sad explanation can be they enjoyed seeing the pain or distress of the victim.
There are also shouts of “harder, harder” and shouts of “stop hitting”. There are shouts of “you will beat him to death”. At 53:00 minutes one can see he was beaten with something hard and one can hear the blows on his body. There are sickening cheers corresponding with these blows.
At 53:26 minutes the 1st defendant is seen pushing her way through the rioting crowd to kick X whilst he is on the ground. She kicks him until she is pulled away by somebody. At 53:36 minutes she comes again for the 2nd time to kick him with what appears to be the heel of her shoe. She even holds onto the tree next to X for leverage to kick him harder. Once again, she is pushed away but comes back for a 3rd time at 53:49 minutes. Once more she uses the tree as leverage when kicking him on the ground.
The 1st defendant is again seen very clearly in the Now TV footage at 3:04:33 kicking X for the 1st time. Again at 3:04:41 kicking him for the 2nd time and at 3:04:45 coming back for the last time, holding onto the tree for leverage to keep kicking. In the Now TV footage at 3:04:24 one can see X’s head being kicked and knocked against the wall behind him. There is blood on that wall.
In all the camera footage provided by the prosecution from news agencies it is clear that prior to this incident in Beverley Gardens there was much unrest, violence and protesting in the surrounding area. When the police arrive at Beverley Gardens it takes them a few minutes to get the crowd and the press to move back to treat X. In several clips he can be seen covered in blood lying on the ground against the wall.
The prosecution provided me with 3 albums, marked as
MFI – 2 (1-3). In the 1st album there are photographs of the injuries suffered by X taken in the hospital. He has had to have all his hair shaved off to treat and stitch his head wounds. He has suffered injuries all over his head, face, neck, lower limbs and upper limbs; many which required stitches. His lower arms and hands are so swollen from the beatings.
The 2nd album contains photographs of the clothes and shoes worn by both the defendants. Blood stains can be seen on the toecap of the 1st defendant shoe.
The 3rd album contains screenshots taken from the news footage of the various news agencies capturing both defendants, the riot and the rioters attacking X.
Mitigation
Everything that can be said on behalf of both defendants has been presented in mitigation. I thank counsel for written submissions. The best mitigation is their pleas of guilty at the earliest opportunity.
The 1st defendant is 30 years old and has 3 children with her long-term boyfriend. She previously lived with her boyfriend, children and his father but moved out about 2 years ago because of a poor relationship with her boyfriend’s family. She now lives alone in Sham Shui Po whilst they live in Tseung Kwan O. She visits them regularly and obviously is involved in their daily life and school life.
The 1st defendant has one previous record; in 2016 she was sentenced to probation for a forgery offence. She had been arrested for wounding and was on police bail at the time of her arrest for these offences. I have been told it was a family matter and as a result, in January this year she was ordered to be bound over to keep the peace by Kwun Tong Magistracy.
I have seen mitigation letters from the 1st defendant, her boyfriend a pastor of a church that provides support to her and her family, 2 kindergarten teachers of her son who requires special care at kindergarten and has been diagnosed with ADHD. Both sons in fact have a similar diagnosis. There is also a letter from a special education teacher who has assisted her son and come to know the 1st defendant. All ask for leniency on her behalf and the defendant explains she was impulsive, reckless and now remorseful.
I was informed that she suffered from mental illness for some years before her arrest therefore, I adjourned sentencing for a psychiatric report and a background report. I won’t repeat the contents of the reports but they give me details of the 1st defendant’s background and history of her previous diagnosis of adjustment disorder and obsessive-compulsive disorder.
She was admitted to hospital after her arrest for this offence and during that admission, she was diagnosed to have schizophrenia, with a background of obsessive-compulsive disorder. She was treated with medication and showed an improvement. She does not require compulsory inpatient psychiatric treatment. She told the psychiatrist that she went to Beverley Garden that night to join a gathering for the deceased university student. She saw X appear and scold the gathering. She claimed to hear a voice telling her to kick him at that time. Subsequently she kicked him in the head several times.
Defence counsel has specific instructions that she knew what she was doing that morning and did not commit these offences because of any disease of the mind. Despite what is said in the background report and psychiatrist report, the 1st defendant does not suggest any mental illness played any part in these offences. The 1st defendant’s instructions are that her mental condition did not play any part in these offences. She knew what she was doing at the time and did it intentionally even though it was in the heat of the moment. What she meant when discussing the offences with the probation officer was that she did not premeditate any of these offences.
Defence counsel have acknowledged there are no sentencing guidelines for either offences. They are very much fact specific. It has been submitted that I should take into account HKSAR v Tang Ho Yin CACC113/2018 and adopt a starting point of not more than 4 years and 6 months for Charge 1. It is submitted that a starting point of 3 years would be appropriate for Charge 2.
The 2nd defendant is now 59 years old and has 2 previous convictions for disorderly conduct and criminal damage but many years ago. He is married and lives with his wife and son near Beverley Gardens. His son is only 17 years old and still a student. Until his arrest, the 2nd defendant was a pest control worker and driver earning $17,000 a month. He was the breadwinner of the family which has caused financial hardship.
I have been told that on the night of the offence he was on his way to the MTR station when he came across protests and unrest against the police force suggesting they were responsible for the death of the university student who passed away that night. Out of curiosity he hung around and watched the protests. He then found himself unable to leave the area due to police blockades so he went to buy some food and beer. He made a mistake of not returning home but drinking for some time which meant by the time he came across X he was under the influence of alcohol.
Under the influence of alcohol as well as the volatile and emotional crowd surrounding X he lost all self-control as seen in the news footage. Initially he was trying to mediate between X and the crowd but became agitated by the other aggressors. He then turned against X and rioted with others. One can hear what the 2nd defendant says to X and what he does on the news footage. He certainly appears coherent.
I was asked to bear in mind that he did not use any weapon against X and although he was carrying a mask he was not wearing one at the time of the offences. He did not try to hide his identity. At times he can be seen wearing a cap.
I have considered the contents of mitigation letters written by the 2nd defendant, his wife and son. There is also a letter from a leader of the church that the defendant attends. His previous employer has written to ask for leniency and for the defendant to have an opportunity to redeem himself.
Defence counsel for the 2nd defendant has said that although the incident was serious and X’s injuries were not minor, the circumstances and facts of the case do not warrant a 6 to 7 year starting point.
The prosecution has submitted a statement from X dated October 2020. It is not in the form of a victim impact assessment report but a recount from the victim himself as to his injuries and suffering; the physical as well as psychological impact of the offences. Defence counsel have submitted that it is a bit subjective and could be inaccurate. It is submitted it is not helpful in terms of sentencing.
The Summary of Facts and the photograph albums cover the physical injuries suffered as a result of the attack; there can be no dispute there. I note the victim states he still suffers intermittent pain which affects his performance at work and interrupts his sleep at times. He cannot yet do vigourous physical activities. He says that on occasions he has nightmares of being beaten. He explains how the attack has had a negative impact on his psychological well-being. In my view, these are all consequences one can imagine would reasonably result from an incident and attack of this nature.
Reasons for sentence
The offence of rioting, contrary to section 19(1) and (2) of the Public Order Ordinance, will attract a maximum term of imprisonment on indictment of 10 years. The offence of wounding with intent will attract a maximum penalty of life imprisonment.
Freedom of peaceful assembly is guaranteed by the Basic Law and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, like the freedom of speech is indispensable to the building of a civilised society and essential to social stability and progress. The freedom of peaceful assembly enables members of the public to voice their criticisms, air grievances and seek redress on views they hold.
However, the freedom of assembly is not absolute. Once a protester becomes involved in violence or the threat of violence, a breach of peace, then that protester crosses the line between constitutionally protected peaceful assembly and demonstration to an unlawful activity which is subject to legal sanctions. There is such a line to protect public order because society is prone to descend into anarchy if public order is not preserved. The facts of this case is a demonstration of just that scenario.
A riot has an immediate and serious impact on the rule of law. The rule of law is a core value of Hong Kong and the cornerstone of its success. The law ensures that public order and peace are preserved; not threatened by the use of violence. If public order is not preserved, this affects the freedom and rights of citizens.
Sentencing for the offence of riot involves the factor of deterrence. Counsels submit the actions of the defendants were a momentary lapse of judgement and happened in the heat of the moment. It is submitted their actions and participation were spontaneous and not premeditated. They were caught up with the crowd when other rioters surrounded the victim when emotions were running high. They didn’t go out to organise a riot nor promote one. They had no intention to cause harm to members of the public or destroy property.
A sentence must not only seek to prevent the offender from reoffending, but also give a proper warning to deter others from violating the law by breaking and disrupting public order in a like manner. Acts of violence or threats of violence will not and cannot be tolerated; such acts will attract a deterrent sentence to ensure that the public is protected.
The Court of Appeal in Leung Tin Kei and others
CACC 164/2018 reiterated that courts will impose a sentence that is punitive and sufficiently deterrent in accordance with principles established in applicable case law. It therefore follows that the personal background and mitigation as well as the submissions of impulsive behaviour and being carried away by the emotions of others carry little weight.
In this case, a deterrent sentence will reflect the fact that the defendants rioted in a public place which led to a direct physical attack on an innocent resident who was defenceless, vulnerable and entirely on his own. It was a shameful attack on peace and order as well as an intention to injure and wound a man whose only complaint was the noise levels from downstairs in his own estate.
Deterrence overrides the sentencing principle of rehabilitation in the prevailing circumstances including the then increasing incidents of unrest and a rising number of large-scale public protests involving violence. This is clear from the Court of Final appeal in SJ v Wong Chi Fung 2018 21 HKCFAR 35.
The defendants were one of a number engaged in a crime against peace, in this case it was definitely the sheer number with the defendants that gave them support and encouragement from being together with so many others to riot. It is a common feature of mass disorder that if individuals within the crowd act violently, this will in turn inflame and encourage others to behave similarly. This was what I witnessed in the news footage, it was disproportionate and without provocation. The victim threatened to call the police. That crowd knew the police were nearby so I am sure that threat didn’t scare them. I believe some were looking to cause trouble and their actions with words led others to behave similarly. The harm and destruction done comes from the combined effect of what is done en masse.
For similar offences with different backgrounds and facts, the sentences and starting points in those cases do not provide a helpful guidance. Each charge must be considered on its own facts. What is a common factor is that the sentence should be punitive and sufficiently deterrent therefore, an immediate custodial sentence is inevitable.
The Court of Appeal in Leung Tin Kei set out various factors to be taken into account when passing sentence on the offence of riot. In that case the riot took place in February 2016 in Argyle Street, Kowloon. Courts must consider these factors and principles to arrive at a sentence according to the facts of each individual case. I have taken them into account. In that authority, the Court of Appeal upheld the sentences imposed.
In deciding the starting point of the offence, the extent of the overall violence involved must be considered, not the defendant’s individual acts in isolation. It has been suggested in mitigation that the defendants actions were spontaneous and not premeditated. It was submitted neither used weapons although others did according to the news footage and the extent of X’s injuries. The 2nd defendant wasn’t wearing a mask to hide his identity. However, there were clearly many people there wearing caps and masks carrying umbrellas.
I quote from the authority R v Caird and others 1970 Cr App R 499 where LJ Sachs said at pages 507-508,
“those who choose to take part in such unlawful occasions must do so at their peril. … Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who, by weight of numbers, pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers. … In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.”
Therefore, in determining an appropriate sentence, I considered the extent of the overall violence involved, not the defendant’s individual acts in isolation. Both the defendants pleas and their behaviour seen on the camera footage shows they endorsed the offences and actively took part in them. Their culpability is significant. I do not differentiate between their roles and culpability.
I have also considered the scale of the disturbance that night caused to the public, residents nearby, the harm to society, including the relation between the police and the public. There is no doubt that the riot was a serious incident. What I also find relevant is the riot was in a public place, the number of actual rioters was hard to estimate but enough to make it significant and frightening.
Within that riot, I take into account there was intentional violence used against X. This makes the riot even more serious. He was punched and kicked and obviously hard objects were used to hit him. There were those who put up umbrellas to hide the identity of the rioters. At the time of the riot the police were not present but there were some people audibly trying to warn off the rioters but to no avail. It was only cut short by the police arriving. Such gratuitous violence cannot be tolerated by a civilised and diversified society.
Accordingly, as mentioned above both the defendants mitigation and personal circumstances are not mitigating factors of any significant weight. A plea of guilty does demonstrate remorse and I’m sure they both regret their actions and participation after the event. I am conscious of the undoubted suffering of their family members, especially the young children as a result of their participation and actions. However, I do have to give proper weight to public interest and a deterrent sentence.
Similarly wounding with intent is a serious offence which also warrants a deterrent sentence. Sentencing is very much case specific and there is no tariff as such. In HKSAR v Chan Chun Tat 2013 6 HKC 225, the Court of Appeal considered what factors were most relevant to sentencing such a serious offence.
Those include whether there was premeditation, the motivation behind it, the mental and emotional state of the attacker, whether the attacker was acting under the influence of alcohol or drugs, whether the assault was committed by the attacker alone or as part of a group, type of weapons used, level of force used and injury suffered. Other aggravating factors would include whether the attack was committed in company, unprovoked, in a public place and did the attack go on after the victim had fallen down to the ground. For the purposes of sentencing, I’ve taken into account whether these factors exist in these facts.
In this case of riot and wounding, the unlawful assembly of so many people became a riot and an intentional attack on a defenceless man armed with only a mobile phone. This was not obviously premeditated but nor can it have been said to have been provoked. The emotional state of the rioters led to a total loss of self-control, reason and their humanity.
I have taken into account the facts, mitigation, the background of both defendants and the content of the reports I sought. I am of the view that the culpability and seriousness of Charge 1 is higher than that for Charge 2, it was a riot with intentional violence against a targeted person. I find the appropriate starting point for taking part in this riot to be 5 years’ and 6 months’ imprisonment after trial. I will say that if there had not been the intentional attack directed at X, I would have taken a five-year starting point.
For charge 2, I take into account the circumstances of the facts leading to charge 2 as well as the injuries suffered. I find the appropriate starting point to be 4 years and 6 months imprisonment.
Both defendants have pleaded guilty at the earliest opportunity and are both entitled to the usual full discount after plea. Therefore, I reduce the starting points accordingly and sentence the defendants as follows;
The 1st defendant: Charge 1 3 years and 8 months.
Charge 2 3 years.
The 2nd defendant : Charge 1 3 years and 8 months.
Charge 2 3 years.
I have taken into account the facts and the totality principle. The 2 charges are intertwined and I order that all charges be served concurrently. Therefore, the 1st and 2nd defendant will serve a total of 3 years and 8 months’ imprisonment.
I order psychiatric treatment be arranged for the 1st defendant whilst she is serving this sentence as deemed necessary by a psychiatrist.
( A J Woodcock )
District Judge
DCCC 125/2020
胡雅文
區院
認罪
罪成
無業
29
傷人或對他人身體加以嚴重傷害
判囚
44
11/09/2019
將軍澳
DCCC 125/2020
[2020] HKDC 1131
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 125 OF 2020
—————————–
HKSAR
v
WONG YAM CHOI (D1)
CHAN MING KWAI (D2)
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 27 November 2020
Present: Mr Chen Timothy K H, Public Prosecutor, for HKSAR/ Director of Public Prosecutions
Mr Fung Chun Wah Keith, instructed by Keith Lau & Chan, assigned by the Director of Legal Aid, for the 1st defendant
Mr Chu Po Tien David, instructed by Cheung & Co, assigned by the Director of Legal Aid, for the 2nd defendant
Offence: [1] Riot (暴動)
[2] Wounding with intent (有意圖而傷人)
—————————————–
REASONS FOR SENTENCE
—————————————–
Both defendants pleaded guilty to Charge 1, a charge of Riot, contrary to section 19(1) and (2) of the Public Order Ordinance and Charge 2, Wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance.
The particulars of Charge 1 are that both defendants on or about 9 November 2019, outside Block 1, Beverley Garden, No 1 Tong Ming Street, Tseung Kwan O, New Territories together with other persons unknown, took part in a riot.
The particulars of Charge 2 are that both defendants on or about the same day at the same location, together with other persons unknown, unlawfully and maliciously wounded X with intent to do him grievous bodily harm.
Facts of the case
A few days prior to the date of these offences a university student fell from a height in a car park nearby. He unfortunately passed away on 8 November 2019 from his injuries. His fall led to incidents of unlawful assembly and protests which escalated on the night of his death.
Both defendants admit that just after midnight on 9 November 2019 protesters began to gather outside Block 1 of Beverley Garden and were shouting and chanting slogans loudly. The number of protesters grew which meant the noise they generated increased exponentially.
X is a resident of Beverley Garden and was woken up at about 2:30am by the noise coming from downstairs. He was unable to go back to sleep and about 15 minutes later he went downstairs to find a group of more than 20 protesters shouting incessantly. X did make a noise complaint to the police and told the group that he had to work the next day therefore could they quieten down. He was then surrounded by a large group of protesters, some people wearing press vests and others who appeared to be there to watch and film the incident.
The crowd surrounding X grew angry and aggressive. Men who appeared to be security guards did try and lead X away but it appears from the news footage that he was prevented from leaving. Both defendants admitted they were amongst the group of protesters, in fact, the 2nd defendant is very visible and it appears was present from the start and one of the instigators of the incident. He is seen and heard scolding X.
The 2nd defendant grabbed X’s arm and prevented him from leaving just before he was pushed to the ground. The 2nd defendant hit him with his bare hands. X was violently attacked by the defendants and others; he was punched, kicked and repeatedly hit with hard objects. He was trapped up against a wall. One can hear the objects hitting him in the news footage, the blows can actually be heard. The defendants admit this incident turned into a riot.
The attack on X was prolonged and only broke up when police officers arrived at the scene minutes later. The rioters dispersed. Within 10 minutes the police swept the area and arrested both defendants.
The 1st defendant was carrying a bag containing a black mask, a white mask and 2 pairs of gloves. The 2nd defendant had with him a black mask and gloves.
X sustained multiple injuries which included lacerations over his scalp that required 13 stitches as did other wounds. All over his body he sustained cuts, bruises and swollen limbs. He was hospitalised for 3 days.
The 1st defendant can be seen in news footage kicking X on the ground with the heel of her shoe as hard as she can on three separate occasions. Blood stains found on one of her shoes contained X’s DNA. A broken metal umbrella shaft was seized from the scene and covered in X’s blood.
Both defendants admit that at the material time they both together with other persons unknown took part in a riot and both together with other persons unknown unlawfully and maliciously wounded X with intent to cause him grievous bodily harm. The news footage from several sources clearly shows the commission of the offences; a riot that was senseless and violent leaving a man seriously injured. The riot and attack on X went on for nearly 10 minutes.
News camera footage
I have 3 discs marked as MFI-1 containing news footage from RTHK News, Now TV and Stand News. From the Stand News footage recorded at 37:07 minutes the victim X is heard telling the crowd surrounding him to please be quiet because he just wants to sleep. He has made a noise complaint to the police. He is then verbally abused and scolded. The 2nd defendant can be seen next to X and in the thick of it. The crowd including the 2nd defendant questioned whether he was a real resident and threatened him. For example, there were shouts to watch where he went and take note where he lived. He was asked for his residence card to prove he lived there. Many of them were demanding answers from him or felt entitled to demand he answer. Clearly he felt threatened and started to film the crowd surrounding him with his own phone. This phone was knocked out of his hand when he was attacked and also stolen. It was a highly aggressive scene.
2 men who may have been security guards from the estate tried to escort X away from the baying crowd. He was essentially prevented from leaving. At 47:10 minutes the 2nd defendant was very aggressively shouting at X and held his wrist. Seconds later he pushed X with other people and X fell to the ground. Many people attacked him on the ground and he was backed up against a wall. At 49:02 minutes there is a shout of “can the press back up” because they, rioters and voyeurs were obstructing any possible way for X to escape. Despite this, no one backed away or moved away at all.
From all of the news footage, there does not appear to have been any attempt by anyone to help X or give him room to escape. I use the word voyeur because there were clearly many who stood and filmed; the only sad explanation can be they enjoyed seeing the pain or distress of the victim.
There are also shouts of “harder, harder” and shouts of “stop hitting”. There are shouts of “you will beat him to death”. At 53:00 minutes one can see he was beaten with something hard and one can hear the blows on his body. There are sickening cheers corresponding with these blows.
At 53:26 minutes the 1st defendant is seen pushing her way through the rioting crowd to kick X whilst he is on the ground. She kicks him until she is pulled away by somebody. At 53:36 minutes she comes again for the 2nd time to kick him with what appears to be the heel of her shoe. She even holds onto the tree next to X for leverage to kick him harder. Once again, she is pushed away but comes back for a 3rd time at 53:49 minutes. Once more she uses the tree as leverage when kicking him on the ground.
The 1st defendant is again seen very clearly in the Now TV footage at 3:04:33 kicking X for the 1st time. Again at 3:04:41 kicking him for the 2nd time and at 3:04:45 coming back for the last time, holding onto the tree for leverage to keep kicking. In the Now TV footage at 3:04:24 one can see X’s head being kicked and knocked against the wall behind him. There is blood on that wall.
In all the camera footage provided by the prosecution from news agencies it is clear that prior to this incident in Beverley Gardens there was much unrest, violence and protesting in the surrounding area. When the police arrive at Beverley Gardens it takes them a few minutes to get the crowd and the press to move back to treat X. In several clips he can be seen covered in blood lying on the ground against the wall.
The prosecution provided me with 3 albums, marked as
MFI – 2 (1-3). In the 1st album there are photographs of the injuries suffered by X taken in the hospital. He has had to have all his hair shaved off to treat and stitch his head wounds. He has suffered injuries all over his head, face, neck, lower limbs and upper limbs; many which required stitches. His lower arms and hands are so swollen from the beatings.
The 2nd album contains photographs of the clothes and shoes worn by both the defendants. Blood stains can be seen on the toecap of the 1st defendant shoe.
The 3rd album contains screenshots taken from the news footage of the various news agencies capturing both defendants, the riot and the rioters attacking X.
Mitigation
Everything that can be said on behalf of both defendants has been presented in mitigation. I thank counsel for written submissions. The best mitigation is their pleas of guilty at the earliest opportunity.
The 1st defendant is 30 years old and has 3 children with her long-term boyfriend. She previously lived with her boyfriend, children and his father but moved out about 2 years ago because of a poor relationship with her boyfriend’s family. She now lives alone in Sham Shui Po whilst they live in Tseung Kwan O. She visits them regularly and obviously is involved in their daily life and school life.
The 1st defendant has one previous record; in 2016 she was sentenced to probation for a forgery offence. She had been arrested for wounding and was on police bail at the time of her arrest for these offences. I have been told it was a family matter and as a result, in January this year she was ordered to be bound over to keep the peace by Kwun Tong Magistracy.
I have seen mitigation letters from the 1st defendant, her boyfriend a pastor of a church that provides support to her and her family, 2 kindergarten teachers of her son who requires special care at kindergarten and has been diagnosed with ADHD. Both sons in fact have a similar diagnosis. There is also a letter from a special education teacher who has assisted her son and come to know the 1st defendant. All ask for leniency on her behalf and the defendant explains she was impulsive, reckless and now remorseful.
I was informed that she suffered from mental illness for some years before her arrest therefore, I adjourned sentencing for a psychiatric report and a background report. I won’t repeat the contents of the reports but they give me details of the 1st defendant’s background and history of her previous diagnosis of adjustment disorder and obsessive-compulsive disorder.
She was admitted to hospital after her arrest for this offence and during that admission, she was diagnosed to have schizophrenia, with a background of obsessive-compulsive disorder. She was treated with medication and showed an improvement. She does not require compulsory inpatient psychiatric treatment. She told the psychiatrist that she went to Beverley Garden that night to join a gathering for the deceased university student. She saw X appear and scold the gathering. She claimed to hear a voice telling her to kick him at that time. Subsequently she kicked him in the head several times.
Defence counsel has specific instructions that she knew what she was doing that morning and did not commit these offences because of any disease of the mind. Despite what is said in the background report and psychiatrist report, the 1st defendant does not suggest any mental illness played any part in these offences. The 1st defendant’s instructions are that her mental condition did not play any part in these offences. She knew what she was doing at the time and did it intentionally even though it was in the heat of the moment. What she meant when discussing the offences with the probation officer was that she did not premeditate any of these offences.
Defence counsel have acknowledged there are no sentencing guidelines for either offences. They are very much fact specific. It has been submitted that I should take into account HKSAR v Tang Ho Yin CACC113/2018 and adopt a starting point of not more than 4 years and 6 months for Charge 1. It is submitted that a starting point of 3 years would be appropriate for Charge 2.
The 2nd defendant is now 59 years old and has 2 previous convictions for disorderly conduct and criminal damage but many years ago. He is married and lives with his wife and son near Beverley Gardens. His son is only 17 years old and still a student. Until his arrest, the 2nd defendant was a pest control worker and driver earning $17,000 a month. He was the breadwinner of the family which has caused financial hardship.
I have been told that on the night of the offence he was on his way to the MTR station when he came across protests and unrest against the police force suggesting they were responsible for the death of the university student who passed away that night. Out of curiosity he hung around and watched the protests. He then found himself unable to leave the area due to police blockades so he went to buy some food and beer. He made a mistake of not returning home but drinking for some time which meant by the time he came across X he was under the influence of alcohol.
Under the influence of alcohol as well as the volatile and emotional crowd surrounding X he lost all self-control as seen in the news footage. Initially he was trying to mediate between X and the crowd but became agitated by the other aggressors. He then turned against X and rioted with others. One can hear what the 2nd defendant says to X and what he does on the news footage. He certainly appears coherent.
I was asked to bear in mind that he did not use any weapon against X and although he was carrying a mask he was not wearing one at the time of the offences. He did not try to hide his identity. At times he can be seen wearing a cap.
I have considered the contents of mitigation letters written by the 2nd defendant, his wife and son. There is also a letter from a leader of the church that the defendant attends. His previous employer has written to ask for leniency and for the defendant to have an opportunity to redeem himself.
Defence counsel for the 2nd defendant has said that although the incident was serious and X’s injuries were not minor, the circumstances and facts of the case do not warrant a 6 to 7 year starting point.
The prosecution has submitted a statement from X dated October 2020. It is not in the form of a victim impact assessment report but a recount from the victim himself as to his injuries and suffering; the physical as well as psychological impact of the offences. Defence counsel have submitted that it is a bit subjective and could be inaccurate. It is submitted it is not helpful in terms of sentencing.
The Summary of Facts and the photograph albums cover the physical injuries suffered as a result of the attack; there can be no dispute there. I note the victim states he still suffers intermittent pain which affects his performance at work and interrupts his sleep at times. He cannot yet do vigourous physical activities. He says that on occasions he has nightmares of being beaten. He explains how the attack has had a negative impact on his psychological well-being. In my view, these are all consequences one can imagine would reasonably result from an incident and attack of this nature.
Reasons for sentence
The offence of rioting, contrary to section 19(1) and (2) of the Public Order Ordinance, will attract a maximum term of imprisonment on indictment of 10 years. The offence of wounding with intent will attract a maximum penalty of life imprisonment.
Freedom of peaceful assembly is guaranteed by the Basic Law and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, like the freedom of speech is indispensable to the building of a civilised society and essential to social stability and progress. The freedom of peaceful assembly enables members of the public to voice their criticisms, air grievances and seek redress on views they hold.
However, the freedom of assembly is not absolute. Once a protester becomes involved in violence or the threat of violence, a breach of peace, then that protester crosses the line between constitutionally protected peaceful assembly and demonstration to an unlawful activity which is subject to legal sanctions. There is such a line to protect public order because society is prone to descend into anarchy if public order is not preserved. The facts of this case is a demonstration of just that scenario.
A riot has an immediate and serious impact on the rule of law. The rule of law is a core value of Hong Kong and the cornerstone of its success. The law ensures that public order and peace are preserved; not threatened by the use of violence. If public order is not preserved, this affects the freedom and rights of citizens.
Sentencing for the offence of riot involves the factor of deterrence. Counsels submit the actions of the defendants were a momentary lapse of judgement and happened in the heat of the moment. It is submitted their actions and participation were spontaneous and not premeditated. They were caught up with the crowd when other rioters surrounded the victim when emotions were running high. They didn’t go out to organise a riot nor promote one. They had no intention to cause harm to members of the public or destroy property.
A sentence must not only seek to prevent the offender from reoffending, but also give a proper warning to deter others from violating the law by breaking and disrupting public order in a like manner. Acts of violence or threats of violence will not and cannot be tolerated; such acts will attract a deterrent sentence to ensure that the public is protected.
The Court of Appeal in Leung Tin Kei and others
CACC 164/2018 reiterated that courts will impose a sentence that is punitive and sufficiently deterrent in accordance with principles established in applicable case law. It therefore follows that the personal background and mitigation as well as the submissions of impulsive behaviour and being carried away by the emotions of others carry little weight.
In this case, a deterrent sentence will reflect the fact that the defendants rioted in a public place which led to a direct physical attack on an innocent resident who was defenceless, vulnerable and entirely on his own. It was a shameful attack on peace and order as well as an intention to injure and wound a man whose only complaint was the noise levels from downstairs in his own estate.
Deterrence overrides the sentencing principle of rehabilitation in the prevailing circumstances including the then increasing incidents of unrest and a rising number of large-scale public protests involving violence. This is clear from the Court of Final appeal in SJ v Wong Chi Fung 2018 21 HKCFAR 35.
The defendants were one of a number engaged in a crime against peace, in this case it was definitely the sheer number with the defendants that gave them support and encouragement from being together with so many others to riot. It is a common feature of mass disorder that if individuals within the crowd act violently, this will in turn inflame and encourage others to behave similarly. This was what I witnessed in the news footage, it was disproportionate and without provocation. The victim threatened to call the police. That crowd knew the police were nearby so I am sure that threat didn’t scare them. I believe some were looking to cause trouble and their actions with words led others to behave similarly. The harm and destruction done comes from the combined effect of what is done en masse.
For similar offences with different backgrounds and facts, the sentences and starting points in those cases do not provide a helpful guidance. Each charge must be considered on its own facts. What is a common factor is that the sentence should be punitive and sufficiently deterrent therefore, an immediate custodial sentence is inevitable.
The Court of Appeal in Leung Tin Kei set out various factors to be taken into account when passing sentence on the offence of riot. In that case the riot took place in February 2016 in Argyle Street, Kowloon. Courts must consider these factors and principles to arrive at a sentence according to the facts of each individual case. I have taken them into account. In that authority, the Court of Appeal upheld the sentences imposed.
In deciding the starting point of the offence, the extent of the overall violence involved must be considered, not the defendant’s individual acts in isolation. It has been suggested in mitigation that the defendants actions were spontaneous and not premeditated. It was submitted neither used weapons although others did according to the news footage and the extent of X’s injuries. The 2nd defendant wasn’t wearing a mask to hide his identity. However, there were clearly many people there wearing caps and masks carrying umbrellas.
I quote from the authority R v Caird and others 1970 Cr App R 499 where LJ Sachs said at pages 507-508,
“those who choose to take part in such unlawful occasions must do so at their peril. … Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who, by weight of numbers, pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers. … In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.”
Therefore, in determining an appropriate sentence, I considered the extent of the overall violence involved, not the defendant’s individual acts in isolation. Both the defendants pleas and their behaviour seen on the camera footage shows they endorsed the offences and actively took part in them. Their culpability is significant. I do not differentiate between their roles and culpability.
I have also considered the scale of the disturbance that night caused to the public, residents nearby, the harm to society, including the relation between the police and the public. There is no doubt that the riot was a serious incident. What I also find relevant is the riot was in a public place, the number of actual rioters was hard to estimate but enough to make it significant and frightening.
Within that riot, I take into account there was intentional violence used against X. This makes the riot even more serious. He was punched and kicked and obviously hard objects were used to hit him. There were those who put up umbrellas to hide the identity of the rioters. At the time of the riot the police were not present but there were some people audibly trying to warn off the rioters but to no avail. It was only cut short by the police arriving. Such gratuitous violence cannot be tolerated by a civilised and diversified society.
Accordingly, as mentioned above both the defendants mitigation and personal circumstances are not mitigating factors of any significant weight. A plea of guilty does demonstrate remorse and I’m sure they both regret their actions and participation after the event. I am conscious of the undoubted suffering of their family members, especially the young children as a result of their participation and actions. However, I do have to give proper weight to public interest and a deterrent sentence.
Similarly wounding with intent is a serious offence which also warrants a deterrent sentence. Sentencing is very much case specific and there is no tariff as such. In HKSAR v Chan Chun Tat 2013 6 HKC 225, the Court of Appeal considered what factors were most relevant to sentencing such a serious offence.
Those include whether there was premeditation, the motivation behind it, the mental and emotional state of the attacker, whether the attacker was acting under the influence of alcohol or drugs, whether the assault was committed by the attacker alone or as part of a group, type of weapons used, level of force used and injury suffered. Other aggravating factors would include whether the attack was committed in company, unprovoked, in a public place and did the attack go on after the victim had fallen down to the ground. For the purposes of sentencing, I’ve taken into account whether these factors exist in these facts.
In this case of riot and wounding, the unlawful assembly of so many people became a riot and an intentional attack on a defenceless man armed with only a mobile phone. This was not obviously premeditated but nor can it have been said to have been provoked. The emotional state of the rioters led to a total loss of self-control, reason and their humanity.
I have taken into account the facts, mitigation, the background of both defendants and the content of the reports I sought. I am of the view that the culpability and seriousness of Charge 1 is higher than that for Charge 2, it was a riot with intentional violence against a targeted person. I find the appropriate starting point for taking part in this riot to be 5 years’ and 6 months’ imprisonment after trial. I will say that if there had not been the intentional attack directed at X, I would have taken a five-year starting point.
For charge 2, I take into account the circumstances of the facts leading to charge 2 as well as the injuries suffered. I find the appropriate starting point to be 4 years and 6 months imprisonment.
Both defendants have pleaded guilty at the earliest opportunity and are both entitled to the usual full discount after plea. Therefore, I reduce the starting points accordingly and sentence the defendants as follows;
The 1st defendant: Charge 1 3 years and 8 months.
Charge 2 3 years.
The 2nd defendant : Charge 1 3 years and 8 months.
Charge 2 3 years.
I have taken into account the facts and the totality principle. The 2 charges are intertwined and I order that all charges be served concurrently. Therefore, the 1st and 2nd defendant will serve a total of 3 years and 8 months’ imprisonment.
I order psychiatric treatment be arranged for the 1st defendant whilst she is serving this sentence as deemed necessary by a psychiatrist.
( A J Woodcock )
District Judge
DCCC 125/2020
胡雅文
區院
認罪
罪成
的士司機
58
暴動
判囚
44
11/09/2019
將軍澳
DCCC 125/2020
[2020] HKDC 1131
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 125 OF 2020
—————————–
HKSAR
v
WONG YAM CHOI (D1)
CHAN MING KWAI (D2)
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 27 November 2020
Present: Mr Chen Timothy K H, Public Prosecutor, for HKSAR/ Director of Public Prosecutions
Mr Fung Chun Wah Keith, instructed by Keith Lau & Chan, assigned by the Director of Legal Aid, for the 1st defendant
Mr Chu Po Tien David, instructed by Cheung & Co, assigned by the Director of Legal Aid, for the 2nd defendant
Offence: [1] Riot (暴動)
[2] Wounding with intent (有意圖而傷人)
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REASONS FOR SENTENCE
—————————————–
Both defendants pleaded guilty to Charge 1, a charge of Riot, contrary to section 19(1) and (2) of the Public Order Ordinance and Charge 2, Wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance.
The particulars of Charge 1 are that both defendants on or about 9 November 2019, outside Block 1, Beverley Garden, No 1 Tong Ming Street, Tseung Kwan O, New Territories together with other persons unknown, took part in a riot.
The particulars of Charge 2 are that both defendants on or about the same day at the same location, together with other persons unknown, unlawfully and maliciously wounded X with intent to do him grievous bodily harm.
Facts of the case
A few days prior to the date of these offences a university student fell from a height in a car park nearby. He unfortunately passed away on 8 November 2019 from his injuries. His fall led to incidents of unlawful assembly and protests which escalated on the night of his death.
Both defendants admit that just after midnight on 9 November 2019 protesters began to gather outside Block 1 of Beverley Garden and were shouting and chanting slogans loudly. The number of protesters grew which meant the noise they generated increased exponentially.
X is a resident of Beverley Garden and was woken up at about 2:30am by the noise coming from downstairs. He was unable to go back to sleep and about 15 minutes later he went downstairs to find a group of more than 20 protesters shouting incessantly. X did make a noise complaint to the police and told the group that he had to work the next day therefore could they quieten down. He was then surrounded by a large group of protesters, some people wearing press vests and others who appeared to be there to watch and film the incident.
The crowd surrounding X grew angry and aggressive. Men who appeared to be security guards did try and lead X away but it appears from the news footage that he was prevented from leaving. Both defendants admitted they were amongst the group of protesters, in fact, the 2nd defendant is very visible and it appears was present from the start and one of the instigators of the incident. He is seen and heard scolding X.
The 2nd defendant grabbed X’s arm and prevented him from leaving just before he was pushed to the ground. The 2nd defendant hit him with his bare hands. X was violently attacked by the defendants and others; he was punched, kicked and repeatedly hit with hard objects. He was trapped up against a wall. One can hear the objects hitting him in the news footage, the blows can actually be heard. The defendants admit this incident turned into a riot.
The attack on X was prolonged and only broke up when police officers arrived at the scene minutes later. The rioters dispersed. Within 10 minutes the police swept the area and arrested both defendants.
The 1st defendant was carrying a bag containing a black mask, a white mask and 2 pairs of gloves. The 2nd defendant had with him a black mask and gloves.
X sustained multiple injuries which included lacerations over his scalp that required 13 stitches as did other wounds. All over his body he sustained cuts, bruises and swollen limbs. He was hospitalised for 3 days.
The 1st defendant can be seen in news footage kicking X on the ground with the heel of her shoe as hard as she can on three separate occasions. Blood stains found on one of her shoes contained X’s DNA. A broken metal umbrella shaft was seized from the scene and covered in X’s blood.
Both defendants admit that at the material time they both together with other persons unknown took part in a riot and both together with other persons unknown unlawfully and maliciously wounded X with intent to cause him grievous bodily harm. The news footage from several sources clearly shows the commission of the offences; a riot that was senseless and violent leaving a man seriously injured. The riot and attack on X went on for nearly 10 minutes.
News camera footage
I have 3 discs marked as MFI-1 containing news footage from RTHK News, Now TV and Stand News. From the Stand News footage recorded at 37:07 minutes the victim X is heard telling the crowd surrounding him to please be quiet because he just wants to sleep. He has made a noise complaint to the police. He is then verbally abused and scolded. The 2nd defendant can be seen next to X and in the thick of it. The crowd including the 2nd defendant questioned whether he was a real resident and threatened him. For example, there were shouts to watch where he went and take note where he lived. He was asked for his residence card to prove he lived there. Many of them were demanding answers from him or felt entitled to demand he answer. Clearly he felt threatened and started to film the crowd surrounding him with his own phone. This phone was knocked out of his hand when he was attacked and also stolen. It was a highly aggressive scene.
2 men who may have been security guards from the estate tried to escort X away from the baying crowd. He was essentially prevented from leaving. At 47:10 minutes the 2nd defendant was very aggressively shouting at X and held his wrist. Seconds later he pushed X with other people and X fell to the ground. Many people attacked him on the ground and he was backed up against a wall. At 49:02 minutes there is a shout of “can the press back up” because they, rioters and voyeurs were obstructing any possible way for X to escape. Despite this, no one backed away or moved away at all.
From all of the news footage, there does not appear to have been any attempt by anyone to help X or give him room to escape. I use the word voyeur because there were clearly many who stood and filmed; the only sad explanation can be they enjoyed seeing the pain or distress of the victim.
There are also shouts of “harder, harder” and shouts of “stop hitting”. There are shouts of “you will beat him to death”. At 53:00 minutes one can see he was beaten with something hard and one can hear the blows on his body. There are sickening cheers corresponding with these blows.
At 53:26 minutes the 1st defendant is seen pushing her way through the rioting crowd to kick X whilst he is on the ground. She kicks him until she is pulled away by somebody. At 53:36 minutes she comes again for the 2nd time to kick him with what appears to be the heel of her shoe. She even holds onto the tree next to X for leverage to kick him harder. Once again, she is pushed away but comes back for a 3rd time at 53:49 minutes. Once more she uses the tree as leverage when kicking him on the ground.
The 1st defendant is again seen very clearly in the Now TV footage at 3:04:33 kicking X for the 1st time. Again at 3:04:41 kicking him for the 2nd time and at 3:04:45 coming back for the last time, holding onto the tree for leverage to keep kicking. In the Now TV footage at 3:04:24 one can see X’s head being kicked and knocked against the wall behind him. There is blood on that wall.
In all the camera footage provided by the prosecution from news agencies it is clear that prior to this incident in Beverley Gardens there was much unrest, violence and protesting in the surrounding area. When the police arrive at Beverley Gardens it takes them a few minutes to get the crowd and the press to move back to treat X. In several clips he can be seen covered in blood lying on the ground against the wall.
The prosecution provided me with 3 albums, marked as
MFI – 2 (1-3). In the 1st album there are photographs of the injuries suffered by X taken in the hospital. He has had to have all his hair shaved off to treat and stitch his head wounds. He has suffered injuries all over his head, face, neck, lower limbs and upper limbs; many which required stitches. His lower arms and hands are so swollen from the beatings.
The 2nd album contains photographs of the clothes and shoes worn by both the defendants. Blood stains can be seen on the toecap of the 1st defendant shoe.
The 3rd album contains screenshots taken from the news footage of the various news agencies capturing both defendants, the riot and the rioters attacking X.
Mitigation
Everything that can be said on behalf of both defendants has been presented in mitigation. I thank counsel for written submissions. The best mitigation is their pleas of guilty at the earliest opportunity.
The 1st defendant is 30 years old and has 3 children with her long-term boyfriend. She previously lived with her boyfriend, children and his father but moved out about 2 years ago because of a poor relationship with her boyfriend’s family. She now lives alone in Sham Shui Po whilst they live in Tseung Kwan O. She visits them regularly and obviously is involved in their daily life and school life.
The 1st defendant has one previous record; in 2016 she was sentenced to probation for a forgery offence. She had been arrested for wounding and was on police bail at the time of her arrest for these offences. I have been told it was a family matter and as a result, in January this year she was ordered to be bound over to keep the peace by Kwun Tong Magistracy.
I have seen mitigation letters from the 1st defendant, her boyfriend a pastor of a church that provides support to her and her family, 2 kindergarten teachers of her son who requires special care at kindergarten and has been diagnosed with ADHD. Both sons in fact have a similar diagnosis. There is also a letter from a special education teacher who has assisted her son and come to know the 1st defendant. All ask for leniency on her behalf and the defendant explains she was impulsive, reckless and now remorseful.
I was informed that she suffered from mental illness for some years before her arrest therefore, I adjourned sentencing for a psychiatric report and a background report. I won’t repeat the contents of the reports but they give me details of the 1st defendant’s background and history of her previous diagnosis of adjustment disorder and obsessive-compulsive disorder.
She was admitted to hospital after her arrest for this offence and during that admission, she was diagnosed to have schizophrenia, with a background of obsessive-compulsive disorder. She was treated with medication and showed an improvement. She does not require compulsory inpatient psychiatric treatment. She told the psychiatrist that she went to Beverley Garden that night to join a gathering for the deceased university student. She saw X appear and scold the gathering. She claimed to hear a voice telling her to kick him at that time. Subsequently she kicked him in the head several times.
Defence counsel has specific instructions that she knew what she was doing that morning and did not commit these offences because of any disease of the mind. Despite what is said in the background report and psychiatrist report, the 1st defendant does not suggest any mental illness played any part in these offences. The 1st defendant’s instructions are that her mental condition did not play any part in these offences. She knew what she was doing at the time and did it intentionally even though it was in the heat of the moment. What she meant when discussing the offences with the probation officer was that she did not premeditate any of these offences.
Defence counsel have acknowledged there are no sentencing guidelines for either offences. They are very much fact specific. It has been submitted that I should take into account HKSAR v Tang Ho Yin CACC113/2018 and adopt a starting point of not more than 4 years and 6 months for Charge 1. It is submitted that a starting point of 3 years would be appropriate for Charge 2.
The 2nd defendant is now 59 years old and has 2 previous convictions for disorderly conduct and criminal damage but many years ago. He is married and lives with his wife and son near Beverley Gardens. His son is only 17 years old and still a student. Until his arrest, the 2nd defendant was a pest control worker and driver earning $17,000 a month. He was the breadwinner of the family which has caused financial hardship.
I have been told that on the night of the offence he was on his way to the MTR station when he came across protests and unrest against the police force suggesting they were responsible for the death of the university student who passed away that night. Out of curiosity he hung around and watched the protests. He then found himself unable to leave the area due to police blockades so he went to buy some food and beer. He made a mistake of not returning home but drinking for some time which meant by the time he came across X he was under the influence of alcohol.
Under the influence of alcohol as well as the volatile and emotional crowd surrounding X he lost all self-control as seen in the news footage. Initially he was trying to mediate between X and the crowd but became agitated by the other aggressors. He then turned against X and rioted with others. One can hear what the 2nd defendant says to X and what he does on the news footage. He certainly appears coherent.
I was asked to bear in mind that he did not use any weapon against X and although he was carrying a mask he was not wearing one at the time of the offences. He did not try to hide his identity. At times he can be seen wearing a cap.
I have considered the contents of mitigation letters written by the 2nd defendant, his wife and son. There is also a letter from a leader of the church that the defendant attends. His previous employer has written to ask for leniency and for the defendant to have an opportunity to redeem himself.
Defence counsel for the 2nd defendant has said that although the incident was serious and X’s injuries were not minor, the circumstances and facts of the case do not warrant a 6 to 7 year starting point.
The prosecution has submitted a statement from X dated October 2020. It is not in the form of a victim impact assessment report but a recount from the victim himself as to his injuries and suffering; the physical as well as psychological impact of the offences. Defence counsel have submitted that it is a bit subjective and could be inaccurate. It is submitted it is not helpful in terms of sentencing.
The Summary of Facts and the photograph albums cover the physical injuries suffered as a result of the attack; there can be no dispute there. I note the victim states he still suffers intermittent pain which affects his performance at work and interrupts his sleep at times. He cannot yet do vigourous physical activities. He says that on occasions he has nightmares of being beaten. He explains how the attack has had a negative impact on his psychological well-being. In my view, these are all consequences one can imagine would reasonably result from an incident and attack of this nature.
Reasons for sentence
The offence of rioting, contrary to section 19(1) and (2) of the Public Order Ordinance, will attract a maximum term of imprisonment on indictment of 10 years. The offence of wounding with intent will attract a maximum penalty of life imprisonment.
Freedom of peaceful assembly is guaranteed by the Basic Law and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, like the freedom of speech is indispensable to the building of a civilised society and essential to social stability and progress. The freedom of peaceful assembly enables members of the public to voice their criticisms, air grievances and seek redress on views they hold.
However, the freedom of assembly is not absolute. Once a protester becomes involved in violence or the threat of violence, a breach of peace, then that protester crosses the line between constitutionally protected peaceful assembly and demonstration to an unlawful activity which is subject to legal sanctions. There is such a line to protect public order because society is prone to descend into anarchy if public order is not preserved. The facts of this case is a demonstration of just that scenario.
A riot has an immediate and serious impact on the rule of law. The rule of law is a core value of Hong Kong and the cornerstone of its success. The law ensures that public order and peace are preserved; not threatened by the use of violence. If public order is not preserved, this affects the freedom and rights of citizens.
Sentencing for the offence of riot involves the factor of deterrence. Counsels submit the actions of the defendants were a momentary lapse of judgement and happened in the heat of the moment. It is submitted their actions and participation were spontaneous and not premeditated. They were caught up with the crowd when other rioters surrounded the victim when emotions were running high. They didn’t go out to organise a riot nor promote one. They had no intention to cause harm to members of the public or destroy property.
A sentence must not only seek to prevent the offender from reoffending, but also give a proper warning to deter others from violating the law by breaking and disrupting public order in a like manner. Acts of violence or threats of violence will not and cannot be tolerated; such acts will attract a deterrent sentence to ensure that the public is protected.
The Court of Appeal in Leung Tin Kei and others
CACC 164/2018 reiterated that courts will impose a sentence that is punitive and sufficiently deterrent in accordance with principles established in applicable case law. It therefore follows that the personal background and mitigation as well as the submissions of impulsive behaviour and being carried away by the emotions of others carry little weight.
In this case, a deterrent sentence will reflect the fact that the defendants rioted in a public place which led to a direct physical attack on an innocent resident who was defenceless, vulnerable and entirely on his own. It was a shameful attack on peace and order as well as an intention to injure and wound a man whose only complaint was the noise levels from downstairs in his own estate.
Deterrence overrides the sentencing principle of rehabilitation in the prevailing circumstances including the then increasing incidents of unrest and a rising number of large-scale public protests involving violence. This is clear from the Court of Final appeal in SJ v Wong Chi Fung 2018 21 HKCFAR 35.
The defendants were one of a number engaged in a crime against peace, in this case it was definitely the sheer number with the defendants that gave them support and encouragement from being together with so many others to riot. It is a common feature of mass disorder that if individuals within the crowd act violently, this will in turn inflame and encourage others to behave similarly. This was what I witnessed in the news footage, it was disproportionate and without provocation. The victim threatened to call the police. That crowd knew the police were nearby so I am sure that threat didn’t scare them. I believe some were looking to cause trouble and their actions with words led others to behave similarly. The harm and destruction done comes from the combined effect of what is done en masse.
For similar offences with different backgrounds and facts, the sentences and starting points in those cases do not provide a helpful guidance. Each charge must be considered on its own facts. What is a common factor is that the sentence should be punitive and sufficiently deterrent therefore, an immediate custodial sentence is inevitable.
The Court of Appeal in Leung Tin Kei set out various factors to be taken into account when passing sentence on the offence of riot. In that case the riot took place in February 2016 in Argyle Street, Kowloon. Courts must consider these factors and principles to arrive at a sentence according to the facts of each individual case. I have taken them into account. In that authority, the Court of Appeal upheld the sentences imposed.
In deciding the starting point of the offence, the extent of the overall violence involved must be considered, not the defendant’s individual acts in isolation. It has been suggested in mitigation that the defendants actions were spontaneous and not premeditated. It was submitted neither used weapons although others did according to the news footage and the extent of X’s injuries. The 2nd defendant wasn’t wearing a mask to hide his identity. However, there were clearly many people there wearing caps and masks carrying umbrellas.
I quote from the authority R v Caird and others 1970 Cr App R 499 where LJ Sachs said at pages 507-508,
“those who choose to take part in such unlawful occasions must do so at their peril. … Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who, by weight of numbers, pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers. … In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.”
Therefore, in determining an appropriate sentence, I considered the extent of the overall violence involved, not the defendant’s individual acts in isolation. Both the defendants pleas and their behaviour seen on the camera footage shows they endorsed the offences and actively took part in them. Their culpability is significant. I do not differentiate between their roles and culpability.
I have also considered the scale of the disturbance that night caused to the public, residents nearby, the harm to society, including the relation between the police and the public. There is no doubt that the riot was a serious incident. What I also find relevant is the riot was in a public place, the number of actual rioters was hard to estimate but enough to make it significant and frightening.
Within that riot, I take into account there was intentional violence used against X. This makes the riot even more serious. He was punched and kicked and obviously hard objects were used to hit him. There were those who put up umbrellas to hide the identity of the rioters. At the time of the riot the police were not present but there were some people audibly trying to warn off the rioters but to no avail. It was only cut short by the police arriving. Such gratuitous violence cannot be tolerated by a civilised and diversified society.
Accordingly, as mentioned above both the defendants mitigation and personal circumstances are not mitigating factors of any significant weight. A plea of guilty does demonstrate remorse and I’m sure they both regret their actions and participation after the event. I am conscious of the undoubted suffering of their family members, especially the young children as a result of their participation and actions. However, I do have to give proper weight to public interest and a deterrent sentence.
Similarly wounding with intent is a serious offence which also warrants a deterrent sentence. Sentencing is very much case specific and there is no tariff as such. In HKSAR v Chan Chun Tat 2013 6 HKC 225, the Court of Appeal considered what factors were most relevant to sentencing such a serious offence.
Those include whether there was premeditation, the motivation behind it, the mental and emotional state of the attacker, whether the attacker was acting under the influence of alcohol or drugs, whether the assault was committed by the attacker alone or as part of a group, type of weapons used, level of force used and injury suffered. Other aggravating factors would include whether the attack was committed in company, unprovoked, in a public place and did the attack go on after the victim had fallen down to the ground. For the purposes of sentencing, I’ve taken into account whether these factors exist in these facts.
In this case of riot and wounding, the unlawful assembly of so many people became a riot and an intentional attack on a defenceless man armed with only a mobile phone. This was not obviously premeditated but nor can it have been said to have been provoked. The emotional state of the rioters led to a total loss of self-control, reason and their humanity.
I have taken into account the facts, mitigation, the background of both defendants and the content of the reports I sought. I am of the view that the culpability and seriousness of Charge 1 is higher than that for Charge 2, it was a riot with intentional violence against a targeted person. I find the appropriate starting point for taking part in this riot to be 5 years’ and 6 months’ imprisonment after trial. I will say that if there had not been the intentional attack directed at X, I would have taken a five-year starting point.
For charge 2, I take into account the circumstances of the facts leading to charge 2 as well as the injuries suffered. I find the appropriate starting point to be 4 years and 6 months imprisonment.
Both defendants have pleaded guilty at the earliest opportunity and are both entitled to the usual full discount after plea. Therefore, I reduce the starting points accordingly and sentence the defendants as follows;
The 1st defendant: Charge 1 3 years and 8 months.
Charge 2 3 years.
The 2nd defendant : Charge 1 3 years and 8 months.
Charge 2 3 years.
I have taken into account the facts and the totality principle. The 2 charges are intertwined and I order that all charges be served concurrently. Therefore, the 1st and 2nd defendant will serve a total of 3 years and 8 months’ imprisonment.
I order psychiatric treatment be arranged for the 1st defendant whilst she is serving this sentence as deemed necessary by a psychiatrist.
( A J Woodcock )
District Judge
DCCC 125/2020
胡雅文
區院
認罪
罪成
的士司機
58
傷人或對他人身體加以嚴重傷害
判囚
44
11/09/2019
將軍澳
DCCC 125/2020
[2020] HKDC 1131
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 125 OF 2020
—————————–
HKSAR
v
WONG YAM CHOI (D1)
CHAN MING KWAI (D2)
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 27 November 2020
Present: Mr Chen Timothy K H, Public Prosecutor, for HKSAR/ Director of Public Prosecutions
Mr Fung Chun Wah Keith, instructed by Keith Lau & Chan, assigned by the Director of Legal Aid, for the 1st defendant
Mr Chu Po Tien David, instructed by Cheung & Co, assigned by the Director of Legal Aid, for the 2nd defendant
Offence: [1] Riot (暴動)
[2] Wounding with intent (有意圖而傷人)
—————————————–
REASONS FOR SENTENCE
—————————————–
Both defendants pleaded guilty to Charge 1, a charge of Riot, contrary to section 19(1) and (2) of the Public Order Ordinance and Charge 2, Wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance.
The particulars of Charge 1 are that both defendants on or about 9 November 2019, outside Block 1, Beverley Garden, No 1 Tong Ming Street, Tseung Kwan O, New Territories together with other persons unknown, took part in a riot.
The particulars of Charge 2 are that both defendants on or about the same day at the same location, together with other persons unknown, unlawfully and maliciously wounded X with intent to do him grievous bodily harm.
Facts of the case
A few days prior to the date of these offences a university student fell from a height in a car park nearby. He unfortunately passed away on 8 November 2019 from his injuries. His fall led to incidents of unlawful assembly and protests which escalated on the night of his death.
Both defendants admit that just after midnight on 9 November 2019 protesters began to gather outside Block 1 of Beverley Garden and were shouting and chanting slogans loudly. The number of protesters grew which meant the noise they generated increased exponentially.
X is a resident of Beverley Garden and was woken up at about 2:30am by the noise coming from downstairs. He was unable to go back to sleep and about 15 minutes later he went downstairs to find a group of more than 20 protesters shouting incessantly. X did make a noise complaint to the police and told the group that he had to work the next day therefore could they quieten down. He was then surrounded by a large group of protesters, some people wearing press vests and others who appeared to be there to watch and film the incident.
The crowd surrounding X grew angry and aggressive. Men who appeared to be security guards did try and lead X away but it appears from the news footage that he was prevented from leaving. Both defendants admitted they were amongst the group of protesters, in fact, the 2nd defendant is very visible and it appears was present from the start and one of the instigators of the incident. He is seen and heard scolding X.
The 2nd defendant grabbed X’s arm and prevented him from leaving just before he was pushed to the ground. The 2nd defendant hit him with his bare hands. X was violently attacked by the defendants and others; he was punched, kicked and repeatedly hit with hard objects. He was trapped up against a wall. One can hear the objects hitting him in the news footage, the blows can actually be heard. The defendants admit this incident turned into a riot.
The attack on X was prolonged and only broke up when police officers arrived at the scene minutes later. The rioters dispersed. Within 10 minutes the police swept the area and arrested both defendants.
The 1st defendant was carrying a bag containing a black mask, a white mask and 2 pairs of gloves. The 2nd defendant had with him a black mask and gloves.
X sustained multiple injuries which included lacerations over his scalp that required 13 stitches as did other wounds. All over his body he sustained cuts, bruises and swollen limbs. He was hospitalised for 3 days.
The 1st defendant can be seen in news footage kicking X on the ground with the heel of her shoe as hard as she can on three separate occasions. Blood stains found on one of her shoes contained X’s DNA. A broken metal umbrella shaft was seized from the scene and covered in X’s blood.
Both defendants admit that at the material time they both together with other persons unknown took part in a riot and both together with other persons unknown unlawfully and maliciously wounded X with intent to cause him grievous bodily harm. The news footage from several sources clearly shows the commission of the offences; a riot that was senseless and violent leaving a man seriously injured. The riot and attack on X went on for nearly 10 minutes.
News camera footage
I have 3 discs marked as MFI-1 containing news footage from RTHK News, Now TV and Stand News. From the Stand News footage recorded at 37:07 minutes the victim X is heard telling the crowd surrounding him to please be quiet because he just wants to sleep. He has made a noise complaint to the police. He is then verbally abused and scolded. The 2nd defendant can be seen next to X and in the thick of it. The crowd including the 2nd defendant questioned whether he was a real resident and threatened him. For example, there were shouts to watch where he went and take note where he lived. He was asked for his residence card to prove he lived there. Many of them were demanding answers from him or felt entitled to demand he answer. Clearly he felt threatened and started to film the crowd surrounding him with his own phone. This phone was knocked out of his hand when he was attacked and also stolen. It was a highly aggressive scene.
2 men who may have been security guards from the estate tried to escort X away from the baying crowd. He was essentially prevented from leaving. At 47:10 minutes the 2nd defendant was very aggressively shouting at X and held his wrist. Seconds later he pushed X with other people and X fell to the ground. Many people attacked him on the ground and he was backed up against a wall. At 49:02 minutes there is a shout of “can the press back up” because they, rioters and voyeurs were obstructing any possible way for X to escape. Despite this, no one backed away or moved away at all.
From all of the news footage, there does not appear to have been any attempt by anyone to help X or give him room to escape. I use the word voyeur because there were clearly many who stood and filmed; the only sad explanation can be they enjoyed seeing the pain or distress of the victim.
There are also shouts of “harder, harder” and shouts of “stop hitting”. There are shouts of “you will beat him to death”. At 53:00 minutes one can see he was beaten with something hard and one can hear the blows on his body. There are sickening cheers corresponding with these blows.
At 53:26 minutes the 1st defendant is seen pushing her way through the rioting crowd to kick X whilst he is on the ground. She kicks him until she is pulled away by somebody. At 53:36 minutes she comes again for the 2nd time to kick him with what appears to be the heel of her shoe. She even holds onto the tree next to X for leverage to kick him harder. Once again, she is pushed away but comes back for a 3rd time at 53:49 minutes. Once more she uses the tree as leverage when kicking him on the ground.
The 1st defendant is again seen very clearly in the Now TV footage at 3:04:33 kicking X for the 1st time. Again at 3:04:41 kicking him for the 2nd time and at 3:04:45 coming back for the last time, holding onto the tree for leverage to keep kicking. In the Now TV footage at 3:04:24 one can see X’s head being kicked and knocked against the wall behind him. There is blood on that wall.
In all the camera footage provided by the prosecution from news agencies it is clear that prior to this incident in Beverley Gardens there was much unrest, violence and protesting in the surrounding area. When the police arrive at Beverley Gardens it takes them a few minutes to get the crowd and the press to move back to treat X. In several clips he can be seen covered in blood lying on the ground against the wall.
The prosecution provided me with 3 albums, marked as
MFI – 2 (1-3). In the 1st album there are photographs of the injuries suffered by X taken in the hospital. He has had to have all his hair shaved off to treat and stitch his head wounds. He has suffered injuries all over his head, face, neck, lower limbs and upper limbs; many which required stitches. His lower arms and hands are so swollen from the beatings.
The 2nd album contains photographs of the clothes and shoes worn by both the defendants. Blood stains can be seen on the toecap of the 1st defendant shoe.
The 3rd album contains screenshots taken from the news footage of the various news agencies capturing both defendants, the riot and the rioters attacking X.
Mitigation
Everything that can be said on behalf of both defendants has been presented in mitigation. I thank counsel for written submissions. The best mitigation is their pleas of guilty at the earliest opportunity.
The 1st defendant is 30 years old and has 3 children with her long-term boyfriend. She previously lived with her boyfriend, children and his father but moved out about 2 years ago because of a poor relationship with her boyfriend’s family. She now lives alone in Sham Shui Po whilst they live in Tseung Kwan O. She visits them regularly and obviously is involved in their daily life and school life.
The 1st defendant has one previous record; in 2016 she was sentenced to probation for a forgery offence. She had been arrested for wounding and was on police bail at the time of her arrest for these offences. I have been told it was a family matter and as a result, in January this year she was ordered to be bound over to keep the peace by Kwun Tong Magistracy.
I have seen mitigation letters from the 1st defendant, her boyfriend a pastor of a church that provides support to her and her family, 2 kindergarten teachers of her son who requires special care at kindergarten and has been diagnosed with ADHD. Both sons in fact have a similar diagnosis. There is also a letter from a special education teacher who has assisted her son and come to know the 1st defendant. All ask for leniency on her behalf and the defendant explains she was impulsive, reckless and now remorseful.
I was informed that she suffered from mental illness for some years before her arrest therefore, I adjourned sentencing for a psychiatric report and a background report. I won’t repeat the contents of the reports but they give me details of the 1st defendant’s background and history of her previous diagnosis of adjustment disorder and obsessive-compulsive disorder.
She was admitted to hospital after her arrest for this offence and during that admission, she was diagnosed to have schizophrenia, with a background of obsessive-compulsive disorder. She was treated with medication and showed an improvement. She does not require compulsory inpatient psychiatric treatment. She told the psychiatrist that she went to Beverley Garden that night to join a gathering for the deceased university student. She saw X appear and scold the gathering. She claimed to hear a voice telling her to kick him at that time. Subsequently she kicked him in the head several times.
Defence counsel has specific instructions that she knew what she was doing that morning and did not commit these offences because of any disease of the mind. Despite what is said in the background report and psychiatrist report, the 1st defendant does not suggest any mental illness played any part in these offences. The 1st defendant’s instructions are that her mental condition did not play any part in these offences. She knew what she was doing at the time and did it intentionally even though it was in the heat of the moment. What she meant when discussing the offences with the probation officer was that she did not premeditate any of these offences.
Defence counsel have acknowledged there are no sentencing guidelines for either offences. They are very much fact specific. It has been submitted that I should take into account HKSAR v Tang Ho Yin CACC113/2018 and adopt a starting point of not more than 4 years and 6 months for Charge 1. It is submitted that a starting point of 3 years would be appropriate for Charge 2.
The 2nd defendant is now 59 years old and has 2 previous convictions for disorderly conduct and criminal damage but many years ago. He is married and lives with his wife and son near Beverley Gardens. His son is only 17 years old and still a student. Until his arrest, the 2nd defendant was a pest control worker and driver earning $17,000 a month. He was the breadwinner of the family which has caused financial hardship.
I have been told that on the night of the offence he was on his way to the MTR station when he came across protests and unrest against the police force suggesting they were responsible for the death of the university student who passed away that night. Out of curiosity he hung around and watched the protests. He then found himself unable to leave the area due to police blockades so he went to buy some food and beer. He made a mistake of not returning home but drinking for some time which meant by the time he came across X he was under the influence of alcohol.
Under the influence of alcohol as well as the volatile and emotional crowd surrounding X he lost all self-control as seen in the news footage. Initially he was trying to mediate between X and the crowd but became agitated by the other aggressors. He then turned against X and rioted with others. One can hear what the 2nd defendant says to X and what he does on the news footage. He certainly appears coherent.
I was asked to bear in mind that he did not use any weapon against X and although he was carrying a mask he was not wearing one at the time of the offences. He did not try to hide his identity. At times he can be seen wearing a cap.
I have considered the contents of mitigation letters written by the 2nd defendant, his wife and son. There is also a letter from a leader of the church that the defendant attends. His previous employer has written to ask for leniency and for the defendant to have an opportunity to redeem himself.
Defence counsel for the 2nd defendant has said that although the incident was serious and X’s injuries were not minor, the circumstances and facts of the case do not warrant a 6 to 7 year starting point.
The prosecution has submitted a statement from X dated October 2020. It is not in the form of a victim impact assessment report but a recount from the victim himself as to his injuries and suffering; the physical as well as psychological impact of the offences. Defence counsel have submitted that it is a bit subjective and could be inaccurate. It is submitted it is not helpful in terms of sentencing.
The Summary of Facts and the photograph albums cover the physical injuries suffered as a result of the attack; there can be no dispute there. I note the victim states he still suffers intermittent pain which affects his performance at work and interrupts his sleep at times. He cannot yet do vigourous physical activities. He says that on occasions he has nightmares of being beaten. He explains how the attack has had a negative impact on his psychological well-being. In my view, these are all consequences one can imagine would reasonably result from an incident and attack of this nature.
Reasons for sentence
The offence of rioting, contrary to section 19(1) and (2) of the Public Order Ordinance, will attract a maximum term of imprisonment on indictment of 10 years. The offence of wounding with intent will attract a maximum penalty of life imprisonment.
Freedom of peaceful assembly is guaranteed by the Basic Law and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, like the freedom of speech is indispensable to the building of a civilised society and essential to social stability and progress. The freedom of peaceful assembly enables members of the public to voice their criticisms, air grievances and seek redress on views they hold.
However, the freedom of assembly is not absolute. Once a protester becomes involved in violence or the threat of violence, a breach of peace, then that protester crosses the line between constitutionally protected peaceful assembly and demonstration to an unlawful activity which is subject to legal sanctions. There is such a line to protect public order because society is prone to descend into anarchy if public order is not preserved. The facts of this case is a demonstration of just that scenario.
A riot has an immediate and serious impact on the rule of law. The rule of law is a core value of Hong Kong and the cornerstone of its success. The law ensures that public order and peace are preserved; not threatened by the use of violence. If public order is not preserved, this affects the freedom and rights of citizens.
Sentencing for the offence of riot involves the factor of deterrence. Counsels submit the actions of the defendants were a momentary lapse of judgement and happened in the heat of the moment. It is submitted their actions and participation were spontaneous and not premeditated. They were caught up with the crowd when other rioters surrounded the victim when emotions were running high. They didn’t go out to organise a riot nor promote one. They had no intention to cause harm to members of the public or destroy property.
A sentence must not only seek to prevent the offender from reoffending, but also give a proper warning to deter others from violating the law by breaking and disrupting public order in a like manner. Acts of violence or threats of violence will not and cannot be tolerated; such acts will attract a deterrent sentence to ensure that the public is protected.
The Court of Appeal in Leung Tin Kei and others
CACC 164/2018 reiterated that courts will impose a sentence that is punitive and sufficiently deterrent in accordance with principles established in applicable case law. It therefore follows that the personal background and mitigation as well as the submissions of impulsive behaviour and being carried away by the emotions of others carry little weight.
In this case, a deterrent sentence will reflect the fact that the defendants rioted in a public place which led to a direct physical attack on an innocent resident who was defenceless, vulnerable and entirely on his own. It was a shameful attack on peace and order as well as an intention to injure and wound a man whose only complaint was the noise levels from downstairs in his own estate.
Deterrence overrides the sentencing principle of rehabilitation in the prevailing circumstances including the then increasing incidents of unrest and a rising number of large-scale public protests involving violence. This is clear from the Court of Final appeal in SJ v Wong Chi Fung 2018 21 HKCFAR 35.
The defendants were one of a number engaged in a crime against peace, in this case it was definitely the sheer number with the defendants that gave them support and encouragement from being together with so many others to riot. It is a common feature of mass disorder that if individuals within the crowd act violently, this will in turn inflame and encourage others to behave similarly. This was what I witnessed in the news footage, it was disproportionate and without provocation. The victim threatened to call the police. That crowd knew the police were nearby so I am sure that threat didn’t scare them. I believe some were looking to cause trouble and their actions with words led others to behave similarly. The harm and destruction done comes from the combined effect of what is done en masse.
For similar offences with different backgrounds and facts, the sentences and starting points in those cases do not provide a helpful guidance. Each charge must be considered on its own facts. What is a common factor is that the sentence should be punitive and sufficiently deterrent therefore, an immediate custodial sentence is inevitable.
The Court of Appeal in Leung Tin Kei set out various factors to be taken into account when passing sentence on the offence of riot. In that case the riot took place in February 2016 in Argyle Street, Kowloon. Courts must consider these factors and principles to arrive at a sentence according to the facts of each individual case. I have taken them into account. In that authority, the Court of Appeal upheld the sentences imposed.
In deciding the starting point of the offence, the extent of the overall violence involved must be considered, not the defendant’s individual acts in isolation. It has been suggested in mitigation that the defendants actions were spontaneous and not premeditated. It was submitted neither used weapons although others did according to the news footage and the extent of X’s injuries. The 2nd defendant wasn’t wearing a mask to hide his identity. However, there were clearly many people there wearing caps and masks carrying umbrellas.
I quote from the authority R v Caird and others 1970 Cr App R 499 where LJ Sachs said at pages 507-508,
“those who choose to take part in such unlawful occasions must do so at their peril. … Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who, by weight of numbers, pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers. … In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.”
Therefore, in determining an appropriate sentence, I considered the extent of the overall violence involved, not the defendant’s individual acts in isolation. Both the defendants pleas and their behaviour seen on the camera footage shows they endorsed the offences and actively took part in them. Their culpability is significant. I do not differentiate between their roles and culpability.
I have also considered the scale of the disturbance that night caused to the public, residents nearby, the harm to society, including the relation between the police and the public. There is no doubt that the riot was a serious incident. What I also find relevant is the riot was in a public place, the number of actual rioters was hard to estimate but enough to make it significant and frightening.
Within that riot, I take into account there was intentional violence used against X. This makes the riot even more serious. He was punched and kicked and obviously hard objects were used to hit him. There were those who put up umbrellas to hide the identity of the rioters. At the time of the riot the police were not present but there were some people audibly trying to warn off the rioters but to no avail. It was only cut short by the police arriving. Such gratuitous violence cannot be tolerated by a civilised and diversified society.
Accordingly, as mentioned above both the defendants mitigation and personal circumstances are not mitigating factors of any significant weight. A plea of guilty does demonstrate remorse and I’m sure they both regret their actions and participation after the event. I am conscious of the undoubted suffering of their family members, especially the young children as a result of their participation and actions. However, I do have to give proper weight to public interest and a deterrent sentence.
Similarly wounding with intent is a serious offence which also warrants a deterrent sentence. Sentencing is very much case specific and there is no tariff as such. In HKSAR v Chan Chun Tat 2013 6 HKC 225, the Court of Appeal considered what factors were most relevant to sentencing such a serious offence.
Those include whether there was premeditation, the motivation behind it, the mental and emotional state of the attacker, whether the attacker was acting under the influence of alcohol or drugs, whether the assault was committed by the attacker alone or as part of a group, type of weapons used, level of force used and injury suffered. Other aggravating factors would include whether the attack was committed in company, unprovoked, in a public place and did the attack go on after the victim had fallen down to the ground. For the purposes of sentencing, I’ve taken into account whether these factors exist in these facts.
In this case of riot and wounding, the unlawful assembly of so many people became a riot and an intentional attack on a defenceless man armed with only a mobile phone. This was not obviously premeditated but nor can it have been said to have been provoked. The emotional state of the rioters led to a total loss of self-control, reason and their humanity.
I have taken into account the facts, mitigation, the background of both defendants and the content of the reports I sought. I am of the view that the culpability and seriousness of Charge 1 is higher than that for Charge 2, it was a riot with intentional violence against a targeted person. I find the appropriate starting point for taking part in this riot to be 5 years’ and 6 months’ imprisonment after trial. I will say that if there had not been the intentional attack directed at X, I would have taken a five-year starting point.
For charge 2, I take into account the circumstances of the facts leading to charge 2 as well as the injuries suffered. I find the appropriate starting point to be 4 years and 6 months imprisonment.
Both defendants have pleaded guilty at the earliest opportunity and are both entitled to the usual full discount after plea. Therefore, I reduce the starting points accordingly and sentence the defendants as follows;
The 1st defendant: Charge 1 3 years and 8 months.
Charge 2 3 years.
The 2nd defendant : Charge 1 3 years and 8 months.
Charge 2 3 years.
I have taken into account the facts and the totality principle. The 2 charges are intertwined and I order that all charges be served concurrently. Therefore, the 1st and 2nd defendant will serve a total of 3 years and 8 months’ imprisonment.
I order psychiatric treatment be arranged for the 1st defendant whilst she is serving this sentence as deemed necessary by a psychiatrist.
( A J Woodcock )
District Judge
ESCC 1991/2020
錢禮
裁判法院
簽保守行為
護士
29
無牌管有無線電通訊器具
01/01/2020
銅鑼灣
ESCC 1991/2020
錢禮
裁判法院
簽保守行為
銀行顧客服務助理
26
無牌管有無線電通訊器具
01/01/2020
銅鑼灣
ESCC 1991/2020
錢禮
裁判法院
簽保守行為
無業
55
無牌管有無線電通訊器具
01/01/2020
銅鑼灣
ESCC 1991/2020
錢禮
裁判法院
簽保守行為
客戶助理
23
無牌管有無線電通訊器具
01/01/2020
銅鑼灣
崔美霞
裁判法院
不認罪
罪成
裝修工人
25
無牌管有無線電通訊器具
只判罰款
荃灣
崔美霞
裁判法院
不認罪
罪成
裝修工人
25
無牌管有無線電通訊器具
只判罰款
荃灣
黃雅茵
裁判法院
簽保守行為
25
無牌管有無線電通訊器具
西灣河
KTCC1055/20
梁少玲
裁判法院
不認罪
不成立
警證供問題
學生
17
襲警
九龍灣
WKCC4133/2019
劉綺雲
裁判法院
不認罪
罪成
31
非法集結
判囚
21
灣仔
WKCC4133/2019
劉綺雲
裁判法院
不認罪
罪成
31
刑事毀壞
判囚
21
灣仔
WKCC4133/2019
劉綺雲
裁判法院
不認罪
罪成
31
襲警
判囚
21
灣仔
WKCC4133/2019
劉綺雲
裁判法院
不認罪
罪成
31
襲警
判囚
21
灣仔
WKCC4133/2019
劉綺雲
裁判法院
不認罪
罪成
31
襲警
判囚
21
灣仔
WKCC4133/2019
劉綺雲
裁判法院
不認罪
罪成
31
襲警
判囚
21
灣仔
WKCC4133/2019
劉綺雲
裁判法院
不認罪
罪成
31
襲警
判囚
21
灣仔
WKCC4133/2019
劉綺雲
裁判法院
不認罪
罪成
31
襲警
判囚
21
灣仔
WKCC4133/2019
劉綺雲
裁判法院
不認罪
罪成
31
襲警
判囚
21
灣仔
KCCC 1360-1362/2020
張天雁
裁判法院
不認罪
不成立
警證供問題
無業
22
在公眾地方管有攻擊性武器
深水埗
KCCC853/20
鄭念慈
裁判法院
不認罪
不成立
家庭主婦
37
管有任何物品意圖摧毀或損壞財產
士巴拿
尖沙咀
STCC1686/2020
溫紹明
裁判法院
認罪
罪成
17
刑事毀壞
感化令
06/12/2020
沙田
ESCC741/2020
黃雅茵
裁判法院
不認罪
不成立
警證供問題
27
非法集結
11/11/2019
西灣河
ESCC741/2020
黃雅茵
裁判法院
不認罪
不成立
警證供問題
27
蒙面
11/11/2019
西灣河
ESCC741/2020
黃雅茵
裁判法院
不認罪
不成立
警證供問題
22
非法集結
11/11/2019
西灣河
ESCC741/2020
黃雅茵
裁判法院
不認罪
不成立
警證供問題
22
管有適合作非法用途的工具
11/11/2019
西灣河
KCCC724/2020
鄭念慈
裁判法院
不認罪
罪成
海關關員
26
無牌管有無線電通訊器具
只判罰款
紅磡
ESCC 873/2020
崔美霞
裁判法院
不認罪
不成立
警證供問題
學生
23
管有任何物品意圖摧毀或損壞財產
刀、噴漆、索帶、火柴
灣仔
ESCC 873/2020
崔美霞
裁判法院
不認罪
不成立
警證供問題
學生
23
無牌管有無線電通訊器具
灣仔
徐綺薇
裁判法院
簽保守行為
無牌管有無線電通訊器具
鑽石山
徐綺薇
裁判法院
簽保守行為
無牌管有無線電通訊器具
鑽石山
FLS2398/2020
陳炳宙
裁判法院
不認罪
不成立
社工
38
阻差辦公
粉嶺
ESCC495/2020
鄭紀航
裁判法院
不認罪
罪成
學生
21
襲擊致造成身體傷害
判囚
95
11/06/2019
科大
TMCC1035/2020
王證瑜
裁判法院
不認罪
罪成
院舍服務員
50
非法集結
25
11/12/2019
天水圍
TMCC1035/2020
王證瑜
裁判法院
不認罪
罪成
院舍服務員
50
阻差辦公
25
11/12/2019
天水圍
TMCC1035/2020
王證瑜
裁判法院
不認罪
罪成
院舍服務員
50
蒙面
25
11/12/2019
天水圍
TMCC763/2020
李志豪
裁判法院
不認罪
不成立
學生
19
10/12/2019
天水圍
TMCC763/2020
李志豪
裁判法院
不認罪
不成立
證據不足
學生
19
管有任何物品意圖摧毀或損壞財產
剪鉗、士巴拿、鎅刀
10/12/2019
屯門
TMCC1933
水佳麗
裁判法院
不認罪
罪成
地盤工人
33
普通襲擊
只判罰款
屯門
TMCC1933
水佳麗
裁判法院
不認罪
不成立
地盤工人
33
非法集結
屯門
TMCC1933
水佳麗
裁判法院
不認罪
罪成
學生
19
普通襲擊
屯門
TMCC1933
水佳麗
裁判法院
認罪
罪成
學生
19
非法集結
屯門
WKCC700009/2020
彭亮廷
裁判法院
不認罪
罪成
學生
15
在公眾地方作出擾亂秩序的行為
社會服務令
200
11/02/2019
旺角
WKCC1728/2020
王詩麗
裁判法院
不認罪
罪成
學生
22
阻差辦公
判囚
2
深水埗
嚴舜儀
裁判法院
不認罪
罪成
24
非法集結
判囚
5
08/05/2019
深水埗
KCCC1931/2020
嚴舜儀
裁判法院
認罪
罪成
文員
24
在公眾地方管有攻擊性武器
投擲器
判囚
5
08/05/2019
深水埗
ESCC2513/2019
鄭紀航
裁判法院
不認罪
罪成
學生
18
在公眾地方管有攻擊性武器
雷射筆、伸縮棍
入更生中心
11/09/2019
金鐘
KCCC1514/2020
張天雁
裁判法院
簽保守行為
學生
20
在公眾地方管有攻擊性武器
雷射筆
旺角
張天雁
裁判法院
簽保守行為
20
無牌管有無線電通訊器具
旺角
蘇文隆
裁判法院
認罪
罪成
24
襲警
判囚
6
上水
蘇文隆
裁判法院
認罪
罪成
27
襲警
判囚
6
上水
FLCC1433/2020
蘇文隆
裁判法院
認罪
罪成
建築工人
27
非法集結
判囚
7
08/05/2019
大埔
FLCC1433/2020
蘇文隆
裁判法院
認罪
罪成
建築工人
27
管有任何物品意圖摧毀或損壞財產
士巴拿
判囚
6
08/05/2019
大埔
FLCC1433/2020
蘇文隆
裁判法院
認罪
罪成
學生
22
非法集結
判囚
6
08/05/2019
大埔
蘇文隆
裁判法院
認罪
罪成
18
非法集結
感化令
上水
FLCC5590/2019
蘇文隆
裁判法院
撤控
學生
18
在公眾地方管有攻擊性武器
雷射筆
上水
FLCC5590/2019
蘇文隆
裁判法院
撤控
學生
18
管有物品意圖損壞財產
噴漆
上水
張潔宜
裁判法院
認罪
罪成
13
在公眾地方造成阻礙
感化令
02/05/2020
天水圍
莫子聰
裁判法院
認罪
罪成
普通襲擊
社會服務令
觀塘
李志豪
裁判法院
認罪
罪成
在公眾地方造成阻礙
沙田
STCC1095/2020
李志豪
裁判法院
不認罪
不成立
警證供問題
學生
22
管有適合作非法用途的工具
士巴拿
沙田
WKCC2161/2020
王詩麗
裁判法院
不認罪
罪成
學生
23
管有任何物品意圖摧毀或損壞財產
噴漆、鎚、一個載有天拿水的玻璃樽、布條及打火機
判囚
12
11/02/2019
葵涌
WKCC1176/2020
裁判法院
不認罪
不成立
設計師
30
管有攻擊性武器或適合作非法用途的工具
鎅刀、剪刀、螺絲批、六角匙及尼龍釣魚絲
旺角
KTS 3006/2020
徐綺薇
裁判法院
不認罪
罪成
設計師
24
襲警
判囚
4
09/01/2019
將軍澳
WKCC4014/2019
鍾明新
裁判法院
不認罪
罪成
酒店銷售員
40
非法集結
判囚
425
旺角
WKCC4014/2019
鍾明新
裁判法院
認罪
罪成
酒店銷售員
40
普通襲擊
判囚
425
旺角
ESCC515/2020
崔美霞
裁判法院
不認罪
不成立
退休人士
74
協助犯及教唆犯在公眾地方作出擾亂秩序的行為
10/04/2019
中環
TMCC1567/2020
張潔宜
裁判法院
認罪
罪成
跟車工人
23
在公眾地方造成阻礙
社會服務令
屯門
WKCC4014/2019
鍾明新
裁判法院
不認罪
不成立
無業
42
傷人或對他人身體加以嚴重傷害
旺角
11/12/2020
唐偉倫
裁判法院
認罪
罪成
30
刑事毀壞
只判罰款
何文田
11/12/2020
唐偉倫
裁判法院
不認罪
罪成
30
抗拒警務人員
緩刑
何文田
11/12/2020
唐偉倫
裁判法院
不認罪
罪成
30
普通襲擊
緩刑
何文田
11/12/2020
唐偉倫
裁判法院
不認罪
不成立
30
刑事恐嚇
何文田
STCC1994/2020
11/12/2020
溫紹明
裁判法院
認罪
罪成
學生
22
刑事毀壞
感化令
01/05/2020
大水坑
WKCC736/2020
11/12/2020
羅德泉
裁判法院
認罪
罪成
售貨員
30
管有攻擊性武器或適合作非法用途的工具
伸縮棍
社會服務令
10/01/2019
深水埗
KTCC349/2020
11/11/2020
裁判法院
認罪
罪成
售貨員
30
在公眾地方管有攻擊性武器
伸縮棍
社會服務令
10/01/2019
深水埗
FLCC1309/2020
11/10/2020
陳炳宙
裁判法院
不認罪
罪成
市場推廣經理
36
遊蕩導致他人擔心
判囚
9
大埔
TMCC386/2020
11/10/2020
王證瑜
裁判法院
不認罪
罪成
42
襲警
判囚
1
元朗
FLCC1309/2020
11/10/2020
陳炳宙
裁判法院
撤控
證據不足
市場推廣經理
36
阻差辦公
大埔
11/09/2020
錢禮
裁判法院
認罪
罪成
無牌管有無線電通訊器具
感化令
銅鑼灣
11/09/2020
錢禮
裁判法院
認罪
罪成
無牌管有無線電通訊器具
感化令
旺角
11/09/2020
錢禮
裁判法院
認罪
罪成
地盤工人
43
無牌管有無線電通訊器具
感化令
旺角
WKCC735/2020
11/06/2020
劉淑嫻
裁判法院
不認罪
罪成
學生
23
襲警
判囚
3
10/01/2019
荃灣
KTCC1666/2019
11/06/2020
徐綺薇
裁判法院
不認罪
罪成
銷售員
23
非法集結
判囚
4
09/04/2019
寶琳
KTCC1666/2019
11/06/2020
徐綺薇
裁判法院
不認罪
罪成
區議員助理
22
非法集結
判囚
3
09/04/2019
寶琳
ESCC1029/2020
11/06/2020
錢禮
裁判法院
撤控
證據不足
學生
19
襲警
銅鑼灣
STCC4441/2019
11/06/2020
梁雅忻
裁判法院
不認罪
罪成
維修技術員
35
普通襲擊
緩刑
大水坑
WKCC3420/2020
11/06/2020
林子勤
裁判法院
撤控
證據不足
區議員秘書
31
在公眾地方參與非法打鬥
深水埗
ESCC742/2020
11/05/2020
鄭紀航
裁判法院
不認罪
罪成
廚師
30
在公眾地方造成阻礙
判囚
183
11/11/2019
西灣河
KCS510198/2020
11/05/2020
鄭念慈
裁判法院
認罪
罪成
學生
21
管有適合作非法用途的工具
士巴拿、索帶
社會服務令
旺角
FLCC990/2020
11/04/2020
蘇文隆
裁判法院
認罪
罪成
學生
16
在公眾地方管有攻擊性武器
雷射筆
入更生中心
大埔
KTCC1056/2020
11/04/2020
梁少玲
裁判法院
不認罪
不成立
警證供問題
技工
24
襲警
九龍灣
ESCC1549/2020
11/04/2020
錢禮
裁判法院
認罪
罪成
校巴司機
55
企圖刑事毀壞
感化令
10/05/2019
中環
WKCC 3932/2019
11/03/2020
潘兆初、彭偉昌、潘敏琦
裁判法院
認罪
罪成
地盤工
36
煽惑他人參與非法集結
判囚
13
網上
DCCC164/2020
11/03/2020
姚勳智
區院
不認罪
罪成
電訊外勤員
33
不誠實意圖而取用電腦
判囚
24
網上
DCCC 164/2020
[2020] HKDC 1020
香港特別行政區
區域法院
刑事案件2020年第164號
—————-
香港特別行政區
訴
陳景僖
—————-
主審法官：區域法院法官姚勳智
日期： 2020年11月3日下午12時03分
出席人士：律政司署理高級檢控官林曉敏女士，代表香港特別行政區
關唐利先生，由法律援助署委派的鄧王周廖成利律師行延聘，代表被告人
控罪： [1] 至 [3] 目的在於使其本人或他人不誠實地獲益而取用電腦（Obtaining access to a computer with a view to dishonest gain for himself or another）
[4] 披露未經資料使用者同意而取得的個人資料（Disclosing personal data obtained without consent from data users）
—————-
判刑理由書
—————-
被告經審訊後被裁定四項控罪罪名成立，包括三項「目的在於使其本人或他人不誠實地獲益而取用電腦」罪（第一至第三項）及一項「披露未經資料使用者同意而取得的個人資料」罪（第四項），分別違反香港法例第200章《刑事罪行條例》第161（1）（c）條及香港法例第486章《個人資料（私隱）條例》第64（2）條。
2019年9月22日，被告被發現在紅磡警署對面的停車場內，拿著手機向警署方向拍攝。被告其後被截停及搜出3部手提電話，內有該警署停車場及車輛的照片，手機內另發現有向Telegram程式發放了有關警員家屬的個人資料，包括身份證號碼及電話等。警方後來在被告任職香港電訊時使用的電腦內，發現下載了的文字檔案，載有3名公眾人物和63個地址，當中有28個警察宿舍地址，涉及20名警員及6名家屬的個人資料等等。
被告其後在會面紀錄中承認使用辦公室電腦作出搜尋及認為報料群組的資料不準確，才在一時衝動下發放資料。而上述所發放的個人資料亦導致該家屬蒙受心理傷害，感到無助、脆弱及緊張自己及家人的人身安全等等。
被告現年33歲，過往並無任何刑事定罪紀錄。
代表被告的關大律師求情指出，被告自2013年起在香港電訊工作期間已不斷進修及學習，其家人及朋友等均致函表示被告與家人相處融洽，與同事合作愉快，被告雖性格較內向，但為人溫柔和善及有責任感。被告的求情信亦表明因社會事件感到焦慮和憤怒，當時只是一時激動，才用了不恰當的方法來達成自己的目的，現在感到非常後悔，亦對因此事而受影響的人致歉。被告承諾不會再犯，希望可早日獲釋，重投社會。
關大律師亦指出就案情而言，被告不誠實地取用電腦並非用以犯罪或詐騙，更無任何金錢利益，他只是想看看其資料有多準確，才一時衝動地去報料，當中亦只是發放了在一個頻道，並無任何其他傳媒。至於首兩項控罪的資料亦只是一直存在電腦內，從未發放予第三者，而第四項控罪方面，可幸對陳督察的父親未有造成永久或更大的傷害。
關大律師也指出就上述控罪，過往的案例不少判以社會服務令或緩刑，似乎只有涉及獲益或性視頻等的案件才判以監禁。因此，關大律師陳詞指出若考慮到被告的背景及案件的特殊性，被告至今已被囚3個星期，或許社會服務令或緩刑為適當的判刑選擇。
本席的考慮
「不誠實地取用電腦」及「披露未經資料使用者同意而取得的個人資料」罪均為嚴重罪行，上述兩項罪行的最高刑罰均為監禁5年，過往並無量刑指引，各案因其案情有別而量刑。
但上訴法院在HKSAR v Tam Hei Lun [2000] 3 HKC 745指出，就第161條的判刑，除非案情非常特殊，否則非監禁式的刑罰並不恰當，而在判刑上，法院亦應考慮對受害人的損失及傷害、罪行的嚴重性、取用的目的與及犯罪者是否得到經濟上或其他的獲益等等。
而在HKSAR v Sze Lok Hang CACC 203/2013一案，該案被告為公立醫院註冊護士，卻伺機盜取女病人資料，繼而作進一步個人接觸，違反誠信及操守，被判以8個月監禁。
另外，在香港特別行政區 訴 謝日開 HCMA 427/2006，被告是銀行職員，卻藉此進入銀行電腦系統取得客戶資料，再交予財務公司，合共取用20多項資料，法院以9個月監禁為量刑起點。
而在本案中，就第三項控罪而言，被告在未獲授權下從電訊公司的系統獲得了陳督察父親的個人資料，包括其中英文姓名、電話號碼及身份證號碼，繼而把這些資料發佈在Telegram一起底群組中，更表明為「有親屬同屋企電話料爆」，而該群組更已有一些疑似是警員資料及地址等等。
被告聲稱只是一時衝動，又說是看看資料是否準確，可是其搜查過程並非直接簡易，而是需要透過電腦資料一步一步查證，被告聲稱只是一時衝動，實在難以接納。無疑，被告不單違反誠信，不誠實地取得這些資料，更發佈在起底群組中，案情嚴重，尤其是在多個社會事件發生後，警民關係變得緊張，把警員家屬的資料放在網上，不單對執法者造成嚴重心理上的影響，更對他們無辜的家屬造成極大的困擾，正如陳先生的心理報告所指出，他在事發後數個月仍會感到無助、脆弱及緊張自己及家人的安全。
無疑，對於此類行為，法院必須判以阻嚇性的刑罰，以免其他人士仿效，或會造成更大及更廣泛的影響。因此，適當地可判予18個月以上的監禁，但考慮到被告過往並無任何刑事定罪紀錄，其個人背景及各求情理由，本席認為仍可予18個月監禁為量刑起點。被告經審訊後被定罪，並無其他可再作減刑之理由，因此，就第三項控罪，被告被判以18個月監禁。
至於第一及第二項控罪，分別涉及違反誠信下就第一項控罪獲取了分別3名公眾知名人士的個人資料，第二項更涉及63個地址，當中有28個警察宿舍，也包括20名警員及6名家屬的個人資料。雖則被告未有把這些資料發佈，但也應考慮到這些資料外流的風險。在此情況下，第一及第二項控罪分別適當地以3個月及12個月監禁為量刑起點，同樣地並無其他可再作減刑之理由。
至於第四項控罪，其性質及案情其實與第三項控罪類同，同樣地以18個月監禁為適當的判刑。
最後，以整體量刑原則作考慮，第三及第四項控罪的案情源於一轍，可予同期執行。第一項及第二項亦予同期執行，但當中6個月則與第三及第四項分期執行。
因此，各項控罪判刑如下：
第一項控罪，3個月監禁；
第二項控罪，12個月監禁；
第一及第二項控罪同期執行。
第三及第四項控罪分別亦為18個月監禁，同期執行。
首兩項控罪當中6個月與第三及第四項分期執行。
因此，四項控罪總判刑為兩年監禁。
姚勳智
區域法院法官
DCCC164/2020
11/03/2020
姚勳智
區院
不認罪
罪成
電訊外勤員
33
披露未經資料使用者同意而取得個人資料罪
判囚
24
網上
DCCC 164/2020
[2020] HKDC 1020
香港特別行政區
區域法院
刑事案件2020年第164號
—————-
香港特別行政區
訴
陳景僖
—————-
主審法官：區域法院法官姚勳智
日期： 2020年11月3日下午12時03分
出席人士：律政司署理高級檢控官林曉敏女士，代表香港特別行政區
關唐利先生，由法律援助署委派的鄧王周廖成利律師行延聘，代表被告人
控罪： [1] 至 [3] 目的在於使其本人或他人不誠實地獲益而取用電腦（Obtaining access to a computer with a view to dishonest gain for himself or another）
[4] 披露未經資料使用者同意而取得的個人資料（Disclosing personal data obtained without consent from data users）
—————-
判刑理由書
—————-
被告經審訊後被裁定四項控罪罪名成立，包括三項「目的在於使其本人或他人不誠實地獲益而取用電腦」罪（第一至第三項）及一項「披露未經資料使用者同意而取得的個人資料」罪（第四項），分別違反香港法例第200章《刑事罪行條例》第161（1）（c）條及香港法例第486章《個人資料（私隱）條例》第64（2）條。
2019年9月22日，被告被發現在紅磡警署對面的停車場內，拿著手機向警署方向拍攝。被告其後被截停及搜出3部手提電話，內有該警署停車場及車輛的照片，手機內另發現有向Telegram程式發放了有關警員家屬的個人資料，包括身份證號碼及電話等。警方後來在被告任職香港電訊時使用的電腦內，發現下載了的文字檔案，載有3名公眾人物和63個地址，當中有28個警察宿舍地址，涉及20名警員及6名家屬的個人資料等等。
被告其後在會面紀錄中承認使用辦公室電腦作出搜尋及認為報料群組的資料不準確，才在一時衝動下發放資料。而上述所發放的個人資料亦導致該家屬蒙受心理傷害，感到無助、脆弱及緊張自己及家人的人身安全等等。
被告現年33歲，過往並無任何刑事定罪紀錄。
代表被告的關大律師求情指出，被告自2013年起在香港電訊工作期間已不斷進修及學習，其家人及朋友等均致函表示被告與家人相處融洽，與同事合作愉快，被告雖性格較內向，但為人溫柔和善及有責任感。被告的求情信亦表明因社會事件感到焦慮和憤怒，當時只是一時激動，才用了不恰當的方法來達成自己的目的，現在感到非常後悔，亦對因此事而受影響的人致歉。被告承諾不會再犯，希望可早日獲釋，重投社會。
關大律師亦指出就案情而言，被告不誠實地取用電腦並非用以犯罪或詐騙，更無任何金錢利益，他只是想看看其資料有多準確，才一時衝動地去報料，當中亦只是發放了在一個頻道，並無任何其他傳媒。至於首兩項控罪的資料亦只是一直存在電腦內，從未發放予第三者，而第四項控罪方面，可幸對陳督察的父親未有造成永久或更大的傷害。
關大律師也指出就上述控罪，過往的案例不少判以社會服務令或緩刑，似乎只有涉及獲益或性視頻等的案件才判以監禁。因此，關大律師陳詞指出若考慮到被告的背景及案件的特殊性，被告至今已被囚3個星期，或許社會服務令或緩刑為適當的判刑選擇。
本席的考慮
「不誠實地取用電腦」及「披露未經資料使用者同意而取得的個人資料」罪均為嚴重罪行，上述兩項罪行的最高刑罰均為監禁5年，過往並無量刑指引，各案因其案情有別而量刑。
但上訴法院在HKSAR v Tam Hei Lun [2000] 3 HKC 745指出，就第161條的判刑，除非案情非常特殊，否則非監禁式的刑罰並不恰當，而在判刑上，法院亦應考慮對受害人的損失及傷害、罪行的嚴重性、取用的目的與及犯罪者是否得到經濟上或其他的獲益等等。
而在HKSAR v Sze Lok Hang CACC 203/2013一案，該案被告為公立醫院註冊護士，卻伺機盜取女病人資料，繼而作進一步個人接觸，違反誠信及操守，被判以8個月監禁。
另外，在香港特別行政區 訴 謝日開 HCMA 427/2006，被告是銀行職員，卻藉此進入銀行電腦系統取得客戶資料，再交予財務公司，合共取用20多項資料，法院以9個月監禁為量刑起點。
而在本案中，就第三項控罪而言，被告在未獲授權下從電訊公司的系統獲得了陳督察父親的個人資料，包括其中英文姓名、電話號碼及身份證號碼，繼而把這些資料發佈在Telegram一起底群組中，更表明為「有親屬同屋企電話料爆」，而該群組更已有一些疑似是警員資料及地址等等。
被告聲稱只是一時衝動，又說是看看資料是否準確，可是其搜查過程並非直接簡易，而是需要透過電腦資料一步一步查證，被告聲稱只是一時衝動，實在難以接納。無疑，被告不單違反誠信，不誠實地取得這些資料，更發佈在起底群組中，案情嚴重，尤其是在多個社會事件發生後，警民關係變得緊張，把警員家屬的資料放在網上，不單對執法者造成嚴重心理上的影響，更對他們無辜的家屬造成極大的困擾，正如陳先生的心理報告所指出，他在事發後數個月仍會感到無助、脆弱及緊張自己及家人的安全。
無疑，對於此類行為，法院必須判以阻嚇性的刑罰，以免其他人士仿效，或會造成更大及更廣泛的影響。因此，適當地可判予18個月以上的監禁，但考慮到被告過往並無任何刑事定罪紀錄，其個人背景及各求情理由，本席認為仍可予18個月監禁為量刑起點。被告經審訊後被定罪，並無其他可再作減刑之理由，因此，就第三項控罪，被告被判以18個月監禁。
至於第一及第二項控罪，分別涉及違反誠信下就第一項控罪獲取了分別3名公眾知名人士的個人資料，第二項更涉及63個地址，當中有28個警察宿舍，也包括20名警員及6名家屬的個人資料。雖則被告未有把這些資料發佈，但也應考慮到這些資料外流的風險。在此情況下，第一及第二項控罪分別適當地以3個月及12個月監禁為量刑起點，同樣地並無其他可再作減刑之理由。
至於第四項控罪，其性質及案情其實與第三項控罪類同，同樣地以18個月監禁為適當的判刑。
最後，以整體量刑原則作考慮，第三及第四項控罪的案情源於一轍，可予同期執行。第一項及第二項亦予同期執行，但當中6個月則與第三及第四項分期執行。
因此，各項控罪判刑如下：
第一項控罪，3個月監禁；
第二項控罪，12個月監禁；
第一及第二項控罪同期執行。
第三及第四項控罪分別亦為18個月監禁，同期執行。
首兩項控罪當中6個月與第三及第四項分期執行。
因此，四項控罪總判刑為兩年監禁。
姚勳智
區域法院法官
KCCC2065/2019
11/03/2020
鄭念慈
裁判法院
不認罪
罪成
學生
17
非法集結
判囚
6
08/03/2019
旺角
KCCC2065/2019
11/03/2020
鄭念慈
裁判法院
不認罪
罪成
學生
17
管有攻擊性武器或適合作非法用途的工具
雷射筆
判囚
6
08/03/2019
旺角
KCCC2065/2019
11/03/2020
鄭念慈
裁判法院
不認罪
罪成
學生
17
非法集結
入更生中心
08/03/2019
旺角
KCCC2065/2019
11/03/2020
鄭念慈
裁判法院
不認罪
罪成
學生
20
非法集結
入勞教中心
08/03/2019
旺角
KCCC2065/2019
11/03/2020
鄭念慈
裁判法院
不認罪
罪成
學生
23
非法集結
判囚
4
08/03/2019
旺角
KCCC2065/2019
11/03/2020
鄭念慈
裁判法院
不認罪
罪成
學生
21
非法集結
判囚
4
08/03/2019
旺角
STCC1717/2020
11/03/2020
李志豪
裁判法院
不認罪
不成立
警證供問題
39
襲警
沙田
TMCC 1590/2020
11/03/2020
張潔宜
裁判法院
簽保守行為
35
普通襲擊
元朗
KCCC1360-1362/2020
11/03/2020
張天雁
裁判法院
不認罪
不成立
警證供問題
運輸工人
19
在公眾地方管有攻擊性武器
伸縮棍
旺角
DCCC164/2020
11/03/2020
姚勳智
區院
不認罪
不成立
電訊外勤員
33
遊蕩
網上
DCCC 164/2020
[2020] HKDC 1020
香港特別行政區
區域法院
刑事案件2020年第164號
—————-
香港特別行政區
訴
陳景僖
—————-
主審法官：區域法院法官姚勳智
日期： 2020年11月3日下午12時03分
出席人士：律政司署理高級檢控官林曉敏女士，代表香港特別行政區
關唐利先生，由法律援助署委派的鄧王周廖成利律師行延聘，代表被告人
控罪： [1] 至 [3] 目的在於使其本人或他人不誠實地獲益而取用電腦（Obtaining access to a computer with a view to dishonest gain for himself or another）
[4] 披露未經資料使用者同意而取得的個人資料（Disclosing personal data obtained without consent from data users）
—————-
判刑理由書
—————-
被告經審訊後被裁定四項控罪罪名成立，包括三項「目的在於使其本人或他人不誠實地獲益而取用電腦」罪（第一至第三項）及一項「披露未經資料使用者同意而取得的個人資料」罪（第四項），分別違反香港法例第200章《刑事罪行條例》第161（1）（c）條及香港法例第486章《個人資料（私隱）條例》第64（2）條。
2019年9月22日，被告被發現在紅磡警署對面的停車場內，拿著手機向警署方向拍攝。被告其後被截停及搜出3部手提電話，內有該警署停車場及車輛的照片，手機內另發現有向Telegram程式發放了有關警員家屬的個人資料，包括身份證號碼及電話等。警方後來在被告任職香港電訊時使用的電腦內，發現下載了的文字檔案，載有3名公眾人物和63個地址，當中有28個警察宿舍地址，涉及20名警員及6名家屬的個人資料等等。
被告其後在會面紀錄中承認使用辦公室電腦作出搜尋及認為報料群組的資料不準確，才在一時衝動下發放資料。而上述所發放的個人資料亦導致該家屬蒙受心理傷害，感到無助、脆弱及緊張自己及家人的人身安全等等。
被告現年33歲，過往並無任何刑事定罪紀錄。
代表被告的關大律師求情指出，被告自2013年起在香港電訊工作期間已不斷進修及學習，其家人及朋友等均致函表示被告與家人相處融洽，與同事合作愉快，被告雖性格較內向，但為人溫柔和善及有責任感。被告的求情信亦表明因社會事件感到焦慮和憤怒，當時只是一時激動，才用了不恰當的方法來達成自己的目的，現在感到非常後悔，亦對因此事而受影響的人致歉。被告承諾不會再犯，希望可早日獲釋，重投社會。
關大律師亦指出就案情而言，被告不誠實地取用電腦並非用以犯罪或詐騙，更無任何金錢利益，他只是想看看其資料有多準確，才一時衝動地去報料，當中亦只是發放了在一個頻道，並無任何其他傳媒。至於首兩項控罪的資料亦只是一直存在電腦內，從未發放予第三者，而第四項控罪方面，可幸對陳督察的父親未有造成永久或更大的傷害。
關大律師也指出就上述控罪，過往的案例不少判以社會服務令或緩刑，似乎只有涉及獲益或性視頻等的案件才判以監禁。因此，關大律師陳詞指出若考慮到被告的背景及案件的特殊性，被告至今已被囚3個星期，或許社會服務令或緩刑為適當的判刑選擇。
本席的考慮
「不誠實地取用電腦」及「披露未經資料使用者同意而取得的個人資料」罪均為嚴重罪行，上述兩項罪行的最高刑罰均為監禁5年，過往並無量刑指引，各案因其案情有別而量刑。
但上訴法院在HKSAR v Tam Hei Lun [2000] 3 HKC 745指出，就第161條的判刑，除非案情非常特殊，否則非監禁式的刑罰並不恰當，而在判刑上，法院亦應考慮對受害人的損失及傷害、罪行的嚴重性、取用的目的與及犯罪者是否得到經濟上或其他的獲益等等。
而在HKSAR v Sze Lok Hang CACC 203/2013一案，該案被告為公立醫院註冊護士，卻伺機盜取女病人資料，繼而作進一步個人接觸，違反誠信及操守，被判以8個月監禁。
另外，在香港特別行政區 訴 謝日開 HCMA 427/2006，被告是銀行職員，卻藉此進入銀行電腦系統取得客戶資料，再交予財務公司，合共取用20多項資料，法院以9個月監禁為量刑起點。
而在本案中，就第三項控罪而言，被告在未獲授權下從電訊公司的系統獲得了陳督察父親的個人資料，包括其中英文姓名、電話號碼及身份證號碼，繼而把這些資料發佈在Telegram一起底群組中，更表明為「有親屬同屋企電話料爆」，而該群組更已有一些疑似是警員資料及地址等等。
被告聲稱只是一時衝動，又說是看看資料是否準確，可是其搜查過程並非直接簡易，而是需要透過電腦資料一步一步查證，被告聲稱只是一時衝動，實在難以接納。無疑，被告不單違反誠信，不誠實地取得這些資料，更發佈在起底群組中，案情嚴重，尤其是在多個社會事件發生後，警民關係變得緊張，把警員家屬的資料放在網上，不單對執法者造成嚴重心理上的影響，更對他們無辜的家屬造成極大的困擾，正如陳先生的心理報告所指出，他在事發後數個月仍會感到無助、脆弱及緊張自己及家人的安全。
無疑，對於此類行為，法院必須判以阻嚇性的刑罰，以免其他人士仿效，或會造成更大及更廣泛的影響。因此，適當地可判予18個月以上的監禁，但考慮到被告過往並無任何刑事定罪紀錄，其個人背景及各求情理由，本席認為仍可予18個月監禁為量刑起點。被告經審訊後被定罪，並無其他可再作減刑之理由，因此，就第三項控罪，被告被判以18個月監禁。
至於第一及第二項控罪，分別涉及違反誠信下就第一項控罪獲取了分別3名公眾知名人士的個人資料，第二項更涉及63個地址，當中有28個警察宿舍，也包括20名警員及6名家屬的個人資料。雖則被告未有把這些資料發佈，但也應考慮到這些資料外流的風險。在此情況下，第一及第二項控罪分別適當地以3個月及12個月監禁為量刑起點，同樣地並無其他可再作減刑之理由。
至於第四項控罪，其性質及案情其實與第三項控罪類同，同樣地以18個月監禁為適當的判刑。
最後，以整體量刑原則作考慮，第三及第四項控罪的案情源於一轍，可予同期執行。第一項及第二項亦予同期執行，但當中6個月則與第三及第四項分期執行。
因此，各項控罪判刑如下：
第一項控罪，3個月監禁；
第二項控罪，12個月監禁；
第一及第二項控罪同期執行。
第三及第四項控罪分別亦為18個月監禁，同期執行。
首兩項控罪當中6個月與第三及第四項分期執行。
因此，四項控罪總判刑為兩年監禁。
姚勳智
區域法院法官
DCCC 154/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 154 OF 2020
—————————-
HKSAR
v
LAW WAI WAH (D1)
WONG YEE TING (D2)
SOLIMAN AHMED FAWZI ELSAYED (D3)
—————————-
Before: HH Judge A Kwok
Date: 28 October 2020
Present: Mr. Ng Wing Kit, Public Prosecutor, for HKSAR
Miss Nam Hoi Yan Fiona, instructed by Cheung & Liu, assigned by the Director of Legal Aid, for the 1st defendant
Mr. Yuen Wai Ming Anthony, instructed by Bond Ng Solicitors, assigned by the Director of Legal Aid, for the 2nd and 3rd defendants
Offence: [1] & [2] Causing grievous bodily harm with intent (有意圖 而導致身體受嚴重傷害)
—————————————-
REASONS FOR SENTENCE
—————————————-
Introduction
Since June 2019, Hong Kong experienced a series of protests in opposition to the introduction of the Fugitive Offenders (Amendment) Bill by the government. The initial peaceful rallies have since escalated into serious social unrest and public disorder in the territory.
The present case alleged two attacking incidents in a public place on two victims who were just passersby at the material time by a group of protestors assembled in the area of Nathan Road and Argyle street, Mongkok, Kowloon on two consecutive days on 5 and 6 October, 2019.
D1, D2 and D3 were jointly charged with one count of causing grievous bodily harm to male X with intent, together with other persons unknown, contrary to s 17(a) of the Offences against the Person Ordinance, Cap. 212 (Charge 1) and D1 was further and separately charged with another count of causing grievous bodily harm to male Y with intent, together with other unknown persons, at the same area on the following night, under the same provision. (Charge 2)
D1 pleaded guilty to both charges. D2 and D3 pleaded not guilty to Charge 1 but pleaded guilty to the lesser charge of inflicting grievous bodily harm, contrary to s.19 of the Offences against the Person Ordinance, Cap. 212. As a result of plea bargaining, their pleas were accepted by the prosecution.
Facts
Charge 1
According to the Amended Summary of Facts, in the evening on 5 October 2019, a large number of protestors assembled in various areas in the Mongkok area as part of the protests since June 2019. At around mid-night, PW1 (Male X), a visitor from Mainland, was walking back to his hostel in Mongkok after getting off the bus at Nathan Road. A female confronted him and identified him as a Mainlander. She pulled his clothes and prevented him to leave. PW1 tried to leave and felt frightened. The act caught the attention of others (of about 30 persons dressed in black) who were present in the area at the time. PW1 was then surrounded by a large number of persons including the three defendants. The persons in the group began to assault him as he moved from Nathan Road into Argyle Street towards the hostel where he was staying at.
Part of the incident of Charge 1 was captured by an open source video which was played in the court. The Amended Summary of Facts described the events which were captured by the video in the following sequence implicating the three defendants: –
(a) D2, who was unmasked with her facial appearance captured, holding an opened rainbow-coloured umbrella and dressed in a pink and red dress, was among the first assailants who began to chase after PW1. She followed PW1 to Argyle Street where PW1 was pushed to the ground by others at the junction of Argyle Street and Sai Yeung Choi Street South. Her opened umbrella covered some of the assailants as they began to assault PW1. It was not raining at the time.
(b) Among the group of assailants assaulting PW1, D1 who was unmasked and with his facial appearance clearly captured assaulted PW1 with a rod-shaped object. D2 pushed PW1 from behind when other assailants were assaulting PW1. D3 kicked PW1 when he was on the ground. He was unmasked at the time with his facial appearance clearly captured. Further, there is a distinctive tattoo on his left forearm which was exposed as he was wearing a black T-shirt.
(c) During the incident, someone had shouted words to the effect “open umbrella”, that PW1 had taken photos of the persons in the area, and that PW1 was holding a brick in his hand.
(d) The open-source video captured PW1 as holding an object in his hand but he never used it.
Throughout the assault, PW1 tried and continued to move towards the hostel. As he moved towards the carriageway on Argyle Street outside Sin Tat Plaza, the assault upon him continued. The same coloured umbrella held by D2 appeared in the video blocking the view especially after someone shouted for umbrellas to cover the act, although the facial appearance of the person holding the umbrella could not be shown at that point in the video. The video was not able to capture D1 at this stage of events.
The video shown in court showed that PW1 was savagely attacked by a group of assailants on the ground. The collar of his upper-garment was torn widely open and he was bleeding profusely after the attack. The video footage lasted for about 4 minutes. Eventually at about 0100 hours on 6 October 2019, PW1 returned to the hostel and the case was reported. He was taken to Kwong Wah Hospital for treatment but PW1 requested to be discharged against medical advice. PW1 was diagnosed to suffer from bruises over upper lip, abrasions over left zygomatic region, bilateral hands and left knee, tenderness and swelling over left shin, and a large hematoma and laceration (1 cm x 0.5 cm) over occipital scalp as a result of the incident.
On 9 October 2019, PW1 went to the hospital again for medical treatment. Detailed examination on that day revealed that he was found to have multiple injuries, mostly in the form of bruises and abrasions. A more detailed account of PW1’s bodily injuries can be found in paragraph 7 of the Amended Summary of Facts. I am not going to list them out individually. Suffice it to say that PW1 was found to have no less than 11 patches of bruises and some abrasions on various parts of his body from head down to his knees and a spot of hemorrhage on the lateral aspect of right eyeball.
PW1 has since fully recovered from his injuries.
During the incident, PW1 lost some of his personal properties including cash (RMB 800 and $500), bank cards, Octopus Card, and his mobile phone and earphones which were taken away by the assailants.
Charge 2
At about 0200 hours on 6 October 2019, PW2 (Male Y) and his friend took a taxi in the area of Nathan Road and Argyle Street after dinner and drinks but the taxi could not proceed further as barricades and obstructions were erected by the protesters on the road. When PW2 walked along Nathan Road towards Tai Kok Tsui to return home, he moved away some of the items which obstructed his way at the junction of Argyle Street and Nathan Road. PW2 was then confronted by 10 odd persons dressed in black who alleged him to be a police officer. Flashlight was shone on him. Despite PW2’s denial and explanation that he was only about to go home, the group proceeded to assault him. PW2 ran towards one of the assailants, whereupon others began to assault him repeatedly with punches and kicks as well as bamboo sticks. Part of the incident was captured by another open-source video, also played in court. The video captured in particular that D1 was one of the assailants and he assaulted PW2 twice by hitting him with a rod-shaped object. D1 was in the same clothing items and unmasked as was in the previous attacking incident.
The incident stopped when PW2’s friend intervened and told others that PW2 was simply drunk.
PW2 was also shown to be bleeding profusely in the video. Some persons purporting to be first-aiders approached PW2 and later he was taken by ambulance to hospital for treatment. Medical report showed that PW2 was at the time under the influence of alcohol. Medical examination at the A&E Department of Kwong Wah Hospital found that PW2 suffered from the following injuries :-
(a) Y-shaped laceration wound over vertex;
(b) Multiple abrasions over right eyebrow, right arm, right hand and both legs;
(c) Bruising and tenderness over right forearm; and
(d) Movement of right upper limb was found to be reduced and limited by pain
PW2 was admitted to hospital from 6 to 9 October 2019. A total of 23 days of sick leave was granted by the hospital as well as a private doctor from whom PW2 sought further medical treatment. PW2 also spent $6,320 for private treatment by Chinese medical practitioner to improve his elbow movement after the attack. PW2 has since fully recovered from his injuries.
Arrest of D1-D3
D1 was arrested at his residence on 31 December 2019. Upon arrest and under caution, D1 stated that at the material time, he went to the offence location to look after the young persons who took part in the protests. He admitted to the offences in both incidents. House search recovered the clothing items he wore during the offences and the rod-shaped object which he used. The rod was made in metal and adjustable in length, but is not an extendable baton operable by gravity or centrifugal force.
D2 was arrested at her residence on 31 December 2019. Under caution, D2 remained silent.
D3 was arrested at the Hong Kong International Airport on 10 February 2020 as he was seeking to leave Hong Kong. D3 denied to have participated in any unlawful assembly and denied to have committed Charge 1 or that he was the person shown in the open-source video.
Mitigations
D1
D1 is now 57 years old and has a clear record. He was born in Hong Kong and was only educated up to Primary 6 level. He entered the work force since he was 14. Prior to the arrest, he worked as a cleaning worker on a casual basis earning about $15,000 per month. He resided with his wife and stepson (aged 17) at a rented premise. His wife however filed for divorce after his arrest.
D1 was remanded in custody after his arrest on 31 December 2019.
Miss Nam for D1, has said all she can say on his behalf. In her written mitigation, she described D1 as being a law-abiding citizen for his entire life before these two offences and the acts that he has committed during the two incidents were totally out of his character. At the time of the offences, Miss Nam said D1 truly felt for the younger generations who were eager to see changes to the society and wanted to support them in last year’s social movements. At the same time, he was worried about the safety of young people who participated in social events and he wanted to do his part to protect them. What triggered his actions, I was told, were rumors that the two victims were about to attack the protesters at the time of the two incidents. There were people chasing after PW1 accusing him of attempting to use a brick to attack the protestors, and during the second incident, another group of protestors chased after PW2 who was heavily drunk, accusing him of using the materials he removed from the barricades to attack the protestors. That was why D1 impulsively resorted to violence and attacked the victims. Miss Nam emphasized that she made this statement as an explanation for D1’s acts not as an excuse.
Further, Reverend Mella Francesco who has known D1 since 2015 described him as a compassionate person who was willing to extend help to those in need. During his prison visits to D1 after he was remanded in custody, D1 expressed deep remorse and he wanted to apologise to the victims in the open court. A mitigation letter from the Reverend and a church worker was submitted for my consideration.
In summary, Miss Nam emphasised the following mitigating factors on behalf of D1:-
(i) D1 pleads guilty to all the charges at the earliest opportunity, reflecting his genuine remorse;
(ii) D1 made full admissions under caution;
(iii) D1 has a clear record, meaning he has remained law-abiding for his entire life;
(iv) The injuries suffered by the two victims are not the most serious and not permanent in nature; and
(v) D1 is willing to make compensation to the victims.
Finally, I was urged to take into account the above and the totality principle in sentencing and to extend leniency towards D1.
D2
D2 is aged 23 and has a clear record. She completed Form 3 level. She is still single and prior to her arrest, was living with parents and her younger brother (aged 19) in a public housing in Tsuen Wan. D2 worked as a saleslady at time of arrest, earning $15,000 per month.
Her counsel, Mr. Yuen, told the court that D2 joined a protest at an earlier time in Mongkok on that evening. At the material time, she was planning to return home. When she was at the scene, she noticed that PW1 was holding a piece of brick and looked very hostile. She also heard people around shouting that PW1 was to attack other protestors.
D2, out of curiosity, followed PW1 to see what he was going to do to other protestors. It was at that time that those people around PW1 started to push him and attack him. When PW1 lost his balance and fell towards D2 at one stage, she just pushed him away.
When people shouted to those who had umbrella to open it, she understood it was intended to cover up the identity of protestors from camera or CCTV. She just instinctively followed the words of the others and did accordingly.
In mitigation, Mr. Yuen emphasized D2’s plea of guilty and the fact that it is the first time ever that she committed any offence. At the material time, she was just so carried away by the atmosphere at that particular moment and she first followed PW1 with the intention to see whether he was going to attack other protestors, not to hurt him. All she actually did was to cover up the identity of other assailants by holding her umbrella and she had a push of PW1 when he lost balance and fell towards her. Otherwise, she herself did not attack PW1 at all. She now fully appreciated that it is wrong for anyone to take the law into their hands even if PW1 was going to attack others. She felt extremely remorseful. She also felt terribly sorry that she has caused great concern to her family members, in particular, her parents, as well as those who care about her, including but not limited to her friends, ex-employer, current employer at time of offence and social worker who had come to know her previously. In mitigation, I have received a letter by D2 herself and letters from those people. I do not intend to repeat the contents of those letters. Suffice it to say that D2 is now extremely remorseful for what she had done and the others were all shock to learn about D2’s involvement in the attack and commented that it was totally out of her character and asked the court to be as lenient as possible. Mr. Yuen said D2 has already learnt a bitter lesson after being detained and lose her freedom since her arrest on 31 December 2019. It is submitted that it is highly unlikely that she would commit any further offence again.
D3
Born in Egypt, D3 is now aged 36 and he has a clear record. He first came to Hong Kong in 2008 as a visitor. He was married in 2013 and settled down in the city after the marriage. Now separated with his wife, he is living alone in a sub-divided unit in Argyle Street, Mongkok. He finished Grade 12 in Egypt. His wife and two sons (aged 6 and 3) are all in Hong Kong but living apart from him. Prior to his arrest, he worked as a construction site worker earning only $6,000 per month.
Mr. Yuen told the court that the first attacking incident took place near D3’s address in Argyle Street. It so happened that at that time, he was in the vicinity intending to go to a 7-11 convenient store to buy cigarettes. He saw a group of persons surrounding a person (PW1) and he overheard that PW1 had attacked a girl who was amongst the protestors. He went up to have a look. When PW1 fell onto the ground just in front of D3, he instinctively gave PW1 a kick without giving much thought. Soon after he left and continued his way to buy his cigarettes.
With hindsight, D3 believed that he might have misheard what was said. He was not very good at Cantonese and at that time it was very confusing with people shouting and yelling.
In mitigation, Mr. Yuen stressed D3’s clear record and his timely plea of guilty which saves the court’s time and avoiding the trouble of PW1 to have to come all the way to Hong Kong to testify during the pandemic. I was reminded that all he did was just one kick when PW1 fell right in front of him. He now felt deeply sorry for his stupidity in kicking PW1 without giving much thought of the serious consequence.
Mr. Yuen urged the court to give the two defendants a full one-third discount on account of their timely pleas and stated that both are prepared to compensate PW1 for his loss during the incident.
Sentencing Considerations
Whilst it is true that there was a certain political background to the commission of the two charges in this case, it is important to always emphasis that the responsibility of the court is to determine legal disputes only according to the law and it is certainly no part of the court’s function to determine political controversies or to promote any political viewpoints in the sentencing process.
At the time of these two offences, it is apparent that the protests on the streets were going more violent and out of control since the social movements started back in June 2019. Barricades and obstructions were wantonly erected on Nathan Road, one of the busiest road in Kowloon by the protestors blocking the traffic causing much inconvenience and seriously affected the freedom of movement of the travelling public at large and in this case, there were even senseless group attacks by the protesters on civilians who were apparently merely bystanders or passersby who they just thought was a mainlander or a policeman, causing the two victims battered, bloodied, dazed and seriously injured.
In their mitigations, all three defendants attempted to explain their involvements in the attacks by referring to their impressions at that time that the victims had either attacked or were about to attack other protestors. According to the Amended Summary of Facts and the videos shown in the court, however, neither of the two victims was ever seen attacking or threatened to attack any person at all. They were basically defenceless during the attacks. It is true that PW1 was seen holding a rectangular object in one of his hands in the video when he was walking on the street followed by the protestors but he never used the object to defend, not to mention retaliate, during the attack in the first incident.
In sentencing D1, I refer myself to what Zervos JA has said in HKSAR v ROKA Sijan, CACC 281/2017, 28 December 2018, unreported at paragraph 52:-
“52. Any form of violence must be visited by condign punishment in order to serve the purposes of retribution and deterrence. This is especially true in cases of wounding, where the element of the offence is that the offender intended to inflict really serious injury on the victim. Whilst there are no sentencing guidelines for wounding, it has been said that the usual range will be between 3 to 12 years’ imprisonment, although this will very much depend on the particular circumstances of each case. See HKSAR v Tse Hok Lam [2005] HKLRD 344 and HKSAR v Chun Sze Wing, CACC 289/2011, 14 June 2012, unreported at paragraph 12. However, we would add that in very serious cases of wounding, a sentence outside this range may well be warranted.”
The judgment went on to say that key factors in determining the appropriate level of sentence for the offence of wounding, include the nature and circumstances of the assault, the use of a weapon and the circumstances of its use, the defenceless state of the victim, and the nature and effect of the injuries suffered by the victim.
As said, the group attack on each of the two victims, in which D1 was a main participant, was a savage attack on a defenceless victim for no good reason other than ill-feelings or even hatred towards mainlanders and policemen in general who were perceived to be against their protest movements. Both victims sustained multiple injuries all over their bodies and the metal rod used by D1 no doubted caused the more serious lacerations on their head regions. The explanation by D1 that he was under an impression that the victims had attacked or about to attack other young protestors has to be rejected not only because the claim was unsubstantiated by the facts and also simply because, even if what he said was true, there is no place for any revenge attack or vigilante justice as far as mitigation is concerned.
That said, D1 is a person of hitherto clear record for 57 years and I accept that the present offence was committed when he was so carried away by the protestors around him and was totally out of his characters. Fortunately, the injuries suffered by both victims were not the most serious and were not permanent and they have since fully recovered. I also have the opportunity to examine the metal rod used by D1 during the attack in court. As already mentioned, it is not an extendable baton and it is also blunt and light in weight and therefore not comparable to other lethal weapons such as knife or baseball bat.
In each charge, in the case of D1, I consider a starting point of 4 years and 9 months’ imprisonment would be appropriate. The sentence on each charge will be reduced by one-third to 38 months on account of his guilty pleas which is the only effective mitigation. Taking all the sentencing factors into account, I consider that a global sentence of 50 months is appropriate to reflect D1’s overall criminality on these two charges.
The prosecution has confirmed that both victims were fully compensated for their medical expenses already and for that, D1 should receive a reduction for one month on each charge (2 months in total), thereby further reducing his total sentence to one of 48 months’ imprisonment. As a result, I order that 10 months’ imprisonment on Charge 2 to run consecutively with the 38 months’ imprisonment on Charge 1.
In the case of D2 and D3, they were convicted on a lesser offence under s.19 of Cap. 212. Both defendants should consider themselves very fortunate because of the lenient views taken by the prosecution on the roles played by them in this joint attack against PW1. In sentencing each of them, I adopt my earlier comment on the wicked nature of the attack by the group of protestors against PW1, and for whatever reason why they decided to take part in the assault, the scene was ugly and what they did were totally unacceptable however low their level of participations in the attack. I repeat that no matter what they genuinely believed PW1 has done to the other protestors, which was still unsubstantiated, they were not allowed to take the law into their own hands and together with a large group of assailants launched a revenge or preventive strike on a person who simply might have a different background or opinion.
By reason of the above, I consider that the present charge against D2 and D3 is still very serious even it was reduced into a lesser offence. While D2 maintained that she just gave PW1 a push when he fell back onto her, she was holding an umbrella during the attack and by that, she was obviously engaging in an attempt to conceal the identities of the assailants which must be condemned and in my mind, she was no less culpable as D3 who was actually kicking PW1 whilst he was already lying helplessly on the ground. Both defendants were not the main attackers who threw the majority of punches and kicks of course but it was a joint attack and in sentencing, I did not seek to distinguish the culpabilities between the two of them.
During mitigation, Mr. Yuen referred the court to the case of HKSAR v Cheng Hung Kwong and Another CACC 138/2009, 3 December 2009, unreported.
In that case, each of the two appellants was charged with two counts of wounding, contrary to s.19 of Cap. 212. It was alleged that they, together with other persons, wounded the two victims in the case. The 1st appellant pleaded guilty to his two counts while the 2nd appellant pleaded not guilty to his two counts but was convicted after trial.
The sentencing judge adopted a starting point of 21 months for each count. Both appeal against their sentences and the sentence was confirmed in the appeal.
The Court of Appeal described the case as an ugly affair of a group of thugs bullying innocent people and coming back several times over a period of hours, threatening them at close quarters and when the victims – one of them a woman – sought to escape the group of thugs who closed in on them, they were pursued and assaulted.
Although the background of the present case is not exactly the same as the case cited above, it was submitted that it bears some striking similarities in that the victims, a husband and a wife, who operated a cooked-food shop were attacked by a group of four men gathered outside the shop for no good reason. The injuries sustained by the couple were also not too serious including redness, swelling, abrasions and lacerations over the bodies.
Mr. Yuen submitted that both D2 and D3 were just carried away by the atmosphere at the time of the offence and this is not a case involving any premeditation. Admittedly, this case is a serious one but at the same time it gives both defendants a bitter lesson and neither of them is going to commit any further offence again in future. They are prepared to accept the consequence of their recklessness. Mr. Yuen suggested that a starting point in the region of 20 – 24 months is appropriate for a first-time offender like the two defendants.
Both defendants are of previous good characters but their behaviours in the attack were no different from a group of thugs or local bullies who intimidated or even attacked innocent people at will on the street. There were more number of attackers in this case than the case cited although the duration of attack was much shorter. Taking all the factors and the circumstances into account, however, I consider a starting point of 24 months’ imprisonment is appropriate for each defendant. Both defendants are entitled a full one-third discount because of their guilty pleas and also, in each case, I will further reduce the sentence by 1 month on account of their efforts to fully compensate PW1. The resulting sentence for D2 and D3 is therefore one of 15 months’ imprisonment respectively.
(A Kwok)
District Judge
DCCC154/2020
郭啟安
區院
認罪
罪成
清潔工
57
蓄意嚴重傷人
判囚
48
10/06/2019
旺角
DCCC 154/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 154 OF 2020
—————————-
HKSAR
v
LAW WAI WAH (D1)
WONG YEE TING (D2)
SOLIMAN AHMED FAWZI ELSAYED (D3)
—————————-
Before: HH Judge A Kwok
Date: 28 October 2020
Present: Mr. Ng Wing Kit, Public Prosecutor, for HKSAR
Miss Nam Hoi Yan Fiona, instructed by Cheung & Liu, assigned by the Director of Legal Aid, for the 1st defendant
Mr. Yuen Wai Ming Anthony, instructed by Bond Ng Solicitors, assigned by the Director of Legal Aid, for the 2nd and 3rd defendants
Offence: [1] & [2] Causing grievous bodily harm with intent (有意圖 而導致身體受嚴重傷害)
—————————————-
REASONS FOR SENTENCE
—————————————-
Introduction
Since June 2019, Hong Kong experienced a series of protests in opposition to the introduction of the Fugitive Offenders (Amendment) Bill by the government. The initial peaceful rallies have since escalated into serious social unrest and public disorder in the territory.
The present case alleged two attacking incidents in a public place on two victims who were just passersby at the material time by a group of protestors assembled in the area of Nathan Road and Argyle street, Mongkok, Kowloon on two consecutive days on 5 and 6 October, 2019.
D1, D2 and D3 were jointly charged with one count of causing grievous bodily harm to male X with intent, together with other persons unknown, contrary to s 17(a) of the Offences against the Person Ordinance, Cap. 212 (Charge 1) and D1 was further and separately charged with another count of causing grievous bodily harm to male Y with intent, together with other unknown persons, at the same area on the following night, under the same provision. (Charge 2)
D1 pleaded guilty to both charges. D2 and D3 pleaded not guilty to Charge 1 but pleaded guilty to the lesser charge of inflicting grievous bodily harm, contrary to s.19 of the Offences against the Person Ordinance, Cap. 212. As a result of plea bargaining, their pleas were accepted by the prosecution.
Facts
Charge 1
According to the Amended Summary of Facts, in the evening on 5 October 2019, a large number of protestors assembled in various areas in the Mongkok area as part of the protests since June 2019. At around mid-night, PW1 (Male X), a visitor from Mainland, was walking back to his hostel in Mongkok after getting off the bus at Nathan Road. A female confronted him and identified him as a Mainlander. She pulled his clothes and prevented him to leave. PW1 tried to leave and felt frightened. The act caught the attention of others (of about 30 persons dressed in black) who were present in the area at the time. PW1 was then surrounded by a large number of persons including the three defendants. The persons in the group began to assault him as he moved from Nathan Road into Argyle Street towards the hostel where he was staying at.
Part of the incident of Charge 1 was captured by an open source video which was played in the court. The Amended Summary of Facts described the events which were captured by the video in the following sequence implicating the three defendants: –
(a) D2, who was unmasked with her facial appearance captured, holding an opened rainbow-coloured umbrella and dressed in a pink and red dress, was among the first assailants who began to chase after PW1. She followed PW1 to Argyle Street where PW1 was pushed to the ground by others at the junction of Argyle Street and Sai Yeung Choi Street South. Her opened umbrella covered some of the assailants as they began to assault PW1. It was not raining at the time.
(b) Among the group of assailants assaulting PW1, D1 who was unmasked and with his facial appearance clearly captured assaulted PW1 with a rod-shaped object. D2 pushed PW1 from behind when other assailants were assaulting PW1. D3 kicked PW1 when he was on the ground. He was unmasked at the time with his facial appearance clearly captured. Further, there is a distinctive tattoo on his left forearm which was exposed as he was wearing a black T-shirt.
(c) During the incident, someone had shouted words to the effect “open umbrella”, that PW1 had taken photos of the persons in the area, and that PW1 was holding a brick in his hand.
(d) The open-source video captured PW1 as holding an object in his hand but he never used it.
Throughout the assault, PW1 tried and continued to move towards the hostel. As he moved towards the carriageway on Argyle Street outside Sin Tat Plaza, the assault upon him continued. The same coloured umbrella held by D2 appeared in the video blocking the view especially after someone shouted for umbrellas to cover the act, although the facial appearance of the person holding the umbrella could not be shown at that point in the video. The video was not able to capture D1 at this stage of events.
The video shown in court showed that PW1 was savagely attacked by a group of assailants on the ground. The collar of his upper-garment was torn widely open and he was bleeding profusely after the attack. The video footage lasted for about 4 minutes. Eventually at about 0100 hours on 6 October 2019, PW1 returned to the hostel and the case was reported. He was taken to Kwong Wah Hospital for treatment but PW1 requested to be discharged against medical advice. PW1 was diagnosed to suffer from bruises over upper lip, abrasions over left zygomatic region, bilateral hands and left knee, tenderness and swelling over left shin, and a large hematoma and laceration (1 cm x 0.5 cm) over occipital scalp as a result of the incident.
On 9 October 2019, PW1 went to the hospital again for medical treatment. Detailed examination on that day revealed that he was found to have multiple injuries, mostly in the form of bruises and abrasions. A more detailed account of PW1’s bodily injuries can be found in paragraph 7 of the Amended Summary of Facts. I am not going to list them out individually. Suffice it to say that PW1 was found to have no less than 11 patches of bruises and some abrasions on various parts of his body from head down to his knees and a spot of hemorrhage on the lateral aspect of right eyeball.
PW1 has since fully recovered from his injuries.
During the incident, PW1 lost some of his personal properties including cash (RMB 800 and $500), bank cards, Octopus Card, and his mobile phone and earphones which were taken away by the assailants.
Charge 2
At about 0200 hours on 6 October 2019, PW2 (Male Y) and his friend took a taxi in the area of Nathan Road and Argyle Street after dinner and drinks but the taxi could not proceed further as barricades and obstructions were erected by the protesters on the road. When PW2 walked along Nathan Road towards Tai Kok Tsui to return home, he moved away some of the items which obstructed his way at the junction of Argyle Street and Nathan Road. PW2 was then confronted by 10 odd persons dressed in black who alleged him to be a police officer. Flashlight was shone on him. Despite PW2’s denial and explanation that he was only about to go home, the group proceeded to assault him. PW2 ran towards one of the assailants, whereupon others began to assault him repeatedly with punches and kicks as well as bamboo sticks. Part of the incident was captured by another open-source video, also played in court. The video captured in particular that D1 was one of the assailants and he assaulted PW2 twice by hitting him with a rod-shaped object. D1 was in the same clothing items and unmasked as was in the previous attacking incident.
The incident stopped when PW2’s friend intervened and told others that PW2 was simply drunk.
PW2 was also shown to be bleeding profusely in the video. Some persons purporting to be first-aiders approached PW2 and later he was taken by ambulance to hospital for treatment. Medical report showed that PW2 was at the time under the influence of alcohol. Medical examination at the A&E Department of Kwong Wah Hospital found that PW2 suffered from the following injuries :-
(a) Y-shaped laceration wound over vertex;
(b) Multiple abrasions over right eyebrow, right arm, right hand and both legs;
(c) Bruising and tenderness over right forearm; and
(d) Movement of right upper limb was found to be reduced and limited by pain
PW2 was admitted to hospital from 6 to 9 October 2019. A total of 23 days of sick leave was granted by the hospital as well as a private doctor from whom PW2 sought further medical treatment. PW2 also spent $6,320 for private treatment by Chinese medical practitioner to improve his elbow movement after the attack. PW2 has since fully recovered from his injuries.
Arrest of D1-D3
D1 was arrested at his residence on 31 December 2019. Upon arrest and under caution, D1 stated that at the material time, he went to the offence location to look after the young persons who took part in the protests. He admitted to the offences in both incidents. House search recovered the clothing items he wore during the offences and the rod-shaped object which he used. The rod was made in metal and adjustable in length, but is not an extendable baton operable by gravity or centrifugal force.
D2 was arrested at her residence on 31 December 2019. Under caution, D2 remained silent.
D3 was arrested at the Hong Kong International Airport on 10 February 2020 as he was seeking to leave Hong Kong. D3 denied to have participated in any unlawful assembly and denied to have committed Charge 1 or that he was the person shown in the open-source video.
Mitigations
D1
D1 is now 57 years old and has a clear record. He was born in Hong Kong and was only educated up to Primary 6 level. He entered the work force since he was 14. Prior to the arrest, he worked as a cleaning worker on a casual basis earning about $15,000 per month. He resided with his wife and stepson (aged 17) at a rented premise. His wife however filed for divorce after his arrest.
D1 was remanded in custody after his arrest on 31 December 2019.
Miss Nam for D1, has said all she can say on his behalf. In her written mitigation, she described D1 as being a law-abiding citizen for his entire life before these two offences and the acts that he has committed during the two incidents were totally out of his character. At the time of the offences, Miss Nam said D1 truly felt for the younger generations who were eager to see changes to the society and wanted to support them in last year’s social movements. At the same time, he was worried about the safety of young people who participated in social events and he wanted to do his part to protect them. What triggered his actions, I was told, were rumors that the two victims were about to attack the protesters at the time of the two incidents. There were people chasing after PW1 accusing him of attempting to use a brick to attack the protestors, and during the second incident, another group of protestors chased after PW2 who was heavily drunk, accusing him of using the materials he removed from the barricades to attack the protestors. That was why D1 impulsively resorted to violence and attacked the victims. Miss Nam emphasized that she made this statement as an explanation for D1’s acts not as an excuse.
Further, Reverend Mella Francesco who has known D1 since 2015 described him as a compassionate person who was willing to extend help to those in need. During his prison visits to D1 after he was remanded in custody, D1 expressed deep remorse and he wanted to apologise to the victims in the open court. A mitigation letter from the Reverend and a church worker was submitted for my consideration.
In summary, Miss Nam emphasised the following mitigating factors on behalf of D1:-
(i) D1 pleads guilty to all the charges at the earliest opportunity, reflecting his genuine remorse;
(ii) D1 made full admissions under caution;
(iii) D1 has a clear record, meaning he has remained law-abiding for his entire life;
(iv) The injuries suffered by the two victims are not the most serious and not permanent in nature; and
(v) D1 is willing to make compensation to the victims.
Finally, I was urged to take into account the above and the totality principle in sentencing and to extend leniency towards D1.
D2
D2 is aged 23 and has a clear record. She completed Form 3 level. She is still single and prior to her arrest, was living with parents and her younger brother (aged 19) in a public housing in Tsuen Wan. D2 worked as a saleslady at time of arrest, earning $15,000 per month.
Her counsel, Mr. Yuen, told the court that D2 joined a protest at an earlier time in Mongkok on that evening. At the material time, she was planning to return home. When she was at the scene, she noticed that PW1 was holding a piece of brick and looked very hostile. She also heard people around shouting that PW1 was to attack other protestors.
D2, out of curiosity, followed PW1 to see what he was going to do to other protestors. It was at that time that those people around PW1 started to push him and attack him. When PW1 lost his balance and fell towards D2 at one stage, she just pushed him away.
When people shouted to those who had umbrella to open it, she understood it was intended to cover up the identity of protestors from camera or CCTV. She just instinctively followed the words of the others and did accordingly.
In mitigation, Mr. Yuen emphasized D2’s plea of guilty and the fact that it is the first time ever that she committed any offence. At the material time, she was just so carried away by the atmosphere at that particular moment and she first followed PW1 with the intention to see whether he was going to attack other protestors, not to hurt him. All she actually did was to cover up the identity of other assailants by holding her umbrella and she had a push of PW1 when he lost balance and fell towards her. Otherwise, she herself did not attack PW1 at all. She now fully appreciated that it is wrong for anyone to take the law into their hands even if PW1 was going to attack others. She felt extremely remorseful. She also felt terribly sorry that she has caused great concern to her family members, in particular, her parents, as well as those who care about her, including but not limited to her friends, ex-employer, current employer at time of offence and social worker who had come to know her previously. In mitigation, I have received a letter by D2 herself and letters from those people. I do not intend to repeat the contents of those letters. Suffice it to say that D2 is now extremely remorseful for what she had done and the others were all shock to learn about D2’s involvement in the attack and commented that it was totally out of her character and asked the court to be as lenient as possible. Mr. Yuen said D2 has already learnt a bitter lesson after being detained and lose her freedom since her arrest on 31 December 2019. It is submitted that it is highly unlikely that she would commit any further offence again.
D3
Born in Egypt, D3 is now aged 36 and he has a clear record. He first came to Hong Kong in 2008 as a visitor. He was married in 2013 and settled down in the city after the marriage. Now separated with his wife, he is living alone in a sub-divided unit in Argyle Street, Mongkok. He finished Grade 12 in Egypt. His wife and two sons (aged 6 and 3) are all in Hong Kong but living apart from him. Prior to his arrest, he worked as a construction site worker earning only $6,000 per month.
Mr. Yuen told the court that the first attacking incident took place near D3’s address in Argyle Street. It so happened that at that time, he was in the vicinity intending to go to a 7-11 convenient store to buy cigarettes. He saw a group of persons surrounding a person (PW1) and he overheard that PW1 had attacked a girl who was amongst the protestors. He went up to have a look. When PW1 fell onto the ground just in front of D3, he instinctively gave PW1 a kick without giving much thought. Soon after he left and continued his way to buy his cigarettes.
With hindsight, D3 believed that he might have misheard what was said. He was not very good at Cantonese and at that time it was very confusing with people shouting and yelling.
In mitigation, Mr. Yuen stressed D3’s clear record and his timely plea of guilty which saves the court’s time and avoiding the trouble of PW1 to have to come all the way to Hong Kong to testify during the pandemic. I was reminded that all he did was just one kick when PW1 fell right in front of him. He now felt deeply sorry for his stupidity in kicking PW1 without giving much thought of the serious consequence.
Mr. Yuen urged the court to give the two defendants a full one-third discount on account of their timely pleas and stated that both are prepared to compensate PW1 for his loss during the incident.
Sentencing Considerations
Whilst it is true that there was a certain political background to the commission of the two charges in this case, it is important to always emphasis that the responsibility of the court is to determine legal disputes only according to the law and it is certainly no part of the court’s function to determine political controversies or to promote any political viewpoints in the sentencing process.
At the time of these two offences, it is apparent that the protests on the streets were going more violent and out of control since the social movements started back in June 2019. Barricades and obstructions were wantonly erected on Nathan Road, one of the busiest road in Kowloon by the protestors blocking the traffic causing much inconvenience and seriously affected the freedom of movement of the travelling public at large and in this case, there were even senseless group attacks by the protesters on civilians who were apparently merely bystanders or passersby who they just thought was a mainlander or a policeman, causing the two victims battered, bloodied, dazed and seriously injured.
In their mitigations, all three defendants attempted to explain their involvements in the attacks by referring to their impressions at that time that the victims had either attacked or were about to attack other protestors. According to the Amended Summary of Facts and the videos shown in the court, however, neither of the two victims was ever seen attacking or threatened to attack any person at all. They were basically defenceless during the attacks. It is true that PW1 was seen holding a rectangular object in one of his hands in the video when he was walking on the street followed by the protestors but he never used the object to defend, not to mention retaliate, during the attack in the first incident.
In sentencing D1, I refer myself to what Zervos JA has said in HKSAR v ROKA Sijan, CACC 281/2017, 28 December 2018, unreported at paragraph 52:-
“52. Any form of violence must be visited by condign punishment in order to serve the purposes of retribution and deterrence. This is especially true in cases of wounding, where the element of the offence is that the offender intended to inflict really serious injury on the victim. Whilst there are no sentencing guidelines for wounding, it has been said that the usual range will be between 3 to 12 years’ imprisonment, although this will very much depend on the particular circumstances of each case. See HKSAR v Tse Hok Lam [2005] HKLRD 344 and HKSAR v Chun Sze Wing, CACC 289/2011, 14 June 2012, unreported at paragraph 12. However, we would add that in very serious cases of wounding, a sentence outside this range may well be warranted.”
The judgment went on to say that key factors in determining the appropriate level of sentence for the offence of wounding, include the nature and circumstances of the assault, the use of a weapon and the circumstances of its use, the defenceless state of the victim, and the nature and effect of the injuries suffered by the victim.
As said, the group attack on each of the two victims, in which D1 was a main participant, was a savage attack on a defenceless victim for no good reason other than ill-feelings or even hatred towards mainlanders and policemen in general who were perceived to be against their protest movements. Both victims sustained multiple injuries all over their bodies and the metal rod used by D1 no doubted caused the more serious lacerations on their head regions. The explanation by D1 that he was under an impression that the victims had attacked or about to attack other young protestors has to be rejected not only because the claim was unsubstantiated by the facts and also simply because, even if what he said was true, there is no place for any revenge attack or vigilante justice as far as mitigation is concerned.
That said, D1 is a person of hitherto clear record for 57 years and I accept that the present offence was committed when he was so carried away by the protestors around him and was totally out of his characters. Fortunately, the injuries suffered by both victims were not the most serious and were not permanent and they have since fully recovered. I also have the opportunity to examine the metal rod used by D1 during the attack in court. As already mentioned, it is not an extendable baton and it is also blunt and light in weight and therefore not comparable to other lethal weapons such as knife or baseball bat.
In each charge, in the case of D1, I consider a starting point of 4 years and 9 months’ imprisonment would be appropriate. The sentence on each charge will be reduced by one-third to 38 months on account of his guilty pleas which is the only effective mitigation. Taking all the sentencing factors into account, I consider that a global sentence of 50 months is appropriate to reflect D1’s overall criminality on these two charges.
The prosecution has confirmed that both victims were fully compensated for their medical expenses already and for that, D1 should receive a reduction for one month on each charge (2 months in total), thereby further reducing his total sentence to one of 48 months’ imprisonment. As a result, I order that 10 months’ imprisonment on Charge 2 to run consecutively with the 38 months’ imprisonment on Charge 1.
In the case of D2 and D3, they were convicted on a lesser offence under s.19 of Cap. 212. Both defendants should consider themselves very fortunate because of the lenient views taken by the prosecution on the roles played by them in this joint attack against PW1. In sentencing each of them, I adopt my earlier comment on the wicked nature of the attack by the group of protestors against PW1, and for whatever reason why they decided to take part in the assault, the scene was ugly and what they did were totally unacceptable however low their level of participations in the attack. I repeat that no matter what they genuinely believed PW1 has done to the other protestors, which was still unsubstantiated, they were not allowed to take the law into their own hands and together with a large group of assailants launched a revenge or preventive strike on a person who simply might have a different background or opinion.
By reason of the above, I consider that the present charge against D2 and D3 is still very serious even it was reduced into a lesser offence. While D2 maintained that she just gave PW1 a push when he fell back onto her, she was holding an umbrella during the attack and by that, she was obviously engaging in an attempt to conceal the identities of the assailants which must be condemned and in my mind, she was no less culpable as D3 who was actually kicking PW1 whilst he was already lying helplessly on the ground. Both defendants were not the main attackers who threw the majority of punches and kicks of course but it was a joint attack and in sentencing, I did not seek to distinguish the culpabilities between the two of them.
During mitigation, Mr. Yuen referred the court to the case of HKSAR v Cheng Hung Kwong and Another CACC 138/2009, 3 December 2009, unreported.
In that case, each of the two appellants was charged with two counts of wounding, contrary to s.19 of Cap. 212. It was alleged that they, together with other persons, wounded the two victims in the case. The 1st appellant pleaded guilty to his two counts while the 2nd appellant pleaded not guilty to his two counts but was convicted after trial.
The sentencing judge adopted a starting point of 21 months for each count. Both appeal against their sentences and the sentence was confirmed in the appeal.
The Court of Appeal described the case as an ugly affair of a group of thugs bullying innocent people and coming back several times over a period of hours, threatening them at close quarters and when the victims – one of them a woman – sought to escape the group of thugs who closed in on them, they were pursued and assaulted.
Although the background of the present case is not exactly the same as the case cited above, it was submitted that it bears some striking similarities in that the victims, a husband and a wife, who operated a cooked-food shop were attacked by a group of four men gathered outside the shop for no good reason. The injuries sustained by the couple were also not too serious including redness, swelling, abrasions and lacerations over the bodies.
Mr. Yuen submitted that both D2 and D3 were just carried away by the atmosphere at the time of the offence and this is not a case involving any premeditation. Admittedly, this case is a serious one but at the same time it gives both defendants a bitter lesson and neither of them is going to commit any further offence again in future. They are prepared to accept the consequence of their recklessness. Mr. Yuen suggested that a starting point in the region of 20 – 24 months is appropriate for a first-time offender like the two defendants.
Both defendants are of previous good characters but their behaviours in the attack were no different from a group of thugs or local bullies who intimidated or even attacked innocent people at will on the street. There were more number of attackers in this case than the case cited although the duration of attack was much shorter. Taking all the factors and the circumstances into account, however, I consider a starting point of 24 months’ imprisonment is appropriate for each defendant. Both defendants are entitled a full one-third discount because of their guilty pleas and also, in each case, I will further reduce the sentence by 1 month on account of their efforts to fully compensate PW1. The resulting sentence for D2 and D3 is therefore one of 15 months’ imprisonment respectively.
(A Kwok)
District Judge
DCCC154/2020
郭啟安
區院
認罪
罪成
售貨員
22
傷人或對他人身體加以嚴重傷害
判囚
15
10/06/2019
旺角
DCCC 154/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 154 OF 2020
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HKSAR
v
LAW WAI WAH (D1)
WONG YEE TING (D2)
SOLIMAN AHMED FAWZI ELSAYED (D3)
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Before: HH Judge A Kwok
Date: 28 October 2020
Present: Mr. Ng Wing Kit, Public Prosecutor, for HKSAR
Miss Nam Hoi Yan Fiona, instructed by Cheung & Liu, assigned by the Director of Legal Aid, for the 1st defendant
Mr. Yuen Wai Ming Anthony, instructed by Bond Ng Solicitors, assigned by the Director of Legal Aid, for the 2nd and 3rd defendants
Offence: [1] & [2] Causing grievous bodily harm with intent (有意圖 而導致身體受嚴重傷害)
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REASONS FOR SENTENCE
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Introduction
Since June 2019, Hong Kong experienced a series of protests in opposition to the introduction of the Fugitive Offenders (Amendment) Bill by the government. The initial peaceful rallies have since escalated into serious social unrest and public disorder in the territory.
The present case alleged two attacking incidents in a public place on two victims who were just passersby at the material time by a group of protestors assembled in the area of Nathan Road and Argyle street, Mongkok, Kowloon on two consecutive days on 5 and 6 October, 2019.
D1, D2 and D3 were jointly charged with one count of causing grievous bodily harm to male X with intent, together with other persons unknown, contrary to s 17(a) of the Offences against the Person Ordinance, Cap. 212 (Charge 1) and D1 was further and separately charged with another count of causing grievous bodily harm to male Y with intent, together with other unknown persons, at the same area on the following night, under the same provision. (Charge 2)
D1 pleaded guilty to both charges. D2 and D3 pleaded not guilty to Charge 1 but pleaded guilty to the lesser charge of inflicting grievous bodily harm, contrary to s.19 of the Offences against the Person Ordinance, Cap. 212. As a result of plea bargaining, their pleas were accepted by the prosecution.
Facts
Charge 1
According to the Amended Summary of Facts, in the evening on 5 October 2019, a large number of protestors assembled in various areas in the Mongkok area as part of the protests since June 2019. At around mid-night, PW1 (Male X), a visitor from Mainland, was walking back to his hostel in Mongkok after getting off the bus at Nathan Road. A female confronted him and identified him as a Mainlander. She pulled his clothes and prevented him to leave. PW1 tried to leave and felt frightened. The act caught the attention of others (of about 30 persons dressed in black) who were present in the area at the time. PW1 was then surrounded by a large number of persons including the three defendants. The persons in the group began to assault him as he moved from Nathan Road into Argyle Street towards the hostel where he was staying at.
Part of the incident of Charge 1 was captured by an open source video which was played in the court. The Amended Summary of Facts described the events which were captured by the video in the following sequence implicating the three defendants: –
(a) D2, who was unmasked with her facial appearance captured, holding an opened rainbow-coloured umbrella and dressed in a pink and red dress, was among the first assailants who began to chase after PW1. She followed PW1 to Argyle Street where PW1 was pushed to the ground by others at the junction of Argyle Street and Sai Yeung Choi Street South. Her opened umbrella covered some of the assailants as they began to assault PW1. It was not raining at the time.
(b) Among the group of assailants assaulting PW1, D1 who was unmasked and with his facial appearance clearly captured assaulted PW1 with a rod-shaped object. D2 pushed PW1 from behind when other assailants were assaulting PW1. D3 kicked PW1 when he was on the ground. He was unmasked at the time with his facial appearance clearly captured. Further, there is a distinctive tattoo on his left forearm which was exposed as he was wearing a black T-shirt.
(c) During the incident, someone had shouted words to the effect “open umbrella”, that PW1 had taken photos of the persons in the area, and that PW1 was holding a brick in his hand.
(d) The open-source video captured PW1 as holding an object in his hand but he never used it.
Throughout the assault, PW1 tried and continued to move towards the hostel. As he moved towards the carriageway on Argyle Street outside Sin Tat Plaza, the assault upon him continued. The same coloured umbrella held by D2 appeared in the video blocking the view especially after someone shouted for umbrellas to cover the act, although the facial appearance of the person holding the umbrella could not be shown at that point in the video. The video was not able to capture D1 at this stage of events.
The video shown in court showed that PW1 was savagely attacked by a group of assailants on the ground. The collar of his upper-garment was torn widely open and he was bleeding profusely after the attack. The video footage lasted for about 4 minutes. Eventually at about 0100 hours on 6 October 2019, PW1 returned to the hostel and the case was reported. He was taken to Kwong Wah Hospital for treatment but PW1 requested to be discharged against medical advice. PW1 was diagnosed to suffer from bruises over upper lip, abrasions over left zygomatic region, bilateral hands and left knee, tenderness and swelling over left shin, and a large hematoma and laceration (1 cm x 0.5 cm) over occipital scalp as a result of the incident.
On 9 October 2019, PW1 went to the hospital again for medical treatment. Detailed examination on that day revealed that he was found to have multiple injuries, mostly in the form of bruises and abrasions. A more detailed account of PW1’s bodily injuries can be found in paragraph 7 of the Amended Summary of Facts. I am not going to list them out individually. Suffice it to say that PW1 was found to have no less than 11 patches of bruises and some abrasions on various parts of his body from head down to his knees and a spot of hemorrhage on the lateral aspect of right eyeball.
PW1 has since fully recovered from his injuries.
During the incident, PW1 lost some of his personal properties including cash (RMB 800 and $500), bank cards, Octopus Card, and his mobile phone and earphones which were taken away by the assailants.
Charge 2
At about 0200 hours on 6 October 2019, PW2 (Male Y) and his friend took a taxi in the area of Nathan Road and Argyle Street after dinner and drinks but the taxi could not proceed further as barricades and obstructions were erected by the protesters on the road. When PW2 walked along Nathan Road towards Tai Kok Tsui to return home, he moved away some of the items which obstructed his way at the junction of Argyle Street and Nathan Road. PW2 was then confronted by 10 odd persons dressed in black who alleged him to be a police officer. Flashlight was shone on him. Despite PW2’s denial and explanation that he was only about to go home, the group proceeded to assault him. PW2 ran towards one of the assailants, whereupon others began to assault him repeatedly with punches and kicks as well as bamboo sticks. Part of the incident was captured by another open-source video, also played in court. The video captured in particular that D1 was one of the assailants and he assaulted PW2 twice by hitting him with a rod-shaped object. D1 was in the same clothing items and unmasked as was in the previous attacking incident.
The incident stopped when PW2’s friend intervened and told others that PW2 was simply drunk.
PW2 was also shown to be bleeding profusely in the video. Some persons purporting to be first-aiders approached PW2 and later he was taken by ambulance to hospital for treatment. Medical report showed that PW2 was at the time under the influence of alcohol. Medical examination at the A&E Department of Kwong Wah Hospital found that PW2 suffered from the following injuries :-
(a) Y-shaped laceration wound over vertex;
(b) Multiple abrasions over right eyebrow, right arm, right hand and both legs;
(c) Bruising and tenderness over right forearm; and
(d) Movement of right upper limb was found to be reduced and limited by pain
PW2 was admitted to hospital from 6 to 9 October 2019. A total of 23 days of sick leave was granted by the hospital as well as a private doctor from whom PW2 sought further medical treatment. PW2 also spent $6,320 for private treatment by Chinese medical practitioner to improve his elbow movement after the attack. PW2 has since fully recovered from his injuries.
Arrest of D1-D3
D1 was arrested at his residence on 31 December 2019. Upon arrest and under caution, D1 stated that at the material time, he went to the offence location to look after the young persons who took part in the protests. He admitted to the offences in both incidents. House search recovered the clothing items he wore during the offences and the rod-shaped object which he used. The rod was made in metal and adjustable in length, but is not an extendable baton operable by gravity or centrifugal force.
D2 was arrested at her residence on 31 December 2019. Under caution, D2 remained silent.
D3 was arrested at the Hong Kong International Airport on 10 February 2020 as he was seeking to leave Hong Kong. D3 denied to have participated in any unlawful assembly and denied to have committed Charge 1 or that he was the person shown in the open-source video.
Mitigations
D1
D1 is now 57 years old and has a clear record. He was born in Hong Kong and was only educated up to Primary 6 level. He entered the work force since he was 14. Prior to the arrest, he worked as a cleaning worker on a casual basis earning about $15,000 per month. He resided with his wife and stepson (aged 17) at a rented premise. His wife however filed for divorce after his arrest.
D1 was remanded in custody after his arrest on 31 December 2019.
Miss Nam for D1, has said all she can say on his behalf. In her written mitigation, she described D1 as being a law-abiding citizen for his entire life before these two offences and the acts that he has committed during the two incidents were totally out of his character. At the time of the offences, Miss Nam said D1 truly felt for the younger generations who were eager to see changes to the society and wanted to support them in last year’s social movements. At the same time, he was worried about the safety of young people who participated in social events and he wanted to do his part to protect them. What triggered his actions, I was told, were rumors that the two victims were about to attack the protesters at the time of the two incidents. There were people chasing after PW1 accusing him of attempting to use a brick to attack the protestors, and during the second incident, another group of protestors chased after PW2 who was heavily drunk, accusing him of using the materials he removed from the barricades to attack the protestors. That was why D1 impulsively resorted to violence and attacked the victims. Miss Nam emphasized that she made this statement as an explanation for D1’s acts not as an excuse.
Further, Reverend Mella Francesco who has known D1 since 2015 described him as a compassionate person who was willing to extend help to those in need. During his prison visits to D1 after he was remanded in custody, D1 expressed deep remorse and he wanted to apologise to the victims in the open court. A mitigation letter from the Reverend and a church worker was submitted for my consideration.
In summary, Miss Nam emphasised the following mitigating factors on behalf of D1:-
(i) D1 pleads guilty to all the charges at the earliest opportunity, reflecting his genuine remorse;
(ii) D1 made full admissions under caution;
(iii) D1 has a clear record, meaning he has remained law-abiding for his entire life;
(iv) The injuries suffered by the two victims are not the most serious and not permanent in nature; and
(v) D1 is willing to make compensation to the victims.
Finally, I was urged to take into account the above and the totality principle in sentencing and to extend leniency towards D1.
D2
D2 is aged 23 and has a clear record. She completed Form 3 level. She is still single and prior to her arrest, was living with parents and her younger brother (aged 19) in a public housing in Tsuen Wan. D2 worked as a saleslady at time of arrest, earning $15,000 per month.
Her counsel, Mr. Yuen, told the court that D2 joined a protest at an earlier time in Mongkok on that evening. At the material time, she was planning to return home. When she was at the scene, she noticed that PW1 was holding a piece of brick and looked very hostile. She also heard people around shouting that PW1 was to attack other protestors.
D2, out of curiosity, followed PW1 to see what he was going to do to other protestors. It was at that time that those people around PW1 started to push him and attack him. When PW1 lost his balance and fell towards D2 at one stage, she just pushed him away.
When people shouted to those who had umbrella to open it, she understood it was intended to cover up the identity of protestors from camera or CCTV. She just instinctively followed the words of the others and did accordingly.
In mitigation, Mr. Yuen emphasized D2’s plea of guilty and the fact that it is the first time ever that she committed any offence. At the material time, she was just so carried away by the atmosphere at that particular moment and she first followed PW1 with the intention to see whether he was going to attack other protestors, not to hurt him. All she actually did was to cover up the identity of other assailants by holding her umbrella and she had a push of PW1 when he lost balance and fell towards her. Otherwise, she herself did not attack PW1 at all. She now fully appreciated that it is wrong for anyone to take the law into their hands even if PW1 was going to attack others. She felt extremely remorseful. She also felt terribly sorry that she has caused great concern to her family members, in particular, her parents, as well as those who care about her, including but not limited to her friends, ex-employer, current employer at time of offence and social worker who had come to know her previously. In mitigation, I have received a letter by D2 herself and letters from those people. I do not intend to repeat the contents of those letters. Suffice it to say that D2 is now extremely remorseful for what she had done and the others were all shock to learn about D2’s involvement in the attack and commented that it was totally out of her character and asked the court to be as lenient as possible. Mr. Yuen said D2 has already learnt a bitter lesson after being detained and lose her freedom since her arrest on 31 December 2019. It is submitted that it is highly unlikely that she would commit any further offence again.
D3
Born in Egypt, D3 is now aged 36 and he has a clear record. He first came to Hong Kong in 2008 as a visitor. He was married in 2013 and settled down in the city after the marriage. Now separated with his wife, he is living alone in a sub-divided unit in Argyle Street, Mongkok. He finished Grade 12 in Egypt. His wife and two sons (aged 6 and 3) are all in Hong Kong but living apart from him. Prior to his arrest, he worked as a construction site worker earning only $6,000 per month.
Mr. Yuen told the court that the first attacking incident took place near D3’s address in Argyle Street. It so happened that at that time, he was in the vicinity intending to go to a 7-11 convenient store to buy cigarettes. He saw a group of persons surrounding a person (PW1) and he overheard that PW1 had attacked a girl who was amongst the protestors. He went up to have a look. When PW1 fell onto the ground just in front of D3, he instinctively gave PW1 a kick without giving much thought. Soon after he left and continued his way to buy his cigarettes.
With hindsight, D3 believed that he might have misheard what was said. He was not very good at Cantonese and at that time it was very confusing with people shouting and yelling.
In mitigation, Mr. Yuen stressed D3’s clear record and his timely plea of guilty which saves the court’s time and avoiding the trouble of PW1 to have to come all the way to Hong Kong to testify during the pandemic. I was reminded that all he did was just one kick when PW1 fell right in front of him. He now felt deeply sorry for his stupidity in kicking PW1 without giving much thought of the serious consequence.
Mr. Yuen urged the court to give the two defendants a full one-third discount on account of their timely pleas and stated that both are prepared to compensate PW1 for his loss during the incident.
Sentencing Considerations
Whilst it is true that there was a certain political background to the commission of the two charges in this case, it is important to always emphasis that the responsibility of the court is to determine legal disputes only according to the law and it is certainly no part of the court’s function to determine political controversies or to promote any political viewpoints in the sentencing process.
At the time of these two offences, it is apparent that the protests on the streets were going more violent and out of control since the social movements started back in June 2019. Barricades and obstructions were wantonly erected on Nathan Road, one of the busiest road in Kowloon by the protestors blocking the traffic causing much inconvenience and seriously affected the freedom of movement of the travelling public at large and in this case, there were even senseless group attacks by the protesters on civilians who were apparently merely bystanders or passersby who they just thought was a mainlander or a policeman, causing the two victims battered, bloodied, dazed and seriously injured.
In their mitigations, all three defendants attempted to explain their involvements in the attacks by referring to their impressions at that time that the victims had either attacked or were about to attack other protestors. According to the Amended Summary of Facts and the videos shown in the court, however, neither of the two victims was ever seen attacking or threatened to attack any person at all. They were basically defenceless during the attacks. It is true that PW1 was seen holding a rectangular object in one of his hands in the video when he was walking on the street followed by the protestors but he never used the object to defend, not to mention retaliate, during the attack in the first incident.
In sentencing D1, I refer myself to what Zervos JA has said in HKSAR v ROKA Sijan, CACC 281/2017, 28 December 2018, unreported at paragraph 52:-
“52. Any form of violence must be visited by condign punishment in order to serve the purposes of retribution and deterrence. This is especially true in cases of wounding, where the element of the offence is that the offender intended to inflict really serious injury on the victim. Whilst there are no sentencing guidelines for wounding, it has been said that the usual range will be between 3 to 12 years’ imprisonment, although this will very much depend on the particular circumstances of each case. See HKSAR v Tse Hok Lam [2005] HKLRD 344 and HKSAR v Chun Sze Wing, CACC 289/2011, 14 June 2012, unreported at paragraph 12. However, we would add that in very serious cases of wounding, a sentence outside this range may well be warranted.”
The judgment went on to say that key factors in determining the appropriate level of sentence for the offence of wounding, include the nature and circumstances of the assault, the use of a weapon and the circumstances of its use, the defenceless state of the victim, and the nature and effect of the injuries suffered by the victim.
As said, the group attack on each of the two victims, in which D1 was a main participant, was a savage attack on a defenceless victim for no good reason other than ill-feelings or even hatred towards mainlanders and policemen in general who were perceived to be against their protest movements. Both victims sustained multiple injuries all over their bodies and the metal rod used by D1 no doubted caused the more serious lacerations on their head regions. The explanation by D1 that he was under an impression that the victims had attacked or about to attack other young protestors has to be rejected not only because the claim was unsubstantiated by the facts and also simply because, even if what he said was true, there is no place for any revenge attack or vigilante justice as far as mitigation is concerned.
That said, D1 is a person of hitherto clear record for 57 years and I accept that the present offence was committed when he was so carried away by the protestors around him and was totally out of his characters. Fortunately, the injuries suffered by both victims were not the most serious and were not permanent and they have since fully recovered. I also have the opportunity to examine the metal rod used by D1 during the attack in court. As already mentioned, it is not an extendable baton and it is also blunt and light in weight and therefore not comparable to other lethal weapons such as knife or baseball bat.
In each charge, in the case of D1, I consider a starting point of 4 years and 9 months’ imprisonment would be appropriate. The sentence on each charge will be reduced by one-third to 38 months on account of his guilty pleas which is the only effective mitigation. Taking all the sentencing factors into account, I consider that a global sentence of 50 months is appropriate to reflect D1’s overall criminality on these two charges.
The prosecution has confirmed that both victims were fully compensated for their medical expenses already and for that, D1 should receive a reduction for one month on each charge (2 months in total), thereby further reducing his total sentence to one of 48 months’ imprisonment. As a result, I order that 10 months’ imprisonment on Charge 2 to run consecutively with the 38 months’ imprisonment on Charge 1.
In the case of D2 and D3, they were convicted on a lesser offence under s.19 of Cap. 212. Both defendants should consider themselves very fortunate because of the lenient views taken by the prosecution on the roles played by them in this joint attack against PW1. In sentencing each of them, I adopt my earlier comment on the wicked nature of the attack by the group of protestors against PW1, and for whatever reason why they decided to take part in the assault, the scene was ugly and what they did were totally unacceptable however low their level of participations in the attack. I repeat that no matter what they genuinely believed PW1 has done to the other protestors, which was still unsubstantiated, they were not allowed to take the law into their own hands and together with a large group of assailants launched a revenge or preventive strike on a person who simply might have a different background or opinion.
By reason of the above, I consider that the present charge against D2 and D3 is still very serious even it was reduced into a lesser offence. While D2 maintained that she just gave PW1 a push when he fell back onto her, she was holding an umbrella during the attack and by that, she was obviously engaging in an attempt to conceal the identities of the assailants which must be condemned and in my mind, she was no less culpable as D3 who was actually kicking PW1 whilst he was already lying helplessly on the ground. Both defendants were not the main attackers who threw the majority of punches and kicks of course but it was a joint attack and in sentencing, I did not seek to distinguish the culpabilities between the two of them.
During mitigation, Mr. Yuen referred the court to the case of HKSAR v Cheng Hung Kwong and Another CACC 138/2009, 3 December 2009, unreported.
In that case, each of the two appellants was charged with two counts of wounding, contrary to s.19 of Cap. 212. It was alleged that they, together with other persons, wounded the two victims in the case. The 1st appellant pleaded guilty to his two counts while the 2nd appellant pleaded not guilty to his two counts but was convicted after trial.
The sentencing judge adopted a starting point of 21 months for each count. Both appeal against their sentences and the sentence was confirmed in the appeal.
The Court of Appeal described the case as an ugly affair of a group of thugs bullying innocent people and coming back several times over a period of hours, threatening them at close quarters and when the victims – one of them a woman – sought to escape the group of thugs who closed in on them, they were pursued and assaulted.
Although the background of the present case is not exactly the same as the case cited above, it was submitted that it bears some striking similarities in that the victims, a husband and a wife, who operated a cooked-food shop were attacked by a group of four men gathered outside the shop for no good reason. The injuries sustained by the couple were also not too serious including redness, swelling, abrasions and lacerations over the bodies.
Mr. Yuen submitted that both D2 and D3 were just carried away by the atmosphere at the time of the offence and this is not a case involving any premeditation. Admittedly, this case is a serious one but at the same time it gives both defendants a bitter lesson and neither of them is going to commit any further offence again in future. They are prepared to accept the consequence of their recklessness. Mr. Yuen suggested that a starting point in the region of 20 – 24 months is appropriate for a first-time offender like the two defendants.
Both defendants are of previous good characters but their behaviours in the attack were no different from a group of thugs or local bullies who intimidated or even attacked innocent people at will on the street. There were more number of attackers in this case than the case cited although the duration of attack was much shorter. Taking all the factors and the circumstances into account, however, I consider a starting point of 24 months’ imprisonment is appropriate for each defendant. Both defendants are entitled a full one-third discount because of their guilty pleas and also, in each case, I will further reduce the sentence by 1 month on account of their efforts to fully compensate PW1. The resulting sentence for D2 and D3 is therefore one of 15 months’ imprisonment respectively.
(A Kwok)
District Judge
DCCC154/2020
郭啟安
區院
認罪
罪成
地盤工人
35
傷人或對他人身體加以嚴重傷害
判囚
15
10/06/2019
旺角
DCCC 154/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 154 OF 2020
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HKSAR
v
LAW WAI WAH (D1)
WONG YEE TING (D2)
SOLIMAN AHMED FAWZI ELSAYED (D3)
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Before: HH Judge A Kwok
Date: 28 October 2020
Present: Mr. Ng Wing Kit, Public Prosecutor, for HKSAR
Miss Nam Hoi Yan Fiona, instructed by Cheung & Liu, assigned by the Director of Legal Aid, for the 1st defendant
Mr. Yuen Wai Ming Anthony, instructed by Bond Ng Solicitors, assigned by the Director of Legal Aid, for the 2nd and 3rd defendants
Offence: [1] & [2] Causing grievous bodily harm with intent (有意圖 而導致身體受嚴重傷害)
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REASONS FOR SENTENCE
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Introduction
Since June 2019, Hong Kong experienced a series of protests in opposition to the introduction of the Fugitive Offenders (Amendment) Bill by the government. The initial peaceful rallies have since escalated into serious social unrest and public disorder in the territory.
The present case alleged two attacking incidents in a public place on two victims who were just passersby at the material time by a group of protestors assembled in the area of Nathan Road and Argyle street, Mongkok, Kowloon on two consecutive days on 5 and 6 October, 2019.
D1, D2 and D3 were jointly charged with one count of causing grievous bodily harm to male X with intent, together with other persons unknown, contrary to s 17(a) of the Offences against the Person Ordinance, Cap. 212 (Charge 1) and D1 was further and separately charged with another count of causing grievous bodily harm to male Y with intent, together with other unknown persons, at the same area on the following night, under the same provision. (Charge 2)
D1 pleaded guilty to both charges. D2 and D3 pleaded not guilty to Charge 1 but pleaded guilty to the lesser charge of inflicting grievous bodily harm, contrary to s.19 of the Offences against the Person Ordinance, Cap. 212. As a result of plea bargaining, their pleas were accepted by the prosecution.
Facts
Charge 1
According to the Amended Summary of Facts, in the evening on 5 October 2019, a large number of protestors assembled in various areas in the Mongkok area as part of the protests since June 2019. At around mid-night, PW1 (Male X), a visitor from Mainland, was walking back to his hostel in Mongkok after getting off the bus at Nathan Road. A female confronted him and identified him as a Mainlander. She pulled his clothes and prevented him to leave. PW1 tried to leave and felt frightened. The act caught the attention of others (of about 30 persons dressed in black) who were present in the area at the time. PW1 was then surrounded by a large number of persons including the three defendants. The persons in the group began to assault him as he moved from Nathan Road into Argyle Street towards the hostel where he was staying at.
Part of the incident of Charge 1 was captured by an open source video which was played in the court. The Amended Summary of Facts described the events which were captured by the video in the following sequence implicating the three defendants: –
(a) D2, who was unmasked with her facial appearance captured, holding an opened rainbow-coloured umbrella and dressed in a pink and red dress, was among the first assailants who began to chase after PW1. She followed PW1 to Argyle Street where PW1 was pushed to the ground by others at the junction of Argyle Street and Sai Yeung Choi Street South. Her opened umbrella covered some of the assailants as they began to assault PW1. It was not raining at the time.
(b) Among the group of assailants assaulting PW1, D1 who was unmasked and with his facial appearance clearly captured assaulted PW1 with a rod-shaped object. D2 pushed PW1 from behind when other assailants were assaulting PW1. D3 kicked PW1 when he was on the ground. He was unmasked at the time with his facial appearance clearly captured. Further, there is a distinctive tattoo on his left forearm which was exposed as he was wearing a black T-shirt.
(c) During the incident, someone had shouted words to the effect “open umbrella”, that PW1 had taken photos of the persons in the area, and that PW1 was holding a brick in his hand.
(d) The open-source video captured PW1 as holding an object in his hand but he never used it.
Throughout the assault, PW1 tried and continued to move towards the hostel. As he moved towards the carriageway on Argyle Street outside Sin Tat Plaza, the assault upon him continued. The same coloured umbrella held by D2 appeared in the video blocking the view especially after someone shouted for umbrellas to cover the act, although the facial appearance of the person holding the umbrella could not be shown at that point in the video. The video was not able to capture D1 at this stage of events.
The video shown in court showed that PW1 was savagely attacked by a group of assailants on the ground. The collar of his upper-garment was torn widely open and he was bleeding profusely after the attack. The video footage lasted for about 4 minutes. Eventually at about 0100 hours on 6 October 2019, PW1 returned to the hostel and the case was reported. He was taken to Kwong Wah Hospital for treatment but PW1 requested to be discharged against medical advice. PW1 was diagnosed to suffer from bruises over upper lip, abrasions over left zygomatic region, bilateral hands and left knee, tenderness and swelling over left shin, and a large hematoma and laceration (1 cm x 0.5 cm) over occipital scalp as a result of the incident.
On 9 October 2019, PW1 went to the hospital again for medical treatment. Detailed examination on that day revealed that he was found to have multiple injuries, mostly in the form of bruises and abrasions. A more detailed account of PW1’s bodily injuries can be found in paragraph 7 of the Amended Summary of Facts. I am not going to list them out individually. Suffice it to say that PW1 was found to have no less than 11 patches of bruises and some abrasions on various parts of his body from head down to his knees and a spot of hemorrhage on the lateral aspect of right eyeball.
PW1 has since fully recovered from his injuries.
During the incident, PW1 lost some of his personal properties including cash (RMB 800 and $500), bank cards, Octopus Card, and his mobile phone and earphones which were taken away by the assailants.
Charge 2
At about 0200 hours on 6 October 2019, PW2 (Male Y) and his friend took a taxi in the area of Nathan Road and Argyle Street after dinner and drinks but the taxi could not proceed further as barricades and obstructions were erected by the protesters on the road. When PW2 walked along Nathan Road towards Tai Kok Tsui to return home, he moved away some of the items which obstructed his way at the junction of Argyle Street and Nathan Road. PW2 was then confronted by 10 odd persons dressed in black who alleged him to be a police officer. Flashlight was shone on him. Despite PW2’s denial and explanation that he was only about to go home, the group proceeded to assault him. PW2 ran towards one of the assailants, whereupon others began to assault him repeatedly with punches and kicks as well as bamboo sticks. Part of the incident was captured by another open-source video, also played in court. The video captured in particular that D1 was one of the assailants and he assaulted PW2 twice by hitting him with a rod-shaped object. D1 was in the same clothing items and unmasked as was in the previous attacking incident.
The incident stopped when PW2’s friend intervened and told others that PW2 was simply drunk.
PW2 was also shown to be bleeding profusely in the video. Some persons purporting to be first-aiders approached PW2 and later he was taken by ambulance to hospital for treatment. Medical report showed that PW2 was at the time under the influence of alcohol. Medical examination at the A&E Department of Kwong Wah Hospital found that PW2 suffered from the following injuries :-
(a) Y-shaped laceration wound over vertex;
(b) Multiple abrasions over right eyebrow, right arm, right hand and both legs;
(c) Bruising and tenderness over right forearm; and
(d) Movement of right upper limb was found to be reduced and limited by pain
PW2 was admitted to hospital from 6 to 9 October 2019. A total of 23 days of sick leave was granted by the hospital as well as a private doctor from whom PW2 sought further medical treatment. PW2 also spent $6,320 for private treatment by Chinese medical practitioner to improve his elbow movement after the attack. PW2 has since fully recovered from his injuries.
Arrest of D1-D3
D1 was arrested at his residence on 31 December 2019. Upon arrest and under caution, D1 stated that at the material time, he went to the offence location to look after the young persons who took part in the protests. He admitted to the offences in both incidents. House search recovered the clothing items he wore during the offences and the rod-shaped object which he used. The rod was made in metal and adjustable in length, but is not an extendable baton operable by gravity or centrifugal force.
D2 was arrested at her residence on 31 December 2019. Under caution, D2 remained silent.
D3 was arrested at the Hong Kong International Airport on 10 February 2020 as he was seeking to leave Hong Kong. D3 denied to have participated in any unlawful assembly and denied to have committed Charge 1 or that he was the person shown in the open-source video.
Mitigations
D1
D1 is now 57 years old and has a clear record. He was born in Hong Kong and was only educated up to Primary 6 level. He entered the work force since he was 14. Prior to the arrest, he worked as a cleaning worker on a casual basis earning about $15,000 per month. He resided with his wife and stepson (aged 17) at a rented premise. His wife however filed for divorce after his arrest.
D1 was remanded in custody after his arrest on 31 December 2019.
Miss Nam for D1, has said all she can say on his behalf. In her written mitigation, she described D1 as being a law-abiding citizen for his entire life before these two offences and the acts that he has committed during the two incidents were totally out of his character. At the time of the offences, Miss Nam said D1 truly felt for the younger generations who were eager to see changes to the society and wanted to support them in last year’s social movements. At the same time, he was worried about the safety of young people who participated in social events and he wanted to do his part to protect them. What triggered his actions, I was told, were rumors that the two victims were about to attack the protesters at the time of the two incidents. There were people chasing after PW1 accusing him of attempting to use a brick to attack the protestors, and during the second incident, another group of protestors chased after PW2 who was heavily drunk, accusing him of using the materials he removed from the barricades to attack the protestors. That was why D1 impulsively resorted to violence and attacked the victims. Miss Nam emphasized that she made this statement as an explanation for D1’s acts not as an excuse.
Further, Reverend Mella Francesco who has known D1 since 2015 described him as a compassionate person who was willing to extend help to those in need. During his prison visits to D1 after he was remanded in custody, D1 expressed deep remorse and he wanted to apologise to the victims in the open court. A mitigation letter from the Reverend and a church worker was submitted for my consideration.
In summary, Miss Nam emphasised the following mitigating factors on behalf of D1:-
(i) D1 pleads guilty to all the charges at the earliest opportunity, reflecting his genuine remorse;
(ii) D1 made full admissions under caution;
(iii) D1 has a clear record, meaning he has remained law-abiding for his entire life;
(iv) The injuries suffered by the two victims are not the most serious and not permanent in nature; and
(v) D1 is willing to make compensation to the victims.
Finally, I was urged to take into account the above and the totality principle in sentencing and to extend leniency towards D1.
D2
D2 is aged 23 and has a clear record. She completed Form 3 level. She is still single and prior to her arrest, was living with parents and her younger brother (aged 19) in a public housing in Tsuen Wan. D2 worked as a saleslady at time of arrest, earning $15,000 per month.
Her counsel, Mr. Yuen, told the court that D2 joined a protest at an earlier time in Mongkok on that evening. At the material time, she was planning to return home. When she was at the scene, she noticed that PW1 was holding a piece of brick and looked very hostile. She also heard people around shouting that PW1 was to attack other protestors.
D2, out of curiosity, followed PW1 to see what he was going to do to other protestors. It was at that time that those people around PW1 started to push him and attack him. When PW1 lost his balance and fell towards D2 at one stage, she just pushed him away.
When people shouted to those who had umbrella to open it, she understood it was intended to cover up the identity of protestors from camera or CCTV. She just instinctively followed the words of the others and did accordingly.
In mitigation, Mr. Yuen emphasized D2’s plea of guilty and the fact that it is the first time ever that she committed any offence. At the material time, she was just so carried away by the atmosphere at that particular moment and she first followed PW1 with the intention to see whether he was going to attack other protestors, not to hurt him. All she actually did was to cover up the identity of other assailants by holding her umbrella and she had a push of PW1 when he lost balance and fell towards her. Otherwise, she herself did not attack PW1 at all. She now fully appreciated that it is wrong for anyone to take the law into their hands even if PW1 was going to attack others. She felt extremely remorseful. She also felt terribly sorry that she has caused great concern to her family members, in particular, her parents, as well as those who care about her, including but not limited to her friends, ex-employer, current employer at time of offence and social worker who had come to know her previously. In mitigation, I have received a letter by D2 herself and letters from those people. I do not intend to repeat the contents of those letters. Suffice it to say that D2 is now extremely remorseful for what she had done and the others were all shock to learn about D2’s involvement in the attack and commented that it was totally out of her character and asked the court to be as lenient as possible. Mr. Yuen said D2 has already learnt a bitter lesson after being detained and lose her freedom since her arrest on 31 December 2019. It is submitted that it is highly unlikely that she would commit any further offence again.
D3
Born in Egypt, D3 is now aged 36 and he has a clear record. He first came to Hong Kong in 2008 as a visitor. He was married in 2013 and settled down in the city after the marriage. Now separated with his wife, he is living alone in a sub-divided unit in Argyle Street, Mongkok. He finished Grade 12 in Egypt. His wife and two sons (aged 6 and 3) are all in Hong Kong but living apart from him. Prior to his arrest, he worked as a construction site worker earning only $6,000 per month.
Mr. Yuen told the court that the first attacking incident took place near D3’s address in Argyle Street. It so happened that at that time, he was in the vicinity intending to go to a 7-11 convenient store to buy cigarettes. He saw a group of persons surrounding a person (PW1) and he overheard that PW1 had attacked a girl who was amongst the protestors. He went up to have a look. When PW1 fell onto the ground just in front of D3, he instinctively gave PW1 a kick without giving much thought. Soon after he left and continued his way to buy his cigarettes.
With hindsight, D3 believed that he might have misheard what was said. He was not very good at Cantonese and at that time it was very confusing with people shouting and yelling.
In mitigation, Mr. Yuen stressed D3’s clear record and his timely plea of guilty which saves the court’s time and avoiding the trouble of PW1 to have to come all the way to Hong Kong to testify during the pandemic. I was reminded that all he did was just one kick when PW1 fell right in front of him. He now felt deeply sorry for his stupidity in kicking PW1 without giving much thought of the serious consequence.
Mr. Yuen urged the court to give the two defendants a full one-third discount on account of their timely pleas and stated that both are prepared to compensate PW1 for his loss during the incident.
Sentencing Considerations
Whilst it is true that there was a certain political background to the commission of the two charges in this case, it is important to always emphasis that the responsibility of the court is to determine legal disputes only according to the law and it is certainly no part of the court’s function to determine political controversies or to promote any political viewpoints in the sentencing process.
At the time of these two offences, it is apparent that the protests on the streets were going more violent and out of control since the social movements started back in June 2019. Barricades and obstructions were wantonly erected on Nathan Road, one of the busiest road in Kowloon by the protestors blocking the traffic causing much inconvenience and seriously affected the freedom of movement of the travelling public at large and in this case, there were even senseless group attacks by the protesters on civilians who were apparently merely bystanders or passersby who they just thought was a mainlander or a policeman, causing the two victims battered, bloodied, dazed and seriously injured.
In their mitigations, all three defendants attempted to explain their involvements in the attacks by referring to their impressions at that time that the victims had either attacked or were about to attack other protestors. According to the Amended Summary of Facts and the videos shown in the court, however, neither of the two victims was ever seen attacking or threatened to attack any person at all. They were basically defenceless during the attacks. It is true that PW1 was seen holding a rectangular object in one of his hands in the video when he was walking on the street followed by the protestors but he never used the object to defend, not to mention retaliate, during the attack in the first incident.
In sentencing D1, I refer myself to what Zervos JA has said in HKSAR v ROKA Sijan, CACC 281/2017, 28 December 2018, unreported at paragraph 52:-
“52. Any form of violence must be visited by condign punishment in order to serve the purposes of retribution and deterrence. This is especially true in cases of wounding, where the element of the offence is that the offender intended to inflict really serious injury on the victim. Whilst there are no sentencing guidelines for wounding, it has been said that the usual range will be between 3 to 12 years’ imprisonment, although this will very much depend on the particular circumstances of each case. See HKSAR v Tse Hok Lam [2005] HKLRD 344 and HKSAR v Chun Sze Wing, CACC 289/2011, 14 June 2012, unreported at paragraph 12. However, we would add that in very serious cases of wounding, a sentence outside this range may well be warranted.”
The judgment went on to say that key factors in determining the appropriate level of sentence for the offence of wounding, include the nature and circumstances of the assault, the use of a weapon and the circumstances of its use, the defenceless state of the victim, and the nature and effect of the injuries suffered by the victim.
As said, the group attack on each of the two victims, in which D1 was a main participant, was a savage attack on a defenceless victim for no good reason other than ill-feelings or even hatred towards mainlanders and policemen in general who were perceived to be against their protest movements. Both victims sustained multiple injuries all over their bodies and the metal rod used by D1 no doubted caused the more serious lacerations on their head regions. The explanation by D1 that he was under an impression that the victims had attacked or about to attack other young protestors has to be rejected not only because the claim was unsubstantiated by the facts and also simply because, even if what he said was true, there is no place for any revenge attack or vigilante justice as far as mitigation is concerned.
That said, D1 is a person of hitherto clear record for 57 years and I accept that the present offence was committed when he was so carried away by the protestors around him and was totally out of his characters. Fortunately, the injuries suffered by both victims were not the most serious and were not permanent and they have since fully recovered. I also have the opportunity to examine the metal rod used by D1 during the attack in court. As already mentioned, it is not an extendable baton and it is also blunt and light in weight and therefore not comparable to other lethal weapons such as knife or baseball bat.
In each charge, in the case of D1, I consider a starting point of 4 years and 9 months’ imprisonment would be appropriate. The sentence on each charge will be reduced by one-third to 38 months on account of his guilty pleas which is the only effective mitigation. Taking all the sentencing factors into account, I consider that a global sentence of 50 months is appropriate to reflect D1’s overall criminality on these two charges.
The prosecution has confirmed that both victims were fully compensated for their medical expenses already and for that, D1 should receive a reduction for one month on each charge (2 months in total), thereby further reducing his total sentence to one of 48 months’ imprisonment. As a result, I order that 10 months’ imprisonment on Charge 2 to run consecutively with the 38 months’ imprisonment on Charge 1.
In the case of D2 and D3, they were convicted on a lesser offence under s.19 of Cap. 212. Both defendants should consider themselves very fortunate because of the lenient views taken by the prosecution on the roles played by them in this joint attack against PW1. In sentencing each of them, I adopt my earlier comment on the wicked nature of the attack by the group of protestors against PW1, and for whatever reason why they decided to take part in the assault, the scene was ugly and what they did were totally unacceptable however low their level of participations in the attack. I repeat that no matter what they genuinely believed PW1 has done to the other protestors, which was still unsubstantiated, they were not allowed to take the law into their own hands and together with a large group of assailants launched a revenge or preventive strike on a person who simply might have a different background or opinion.
By reason of the above, I consider that the present charge against D2 and D3 is still very serious even it was reduced into a lesser offence. While D2 maintained that she just gave PW1 a push when he fell back onto her, she was holding an umbrella during the attack and by that, she was obviously engaging in an attempt to conceal the identities of the assailants which must be condemned and in my mind, she was no less culpable as D3 who was actually kicking PW1 whilst he was already lying helplessly on the ground. Both defendants were not the main attackers who threw the majority of punches and kicks of course but it was a joint attack and in sentencing, I did not seek to distinguish the culpabilities between the two of them.
During mitigation, Mr. Yuen referred the court to the case of HKSAR v Cheng Hung Kwong and Another CACC 138/2009, 3 December 2009, unreported.
In that case, each of the two appellants was charged with two counts of wounding, contrary to s.19 of Cap. 212. It was alleged that they, together with other persons, wounded the two victims in the case. The 1st appellant pleaded guilty to his two counts while the 2nd appellant pleaded not guilty to his two counts but was convicted after trial.
The sentencing judge adopted a starting point of 21 months for each count. Both appeal against their sentences and the sentence was confirmed in the appeal.
The Court of Appeal described the case as an ugly affair of a group of thugs bullying innocent people and coming back several times over a period of hours, threatening them at close quarters and when the victims – one of them a woman – sought to escape the group of thugs who closed in on them, they were pursued and assaulted.
Although the background of the present case is not exactly the same as the case cited above, it was submitted that it bears some striking similarities in that the victims, a husband and a wife, who operated a cooked-food shop were attacked by a group of four men gathered outside the shop for no good reason. The injuries sustained by the couple were also not too serious including redness, swelling, abrasions and lacerations over the bodies.
Mr. Yuen submitted that both D2 and D3 were just carried away by the atmosphere at the time of the offence and this is not a case involving any premeditation. Admittedly, this case is a serious one but at the same time it gives both defendants a bitter lesson and neither of them is going to commit any further offence again in future. They are prepared to accept the consequence of their recklessness. Mr. Yuen suggested that a starting point in the region of 20 – 24 months is appropriate for a first-time offender like the two defendants.
Both defendants are of previous good characters but their behaviours in the attack were no different from a group of thugs or local bullies who intimidated or even attacked innocent people at will on the street. There were more number of attackers in this case than the case cited although the duration of attack was much shorter. Taking all the factors and the circumstances into account, however, I consider a starting point of 24 months’ imprisonment is appropriate for each defendant. Both defendants are entitled a full one-third discount because of their guilty pleas and also, in each case, I will further reduce the sentence by 1 month on account of their efforts to fully compensate PW1. The resulting sentence for D2 and D3 is therefore one of 15 months’ imprisonment respectively.
(A Kwok)
District Judge
羅德泉
裁判法院
認罪
罪成
貨車司機
26
刑事毀壞
緩刑
荃灣
KCCC2134/2020
嚴舜儀
裁判法院
簽保守行為
學生
17
管有適合作非法用途的工具
索帶
旺角
FLCC700044/2020
蘇文隆
裁判法院
簽保守行為
學生
14
在公眾地方造成阻礙
03/08/2020
大埔
WKCC2162/2020
劉淑嫻
裁判法院
不認罪
不成立
證據不足
學生
19
非法集結
10/01/2019
荃灣
ESCC820/2020
錢禮
裁判法院
認罪
罪成
前司法機構女助理文書主任
28
在公眾地方作出擾亂秩序的行為
社會服務令
240
中環
ESCC823/2020
錢禮
裁判法院
撤控
28
普通襲擊
中環
KTCC450/2020
莫子聰
裁判法院
不認罪
罪成
文員
38
襲警
判囚
75
觀塘
KTCC450/2020
莫子聰
裁判法院
認罪
罪成
38
未能出示身分證
只判罰款
觀塘
TMCC433/2020
梁雅忻
裁判法院
不認罪
不成立
運輸工人
26
在公眾地方作出擾亂秩序的行為
0
10/07/2019
屯門
TMCC433/2020
梁雅忻
裁判法院
不認罪
不成立
地盤工人
26
在公眾地方作出擾亂秩序的行為
0
10/07/2019
屯門
ESCC1067/2020
錢禮
裁判法院
認罪
罪成
學生
16
普通襲擊
感化令
–
KCCC2335/2019
裁判法院
認罪
罪成
爆谷店經理
34
管有違禁武器
判囚
8
上水
KTCC1511/2019
莫子聰
裁判法院
不認罪
罪成
地產經紀
39
管有攻擊性武器意圖作非法用途
卡片刀、萬用匙、剪刀
判囚
32
08/05/2019
秀茂坪
KTCC1511/2019
莫子聰
裁判法院
不認罪
罪成
地產經紀
39
管有攻擊性武器意圖作非法用途
卡片式摺刀、萬用匙、開信刀、刀和剪刀
判囚
32
08/05/2019
秀茂坪
KTCC1511/2019
莫子聰
裁判法院
不認罪
罪成
地產經紀
39
管有違禁武器
短刀
判囚
32
08/05/2019
秀茂坪
KTCC1511/2019
莫子聰
裁判法院
不認罪
罪成
地產經紀
39
刑事毀壞
判囚
32
08/05/2019
秀茂坪
KCCC2065/2019
鄭念慈
裁判法院
認罪
罪成
學生
24
非法集結
判囚
4
08/03/2019
旺角
KCCC2065/2019
鄭念慈
裁判法院
認罪
罪成
文員
36
非法集結
判囚
4
08/03/2019
旺角
ESCC1824/2020
錢禮
裁判法院
認罪
罪成
裝修工人
23
非法集結
判囚
4
06/09/2019
金鐘
ESCC1824/2020
錢禮
裁判法院
認罪
罪成
無業
25
非法集結
判囚
4
06/09/2019
金鐘
ESCC1824/2020
錢禮
裁判法院
認罪
罪成
無業
24
非法集結
判囚
4
06/09/2019
金鐘
ESCC1189/2020
錢禮
裁判法院
認罪
罪成
建築工人
37
阻差辦公
感化令
11/11/2019
西灣河
ESCC1500/2020
錢禮
裁判法院
簽保守行為
無業
20
管有任何物品意圖摧毀或損壞財產
火機
11/11/2019
灣仔
ESCC1824/2020
錢禮
裁判法院
認罪
罪成
運輸工人
19
非法集結
社會服務令
06/09/2019
金鐘
ESCC1824/2020
錢禮
裁判法院
認罪
罪成
學生
20
非法集結
社會服務令
06/09/2019
金鐘
HCMP1256/2020
高浩文
高院
認罪
罪成
區議員
61
藐視法庭
緩刑
網上
HCMP 1256/2020
[2020] HKCFI 2687
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 1256 OF 2020
IN THE MATTER of an application on behalf of the Secretary for Justice against CHENG Lai King (鄭麗琼) for an Order of Committal
and
IN THE MATTER of civil proceedings in HCA 1957/2019
BETWEEN
SECRETARY FOR JUSTICE Plaintiff
and
CHENG LAI KING (鄭麗琼) Defendant
________________
Before: Hon Coleman J in Court
Date of Hearing: 19 October 2020
Date of Decision: 19 October 2020
______________
D E C I S I O N
______________
Introduction
These committal proceedings relate to a civil contempt of court, for which the Defendant has admitted liability. Therefore, this is the sentencing hearing.
The contempt arose when on 24 March 2020 the Defendant posted (“Post”) on her Facebook account the personal data of a particular police constable (“PW1”) including his full name and identification number. That conduct was in clear contravention of the injunction order made on 25 October 2019, as amended and re-amended on 28 and 31 October 2019, continued on 8 November 2019, and further amended on 11 December 2019 (“Doxxing Injunction”). The Doxxing Injunction was made in HCA 1957/2019 (“underlying action”).
The committal proceedings have been brought by the Secretary for Justice (“SJ”) by way of originating summons dated 28 August 2020, with prior leave granted by me on 21 August 2020. In support of the application, reliance is placed on the affirmation of PW1, his wife (“PW2”), as well as the affirmations/affidavits of other officers involved in investigating the Facebook Post (“PW4” and “PW5”), and a Police Community Relations Officer (“PW3”) who spoke to the Defendant on 24 March 2020.
The Defendant has filed an affirmation dated 9 October 2020, to which she has also exhibited a handwritten letter from her to the Court, and various mitigation letters from other persons.
The Defendant has also made a 2nd affirmation dated 19 October 2020 to deal with a point on her income and allowances, in response to a further affirmation from PW4 dated 19 October 2020. By consent, I granted leave at the hearing for both to be filed.
At this hearing, the SJ was represented by Counsel, Mr Martin Ho, and the Defendant was represented by Counsel, Mr Martin Lee SC leading Mr Joe Chan and Mr Jeffrey Tam. Mr Lee appears on a complimentary basis.
Agreed Facts
On 16 October 2020, the parties (through their solicitors) jointly signed and filed a Statement of Admitted Facts. That document helpfully encapsulates the relevant background material facts which are not disputed by the Defendant, and some of its content can usefully be taken into this Decision. I accept those facts as stated and agreed between the parties.
On 25 October 2019, the SJ and the Commissioner of Police (suing on his own behalf and on behalf of all other Police Officers and Auxiliary Officers) as plaintiffs commenced the underlying action HCA 1957/2019 and made an ex parte application for an injunction against the defendants, being named as persons unlawfully and wilfully conducting themselves in any of the acts prohibited under paragraphs 1(a), (b) or (c) of the Indorsement of Claim.
The acts prohibited under paragraphs 1(a), (b) or (c) of the Indorsement of Claim are:
(a) using, publishing, communicating or disclosing to any other person the personal data of and concerning any Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children or siblings), including but not limited to their name, job title, residential address, office address, school address, email address, date of birth, telephone number, Hong Kong Identity Card number or identification number of any other official identity documents, Facebook Account ID, Instagram Account ID, car plate number, and any photograph of the Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children and siblings) (“Personal Data”), without the consent of the Police Officer(s) and/or their family member(s) (as the case may be) concerned;
(b) intimidating, molesting, harassing, threatening, pestering or interfering with any Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children or siblings); and/or
(c) assisting, causing, counselling, procuring, instigating, inciting, aiding, abetting or authorizing others to commit any of the aforesaid acts or participate in any of the aforesaid acts.
On the same day, Chow J granted an injunction order (“Interim Injunction Order”) effective until the return date on 8 November 2019. The granting of the Interim Injunction Order was widely reported in the mass media including, inter alia, English and Chinese newspapers with wide circulation in Hong Kong, major radio and television service providers such as Radio Television Hong Kong and various sources on the internet (“Local Media”).
On 28 October 2019, Chow J made an order to amend the Interim Injunction Order (“Amended Interim Injunction Order”). The material terms of the Amended Interim Injunction Order are as follows:
The Defendants and each of them, whether acting by themselves, their servants or agents, or otherwise howsoever, be restrained from doing any of the following acts:
using, publishing, communicating or disclosing to any other person the Personal Data, intended or likely to intimidate, molest, harass, threaten, pester or interfere with any Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children or siblings), without the consent of the Police Officer(s) and/or their family member(s) (as the case may be) concerned;
intimidating, molesting, harassing, threatening, pestering or interfering with any Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children or siblings); and
assisting, causing, counselling, procuring, instigating, inciting, aiding, abetting or authorizing others to commit any of the aforesaid acts or participate in any of the aforesaid acts.
The granting of the Amended Interim Injunction Order – to remain in force up to and including 8 November 2019 – was widely reported by the Local Media.
On 29 October 2019, the Plaintiffs made an inter partes application against the Defendants for continuation of the Amended Interim Injunction Order. The hearing of the inter partes application was fixed for 8 November 2019.
On 31 October 2019, Chow J further made a technical amendment to the Amended Interim Injunction Order by amending the date of the Order (“Re-Amended Interim Injunction Order”).
On 5 November 2019, the Hong Kong Journalist Association (“HKJA”) applied for the Re-Amended Interim Injunction Order to be varied by including the following terms:
Paragraph 1 of the Re-Amended Interim Injunction Order does not prohibit any lawful act(s) which are done solely for the purpose of a “news activity” as defined in section 61 of the Personal Data (Privacy) Ordinance (Cap. 486) (“PDPO”); and
Paragraph 1(a) of the Re-Amended Interim Injunction Order does not prohibit the disclosure of Personal Data to a data user whose business, or part of whose business, consists of a “news activity” where the requirements of section 61(2)(b) of the PDPO are satisfied.
At the hearing of the inter partes application and the HKJA’s Summons on 8 November 2019, I granted the inter partes application by ordering the Re-Amended Interim Injunction Order to be continued, except with the removal of the reference to “interfere” in paragraphs 1(a) and (b) of the Re-Amended Interim Injunction Order. As regards the HKJA’s Summons, I granted an order in terms as set out in paragraph (1) but refused to include the terms as set out in paragraph (2) (“Return Date Order”). I gave a fully-reasoned Ruling, since reported at [2019] 5 HKLRD 500. The handing down of the Ruling and the sealing of the Return Date Order were widely reported by the Local Media.
On 29 November 2019, the Plaintiffs made an application to amend the Return Date Order. On 11 December 2019, I granted the application by amending the Return Date Order to include Special Constable(s), their spouses and their respective family members (namely parents, children or siblings) (“Amended Return Date Order”). The granting of the Amended Return Date Order was widely reported by the Local Media.
Pursuant to paragraph 2 of the Interim Injunction Orders, Chow J granted leave to the Plaintiffs to serve the Interim Injunction Orders on the Defendants to the underlying action by way of substituted service, by publishing a copy of the Interim Injunction Orders on the webpages of the Police as well as that of the Government of the Hong Kong Special Administrative Region. The Interim Injunction Orders were duly and validly served.
In the meantime, during an incident in Wan Chai on 29 September 2019, a female Indonesian reporter was hit in the eye. There was an allegation that PW1 was responsible for the injury.
In around mid-March 2020, some netizens brought this incident up in the Internet again and urged other netizens to find out the identity of PW1 before 29 March 2020 on the basis of the allegation that there was a six-month time limit for private prosecutions in Hong Kong and private prosecution against PW1 would be barred on 29 March 2020. Starting from 24 March 2020, PW1 and his wife PW2 became the subject of widespread doxxing on social media platforms, such as Facebook and Telegram.
The Police identified a doxxing post – namely the Post – made at around 10:35 am on 24 March 2020 on the Facebook Page. The Post forwarded another post made by one Facebook user “Cryana Chan” in a Facebook group named “西環變幻時” (“Westerndistrict”) which appears to be extracted from the Telegram channel “老豆搵仔” (“Dadfindboy”) (as evidenced by the “老豆搵仔編號” – English translation: “Dadfindboy number”) showing the portrait and personal data of PW1 (including his full name and Unique Identification number). In the Post, the Defendant further added the words “如果這名警員是有良知的? 請自首! 以眼還眼” – English translation: “If this officer has conscience, please surrender! An eye for an eye”. The status of the Post, as shown by a “Globe” icon underneath the account name and next to the time stamp, was “Public” (ie. the Post was publicly accessible by anyone with connection to the internet) and the Post was liked, shared and responded to by various Facebook users.
As per Police’s checking on 24 March 2020 at around 6:00 pm, the Post was found to have been deleted.
The Post, despite being relatively short-lived, had attracted wide publicity. At the time when the Post was made, the Facebook Page had over 30,000 followers. The Post itself was responded to by other users 127 times, was shared with others 182 times, and had attracted a total of 933 counts of “likes” and “angry”.
On 24 March 2020 at 5:47 pm, the Defendant called PW3 of the Police Community Relations Office with the telephone number 2117 4488. When PW3 answered the call, the Defendant described herself as “Lai King”. PW3 recognised that “2117 4488” was the telephone number of the Office of the Chairperson of the Central and Western District Council and he therefore recognised that the caller was the Defendant. The Defendant told PW3 that she had been informed by a journalist of the existence of an injunction. She enquired with PW3 if the journalist’s information was true and about the consequences of breaching the injunction. PW3 answered that the injunction had been posted on the internet and the Court would deal with any breaches of the injunction. PW3 further told the Defendant to seek advice from the relevant persons.
On 25 March 2020 at 4:23 am, a news article in Takungpao reported that during an interview by Takungpao with the Defendant on 24 March 2020, the Defendant openly admitted having made the Post, denied having knowledge of the existence of the Doxxing Injunction, and even queried the reporter whether this is a matter that needs to be visited with a prison sentence.
Further investigation revealed that the user of the Facebook Page is the Defendant, who lives in Lai Yiu Estate, Kwai Chung, New Territories.
On 26 March 2020, at about 12:48 am, PW4 together with other Police Officers saw the Defendant entering the building. They then intercepted her when she was walking towards her residence and conducted investigation. At about 12:55 am, PW4 arrested and cautioned the Defendant for the offence of “Doing an Act with Seditious Intention” contrary to section 10(1) of the Crimes Ordinance Cap 200. Under caution, the Defendant admitted that the account of the Facebook Page belonged to her but she had already deleted the Post from her Facebook Page. This was recorded in PW4’s notebook.
PW4 then seized an Apple iPhone 8 Plus (“iPhone”) from the Defendant at the scene. The Defendant voluntarily unlocked the iPhone and handed it over to PW4 for examination. The iPhone was installed with a Facebook application which was logged into the Facebook account of “鄭麗琼” (“Cheng Lai King”). The Facebook Page (ie. “King鄭麗琼 Cheng Lai King”) was in the menu of the account among other things, and it was shown with the Defendant’s photo as the profile picture, a telephone number and a remark stating “Elected Member (Castle Road Constituency) Registered Social Worker)”.
During the on-site examination of the iPhone, it was revealed that the front page of the Facebook Page showed that the account holder of the Facebook account “鄭麗琼” (“Cheng Lai King”) could change the setting of the Facebook Page. This meant that the Defendant had control over the Facebook Page. The control was exclusive to her account because she was the sole administrator of the Facebook Page.
At around 1:40 am, PW4 asked the Defendant to confirm the accuracy of her cautioned statement as recorded in PW4’s notebook. The Defendant added “我依家想保持緘默” (English translation: “I now wish to remain silent”) and signed on PW4’s notebook confirming the accuracy of her cautioned statement as recorded in it.
In a subsequent video-recorded interview conducted at the Kwai Chung Police Station from 10:14 am to 10:47 am on 26 March 2020, the Defendant stated under caution, inter alia, that she has an iPhone with the particular telephone number registered under her name. The Defendant then exercised her right of silence and declined to answer other questions posed to her.
The Defendant is a Hong Kong politician who serves as District Councillor for the Castle Road constituency. She was elected as Chairwoman of the Central and Western District Council for the 2020-23 term during the Council’s first meeting on 2 January 2020. She has held a seat of the Central and Western District Council since its creation in 1994. She is a member of the Democratic Party and a registered social worker.
The photos, name and the Unique Identification number shown in the Post are accurate personal data of PW1. PW1 had never supplied his personal data to the Defendant and had never given consent to the Defendant to disclose any of his personal data on the Facebook Page.
The Police conducted forensic examination on the iPhone on 31 March 2020, 7 April 2020 and 16 April 2020, and discovered that:
On 28 October 2019 at around 10:01 pm, a Whatsapp user named “凌孟堂Mr. Ling” sent a message through Whatsapp to the Defendant. The message was a link to an online poll titled “高等法院於日前批出臨時禁制令，禁止任何人士披露警員及其家人的個人資料，你認為此禁制令合理嗎?” (English translation: “The High Court recently granted an interim injunction prohibiting disclosure of personal data of Police Officers and their family members. Do you think it is reasonable?”) (“Poll”). The status of the message was “Read” which means the message had been read by the Defendant.
On 31 October 2019 at around 6:36 pm, a Whatsapp user named “DPHK 王漢明” (in English: “Wong Hon Ming”) sent a message in a Whatsapp Group to which the Defendant was a member. The message was a hyperlink to a news article titled “【抗暴之戰】 法庭頒臨時禁令 任何人不得網上鼓勵非法用暴力或損財物 連登TG被點名” (English translation: “【Fight against violence】 Court granted interim injunction; no one is allowed to encourage on the Internet unlawful use of violence or damage to property; LIHKG and TG were named”), which reported that the Court had granted four injunction orders one of which was against doxxing against Police Officers and their family members. The status of the message was “Read” which means the message had been read by the Defendant.
On 3 November 2019 at around 2:40 pm, the Defendant sent a message through Whatsapp to a Whatsapp user named “Watt Mong Wai屈網威 堅苑”. The message included a link to the Poll and the title of the Poll. The status of the message was “Sent” which means the message had been sent by the Defendant.
The Defendant is a habitual reader of news articles. The browsing history of the iPhone shows that she had 75 visits to various social media including Hong Kong In-media, Ming Pao, Now News, Stand News, HK01, on.cc, ET Net, ChinaDaily, Apple Daily, Sing Tao Daily, TVB News, RTHK and Takungpao between 24 February 2020 and 25 March 2020.
By a letter of 29 April 2020, the Defendant’s solicitors denied that the Defendant was aware of the existence of the Doxxing Injunction. The Defendant’s assertion was noted by the Police by a reply letter dated 9 June 2020.
It can be noted that there is a significant difference in stance between that taken by the Defendant in her solicitors’ letter of 29 April 2020, and that now taken before this Court. In the letter, the solicitors stated that they had been instructed by the Defendant to state categorically on record that she was not aware of the existence of any of the Doxxing Injunction orders at all before copies of them were served on her on or after 26 March 2020. The letter went on to state that, as a matter of fact the Post was promptly removed soon after the Defendant was made aware of the Doxxing Injunction and so she did not knowingly violate any of the Doxxing Injunction by sharing the Post. The letter even suggested that the Commissioner of Police should seek “proper legal advice before proceeding further with the committal proceedings”.
In light of the material found on the forensic examination of the Defendant’s iPhone, that stance plainly was and is untenable. The Defendant now recognises that fact, and says that whilst she did know of the Doxxing Injunction she did not have it at the forefront of her mind at the time she shared the Post.
In the premises, the Statement of Agreed Facts concludes that the actions taken by the Defendant constitute a breach of the Injunction Orders and that she takes full responsibility for them.
Effect of the Doxxing
In his affirmation, PW1 has described how he and his family have been subject to abuse after he was doxxed.
In summary only – which summary should not be taken as in any way making light of his and his family’s suffering – PW1 identifies that he has been subject to up to 100 nuisance calls since March 2020; his personal details and those of his family have been sprayed onto walls in public areas in Kwun Tong and Ma On Shan; he has been signed up for organ donations without his knowledge; and he has been made the victim of unsolicited deliveries and fraudulent loan applications.
His wife has made an affirmation to similar effect. She has received up to 300 nuisance calls since late March 2020. Because of the persistent nuisance, even up to this date she has not dared go out alone in fear of possible harassment.
Defendant’s Evidence
In the Defendant’s affirmation, she introduced its purpose as being to address the Court on her personal and family background, as well as the circumstances leading to her “unintentional breach” of the Doxxing Injunction, and to tender her sincere apology to the Court.
The Defendant was born in Hong Kong and is now 61 years old. She is married, and her husband retired last year. They have two children in their mid-20s, the younger of whom still lives with them. The Defendant is now the person solely responsible for paying the household expenses of her family.
The Defendant received a diploma in Social Work in 1990, and is a Registered Social Worker, as well as an elected member of the Central and Western District Council since 1994. She is currently the Chairwoman of that District Council, and was Chairwoman at the time of the events giving rise to these proceedings. Since elected Chairwoman, she has been receiving a monthly honorarium and an expenses allowance, together comprising approximately $78,000. However, the Defendant uses about half of the amount to employ part-time staff for note-taking at District Council meetings.
In her 2nd affirmation, the Defendant has given greater detail as to the various income and allowances available in her post, and how she deploys them. With the benefit of her extended explanation, therefore, the Defendant says that her financial means are limited and she has savings of no more than $120,000. She lives in public housing and does not own any property.
The Defendant has been law abiding all her life, and has no criminal record. She had never been arrested before the arrest detailed above. She says she has always strived to be a role model for young people, both in her public service and as a social worker. She says she has always tried to be careful in what she says and does, particularly in relation to public affairs.
Her public service for the community began in 1986. Throughout her years of public service, she has been particularly keen on conservation issues, including heritage conservation.
The Defendant offers an explanation for failing to admit liability at the earliest opportunity. Though she does not directly address her solicitors letter of 29 April 2020, she does explain that after receiving the Originating Summons she ticked the box to show her intention to contest this action on 29 September 2020 so as to preserve her position pending leading Counsel’s advice. After receiving that advice on 30 September 2020, she decided to admit liability without further delay, and her solicitors wrote to do so on 6 October 2020.
As to the circumstances leading to the breach of the Doxxing Order, the Defendant says she was sympathetic to the Indonesian journalist whose eye was injured by a rubber bullet fired by a police officer. She also refers to the fact it was widely reported that questions were raised as to whether the firing could be justified at all since there were no protesters nearby, so she was extremely sympathetic to the journalist who reminded her of her previously employed Indonesian domestic helper whom her family treated as part of their family. She says she was particularly upset when it was reported that the Indonesian journalist could not even lodge a formal complaint against the police officer concerned because the Police had persistently refused to disclose the identity of that police officer.
The Defendant says that on the morning of 24 March 2020, she noticed on her Facebook account that a user, who she did not know, had posted the name of the police officer to the Facebook group of “Westerndistrict”, alleging that he was the person who had shot the Indonesian journalist. It was on the face of it a reposting. The Defendant said that was good news, as it would permit the Indonesian journalist to be able to take action against the police officer, and in response to the Facebook request to help by spreading widely, the Defendant shared the post after adding her own comments. That is the Post.
As she explains it, the Defendant shared the Post “without a second thought”. She says she was “wholly oblivious” of the Doxxing Order at the time and did not appreciate that both the person sending the original post and her further sharing of it might be in breach of that order. She says she was not aware, because she had not read it in full, that the information was copied from the ‘Dadfindboy’ group, with which group she was in any event unfamiliar. In other words, at the time she made the Post, she did not have the Doxxing Order at the forefront of her mind. Had she done so, she says she most certainly would not have made the Post.
The Defendant says she now realises that she “should have thought twice”, because a “cavalier sharing” of the Post might have serious consequences for the police officer and his family, and get her into trouble. She recognises that the rule of law is important for Hong Kong, and a breach of a Court order will set a bad example, particularly for young people.
Later in the afternoon of 24 March 2020, the Defendant received a call from a Takungpao journalist informing her that the Post might possibly contravene the Doxxing Order. She says she was shocked. Her first reaction was to seek clarification from a police officer from the Police Public Relations Branch, who she had known for many years. However, he only told her that the matter concerned would be dealt with by the persons concerned, which did not find particularly helpful. So she took legal advice, which was to delete the Post right away. So she immediately removed it before 6 pm on the same day. As a result, the Post remained on her Facebook page for less than eight hours.
Unfortunately, her breach of the Doxxing Injunction was widely reported, leading to a massive online mobilisation for reporting her involvement to the police as well as the Privacy Commissioner for Personal Data.
As to her knowledge of the Doxxing Injunction, the Defendant says she is often added to various groups of social media or instant messaging. She receives numerous messages every day, and could not and would not read all of them, though she would skim through most of them. She says she often receives news from friends and sometimes “just follow[s] the herd” and forward messages when requested to do so. That was how she came to forward the news regarding the Doxxing Injunction in November 2019.
Though she did not have it in mind at the time of the Post on 24 March 2020, she now realises that she did have knowledge of the Doxxing Injunction. But, having forgotten about it, she says her breach was unintentional. Now, she wishes to take full responsibility and to convey her sincere apology to this Court and to PW1 and members of his family, and for any inconvenience caused to anyone. Though she meant no disrespect, she admits that she was reckless in what she did and deserves punishment.
After being arrested, the defendant was cooperative with the Police and frankly admitted owning the relevant Facebook account. She voluntarily tendered her phone for inspection and seizure after unlocking it herself. Her overnight detention in the police station caused her to regret having done such a “stupid thing which caused harm to [PW1] and his family” as well is to her own family.
The Defendant has since re-examined all posts on her Facebook account to make sure they do not contain any information which might possibly harm others or breach any law. Now she manages that account with great caution, to make sure that she does not make the same or similar mistake again.
The Defendant says she has been under great stress since the arrest, and feels bad for letting her family down. Months of self-reflection have followed, and she is genuinely sorry for her act. She attaches her “heartfelt apology” in a letter to this Court, as well as various mitigation letters from family, colleagues and friends.
The apology letter sets out greater detail of her family background, and some detail of her public service over the last decades. It emphasises her deep remorse towards breach of the Doxxing Order, and her thorough regret. She asks for leniency, so as to allow an opportunity to start afresh, and promises never to violate the Doxxing Order again.
The mitigation letters are consistent – to use Mr Lee’s words, they speak with one voice – in describing the Defendant as a caring and compassionate person, who is conscientious and hard-working, someone who has devoted much time and effort in support of the community, and who has clearly shown deep regret and remorse for her actions, which most of her supporters consider must have been a temporary lapse of judgment.
The Defendant says she will serve “in all humility” whatever sentence is passed, and will continue to serve the community as a District Councillor or in some other capacity.
Applicable Principles on Sentencing
In my previous decision of Secretary for Justice v Chan Oi Yau Riyo [2020] 3 HKLRD 494, I set out the appropriate principles. The gist of those principles can be repeated here.
As a superior court of record, the Court of First Instance is invested with the inherent power to punish for contempt in maintaining its authority and preventing its process from being obstructed and abused. The common law powers to fine or imprison, to give an immediate sentence or to postpone it, remain intact. The power of the Court to hand down a suspended sentence is specifically codified in Order 52 rule 7(1). The power to order payment of a fine, or giving security for good behaviour, is preserved by Order 52 rule 9.
The general principles on sentencing in cases of civil contempt are as follows:
In civil contempt, the prime consideration in sentencing is to demonstrate to litigants that orders of the court are to be obeyed. Contempt of civil court orders is a serious matter.
However, a delicate balance has to be maintained in the imposition of the penalty for civil contempt between the strong public interest in ensuring that orders of the Hong Kong Courts will not be flouted and the evaluation of the individual circumstances of each case.
Subject to mitigating factors, if any, the starting and primary penalty for contempt of court in breaching an order in the nature of an injunction is imprisonment. The normal penalty for breaches of injunction orders is imprisonment measured in months.
In a case where there has been a failure to comply with an order of the court and where there is no evidence to suggest that compliance was in any way difficult or impossible, a sentence of imprisonment would not be inappropriate. This would be particularly so in a case where the sentence was designed to enforce compliance. A sentence of imprisonment for a wilful failure to observe a court order can often be appropriate.
The court is empowered with quite a few sentencing options under its inherent powers and the common law.
Imprisonment should be regarded as a sanction of last resort in civil contempt. Where the conclusion is reached that the contempt was not deliberate or not contemptuous, it would be only in very rare circumstances that a sentence of imprisonment would be appropriate.
The purpose of the law of contempt is not to protect the dignity of judges, but to prevent interference with the due administration of justice. The first principle is that court orders are made to be obeyed. They are not guidelines, to be ignored or paid lip service to at the behest of the parties affected. They are the building blocks by which the administration of justice is made workable. Litigants who wilfully breach orders at the expense of their opponents to their advantage do so at the risk of losing their liberty for being in contempt of court.
Indeed, it is fundamental to the rule of law that orders of the court are obeyed. Injunctions generally are granted, and the particular injunction in this case was granted, by the court only after careful consideration of the evidence and the applicable law and arguments advanced. If anyone suggests that the court has made an error in granting the injunction, there is the possibility of an appeal, or of a variation application.
Reference can also be made to the decision of Au-Yeung J in Bruno Arboit as Sole Liquidator of Highfit Development Co Ltd v Koo Siu Ying [2015] 3 HKLRD 319, where that judge emphasised a prime consideration of the court in sentencing contempt is to signal the importance of demonstrating to litigants that the orders of the court are to be obeyed. Au-Yeung J also made the following points:
Not only should imprisonment be regarded as a sanction of the last resort, any custodial term should be as short as possible and consistent with the circumstances of the case.
The court has an absolute discretion to suspend the sentence of imprisonment for such period and on such terms as it deems fit.
The court will have to consider all the circumstances of the contempt, including the nature
KCCC2524/2019
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46
葵涌
DCCC 278/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 278 OF 2020
————————————–
HKSAR
v
CHAN CHUN FAI, KELVIN
—————————————
Before: Her Honour Judge A J Woodcock in Court
Date: 28 September 2020
Present: Ms Chan Crystal W S, Senior Public Prosecutor (Acting), for HKSAR/ Director of Public Prosecutions
Mr Leung Hung Kuk Michael, instructed by K B Chau & Co, assigned by the Director of Legal Aid, for the defendant
Offences: [1] Attempted arson (企圖縱火)
[2] Possession of things with intent to destroy or damage property (管有物品意圖摧毀或損壞財產)
—————————————–
REASONS FOR SENTENCE
—————————————–
The defendant pleaded guilty to 2 charges. He pleaded guilty to Attempted Arson, contrary to Section 60(1), 60(3), 63(1) and 159G of the Crimes Ordinance, Cap 200, Charge 1. On 29 January 2020, near the vehicular gate entrance of Kwai Chung police station, Kwai Foo road, Kwai Chung, in Hong Kong, the defendant together with 2 persons unknown, without lawful excuse, attempted to destroy or damage by fire, police vehicles inside the police station, property belonging to the Hong Kong government, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged.
He also pleaded guilty to Charge 2, Possession of things with intent to destroy or damage property, contrary to Section 62(a) and 63(2) of the same Ordinance. On 4 February 2020 in room G07, 11th floor, Kingsford industrial building, Phase 2, 26–32 Kwai Hei Street in Kwai Chung, the defendant had 11 petrol bombs, one can of lighter fluid, 2 bottles of drain cleaners and 3 empty glass bottles in his custody or under his control, intending without lawful excuse to use the said things or cause or permit another to use the said things to destroy or damage property belonging to some other person.
Facts of the Case
The defendant admitted that on 29 January 2020 at about 8pm he was with 2 other black clad masked males near Kwai Chung police station before the 3 of them rushed at the vehicular gate entrance of the station and threw at least 3 petrol bombs at the gate. They all ignited and exploded outside the gate blackening the area. The 3 men ran away immediately.
There is CCTV footage of the defendant moving between Kingsford industrial building nearby and the police station as well as meeting up with the 2 other males. There is CCTV footage of them throwing, it appears, 4 petrol bombs at the station. The CCTV footage just inside and outside the police station was played in open court, MFI-1 and I have screenshots from the footage, MFI-2. The 3 people clad in black from head to toe can be seen lighting petrol bombs and throwing them towards the vehicular entrance of the station.
A pedestrian in a bright red jacket walking in front of that vehicular entrance was stopped dead in her tracks as petrol bombs were literally thrown in her direction. Luckily, the defendant and the others threw from behind a railing which meant they could not get closer or rather they were too afraid to get closer, otherwise she could have been hit by one of them. Fortunately for this pedestrian, they did not get close enough because of the railing to make it a complete offence hence it is an attempted charge.
On 4 February 2020 the police lay in wait outside Kingsford industrial building at about 6pm. At 10:45pm they saw the defendant riding a bicycle to leave the building. He was intercepted and arrested for arson. Under caution he admitted having thrown petrol bombs at the station with the intention of burning vehicles inside the compound. He did it for fun. He threw petrol bombs with 2 other people.
After his arrest he was searched and keys were found as well as a receipt dated 20 December 2019 for buying, amongst other things, lighter fuel and spray paint as well as another receipt for the same date for plastic wrap, lighters and aluminium foil. One of the keys was for room G07 on the 11th floor of Kingsford industrial building.
Those premises were searched after his arrest and the police seized 11 more petrol bombs from inside or near a black rucksack in the premises. 9 of the bottles had plastic stoppers and were wrapped with cloth for better grip I assume, one was stuffed with a cloth wick and the other a plastic stopper. The defendant admitted under caution that these were 11 more petrol bombs made before the attack on the police station. The police also found a black ski mask, a black shirt and trousers as well as a pair of black shoes which the defendant said he wore when he threw petrol bombs at the station.
In addition to those petrol bombs, the police also found 2 more bottles of drain cleaner, one bottle of colourless lighter fluid, 3 empty glass bottles, one respirator, and a red cap and jacket. Photographs of the premises and items found are in MFI-4.
The tenant of room G of the 11th floor told the police that she had subdivided room G into 8 rooms and that the defendant entered into a tenancy agreement to rent room G07 from 13 December 2019 to 12 December 2021 for a monthly rent of $6300 plus electricity. The defendant had 2 keys and the password code.
There was a video recorded interview where the defendant admitted that on 29 January 2020 at around 8 PM he and 2 other men all dressed in black threw 2 petrol bombs and 2 gas canisters at the police station intending to burn police vehicles inside. He had met these 2 other men at a protest about a month before this incident but refused to provide their contact details and identities to the police.
He admitted arranging to meet the 2 men that evening with 4 petrol bombs in his bag before they set off together for the police station. He threw the 1st petrol bomb and the 2 other men threw one each after him. He then threw the last petrol bomb before they all immediately dispersed and went their own ways. He ran to his bicycle and cycled back to Kingsford Industrial Building. He identified himself as one of the 3 persons captured by the CCTV footage of the police station throwing petrol bombs. He had changed clothes before and after he threw petrol bombs to avoid being recognised or identified.
He admitted making those petrol bombs that were thrown as well as those found in the unit in the industrial building. He had made them by pouring lighter fluid and spray paint into glass bottles. He told the police where he bought the liquids. He learned how to make a petrol bomb on the Internet. He says he did it himself without help from others. He said the remaining 1L of drain cleaner and 2.2L of lighter fluid would be used to make more petrol bombs. The respirator was for future protests.
The defendant said that everything in the premises belong to him but for the red cap and red jacket which belonged to one of the other 2 men. He said he had rented the premises from mid-December 2019 to record music.
He did tell the police in his interview that he felt remorse and acted recklessly for the social movement. He had affected his future by committing these offences but had not helped the social movement in any way.
A government chemist examined the burned debris and damaged gas canisters found in front of the vehicular gate of the station and confirmed that they contain traces of highly flammable solvents and highly flammable compressed gas. Photographs in MFI-4 show the items recovered and the blackened road surfaces.
Similarly, the chemist found all 11 petrol bombs seized from the premises in Kingsford industrial building contained an organic mixture of highly flammable solvents whilst 3 of the 11 petrol bombs also contained a liquid containing sulphuric acid with high concentrations. This meant that they were highly corrosive and capable of causing severe skin burns and permanent visual damage. The 2 bottle of drain cleaners found contained a total of about 1 L of a liquid containing sulphuric acid of a high concentration, of 97%. The 2.2 L bottle of colourless lighter fluid found contained an organic mixture containing highly flammable solvents.
The defendant admitted throwing petrol bombs without lawful excuse intending to destroy or damage police vehicles inside the police station or was reckless as to whether such property would be destroyed or damaged.
He also admitted all items particularised in Charge 2 were in his custody or under his control to be used by him or others to damage property belonging to some other person by fire without lawful excuse.
Mitigation
The defendant is now 18 years old. At the time of these offences he was 17. He had a clear record and had left school a few months before his arrest having completed Form 4. He was working as a part-time transportation worker and trumpet tutor. He lives with his parents in Kwai Chung. In mitigation I have received a large number of letters which defence counsel, Mr Leung hopes will give me an insight into the defendant to assist me in sentencing.
I don’t intend to repeat the contents of all the letters. They come from principals and teachers from his primary school and secondary school. There are letters from those who have taught him trumpet and played musical instruments with the defendant. They praise his dedication and hard work. Lastly, there are letters from the defendant himself, family friends and relatives.
The defendant was diagnosed with attention deficit hyperactivity disorder (ADHD) with features of oppositional defiant behaviour disorder in his childhood. I have a recent psychiatrist’s memo dated 25 June 2019. It gives a brief history of the defendant’s diagnosis. At that time, he was worried about having to repeat Form 4 because of unsatisfactory academic performance. If he had started school in September 2019 he was willing to resume medical treatment for attention deficit and his impulse control issues.
That psychiatrist recommended he be promoted to Form 5 with better guidance and supervision from the school social worker. That psychiatrist also advised his parents how to deal with issues in the upcoming school year. In the end, he did not attend school from September 2019.
In the defendant’s own letter, he expresses remorse and says time spent already in remand makes him feel like he is wasting his life and youth. He has taken the time to write countless letters to his loved ones to warn them that the price of breaking the law is too high. He finds it particularly difficult not being able to play his musical instrument. He wants to pursue his musical dreams. He committed these crimes without considering the consequences and the social unrest made him act impulsively. He used the wrong method to express his emotions.
Many of the letters refer to his ADHD. I have been asked to take it into account. He has been described as impulsive at school, losing his temper easily and finally quitting out of frustration and disappointment. He was observed to be easily influenced by peers. It was suggested because of his ADHD he was more affected by the protests and social discontent which made him confrontational, reckless and have a need to impress peers.
Family members have told me he did not come from a particular happy family home and he was exposed to much argument and conflict. His parents started divorce proceedings recently which had an impact on the defendant himself. He was left to his own devices often; even to feed himself.
Mr Leung has said all he can say on behalf of the defendant. The defendant did have good academic grades which got him into an academic secondary school. He was musically talented. It appears his schooling was affected by his then untreated ADHD which led to him leaving school early. Letters from relatives and family friends emphasise that he was a kind boy growing up. One comments how she is proud he is admitting his crimes and taking responsibilities for his actions. Defence counsel does not try to justify the actions and intentions of the defendant but does stress his regret.
It was also suggested that although he made the petrol bombs and packed 4 in a rucksack to go and meet the other 2 wanted males, he did have second thoughts. He was scared to go and meet them to carry out their plan but in the end, he did.
Reasons for Sentence
There should be no doubt in anyone’s mind that an offence of this nature, irrespective of motive or reason is to be taken and viewed with the utmost seriousness. The Court of Appeal said in The Queen v Li Mun Tong CACC 309/1994 “Arson, because of the inherent danger in any uncontrolled fire, is always regarded as an offence of particular gravity. Arsonists exhibit reckless disregard for life and property.”
The 1st charge under s 60(1) of the Crimes Ordinance, which the defendant is facing, is less serious than a charge under s 60(2); as the latter has to be sentenced on the basis of arson endangering the life of another, while the former only involves damage to property. What was accepted by the prosecution and admitted by the defendant was his intention to destroy or damage vehicles inside a police station or being reckless as to whether such property would be destroyed or damaged.
Arson is a very serious offence which carries a maximum sentence of life imprisonment. Such a maximum sentence highlights the seriousness with which deliberately starting fires must be viewed. There are no tariff guidelines for arson. Each case very much depends on its own facts and circumstances; these vary so much in cases of arson. The 2nd charge carries a maximum sentence of 10 years’ imprisonment.
In HKSAR v Kung Pak Fu 2008 2 HKCLRT 240 the Court of Appeal reviewed a number of arson cases and said at paragraph 23:-
“….. arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for this offence because its gravity differs from case to case, particularly in cases involving family disputes or souring of relationships. The court must impose a sentence which properly reflects the gravity of the particular case.”
In Hong Kong there are no previous authorities with similar facts. The scenario where petrol bombs are intentionally thrown at a police station with the intention to damage property inside the compound is unprecedented here as far as sentencing in the District Court is concerned. Charge 1 involved an attack on a police station and public property. It was a direct attack on law and order in our city.
By January 2020 Hong Kong had seen and dealt with citywide conflicts, protests, destruction of property and countless incidents of petrol bombs being thrown indiscriminately. The defendant’s actions were perpetuating this type of violence.
The fact the defendant was young and of previous good character does not carry significant weight when the intention is to cause serious damage to property by arson. Such an intention would be enough to warrant a sentence of significant length.
Sentencing is a balancing act and in some cases the serious nature, circumstances and the prevalence of the offence at that time requires a custodial sentence that serves as a deterrent to others and will therefore take priority over the personal details and mitigation of an individual defendant. Courts will impose a sentence that is punitive and sufficiently deterrent in accordance with principles established in applicable case law.
Sentencing emphasis is not on rehabilitation in serious arson cases. The public must be protected. The punishment must reflect the gravity of the offence and be deterrent. Only in very few instances would the principle of rehabilitation be the more important consideration over a deterrent approach. On this, I have taken into account what has recently been said in HKSAR v SWS CAAR 1/2020 by the Court of Appeal. That court also emphasised how extremely dangerous petrol bombs can be, not only to those that throw them but also to those around them.
I took into account the defendant is 18 years old and despite the serious facts and full mitigation I had already heard, I called for a Training Centre report. I also called for a psychiatrist report as it was submitted his childhood diagnosis may have something to do with the commission of these offences. These reports ensure I have all relevant facts and mitigation before me before I sentence.
I won’t repeat the contents of either reports here. The reports go through the history of his diagnosis of ADHD in childhood and his non-compliance with medication during his adolescent years. There is no evidence or suggestion ADHD played any part in these offences. The Training Centre report says the Medical Officer has deemed the defendant medically unfit for detention in a Training Centre. His opinion is unrelated to ADHD. In any event, I would not have ultimately considered a Training Centre order. The facts and the charges are too serious to consider a Training Centre order appropriate.
There are features in this case which I have taken into account in considering an appropriate starting point. These were planned, calculated and premeditated offences; the defendant bought materials and made petrol bombs in premises he had rented away from his home. He was the one who took the time to learn how to make them from the Internet and spent money buying the materials to create weapons; dangerous and notoriously unstable weapons. There was prior preparation and certainly these were not offences committed on the spur of the moment or impulsively.
His manner of dress is relevant, the fact is the defendant was dressed head to toe in black to avoid arrest and identification if possible. He changed before and after throwing petrol bombs. He was prepared to carry out his plan to cause damage after making petrol bombs when it was arranged he meet 2 other assailants carrying some of the petrol bombs in his bag to go to the police station.
Lastly, it is an aggravating factor that for this arson offence the defendant intended to use petrol bombs to achieve his purpose. This was not a case of arson by setting fire to newspaper or rubbish. Damage could have been considerable because once a petrol bomb is ignited and thrown, it is quite impossible to foresee all the possible or likely consequences. An accelerant by its nature, speeds the progress of a fire considerably. That is why I describe a petrol bomb as a dangerous and unstable weapon.
The CCTV footage demonstrates how dangerous and unstable they are. One of the black clad men lit a petrol bomb and it appears to flare up whilst he is still holding it. I’m sure that was not intended. He throws it at 20:09:02 according to the time on the CCTV footage. The 4th and last one is thrown at 20:09:08 before they run away. What can clearly be seen is that before the 1st one is lit and thrown there is a lone woman in a bright red jacket walking outside the police station and is half way across the entrance of the car park. One of the petrol bombs landed close enough that its flames reached the pavement very near her. She, an innocent bystander, was very close to the fires and explosions caused by those petrol bombs.
Either the defendant and other 2 men did not see her, which I find hard to believe or they did not care. They are lucky she was not hit by a petrol bomb or glass fragments or its subsequent flames and the defendant is fortunate the prosecution did not consider the more serious arson charge contrary to section 60(2). A charge of being reckless as to whether the life of another would be thereby endangered.
I note that at 20:09:08 the 3 men run away and the woman in the bright red jacket hurries past the vehicular entrance and the fires to her right on the road. After that, vehicles have to stop because of the fires on the road which look like they are pettering out when suddenly at 20:09:41 there is an explosion from one of the fires. If anyone had approached those by then small fires or been near enough at that moment, one can only imagine the serious consequences.
The particulars of Charge 2 accuses the defendant of having possession of things with intent to destroy or damage property, namely 11 petrol bombs, lighter fluid, bottles of drain cleaners containing sulphuric acid with a very high concentration and other material capable of making more petrol bombs. He admits these things are for and purposely made to commit arson. I find it a relevant factor that 3 of the ready-made petrol bombs contained sulphuric acid at a concentration level of 97%, 82% and 80% respectively. This means that if that liquid had come into contact with a person, the liquid was highly corrosive and capable of causing severe skin burns and permanent visual damage.
I have considered all the facts and the factors I have highlighted above. I have also taken into account the defendants mitigation, background, his previous clear record and his age at the time of the offence. It was part of his mitigation that his childhood diagnosis of ADHD contributed to these offences. The Psychiatrist report does not support that mitigation. Nothing in the facts or the mitigation suggests to me that that diagnosis is a mitigating factor of any significant weight or even relevance. His best mitigation is his plea of guilty.
For Charge 1, I adopt a starting point of 5 years’ imprisonment. For Charge 2, I adopt a starting point of 3 years and 6 months’ imprisonment. The defendant pleaded guilty at the earliest opportunity, therefore he will receive a one-third reduction in his sentences. Other than this, there is nothing I find would warrant any further reduction.
Accordingly, the defendant is sentenced to 3 years and 4 months’ imprisonment for Charge 1 and 2 years and 4 months’ imprisonment for Charge 2.
Taking into account the totality principle and the fact that those things the defendant possessed with intent to destroy or damage property were found days after the attempted arson charge, I find it appropriate to order 6 months of Charge 2 to be served consecutively to the 3 years and 4 months of Charge 1 and the balance concurrently.
I am of the view that an overall sentence of 3 years and 10 months properly reflects the defendant’s criminality and culpability. Therefore, the defendant is sentenced to 3 years and 10 months imprisonment.
( A J Woodcock )
District Judge
DCCC278/2020
胡雅文
區院
認罪
罪成
音樂導師
18
管有任何物品意圖摧毀或損壞財產
汽油彈、火機燃料、通渠水、空玻璃樽
判囚
46
02/04/2020
葵涌
DCCC 278/2020
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 278 OF 2020
————————————–
HKSAR
v
CHAN CHUN FAI, KELVIN
—————————————
Before: Her Honour Judge A J Woodcock in Court
Date: 28 September 2020
Present: Ms Chan Crystal W S, Senior Public Prosecutor (Acting), for HKSAR/ Director of Public Prosecutions
Mr Leung Hung Kuk Michael, instructed by K B Chau & Co, assigned by the Director of Legal Aid, for the defendant
Offences: [1] Attempted arson (企圖縱火)
[2] Possession of things with intent to destroy or damage property (管有物品意圖摧毀或損壞財產)
—————————————–
REASONS FOR SENTENCE
—————————————–
The defendant pleaded guilty to 2 charges. He pleaded guilty to Attempted Arson, contrary to Section 60(1), 60(3), 63(1) and 159G of the Crimes Ordinance, Cap 200, Charge 1. On 29 January 2020, near the vehicular gate entrance of Kwai Chung police station, Kwai Foo road, Kwai Chung, in Hong Kong, the defendant together with 2 persons unknown, without lawful excuse, attempted to destroy or damage by fire, police vehicles inside the police station, property belonging to the Hong Kong government, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged.
He also pleaded guilty to Charge 2, Possession of things with intent to destroy or damage property, contrary to Section 62(a) and 63(2) of the same Ordinance. On 4 February 2020 in room G07, 11th floor, Kingsford industrial building, Phase 2, 26–32 Kwai Hei Street in Kwai Chung, the defendant had 11 petrol bombs, one can of lighter fluid, 2 bottles of drain cleaners and 3 empty glass bottles in his custody or under his control, intending without lawful excuse to use the said things or cause or permit another to use the said things to destroy or damage property belonging to some other person.
Facts of the Case
The defendant admitted that on 29 January 2020 at about 8pm he was with 2 other black clad masked males near Kwai Chung police station before the 3 of them rushed at the vehicular gate entrance of the station and threw at least 3 petrol bombs at the gate. They all ignited and exploded outside the gate blackening the area. The 3 men ran away immediately.
There is CCTV footage of the defendant moving between Kingsford industrial building nearby and the police station as well as meeting up with the 2 other males. There is CCTV footage of them throwing, it appears, 4 petrol bombs at the station. The CCTV footage just inside and outside the police station was played in open court, MFI-1 and I have screenshots from the footage, MFI-2. The 3 people clad in black from head to toe can be seen lighting petrol bombs and throwing them towards the vehicular entrance of the station.
A pedestrian in a bright red jacket walking in front of that vehicular entrance was stopped dead in her tracks as petrol bombs were literally thrown in her direction. Luckily, the defendant and the others threw from behind a railing which meant they could not get closer or rather they were too afraid to get closer, otherwise she could have been hit by one of them. Fortunately for this pedestrian, they did not get close enough because of the railing to make it a complete offence hence it is an attempted charge.
On 4 February 2020 the police lay in wait outside Kingsford industrial building at about 6pm. At 10:45pm they saw the defendant riding a bicycle to leave the building. He was intercepted and arrested for arson. Under caution he admitted having thrown petrol bombs at the station with the intention of burning vehicles inside the compound. He did it for fun. He threw petrol bombs with 2 other people.
After his arrest he was searched and keys were found as well as a receipt dated 20 December 2019 for buying, amongst other things, lighter fuel and spray paint as well as another receipt for the same date for plastic wrap, lighters and aluminium foil. One of the keys was for room G07 on the 11th floor of Kingsford industrial building.
Those premises were searched after his arrest and the police seized 11 more petrol bombs from inside or near a black rucksack in the premises. 9 of the bottles had plastic stoppers and were wrapped with cloth for better grip I assume, one was stuffed with a cloth wick and the other a plastic stopper. The defendant admitted under caution that these were 11 more petrol bombs made before the attack on the police station. The police also found a black ski mask, a black shirt and trousers as well as a pair of black shoes which the defendant said he wore when he threw petrol bombs at the station.
In addition to those petrol bombs, the police also found 2 more bottles of drain cleaner, one bottle of colourless lighter fluid, 3 empty glass bottles, one respirator, and a red cap and jacket. Photographs of the premises and items found are in MFI-4.
The tenant of room G of the 11th floor told the police that she had subdivided room G into 8 rooms and that the defendant entered into a tenancy agreement to rent room G07 from 13 December 2019 to 12 December 2021 for a monthly rent of $6300 plus electricity. The defendant had 2 keys and the password code.
There was a video recorded interview where the defendant admitted that on 29 January 2020 at around 8 PM he and 2 other men all dressed in black threw 2 petrol bombs and 2 gas canisters at the police station intending to burn police vehicles inside. He had met these 2 other men at a protest about a month before this incident but refused to provide their contact details and identities to the police.
He admitted arranging to meet the 2 men that evening with 4 petrol bombs in his bag before they set off together for the police station. He threw the 1st petrol bomb and the 2 other men threw one each after him. He then threw the last petrol bomb before they all immediately dispersed and went their own ways. He ran to his bicycle and cycled back to Kingsford Industrial Building. He identified himself as one of the 3 persons captured by the CCTV footage of the police station throwing petrol bombs. He had changed clothes before and after he threw petrol bombs to avoid being recognised or identified.
He admitted making those petrol bombs that were thrown as well as those found in the unit in the industrial building. He had made them by pouring lighter fluid and spray paint into glass bottles. He told the police where he bought the liquids. He learned how to make a petrol bomb on the Internet. He says he did it himself without help from others. He said the remaining 1L of drain cleaner and 2.2L of lighter fluid would be used to make more petrol bombs. The respirator was for future protests.
The defendant said that everything in the premises belong to him but for the red cap and red jacket which belonged to one of the other 2 men. He said he had rented the premises from mid-December 2019 to record music.
He did tell the police in his interview that he felt remorse and acted recklessly for the social movement. He had affected his future by committing these offences but had not helped the social movement in any way.
A government chemist examined the burned debris and damaged gas canisters found in front of the vehicular gate of the station and confirmed that they contain traces of highly flammable solvents and highly flammable compressed gas. Photographs in MFI-4 show the items recovered and the blackened road surfaces.
Similarly, the chemist found all 11 petrol bombs seized from the premises in Kingsford industrial building contained an organic mixture of highly flammable solvents whilst 3 of the 11 petrol bombs also contained a liquid containing sulphuric acid with high concentrations. This meant that they were highly corrosive and capable of causing severe skin burns and permanent visual damage. The 2 bottle of drain cleaners found contained a total of about 1 L of a liquid containing sulphuric acid of a high concentration, of 97%. The 2.2 L bottle of colourless lighter fluid found contained an organic mixture containing highly flammable solvents.
The defendant admitted throwing petrol bombs without lawful excuse intending to destroy or damage police vehicles inside the police station or was reckless as to whether such property would be destroyed or damaged.
He also admitted all items particularised in Charge 2 were in his custody or under his control to be used by him or others to damage property belonging to some other person by fire without lawful excuse.
Mitigation
The defendant is now 18 years old. At the time of these offences he was 17. He had a clear record and had left school a few months before his arrest having completed Form 4. He was working as a part-time transportation worker and trumpet tutor. He lives with his parents in Kwai Chung. In mitigation I have received a large number of letters which defence counsel, Mr Leung hopes will give me an insight into the defendant to assist me in sentencing.
I don’t intend to repeat the contents of all the letters. They come from principals and teachers from his primary school and secondary school. There are letters from those who have taught him trumpet and played musical instruments with the defendant. They praise his dedication and hard work. Lastly, there are letters from the defendant himself, family friends and relatives.
The defendant was diagnosed with attention deficit hyperactivity disorder (ADHD) with features of oppositional defiant behaviour disorder in his childhood. I have a recent psychiatrist’s memo dated 25 June 2019. It gives a brief history of the defendant’s diagnosis. At that time, he was worried about having to repeat Form 4 because of unsatisfactory academic performance. If he had started school in September 2019 he was willing to resume medical treatment for attention deficit and his impulse control issues.
That psychiatrist recommended he be promoted to Form 5 with better guidance and supervision from the school social worker. That psychiatrist also advised his parents how to deal with issues in the upcoming school year. In the end, he did not attend school from September 2019.
In the defendant’s own letter, he expresses remorse and says time spent already in remand makes him feel like he is wasting his life and youth. He has taken the time to write countless letters to his loved ones to warn them that the price of breaking the law is too high. He finds it particularly difficult not being able to play his musical instrument. He wants to pursue his musical dreams. He committed these crimes without considering the consequences and the social unrest made him act impulsively. He used the wrong method to express his emotions.
Many of the letters refer to his ADHD. I have been asked to take it into account. He has been described as impulsive at school, losing his temper easily and finally quitting out of frustration and disappointment. He was observed to be easily influenced by peers. It was suggested because of his ADHD he was more affected by the protests and social discontent which made him confrontational, reckless and have a need to impress peers.
Family members have told me he did not come from a particular happy family home and he was exposed to much argument and conflict. His parents started divorce proceedings recently which had an impact on the defendant himself. He was left to his own devices often; even to feed himself.
Mr Leung has said all he can say on behalf of the defendant. The defendant did have good academic grades which got him into an academic secondary school. He was musically talented. It appears his schooling was affected by his then untreated ADHD which led to him leaving school early. Letters from relatives and family friends emphasise that he was a kind boy growing up. One comments how she is proud he is admitting his crimes and taking responsibilities for his actions. Defence counsel does not try to justify the actions and intentions of the defendant but does stress his regret.
It was also suggested that although he made the petrol bombs and packed 4 in a rucksack to go and meet the other 2 wanted males, he did have second thoughts. He was scared to go and meet them to carry out their plan but in the end, he did.
Reasons for Sentence
There should be no doubt in anyone’s mind that an offence of this nature, irrespective of motive or reason is to be taken and viewed with the utmost seriousness. The Court of Appeal said in The Queen v Li Mun Tong CACC 309/1994 “Arson, because of the inherent danger in any uncontrolled fire, is always regarded as an offence of particular gravity. Arsonists exhibit reckless disregard for life and property.”
The 1st charge under s 60(1) of the Crimes Ordinance, which the defendant is facing, is less serious than a charge under s 60(2); as the latter has to be sentenced on the basis of arson endangering the life of another, while the former only involves damage to property. What was accepted by the prosecution and admitted by the defendant was his intention to destroy or damage vehicles inside a police station or being reckless as to whether such property would be destroyed or damaged.
Arson is a very serious offence which carries a maximum sentence of life imprisonment. Such a maximum sentence highlights the seriousness with which deliberately starting fires must be viewed. There are no tariff guidelines for arson. Each case very much depends on its own facts and circumstances; these vary so much in cases of arson. The 2nd charge carries a maximum sentence of 10 years’ imprisonment.
In HKSAR v Kung Pak Fu 2008 2 HKCLRT 240 the Court of Appeal reviewed a number of arson cases and said at paragraph 23:-
“….. arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for this offence because its gravity differs from case to case, particularly in cases involving family disputes or souring of relationships. The court must impose a sentence which properly reflects the gravity of the particular case.”
In Hong Kong there are no previous authorities with similar facts. The scenario where petrol bombs are intentionally thrown at a police station with the intention to damage property inside the compound is unprecedented here as far as sentencing in the District Court is concerned. Charge 1 involved an attack on a police station and public property. It was a direct attack on law and order in our city.
By January 2020 Hong Kong had seen and dealt with citywide conflicts, protests, destruction of property and countless incidents of petrol bombs being thrown indiscriminately. The defendant’s actions were perpetuating this type of violence.
The fact the defendant was young and of previous good character does not carry significant weight when the intention is to cause serious damage to property by arson. Such an intention would be enough to warrant a sentence of significant length.
Sentencing is a balancing act and in some cases the serious nature, circumstances and the prevalence of the offence at that time requires a custodial sentence that serves as a deterrent to others and will therefore take priority over the personal details and mitigation of an individual defendant. Courts will impose a sentence that is punitive and sufficiently deterrent in accordance with principles established in applicable case law.
Sentencing emphasis is not on rehabilitation in serious arson cases. The public must be protected. The punishment must reflect the gravity of the offence and be deterrent. Only in very few instances would the principle of rehabilitation be the more important consideration over a deterrent approach. On this, I have taken into account what has recently been said in HKSAR v SWS CAAR 1/2020 by the Court of Appeal. That court also emphasised how extremely dangerous petrol bombs can be, not only to those that throw them but also to those around them.
I took into account the defendant is 18 years old and despite the serious facts and full mitigation I had already heard, I called for a Training Centre report. I also called for a psychiatrist report as it was submitted his childhood diagnosis may have something to do with the commission of these offences. These reports ensure I have all relevant facts and mitigation before me before I sentence.
I won’t repeat the contents of either reports here. The reports go through the history of his diagnosis of ADHD in childhood and his non-compliance with medication during his adolescent years. There is no evidence or suggestion ADHD played any part in these offences. The Training Centre report says the Medical Officer has deemed the defendant medically unfit for detention in a Training Centre. His opinion is unrelated to ADHD. In any event, I would not have ultimately considered a Training Centre order. The facts and the charges are too serious to consider a Training Centre order appropriate.
There are features in this case which I have taken into account in considering an appropriate starting point. These were planned, calculated and premeditated offences; the defendant bought materials and made petrol bombs in premises he had rented away from his home. He was the one who took the time to learn how to make them from the Internet and spent money buying the materials to create weapons; dangerous and notoriously unstable weapons. There was prior preparation and certainly these were not offences committed on the spur of the moment or impulsively.
His manner of dress is relevant, the fact is the defendant was dressed head to toe in black to avoid arrest and identification if possible. He changed before and after throwing petrol bombs. He was prepared to carry out his plan to cause damage after making petrol bombs when it was arranged he meet 2 other assailants carrying some of the petrol bombs in his bag to go to the police station.
Lastly, it is an aggravating factor that for this arson offence the defendant intended to use petrol bombs to achieve his purpose. This was not a case of arson by setting fire to newspaper or rubbish. Damage could have been considerable because once a petrol bomb is ignited and thrown, it is quite impossible to foresee all the possible or likely consequences. An accelerant by its nature, speeds the progress of a fire considerably. That is why I describe a petrol bomb as a dangerous and unstable weapon.
The CCTV footage demonstrates how dangerous and unstable they are. One of the black clad men lit a petrol bomb and it appears to flare up whilst he is still holding it. I’m sure that was not intended. He throws it at 20:09:02 according to the time on the CCTV footage. The 4th and last one is thrown at 20:09:08 before they run away. What can clearly be seen is that before the 1st one is lit and thrown there is a lone woman in a bright red jacket walking outside the police station and is half way across the entrance of the car park. One of the petrol bombs landed close enough that its flames reached the pavement very near her. She, an innocent bystander, was very close to the fires and explosions caused by those petrol bombs.
Either the defendant and other 2 men did not see her, which I find hard to believe or they did not care. They are lucky she was not hit by a petrol bomb or glass fragments or its subsequent flames and the defendant is fortunate the prosecution did not consider the more serious arson charge contrary to section 60(2). A charge of being reckless as to whether the life of another would be thereby endangered.
I note that at 20:09:08 the 3 men run away and the woman in the bright red jacket hurries past the vehicular entrance and the fires to her right on the road. After that, vehicles have to stop because of the fires on the road which look like they are pettering out when suddenly at 20:09:41 there is an explosion from one of the fires. If anyone had approached those by then small fires or been near enough at that moment, one can only imagine the serious consequences.
The particulars of Charge 2 accuses the defendant of having possession of things with intent to destroy or damage property, namely 11 petrol bombs, lighter fluid, bottles of drain cleaners containing sulphuric acid with a very high concentration and other material capable of making more petrol bombs. He admits these things are for and purposely made to commit arson. I find it a relevant factor that 3 of the ready-made petrol bombs contained sulphuric acid at a concentration level of 97%, 82% and 80% respectively. This means that if that liquid had come into contact with a person, the liquid was highly corrosive and capable of causing severe skin burns and permanent visual damage.
I have considered all the facts and the factors I have highlighted above. I have also taken into account the defendants mitigation, background, his previous clear record and his age at the time of the offence. It was part of his mitigation that his childhood diagnosis of ADHD contributed to these offences. The Psychiatrist report does not support that mitigation. Nothing in the facts or the mitigation suggests to me that that diagnosis is a mitigating factor of any significant weight or even relevance. His best mitigation is his plea of guilty.
For Charge 1, I adopt a starting point of 5 years’ imprisonment. For Charge 2, I adopt a starting point of 3 years and 6 months’ imprisonment. The defendant pleaded guilty at the earliest opportunity, therefore he will receive a one-third reduction in his sentences. Other than this, there is nothing I find would warrant any further reduction.
Accordingly, the defendant is sentenced to 3 years and 4 months’ imprisonment for Charge 1 and 2 years and 4 months’ imprisonment for Charge 2.
Taking into account the totality principle and the fact that those things the defendant possessed with intent to destroy or damage property were found days after the attempted arson charge, I find it appropriate to order 6 months of Charge 2 to be served consecutively to the 3 years and 4 months of Charge 1 and the balance concurrently.
I am of the view that an overall sentence of 3 years and 10 months properly reflects the defendant’s criminality and culpability. Therefore, the defendant is sentenced to 3 years and 10 months imprisonment.
( A J Woodcock )
District Judge
DCCC 813/2019
[2020] HKDC 838
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 813 OF 2019
—————————–
HKSAR
v
LEUNG PAK TIM (D1)
KUNG CHI YUEN (D2)
LEE MAN HIM (D3)
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 24 September 2020
Present: Mr Ivan Cheung, Senior Public Prosecutor, for HKSAR/Director of Public Prosecutions
Mr Shek Shu Ming, Randy, instructed by S T Cheng & Co, assigned by the Director of Legal Aid, for the 1st defendant
Mr Lai Kin Wah, Kelvin, instructed by Fan Wong & Tso, assigned by the Director of Legal Aid, for the 2nd defendant
Mr Kwan Hang Fan, Jasper, instructed by Cedric & Co, assigned by the Director of Legal Aid, for the 3rd defendant
Offence: [1] Riot（暴動） – D1 – D3
[2] Causing grievous bodily harm with intent（有意圖而導致身體受嚴重傷害） – D1 & D3
[3] Riot（暴動） – D1 & D2
[4] Causing grievous bodily harm with intent（有意圖而導致身體受嚴重傷害） – D1 & D2
—————————————–
REASONS FOR SENTENCE
—————————————–
There are 2 riot charges in this case, Charges 1 and 3. 2 riots took place on Level III, Phase 1 of New Town Plaza in Shatin, New Territories one after the other. During those riots a police officer was wounded in the course of each riot. Charges 2 and 4 are offences of causing grievous bodily harm with intent to those 2 officers during those 2 riots.
The 1st defendant pleaded guilty to Charges 1 and 3. The 2nd defendant also pleaded guilty to Charges 1 and 3. The 3rd defendant only faced one riot charge and pleaded guilty to Charge 1. Those defendants facing Charges 2 and 4 pleaded not guilty and those 2 charges were put on the court file, not to be dealt with unless there is an order from this court or the Court of Appeal.
Accordingly, the 1st defendant was convicted of both charges of riot, Charges 1 and 3 as was the 2nd defendant. The 3rd defendant was convicted of Charge 1, a single riot charge.
Facts of the case
Since June 2019, Hong Kong experienced a series of protests in opposition to the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill. The protests escalated into serious social unrest and public disorder including on occasions, riots.
On the 14 July 2019 there were large crowds of protesters gathered in the Shatin area. As a result, various units of police officers had to be deployed in the area to restore law and order. A particular unit of police officers in plain clothes were deployed together with uniform officers near Lucky Plaza, Shatin. They dispersed crowds gathered in that Plaza before stationing themselves in Shatin Centre at about 21:20 hours.
Amongst these officers were PW1 and PW2 in plain clothes. PW1 was tasked with video taking duties at the time. At about 21:45 hours these 2 officers with other members of their party were deployed to enter Shatin New Town Plaza Phase 1. They entered Level III through a passageway from Shatin Centre.
As their party entered Shatin New Town Plaza, uniformed officers were assaulted by a large number of protesters with umbrellas, punches and kicks. They fell over on the ground because there was an identified liquid spilled which caused officers to fall. At the same time umbrellas and hard objects such as water bottles were thrown from a height down at those police officers. As a result, during the commotion that police party was separated and scattered on that Level III area and rioting occurred.
PW1 was wearing a standard police vest, a police helmet and was only holding a round shield. He saw a police officer being assaulted by protesters and went to help him. As he moved forward, he was on his own and singled out. He was then quickly surrounded and violently assaulted by a large group of protesters of at least 20 people outside Shop 398. He was punched, kicked and stabbed with items such as umbrellas. He was hit with other hard objects. This assault took place at around 21:55 hours and lasted for about 1 minute. There is CCTV footage from several angles of this riot and of this officer on the ground being attacked. Those rioters dispersed and stopped hitting PW1 when a uniformed officer came to assist him.
The 1st defendant admits he used an umbrella to repeatedly assault PW1 and kicked him. In the CCTV footage you can see him holding an umbrella up like a spear to stab at the officer and then he is in the front of the rioters where the officer is on the ground. The CCTV footage does not support the mitigation that the 1st defendant is not a man who participates in gratuitous violence.
The 2nd defendant tried to penetrate the crowd of rioters and made his way through just as PW1 got back on his feet. The 2nd defendant can be seen throwing an umbrella at an officer coming to PW1’s aid before running away.
The 3rd defendant is identified in the CCTV footage and he stabbed at the officer on the ground with an umbrella in a very fast, continuous and aggressive manner; over 20 times. During the attack he dropped the umbrella but despite people beginning to disperse, he picked it up again and resumed the attack. He was one of the last rioters to strike PW1 before running away and as he turned to run, he pumped his fist in the air. This CCTV footage does not support the mitigation he is not a violent person but more of a dispute mediator.
PW1 was very seriously injured and has suffered life changing consequences. He suffered from a left periorbital fracture, left maxillary fracture (which is a fracture of left orbital floor and medial wall fracture), his nose was fractured, bruising to his face and a hematoma on his left eye with yellowish vision and binocular double vision.
He has since had to have 2 surgeries relating to his left eye and facial injuries. He suffers impairment in the vision in his left eye and still experiences pain and dizziness. He was on sick leave until 12 March 2020, about 9 months after the attack. He has been assigned mainly clerical duties and no longer carries out frontline duties. It appears he can no longer drive either. In fact, a medical board will soon assess his work capacity. It appears his career as a detective police constable will suffer at only 31 years old.
The 1st, 2nd and 3rd defendant admit that at the material time they took part in a riot outside Shop 398. There were at least 20 rioters assembled together and the riot comprised of various acts of breaches of the peace. The 3 defendants committed those acts individually and together with other persons unknown. A result of the riot and violence was the serious injury suffered by PW1 targeted by the rioters.
The second riot, Charge 3, took place outside Shop 383 on the same level of Shatin New Town Plaza about 2 minutes after the first riot. PW2 had become separated from his police party after they as a group entered that Plaza. He too was wearing a standard police vest, a police helmet and was only holding a round shield. He saw uniformed officers being assaulted by protesters and went to assist. He tried to proceed to Level IV up an escalator outside Shop 383. The CCTV footage shows that as he ran towards the escalator he was chased by protesters who were trying to assault him.
He ran up the escalator but saw a large number of protesters running down towards him. He turned to go back down when he was kicked in the back and pushed from behind. He was kicked down the escalator and fell to the ground. He was then surrounded by a number of rioters who punched and kicked him as well stabbed him with umbrellas and hard objects. He was quickly surrounded by a large group and assaulted for about 1 minute. The riot only dispersed when a reporter straddled the officer on the ground and stopped people from attacking him any further.
The CCTV footage I was shown in court shows the 1st defendant and the 2nd defendant surrounding PW2 on the ground at the bottom of the escalator. The 1st defendant can be seen pushing others towards that officer on the ground before going in himself and kicking him. Both can be seen from several different angles in CCTV footage. The CCTV footage for both offences is MFI-1 and screenshots taken from the footage is MFI-2.
The 2nd defendant can be seen at the bottom of the escalator striking that officer with an umbrella from behind when the officer was kicked down the escalator towards him. He was then in the middle of the riot hitting PW2 and even after the reporter straddled the officer on the ground, he came in and stabbed his umbrella at him at least 4 times.
PW2 suffered a laceration to his right scalp that required stitches, abrasion and bruising to his face, tenderness and swelling on his right elbow and right leg as well as 3 abrasions on his back. Looking at the CCTV footage, it is fortunate he was not more seriously injured like PW1. The reporter and others who went to his aid are the reason he was not more seriously hurt. There are photographs of the injuries of the 2 police officers taken later and marked as MFI-3. The Summary of Facts set out the injuries suffered, subsequent treatment and surgeries as well as prognosis.
The 1st and 2nd defendant admit that at the material time they took part in another riot outside Shop 383. There were at least 10 rioters assembled together and the riot comprised of various acts of breaches of the peace. The 2 defendants committed those acts individually and together with other persons unknown. A result of the riot was the serious injury suffered by PW2 targeted by the rioters.
The 1st Defendant
The Summary of Facts states the 1st defendant left home at around 16:34 hours and CCTV footage captures what he was wearing. He arrived at Shatin New Town Plaza at around 21:39 hours wearing the same outfit. This is about 50 minutes before the first riot. The CCTV footage shows him changing from a black top into an orange pink short-sleeved T-shirt at 21:44 hours inside the Plaza which was worn by him during Charges 1 and 3.
After the 2 riots he admits he is captured on CCTV leaving the Plaza for Shatin MTR station wearing the same orange pink T-shirt at around 20:30 hours. He is seen on CCTV having a dispute with other train passengers. He was arrested by the police on 25 July 2019.
What is seen on CCTV is that he was part of 2 long human chains formed inside Shatin New Town Plaza before the first riot. This human chain can be seen passing many umbrellas along the line and upstairs in a very organised fashion. The 1st defendant was clearly there with a purpose and was part of the human chain before the riots. He changed his T-shirt whilst stood in the chain talking to others. He tried to tie his black T-shirt around his face as a mask but appeared to fail.
In mitigation, I have heard that the defendant is now 24 years old, single and lives with some family members. His father has brought him and his brother up single-handedly after his divorce when the defendant was 12. He has one previous criminal record, in 2016 he was sentenced to 42 months’ imprisonment for trafficking in dangerous drugs.
His best mitigation is his plea of guilty. After his arrest for this offence he was employed as an assistant to a district councillor in Tai Po. That councillor writes that although he is young, aggressive and enthusiastic, he is at times impulsive. He is remorseful and acted without thinking that day. He is a hard worker and committed to the community.
Defence Counsel has submitted 67 mitigation letters written by the defendant, his father, various district councillors who have come across him, friends and other people who have benefited from his community work. The defendant expressed genuine remorse and maturity. He takes responsibility for his actions. There are 2 detailed letters from 2 social workers who have come to know him well since these offences.
Most of those letters say much the same thing and are repetitive. His family dynamics are difficult but improving. His brother and father are supportive. He is charitable and gives his time to community service and voluntary work. He has been of particular help during the COVID-19 pandemic by organising distribution of masks and sanitisers in his home community. He has been assisting small businesses and restaurants survive the pandemic. Most of the letters say he is genuinely remorseful. Most say he committed this offence impulsively and because of his love for Hong Kong. I am asked to be compassionate.
I have been urged to consider his family background and lack of maternal care from a young child. It was submitted that the 1st defendant is not a person of nefarious nature who relishes in gratuitous violence. At the material time he was influenced by the anger of the mob and foolishly participated in riots. He acted out of character.
Defence counsel for the 1st defendant, Mr Shek, has urged me to take into account the duration and spread of the 2 riots was of limited time and scope. They did not last long nor involve many people. These riots are at the lower end of the scale for such an offence.
I have been asked to consider a starting point of 4 years and 6 months adopting the Court of Appeal’s opinion in HKSAR v Tang Ho Yin 2019 3 HKLRD 502. Mr Shek submits a starting point of 6 years as I adopted in HKSAR v Sin Ka Ho 2020 HKDC 337 would be too high as the factors relevant to sentencing riot cases as set out in HKSAR v Leung Tin Kei 2020 HKCA 275 reflect that the facts and riots of this case are less serious than the facts of Sin Ka Ho.
The riot in Sin Ka Ho did not last that long either but there were many more people in that riot trying to break through a police cordoned protecting the main entrance to the Legislative Council building. The difference is that that riot was outside in the open and in the streets whilst the riots here were inside a Shopping Plaza.
The 2nd defendant
The Summary of Facts states the 2nd defendant was seen first at 21:35 hours wandering around the Shatin New Town Plaza. That was about 20 minutes before the first riot. He was wearing a cap and carrying a distinctive red bag with a cartoon figure printed on it. During the 2 riots he had put on a face mask. He was seen on CCTV leaving Shatin via Shatin MTR station at about 22:25 hours.
He was arrested on 19 August 2019 and remained silent under caution. The clothes he was wearing during the riots were found during a house search. The police also found in his home newspaper cuttings depicting the 2nd defendant himself caught in the act of rioting.
In mitigation I have heard that the 2nd defendant is now 51 years old and has a clear record. His best mitigation is also his plea of guilty. He lives with his mother who has returned from Canada, is single and worked as a security guard. His father and other siblings live in Canada. His mother is suffering from Parkinson’s disease in its early stages.
I have received letters from his family, friends, colleagues and social workers. He is a filial son who cares for his mother and worries about his father in Canada. He has successfully applied for a shared housing unit so his mother has assistance from social workers whilst he serves a term of imprisonment.
He used to be a barber and has previously participated in voluntary programs teaching rehabilitating drug addicts a skill. When he had a hair salon business he offered to cut the hair of the elderly for a small reduced fee during his spare time. It has been stressed he is a kind, helpful and generous man.
The 2nd defendant went to Shatin that day in order to participate in peaceful assembly, he did not set out to hurt anyone nor participate in a riot. It is submitted his participation was a momentary lapse of good judgement. He acted out of character as can be demonstrated by the contents of the mitigation letters. It is submitted that this riot was spawned from civil unrest and the atmosphere in Hong Kong at that material time.
I have been urged to consider the fact that both riots occurred over a short period of time and very soon after one another. Similarly, Mr Lai for the 2nd defendant urges me to take into account relevant factors for sentencing riot cases as set out in Leung Tin Kei. In fact, all Counsel have referred me to the same authorities and in the main, adopt each other’s submissions.
The 3rd defendant
The 3rd defendant can be seen arriving at Shatin New Town Plaza with other young men at about 21:03 hours. At about 21:04 hours, he is seen on Level III where the riots took place later. He is seen putting on a face mask. He is milling around as if waiting for something to happen. He is not trying to go anywhere nor does he appear to try to leave the Plaza. During the riot of Charge 1 he is not only wearing a face mask but also a pair of eye goggles as well. He says he picks them up off the floor during the riot.
CCTV footage captures him leaving the Shatin area via Che Kung Temple station at around 22:45 hours. He was arrested by the police on 16 September 2019 and remained silent under caution.
In mitigation I have heard that the defendant is now 17 years old; he was 16 at the time of the offence. He was then a Form 5 student. He lives with his parents, elder brother and has a clear record. Whilst studying, he had a part-time job as a kitchen worker in Pizza Hut to help his family financially. His employer says he is a hard-working and capable young man.
I have heard full mitigation on his behalf and urged to take into account the fact he is very young. His best mitigation is his plea of guilty. There are many mitigation letters which I have read. All urge me to believe he was not inclined to use violence generally; he was more of a dispute mediator. The 3rd defendant has written a letter and is very sorry that the first victim suffered such serious injuries.
At school he has always achieved good results as well as participated in other extracurricular activities and voluntary services. His principal, vice principal, teacher, counsellor, fellow students and many others ask for leniency on his behalf and give me an insight into his life in and out of school.
After his arrest for this offence he did continue at school on bail from September 2019 but his academic results plummeted in Form 5. He did complete his Form 5 studies but with a lower grade than he had hoped for and anticipated. The defendant is hoping to still take the HKDSE public examinations and then study to become a professional chef.
Outside of school he has been known to accompany his parents to participate in voluntary activities involving the elderly and disadvantaged in his community. A Legislative Council member has witnessed the 3rd defendant participate willingly and patiently. He vouches for the defendant’s remorse now.
I have been urged to take into account that he was at the wrong time in the wrong place and took the wrong course of action. He has never seen such violence and was caught up in the melee with the other rioters. He was in fact trying to get home at the time but was experiencing difficulty getting out of the Plaza because of the police presence. He became confused and disorientated when he found exits blocked or locked. He became scared he would be considered a protester by the police there.
In mitigation I have been told that he then witnessed much violence when the police officers entered the Plaza with police using batons and pepper spray seriously injuring protesters. He had never seen such violence or chaos and he tried to find a way out. He then saw a group hitting PW1 and feeling confused and aggrieved he picked up an umbrella and joined in the attack. It was a herd mentality moment where his emotions ruled over common sense.
In the Training Centre report I called for is a somewhat different account for his presence and actions. It says the 3rd defendant recounted how he was on his way home when he noticed there were protests in Shatin New Town Plaza so he joined in on the spur of the moment. Under the influence of the atmosphere he was momentarily reckless and committed this offence.
Having watched the video footage for myself, the 3rd defendant is the most violent of the 3 defendants and does not appear frightened, confused or desperate to avoid violence. 50 minutes before the riot he participated in, he can be seen putting on a mask and milling around inside the Plaza. There is no evidence he was stopped from leaving the Plaza before the riot he participated in.
It was submitted that I should take into account the principle of rehabilitation and give the 3rd defendant an opportunity to pursue his future with less obstacles in his way.
I was urged to consider a Training Centre as an option and I did call for such a report. I do not intend to repeat the contents of the report but I have taken it into consideration. The report declares the 3rd defendant mentally and physically fit as well as suitable for detention in a Training Centre. It was submitted that if I found imprisonment to be appropriate then the starting point should be lower than 4 years and 6 months.
It was submitted that I should consider the authorities and facts of Leung Tin Kei and Tang Ho Yin and find the facts of this riot to be much less serious. The riot was on a very small scale and did not last very long.
Reasons for Sentence
The offence of rioting, contrary to section 19(1) and (2) of the Public Order Ordinance, will attract a maximum term of imprisonment on indictment of 10 years.
Freedom of peaceful assembly is guaranteed by the Basic Law and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, like the freedom of speech is indispensable to the building of a civilised society and essential to social stability and progress. The freedom of peaceful assembly enables members of the public to voice their criticisms, air grievances and seek redress on views they hold. However, the freedom of assembly is not absolute. Once a protester becomes involved in violence or the threat of violence, a breach of peace, then that protester crosses the line between constitutionally protected peaceful assembly and demonstration to an unlawful activity which is subject to legal sanctions. There is such a line to protect public order because society is prone to descend into anarchy if public order is not preserved.
A riot has an immediate and serious impact on the rule of law. The rule of law is a core value of Hong Kong and the cornerstone of its success. The law ensures that public order and peace are preserved; not threatened by the use of violence. If public order is not preserved, this affects the freedom and rights of citizens.
Sentencing for the offence of riot involves the factor of deterrence. All counsel submit the actions of the defendants were out of character or a momentary lapse of judgement. It is submitted their actions and participation were spontaneous and not premeditated. They were caught up with the crowd when rioters surrounded the single police officer when emotions were running high. They had no intention to cause harm to the public or destroy property. It is submitted that this is not the most serious case for an offence of this nature.
It has been suggested that the defendants are victims as well which I reject for the purposes of sentencing. I am urged to balance genuine remorse, guilty pleas, the young age of the 3rd defendant and clear records of the 2nd and 3rd defendants with the need to deter and punish.
A sentence must not only seek to prevent the offender from reoffending, but also give a proper warning to deter others from violating the law by breaking and disrupting public order in a like manner. Acts of violence or threats of violence will not and cannot be tolerated; such acts will attract a deterrent sentence to ensure that the public is protected.
The Court of Appeal in Leung Tin Kei reiterated that courts will impose a sentence that is punitive and sufficiently deterrent in accordance with principles established in applicable case law. It therefore follows that the personal background and mitigation as well as the submissions of impulsive behaviour and being carried away by the emotions of others carry little weight.
In this case, a deterrent sentence will reflect the fact that the defendants rioted in a public place, inside a Shopping Plaza which led to direct attacks on police officers holding a shield. It was a direct attack on law and order and an intention to injure and overpower police officers performing their duties.
Deterrence overrides the sentencing principle of rehabilitation in the prevailing circumstances including the increasing incidents of unrest and a rising number of large-scale public protests involving violence. This is clear from the Court of Final Appeal in SJ v Wong Chi Fung 2018 21 HKCFAR 35.
The defendants were one of a number engaged in a crime against peace, perhaps it was the sheer number with the defendants that gave them support and encouragement from being together with so many to riot. It is a common feature of mass disorder that if individuals within the crowd act violently, this will in turn inflame and encourage others to behave similarly. The harm and destruction done comes from the combined effect of what is done en masse.
For similar offences with different backgrounds and facts, the sentences in those cases do not provide a helpful guidance. Each charge must be considered on its own facts. What is a common factor is that the sentence should be punitive and sufficiently deterrent therefore, an immediate custodial sentence is inevitable.
The Court of Appeal in Leung Tin Kei set out various factors to be taken into account when passing sentence on the offence of riot. In that case the riot took place in February 2016 in Argyle Street, Kowloon. Courts must consider these factors and principles to arrive at a sentence according to the facts of each individual case. In that authority, the Court of Appeal upheld the sentences imposed.
I have been referred to HKSAR v Tang Ho Yin where the appellant was a man with a clear record and aged 24 at the time he committed the offence of riot. He pleaded guilty at the earliest opportunity and the sentencing judge took a starting point of five years’ imprisonment. The Court of Appeal considered the facts of that case, a riot between Shantung Street and Nathan Road on 9 February 2016 and although they said the appropriate starting point for that defendant was four years and six months, they dismissed the appeal. Mr Shek has submitted I should take the same starting point.
In deciding the starting point of the offence, the extent of the overall violence involved must be considered, not the defendant’s individual acts in isolation. I quote from the authority R v Caird and others 1970 Cr App R 499 where LJ Sachs said at pages 507-508,
“those who choose to take part in such unlawful occasions must do so at their peril. … Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who, by weight of numbers, pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers. … In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.”
It therefore follows that I should consider the extent of the overall violence involved, not each defendant’s individual acts in each riot separately and in isolation.
I have considered the factors relevant to sentencing as set out in Leung Tin Kei. This riot was spontaneous in that it arose when the police entered the Plaza to disperse protesters and PW1 became separated from other officers. However, from the CCTV footage you can see there was prior organised activity in the form of human chains passing items to be used if necessary with the 1st defendant an active participant. There were people handing out facemasks as a form of protection and to cover one’s face. The 3rd defendant took one and put it on in anticipation. The 2nd defendant came armed with a face mask.
I agree the number of people engaged in both riots were not as large as other recent riot cases but these riots took place indoors, inside a Shopping Plaza with as a result, some limitations. Despite this, the degree of violence was palpable. A viewing of the CCTV shows how brutal and savage the rioters were when they surrounded PW1 and later PW2. They just lost all control and self-restraint. This is a factor I take into account and place weight on.
It may not have lasted long this riot but it was so vicious that PW1 was seriously injured. Both PW1 and PW2 were targets of the rioters because they were police officers. The harm caused is immeasurable to particularly PW1. Not just the physical harm and disability caused but the adverse impact they will have on his police career. This is another serious factor of this riot of Charge 1.
As far as the other factors are concerned the nature and extent of the nuisance caused to the public by these riots inside the Shopping Plaza is foreseeable. Such riots conceivably affected the relationship amongst community groups, residents and the police on this occasion.
Defence counsel have urged me to look at what each defendant actually did during the course of the riot or riots. I repeat, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation. It is that very fact that constitutes the gravity of the offence. They are all equally culpable. One considers what the group to whose number the defendants lent their support did.
Defence counsel have also urged me to look at each defendant’s personal circumstances, mitigation, age and lack of criminal records. However, it is necessary to re-emphasis deterrence and punishment in sentencing the offence of riot. Courts must show that such conduct will not be tolerated in this community. It is in these types of cases where general deterrence has an overriding effect on the resulting sentence to be imposed.
It therefore follows, as I said above, that personal circumstances and mitigation as well as the submissions of impulsive behaviour and being carried away by the emotions of others carry little weight. That applies equally to the 3rd defendant. He may have been young but in my view his mitigation, his age and student status does not negate the need to impose a deterrent and custodial sentence which in this case will be a term of imprisonment.
Sentence
All 3 defendants have pleaded guilty at the earliest opportunity which does demonstrate remorse. From a reading of all the letters, in particular those from the defendants personally, I am sure all regret their actions and participation.
It is not an inconsiderable task to impose a punitive and deterrent sentence on young men and those with previous good characters but this present case requires me to give proper weight to public interest.
Having considered all the relevant factors against the circumstances, I am of the view that the appropriate starting point for Charge 1, where all 3 defendants took part in this riot is 5 years’ imprisonment after trial.
I am of the view that the appropriate starting point for Charge 3, where the 1st and 2nd defendant took part in this second riot is 6 years’ imprisonment after trial. These riots took place one after the other and instead of taking stock and walking away from more rioting and violence, the 1st and 2nd defendant took part in another riot hence the higher starting point for the Charge 3.
All defendants pleaded guilty at the earliest opportunity and are therefore entitled to the usual full discount of one-third after plea.
Accordingly, I reduce the starting point of Charge 1 by 1 year and 8 months and sentence all defendants to 3 years and 4 months’ imprisonment for Charge 1.
I reduce the starting point of Charge 3 by 2 years and sentence the 1st and 2nd defendant to 4 years’ imprisonment for Charge 3.
The higher starting point for Charge 3 reflects the fact they participated in a second riot and I will order all sentences to be served concurrently.
Therefore, the 1st defendant is sentenced to a total of 4 years’ imprisonment.
The 2nd defendant is sentenced to a total of 4 years’ imprisonment.
The 3rd defendant is sentenced to 3 years and 4 months’ imprisonme
DCCC813/2019
胡雅文
區院
認罪
罪成
保安員
51
暴動
判囚
48
沙田
DCCC 813/2019
[2020] HKDC 838
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 813 OF 2019
—————————–
HKSAR
v
LEUNG PAK TIM (D1)
KUNG CHI YUEN (D2)
LEE MAN HIM (D3)
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 24 September 2020
Present: Mr Ivan Cheung, Senior Public Prosecutor, for HKSAR/Director of Public Prosecutions
Mr Shek Shu Ming, Randy, instructed by S T Cheng & Co, assigned by the Director of Legal Aid, for the 1st defendant
Mr Lai Kin Wah, Kelvin, instructed by Fan Wong & Tso, assigned by the Director of Legal Aid, for the 2nd defendant
Mr Kwan Hang Fan, Jasper, instructed by Cedric & Co, assigned by the Director of Legal Aid, for the 3rd defendant
Offence: [1] Riot（暴動） – D1 – D3
[2] Causing grievous bodily harm with intent（有意圖而導致身體受嚴重傷害） – D1 & D3
[3] Riot（暴動） – D1 & D2
[4] Causing grievous bodily harm with intent（有意圖而導致身體受嚴重傷害） – D1 & D2
—————————————–
REASONS FOR SENTENCE
—————————————–
There are 2 riot charges in this case, Charges 1 and 3. 2 riots took place on Level III, Phase 1 of New Town Plaza in Shatin, New Territories one after the other. During those riots a police officer was wounded in the course of each riot. Charges 2 and 4 are offences of causing grievous bodily harm with intent to those 2 officers during those 2 riots.
The 1st defendant pleaded guilty to Charges 1 and 3. The 2nd defendant also pleaded guilty to Charges 1 and 3. The 3rd defendant only faced one riot charge and pleaded guilty to Charge 1. Those defendants facing Charges 2 and 4 pleaded not guilty and those 2 charges were put on the court file, not to be dealt with unless there is an order from this court or the Court of Appeal.
Accordingly, the 1st defendant was convicted of both charges of riot, Charges 1 and 3 as was the 2nd defendant. The 3rd defendant was convicted of Charge 1, a single riot charge.
Facts of the case
Since June 2019, Hong Kong experienced a series of protests in opposition to the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill. The protests escalated into serious social unrest and public disorder including on occasions, riots.
On the 14 July 2019 there were large crowds of protesters gathered in the Shatin area. As a result, various units of police officers had to be deployed in the area to restore law and order. A particular unit of police officers in plain clothes were deployed together with uniform officers near Lucky Plaza, Shatin. They dispersed crowds gathered in that Plaza before stationing themselves in Shatin Centre at about 21:20 hours.
Amongst these officers were PW1 and PW2 in plain clothes. PW1 was tasked with video taking duties at the time. At about 21:45 hours these 2 officers with other members of their party were deployed to enter Shatin New Town Plaza Phase 1. They entered Level III through a passageway from Shatin Centre.
As their party entered Shatin New Town Plaza, uniformed officers were assaulted by a large number of protesters with umbrellas, punches and kicks. They fell over on the ground because there was an identified liquid spilled which caused officers to fall. At the same time umbrellas and hard objects such as water bottles were thrown from a height down at those police officers. As a result, during the commotion that police party was separated and scattered on that Level III area and rioting occurred.
PW1 was wearing a standard police vest, a police helmet and was only holding a round shield. He saw a police officer being assaulted by protesters and went to help him. As he moved forward, he was on his own and singled out. He was then quickly surrounded and violently assaulted by a large group of protesters of at least 20 people outside Shop 398. He was punched, kicked and stabbed with items such as umbrellas. He was hit with other hard objects. This assault took place at around 21:55 hours and lasted for about 1 minute. There is CCTV footage from several angles of this riot and of this officer on the ground being attacked. Those rioters dispersed and stopped hitting PW1 when a uniformed officer came to assist him.
The 1st defendant admits he used an umbrella to repeatedly assault PW1 and kicked him. In the CCTV footage you can see him holding an umbrella up like a spear to stab at the officer and then he is in the front of the rioters where the officer is on the ground. The CCTV footage does not support the mitigation that the 1st defendant is not a man who participates in gratuitous violence.
The 2nd defendant tried to penetrate the crowd of rioters and made his way through just as PW1 got back on his feet. The 2nd defendant can be seen throwing an umbrella at an officer coming to PW1’s aid before running away.
The 3rd defendant is identified in the CCTV footage and he stabbed at the officer on the ground with an umbrella in a very fast, continuous and aggressive manner; over 20 times. During the attack he dropped the umbrella but despite people beginning to disperse, he picked it up again and resumed the attack. He was one of the last rioters to strike PW1 before running away and as he turned to run, he pumped his fist in the air. This CCTV footage does not support the mitigation he is not a violent person but more of a dispute mediator.
PW1 was very seriously injured and has suffered life changing consequences. He suffered from a left periorbital fracture, left maxillary fracture (which is a fracture of left orbital floor and medial wall fracture), his nose was fractured, bruising to his face and a hematoma on his left eye with yellowish vision and binocular double vision.
He has since had to have 2 surgeries relating to his left eye and facial injuries. He suffers impairment in the vision in his left eye and still experiences pain and dizziness. He was on sick leave until 12 March 2020, about 9 months after the attack. He has been assigned mainly clerical duties and no longer carries out frontline duties. It appears he can no longer drive either. In fact, a medical board will soon assess his work capacity. It appears his career as a detective police constable will suffer at only 31 years old.
The 1st, 2nd and 3rd defendant admit that at the material time they took part in a riot outside Shop 398. There were at least 20 rioters assembled together and the riot comprised of various acts of breaches of the peace. The 3 defendants committed those acts individually and together with other persons unknown. A result of the riot and violence was the serious injury suffered by PW1 targeted by the rioters.
The second riot, Charge 3, took place outside Shop 383 on the same level of Shatin New Town Plaza about 2 minutes after the first riot. PW2 had become separated from his police party after they as a group entered that Plaza. He too was wearing a standard police vest, a police helmet and was only holding a round shield. He saw uniformed officers being assaulted by protesters and went to assist. He tried to proceed to Level IV up an escalator outside Shop 383. The CCTV footage shows that as he ran towards the escalator he was chased by protesters who were trying to assault him.
He ran up the escalator but saw a large number of protesters running down towards him. He turned to go back down when he was kicked in the back and pushed from behind. He was kicked down the escalator and fell to the ground. He was then surrounded by a number of rioters who punched and kicked him as well stabbed him with umbrellas and hard objects. He was quickly surrounded by a large group and assaulted for about 1 minute. The riot only dispersed when a reporter straddled the officer on the ground and stopped people from attacking him any further.
The CCTV footage I was shown in court shows the 1st defendant and the 2nd defendant surrounding PW2 on the ground at the bottom of the escalator. The 1st defendant can be seen pushing others towards that officer on the ground before going in himself and kicking him. Both can be seen from several different angles in CCTV footage. The CCTV footage for both offences is MFI-1 and screenshots taken from the footage is MFI-2.
The 2nd defendant can be seen at the bottom of the escalator striking that officer with an umbrella from behind when the officer was kicked down the escalator towards him. He was then in the middle of the riot hitting PW2 and even after the reporter straddled the officer on the ground, he came in and stabbed his umbrella at him at least 4 times.
PW2 suffered a laceration to his right scalp that required stitches, abrasion and bruising to his face, tenderness and swelling on his right elbow and right leg as well as 3 abrasions on his back. Looking at the CCTV footage, it is fortunate he was not more seriously injured like PW1. The reporter and others who went to his aid are the reason he was not more seriously hurt. There are photographs of the injuries of the 2 police officers taken later and marked as MFI-3. The Summary of Facts set out the injuries suffered, subsequent treatment and surgeries as well as prognosis.
The 1st and 2nd defendant admit that at the material time they took part in another riot outside Shop 383. There were at least 10 rioters assembled together and the riot comprised of various acts of breaches of the peace. The 2 defendants committed those acts individually and together with other persons unknown. A result of the riot was the serious injury suffered by PW2 targeted by the rioters.
The 1st Defendant
The Summary of Facts states the 1st defendant left home at around 16:34 hours and CCTV footage captures what he was wearing. He arrived at Shatin New Town Plaza at around 21:39 hours wearing the same outfit. This is about 50 minutes before the first riot. The CCTV footage shows him changing from a black top into an orange pink short-sleeved T-shirt at 21:44 hours inside the Plaza which was worn by him during Charges 1 and 3.
After the 2 riots he admits he is captured on CCTV leaving the Plaza for Shatin MTR station wearing the same orange pink T-shirt at around 20:30 hours. He is seen on CCTV having a dispute with other train passengers. He was arrested by the police on 25 July 2019.
What is seen on CCTV is that he was part of 2 long human chains formed inside Shatin New Town Plaza before the first riot. This human chain can be seen passing many umbrellas along the line and upstairs in a very organised fashion. The 1st defendant was clearly there with a purpose and was part of the human chain before the riots. He changed his T-shirt whilst stood in the chain talking to others. He tried to tie his black T-shirt around his face as a mask but appeared to fail.
In mitigation, I have heard that the defendant is now 24 years old, single and lives with some family members. His father has brought him and his brother up single-handedly after his divorce when the defendant was 12. He has one previous criminal record, in 2016 he was sentenced to 42 months’ imprisonment for trafficking in dangerous drugs.
His best mitigation is his plea of guilty. After his arrest for this offence he was employed as an assistant to a district councillor in Tai Po. That councillor writes that although he is young, aggressive and enthusiastic, he is at times impulsive. He is remorseful and acted without thinking that day. He is a hard worker and committed to the community.
Defence Counsel has submitted 67 mitigation letters written by the defendant, his father, various district councillors who have come across him, friends and other people who have benefited from his community work. The defendant expressed genuine remorse and maturity. He takes responsibility for his actions. There are 2 detailed letters from 2 social workers who have come to know him well since these offences.
Most of those letters say much the same thing and are repetitive. His family dynamics are difficult but improving. His brother and father are supportive. He is charitable and gives his time to community service and voluntary work. He has been of particular help during the COVID-19 pandemic by organising distribution of masks and sanitisers in his home community. He has been assisting small businesses and restaurants survive the pandemic. Most of the letters say he is genuinely remorseful. Most say he committed this offence impulsively and because of his love for Hong Kong. I am asked to be compassionate.
I have been urged to consider his family background and lack of maternal care from a young child. It was submitted that the 1st defendant is not a person of nefarious nature who relishes in gratuitous violence. At the material time he was influenced by the anger of the mob and foolishly participated in riots. He acted out of character.
Defence counsel for the 1st defendant, Mr Shek, has urged me to take into account the duration and spread of the 2 riots was of limited time and scope. They did not last long nor involve many people. These riots are at the lower end of the scale for such an offence.
I have been asked to consider a starting point of 4 years and 6 months adopting the Court of Appeal’s opinion in HKSAR v Tang Ho Yin 2019 3 HKLRD 502. Mr Shek submits a starting point of 6 years as I adopted in HKSAR v Sin Ka Ho 2020 HKDC 337 would be too high as the factors relevant to sentencing riot cases as set out in HKSAR v Leung Tin Kei 2020 HKCA 275 reflect that the facts and riots of this case are less serious than the facts of Sin Ka Ho.
The riot in Sin Ka Ho did not last that long either but there were many more people in that riot trying to break through a police cordoned protecting the main entrance to the Legislative Council building. The difference is that that riot was outside in the open and in the streets whilst the riots here were inside a Shopping Plaza.
The 2nd defendant
The Summary of Facts states the 2nd defendant was seen first at 21:35 hours wandering around the Shatin New Town Plaza. That was about 20 minutes before the first riot. He was wearing a cap and carrying a distinctive red bag with a cartoon figure printed on it. During the 2 riots he had put on a face mask. He was seen on CCTV leaving Shatin via Shatin MTR station at about 22:25 hours.
He was arrested on 19 August 2019 and remained silent under caution. The clothes he was wearing during the riots were found during a house search. The police also found in his home newspaper cuttings depicting the 2nd defendant himself caught in the act of rioting.
In mitigation I have heard that the 2nd defendant is now 51 years old and has a clear record. His best mitigation is also his plea of guilty. He lives with his mother who has returned from Canada, is single and worked as a security guard. His father and other siblings live in Canada. His mother is suffering from Parkinson’s disease in its early stages.
I have received letters from his family, friends, colleagues and social workers. He is a filial son who cares for his mother and worries about his father in Canada. He has successfully applied for a shared housing unit so his mother has assistance from social workers whilst he serves a term of imprisonment.
He used to be a barber and has previously participated in voluntary programs teaching rehabilitating drug addicts a skill. When he had a hair salon business he offered to cut the hair of the elderly for a small reduced fee during his spare time. It has been stressed he is a kind, helpful and generous man.
The 2nd defendant went to Shatin that day in order to participate in peaceful assembly, he did not set out to hurt anyone nor participate in a riot. It is submitted his participation was a momentary lapse of good judgement. He acted out of character as can be demonstrated by the contents of the mitigation letters. It is submitted that this riot was spawned from civil unrest and the atmosphere in Hong Kong at that material time.
I have been urged to consider the fact that both riots occurred over a short period of time and very soon after one another. Similarly, Mr Lai for the 2nd defendant urges me to take into account relevant factors for sentencing riot cases as set out in Leung Tin Kei. In fact, all Counsel have referred me to the same authorities and in the main, adopt each other’s submissions.
The 3rd defendant
The 3rd defendant can be seen arriving at Shatin New Town Plaza with other young men at about 21:03 hours. At about 21:04 hours, he is seen on Level III where the riots took place later. He is seen putting on a face mask. He is milling around as if waiting for something to happen. He is not trying to go anywhere nor does he appear to try to leave the Plaza. During the riot of Charge 1 he is not only wearing a face mask but also a pair of eye goggles as well. He says he picks them up off the floor during the riot.
CCTV footage captures him leaving the Shatin area via Che Kung Temple station at around 22:45 hours. He was arrested by the police on 16 September 2019 and remained silent under caution.
In mitigation I have heard that the defendant is now 17 years old; he was 16 at the time of the offence. He was then a Form 5 student. He lives with his parents, elder brother and has a clear record. Whilst studying, he had a part-time job as a kitchen worker in Pizza Hut to help his family financially. His employer says he is a hard-working and capable young man.
I have heard full mitigation on his behalf and urged to take into account the fact he is very young. His best mitigation is his plea of guilty. There are many mitigation letters which I have read. All urge me to believe he was not inclined to use violence generally; he was more of a dispute mediator. The 3rd defendant has written a letter and is very sorry that the first victim suffered such serious injuries.
At school he has always achieved good results as well as participated in other extracurricular activities and voluntary services. His principal, vice principal, teacher, counsellor, fellow students and many others ask for leniency on his behalf and give me an insight into his life in and out of school.
After his arrest for this offence he did continue at school on bail from September 2019 but his academic results plummeted in Form 5. He did complete his Form 5 studies but with a lower grade than he had hoped for and anticipated. The defendant is hoping to still take the HKDSE public examinations and then study to become a professional chef.
Outside of school he has been known to accompany his parents to participate in voluntary activities involving the elderly and disadvantaged in his community. A Legislative Council member has witnessed the 3rd defendant participate willingly and patiently. He vouches for the defendant’s remorse now.
I have been urged to take into account that he was at the wrong time in the wrong place and took the wrong course of action. He has never seen such violence and was caught up in the melee with the other rioters. He was in fact trying to get home at the time but was experiencing difficulty getting out of the Plaza because of the police presence. He became confused and disorientated when he found exits blocked or locked. He became scared he would be considered a protester by the police there.
In mitigation I have been told that he then witnessed much violence when the police officers entered the Plaza with police using batons and pepper spray seriously injuring protesters. He had never seen such violence or chaos and he tried to find a way out. He then saw a group hitting PW1 and feeling confused and aggrieved he picked up an umbrella and joined in the attack. It was a herd mentality moment where his emotions ruled over common sense.
In the Training Centre report I called for is a somewhat different account for his presence and actions. It says the 3rd defendant recounted how he was on his way home when he noticed there were protests in Shatin New Town Plaza so he joined in on the spur of the moment. Under the influence of the atmosphere he was momentarily reckless and committed this offence.
Having watched the video footage for myself, the 3rd defendant is the most violent of the 3 defendants and does not appear frightened, confused or desperate to avoid violence. 50 minutes before the riot he participated in, he can be seen putting on a mask and milling around inside the Plaza. There is no evidence he was stopped from leaving the Plaza before the riot he participated in.
It was submitted that I should take into account the principle of rehabilitation and give the 3rd defendant an opportunity to pursue his future with less obstacles in his way.
I was urged to consider a Training Centre as an option and I did call for such a report. I do not intend to repeat the contents of the report but I have taken it into consideration. The report declares the 3rd defendant mentally and physically fit as well as suitable for detention in a Training Centre. It was submitted that if I found imprisonment to be appropriate then the starting point should be lower than 4 years and 6 months.
It was submitted that I should consider the authorities and facts of Leung Tin Kei and Tang Ho Yin and find the facts of this riot to be much less serious. The riot was on a very small scale and did not last very long.
Reasons for Sentence
The offence of rioting, contrary to section 19(1) and (2) of the Public Order Ordinance, will attract a maximum term of imprisonment on indictment of 10 years.
Freedom of peaceful assembly is guaranteed by the Basic Law and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, like the freedom of speech is indispensable to the building of a civilised society and essential to social stability and progress. The freedom of peaceful assembly enables members of the public to voice their criticisms, air grievances and seek redress on views they hold. However, the freedom of assembly is not absolute. Once a protester becomes involved in violence or the threat of violence, a breach of peace, then that protester crosses the line between constitutionally protected peaceful assembly and demonstration to an unlawful activity which is subject to legal sanctions. There is such a line to protect public order because society is prone to descend into anarchy if public order is not preserved.
A riot has an immediate and serious impact on the rule of law. The rule of law is a core value of Hong Kong and the cornerstone of its success. The law ensures that public order and peace are preserved; not threatened by the use of violence. If public order is not preserved, this affects the freedom and rights of citizens.
Sentencing for the offence of riot involves the factor of deterrence. All counsel submit the actions of the defendants were out of character or a momentary lapse of judgement. It is submitted their actions and participation were spontaneous and not premeditated. They were caught up with the crowd when rioters surrounded the single police officer when emotions were running high. They had no intention to cause harm to the public or destroy property. It is submitted that this is not the most serious case for an offence of this nature.
It has been suggested that the defendants are victims as well which I reject for the purposes of sentencing. I am urged to balance genuine remorse, guilty pleas, the young age of the 3rd defendant and clear records of the 2nd and 3rd defendants with the need to deter and punish.
A sentence must not only seek to prevent the offender from reoffending, but also give a proper warning to deter others from violating the law by breaking and disrupting public order in a like manner. Acts of violence or threats of violence will not and cannot be tolerated; such acts will attract a deterrent sentence to ensure that the public is protected.
The Court of Appeal in Leung Tin Kei reiterated that courts will impose a sentence that is punitive and sufficiently deterrent in accordance with principles established in applicable case law. It therefore follows that the personal background and mitigation as well as the submissions of impulsive behaviour and being carried away by the emotions of others carry little weight.
In this case, a deterrent sentence will reflect the fact that the defendants rioted in a public place, inside a Shopping Plaza which led to direct attacks on police officers holding a shield. It was a direct attack on law and order and an intention to injure and overpower police officers performing their duties.
Deterrence overrides the sentencing principle of rehabilitation in the prevailing circumstances including the increasing incidents of unrest and a rising number of large-scale public protests involving violence. This is clear from the Court of Final Appeal in SJ v Wong Chi Fung 2018 21 HKCFAR 35.
The defendants were one of a number engaged in a crime against peace, perhaps it was the sheer number with the defendants that gave them support and encouragement from being together with so many to riot. It is a common feature of mass disorder that if individuals within the crowd act violently, this will in turn inflame and encourage others to behave similarly. The harm and destruction done comes from the combined effect of what is done en masse.
For similar offences with different backgrounds and facts, the sentences in those cases do not provide a helpful guidance. Each charge must be considered on its own facts. What is a common factor is that the sentence should be punitive and sufficiently deterrent therefore, an immediate custodial sentence is inevitable.
The Court of Appeal in Leung Tin Kei set out various factors to be taken into account when passing sentence on the offence of riot. In that case the riot took place in February 2016 in Argyle Street, Kowloon. Courts must consider these factors and principles to arrive at a sentence according to the facts of each individual case. In that authority, the Court of Appeal upheld the sentences imposed.
I have been referred to HKSAR v Tang Ho Yin where the appellant was a man with a clear record and aged 24 at the time he committed the offence of riot. He pleaded guilty at the earliest opportunity and the sentencing judge took a starting point of five years’ imprisonment. The Court of Appeal considered the facts of that case, a riot between Shantung Street and Nathan Road on 9 February 2016 and although they said the appropriate starting point for that defendant was four years and six months, they dismissed the appeal. Mr Shek has submitted I should take the same starting point.
In deciding the starting point of the offence, the extent of the overall violence involved must be considered, not the defendant’s individual acts in isolation. I quote from the authority R v Caird and others 1970 Cr App R 499 where LJ Sachs said at pages 507-508,
“those who choose to take part in such unlawful occasions must do so at their peril. … Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who, by weight of numbers, pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers. … In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.”
It therefore follows that I should consider the extent of the overall violence involved, not each defendant’s individual acts in each riot separately and in isolation.
I have considered the factors relevant to sentencing as set out in Leung Tin Kei. This riot was spontaneous in that it arose when the police entered the Plaza to disperse protesters and PW1 became separated from other officers. However, from the CCTV footage you can see there was prior organised activity in the form of human chains passing items to be used if necessary with the 1st defendant an active participant. There were people handing out facemasks as a form of protection and to cover one’s face. The 3rd defendant took one and put it on in anticipation. The 2nd defendant came armed with a face mask.
I agree the number of people engaged in both riots were not as large as other recent riot cases but these riots took place indoors, inside a Shopping Plaza with as a result, some limitations. Despite this, the degree of violence was palpable. A viewing of the CCTV shows how brutal and savage the rioters were when they surrounded PW1 and later PW2. They just lost all control and self-restraint. This is a factor I take into account and place weight on.
It may not have lasted long this riot but it was so vicious that PW1 was seriously injured. Both PW1 and PW2 were targets of the rioters because they were police officers. The harm caused is immeasurable to particularly PW1. Not just the physical harm and disability caused but the adverse impact they will have on his police career. This is another serious factor of this riot of Charge 1.
As far as the other factors are concerned the nature and extent of the nuisance caused to the public by these riots inside the Shopping Plaza is foreseeable. Such riots conceivably affected the relationship amongst community groups, residents and the police on this occasion.
Defence counsel have urged me to look at what each defendant actually did during the course of the riot or riots. I repeat, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation. It is that very fact that constitutes the gravity of the offence. They are all equally culpable. One considers what the group to whose number the defendants lent their support did.
Defence counsel have also urged me to look at each defendant’s personal circumstances, mitigation, age and lack of criminal records. However, it is necessary to re-emphasis deterrence and punishment in sentencing the offence of riot. Courts must show that such conduct will not be tolerated in this community. It is in these types of cases where general deterrence has an overriding effect on the resulting sentence to be imposed.
It therefore follows, as I said above, that personal circumstances and mitigation as well as the submissions of impulsive behaviour and being carried away by the emotions of others carry little weight. That applies equally to the 3rd defendant. He may have been young but in my view his mitigation, his age and student status does not negate the need to impose a deterrent and custodial sentence which in this case will be a term of imprisonment.
Sentence
All 3 defendants have pleaded guilty at the earliest opportunity which does demonstrate remorse. From a reading of all the letters, in particular those from the defendants personally, I am sure all regret their actions and participation.
It is not an inconsiderable task to impose a punitive and deterrent sentence on young men and those with previous good characters but this present case requires me to give proper weight to public interest.
Having considered all the relevant factors against the circumstances, I am of the view that the appropriate starting point for Charge 1, where all 3 defendants took part in this riot is 5 years’ imprisonment after trial.
I am of the view that the appropriate starting point for Charge 3, where the 1st and 2nd defendant took part in this second riot is 6 years’ imprisonment after trial. These riots took place one after the other and instead of taking stock and walking away from more rioting and violence, the 1st and 2nd defendant took part in another riot hence the higher starting point for the Charge 3.
All defendants pleaded guilty at the earliest opportunity and are therefore entitled to the usual full discount of one-third after plea.
Accordingly, I reduce the starting point of Charge 1 by 1 year and 8 months and sentence all defendants to 3 years and 4 months’ imprisonment for Charge 1.
I reduce the starting point of Charge 3 by 2 years and sentence the 1st and 2nd defendant to 4 years’ imprisonment for Charge 3.
The higher starting point for Charge 3 reflects the fact they participated in a second riot and I will order all sentences to be served concurrently.
Therefore, the 1st defendant is sentenced to a total of 4 years’ imprisonment.
The 2nd defendant is sentenced to a total of 4 years’ imprisonment.
The 3rd defendant is sentenced to 3 years and 4 months’ imprisonme
DCCC813/2019
胡雅文
區院
認罪
罪成
學生
17
暴動
判囚
40
沙田
DCCC 813/2019
[2020] HKDC 838
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 813 OF 2019
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HKSAR
v
LEUNG PAK TIM (D1)
KUNG CHI YUEN (D2)
LEE MAN HIM (D3)
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Before: Her Honour Judge A J Woodcock in Court
Date: 24 September 2020
Present: Mr Ivan Cheung, Senior Public Prosecutor, for HKSAR/Director of Public Prosecutions
Mr Shek Shu Ming, Randy, instructed by S T Cheng & Co, assigned by the Director of Legal Aid, for the 1st defendant
Mr Lai Kin Wah, Kelvin, instructed by Fan Wong & Tso, assigned by the Director of Legal Aid, for the 2nd defendant
Mr Kwan Hang Fan, Jasper, instructed by Cedric & Co, assigned by the Director of Legal Aid, for the 3rd defendant
Offence: [1] Riot（暴動） – D1 – D3
[2] Causing grievous bodily harm with intent（有意圖而導致身體受嚴重傷害） – D1 & D3
[3] Riot（暴動） – D1 & D2
[4] Causing grievous bodily harm with intent（有意圖而導致身體受嚴重傷害） – D1 & D2
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REASONS FOR SENTENCE
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There are 2 riot charges in this case, Charges 1 and 3. 2 riots took place on Level III, Phase 1 of New Town Plaza in Shatin, New Territories one after the other. During those riots a police officer was wounded in the course of each riot. Charges 2 and 4 are offences of causing grievous bodily harm with intent to those 2 officers during those 2 riots.
The 1st defendant pleaded guilty to Charges 1 and 3. The 2nd defendant also pleaded guilty to Charges 1 and 3. The 3rd defendant only faced one riot charge and pleaded guilty to Charge 1. Those defendants facing Charges 2 and 4 pleaded not guilty and those 2 charges were put on the court file, not to be dealt with unless there is an order from this court or the Court of Appeal.
Accordingly, the 1st defendant was convicted of both charges of riot, Charges 1 and 3 as was the 2nd defendant. The 3rd defendant was convicted of Charge 1, a single riot charge.
Facts of the case
Since June 2019, Hong Kong experienced a series of protests in opposition to the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill. The protests escalated into serious social unrest and public disorder including on occasions, riots.
On the 14 July 2019 there were large crowds of protesters gathered in the Shatin area. As a result, various units of police officers had to be deployed in the area to restore law and order. A particular unit of police officers in plain clothes were deployed together with uniform officers near Lucky Plaza, Shatin. They dispersed crowds gathered in that Plaza before stationing themselves in Shatin Centre at about 21:20 hours.
Amongst these officers were PW1 and PW2 in plain clothes. PW1 was tasked with video taking duties at the time. At about 21:45 hours these 2 officers with other members of their party were deployed to enter Shatin New Town Plaza Phase 1. They entered Level III through a passageway from Shatin Centre.
As their party entered Shatin New Town Plaza, uniformed officers were assaulted by a large number of protesters with umbrellas, punches and kicks. They fell over on the ground because there was an identified liquid spilled which caused officers to fall. At the same time umbrellas and hard objects such as water bottles were thrown from a height down at those police officers. As a result, during the commotion that police party was separated and scattered on that Level III area and rioting occurred.
PW1 was wearing a standard police vest, a police helmet and was only holding a round shield. He saw a police officer being assaulted by protesters and went to help him. As he moved forward, he was on his own and singled out. He was then quickly surrounded and violently assaulted by a large group of protesters of at least 20 people outside Shop 398. He was punched, kicked and stabbed with items such as umbrellas. He was hit with other hard objects. This assault took place at around 21:55 hours and lasted for about 1 minute. There is CCTV footage from several angles of this riot and of this officer on the ground being attacked. Those rioters dispersed and stopped hitting PW1 when a uniformed officer came to assist him.
The 1st defendant admits he used an umbrella to repeatedly assault PW1 and kicked him. In the CCTV footage you can see him holding an umbrella up like a spear to stab at the officer and then he is in the front of the rioters where the officer is on the ground. The CCTV footage does not support the mitigation that the 1st defendant is not a man who participates in gratuitous violence.
The 2nd defendant tried to penetrate the crowd of rioters and made his way through just as PW1 got back on his feet. The 2nd defendant can be seen throwing an umbrella at an officer coming to PW1’s aid before running away.
The 3rd defendant is identified in the CCTV footage and he stabbed at the officer on the ground with an umbrella in a very fast, continuous and aggressive manner; over 20 times. During the attack he dropped the umbrella but despite people beginning to disperse, he picked it up again and resumed the attack. He was one of the last rioters to strike PW1 before running away and as he turned to run, he pumped his fist in the air. This CCTV footage does not support the mitigation he is not a violent person but more of a dispute mediator.
PW1 was very seriously injured and has suffered life changing consequences. He suffered from a left periorbital fracture, left maxillary fracture (which is a fracture of left orbital floor and medial wall fracture), his nose was fractured, bruising to his face and a hematoma on his left eye with yellowish vision and binocular double vision.
He has since had to have 2 surgeries relating to his left eye and facial injuries. He suffers impairment in the vision in his left eye and still experiences pain and dizziness. He was on sick leave until 12 March 2020, about 9 months after the attack. He has been assigned mainly clerical duties and no longer carries out frontline duties. It appears he can no longer drive either. In fact, a medical board will soon assess his work capacity. It appears his career as a detective police constable will suffer at only 31 years old.
The 1st, 2nd and 3rd defendant admit that at the material time they took part in a riot outside Shop 398. There were at least 20 rioters assembled together and the riot comprised of various acts of breaches of the peace. The 3 defendants committed those acts individually and together with other persons unknown. A result of the riot and violence was the serious injury suffered by PW1 targeted by the rioters.
The second riot, Charge 3, took place outside Shop 383 on the same level of Shatin New Town Plaza about 2 minutes after the first riot. PW2 had become separated from his police party after they as a group entered that Plaza. He too was wearing a standard police vest, a police helmet and was only holding a round shield. He saw uniformed officers being assaulted by protesters and went to assist. He tried to proceed to Level IV up an escalator outside Shop 383. The CCTV footage shows that as he ran towards the escalator he was chased by protesters who were trying to assault him.
He ran up the escalator but saw a large number of protesters running down towards him. He turned to go back down when he was kicked in the back and pushed from behind. He was kicked down the escalator and fell to the ground. He was then surrounded by a number of rioters who punched and kicked him as well stabbed him with umbrellas and hard objects. He was quickly surrounded by a large group and assaulted for about 1 minute. The riot only dispersed when a reporter straddled the officer on the ground and stopped people from attacking him any further.
The CCTV footage I was shown in court shows the 1st defendant and the 2nd defendant surrounding PW2 on the ground at the bottom of the escalator. The 1st defendant can be seen pushing others towards that officer on the ground before going in himself and kicking him. Both can be seen from several different angles in CCTV footage. The CCTV footage for both offences is MFI-1 and screenshots taken from the footage is MFI-2.
The 2nd defendant can be seen at the bottom of the escalator striking that officer with an umbrella from behind when the officer was kicked down the escalator towards him. He was then in the middle of the riot hitting PW2 and even after the reporter straddled the officer on the ground, he came in and stabbed his umbrella at him at least 4 times.
PW2 suffered a laceration to his right scalp that required stitches, abrasion and bruising to his face, tenderness and swelling on his right elbow and right leg as well as 3 abrasions on his back. Looking at the CCTV footage, it is fortunate he was not more seriously injured like PW1. The reporter and others who went to his aid are the reason he was not more seriously hurt. There are photographs of the injuries of the 2 police officers taken later and marked as MFI-3. The Summary of Facts set out the injuries suffered, subsequent treatment and surgeries as well as prognosis.
The 1st and 2nd defendant admit that at the material time they took part in another riot outside Shop 383. There were at least 10 rioters assembled together and the riot comprised of various acts of breaches of the peace. The 2 defendants committed those acts individually and together with other persons unknown. A result of the riot was the serious injury suffered by PW2 targeted by the rioters.
The 1st Defendant
The Summary of Facts states the 1st defendant left home at around 16:34 hours and CCTV footage captures what he was wearing. He arrived at Shatin New Town Plaza at around 21:39 hours wearing the same outfit. This is about 50 minutes before the first riot. The CCTV footage shows him changing from a black top into an orange pink short-sleeved T-shirt at 21:44 hours inside the Plaza which was worn by him during Charges 1 and 3.
After the 2 riots he admits he is captured on CCTV leaving the Plaza for Shatin MTR station wearing the same orange pink T-shirt at around 20:30 hours. He is seen on CCTV having a dispute with other train passengers. He was arrested by the police on 25 July 2019.
What is seen on CCTV is that he was part of 2 long human chains formed inside Shatin New Town Plaza before the first riot. This human chain can be seen passing many umbrellas along the line and upstairs in a very organised fashion. The 1st defendant was clearly there with a purpose and was part of the human chain before the riots. He changed his T-shirt whilst stood in the chain talking to others. He tried to tie his black T-shirt around his face as a mask but appeared to fail.
In mitigation, I have heard that the defendant is now 24 years old, single and lives with some family members. His father has brought him and his brother up single-handedly after his divorce when the defendant was 12. He has one previous criminal record, in 2016 he was sentenced to 42 months’ imprisonment for trafficking in dangerous drugs.
His best mitigation is his plea of guilty. After his arrest for this offence he was employed as an assistant to a district councillor in Tai Po. That councillor writes that although he is young, aggressive and enthusiastic, he is at times impulsive. He is remorseful and acted without thinking that day. He is a hard worker and committed to the community.
Defence Counsel has submitted 67 mitigation letters written by the defendant, his father, various district councillors who have come across him, friends and other people who have benefited from his community work. The defendant expressed genuine remorse and maturity. He takes responsibility for his actions. There are 2 detailed letters from 2 social workers who have come to know him well since these offences.
Most of those letters say much the same thing and are repetitive. His family dynamics are difficult but improving. His brother and father are supportive. He is charitable and gives his time to community service and voluntary work. He has been of particular help during the COVID-19 pandemic by organising distribution of masks and sanitisers in his home community. He has been assisting small businesses and restaurants survive the pandemic. Most of the letters say he is genuinely remorseful. Most say he committed this offence impulsively and because of his love for Hong Kong. I am asked to be compassionate.
I have been urged to consider his family background and lack of maternal care from a young child. It was submitted that the 1st defendant is not a person of nefarious nature who relishes in gratuitous violence. At the material time he was influenced by the anger of the mob and foolishly participated in riots. He acted out of character.
Defence counsel for the 1st defendant, Mr Shek, has urged me to take into account the duration and spread of the 2 riots was of limited time and scope. They did not last long nor involve many people. These riots are at the lower end of the scale for such an offence.
I have been asked to consider a starting point of 4 years and 6 months adopting the Court of Appeal’s opinion in HKSAR v Tang Ho Yin 2019 3 HKLRD 502. Mr Shek submits a starting point of 6 years as I adopted in HKSAR v Sin Ka Ho 2020 HKDC 337 would be too high as the factors relevant to sentencing riot cases as set out in HKSAR v Leung Tin Kei 2020 HKCA 275 reflect that the facts and riots of this case are less serious than the facts of Sin Ka Ho.
The riot in Sin Ka Ho did not last that long either but there were many more people in that riot trying to break through a police cordoned protecting the main entrance to the Legislative Council building. The difference is that that riot was outside in the open and in the streets whilst the riots here were inside a Shopping Plaza.
The 2nd defendant
The Summary of Facts states the 2nd defendant was seen first at 21:35 hours wandering around the Shatin New Town Plaza. That was about 20 minutes before the first riot. He was wearing a cap and carrying a distinctive red bag with a cartoon figure printed on it. During the 2 riots he had put on a face mask. He was seen on CCTV leaving Shatin via Shatin MTR station at about 22:25 hours.
He was arrested on 19 August 2019 and remained silent under caution. The clothes he was wearing during the riots were found during a house search. The police also found in his home newspaper cuttings depicting the 2nd defendant himself caught in the act of rioting.
In mitigation I have heard that the 2nd defendant is now 51 years old and has a clear record. His best mitigation is also his plea of guilty. He lives with his mother who has returned from Canada, is single and worked as a security guard. His father and other siblings live in Canada. His mother is suffering from Parkinson’s disease in its early stages.
I have received letters from his family, friends, colleagues and social workers. He is a filial son who cares for his mother and worries about his father in Canada. He has successfully applied for a shared housing unit so his mother has assistance from social workers whilst he serves a term of imprisonment.
He used to be a barber and has previously participated in voluntary programs teaching rehabilitating drug addicts a skill. When he had a hair salon business he offered to cut the hair of the elderly for a small reduced fee during his spare time. It has been stressed he is a kind, helpful and generous man.
The 2nd defendant went to Shatin that day in order to participate in peaceful assembly, he did not set out to hurt anyone nor participate in a riot. It is submitted his participation was a momentary lapse of good judgement. He acted out of character as can be demonstrated by the contents of the mitigation letters. It is submitted that this riot was spawned from civil unrest and the atmosphere in Hong Kong at that material time.
I have been urged to consider the fact that both riots occurred over a short period of time and very soon after one another. Similarly, Mr Lai for the 2nd defendant urges me to take into account relevant factors for sentencing riot cases as set out in Leung Tin Kei. In fact, all Counsel have referred me to the same authorities and in the main, adopt each other’s submissions.
The 3rd defendant
The 3rd defendant can be seen arriving at Shatin New Town Plaza with other young men at about 21:03 hours. At about 21:04 hours, he is seen on Level III where the riots took place later. He is seen putting on a face mask. He is milling around as if waiting for something to happen. He is not trying to go anywhere nor does he appear to try to leave the Plaza. During the riot of Charge 1 he is not only wearing a face mask but also a pair of eye goggles as well. He says he picks them up off the floor during the riot.
CCTV footage captures him leaving the Shatin area via Che Kung Temple station at around 22:45 hours. He was arrested by the police on 16 September 2019 and remained silent under caution.
In mitigation I have heard that the defendant is now 17 years old; he was 16 at the time of the offence. He was then a Form 5 student. He lives with his parents, elder brother and has a clear record. Whilst studying, he had a part-time job as a kitchen worker in Pizza Hut to help his family financially. His employer says he is a hard-working and capable young man.
I have heard full mitigation on his behalf and urged to take into account the fact he is very young. His best mitigation is his plea of guilty. There are many mitigation letters which I have read. All urge me to believe he was not inclined to use violence generally; he was more of a dispute mediator. The 3rd defendant has written a letter and is very sorry that the first victim suffered such serious injuries.
At school he has always achieved good results as well as participated in other extracurricular activities and voluntary services. His principal, vice principal, teacher, counsellor, fellow students and many others ask for leniency on his behalf and give me an insight into his life in and out of school.
After his arrest for this offence he did continue at school on bail from September 2019 but his academic results plummeted in Form 5. He did complete his Form 5 studies but with a lower grade than he had hoped for and anticipated. The defendant is hoping to still take the HKDSE public examinations and then study to become a professional chef.
Outside of school he has been known to accompany his parents to participate in voluntary activities involving the elderly and disadvantaged in his community. A Legislative Council member has witnessed the 3rd defendant participate willingly and patiently. He vouches for the defendant’s remorse now.
I have been urged to take into account that he was at the wrong time in the wrong place and took the wrong course of action. He has never seen such violence and was caught up in the melee with the other rioters. He was in fact trying to get home at the time but was experiencing difficulty getting out of the Plaza because of the police presence. He became confused and disorientated when he found exits blocked or locked. He became scared he would be considered a protester by the police there.
In mitigation I have been told that he then witnessed much violence when the police officers entered the Plaza with police using batons and pepper spray seriously injuring protesters. He had never seen such violence or chaos and he tried to find a way out. He then saw a group hitting PW1 and feeling confused and aggrieved he picked up an umbrella and joined in the attack. It was a herd mentality moment where his emotions ruled over common sense.
In the Training Centre report I called for is a somewhat different account for his presence and actions. It says the 3rd defendant recounted how he was on his way home when he noticed there were protests in Shatin New Town Plaza so he joined in on the spur of the moment. Under the influence of the atmosphere he was momentarily reckless and committed this offence.
Having watched the video footage for myself, the 3rd defendant is the most violent of the 3 defendants and does not appear frightened, confused or desperate to avoid violence. 50 minutes before the riot he participated in, he can be seen putting on a mask and milling around inside the Plaza. There is no evidence he was stopped from leaving the Plaza before the riot he participated in.
It was submitted that I should take into account the principle of rehabilitation and give the 3rd defendant an opportunity to pursue his future with less obstacles in his way.
I was urged to consider a Training Centre as an option and I did call for such a report. I do not intend to repeat the contents of the report but I have taken it into consideration. The report declares the 3rd defendant mentally and physically fit as well as suitable for detention in a Training Centre. It was submitted that if I found imprisonment to be appropriate then the starting point should be lower than 4 years and 6 months.
It was submitted that I should consider the authorities and facts of Leung Tin Kei and Tang Ho Yin and find the facts of this riot to be much less serious. The riot was on a very small scale and did not last very long.
Reasons for Sentence
The offence of rioting, contrary to section 19(1) and (2) of the Public Order Ordinance, will attract a maximum term of imprisonment on indictment of 10 years.
Freedom of peaceful assembly is guaranteed by the Basic Law and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, like the freedom of speech is indispensable to the building of a civilised society and essential to social stability and progress. The freedom of peaceful assembly enables members of the public to voice their criticisms, air grievances and seek redress on views they hold. However, the freedom of assembly is not absolute. Once a protester becomes involved in violence or the threat of violence, a breach of peace, then that protester crosses the line between constitutionally protected peaceful assembly and demonstration to an unlawful activity which is subject to legal sanctions. There is such a line to protect public order because society is prone to descend into anarchy if public order is not preserved.
A riot has an immediate and serious impact on the rule of law. The rule of law is a core value of Hong Kong and the cornerstone of its success. The law ensures that public order and peace are preserved; not threatened by the use of violence. If public order is not preserved, this affects the freedom and rights of citizens.
Sentencing for the offence of riot involves the factor of deterrence. All counsel submit the actions of the defendants were out of character or a momentary lapse of judgement. It is submitted their actions and participation were spontaneous and not premeditated. They were caught up with the crowd when rioters surrounded the single police officer when emotions were running high. They had no intention to cause harm to the public or destroy property. It is submitted that this is not the most serious case for an offence of this nature.
It has been suggested that the defendants are victims as well which I reject for the purposes of sentencing. I am urged to balance genuine remorse, guilty pleas, the young age of the 3rd defendant and clear records of the 2nd and 3rd defendants with the need to deter and punish.
A sentence must not only seek to prevent the offender from reoffending, but also give a proper warning to deter others from violating the law by breaking and disrupting public order in a like manner. Acts of violence or threats of violence will not and cannot be tolerated; such acts will attract a deterrent sentence to ensure that the public is protected.
The Court of Appeal in Leung Tin Kei reiterated that courts will impose a sentence that is punitive and sufficiently deterrent in accordance with principles established in applicable case law. It therefore follows that the personal background and mitigation as well as the submissions of impulsive behaviour and being carried away by the emotions of others carry little weight.
In this case, a deterrent sentence will reflect the fact that the defendants rioted in a public place, inside a Shopping Plaza which led to direct attacks on police officers holding a shield. It was a direct attack on law and order and an intention to injure and overpower police officers performing their duties.
Deterrence overrides the sentencing principle of rehabilitation in the prevailing circumstances including the increasing incidents of unrest and a rising number of large-scale public protests involving violence. This is clear from the Court of Final Appeal in SJ v Wong Chi Fung 2018 21 HKCFAR 35.
The defendants were one of a number engaged in a crime against peace, perhaps it was the sheer number with the defendants that gave them support and encouragement from being together with so many to riot. It is a common feature of mass disorder that if individuals within the crowd act violently, this will in turn inflame and encourage others to behave similarly. The harm and destruction done comes from the combined effect of what is done en masse.
For similar offences with different backgrounds and facts, the sentences in those cases do not provide a helpful guidance. Each charge must be considered on its own facts. What is a common factor is that the sentence should be punitive and sufficiently deterrent therefore, an immediate custodial sentence is inevitable.
The Court of Appeal in Leung Tin Kei set out various factors to be taken into account when passing sentence on the offence of riot. In that case the riot took place in February 2016 in Argyle Street, Kowloon. Courts must consider these factors and principles to arrive at a sentence according to the facts of each individual case. In that authority, the Court of Appeal upheld the sentences imposed.
I have been referred to HKSAR v Tang Ho Yin where the appellant was a man with a clear record and aged 24 at the time he committed the offence of riot. He pleaded guilty at the earliest opportunity and the sentencing judge took a starting point of five years’ imprisonment. The Court of Appeal considered the facts of that case, a riot between Shantung Street and Nathan Road on 9 February 2016 and although they said the appropriate starting point for that defendant was four years and six months, they dismissed the appeal. Mr Shek has submitted I should take the same starting point.
In deciding the starting point of the offence, the extent of the overall violence involved must be considered, not the defendant’s individual acts in isolation. I quote from the authority R v Caird and others 1970 Cr App R 499 where LJ Sachs said at pages 507-508,
“those who choose to take part in such unlawful occasions must do so at their peril. … Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who, by weight of numbers, pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers. … In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.”
It therefore follows that I should consider the extent of the overall violence involved, not each defendant’s individual acts in each riot separately and in isolation.
I have considered the factors relevant to sentencing as set out in Leung Tin Kei. This riot was spontaneous in that it arose when the police entered the Plaza to disperse protesters and PW1 became separated from other officers. However, from the CCTV footage you can see there was prior organised activity in the form of human chains passing items to be used if necessary with the 1st defendant an active participant. There were people handing out facemasks as a form of protection and to cover one’s face. The 3rd defendant took one and put it on in anticipation. The 2nd defendant came armed with a face mask.
I agree the number of people engaged in both riots were not as large as other recent riot cases but these riots took place indoors, inside a Shopping Plaza with as a result, some limitations. Despite this, the degree of violence was palpable. A viewing of the CCTV shows how brutal and savage the rioters were when they surrounded PW1 and later PW2. They just lost all control and self-restraint. This is a factor I take into account and place weight on.
It may not have lasted long this riot but it was so vicious that PW1 was seriously injured. Both PW1 and PW2 were targets of the rioters because they were police officers. The harm caused is immeasurable to particularly PW1. Not just the physical harm and disability caused but the adverse impact they will have on his police career. This is another serious factor of this riot of Charge 1.
As far as the other factors are concerned the nature and extent of the nuisance caused to the public by these riots inside the Shopping Plaza is foreseeable. Such riots conceivably affected the relationship amongst community groups, residents and the police on this occasion.
Defence counsel have urged me to look at what each defendant actually did during the course of the riot or riots. I repeat, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation. It is that very fact that constitutes the gravity of the offence. They are all equally culpable. One considers what the group to whose number the defendants lent their support did.
Defence counsel have also urged me to look at each defendant’s personal circumstances, mitigation, age and lack of criminal records. However, it is necessary to re-emphasis deterrence and punishment in sentencing the offence of riot. Courts must show that such conduct will not be tolerated in this community. It is in these types of cases where general deterrence has an overriding effect on the resulting sentence to be imposed.
It therefore follows, as I said above, that personal circumstances and mitigation as well as the submissions of impulsive behaviour and being carried away by the emotions of others carry little weight. That applies equally to the 3rd defendant. He may have been young but in my view his mitigation, his age and student status does not negate the need to impose a deterrent and custodial sentence which in this case will be a term of imprisonment.
Sentence
All 3 defendants have pleaded guilty at the earliest opportunity which does demonstrate remorse. From a reading of all the letters, in particular those from the defendants personally, I am sure all regret their actions and participation.
It is not an inconsiderable task to impose a punitive and deterrent sentence on young men and those with previous good characters but this present case requires me to give proper weight to public interest.
Having considered all the relevant factors against the circumstances, I am of the view that the appropriate starting point for Charge 1, where all 3 defendants took part in this riot is 5 years’ imprisonment after trial.
I am of the view that the appropriate starting point for Charge 3, where the 1st and 2nd defendant took part in this second riot is 6 years’ imprisonment after trial. These riots took place one after the other and instead of taking stock and walking away from more rioting and violence, the 1st and 2nd defendant took part in another riot hence the higher starting point for the Charge 3.
All defendants pleaded guilty at the earliest opportunity and are therefore entitled to the usual full discount of one-third after plea.
Accordingly, I reduce the starting point of Charge 1 by 1 year and 8 months and sentence all defendants to 3 years and 4 months’ imprisonment for Charge 1.
I reduce the starting point of Charge 3 by 2 years and sentence the 1st and 2nd defendant to 4 years’ imprisonment for Charge 3.
The higher starting point for Charge 3 reflects the fact they participated in a second riot and I will order all sentences to be served concurrently.
Therefore, the 1st defendant is sentenced to a total of 4 years’ imprisonment.
The 2nd defendant is sentenced to a total of 4 years’ imprisonment.
The 3rd defendant is sentenced to 3 years and 4 months’ imprisonme
DCCC813/2019
胡雅文
區院
認罪
撤控
已有其他控罪
學生
17
有意圖造成身體嚴重傷害
沙田
DCCC 813/2019
[2020] HKDC 838
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 813 OF 2019
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HKSAR
v
LEUNG PAK TIM (D1)
KUNG CHI YUEN (D2)
LEE MAN HIM (D3)
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Before: Her Honour Judge A J Woodcock in Court
Date: 24 September 2020
Present: Mr Ivan Cheung, Senior Public Prosecutor, for HKSAR/Director of Public Prosecutions
Mr Shek Shu Ming, Randy, instructed by S T Cheng & Co, assigned by the Director of Legal Aid, for the 1st defendant
Mr Lai Kin Wah, Kelvin, instructed by Fan Wong & Tso, assigned by the Director of Legal Aid, for the 2nd defendant
Mr Kwan Hang Fan, Jasper, instructed by Cedric & Co, assigned by the Director of Legal Aid, for the 3rd defendant
Offence: [1] Riot（暴動） – D1 – D3
[2] Causing grievous bodily harm with intent（有意圖而導致身體受嚴重傷害） – D1 & D3
[3] Riot（暴動） – D1 & D2
[4] Causing grievous bodily harm with intent（有意圖而導致身體受嚴重傷害） – D1 & D2
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REASONS FOR SENTENCE
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There are 2 riot charges in this case, Charges 1 and 3. 2 riots took place on Level III, Phase 1 of New Town Plaza in Shatin, New Territories one after the other. During those riots a police officer was wounded in the course of each riot. Charges 2 and 4 are offences of causing grievous bodily harm with intent to those 2 officers during those 2 riots.
The 1st defendant pleaded guilty to Charges 1 and 3. The 2nd defendant also pleaded guilty to Charges 1 and 3. The 3rd defendant only faced one riot charge and pleaded guilty to Charge 1. Those defendants facing Charges 2 and 4 pleaded not guilty and those 2 charges were put on the court file, not to be dealt with unless there is an order from this court or the Court of Appeal.
Accordingly, the 1st defendant was convicted of both charges of riot, Charges 1 and 3 as was the 2nd defendant. The 3rd defendant was convicted of Charge 1, a single riot charge.
Facts of the case
Since June 2019, Hong Kong experienced a series of protests in opposition to the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill. The protests escalated into serious social unrest and public disorder including on occasions, riots.
On the 14 July 2019 there were large crowds of protesters gathered in the Shatin area. As a result, various units of police officers had to be deployed in the area to restore law and order. A particular unit of police officers in plain clothes were deployed together with uniform officers near Lucky Plaza, Shatin. They dispersed crowds gathered in that Plaza before stationing themselves in Shatin Centre at about 21:20 hours.
Amongst these officers were PW1 and PW2 in plain clothes. PW1 was tasked with video taking duties at the time. At about 21:45 hours these 2 officers with other members of their party were deployed to enter Shatin New Town Plaza Phase 1. They entered Level III through a passageway from Shatin Centre.
As their party entered Shatin New Town Plaza, uniformed officers were assaulted by a large number of protesters with umbrellas, punches and kicks. They fell over on the ground because there was an identified liquid spilled which caused officers to fall. At the same time umbrellas and hard objects such as water bottles were thrown from a height down at those police officers. As a result, during the commotion that police party was separated and scattered on that Level III area and rioting occurred.
PW1 was wearing a standard police vest, a police helmet and was only holding a round shield. He saw a police officer being assaulted by protesters and went to help him. As he moved forward, he was on his own and singled out. He was then quickly surrounded and violently assaulted by a large group of protesters of at least 20 people outside Shop 398. He was punched, kicked and stabbed with items such as umbrellas. He was hit with other hard objects. This assault took place at around 21:55 hours and lasted for about 1 minute. There is CCTV footage from several angles of this riot and of this officer on the ground being attacked. Those rioters dispersed and stopped hitting PW1 when a uniformed officer came to assist him.
The 1st defendant admits he used an umbrella to repeatedly assault PW1 and kicked him. In the CCTV footage you can see him holding an umbrella up like a spear to stab at the officer and then he is in the front of the rioters where the officer is on the ground. The CCTV footage does not support the mitigation that the 1st defendant is not a man who participates in gratuitous violence.
The 2nd defendant tried to penetrate the crowd of rioters and made his way through just as PW1 got back on his feet. The 2nd defendant can be seen throwing an umbrella at an officer coming to PW1’s aid before running away.
The 3rd defendant is identified in the CCTV footage and he stabbed at the officer on the ground with an umbrella in a very fast, continuous and aggressive manner; over 20 times. During the attack he dropped the umbrella but despite people beginning to disperse, he picked it up again and resumed the attack. He was one of the last rioters to strike PW1 before running away and as he turned to run, he pumped his fist in the air. This CCTV footage does not support the mitigation he is not a violent person but more of a dispute mediator.
PW1 was very seriously injured and has suffered life changing consequences. He suffered from a left periorbital fracture, left maxillary fracture (which is a fracture of left orbital floor and medial wall fracture), his nose was fractured, bruising to his face and a hematoma on his left eye with yellowish vision and binocular double vision.
He has since had to have 2 surgeries relating to his left eye and facial injuries. He suffers impairment in the vision in his left eye and still experiences pain and dizziness. He was on sick leave until 12 March 2020, about 9 months after the attack. He has been assigned mainly clerical duties and no longer carries out frontline duties. It appears he can no longer drive either. In fact, a medical board will soon assess his work capacity. It appears his career as a detective police constable will suffer at only 31 years old.
The 1st, 2nd and 3rd defendant admit that at the material time they took part in a riot outside Shop 398. There were at least 20 rioters assembled together and the riot comprised of various acts of breaches of the peace. The 3 defendants committed those acts individually and together with other persons unknown. A result of the riot and violence was the serious injury suffered by PW1 targeted by the rioters.
The second riot, Charge 3, took place outside Shop 383 on the same level of Shatin New Town Plaza about 2 minutes after the first riot. PW2 had become separated from his police party after they as a group entered that Plaza. He too was wearing a standard police vest, a police helmet and was only holding a round shield. He saw uniformed officers being assaulted by protesters and went to assist. He tried to proceed to Level IV up an escalator outside Shop 383. The CCTV footage shows that as he ran towards the escalator he was chased by protesters who were trying to assault him.
He ran up the escalator but saw a large number of protesters running down towards him. He turned to go back down when he was kicked in the back and pushed from behind. He was kicked down the escalator and fell to the ground. He was then surrounded by a number of rioters who punched and kicked him as well stabbed him with umbrellas and hard objects. He was quickly surrounded by a large group and assaulted for about 1 minute. The riot only dispersed when a reporter straddled the officer on the ground and stopped people from attacking him any further.
The CCTV footage I was shown in court shows the 1st defendant and the 2nd defendant surrounding PW2 on the ground at the bottom of the escalator. The 1st defendant can be seen pushing others towards that officer on the ground before going in himself and kicking him. Both can be seen from several different angles in CCTV footage. The CCTV footage for both offences is MFI-1 and screenshots taken from the footage is MFI-2.
The 2nd defendant can be seen at the bottom of the escalator striking that officer with an umbrella from behind when the officer was kicked down the escalator towards him. He was then in the middle of the riot hitting PW2 and even after the reporter straddled the officer on the ground, he came in and stabbed his umbrella at him at least 4 times.
PW2 suffered a laceration to his right scalp that required stitches, abrasion and bruising to his face, tenderness and swelling on his right elbow and right leg as well as 3 abrasions on his back. Looking at the CCTV footage, it is fortunate he was not more seriously injured like PW1. The reporter and others who went to his aid are the reason he was not more seriously hurt. There are photographs of the injuries of the 2 police officers taken later and marked as MFI-3. The Summary of Facts set out the injuries suffered, subsequent treatment and surgeries as well as prognosis.
The 1st and 2nd defendant admit that at the material time they took part in another riot outside Shop 383. There were at least 10 rioters assembled together and the riot comprised of various acts of breaches of the peace. The 2 defendants committed those acts individually and together with other persons unknown. A result of the riot was the serious injury suffered by PW2 targeted by the rioters.
The 1st Defendant
The Summary of Facts states the 1st defendant left home at around 16:34 hours and CCTV footage captures what he was wearing. He arrived at Shatin New Town Plaza at around 21:39 hours wearing the same outfit. This is about 50 minutes before the first riot. The CCTV footage shows him changing from a black top into an orange pink short-sleeved T-shirt at 21:44 hours inside the Plaza which was worn by him during Charges 1 and 3.
After the 2 riots he admits he is captured on CCTV leaving the Plaza for Shatin MTR station wearing the same orange pink T-shirt at around 20:30 hours. He is seen on CCTV having a dispute with other train passengers. He was arrested by the police on 25 July 2019.
What is seen on CCTV is that he was part of 2 long human chains formed inside Shatin New Town Plaza before the first riot. This human chain can be seen passing many umbrellas along the line and upstairs in a very organised fashion. The 1st defendant was clearly there with a purpose and was part of the human chain before the riots. He changed his T-shirt whilst stood in the chain talking to others. He tried to tie his black T-shirt around his face as a mask but appeared to fail.
In mitigation, I have heard that the defendant is now 24 years old, single and lives with some family members. His father has brought him and his brother up single-handedly after his divorce when the defendant was 12. He has one previous criminal record, in 2016 he was sentenced to 42 months’ imprisonment for trafficking in dangerous drugs.
His best mitigation is his plea of guilty. After his arrest for this offence he was employed as an assistant to a district councillor in Tai Po. That councillor writes that although he is young, aggressive and enthusiastic, he is at times impulsive. He is remorseful and acted without thinking that day. He is a hard worker and committed to the community.
Defence Counsel has submitted 67 mitigation letters written by the defendant, his father, various district councillors who have come across him, friends and other people who have benefited from his community work. The defendant expressed genuine remorse and maturity. He takes responsibility for his actions. There are 2 detailed letters from 2 social workers who have come to know him well since these offences.
Most of those letters say much the same thing and are repetitive. His family dynamics are difficult but improving. His brother and father are supportive. He is charitable and gives his time to community service and voluntary work. He has been of particular help during the COVID-19 pandemic by organising distribution of masks and sanitisers in his home community. He has been assisting small businesses and restaurants survive the pandemic. Most of the letters say he is genuinely remorseful. Most say he committed this offence impulsively and because of his love for Hong Kong. I am asked to be compassionate.
I have been urged to consider his family background and lack of maternal care from a young child. It was submitted that the 1st defendant is not a person of nefarious nature who relishes in gratuitous violence. At the material time he was influenced by the anger of the mob and foolishly participated in riots. He acted out of character.
Defence counsel for the 1st defendant, Mr Shek, has urged me to take into account the duration and spread of the 2 riots was of limited time and scope. They did not last long nor involve many people. These riots are at the lower end of the scale for such an offence.
I have been asked to consider a starting point of 4 years and 6 months adopting the Court of Appeal’s opinion in HKSAR v Tang Ho Yin 2019 3 HKLRD 502. Mr Shek submits a starting point of 6 years as I adopted in HKSAR v Sin Ka Ho 2020 HKDC 337 would be too high as the factors relevant to sentencing riot cases as set out in HKSAR v Leung Tin Kei 2020 HKCA 275 reflect that the facts and riots of this case are less serious than the facts of Sin Ka Ho.
The riot in Sin Ka Ho did not last that long either but there were many more people in that riot trying to break through a police cordoned protecting the main entrance to the Legislative Council building. The difference is that that riot was outside in the open and in the streets whilst the riots here were inside a Shopping Plaza.
The 2nd defendant
The Summary of Facts states the 2nd defendant was seen first at 21:35 hours wandering around the Shatin New Town Plaza. That was about 20 minutes before the first riot. He was wearing a cap and carrying a distinctive red bag with a cartoon figure printed on it. During the 2 riots he had put on a face mask. He was seen on CCTV leaving Shatin via Shatin MTR station at about 22:25 hours.
He was arrested on 19 August 2019 and remained silent under caution. The clothes he was wearing during the riots were found during a house search. The police also found in his home newspaper cuttings depicting the 2nd defendant himself caught in the act of rioting.
In mitigation I have heard that the 2nd defendant is now 51 years old and has a clear record. His best mitigation is also his plea of guilty. He lives with his mother who has returned from Canada, is single and worked as a security guard. His father and other siblings live in Canada. His mother is suffering from Parkinson’s disease in its early stages.
I have received letters from his family, friends, colleagues and social workers. He is a filial son who cares for his mother and worries about his father in Canada. He has successfully applied for a shared housing unit so his mother has assistance from social workers whilst he serves a term of imprisonment.
He used to be a barber and has previously participated in voluntary programs teaching rehabilitating drug addicts a skill. When he had a hair salon business he offered to cut the hair of the elderly for a small reduced fee during his spare time. It has been stressed he is a kind, helpful and generous man.
The 2nd defendant went to Shatin that day in order to participate in peaceful assembly, he did not set out to hurt anyone nor participate in a riot. It is submitted his participation was a momentary lapse of good judgement. He acted out of character as can be demonstrated by the contents of the mitigation letters. It is submitted that this riot was spawned from civil unrest and the atmosphere in Hong Kong at that material time.
I have been urged to consider the fact that both riots occurred over a short period of time and very soon after one another. Similarly, Mr Lai for the 2nd defendant urges me to take into account relevant factors for sentencing riot cases as set out in Leung Tin Kei. In fact, all Counsel have referred me to the same authorities and in the main, adopt each other’s submissions.
The 3rd defendant
The 3rd defendant can be seen arriving at Shatin New Town Plaza with other young men at about 21:03 hours. At about 21:04 hours, he is seen on Level III where the riots took place later. He is seen putting on a face mask. He is milling around as if waiting for something to happen. He is not trying to go anywhere nor does he appear to try to leave the Plaza. During the riot of Charge 1 he is not only wearing a face mask but also a pair of eye goggles as well. He says he picks them up off the floor during the riot.
CCTV footage captures him leaving the Shatin area via Che Kung Temple station at around 22:45 hours. He was arrested by the police on 16 September 2019 and remained silent under caution.
In mitigation I have heard that the defendant is now 17 years old; he was 16 at the time of the offence. He was then a Form 5 student. He lives with his parents, elder brother and has a clear record. Whilst studying, he had a part-time job as a kitchen worker in Pizza Hut to help his family financially. His employer says he is a hard-working and capable young man.
I have heard full mitigation on his behalf and urged to take into account the fact he is very young. His best mitigation is his plea of guilty. There are many mitigation letters which I have read. All urge me to believe he was not inclined to use violence generally; he was more of a dispute mediator. The 3rd defendant has written a letter and is very sorry that the first victim suffered such serious injuries.
At school he has always achieved good results as well as participated in other extracurricular activities and voluntary services. His principal, vice principal, teacher, counsellor, fellow students and many others ask for leniency on his behalf and give me an insight into his life in and out of school.
After his arrest for this offence he did continue at school on bail from September 2019 but his academic results plummeted in Form 5. He did complete his Form 5 studies but with a lower grade than he had hoped for and anticipated. The defendant is hoping to still take the HKDSE public examinations and then study to become a professional chef.
Outside of school he has been known to accompany his parents to participate in voluntary activities involving the elderly and disadvantaged in his community. A Legislative Council member has witnessed the 3rd defendant participate willingly and patiently. He vouches for the defendant’s remorse now.
I have been urged to take into account that he was at the wrong time in the wrong place and took the wrong course of action. He has never seen such violence and was caught up in the melee with the other rioters. He was in fact trying to get home at the time but was experiencing difficulty getting out of the Plaza because of the police presence. He became confused and disorientated when he found exits blocked or locked. He became scared he would be considered a protester by the police there.
In mitigation I have been told that he then witnessed much violence when the police officers entered the Plaza with police using batons and pepper spray seriously injuring protesters. He had never seen such violence or chaos and he tried to find a way out. He then saw a group hitting PW1 and feeling confused and aggrieved he picked up an umbrella and joined in the attack. It was a herd mentality moment where his emotions ruled over common sense.
In the Training Centre report I called for is a somewhat different account for his presence and actions. It says the 3rd defendant recounted how he was on his way home when he noticed there were protests in Shatin New Town Plaza so he joined in on the spur of the moment. Under the influence of the atmosphere he was momentarily reckless and committed this offence.
Having watched the video footage for myself, the 3rd defendant is the most violent of the 3 defendants and does not appear frightened, confused or desperate to avoid violence. 50 minutes before the riot he participated in, he can be seen putting on a mask and milling around inside the Plaza. There is no evidence he was stopped from leaving the Plaza before the riot he participated in.
It was submitted that I should take into account the principle of rehabilitation and give the 3rd defendant an opportunity to pursue his future with less obstacles in his way.
I was urged to consider a Training Centre as an option and I did call for such a report. I do not intend to repeat the contents of the report but I have taken it into consideration. The report declares the 3rd defendant mentally and physically fit as well as suitable for detention in a Training Centre. It was submitted that if I found imprisonment to be appropriate then the starting point should be lower than 4 years and 6 months.
It was submitted that I should consider the authorities and facts of Leung Tin Kei and Tang Ho Yin and find the facts of this riot to be much less serious. The riot was on a very small scale and did not last very long.
Reasons for Sentence
The offence of rioting, contrary to section 19(1) and (2) of the Public Order Ordinance, will attract a maximum term of imprisonment on indictment of 10 years.
Freedom of peaceful assembly is guaranteed by the Basic Law and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, like the freedom of speech is indispensable to the building of a civilised society and essential to social stability and progress. The freedom of peaceful assembly enables members of the public to voice their criticisms, air grievances and seek redress on views they hold. However, the freedom of assembly is not absolute. Once a protester becomes involved in violence or the threat of violence, a breach of peace, then that protester crosses the line between constitutionally protected peaceful assembly and demonstration to an unlawful activity which is subject to legal sanctions. There is such a line to protect public order because society is prone to descend into anarchy if public order is not preserved.
A riot has an immediate and serious impact on the rule of law. The rule of law is a core value of Hong Kong and the cornerstone of its success. The law ensures that public order and peace are preserved; not threatened by the use of violence. If public order is not preserved, this affects the freedom and rights of citizens.
Sentencing for the offence of riot involves the factor of deterrence. All counsel submit the actions of the defendants were out of character or a momentary lapse of judgement. It is submitted their actions and participation were spontaneous and not premeditated. They were caught up with the crowd when rioters surrounded the single police officer when emotions were running high. They had no intention to cause harm to the public or destroy property. It is submitted that this is not the most serious case for an offence of this nature.
It has been suggested that the defendants are victims as well which I reject for the purposes of sentencing. I am urged to balance genuine remorse, guilty pleas, the young age of the 3rd defendant and clear records of the 2nd and 3rd defendants with the need to deter and punish.
A sentence must not only seek to prevent the offender from reoffending, but also give a proper warning to deter others from violating the law by breaking and disrupting public order in a like manner. Acts of violence or threats of violence will not and cannot be tolerated; such acts will attract a deterrent sentence to ensure that the public is protected.
The Court of Appeal in Leung Tin Kei reiterated that courts will impose a sentence that is punitive and sufficiently deterrent in accordance with principles established in applicable case law. It therefore follows that the personal background and mitigation as well as the submissions of impulsive behaviour and being carried away by the emotions of others carry little weight.
In this case, a deterrent sentence will reflect the fact that the defendants rioted in a public place, inside a Shopping Plaza which led to direct attacks on police officers holding a shield. It was a direct attack on law and order and an intention to injure and overpower police officers performing their duties.
Deterrence overrides the sentencing principle of rehabilitation in the prevailing circumstances including the increasing incidents of unrest and a rising number of large-scale public protests involving violence. This is clear from the Court of Final Appeal in SJ v Wong Chi Fung 2018 21 HKCFAR 35.
The defendants were one of a number engaged in a crime against peace, perhaps it was the sheer number with the defendants that gave them support and encouragement from being together with so many to riot. It is a common feature of mass disorder that if individuals within the crowd act violently, this will in turn inflame and encourage others to behave similarly. The harm and destruction done comes from the combined effect of what is done en masse.
For similar offences with different backgrounds and facts, the sentences in those cases do not provide a helpful guidance. Each charge must be considered on its own facts. What is a common factor is that the sentence should be punitive and sufficiently deterrent therefore, an immediate custodial sentence is inevitable.
The Court of Appeal in Leung Tin Kei set out various factors to be taken into account when passing sentence on the offence of riot. In that case the riot took place in February 2016 in Argyle Street, Kowloon. Courts must consider these factors and principles to arrive at a sentence according to the facts of each individual case. In that authority, the Court of Appeal upheld the sentences imposed.
I have been referred to HKSAR v Tang Ho Yin where the appellant was a man with a clear record and aged 24 at the time he committed the offence of riot. He pleaded guilty at the earliest opportunity and the sentencing judge took a starting point of five years’ imprisonment. The Court of Appeal considered the facts of that case, a riot between Shantung Street and Nathan Road on 9 February 2016 and although they said the appropriate starting point for that defendant was four years and six months, they dismissed the appeal. Mr Shek has submitted I should take the same starting point.
In deciding the starting point of the offence, the extent of the overall violence involved must be considered, not the defendant’s individual acts in isolation. I quote from the authority R v Caird and others 1970 Cr App R 499 where LJ Sachs said at pages 507-508,
“those who choose to take part in such unlawful occasions must do so at their peril. … Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who, by weight of numbers, pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers. … In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.”
It therefore follows that I should consider the extent of the overall violence involved, not each defendant’s individual acts in each riot separately and in isolation.
I have considered the factors relevant to sentencing as set out in Leung Tin Kei. This riot was spontaneous in that it arose when the police entered the Plaza to disperse protesters and PW1 became separated from other officers. However, from the CCTV footage you can see there was prior organised activity in the form of human chains passing items to be used if necessary with the 1st defendant an active participant. There were people handing out facemasks as a form of protection and to cover one’s face. The 3rd defendant took one and put it on in anticipation. The 2nd defendant came armed with a face mask.
I agree the number of people engaged in both riots were not as large as other recent riot cases but these riots took place indoors, inside a Shopping Plaza with as a result, some limitations. Despite this, the degree of violence was palpable. A viewing of the CCTV shows how brutal and savage the rioters were when they surrounded PW1 and later PW2. They just lost all control and self-restraint. This is a factor I take into account and place weight on.
It may not have lasted long this riot but it was so vicious that PW1 was seriously injured. Both PW1 and PW2 were targets of the rioters because they were police officers. The harm caused is immeasurable to particularly PW1. Not just the physical harm and disability caused but the adverse impact they will have on his police career. This is another serious factor of this riot of Charge 1.
As far as the other factors are concerned the nature and extent of the nuisance caused to the public by these riots inside the Shopping Plaza is foreseeable. Such riots conceivably affected the relationship amongst community groups, residents and the police on this occasion.
Defence counsel have urged me to look at what each defendant actually did during the course of the riot or riots. I repeat, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation. It is that very fact that constitutes the gravity of the offence. They are all equally culpable. One considers what the group to whose number the defendants lent their support did.
Defence counsel have also urged me to look at each defendant’s personal circumstances, mitigation, age and lack of criminal records. However, it is necessary to re-emphasis deterrence and punishment in sentencing the offence of riot. Courts must show that such conduct will not be tolerated in this community. It is in these types of cases where general deterrence has an overriding effect on the resulting sentence to be imposed.
It therefore follows, as I said above, that personal circumstances and mitigation as well as the submissions of impulsive behaviour and being carried away by the emotions of others carry little weight. That applies equally to the 3rd defendant. He may have been young but in my view his mitigation, his age and student status does not negate the need to impose a deterrent and custodial sentence which in this case will be a term of imprisonment.
Sentence
All 3 defendants have pleaded guilty at the earliest opportunity which does demonstrate remorse. From a reading of all the letters, in particular those from the defendants personally, I am sure all regret their actions and participation.
It is not an inconsiderable task to impose a punitive and deterrent sentence on young men and those with previous good characters but this present case requires me to give proper weight to public interest.
Having considered all the relevant factors against the circumstances, I am of the view that the appropriate starting point for Charge 1, where all 3 defendants took part in this riot is 5 years’ imprisonment after trial.
I am of the view that the appropriate starting point for Charge 3, where the 1st and 2nd defendant took part in this second riot is 6 years’ imprisonment after trial. These riots took place one after the other and instead of taking stock and walking away from more rioting and violence, the 1st and 2nd defendant took part in another riot hence the higher starting point for the Charge 3.
All defendants pleaded guilty at the earliest opportunity and are therefore entitled to the usual full discount of one-third after plea.
Accordingly, I reduce the starting point of Charge 1 by 1 year and 8 months and sentence all defendants to 3 years and 4 months’ imprisonment for Charge 1.
I reduce the starting point of Charge 3 by 2 years and sentence the 1st and 2nd defendant to 4 years’ imprisonment for Charge 3.
The higher starting point for Charge 3 reflects the fact they participated in a second riot and I will order all sentences to be served concurrently.
Therefore, the 1st defendant is sentenced to a total of 4 years’ imprisonment.
The 2nd defendant is sentenced to a total of 4 years’ imprisonment.
The 3rd defendant is sentenced to 3 years and 4 months’ imprisonme
STCC1098/2020
李志豪
裁判法院
不認罪
不成立
證據不足
裝修工人
39
管有攻擊性武器意圖作非法用途
鐵通、六合匙、扳鉗
沙田
ESCC564/2020
徐綺薇
裁判法院
認罪
罪成
學生
16
管有攻擊性武器意圖作非法用途
護目鏡、手套、雷射筆、刀
入更生中心
觀塘
ESCC564/2020
徐綺薇
裁判法院
認罪
罪成
學生
16
刑事毀壞
入更生中心
觀塘
ESCC564/2020
徐綺薇
裁判法院
認罪
罪成
學生
16
非法集結
入更生中心
觀塘
ESCC564/2020
徐綺薇
裁判法院
認罪
罪成
學生
16
蒙面
入更生中心
觀塘
STCC3091/2019
溫紹明
裁判法院
認罪
罪成
裝修工人
27
刑事毀壞
社會服務令
08/05/2019
大圍
KTCC604/2020
梁少玲
裁判法院
不認罪
不成立
證據不足
學生
21
管有適合作非法用途的工具
六角匙、索帶
11/11/2019
觀塘
WKCC4632/2019
劉綺雲
裁判法院
不認罪
罪成
地盤工
38
刑事毀壞
判囚
7
旺角
KTCC1098/2020
徐綺薇
裁判法院
簽保守行為
14
刑事毀壞
秀茂坪
WKCC1727/2020
羅德泉
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認罪
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學生
16
在公眾地方造成阻礙
社會服務令
12/11/2019
旺角
KCCC809/2020
葉啓亮
裁判法院
認罪
罪成
廚師
25
非法集結
判囚
6
11/11/2019
理大
KTCC2017/19
徐綺薇
裁判法院
認罪
罪成
學生
16
串謀意圖施用有害物品使人受損害、精神受創或惱怒
入更生中心
觀塘
WKCC734/2020
潘兆初、彭偉昌、潘敏琦
高院
不認罪
罪成
侍應
22
襲警
判囚
10
01/01/2020
旺角
WKCC734/2020
潘兆初、彭偉昌、潘敏琦
高院
不認罪
罪成
餐廳經理
25
襲警
判囚
10
01/01/2020
旺角
KCCC809/2020
葉啓亮
裁判法院
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警證供問題
廚師
25
襲警
11/11/2019
理大
KCCC809/2020
葉啓亮
裁判法院
不成立
警證供問題
廚師
25
刑事毀壞
11/11/2019
理大
WKCC734/2020
林子勤
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警證供問題
侍應
19
襲警
01/01/2020
旺角
WKCC734/2020
林子勤
裁判法院
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地盤工人
20
襲警
01/01/2020
旺角
STCC1603/2020
溫紹明
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簽保守行為
學生
15
管有適合作非法用途的工具
索帶
沙田
KCCC166/2020
潘兆初、彭偉昌、陳慶偉
高院
認罪
罪成
學生
16
襲警
入更生中心
旺角
TMCC700003/2020
潘兆初、彭偉昌、彭寶琴
高院
認罪
罪成
學生
15
縱火
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01/08/2020
元朗
TMCC700003/2021
潘兆初、彭偉昌、彭寶琴
高院
認罪
罪成
學生
15
管有任何物品意圖摧毀或損壞財產
火機、毛巾、剪刀、木筷子
入勞教中心
01/08/2020
元朗
ESCC1835/20
錢禮
裁判法院
認罪
罪成
送貨工人
53
刑事毀壞
判囚
75
西營盤
ESCC1835/20
錢禮
裁判法院
認罪
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送貨工人
53
刑事毀壞
判囚
75
金鐘
ESCC1835/20
錢禮
裁判法院
認罪
罪成
送貨工人
53
刑事毀壞
判囚
75
06/07/2019
白石角
ESCC1835/20
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裁判法院
認罪
罪成
送貨工人
53
刑事毀壞
判囚
75
06/07/2019
馬料水
ESCC1835/20
錢禮
裁判法院
認罪
罪成
送貨工人
53
刑事毀壞
判囚
75
金鐘
ESCC1835/20
錢禮
裁判法院
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罪成
送貨工人
53
刑事毀壞
判囚
75
大埔
WKCC3485/19
黃雅茵
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社工
22
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荃灣
WKCC3485/19
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社工
22
未能在規定下出示身分證明文件
荃灣
WKCC2943/2019
林子勤
裁判法院
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不成立
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24
普通襲擊
07/10/2019
瑪嘉烈醫院
WKCC2943/2019
林子勤
裁判法院
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24
阻差辦公
07/10/2019
瑪嘉烈醫院
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簽保守行為
學生
20
無牌管有無線電通訊器具
08/11/2019
旺角
STCC406/2020
溫紹明
裁判法院
不認罪
不成立
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文員
42
襲警
09/01/2019
大圍
STCC406/2020
溫紹明
裁判法院
不認罪
不成立
警證供問題
文員
32
襲警
09/01/2019
大圍
KCCC1187/2020
張天雁
裁判法院
簽保守行為
24
管有攻擊性武器或適合作非法用途的工具
士巴拿
旺角
KCS510196/2020
張天雁
裁判法院
簽保守行為
學生
20
無牌管有無線電通訊器具
11/03/2019
旺角
STCC1065/2020
溫紹明
裁判法院
認罪
罪成
學生
15
在公眾地方管有攻擊性武器
雷射筆
感化令
11/03/2019
沙田
STCC1065/2020
溫紹明
裁判法院
認罪
罪成
學生
15
管有任何物品意圖摧毀或損壞財產
鎚
感化令
11/03/2019
沙田
KCCC336/2020
張天雁
裁判法院
認罪
罪成
學生
18
縱火
感化令
03/01/2020
太子
ESCC1929/2020
蘇惠德
裁判法院
認罪
罪成
主婦
59
在公眾地方造成阻礙
緩刑
銅鑼灣
WKCC1732/2020
羅德泉
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認罪
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學生
17
管有任何物品意圖摧毀或損壞財產
刀、噴漆
入勞教中心
11/02/2019
旺角
WKCC2323/2020
羅德泉
裁判法院
認罪
罪成
學生
17
非法集結
入勞教中心
12/02/2019
旺角
ESCC862/2020
劉綺雲
裁判法院
簽保守行為
學生
17
管有任何物品意圖摧毀或損壞財產
噴漆
11/02/2019
中環
ESCC1263/2020
錢禮
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簽保守行為
侍應
25
刑事毀壞
04/03/2020
筲箕灣
ESCC2460/2019
09/12/2020
鄭紀航
裁判法院
不認罪
罪成
設計師
22
襲警
判囚
55
11/02/2019
中環
ESCC2460/2019
09/12/2020
鄭紀航
裁判法院
不認罪
罪成
設計師
22
管有任何物品意圖摧毀或損壞財產
噴漆
判囚
55
11/02/2019
中環
FLCC888/2020
09/12/2020
蘇文隆
裁判法院
認罪
罪成
無業
25
在公眾地方造成阻礙
緩刑
11/11/2019
上水
FLCC712/2020
09/11/2020
張潔宜
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認罪
罪成
學生
21
刑事毀壞
社會服務令
天水圍
FLCC712/2020
09/11/2020
張潔宜
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認罪
罪成
學生
21
刑事毀壞
社會服務令
天水圍
STCC533/2020
09/11/2020
溫紹明
裁判法院
認罪
罪成
學生
17
襲警
感化令
沙田
KCCC659/2020
09/11/2020
張天雁
裁判法院
不認罪
不成立
證據不足
地盤人員
26
管有任何物品意圖摧毀或損壞財產
士巴拿
尖沙咀
KCCC659/2020
09/11/2020
張天雁
裁判法院
不認罪
不成立
證據不足
資訊科技工程人員
24
管有任何物品意圖摧毀或損壞財產
士巴拿
尖沙咀
KCCC659/2020
09/11/2020
張天雁
裁判法院
不認罪
不成立
證據不足
資訊科技工程人員
24
管有適合作非法用途的工具
雷射筆
尖沙咀
KCCC468/2020
09/10/2020
嚴舜儀
裁判法院
認罪
罪成
退休
57
襲警
判囚
5
尖沙咀
FLCC1277/2020
09/10/2020
蘇文隆
裁判法院
認罪
罪成
無業
22
刑事毀壞
感化令
粉嶺
FLCC1277/2020
09/10/2020
蘇文隆
裁判法院
認罪
罪成
兼職商場關懷大使
21
刑事毀壞
感化令
粉嶺
KCCC783/2020
09/10/2020
嚴舜儀
裁判法院
認罪
罪成
裝修工人
20
管有任何物品意圖摧毀或損壞財產
鎚、鉗、噴霧劑
社會服務令
尖沙咀
FLCC700032/20
09/10/2020
蘇文隆
裁判法院
認罪
罪成
學生
15
襲警
保護令
沙田
KCCC506/2020
09/09/2020
嚴舜儀
裁判法院
認罪
罪成
學生
17
管有攻擊性武器或適合作非法用途的工具
索帶、雷射筆
入更生中心
10/06/2019
石硤尾
ESCC874/2020
09/09/2020
何俊堯
裁判法院
不認罪
不成立
證據不足
學生
17
在公眾地方管有攻擊性武器
雷射筆
11/02/2019
中環
ESCC874/2020
09/09/2020
何俊堯
裁判法院
不認罪
不成立
證據不足
學生
17
管有任何物品意圖摧毀或損壞財產
噴漆
11/02/2019
中環
TMCC998/2020
09/09/2020
張潔宜
裁判法院
認罪
罪成
電腦程式員
25
刑事毀壞
社會服務令
天水圍
TMCC612/2020
09/08/2020
張潔宜
裁判法院
不認罪
罪成
倉務員
48
抗拒警務人員
判囚
1
11/10/2019
屯門
FLCC5275/2019
09/08/2020
吳重儀
裁判法院
不認罪
罪成
教師
29
襲警
判囚
225
11/11/2019
上水
KCCC700/2020
09/08/2020
羅德泉
裁判法院
認罪
罪成
文員
24
在公眾地方管有攻擊性武器
雷射筆
社會服務令
09/11/2019
旺角
KTCC412/2020
09/08/2020
徐綺薇
裁判法院
撤控
已有其他控罪
學生
19
非法集結
10/07/2019
觀塘
KTCC412/2020
09/08/2020
徐綺薇
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認罪
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19
管有任何物品意圖摧毀或損壞財產
噴漆
感化令
10/07/2019
觀塘
ESCC1427/2020
09/07/2020
錢禮
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學生
17
管有任何物品意圖摧毀或損壞財產
噴漆
中環
ESCC32/2020
09/04/2020
林希維
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不認罪
罪成
侍應
25
在公眾地方管有攻擊性武器
刀
判囚
9
01/01/2020
銅鑼灣
ESCC679/2020
09/04/2020
錢禮
裁判法院
認罪
罪成
學生
17
無牌管有無線電通訊器具
只判罰款
旺角
09/04/2020
羅德泉
裁判法院
簽保守行為
17
無牌管有無線電通訊器具
10/05/2019
旺角
STCC873/2020
09/04/2020
溫紹明
裁判法院
撤控
未知原因
學生
20
在公眾地方管有攻擊性武器
雷射筆
沙田
STCC873/2020
09/04/2020
溫紹明
裁判法院
認罪
罪成
學生
20
管有任何物品意圖摧毀或損壞財產
噴漆、士巴拿、刀、剪刀、打火機
沙田
ESCC679/2020
09/04/2020
錢禮
裁判法院
撤控
未知原因
學生
21
在公眾地方管有攻擊性武器
雷射筆
11/11/2019
柴灣
ESCC679/2020
09/04/2020
錢禮
裁判法院
認罪
罪成
學生
21
管有任何物品意圖摧毀或損壞財產
索帶、六角匙、鎚、噴漆
感化令
11/11/2019
柴灣
FLCC4702/2019
09/03/2020
蘇文隆
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不認罪
不成立
證據不足
電子工程師
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管有任何物品意圖摧毀或損壞財產
刺釘
大埔
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蘇文隆
裁判法院
認罪
罪成
電子工程師
34
無牌管有無線電通訊器具
只判罰款
大埔
KCCC835/2020
09/03/2020
嚴舜儀
裁判法院
簽保守行為
售貨員
20
在公眾地方造成阻礙
土瓜灣
WKCC1577/2020
09/03/2020
羅德泉
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認罪
罪成
74
刑事毀壞
緩刑
06/01/2020
太子
ESCC408/2020
09/02/2020
張潔宜
裁判法院
撤控
學生
19
管有攻擊性武器或適合作非法用途的工具
刀片、頭盔、防毒面具
天水圍
ESCC408/2020
09/02/2020
張潔宜
裁判法院
撤控
19
無牌管有無線電通訊器具
天水圍
KCCC724/2020
09/02/2020
裁判法院
簽保守行為
商人
26
無牌管有無線電通訊器具
紅磡
KCCC641/2020
09/02/2020
張天雁
裁判法院
不認罪
不成立
警證供問題
眾籌助理
26
在公眾地方管有攻擊性武器
士巴拿、雷射筆
11/09/2019
黃大仙
KTCC656/20
09/02/2020
裁判法院
撤控
學生
16
企圖誤導警務人員
觀塘
DCCC105/2020
09/01/2020
胡雅文
區院
認罪
罪成
司機
38
在公眾地方管有攻擊性武器
刀
判囚
36
09/04/2019
北角
DCCC 105/2020
[2020] HKDC 746
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 105 OF 2020
———————-
HKSAR
v
Leung Yat-chi Frankie
———————-
Before: HH Judge A. J. Woodcock
Date: 1 September 2020 at 2.33 pm
Present: Mr Timothy Chen Ke-hong, SPP (Ag) of the Department of Justice, for HKSAR
Mr Chris Ng Chung-luen and Mr Timothy Ryan Wong, instructed by Adrian Lau & Yim for the defendant
Offence: (1) Possession of an imitation firearm (管有仿製火器)
(2) Possession of offensive weapon in a public place (在公眾地方管有攻擊性武器)
(3) Dangerous driving (危險駕駛)
———————
Reasons for Sentence
———————
The defendant pleaded guilty to three charges. On the fourth day of September 2019 the defendant had in his possession one imitation firearm, an airgun (Charge 1). On the same day in a public place, without lawful authority or reasonable excuse, he had with him two offensive weapons, two knifes (Charge 2). Lastly, on the same day, he drove a vehicle on the road dangerously (Charge 3).
Summary of facts
At about 6.50 pm on 4 September 2019, three police officers were on board a police vehicle, AM8437, travelling along the Island Eastern Corridor westbound towards Causeway Bay when the defendant, in a light goods vehicle, VW3193, suddenly overtook AM8437 from the offside, so close that the police driver had to apply his brakes immediately in order to avoid a collision with the defendant’s vehicle.
The driver turned on the police flashing blue emergency lights and switched on the vehicle’s loudspeaker before requesting the defendant to pull over. The defendant refused the request and then proceeded to drive dangerously through several streets of Causeway Bay and North Point. AM8437 chased the defendant and repeatedly demanded he stop over the loudspeaker. The defendant weaved in and out of vehicles and jumped two red lights before pulling over.
AM8437 had a camera, which captured the chase through the streets at times at speed and the erratic driving manner as well as the defendant jumping red lights twice at busy junctions. Luckily, no other driver or pedestrian was injured. The CCTV of that camera was viewed in court during mitigation.
Whilst AM8437 was following the defendant’s vehicle, on at least four occasions, the defendant extended his right hand out of the driver’s window and pointed a pistol-like object, later known to be an airgun, at the police vehicle behind him.
During this car chase, the defendant stopped at a traffic light on King’s Road outside Metropole Building and alighted from his vehicle. He then pointed the gun at AM8437 behind him before getting back into the vehicle and driving off. This was also captured on CCTV.
Eventually the defendant stopped his vehicle on Kin Wah Street in North Point and got out of his vehicle, pointing the airgun at the police vehicle that had pulled up behind him. Three police officers alighted from AM8437 and ordered the defendant to drop the airgun. When he did, they went forward and subdued him. He was arrested at the scene. Under caution, he stated that he wanted revenge for the protestors because the police had beaten them up.
He was searched and the police found on him another magazine to fit the same airgun containing 24 plastic pellets. They also found two surgical knives in a pouch at his waist area. In the airgun that he had pointed at the police and subsequently dropped to the ground was a magazine containing 22 plastic pellets. The police found another separate magazine for that airgun inside the defendant’s vehicle.
The police also seized a mobile phone from his waist-bag at the time of his arrest and found during a preliminary examination, messages and posts about killing police officers and killing those who supported the proposed extradition bill that were sent from and posted on the defendant’s WhatsApp and Facebook accounts.
He was subsequently taken to his home address where a search was conducted. The police found another airgun, an air rifle that was not in working order, four more magazines, some parts resembling the components of a air rifle, and two sharpened samurai swords. Those magazines found at the scene and in his home were designed to store 6mm calibre plastic pellets.
There was also a desktop computer seized and an examination of it found two Microsoft Word documents containing contents about beating up and/or killing police officers.
The defendant gave two video recorded interviews under caution and he told the police that he was working as a delivery driver. He was receiving regular psychological treatment. He was referred to what he said under caution at the scene and he elaborated that it was the police who had abused their powers on 31 August 2019. When asked about the two surgical knives he was carrying, he said he planned to use them to stab the police because they had made unreasonable arrests, fired tear gas, and used unreasonable force. He was planning to kill an off-duty police officer at a police station but he had no specific officer nor a specific police station in mind.
On that day he had received a parking ticket when illegally parked earlier and he was angry. When he saw the police vehicle AM8437, he wanted to provoke the police. He admitted that when he was driving dangerously and on several occasions he pointed his airgun out of the driver’s window at the police vehicle and he fired pellets from his airgun at it.
He explained that the WhatsApp messages and Facebook posts were sent and posted by him. They were about killing police officers and killing supporters of the extradition bill. He did say that he was making comments in those posts and had no actual intention to kill anybody.
The airguns and magazines found in his home were used by him when he played war games and he had recently purchased those samurai swords. He did sharpen them and had thought of using them to kill police officers and people from Fujian. However, he had no actual intention to kill anybody.
The defendant admitted the Summary of Facts and the elements of all three charges. He is not a man with a clear record. He has five previous convictions. In 2008 he was ordered to serve a probation order for an indecent assault conviction. In 2010 he was fined for a common assault. In 2018 he was convicted of two charges of indecent assault and one charge of possession of an offensive weapon in a public place after a plea. It was this court that sentenced him to 1 year and 8 months’ imprisonment after a plea.
Mitigation
The defendant is now 38 years old and before his arrest he was working as a driver, earning $15,000 a month. He lives alone after his parents passed away. I have been told previously that he is close to his aunt but not close to his only sibling.
Back in 2018, for the purposes of sentencing the defendant, I had called for medical reports. A psychologist said the defendant was a man with a mild grade intellectual disability. In an updated psychiatric report from the Castle Peak Hospital, where the defendant has been receiving treatment since 2018, which I now mark as MFI-1, a psychiatrist said the defendant was impressed to have autistic spectrum traits given his social and speech deficits. After his release from his last prison sentence, he continued to have outpatient follow-up treatment. He was on medication.
He was seen by this psychiatrist after his arrest for these offences and he told the doctor he was having some emotional fluctuation because of the social unrest and that he was disgruntled with the police in how they executed their duties. He had developed a hatred towards police officers and said he began to carry on him an airgun and knives when he went out since late August 2019 as he felt unsafe travelling around in areas where there were frequent protests.
He told the psychiatrist that on the material day he tried to overtake the police vehicle which led to the police ordering him to pull over. He felt he was being provoked by those police officers and was angry. He then took out his airgun and shot a few times aiming at the body of their vehicle. He owned the airgun because he was fond of playing war games. The doctor’s conclusion was that he had traits of autism spectrum disorder and an underlying paraphilia disorder. Continued treatment is recommended.
I referred myself to my Reasons for Sentence in DCCC 262/2018, when I sentenced the defendant to a term of imprisonment. I was given an insight into the defendant’s upbringing by his aunt. She wrote and said that his mother had had a difficult birth with him. He had been starved of oxygen during the birth, which led to him having a mild grade intellectual disability. He was originally studying at a special school when he started school because of an autism diagnosis but he later transferred to a mainstream school. However, there he was mercilessly bullied by the children because he had a noticeable speech impediment.
I was told he developed behavioural problems at school and was referred to a psychologist even then. He dropped out of school in Form 4. In 2008, when he committed his first offence, he did get proper psychological help and treatment but that stopped when his probation order ended, which was very unfortunate. He was close to his mother but she died in 2011, leaving him to fend for himself.
In mitigation, Mr Ng for the defendant has said all he can say on his behalf and I thank him for his written submissions. He explained that just prior to the offence date the defendant had damaged his employers vehicle and had to pay compensation. This left him struggling to make ends meet financially. He had no close friends nor family able or willing to lend him money or financially support him. He even had trouble with everyday expenses. This left him under great stress emotionally.
On the date of the offence he had no money for food or parking fees. He had asked his employer for an advance from his salary due in two weeks but his request was refused. He was upset and sad by this refusal and his stress was amplified.
He was on his way to make a delivery when he saw the police vehicle AM8437. This made him think of the recent clashes between the police and protestors. These thoughts, coupled with his unhappy, stressed state of mind, led him to commit these offences impulsively. He wanted to vent his unhappiness and resentment towards the police so he pointed his airgun at their vehicle. He only intended to aim at the vehicle, not at police officers or anybody else.
He did carry around two surgical scalpels he had bought online but for his own sense of security rather than because he had a real intention to stab somebody. It was said in mitigation that in fact he dared not harm anybody. I have a letter from the defendant himself stressing this mitigation. I also have a letter from a ministry officer of a Christian group who has come to know the defendant well since his incarceration in 2018.
Mr Ng rightly points out that, according to the Firearms and Ammunition Ordinance, Cap 238, a person would be liable to a maximum term of imprisonment of 2 years for possession of an imitation firearm, unless they, within 10 years of being convicted of an offence specified in the schedule or an offence under that same ordinance, commit that offence of possession of an imitation firearm. If they fall foul of that section, then they are liable to imprisonment a maximum term of 7 years. The defendant was convicted of indecent assault in 2018 and common assault in 2010, which are offences under that schedule. Therefore he now faces a maximum term of imprisonment of 7 years for Charge 1.
I have been referred to the official report of proceedings in the Legislative Council dated 8 July 1981, where there was a second reading of the Arms and Ammunition bill to replace the former Arms and Ammunition Ordinance. I have now marked it as MFI-2. Mr Ng stresses the legislative intent in enhancing the maximum sentence if an offender has been convicted of an offence under the schedule in the previous 10 years was to penalise and deter the possession of imitation firearms for illegal purposes. I have been referred to page 1025.
Mr Ng submits that the possession of an imitation firearm in this case was not related to an offence such as common assault and indecent assault, these being his past convictions that enhance the maximum sentence to one of 7 years. Therefore, the current case and facts lack the requisite aggravating factor to impose a sentence that is higher than the normal maximum penalty of 2 years’ imprisonment. The defendant did not carry an airgun to commit an offence related to violence or an offence of a sexual nature.
With respect, I do not agree. By his own admissions, the defendant used the airgun to shoot at the police vehicle in a very public place; that is during rush hour in the busy streets of Causeway Bay and North Point.
I have been referred to many previous sentences involving possession of an imitation firearm, possession of an offensive weapon in a public place, and dangerous driving. Most of those cases and authorities have very different facts to this case. None of these offences have guidelines or tariffs. Sentences therefore will be decided on the individual facts of each individual case.
What is stressed in mitigation is the defendant did not use the firearm to rob a victim or the scalpels to commit a similar offence. He committed the current offences because of his anger towards the police. His anger was amplified by his own financial difficulties. He saw the police vehicle and vented his emotions impulsively. It is stressed that no police officer was injured nor was any member of the public as a result of his actions and dangerous driving.
I take into account everything said on behalf of the defendant and being angry with the police or indeed any public body or person is not an offence but actions arising from that anger, even if impulsively, that are criminal in nature bears consequences.
His actions of overtaking the police vehicle too closely and then driving dangerously may not have been premeditated or planned but he did have in his vehicle an airgun with magazines containing plastic pellets which he subsequently aimed and fired as well as two sharp surgical scalpels in pouches on his waist. He made a conscious decision to carry them on his person and in his vehicle.
The defendant knows full well that carrying weapons out in public could lead to his arrest, conviction and imprisonment because I only sentenced him to prison for the same offence in August 2018; that is about one year before this offence.
Reasons for sentence
I have to balance the defendant’s personal mitigation and mental issues against the seriousness of the offences and his culpability. I have taken into account he lives independently, has full-time employment, and knows the difference between right and wrong.
His posts on his mobile phone sent out on Facebook and WhatsApp as well as the documents on his home computer containing similar contents about beating up or killing police officers show that not only was he thinking about violent acts against the police and those that supported the extradition bill, but that he was verbalising them publicly as well. Not only did he verbalise his opinions and hateful violent thoughts but carried an airgun and surgical scalpels out in public whilst such thoughts were running through his mind.
This, in my view, amplifies the seriousness of the facts and Charges 1 and 2. The facts in this case show he is capable of foolish, impulsive acts driven by his emotions. It is not unimaginable that he might have acted on some of those more violent thoughts. After all, he acted on his emotions when he saw a police vehicle on the road. When told to stop by the police after a particular bad piece of driving, he acted in an irrational manner and then drove dangerously.
I do take into account the fact that the imitation firearm, the airgun, was capable of discharging energy less than 2 joules and 6mm calibre plastic pellets. It was not a powerful airgun. There is no evidence to the contrary. However, the police following him were not to know that at the time, nor were other drivers and pedestrians near him who watched him get out of his vehicle or lean out whilst driving and fire it at the police vehicle behind him. There could have been other foreseeable consequences if drivers or pedestrians had been alarmed and frightened by his actions.
Having considered the facts of the case, mitigation put forward, the defendant’s remorse, and mitigation letters submitted, I find a starting point of 3 years and 6 months’ appropriate for Charge 1.
Charge 2 carries a maximum of 3 years’ imprisonment on indictment and I find it appropriate to impose the maximum as a starting point, where the weapons were two surgical scalpels and he expressed an intention to use violence against a police officer.
Charge 3 carries a maximum sentence of 3 years’ imprisonment for dangerous driving and a fine of $25,000. There is also a minimum disqualification period of 6 months and a requirement for an order for the defendant to attend and complete a driving improvement course. The defendant has one previous for careless driving in 2014 and several speeding tickets.
The courts have often reminded motorists in sentencing that a motor vehicle, when not driven to requisite standards, can kill or maim. A vehicle can become a dangerous weapon and normally deterrent sentences are called for.
This is not a case where a driver had a momentary lapse of judgment and drove dangerously, but a more serious and culpable case where the defendant had a selfish disregard to other road-users and pedestrians at that time. There was a lot of traffic at that time and he weaved in and out of that traffic at speed to avoid the police. He then jumped red lights, putting pedestrians and other road-users at risk. This is made worse by the fact that he was disobeying and ignoring an order by the police to stop his vehicle, necessitating a chase through busy streets.
I find a starting point of 2 years and 6 months’ appropriate for Charge 3. In addition to imprisonment, I make a disqualification order from driving all classes of vehicle for a period of 18 months.
The defendant pleaded guilty to all charges at the earliest opportunity and is therefore entitled to the full discount for that plea and demonstrable remorse.
After a discount of one-third is applied to all starting points for these pleas of guilty, the defendant is sentenced as follows:
Charge 1: 2 years and 4 months’ imprisonment;
Charge 2: 2 years’ imprisonment;
Charge 3: 1 year and 8 months’ imprisonment.
I take into account the totality principle and how all the charges are linked. I find the dangerous driving charge quite distinctly separate to Charges 1 and 2, even if committed at the same time.
Accordingly, I will order Charges 1 and 2 to be served concurrently and 8 months of Charge 3 to be served consecutively to Charge 1 and the balance concurrently. Accordingly, the defendant is sentenced to 3 years’ imprisonment.
The 18-month driving disqualification period will start to run from the date of sentencing; that is, today. The defendant is to complete a driving improvement course at his own expense within the last three months of the expiration of his disqualification period. The defendant is also warned that it is an offence not to attend and complete this course and that he remains disqualified until he attends and completes the driving improvement course, notwithstanding the disqualification period may already have ended.
COURT: Can I ask you if you understand that sentence?
DEFENDANT: Understand.
COURT: And the disqualification order, period of it and the requirement to attend a driving improvement course, you understand that?
DEFENDANT: Understand.
(A J Woodcock)
District Judge
DCCC105/2020
09/01/2020
胡雅文
區院
認罪
罪成
司機
38
危險駕駛
判囚
36
09/04/2019
北角
DCCC 105/2020
[2020] HKDC 746
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 105 OF 2020
———————-
HKSAR
v
Leung Yat-chi Frankie
———————-
Before: HH Judge A. J. Woodcock
Date: 1 September 2020 at 2.33 pm
Present: Mr Timothy Chen Ke-hong, SPP (Ag) of the Department of Justice, for HKSAR
Mr Chris Ng Chung-luen and Mr Timothy Ryan Wong, instructed by Adrian Lau & Yim for the defendant
Offence: (1) Possession of an imitation firearm (管有仿製火器)
(2) Possession of offensive weapon in a public place (在公眾地方管有攻擊性武器)
(3) Dangerous driving (危險駕駛)
———————
Reasons for Sentence
———————
The defendant pleaded guilty to three charges. On the fourth day of September 2019 the defendant had in his possession one imitation firearm, an airgun (Charge 1). On the same day in a public place, without lawful authority or reasonable excuse, he had with him two offensive weapons, two knifes (Charge 2). Lastly, on the same day, he drove a vehicle on the road dangerously (Charge 3).
Summary of facts
At about 6.50 pm on 4 September 2019, three police officers were on board a police vehicle, AM8437, travelling along the Island Eastern Corridor westbound towards Causeway Bay when the defendant, in a light goods vehicle, VW3193, suddenly overtook AM8437 from the offside, so close that the police driver had to apply his brakes immediately in order to avoid a collision with the defendant’s vehicle.
The driver turned on the police flashing blue emergency lights and switched on the vehicle’s loudspeaker before requesting the defendant to pull over. The defendant refused the request and then proceeded to drive dangerously through several streets of Causeway Bay and North Point. AM8437 chased the defendant and repeatedly demanded he stop over the loudspeaker. The defendant weaved in and out of vehicles and jumped two red lights before pulling over.
AM8437 had a camera, which captured the chase through the streets at times at speed and the erratic driving manner as well as the defendant jumping red lights twice at busy junctions. Luckily, no other driver or pedestrian was injured. The CCTV of that camera was viewed in court during mitigation.
Whilst AM8437 was following the defendant’s vehicle, on at least four occasions, the defendant extended his right hand out of the driver’s window and pointed a pistol-like object, later known to be an airgun, at the police vehicle behind him.
During this car chase, the defendant stopped at a traffic light on King’s Road outside Metropole Building and alighted from his vehicle. He then pointed the gun at AM8437 behind him before getting back into the vehicle and driving off. This was also captured on CCTV.
Eventually the defendant stopped his vehicle on Kin Wah Street in North Point and got out of his vehicle, pointing the airgun at the police vehicle that had pulled up behind him. Three police officers alighted from AM8437 and ordered the defendant to drop the airgun. When he did, they went forward and subdued him. He was arrested at the scene. Under caution, he stated that he wanted revenge for the protestors because the police had beaten them up.
He was searched and the police found on him another magazine to fit the same airgun containing 24 plastic pellets. They also found two surgical knives in a pouch at his waist area. In the airgun that he had pointed at the police and subsequently dropped to the ground was a magazine containing 22 plastic pellets. The police found another separate magazine for that airgun inside the defendant’s vehicle.
The police also seized a mobile phone from his waist-bag at the time of his arrest and found during a preliminary examination, messages and posts about killing police officers and killing those who supported the proposed extradition bill that were sent from and posted on the defendant’s WhatsApp and Facebook accounts.
He was subsequently taken to his home address where a search was conducted. The police found another airgun, an air rifle that was not in working order, four more magazines, some parts resembling the components of a air rifle, and two sharpened samurai swords. Those magazines found at the scene and in his home were designed to store 6mm calibre plastic pellets.
There was also a desktop computer seized and an examination of it found two Microsoft Word documents containing contents about beating up and/or killing police officers.
The defendant gave two video recorded interviews under caution and he told the police that he was working as a delivery driver. He was receiving regular psychological treatment. He was referred to what he said under caution at the scene and he elaborated that it was the police who had abused their powers on 31 August 2019. When asked about the two surgical knives he was carrying, he said he planned to use them to stab the police because they had made unreasonable arrests, fired tear gas, and used unreasonable force. He was planning to kill an off-duty police officer at a police station but he had no specific officer nor a specific police station in mind.
On that day he had received a parking ticket when illegally parked earlier and he was angry. When he saw the police vehicle AM8437, he wanted to provoke the police. He admitted that when he was driving dangerously and on several occasions he pointed his airgun out of the driver’s window at the police vehicle and he fired pellets from his airgun at it.
He explained that the WhatsApp messages and Facebook posts were sent and posted by him. They were about killing police officers and killing supporters of the extradition bill. He did say that he was making comments in those posts and had no actual intention to kill anybody.
The airguns and magazines found in his home were used by him when he played war games and he had recently purchased those samurai swords. He did sharpen them and had thought of using them to kill police officers and people from Fujian. However, he had no actual intention to kill anybody.
The defendant admitted the Summary of Facts and the elements of all three charges. He is not a man with a clear record. He has five previous convictions. In 2008 he was ordered to serve a probation order for an indecent assault conviction. In 2010 he was fined for a common assault. In 2018 he was convicted of two charges of indecent assault and one charge of possession of an offensive weapon in a public place after a plea. It was this court that sentenced him to 1 year and 8 months’ imprisonment after a plea.
Mitigation
The defendant is now 38 years old and before his arrest he was working as a driver, earning $15,000 a month. He lives alone after his parents passed away. I have been told previously that he is close to his aunt but not close to his only sibling.
Back in 2018, for the purposes of sentencing the defendant, I had called for medical reports. A psychologist said the defendant was a man with a mild grade intellectual disability. In an updated psychiatric report from the Castle Peak Hospital, where the defendant has been receiving treatment since 2018, which I now mark as MFI-1, a psychiatrist said the defendant was impressed to have autistic spectrum traits given his social and speech deficits. After his release from his last prison sentence, he continued to have outpatient follow-up treatment. He was on medication.
He was seen by this psychiatrist after his arrest for these offences and he told the doctor he was having some emotional fluctuation because of the social unrest and that he was disgruntled with the police in how they executed their duties. He had developed a hatred towards police officers and said he began to carry on him an airgun and knives when he went out since late August 2019 as he felt unsafe travelling around in areas where there were frequent protests.
He told the psychiatrist that on the material day he tried to overtake the police vehicle which led to the police ordering him to pull over. He felt he was being provoked by those police officers and was angry. He then took out his airgun and shot a few times aiming at the body of their vehicle. He owned the airgun because he was fond of playing war games. The doctor’s conclusion was that he had traits of autism spectrum disorder and an underlying paraphilia disorder. Continued treatment is recommended.
I referred myself to my Reasons for Sentence in DCCC 262/2018, when I sentenced the defendant to a term of imprisonment. I was given an insight into the defendant’s upbringing by his aunt. She wrote and said that his mother had had a difficult birth with him. He had been starved of oxygen during the birth, which led to him having a mild grade intellectual disability. He was originally studying at a special school when he started school because of an autism diagnosis but he later transferred to a mainstream school. However, there he was mercilessly bullied by the children because he had a noticeable speech impediment.
I was told he developed behavioural problems at school and was referred to a psychologist even then. He dropped out of school in Form 4. In 2008, when he committed his first offence, he did get proper psychological help and treatment but that stopped when his probation order ended, which was very unfortunate. He was close to his mother but she died in 2011, leaving him to fend for himself.
In mitigation, Mr Ng for the defendant has said all he can say on his behalf and I thank him for his written submissions. He explained that just prior to the offence date the defendant had damaged his employers vehicle and had to pay compensation. This left him struggling to make ends meet financially. He had no close friends nor family able or willing to lend him money or financially support him. He even had trouble with everyday expenses. This left him under great stress emotionally.
On the date of the offence he had no money for food or parking fees. He had asked his employer for an advance from his salary due in two weeks but his request was refused. He was upset and sad by this refusal and his stress was amplified.
He was on his way to make a delivery when he saw the police vehicle AM8437. This made him think of the recent clashes between the police and protestors. These thoughts, coupled with his unhappy, stressed state of mind, led him to commit these offences impulsively. He wanted to vent his unhappiness and resentment towards the police so he pointed his airgun at their vehicle. He only intended to aim at the vehicle, not at police officers or anybody else.
He did carry around two surgical scalpels he had bought online but for his own sense of security rather than because he had a real intention to stab somebody. It was said in mitigation that in fact he dared not harm anybody. I have a letter from the defendant himself stressing this mitigation. I also have a letter from a ministry officer of a Christian group who has come to know the defendant well since his incarceration in 2018.
Mr Ng rightly points out that, according to the Firearms and Ammunition Ordinance, Cap 238, a person would be liable to a maximum term of imprisonment of 2 years for possession of an imitation firearm, unless they, within 10 years of being convicted of an offence specified in the schedule or an offence under that same ordinance, commit that offence of possession of an imitation firearm. If they fall foul of that section, then they are liable to imprisonment a maximum term of 7 years. The defendant was convicted of indecent assault in 2018 and common assault in 2010, which are offences under that schedule. Therefore he now faces a maximum term of imprisonment of 7 years for Charge 1.
I have been referred to the official report of proceedings in the Legislative Council dated 8 July 1981, where there was a second reading of the Arms and Ammunition bill to replace the former Arms and Ammunition Ordinance. I have now marked it as MFI-2. Mr Ng stresses the legislative intent in enhancing the maximum sentence if an offender has been convicted of an offence under the schedule in the previous 10 years was to penalise and deter the possession of imitation firearms for illegal purposes. I have been referred to page 1025.
Mr Ng submits that the possession of an imitation firearm in this case was not related to an offence such as common assault and indecent assault, these being his past convictions that enhance the maximum sentence to one of 7 years. Therefore, the current case and facts lack the requisite aggravating factor to impose a sentence that is higher than the normal maximum penalty of 2 years’ imprisonment. The defendant did not carry an airgun to commit an offence related to violence or an offence of a sexual nature.
With respect, I do not agree. By his own admissions, the defendant used the airgun to shoot at the police vehicle in a very public place; that is during rush hour in the busy streets of Causeway Bay and North Point.
I have been referred to many previous sentences involving possession of an imitation firearm, possession of an offensive weapon in a public place, and dangerous driving. Most of those cases and authorities have very different facts to this case. None of these offences have guidelines or tariffs. Sentences therefore will be decided on the individual facts of each individual case.
What is stressed in mitigation is the defendant did not use the firearm to rob a victim or the scalpels to commit a similar offence. He committed the current offences because of his anger towards the police. His anger was amplified by his own financial difficulties. He saw the police vehicle and vented his emotions impulsively. It is stressed that no police officer was injured nor was any member of the public as a result of his actions and dangerous driving.
I take into account everything said on behalf of the defendant and being angry with the police or indeed any public body or person is not an offence but actions arising from that anger, even if impulsively, that are criminal in nature bears consequences.
His actions of overtaking the police vehicle too closely and then driving dangerously may not have been premeditated or planned but he did have in his vehicle an airgun with magazines containing plastic pellets which he subsequently aimed and fired as well as two sharp surgical scalpels in pouches on his waist. He made a conscious decision to carry them on his person and in his vehicle.
The defendant knows full well that carrying weapons out in public could lead to his arrest, conviction and imprisonment because I only sentenced him to prison for the same offence in August 2018; that is about one year before this offence.
Reasons for sentence
I have to balance the defendant’s personal mitigation and mental issues against the seriousness of the offences and his culpability. I have taken into account he lives independently, has full-time employment, and knows the difference between right and wrong.
His posts on his mobile phone sent out on Facebook and WhatsApp as well as the documents on his home computer containing similar contents about beating up or killing police officers show that not only was he thinking about violent acts against the police and those that supported the extradition bill, but that he was verbalising them publicly as well. Not only did he verbalise his opinions and hateful violent thoughts but carried an airgun and surgical scalpels out in public whilst such thoughts were running through his mind.
This, in my view, amplifies the seriousness of the facts and Charges 1 and 2. The facts in this case show he is capable of foolish, impulsive acts driven by his emotions. It is not unimaginable that he might have acted on some of those more violent thoughts. After all, he acted on his emotions when he saw a police vehicle on the road. When told to stop by the police after a particular bad piece of driving, he acted in an irrational manner and then drove dangerously.
I do take into account the fact that the imitation firearm, the airgun, was capable of discharging energy less than 2 joules and 6mm calibre plastic pellets. It was not a powerful airgun. There is no evidence to the contrary. However, the police following him were not to know that at the time, nor were other drivers and pedestrians near him who watched him get out of his vehicle or lean out whilst driving and fire it at the police vehicle behind him. There could have been other foreseeable consequences if drivers or pedestrians had been alarmed and frightened by his actions.
Having considered the facts of the case, mitigation put forward, the defendant’s remorse, and mitigation letters submitted, I find a starting point of 3 years and 6 months’ appropriate for Charge 1.
Charge 2 carries a maximum of 3 years’ imprisonment on indictment and I find it appropriate to impose the maximum as a starting point, where the weapons were two surgical scalpels and he expressed an intention to use violence against a police officer.
Charge 3 carries a maximum sentence of 3 years’ imprisonment for dangerous driving and a fine of $25,000. There is also a minimum disqualification period of 6 months and a requirement for an order for the defendant to attend and complete a driving improvement course. The defendant has one previous for careless driving in 2014 and several speeding tickets.
The courts have often reminded motorists in sentencing that a motor vehicle, when not driven to requisite standards, can kill or maim. A vehicle can become a dangerous weapon and normally deterrent sentences are called for.
This is not a case where a driver had a momentary lapse of judgment and drove dangerously, but a more serious and culpable case where the defendant had a selfish disregard to other road-users and pedestrians at that time. There was a lot of traffic at that time and he weaved in and out of that traffic at speed to avoid the police. He then jumped red lights, putting pedestrians and other road-users at risk. This is made worse by the fact that he was disobeying and ignoring an order by the police to stop his vehicle, necessitating a chase through busy streets.
I find a starting point of 2 years and 6 months’ appropriate for Charge 3. In addition to imprisonment, I make a disqualification order from driving all classes of vehicle for a period of 18 months.
The defendant pleaded guilty to all charges at the earliest opportunity and is therefore entitled to the full discount for that plea and demonstrable remorse.
After a discount of one-third is applied to all starting points for these pleas of guilty, the defendant is sentenced as follows:
Charge 1: 2 years and 4 months’ imprisonment;
Charge 2: 2 years’ imprisonment;
Charge 3: 1 year and 8 months’ imprisonment.
I take into account the totality principle and how all the charges are linked. I find the dangerous driving charge quite distinctly separate to Charges 1 and 2, even if committed at the same time.
Accordingly, I will order Charges 1 and 2 to be served concurrently and 8 months of Charge 3 to be served consecutively to Charge 1 and the balance concurrently. Accordingly, the defendant is sentenced to 3 years’ imprisonment.
The 18-month driving disqualification period will start to run from the date of sentencing; that is, today. The defendant is to complete a driving improvement course at his own expense within the last three months of the expiration of his disqualification period. The defendant is also warned that it is an offence not to attend and complete this course and that he remains disqualified until he attends and completes the driving improvement course, notwithstanding the disqualification period may already have ended.
COURT: Can I ask you if you understand that sentence?
DEFENDANT: Understand.
COURT: And the disqualification order, period of it and the requirement to attend a driving improvement course, you understand that?
DEFENDANT: Understand.
(A J Woodcock)
District Judge
DCCC105/2020
09/01/2020
胡雅文
區院
認罪
罪成
司機
38
管有仿製火器
氣槍
判囚
36
09/04/2019
北角
DCCC 105/2020
[2020] HKDC 746
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 105 OF 2020
———————-
HKSAR
v
Leung Yat-chi Frankie
———————-
Before: HH Judge A. J. Woodcock
Date: 1 September 2020 at 2.33 pm
Present: Mr Timothy Chen Ke-hong, SPP (Ag) of the Department of Justice, for HKSAR
Mr Chris Ng Chung-luen and Mr Timothy Ryan Wong, instructed by Adrian Lau & Yim for the defendant
Offence: (1) Possession of an imitation firearm (管有仿製火器)
(2) Possession of offensive weapon in a public place (在公眾地方管有攻擊性武器)
(3) Dangerous driving (危險駕駛)
———————
Reasons for Sentence
———————
The defendant pleaded guilty to three charges. On the fourth day of September 2019 the defendant had in his possession one imitation firearm, an airgun (Charge 1). On the same day in a public place, without lawful authority or reasonable excuse, he had with him two offensive weapons, two knifes (Charge 2). Lastly, on the same day, he drove a vehicle on the road dangerously (Charge 3).
Summary of facts
At about 6.50 pm on 4 September 2019, three police officers were on board a police vehicle, AM8437, travelling along the Island Eastern Corridor westbound towards Causeway Bay when the defendant, in a light goods vehicle, VW3193, suddenly overtook AM8437 from the offside, so close that the police driver had to apply his brakes immediately in order to avoid a collision with the defendant’s vehicle.
The driver turned on the police flashing blue emergency lights and switched on the vehicle’s loudspeaker before requesting the defendant to pull over. The defendant refused the request and then proceeded to drive dangerously through several streets of Causeway Bay and North Point. AM8437 chased the defendant and repeatedly demanded he stop over the loudspeaker. The defendant weaved in and out of vehicles and jumped two red lights before pulling over.
AM8437 had a camera, which captured the chase through the streets at times at speed and the erratic driving manner as well as the defendant jumping red lights twice at busy junctions. Luckily, no other driver or pedestrian was injured. The CCTV of that camera was viewed in court during mitigation.
Whilst AM8437 was following the defendant’s vehicle, on at least four occasions, the defendant extended his right hand out of the driver’s window and pointed a pistol-like object, later known to be an airgun, at the police vehicle behind him.
During this car chase, the defendant stopped at a traffic light on King’s Road outside Metropole Building and alighted from his vehicle. He then pointed the gun at AM8437 behind him before getting back into the vehicle and driving off. This was also captured on CCTV.
Eventually the defendant stopped his vehicle on Kin Wah Street in North Point and got out of his vehicle, pointing the airgun at the police vehicle that had pulled up behind him. Three police officers alighted from AM8437 and ordered the defendant to drop the airgun. When he did, they went forward and subdued him. He was arrested at the scene. Under caution, he stated that he wanted revenge for the protestors because the police had beaten them up.
He was searched and the police found on him another magazine to fit the same airgun containing 24 plastic pellets. They also found two surgical knives in a pouch at his waist area. In the airgun that he had pointed at the police and subsequently dropped to the ground was a magazine containing 22 plastic pellets. The police found another separate magazine for that airgun inside the defendant’s vehicle.
The police also seized a mobile phone from his waist-bag at the time of his arrest and found during a preliminary examination, messages and posts about killing police officers and killing those who supported the proposed extradition bill that were sent from and posted on the defendant’s WhatsApp and Facebook accounts.
He was subsequently taken to his home address where a search was conducted. The police found another airgun, an air rifle that was not in working order, four more magazines, some parts resembling the components of a air rifle, and two sharpened samurai swords. Those magazines found at the scene and in his home were designed to store 6mm calibre plastic pellets.
There was also a desktop computer seized and an examination of it found two Microsoft Word documents containing contents about beating up and/or killing police officers.
The defendant gave two video recorded interviews under caution and he told the police that he was working as a delivery driver. He was receiving regular psychological treatment. He was referred to what he said under caution at the scene and he elaborated that it was the police who had abused their powers on 31 August 2019. When asked about the two surgical knives he was carrying, he said he planned to use them to stab the police because they had made unreasonable arrests, fired tear gas, and used unreasonable force. He was planning to kill an off-duty police officer at a police station but he had no specific officer nor a specific police station in mind.
On that day he had received a parking ticket when illegally parked earlier and he was angry. When he saw the police vehicle AM8437, he wanted to provoke the police. He admitted that when he was driving dangerously and on several occasions he pointed his airgun out of the driver’s window at the police vehicle and he fired pellets from his airgun at it.
He explained that the WhatsApp messages and Facebook posts were sent and posted by him. They were about killing police officers and killing supporters of the extradition bill. He did say that he was making comments in those posts and had no actual intention to kill anybody.
The airguns and magazines found in his home were used by him when he played war games and he had recently purchased those samurai swords. He did sharpen them and had thought of using them to kill police officers and people from Fujian. However, he had no actual intention to kill anybody.
The defendant admitted the Summary of Facts and the elements of all three charges. He is not a man with a clear record. He has five previous convictions. In 2008 he was ordered to serve a probation order for an indecent assault conviction. In 2010 he was fined for a common assault. In 2018 he was convicted of two charges of indecent assault and one charge of possession of an offensive weapon in a public place after a plea. It was this court that sentenced him to 1 year and 8 months’ imprisonment after a plea.
Mitigation
The defendant is now 38 years old and before his arrest he was working as a driver, earning $15,000 a month. He lives alone after his parents passed away. I have been told previously that he is close to his aunt but not close to his only sibling.
Back in 2018, for the purposes of sentencing the defendant, I had called for medical reports. A psychologist said the defendant was a man with a mild grade intellectual disability. In an updated psychiatric report from the Castle Peak Hospital, where the defendant has been receiving treatment since 2018, which I now mark as MFI-1, a psychiatrist said the defendant was impressed to have autistic spectrum traits given his social and speech deficits. After his release from his last prison sentence, he continued to have outpatient follow-up treatment. He was on medication.
He was seen by this psychiatrist after his arrest for these offences and he told the doctor he was having some emotional fluctuation because of the social unrest and that he was disgruntled with the police in how they executed their duties. He had developed a hatred towards police officers and said he began to carry on him an airgun and knives when he went out since late August 2019 as he felt unsafe travelling around in areas where there were frequent protests.
He told the psychiatrist that on the material day he tried to overtake the police vehicle which led to the police ordering him to pull over. He felt he was being provoked by those police officers and was angry. He then took out his airgun and shot a few times aiming at the body of their vehicle. He owned the airgun because he was fond of playing war games. The doctor’s conclusion was that he had traits of autism spectrum disorder and an underlying paraphilia disorder. Continued treatment is recommended.
I referred myself to my Reasons for Sentence in DCCC 262/2018, when I sentenced the defendant to a term of imprisonment. I was given an insight into the defendant’s upbringing by his aunt. She wrote and said that his mother had had a difficult birth with him. He had been starved of oxygen during the birth, which led to him having a mild grade intellectual disability. He was originally studying at a special school when he started school because of an autism diagnosis but he later transferred to a mainstream school. However, there he was mercilessly bullied by the children because he had a noticeable speech impediment.
I was told he developed behavioural problems at school and was referred to a psychologist even then. He dropped out of school in Form 4. In 2008, when he committed his first offence, he did get proper psychological help and treatment but that stopped when his probation order ended, which was very unfortunate. He was close to his mother but she died in 2011, leaving him to fend for himself.
In mitigation, Mr Ng for the defendant has said all he can say on his behalf and I thank him for his written submissions. He explained that just prior to the offence date the defendant had damaged his employers vehicle and had to pay compensation. This left him struggling to make ends meet financially. He had no close friends nor family able or willing to lend him money or financially support him. He even had trouble with everyday expenses. This left him under great stress emotionally.
On the date of the offence he had no money for food or parking fees. He had asked his employer for an advance from his salary due in two weeks but his request was refused. He was upset and sad by this refusal and his stress was amplified.
He was on his way to make a delivery when he saw the police vehicle AM8437. This made him think of the recent clashes between the police and protestors. These thoughts, coupled with his unhappy, stressed state of mind, led him to commit these offences impulsively. He wanted to vent his unhappiness and resentment towards the police so he pointed his airgun at their vehicle. He only intended to aim at the vehicle, not at police officers or anybody else.
He did carry around two surgical scalpels he had bought online but for his own sense of security rather than because he had a real intention to stab somebody. It was said in mitigation that in fact he dared not harm anybody. I have a letter from the defendant himself stressing this mitigation. I also have a letter from a ministry officer of a Christian group who has come to know the defendant well since his incarceration in 2018.
Mr Ng rightly points out that, according to the Firearms and Ammunition Ordinance, Cap 238, a person would be liable to a maximum term of imprisonment of 2 years for possession of an imitation firearm, unless they, within 10 years of being convicted of an offence specified in the schedule or an offence under that same ordinance, commit that offence of possession of an imitation firearm. If they fall foul of that section, then they are liable to imprisonment a maximum term of 7 years. The defendant was convicted of indecent assault in 2018 and common assault in 2010, which are offences under that schedule. Therefore he now faces a maximum term of imprisonment of 7 years for Charge 1.
I have been referred to the official report of proceedings in the Legislative Council dated 8 July 1981, where there was a second reading of the Arms and Ammunition bill to replace the former Arms and Ammunition Ordinance. I have now marked it as MFI-2. Mr Ng stresses the legislative intent in enhancing the maximum sentence if an offender has been convicted of an offence under the schedule in the previous 10 years was to penalise and deter the possession of imitation firearms for illegal purposes. I have been referred to page 1025.
Mr Ng submits that the possession of an imitation firearm in this case was not related to an offence such as common assault and indecent assault, these being his past convictions that enhance the maximum sentence to one of 7 years. Therefore, the current case and facts lack the requisite aggravating factor to impose a sentence that is higher than the normal maximum penalty of 2 years’ imprisonment. The defendant did not carry an airgun to commit an offence related to violence or an offence of a sexual nature.
With respect, I do not agree. By his own admissions, the defendant used the airgun to shoot at the police vehicle in a very public place; that is during rush hour in the busy streets of Causeway Bay and North Point.
I have been referred to many previous sentences involving possession of an imitation firearm, possession of an offensive weapon in a public place, and dangerous driving. Most of those cases and authorities have very different facts to this case. None of these offences have guidelines or tariffs. Sentences therefore will be decided on the individual facts of each individual case.
What is stressed in mitigation is the defendant did not use the firearm to rob a victim or the scalpels to commit a similar offence. He committed the current offences because of his anger towards the police. His anger was amplified by his own financial difficulties. He saw the police vehicle and vented his emotions impulsively. It is stressed that no police officer was injured nor was any member of the public as a result of his actions and dangerous driving.
I take into account everything said on behalf of the defendant and being angry with the police or indeed any public body or person is not an offence but actions arising from that anger, even if impulsively, that are criminal in nature bears consequences.
His actions of overtaking the police vehicle too closely and then driving dangerously may not have been premeditated or planned but he did have in his vehicle an airgun with magazines containing plastic pellets which he subsequently aimed and fired as well as two sharp surgical scalpels in pouches on his waist. He made a conscious decision to carry them on his person and in his vehicle.
The defendant knows full well that carrying weapons out in public could lead to his arrest, conviction and imprisonment because I only sentenced him to prison for the same offence in August 2018; that is about one year before this offence.
Reasons for sentence
I have to balance the defendant’s personal mitigation and mental issues against the seriousness of the offences and his culpability. I have taken into account he lives independently, has full-time employment, and knows the difference between right and wrong.
His posts on his mobile phone sent out on Facebook and WhatsApp as well as the documents on his home computer containing similar contents about beating up or killing police officers show that not only was he thinking about violent acts against the police and those that supported the extradition bill, but that he was verbalising them publicly as well. Not only did he verbalise his opinions and hateful violent thoughts but carried an airgun and surgical scalpels out in public whilst such thoughts were running through his mind.
This, in my view, amplifies the seriousness of the facts and Charges 1 and 2. The facts in this case show he is capable of foolish, impulsive acts driven by his emotions. It is not unimaginable that he might have acted on some of those more violent thoughts. After all, he acted on his emotions when he saw a police vehicle on the road. When told to stop by the police after a particular bad piece of driving, he acted in an irrational manner and then drove dangerously.
I do take into account the fact that the imitation firearm, the airgun, was capable of discharging energy less than 2 joules and 6mm calibre plastic pellets. It was not a powerful airgun. There is no evidence to the contrary. However, the police following him were not to know that at the time, nor were other drivers and pedestrians near him who watched him get out of his vehicle or lean out whilst driving and fire it at the police vehicle behind him. There could have been other foreseeable consequences if drivers or pedestrians had been alarmed and frightened by his actions.
Having considered the facts of the case, mitigation put forward, the defendant’s remorse, and mitigation letters submitted, I find a starting point of 3 years and 6 months’ appropriate for Charge 1.
Charge 2 carries a maximum of 3 years’ imprisonment on indictment and I find it appropriate to impose the maximum as a starting point, where the weapons were two surgical scalpels and he expressed an intention to use violence against a police officer.
Charge 3 carries a maximum sentence of 3 years’ imprisonment for dangerous driving and a fine of $25,000. There is also a minimum disqualification period of 6 months and a requirement for an order for the defendant to attend and complete a driving improvement course. The defendant has one previous for careless driving in 2014 and several speeding tickets.
The courts have often reminded motorists in sentencing that a motor vehicle, when not driven to requisite standards, can kill or maim. A vehicle can become a dangerous weapon and normally deterrent sentences are called for.
This is not a case where a driver had a momentary lapse of judgment and drove dangerously, but a more serious and culpable case where the defendant had a selfish disregard to other road-users and pedestrians at that time. There was a lot of traffic at that time and he weaved in and out of that traffic at speed to avoid the police. He then jumped red lights, putting pedestrians and other road-users at risk. This is made worse by the fact that he was disobeying and ignoring an order by the police to stop his vehicle, necessitating a chase through busy streets.
I find a starting point of 2 years and 6 months’ appropriate for Charge 3. In addition to imprisonment, I make a disqualification order from driving all classes of vehicle for a period of 18 months.
The defendant pleaded guilty to all charges at the earliest opportunity and is therefore entitled to the full discount for that plea and demonstrable remorse.
After a discount of one-third is applied to all starting points for these pleas of guilty, the defendant is sentenced as follows:
Charge 1: 2 years and 4 months’ imprisonment;
Charge 2: 2 years’ imprisonment;
Charge 3: 1 year and 8 months’ imprisonment.
I take into account the totality principle and how all the charges are linked. I find the dangerous driving charge quite distinctly separate to Charges 1 and 2, even if committed at the same time.
Accordingly, I will order Charges 1 and 2 to be served concurrently and 8 months of Charge 3 to be served consecutively to Charge 1 and the balance concurrently. Accordingly, the defendant is sentenced to 3 years’ imprisonment.
The 18-month driving disqualification period will start to run from the date of sentencing; that is, today. The defendant is to complete a driving improvement course at his own expense within the last three months of the expiration of his disqualification period. The defendant is also warned that it is an offence not to attend and complete this course and that he remains disqualified until he attends and completes the driving improvement course, notwithstanding the disqualification period may already have ended.
COURT: Can I ask you if you understand that sentence?
DEFENDANT: Understand.
COURT: And the disqualification order, period of it and the requirement to attend a driving improvement course, you understand that?
DEFENDANT: Understand.
(A J Woodcock)
District Judge
DCCC 248/2020
[2020] HKDC 490
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 248 OF 2020
—————————–
HKSAR
v
CHAN KWOK CHING
—————————–
Before: Her Honour Judge A J Woodcock in court
Date: 29 June 2020
Present: Mr Alan Ng, Counsel on Fiat, for HKSAR/Director of Public Prosecutions
Mr Wong James L W, instructed by JCC Cheung & Co, for the defendant
Offence: [1] Possession of things with intent to destroy or damage property (管有物品意圖摧毀或損壞財產)
[2] Possession of apparatus for radiocommunications without a licence (無牌管有無線電通訊器具)
—————————————–
REASONS FOR SENTENCE
—————————————–
The defendant pleaded guilty to charge 1, Possession of things with intent to destroy or damage property, contrary to section 62 (a) and 63 (2) of the Crimes Ordinance, Cap 200. On 10 November 2019 at Siu Lun Court, Tuen Mun, New Territories he had in his custody or under his control three petrol bombs stoppered with white fabric strip, two spanners, three bottles containing cyclohexane and Methyl-cyclohexane, one container containing light petroleum distillate, one bag of white powdery solid containing calcium hypochlorite, 14 pieces of white fabric, one funnel, four lighters and one pair of scissors, intending without lawful excuse to use the said things or cause or permit another to use the things to destroy or damage any property belonging to some other person.
He faced a second charge of possession of apparatus for telecommunications without a licence, a set of radio transceivers but he pleaded not guilty and the charge was kept on the court file not to be dealt with unless there is an order of this Court or the Court of Appeal.
Facts of the case
The defendant admitted the amended Summary of Facts. In the afternoon of 10 November 2019, a Sunday, a team of police officers were in a police vehicle patrolling the Tuen Mun area. At about 3:10 PM they drove past Siu Lun Court where they saw a group of people clad in black walking into the area. The police immediately alighted to give chase and stopped the defendant as well as the rest of the group.
The defendant was dressed entirely in black with a black mask or facial covering and wearing black gloves. He was carrying a black rucksack and wearing a black waist bag with three black bottle pouches strapped onto the waist bag. In each of the bottle pouches was a petrol bomb. When the defendant was subdued by the police, one of the petrol bombs fell out of the pouch onto the ground. All three had fabric strips inserted in the glass bottles; ready-made petrol bombs.
In his waist bag there were four lighters, two spanners, three buckles, one handkerchief and three octopus cards. In his rucksack was a plastic bottle with 409 g of a white powdery solid of calcium hypochlorite which is commonly found in bleaching powder. There were three plastic bottles containing 1.88L of a liquid containing an organic mixture of mainly cyclohexane and Methyl-cyclohexane. There was also another canister containing 95mL of a liquid containing an organic mixture of mainly light petroleum distillate, a highly flammable organic solvent. There was also one funnel, 14 pieces of white fabric, a pair of scissors, respirator, goggles, gloves, more handkerchiefs and saline.
Those three petrol bombs strapped to his waist bag respectively contained 122 mL, 175 mL and 260 mL of a liquid containing an organic mixture of mainly cyclohexane and Methyl-cyclohexane. These are also highly flammable organic solvents and are the common constituents in paint thinner mixtures.
Mitigation
The defendant was 17 years old at the time of his arrest and will be 18 next month. He has just recently sat the Hong Kong diploma of secondary education exams (HKDSE). He lives with his mother and elder sister. He had a previous clear record.
The defendant is hoping to study mechanical engineering in higher education. He applied for a place at the Santa Barbara City College, a public college in California to study an engineering program. He received an email in March this year offering him a place. He still has aspirations of higher education in his words, in the hope of being a useful person. His elder siblings are willing to assist him financially in further education.
In mitigation I have received a letter from the defendant expressing his remorse and a hope of leniency. There are letters also from his mother, other family members, his school assistant principal and teacher. There is also letters from several social workers who testified to the defendant’s voluntary work and charitable nature.
The defendant explained in his own mitigation letter that he acted impulsively due to his ignorance and now he feels genuinely sorry. He feels sorry for making his family worry. He did not consider the consequences of his acts. He accepts responsibility and with his family continuing to support him, he will pursue higher education. He asked the court for leniency so he could study engineering.
The defendant’s mother, two sisters and a brother-in-law also write on his behalf. They say his remorse is genuine and he is no longer acting out of impulse and recklessness. He has matured. He comes from a loving family and is the youngest of four and the only male. He grew up with much love. They will nevertheless continue to support him. He worked hard at school and tried to achieve the best results he could. It appears he might have been influenced by others and peers, perhaps to gain recognition. One member of his family says just prior to his arrest his mindset and behaviour had changed. He distanced himself from his family somewhat. That is one of the reasons I called for a psychologist’s report.
Those letters from his school say he was popular, respectful and an active participant in all types of activities especially sports and music. They put his actions down to immaturity and using the wrong way to express his demands. They both feel he is genuinely remorseful.
There is a letter from a social worker from the defendant’s local integrated Services Jockey Club Youth Express. She has known the defendant for five years and vouches for his continuous participation in volunteering services and activities in his local community. He has volunteered in many ways helping the young, the old and the community. He is always helpful and loving. She can feel his regret for disappointing his parents and has learnt a lesson.
After his arrest, the defendant received some counselling from a school social worker. He was counselled about his further education, employment prospects and his emotional distress. He was positive and took advice. He continued to study and sit exams despite being on bail and he strives to become an engineer.
Mr. Wong, Counsel for the defendant stressed that the defendant was young and had a clear record. His plea of guilty shows his remorse. In fact, his best mitigation is his plea of guilty. Mr. Wong asked me to consider obtaining the full range of reports because he was only 17 years old before I considered sentence.
Bearing in mind the seriousness of the offence and the facts I found it appropriate only to call for a training centre and detention centre report as well as a psychologist’s report. One of the main reasons I called for these reports was to ensure I have every relevant detail and fact about the defendant to consider before sentencing.
I have read those reports and their contents. The family composition and his home life details tally with what I have been told in mitigation. It would appear that the defendant was a below-average student but had no behavioural problems. The defendant was polite and cooperated with the officer compiling these reports. He admitted his culpability and attributed it to his impulsiveness and weak law-abiding concept. He said he was remorseful and asked for leniency, promising to live a law-abiding life and study hard in the future.
The report is of the opinion that the defendant is mentally, psychologically and physically fit for detention in either a detention centre or a training centre but the recommendation is he would be more suitable for detention in a detention centre.
The psychologist assessed and interviewed the defendant. She found his cognitive assessment in the range of normal and he had the ability to differentiate right from wrong as well as understand the consequences of his behaviour. She found he had no indication of psychopathology during the assessment.
However, she found there were some risk factors for reoffending. His respect for the law and criminal justice system is weak. She found anti-law enforcement sentiment present and some thoughts that violation of the law was justified. He was highly influenced by social media and identified with other social media participants. She found that if he continues to receive biased information from online news and social media, continues to identify with participants in contemporary social events, maintains his sentiment against law enforcement agencies and his disrespect for the law and criminal justice system, then, his risk of reoffending increases.
In her conclusion she found that he would benefit from psychological intervention on consequential thinking and decision-making processes to benefit his reintegration.
It appears that the defendant did give the psychologist an explanation for his actions. Until October 2019 he had not participated in any protests but he read online news and other information from social media which led to his disagreeing with the police action against protesters. He identified himself with the protesters. He then learnt how to make petrol bombs and believed petrol bombs was a way to fight against the police. He claimed that he was unaware of the consequences of making and throwing petrol bombs before and during this offence. He now has had an opportunity to reflect and feels guilty. He also feels guilty for disappointing his family.
In further mitigation Mr. Wong submits a detention centre order would be the most appropriate sentence. He believes that this is where the defendant will benefit from the detention centre program so that there is a reduction in his risk of reoffending. I have had a second letter of mitigation from the defendant and he stresses his true remorse and pain in disappointing his family. He promises that he will turn over a new leaf and become a law-abiding citizen.
Mr Wong submitted that a term of imprisonment may not take into account the important rehabilitative principle of sentencing I should not ignore. He stresses that a detention centre order would be more helpful and a better place to rehabilitate the defendant or reform the defendant with a long term of supervision after his release. Mr Wong has said all he can say on behalf of the defendant.
Reasons for sentence
I bear in mind that this charge carries a maximum sentence of 10 years’ imprisonment. The intent behind the offence is serious and harmful. There should be no doubt in anyone’s mind that an offence of this nature, irrespective of motive or reason is to be taken and viewed with the utmost gravity. The defendant intended to destroy or damage property with those petrol bombs or Molotov cocktails in his possession.
Such criminal acts should never be confused or associated with legitimate and peaceful protest. The defendant’s reasons for making and possession of petrol bombs and his intent to destroy or damage property with petrol bombs makes him a criminal, not a protester. If he had proceeded to throw those petrol bombs to start fires and become an arsonist, his crime would have been regarded as an offence of particular gravity carrying a maximum term of imprisonment of life. Arsonists exhibit reckless disregard for property as well as the lives of others.
The date of the defendant’s arrest was 10 November 2019. This was during the height of the recent disturbances when many petrol bombs were thrown indiscriminately all over Hong Kong. What is relevant is the defendant’s preparation. He clearly wanted to make his mark with petrol bombs. He had three readymade petrol bombs strapped very conveniently to his waist in water bottle pouches.
What is also disturbing and relevant is the paraphernalia in his rucksack capable of making more petrol bombs. There were three more plastic bottles containing 1880mL of mainly cyclohexane and methyl-cyclohexane. I have taken into account the three readymade bombs contained 122 mL, 175 mL and 260 mL of the same liquid. If the defendant were to make more bombs using 122 mL for each he could have made about 15 more. If he were to make more bombs using 260 mL for each he could have made about 7 more. These chemicals are highly flammable organic solvents. Then there is the fact that petrol bombs are notoriously unstable weapons. Once ignited and thrown, it is difficult to foresee the possible or likely consequences and the scale of harm caused.
I also find it relevant and an aggravating factor that he was masked or disguised to evade detection. He was dressed from head to toe in black which included a mask and gloves. He also had three octopus cards in his waist bag I am sure to try and avoid detection and tracing. From what he was wearing and what he was carrying, the defendant was obviously very well prepared. I would say ready to cause chaos, damage and out to destroy property with fire.
I have taken into account his age, previous clear record, mitigation and the contents of the letters and the reports. His voluntary assistance with many community projects is commendable. I am sure his remorse is genuine and it weighs heavy on him that he has disappointed his family. However, this was not a young man acting impulsively as he claims; much planning went into his premeditated scheme. He has not offered any explanation for his actions in mitigation. I take into account what he told the psychologist and that was his actions stem from his dissatisfaction with how the police dealt with protesters.
I find his plea that he was acting impulsively and out of ignorance not convincing. After all, it appears he learnt how and did make petrol bombs because he believed they were a way to fight against law enforcement. He may be young but not so young as to not know the difference between right and wrong. I am sure he was not so young that he did not know what he had made, was carrying and what he intended to do with those petrol bombs was malevolent and acts of reprisal. His actions and intention show a contempt and disdain for law and order which he admitted by way of an explanation.
If a young person commits a serious crime, they cannot expect to turn their youth to their advantage. The age of a defendant is always a relevant mitigating factor in sentencing but youth notwithstanding, a court must keep in mind the classic principles of sentencing which, apart from rehabilitation, includes retribution deterrence and prevention.
It is most difficult to sentence a young person who was only 17 years old with a clear record. However, the youth of a defendant who commits a serious crime carries little weight when I consider the interests of the community as a whole. At that material time there was volatility in the community which could have been exacerbated by the defendant’s intentions. Society is prone to descend into anarchy if public order is not preserved and maintained.
I have given it much thought whether a detention centre or a training centre order would be appropriate and conclude that the offence and facts are too serious for either institution despite his age. Sentencing is a balancing act and in some cases the serious nature of the offence, facts proved and the recent prevalence of the indiscriminate use of petrol bombs in our streets requires a custodial sentence that serves as a deterrent to others. It will therefore take priority over the personal details and mitigation of this particular defendant as well as the principle of rehabilitation. A term of imprisonment is inevitable.
I take on board Mr Wong’s submissions and urge the defendant to continue to study whilst serving a term of imprisonment and even perhaps start his further education. This is entirely possible. I urge him to make use of the time to carry through on his promise to turn over a new leaf and better himself.
I find a starting point of 4 years’ imprisonment appropriate. That takes into account a consideration of his age. If the defendant had been older, the starting point would have been higher. The defendant pleaded guilty at the earliest opportunity and he will receive a one third reduction in sentence. 4 years reduced by one third is 2 years and 8 months. If I had considered a training centre order appropriate, I note he would have served at least 18 months’ detention in that centre up to a maximum of three years with a long period of supervision upon release.
The defendant is sentenced to 2 years and 8 months’ imprisonment.
I order the defendant be seen by a psychologist whilst he serves his sentence as suggested by the psychologist’s report in paragraph 12, namely to provide him with psychological intervention on consequential thinking and decision-making processes to benefit his reintegration.
( A J Woodcock )
District Judge
KCCC2845/2019
嚴舜儀
裁判法院
認罪
罪成
油漆工人
21
在公眾地方管有攻擊性武器
汽油彈
判囚
12
12/01/2019
旺角
KTCC132/2020
錢禮
裁判法院
簽保守行為
結他導師
24
管有適合作非法用途的工具
鉗、噴漆
08/05/2019
北角
ESCC744/2020
錢禮
裁判法院
認罪
罪成
學生
21
在公眾地方造成阻礙
社會服務令
11/11/2019
鴨脷洲
ESCC683/2020
錢禮
裁判法院
簽保守行為
學生
22
在公眾地方造成阻礙
11/11/2019
港大
ESCC683/2020
錢禮
裁判法院
簽保守行為
學生
20
在公眾地方造成阻礙
11/11/2019
港大
屈麗雯
裁判法院
不認罪
不成立
證據不足
舞台燈光師
23
普通襲擊
牛頭角
WKCC150/2020
羅德泉
裁判法院
簽保守行為
學生
15
刑事毀壞
01/11/2020
旺角
WKCC150/2020
羅德泉
裁判法院
簽保守行為
學生
15
刑事毀壞
01/11/2020
旺角
WKCC150/2020
羅德泉
裁判法院
簽保守行為
學生
18
刑事毀壞
01/11/2020
旺角
WKCC150/2020
羅德泉
裁判法院
簽保守行為
學生
16
刑事毀壞
01/11/2020
旺角
陳慧敏
裁判法院
簽保守行為
刑事毀壞
04/11/2020
九龍
DCCC57/2020
胡雅文
區院
認罪
罪成
舞台設計師
23
在公眾地方管有攻擊性武器
汽油彈
判囚
48
將軍澳
DCCC 57/2020
[2020] HKDC 473
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 57 OF 2020
—————————–
HKSAR
v
YIU SIU HONG
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 24 June 2020
Present: Miss Angela Wong, Public Prosecutor, for HKSAR/Director of Public Prosecutions
Mr Kwan Man Wai, Steven, instructed by O Tse & Co, assigned by the Director of Legal Aid, for the defendant
Offence: [1] Possession of offensive weapons in a public place（在公眾地方管有攻擊性武器）
[2] Attempted arson with intent（有意圖而企圖緃火）
—————————————–
REASONS FOR SENTENCE
—————————————–
The defendant pleaded guilty to 2 offences. He pleaded guilty to possession of offensive weapons in a public place, contrary to section 33 (1) and (2) of the Public Order Ordinance, Cap 245, Charge 1. On 13 October 2019, outside Tong Ming Street Park, Tong Ming Street, Tseung Kwan O, the defendant, without lawful authority or reasonable excuse, had with him offensive weapons, namely 2 petrol bombs.
He also pleaded guilty to attempted arson with intent, contrary to section 60 (2) and (3), 63 (1) and 159G of the Crimes Ordinance, Cap 200, Charge 2. On the same day and at the same location, without lawful excuse, the defendant attempted to damage by fire property belonging to himself or another, intending to damage such property, and intending thereby to endanger the life of another or being reckless as to whether the life of another would be thereby endangered.
Facts of the case
The defendant admitted the amended Summary of Facts including a background of the time and place where he was arrested. He agreed that in the afternoon of 13 October 2019 a few hundred protesters had assembled in the material area and committed various unlawful acts which included setting up barricades across roads and setting fires on main carriageways. By about 6:15 pm in the evening, around 40 to 50 protesters had set up barricades and blocked the junction of Tong Chun Street and Tong Ming Street. Police officers arrived to restore order and traffic at about 6:35 pm. When they arrived, some protesters dispersed.
At around 6:41 pm there were two layers of barricades across the road. The distance between them was the width of two vehicle lanes. Vehicles on Tong Ming Road were blocked by these barricades. The facts state that police officers were clearing those barricades when the defendant walked out from the direction of the second layer of barricades outside Tong Ming Street Park. He was holding a glass bottle containing petrol with a cloth inserted into the bottle in his right hand and a lighter in his left hand.
Four off-duty police officers were nearby and witnessed the defendant walk towards the police officers who were clearing the barricades on the road at that junction whilst he attempted to use the lighter to light the petrol bomb. They immediately approached him and one officer grabbed his right hand. There was a struggle and the defendant attempted to run away. He was pushed towards a roadside planter and subdued.
The defendant was dressed in a black jacket, a blue T-shirt, black long trousers, black cap, wearing gloves and a black balaclava. He was carrying a black rucksack. In that rucksack the police found another petrol bomb, a white cloth, a laser pointer, a helmet, a respirator, 15 plastic zip ties, a can of spray paint and a pair of forearm sleeves. There is no dispute that the petrol bombs contained petrol, a flammable liquid.
The defendant was arrested and cautioned. He remained silent under caution. On the following day a video recorded interview was conducted where he initially said nothing under caution. However, during this interview, he was shown the exhibits seized and then admitted possessing the petrol bombs. He admitted he was attempting to light the petrol bomb to throw towards the barricades when he was arrested. He admitted ownership of all the exhibits found on him and in his bag.
The defendant told the police under caution that he had bought the Naptha from a hardware store in Kwun Tong and poured the flammable liquid into two glass bottles. He intended to light and throw the petrol bombs towards the barricades to stop the police from proceeding during the confrontation. He admitted that he intended to use the lighter to light the cloth of the petrol bomb. He was wearing a black cap and a balaclava at the time to hide his identity during protests. He had the helmet, gloves, respirator and filters to protect himself during protests. He claimed that the laser pointer, red spray paint and plastic zip ties were for his work, in the stage design field.
The defendant admitted to the police that he was holding a petrol bomb in his right hand and a lighter in his left hand intending to light the petrol bomb and throw it at the barricades.
The defence submitted a photograph of the junction of Tong Chun Street and Tong Ming Street marked MFI-1. The defendant says where the photograph is circled in blue is where he was subdued. The two orange lines represent 2 rows of barriers erected by the protesters which disrupted traffic. He says that the area circled in green is where there were police vehicles parked that had arrived to restore order and assist vehicles affected by the barriers, including their own. The prosecution doesn’t dispute this description.
Mitigation
The defendant is now 23 years old and has a clear record. He is an only child and finished Form six education. He had hopes to further his studies in Taiwan but in 2015 his father suffered a work related injury and has not been in employment since. After that, they relied on as a family the defendant’s mother’s income as a clerk. Sadly, she was diagnosed with cancer in 2017 which could not be cured. In fact, the cancer spread all over her body and she succumbed to the disease on 26 May this year.
I have been told that the defendant was remanded in custody after his arrest in October last year but was granted bail because his mother by then was terminally ill. He was released on bail six days before she passed away.
The defendant’s best mitigation is his plea of guilty at the earliest opportunity. In mitigation, I have received a letter written by the defendant and others. They include his previous football coach, his present employer and several from his former teachers.
I don’t intend to repeat the contents of all the letters. The defendant explains how he became the breadwinner of the family after his father was injured and his mother was diagnosed with cancer. Instead of continuing his education in Taiwan, he found a job which he happily enjoyed and has been gainfully employed in for the past three years. He has worked in stage lighting with success and hopes to excel in this field. His employer praises his diligence and work ethics.
In the defendant’s letter, he also explains that he became involved in the social movement against the extradition bill. I quote, “in face of the social injustice and the underserved justice, the people around me and I were forced to voice out our opinion. I was deeply troubled about choosing between the social movement and my family.” Since his remand he has had time to reflect and understands that violence now cannot resolve issues.
The letters from his football coach from seven years ago and his teachers at school all stress he was a talented football player and represented the school often. He was respectful at school and polite to teachers. He had integrity and was kind to fellow students. Many comment on his attachment to his family; he is a filial son.
Mr Kwan for the defendant, has said all he can say on behalf of the defendant. In his written mitigation he described the defendant as being like other young people in Hong Kong with their own ideas of utopia and justifiable grievances against certain public policy. He however does not try to justify the use of violence to reflect anger. He makes this statement as an explanation for the defendant acts not as an excuse.
Reasons for sentence
There should be no doubt in anyone’s mind that an offence of this nature, irrespective of motive or reason is to be taken and viewed with the utmost seriousness. The Court of Appeal said in The Queen v Li Mun Tong CACC 309/1994 “Arson, because of the inherent danger in any uncontrolled fire, is always regarded as an offence of particular gravity. Arsonists exhibit reckless disregard for life and property.”
A section 60(2) offence is the far more serious charge for arson because it requires an additional mens rea, this being the intent, by the destruction or damage, to endanger the life of another or being reckless as to whether the life of another would be thereby endangered.
The defendant tendered his plea of guilty to charge 2 on the basis that he intended to damage barricades on the road with fire and was being reckless as to whether the life of another would be thereby endangered; he was not intending to endanger the life of another. The prosecution does not challenge this mitigation. The defendant’s culpability will be assessed on this basis. Mr Kwan submitted the defendant as he told the police under caution wanted to throw the petrol bombs towards the barricades to stop the police from proceeding during the confrontation.
Mr Kwan has referred me to HKSAR v Wong Chun Kit 2018 HKDC 360, a District Court case where the court sentenced a defendant suffering from mental illness who lit a fire on a rooftop of a multi-storey building and locked himself on the rooftop, denying access to others. The court reviewed the sentences of 5 cases from the District Court.
With respect, that case and those cases reviewed are of no assistance to me in passing sentence. None are remotely similar or comparable to the facts in this case.
I bear in mind that arson can attract a life sentence. Such a maximum sentence highlights the seriousness with which deliberately starting fires must be viewed. There is no tariff or guidelines for arson. Each case very much depends on its own facts and circumstances; these vary so much in cases of arson. In HKSAR v Kung Pak Fu 2008 2 HKCLRT 240 the Court of Appeal reviewed a number of arson cases and said at paragraph 23;
“….. arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for this offence because its gravity differs from case to case, particularly in cases involving family disputes or souring of relationships. The court must impose a sentence which properly reflects the gravity of the particular case.”
Mr Kwan has also referred me to the appendix in Cross and Cheung’s “Sentencing in Hong Kong”, the eighth edition. That appendix refers to cases on quantum of sentence for certain offences. Under “Arson” on page 721 there are a list of cases and sentences imposed with a brief description of the facts. The learned authors comment that sentences tend to start at about 5 years’ imprisonment although they may be very much higher when life and property is seriously endangered by the actions of the arsonist. I take note that the Court of Appeal in Chau Yuk Kuen v The Queen CACC 402/1980 said “We feel that the tariff sentence for this type of appeal should be at least 4 to 5 years.”
Mr Kwan distinguishes those cases referred to in the appendix as they were usually either committed inside multi-storey buildings or at market stalls or in the dead of night in highly populated places. However, many of those cases occurred in domestic or other situations where the arsonist was in a highly emotionally charged state of mind meaning his conduct was due to emotional distress or mental distress. Here no such emotion was present except perhaps the dangerous emotion of malevolence and reprisal.
Defence counsel has asked me to consider the following factors as relevant and suggested that a sentence of 24 months or less would be appropriate for this arson charge. He highlights that this case was only an attempted arson; an incomplete offence. No property was actually damaged nor was anybody injured. The arson was attempted in an open space as opposed to inside a building or in a crowded area. The offence took place in the afternoon, during daylight when any fire would have been easily detected before it had a chance to spread. He also asked me to take into account the fact that the defendant did not stand to gain financially or personally from this offence and that it was the protests of that time that led to the defendant’s anger and him resorting to violence to vent his anger.
Mr Kwan stresses that the defendant attempted to commit arson in an open space on a road during daylight hours. He comments that the police officers who were at the barricades were wearing protective items of clothing and were more than likely equipped with fire extinguishers. If a fire had started, then there were enough officers around to deal with it in a swift manner. None of these factors make the offences less serious.
Sentencing guidelines for Public Order offences (including riot, violent disorder, affray and other offences in the Public Order Act 1986) in UK have been published by the Sentencing Council in October 2019. The purpose of the guidelines is to provide a clear framework to be used by all courts in England and Wales to ensure a consistent approach in sentencing offenders aged 18 years or over convicted of Public Order offences. The guidelines direct the court to first determine the offence category before finding an appropriate starting point and category range.
In order to determine the offence category, the court should assess both Culpability and Harm. Culpability can be divided into category A and category B. Category A is more serious and lists four factors which includes where an offender used or intended to use a petrol bomb or incendiary device. Category B includes any incident of riot not including category A factors.
Harm can be divided into category 1 and category 2. The level of harm is determined by weighing up all the factors of the case to determine the harm that has been caused or was intended to be caused. Examples of category 1 factors, which is more serious, includes an incident which results in serious physical injury or very serious fear and/or distress. An incident which causes serious disruption or severe detriment impact to community. An incident which involves attacks on police or public servants and incidents which results in extensive damage to property. There are other examples of category 1 factors listed in the guidelines. Category 2 would include all other cases.
If an offence consists of a category 1 Harm and a category A Culpability factor, the Sentencing Council in UK suggests a starting point of 7 years’ imprisonment and gives a category range of 6 to 9 years’ imprisonment. If an offence consisted of a category 2 Harm and a category B Culpability factor, the sentencing council suggests a starting point of 5 years’ imprisonment and gives a category range of 3 to 6 years’ imprisonment.
The guidelines suggest a list of aggravating factors which can increase a starting point. Those include, for example, an offender being masked or disguised to evade detection, like the defendant here.
The defendant has not been charged with a public order offence nor was there a riot or unlawful affray at that junction where he intended to throw that petrol bomb when the police were clearing away the blockades but the sentencing council’s guidelines give an insight into how serious the use of petrol bombs is viewed as is targeting police officers or public servants. In this case, throwing them in the direction of the police to prevent them carrying out their duty. The defendant did agree in his Summary of Facts that there were a few hundred protesters there that afternoon who had unlawfully built barricades and set fires on carriageways. Those protesters dispersed when the police arrived at the scene allowing the police to start to clear the barricades.
In Hong Kong there are no previous authorities with similar facts. The scenario where petrol bombs are thrown despite police being present is unprecedented here as far as sentencing is concerned. An attempt to intentionally damage by fire property belonging to another and being reckless as to whether the life of another would be thereby endangered is graver than conduct which is likely to cause serious damage to property and should therefore attract a higher and deterrent sentence.
Here, police officers near the barricades were trying to remove the barricades from the carriageway. The defendant says he intended to throw a petrol bomb to light barricades which were close to another line of barricades being cleared by police officers at that material time. He had no regard and was reckless as to whether police officers working there or nearby or perhaps other protesters would be hurt and injured. His culpability is high and the imminence of harm and the gravity of the threat are factors I consider relevant to sentence.
The defendant explained that he wanted to voice out his opinion against the Extradition Bill but to do it with petrol bombs is absolutely unacceptable. The Extradition Bill had been shelved months before 13th October 2019. That material day and in fact that period of time in Hong Kong was particularly violent with citywide conflicts, protests and destruction of property. Petrol bombs were being thrown indiscriminately. He was out on streets intending to commit the offence of arson. He was well-prepared to cause trouble which is obvious from the paraphernalia he had in his rucksack.
Such criminal acts should never be confused or associated with legitimate and peaceful protest. The defendant’s possession of petrol bombs and his intention to throw a petrol bomb with intent, a weapon that is notoriously unstable, makes him a criminal, not a protester and he should be treated as such.
The fact the defendant was of a previous good character does not carry significant weight when the intention is to cause serious damage to property and being reckless as to whether the life of another would be endangered. Such an intention and recklessness would be enough to warrant a sentence of significant length. Sentencing is a balancing act and in some cases the serious nature, circumstances and the prevalence of the offence recently requires a custodial sentence that serves as a deterrent to others and will therefore take priority over the personal details and mitigation of the defendant.
I have nevertheless, taken into account his age, previous clear record and mitigation put forward on his behalf. It was an arson not carried through to a conclusion thankfully due to eagle eyed off duty police officers. I take on board the observation that police officers would have been wearing protective gear and normally carry fire extinguishers.
In considering an appropriate starting point I find several features which places these facts in the range of the more serious cases of arson; higher than a five-year starting point.
This was a planned, calculated and premeditated offence; the defendant bought materials and made petrol bombs before he arrived at the scene. There was prior preparation, it was not an offence committed on the spur of the moment. This made the lack of emotion on his part palpable. Moreover, his manner of dress was deliberately designed to avoid identification and arrest.
It is an aggravating factor that for this arson offence the defendant intended to use petrol bombs to achieve his purpose. This was not a case of arson by setting fire to newspaper or rubbish or a curtain. The potential harm and mayhem that could have been caused was considerable because once a petrol bomb is ignited and thrown, it is quite impossible to foresee the possible or likely consequences. A petrol bomb is an unstable weapon in such a situation. It is also possible an already volatile situation could have been made much worse.
Lastly, the fact is, knowing police officers were clearing barricades, he wanted to set fire to them. It was because the police were there that he wanted to set fire to them. He acted with the utmost contempt and disdain for law and order. The police arrived to try and maintain public order. The defendant crossed the line, such a line exists to protect public order because society is prone to descend into anarchy if public order is not preserved.
The maximum sentence that can be imposed for charge 1 is 3 years imprisonment. In view of the facts, number of petrol bombs and his intention to use them, I will adopt a starting point of 2 years and 6 months for charge 1.
I will adopt a starting point of 6 years for charge 2. The defendant pleaded guilty at the earliest opportunity therefore, he will receive a one third reduction in his sentences. Other than this, there is nothing I find would warrant any further reduction in sentences.
For charge 1, 2 years and 6 months reduced by one third is 1 year and 8 months. For charge 2, 6 years reduced by one third is 4 years.
These offences are related in that the defendant attempted to commit charge 2 with an offensive weapon of charge 1. I take the view that an overall sentence of 4 years sufficiently reflects the defendant’s overall criminality and culpability. Therefore, I order the sentence of charge 1 to be served concurrently with that of charge 2, resulting in a total term of 4 years’ imprisonment.
( A J Woodcock )
District Judge
DCCC57/2020
胡雅文
區院
認罪
罪成
舞台設計師
23
企圖縱火
判囚
48
將軍澳
DCCC 57/2020
[2020] HKDC 473
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 57 OF 2020
—————————–
HKSAR
v
YIU SIU HONG
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 24 June 2020
Present: Miss Angela Wong, Public Prosecutor, for HKSAR/Director of Public Prosecutions
Mr Kwan Man Wai, Steven, instructed by O Tse & Co, assigned by the Director of Legal Aid, for the defendant
Offence: [1] Possession of offensive weapons in a public place（在公眾地方管有攻擊性武器）
[2] Attempted arson with intent（有意圖而企圖緃火）
—————————————–
REASONS FOR SENTENCE
—————————————–
The defendant pleaded guilty to 2 offences. He pleaded guilty to possession of offensive weapons in a public place, contrary to section 33 (1) and (2) of the Public Order Ordinance, Cap 245, Charge 1. On 13 October 2019, outside Tong Ming Street Park, Tong Ming Street, Tseung Kwan O, the defendant, without lawful authority or reasonable excuse, had with him offensive weapons, namely 2 petrol bombs.
He also pleaded guilty to attempted arson with intent, contrary to section 60 (2) and (3), 63 (1) and 159G of the Crimes Ordinance, Cap 200, Charge 2. On the same day and at the same location, without lawful excuse, the defendant attempted to damage by fire property belonging to himself or another, intending to damage such property, and intending thereby to endanger the life of another or being reckless as to whether the life of another would be thereby endangered.
Facts of the case
The defendant admitted the amended Summary of Facts including a background of the time and place where he was arrested. He agreed that in the afternoon of 13 October 2019 a few hundred protesters had assembled in the material area and committed various unlawful acts which included setting up barricades across roads and setting fires on main carriageways. By about 6:15 pm in the evening, around 40 to 50 protesters had set up barricades and blocked the junction of Tong Chun Street and Tong Ming Street. Police officers arrived to restore order and traffic at about 6:35 pm. When they arrived, some protesters dispersed.
At around 6:41 pm there were two layers of barricades across the road. The distance between them was the width of two vehicle lanes. Vehicles on Tong Ming Road were blocked by these barricades. The facts state that police officers were clearing those barricades when the defendant walked out from the direction of the second layer of barricades outside Tong Ming Street Park. He was holding a glass bottle containing petrol with a cloth inserted into the bottle in his right hand and a lighter in his left hand.
Four off-duty police officers were nearby and witnessed the defendant walk towards the police officers who were clearing the barricades on the road at that junction whilst he attempted to use the lighter to light the petrol bomb. They immediately approached him and one officer grabbed his right hand. There was a struggle and the defendant attempted to run away. He was pushed towards a roadside planter and subdued.
The defendant was dressed in a black jacket, a blue T-shirt, black long trousers, black cap, wearing gloves and a black balaclava. He was carrying a black rucksack. In that rucksack the police found another petrol bomb, a white cloth, a laser pointer, a helmet, a respirator, 15 plastic zip ties, a can of spray paint and a pair of forearm sleeves. There is no dispute that the petrol bombs contained petrol, a flammable liquid.
The defendant was arrested and cautioned. He remained silent under caution. On the following day a video recorded interview was conducted where he initially said nothing under caution. However, during this interview, he was shown the exhibits seized and then admitted possessing the petrol bombs. He admitted he was attempting to light the petrol bomb to throw towards the barricades when he was arrested. He admitted ownership of all the exhibits found on him and in his bag.
The defendant told the police under caution that he had bought the Naptha from a hardware store in Kwun Tong and poured the flammable liquid into two glass bottles. He intended to light and throw the petrol bombs towards the barricades to stop the police from proceeding during the confrontation. He admitted that he intended to use the lighter to light the cloth of the petrol bomb. He was wearing a black cap and a balaclava at the time to hide his identity during protests. He had the helmet, gloves, respirator and filters to protect himself during protests. He claimed that the laser pointer, red spray paint and plastic zip ties were for his work, in the stage design field.
The defendant admitted to the police that he was holding a petrol bomb in his right hand and a lighter in his left hand intending to light the petrol bomb and throw it at the barricades.
The defence submitted a photograph of the junction of Tong Chun Street and Tong Ming Street marked MFI-1. The defendant says where the photograph is circled in blue is where he was subdued. The two orange lines represent 2 rows of barriers erected by the protesters which disrupted traffic. He says that the area circled in green is where there were police vehicles parked that had arrived to restore order and assist vehicles affected by the barriers, including their own. The prosecution doesn’t dispute this description.
Mitigation
The defendant is now 23 years old and has a clear record. He is an only child and finished Form six education. He had hopes to further his studies in Taiwan but in 2015 his father suffered a work related injury and has not been in employment since. After that, they relied on as a family the defendant’s mother’s income as a clerk. Sadly, she was diagnosed with cancer in 2017 which could not be cured. In fact, the cancer spread all over her body and she succumbed to the disease on 26 May this year.
I have been told that the defendant was remanded in custody after his arrest in October last year but was granted bail because his mother by then was terminally ill. He was released on bail six days before she passed away.
The defendant’s best mitigation is his plea of guilty at the earliest opportunity. In mitigation, I have received a letter written by the defendant and others. They include his previous football coach, his present employer and several from his former teachers.
I don’t intend to repeat the contents of all the letters. The defendant explains how he became the breadwinner of the family after his father was injured and his mother was diagnosed with cancer. Instead of continuing his education in Taiwan, he found a job which he happily enjoyed and has been gainfully employed in for the past three years. He has worked in stage lighting with success and hopes to excel in this field. His employer praises his diligence and work ethics.
In the defendant’s letter, he also explains that he became involved in the social movement against the extradition bill. I quote, “in face of the social injustice and the underserved justice, the people around me and I were forced to voice out our opinion. I was deeply troubled about choosing between the social movement and my family.” Since his remand he has had time to reflect and understands that violence now cannot resolve issues.
The letters from his football coach from seven years ago and his teachers at school all stress he was a talented football player and represented the school often. He was respectful at school and polite to teachers. He had integrity and was kind to fellow students. Many comment on his attachment to his family; he is a filial son.
Mr Kwan for the defendant, has said all he can say on behalf of the defendant. In his written mitigation he described the defendant as being like other young people in Hong Kong with their own ideas of utopia and justifiable grievances against certain public policy. He however does not try to justify the use of violence to reflect anger. He makes this statement as an explanation for the defendant acts not as an excuse.
Reasons for sentence
There should be no doubt in anyone’s mind that an offence of this nature, irrespective of motive or reason is to be taken and viewed with the utmost seriousness. The Court of Appeal said in The Queen v Li Mun Tong CACC 309/1994 “Arson, because of the inherent danger in any uncontrolled fire, is always regarded as an offence of particular gravity. Arsonists exhibit reckless disregard for life and property.”
A section 60(2) offence is the far more serious charge for arson because it requires an additional mens rea, this being the intent, by the destruction or damage, to endanger the life of another or being reckless as to whether the life of another would be thereby endangered.
The defendant tendered his plea of guilty to charge 2 on the basis that he intended to damage barricades on the road with fire and was being reckless as to whether the life of another would be thereby endangered; he was not intending to endanger the life of another. The prosecution does not challenge this mitigation. The defendant’s culpability will be assessed on this basis. Mr Kwan submitted the defendant as he told the police under caution wanted to throw the petrol bombs towards the barricades to stop the police from proceeding during the confrontation.
Mr Kwan has referred me to HKSAR v Wong Chun Kit 2018 HKDC 360, a District Court case where the court sentenced a defendant suffering from mental illness who lit a fire on a rooftop of a multi-storey building and locked himself on the rooftop, denying access to others. The court reviewed the sentences of 5 cases from the District Court.
With respect, that case and those cases reviewed are of no assistance to me in passing sentence. None are remotely similar or comparable to the facts in this case.
I bear in mind that arson can attract a life sentence. Such a maximum sentence highlights the seriousness with which deliberately starting fires must be viewed. There is no tariff or guidelines for arson. Each case very much depends on its own facts and circumstances; these vary so much in cases of arson. In HKSAR v Kung Pak Fu 2008 2 HKCLRT 240 the Court of Appeal reviewed a number of arson cases and said at paragraph 23;
“….. arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for this offence because its gravity differs from case to case, particularly in cases involving family disputes or souring of relationships. The court must impose a sentence which properly reflects the gravity of the particular case.”
Mr Kwan has also referred me to the appendix in Cross and Cheung’s “Sentencing in Hong Kong”, the eighth edition. That appendix refers to cases on quantum of sentence for certain offences. Under “Arson” on page 721 there are a list of cases and sentences imposed with a brief description of the facts. The learned authors comment that sentences tend to start at about 5 years’ imprisonment although they may be very much higher when life and property is seriously endangered by the actions of the arsonist. I take note that the Court of Appeal in Chau Yuk Kuen v The Queen CACC 402/1980 said “We feel that the tariff sentence for this type of appeal should be at least 4 to 5 years.”
Mr Kwan distinguishes those cases referred to in the appendix as they were usually either committed inside multi-storey buildings or at market stalls or in the dead of night in highly populated places. However, many of those cases occurred in domestic or other situations where the arsonist was in a highly emotionally charged state of mind meaning his conduct was due to emotional distress or mental distress. Here no such emotion was present except perhaps the dangerous emotion of malevolence and reprisal.
Defence counsel has asked me to consider the following factors as relevant and suggested that a sentence of 24 months or less would be appropriate for this arson charge. He highlights that this case was only an attempted arson; an incomplete offence. No property was actually damaged nor was anybody injured. The arson was attempted in an open space as opposed to inside a building or in a crowded area. The offence took place in the afternoon, during daylight when any fire would have been easily detected before it had a chance to spread. He also asked me to take into account the fact that the defendant did not stand to gain financially or personally from this offence and that it was the protests of that time that led to the defendant’s anger and him resorting to violence to vent his anger.
Mr Kwan stresses that the defendant attempted to commit arson in an open space on a road during daylight hours. He comments that the police officers who were at the barricades were wearing protective items of clothing and were more than likely equipped with fire extinguishers. If a fire had started, then there were enough officers around to deal with it in a swift manner. None of these factors make the offences less serious.
Sentencing guidelines for Public Order offences (including riot, violent disorder, affray and other offences in the Public Order Act 1986) in UK have been published by the Sentencing Council in October 2019. The purpose of the guidelines is to provide a clear framework to be used by all courts in England and Wales to ensure a consistent approach in sentencing offenders aged 18 years or over convicted of Public Order offences. The guidelines direct the court to first determine the offence category before finding an appropriate starting point and category range.
In order to determine the offence category, the court should assess both Culpability and Harm. Culpability can be divided into category A and category B. Category A is more serious and lists four factors which includes where an offender used or intended to use a petrol bomb or incendiary device. Category B includes any incident of riot not including category A factors.
Harm can be divided into category 1 and category 2. The level of harm is determined by weighing up all the factors of the case to determine the harm that has been caused or was intended to be caused. Examples of category 1 factors, which is more serious, includes an incident which results in serious physical injury or very serious fear and/or distress. An incident which causes serious disruption or severe detriment impact to community. An incident which involves attacks on police or public servants and incidents which results in extensive damage to property. There are other examples of category 1 factors listed in the guidelines. Category 2 would include all other cases.
If an offence consists of a category 1 Harm and a category A Culpability factor, the Sentencing Council in UK suggests a starting point of 7 years’ imprisonment and gives a category range of 6 to 9 years’ imprisonment. If an offence consisted of a category 2 Harm and a category B Culpability factor, the sentencing council suggests a starting point of 5 years’ imprisonment and gives a category range of 3 to 6 years’ imprisonment.
The guidelines suggest a list of aggravating factors which can increase a starting point. Those include, for example, an offender being masked or disguised to evade detection, like the defendant here.
The defendant has not been charged with a public order offence nor was there a riot or unlawful affray at that junction where he intended to throw that petrol bomb when the police were clearing away the blockades but the sentencing council’s guidelines give an insight into how serious the use of petrol bombs is viewed as is targeting police officers or public servants. In this case, throwing them in the direction of the police to prevent them carrying out their duty. The defendant did agree in his Summary of Facts that there were a few hundred protesters there that afternoon who had unlawfully built barricades and set fires on carriageways. Those protesters dispersed when the police arrived at the scene allowing the police to start to clear the barricades.
In Hong Kong there are no previous authorities with similar facts. The scenario where petrol bombs are thrown despite police being present is unprecedented here as far as sentencing is concerned. An attempt to intentionally damage by fire property belonging to another and being reckless as to whether the life of another would be thereby endangered is graver than conduct which is likely to cause serious damage to property and should therefore attract a higher and deterrent sentence.
Here, police officers near the barricades were trying to remove the barricades from the carriageway. The defendant says he intended to throw a petrol bomb to light barricades which were close to another line of barricades being cleared by police officers at that material time. He had no regard and was reckless as to whether police officers working there or nearby or perhaps other protesters would be hurt and injured. His culpability is high and the imminence of harm and the gravity of the threat are factors I consider relevant to sentence.
The defendant explained that he wanted to voice out his opinion against the Extradition Bill but to do it with petrol bombs is absolutely unacceptable. The Extradition Bill had been shelved months before 13th October 2019. That material day and in fact that period of time in Hong Kong was particularly violent with citywide conflicts, protests and destruction of property. Petrol bombs were being thrown indiscriminately. He was out on streets intending to commit the offence of arson. He was well-prepared to cause trouble which is obvious from the paraphernalia he had in his rucksack.
Such criminal acts should never be confused or associated with legitimate and peaceful protest. The defendant’s possession of petrol bombs and his intention to throw a petrol bomb with intent, a weapon that is notoriously unstable, makes him a criminal, not a protester and he should be treated as such.
The fact the defendant was of a previous good character does not carry significant weight when the intention is to cause serious damage to property and being reckless as to whether the life of another would be endangered. Such an intention and recklessness would be enough to warrant a sentence of significant length. Sentencing is a balancing act and in some cases the serious nature, circumstances and the prevalence of the offence recently requires a custodial sentence that serves as a deterrent to others and will therefore take priority over the personal details and mitigation of the defendant.
I have nevertheless, taken into account his age, previous clear record and mitigation put forward on his behalf. It was an arson not carried through to a conclusion thankfully due to eagle eyed off duty police officers. I take on board the observation that police officers would have been wearing protective gear and normally carry fire extinguishers.
In considering an appropriate starting point I find several features which places these facts in the range of the more serious cases of arson; higher than a five-year starting point.
This was a planned, calculated and premeditated offence; the defendant bought materials and made petrol bombs before he arrived at the scene. There was prior preparation, it was not an offence committed on the spur of the moment. This made the lack of emotion on his part palpable. Moreover, his manner of dress was deliberately designed to avoid identification and arrest.
It is an aggravating factor that for this arson offence the defendant intended to use petrol bombs to achieve his purpose. This was not a case of arson by setting fire to newspaper or rubbish or a curtain. The potential harm and mayhem that could have been caused was considerable because once a petrol bomb is ignited and thrown, it is quite impossible to foresee the possible or likely consequences. A petrol bomb is an unstable weapon in such a situation. It is also possible an already volatile situation could have been made much worse.
Lastly, the fact is, knowing police officers were clearing barricades, he wanted to set fire to them. It was because the police were there that he wanted to set fire to them. He acted with the utmost contempt and disdain for law and order. The police arrived to try and maintain public order. The defendant crossed the line, such a line exists to protect public order because society is prone to descend into anarchy if public order is not preserved.
The maximum sentence that can be imposed for charge 1 is 3 years imprisonment. In view of the facts, number of petrol bombs and his intention to use them, I will adopt a starting point of 2 years and 6 months for charge 1.
I will adopt a starting point of 6 years for charge 2. The defendant pleaded guilty at the earliest opportunity therefore, he will receive a one third reduction in his sentences. Other than this, there is nothing I find would warrant any further reduction in sentences.
For charge 1, 2 years and 6 months reduced by one third is 1 year and 8 months. For charge 2, 6 years reduced by one third is 4 years.
These offences are related in that the defendant attempted to commit charge 2 with an offensive weapon of charge 1. I take the view that an overall sentence of 4 years sufficiently reflects the defendant’s overall criminality and culpability. Therefore, I order the sentence of charge 1 to be served concurrently with that of charge 2, resulting in a total term of 4 years’ imprisonment.
( A J Woodcock )
District Judge
KCCC3007/2019
嚴舜儀
裁判法院
簽保守行為
汽車維修店店員
30
管有違禁武器
伸縮棍
09/01/2019
紅磡
TMCC452/2020
沙田裁判法院
裁判法院
簽保守行為
學生
19
在公眾地方造成阻礙
10/07/2019
屯門
TMCC452/2020
沙田裁判法院
裁判法院
簽保守行為
裝修工人
27
在公眾地方造成阻礙
10/07/2019
屯門
ESCC2509/2019
林希維
裁判法院
不成立
警證供問題
無業
34
襲警
11/08/2019
銅鑼灣
ESCC679/2020
錢禮
裁判法院
簽保守行為
廚師
21
管有攻擊性武器或適合作非法用途的工具
索帶
11/11/2019
柴灣
KCCC2865/2019
嚴舜儀
裁判法院
認罪
罪成
吊車技術員
47
襲警
社會服務令
12/04/2019
土瓜灣
WKCC274/2020
羅德泉
裁判法院
簽保守行為
19
在公眾地方作出擾亂秩序的行為
0
旺角
ESCC2825/2019
潘兆初、彭偉昌、潘敏琦
高院
認罪
罪成
建築工
36
非法集結
判囚
9
07/01/2019
金鐘
KTCC1981/2019
潘兆初、彭偉昌、彭寶琴
裁判法院
認罪
罪成
學生
18
襲警
判囚
1
11/11/2019
將軍澳
STCC4500/2019
李志豪
裁判法院
不成立
警證供問題
學生
20
襲警
沙田
WKCC436 / 2020
羅德泉
裁判法院
認罪
罪成
廚師
27
在公眾地方作出擾亂秩序的行為
社會服務令
160
02/04/2020
旺角
TMCC2022/2019
葉啟亮
裁判法院
不認罪
罪成
侍應
26
在公眾地方管有攻擊性武器
伸縮棍
判囚
4
屯門
ESCC2646/2019
香淑嫻
裁判法院
不認罪
罪成
無業
38
普通襲擊
判囚
5
中環
TMCC374/2020
張潔宜
裁判法院
認罪
罪成
學生
19
無牌管有無線電通訊器具
只判罰款
屯門
TMCC374/2020
張潔宜
裁判法院
認罪
罪成
學生
19
未能出示身分證
只判罰款
屯門
TMCC374/2020
張潔宜
裁判法院
認罪
罪成
運輸工
21
無牌管有無線電通訊器具
只判罰款
屯門
WKCC888/2020
嚴舜儀
裁判法院
簽保守行為
學生
21
管有適合作非法用途的工具
士巴拿
九龍城
WKCC888/2020
嚴舜儀
裁判法院
簽保守行為
學生
17
管有任何物品意圖摧毀或損壞財產
噴漆
九龍城
WKCC888/2020
嚴舜儀
裁判法院
簽保守行為
學生
17
管有適合作非法用途的工具
六角匙
九龍城
KCCC661/2020
嚴舜儀
裁判法院
簽保守行為
文員
22
管有任何物品意圖摧毀或損壞財產
噴漆
油麻地
ESCC2555/2019
林希維
裁判法院
不成立
證據不足
裝修判頭
22
在公眾地方管有攻擊性武器
刀、刀片、鐵釘、鎚
11/12/2019
銅鑼灣
KCCC2077/2019
黃國輝
裁判法院
認罪
罪成
清潔工
49
阻差辦公
社會服務令
08/05/2019
深水埗
TMCC700010/2020
潘兆初、彭偉昌、彭寶琴
高院
認罪
罪成
女
15
管有適合作非法用途的工具
玻璃樽、消毒藥水、白電油
社會服務令
天水圍
STCC873/2020
鄧少雄
裁判法院
認罪
罪成
泥水學徒
24
襲警
社會服務令
沙田
STCC873/2021
鄧少雄
裁判法院
認罪
罪成
泥水學徒
24
管有任何物品意圖摧毀或損壞財產
噴漆
社會服務令
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10/12/2019
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28
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18
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22
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75
11/12/2019
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20
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11/02/2019
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19
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11/02/2019
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24
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11/10/2019
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18
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12/09/2019
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39
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14
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ESCC700010/2019
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女
14
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20
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18
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11/02/2019
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14
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上水
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23
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侍應
23
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TMCC613/2020
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23
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51
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200
06/12/2020
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WKCC2327/2020
06/12/2020
屯門裁判法院
裁判法院
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清潔工
32
在公眾地方管有攻擊性武器
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判囚
8
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TMCC434/2020
06/12/2020
張潔宜
裁判法院
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戲院職員
21
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雷射筆
10/04/2019
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KTCC 2076/2019
06/11/2020
莫子聰
裁判法院
不認罪
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前空姐
40
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判囚
2
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06/11/2020
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不認罪
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前空姐
40
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2
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ESCC681/2020
06/11/2020
錢禮
裁判法院
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學生
16
管有適合作非法用途的工具
索帶
11/02/2019
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KCCC14/2020
06/10/2020
嚴舜儀
裁判法院
認罪
罪成
車房技工
37
拒捕
判囚
8
01/01/2020
紅磡
KCCC14/2020
06/10/2020
嚴舜儀
裁判法院
認罪
罪成
車房技工
37
在公眾地方管有攻擊性武器
刀、拳刺
判囚
8
01/01/2020
紅磡
ESCC 654/2020
06/10/2020
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裁判法院
認罪
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學生
19
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06/10/2020
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29
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06/09/2020
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22
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11/03/2019
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06/08/2020
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助理
33
非法集結
判囚
7
06/12/2019
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06/08/2020
嚴舜儀
裁判法院
認罪
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展覽場地工人
26
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8
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KCCC2547/2020
06/08/2020
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展覽場地工人
26
在公眾地方管有攻擊性武器
雷射筆
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8
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KCCC 2643/2019
06/08/2020
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運輸工
28
在公眾地方管有攻擊性武器
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8
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06/08/2020
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19
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225
11/12/2019
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FLCC5001/2019
06/05/2020
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裁判法院
認罪
罪成
學生
22
在公眾地方管有攻擊性武器
汽油彈
判囚
12
11/11/2019
大埔
FLCC5001/2020
06/05/2020
蘇文隆
裁判法院
認罪
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學生
22
在公眾地方造成阻礙
判囚
12
11/11/2019
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FLCC673/2020
06/05/2020
蘇文隆
裁判法院
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學生
16
管有適合作非法用途的工具
索帶
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06/05/2020
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無業
23
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葵芳
DCCC55/2020
06/02/2020
沈小民
區院
不成立
警證供問題
學生
19
暴動
10/01/2019
黃大仙
KCCC538/2020
06/02/2020
嚴舜儀
裁判法院
撤控
證據不足
工程顧問
33
在公眾地方造成阻礙
新蒲崗
KCCC 992/2020
06/02/2020
嚴舜儀
裁判法院
認罪
罪成
裝修工人
33
無許可證入禁區
社會服務令
油麻地
ESS37778/2019
06/02/2020
林希維
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不認罪
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學生
18
在公眾地方管有攻擊性武器
刀
灣仔
WKCC4427/2019
06/01/2020
劉綺雲
裁判法院
認罪
罪成
無業
32
襲警
判囚
75
12/01/2019
旺角
KTCC1504/2019
06/01/2020
鍾明新
裁判法院
不認罪
不成立
警證供問題
學生
24
襲警
08/03/2019
黃大仙
KCCC396/2020
06/01/2020
張潔宜
裁判法院
簽保守行為
學生
17
無牌管有無線電通訊器具
元朗
ESCC181/2020
06/01/2020
錢禮
裁判法院
簽保守行為
證據不足
學生
17
管有任何物品意圖摧毀或損壞財產
鎚
中環
ESCC 2552/2019
香淑嫻
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認罪
罪成
補習老師
32
襲警
判囚
3
11/12/2019
中環
錢禮
簽保守行為
無業
22
在公眾地方造成阻礙
11/02/2019
香港仔
TMCC 1897/2019
葉啓亮
裁判法院
認罪
罪成
學生
22
在公眾地方管有攻擊性武器
膠管
判囚
4
屯門
KTCC1984/2019
徐綺薇
裁判法院
簽保守行為
學生
19
在公眾地方造成阻礙
11/11/2019
將軍澳
STCC4403/2019
鄧少雄
裁判法院
認罪
罪成
學生
20
刑事毀壞
感化令
12/09/2019
馬鞍山
ESCC0035/2020
錢禮
裁判法院
撤控
未知原因
無業
23
阻差辦公
01/01/2020
灣仔
WKCC4136/2019
羅德泉
裁判法院
認罪
罪成
廚師
20
管有任何物品意圖摧毀或損壞財產
鎚
判囚
4
深水埗
WKCC4136/2019
羅德泉
裁判法院
認罪
罪成
廚師
20
在公眾地方管有攻擊性武器
汽油彈（載有易燃液體的玻璃樽）
判囚
12
深水埗
WKCC4136/2019
羅德泉
裁判法院
認罪
罪成
廚師
20
非法集結
判囚
12
深水埗
TMCC452/2020
張潔宜
裁判法院
簽保守行為
學生
21
管有任何物品意圖摧毀或損壞財產
氣球、一瓶黑色液體
10/07/2019
屯門
TMCC452/2020
張潔宜
裁判法院
簽保守行為
學生
21
在公眾地方管有攻擊性武器
竹棍、木梯、太陽傘
10/07/2019
屯門
TMCC452/2020
張潔宜
裁判法院
簽保守行為
學生
19
在公眾地方管有攻擊性武器
竹棍、木梯、太陽傘
10/07/2019
屯門
KCCC2544/2019
嚴舜儀
裁判法院
簽保守行為
學生
18
在公眾地方管有攻擊性武器
刀、鐵通
深水埗
TMCC2311/2019
張潔宜
裁判法院
認罪
罪成
運輸行業
39
誤導警務人員
社會服務令
元朗
TMCC2311/2020
張潔宜
裁判法院
認罪
罪成
運輸行業
39
誤導警務人員
社會服務令
元朗
ESCC757/2020
錢禮
裁判法院
簽保守行為
77
刑事毀壞
柴灣
ESCC757/2021
錢禮
裁判法院
簽保守行為
77
刑事毀壞
柴灣
ESCC757/2022
錢禮
裁判法院
簽保守行為
77
刑事毀壞
柴灣
ESCC757/2023
錢禮
裁判法院
簽保守行為
77
刑事毀壞
柴灣
KTCC1980/2019
徐綺薇
裁判法院
簽保守行為
無業
27
遊蕩
11/10/2019
觀塘
STCC959/2020
鄧少雄
裁判法院
簽保守行為
學生
21
在公眾地方造成阻礙
11/11/2019
沙田
WKCC326/2020
羅德泉
裁判法院
簽保守行為
保安
23
管有違禁武器
伸縮棍
旺角
ESCC292/2020
何俊堯
裁判法院
簽保守行為
家庭主婦
52
襲警
09/08/2019
中環
TMCC2172-4/2019
張潔宜
裁判法院
簽保守行為
學生
18
刑事毀壞
11/10/2019
屯門
ESCC 700004/2020
何俊堯
裁判法院
認罪
罪成
學生
15
在公眾地方管有攻擊性武器
伸縮棍
感化令
銅鑼灣
TMCC1821/2019
張潔宜
裁判法院
認罪
罪成
攝影師
21
刑事毀壞
判囚
175
09/07/2019
天水圍
TMCC1821/2019
張潔宜
裁判法院
認罪
罪成
學生
21
刑事毀壞
判囚
175
09/07/2019
天水圍
WKCC4135/2019
羅德泉
裁判法院
認罪
罪成
學生
22
在公眾地方管有攻擊性武器
汽油彈
判囚
12
旺角
TMCC 1954/2019
葉啓亮
裁判法院
不認罪
不成立
證據不足
舞台劇工作
22
在公眾地方管有攻擊性武器
約 8 厘米迷你刀
10/01/2019
屯門
DCCC783 / 2019
胡雅文
區院
認罪
罪成
救生員
21
暴動
判囚
48
06/12/2019
金鐘
DCCC 783/2019
[2020] HKDC 337
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 783 OF 2019
—————————–
HKSAR
v
SIN KA HO
—————————–
Before: Her Honour Judge A J Woodcock in Court
Date: 15 May 2020
Present: Ms Karen Ng, Senior Public Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
Ms Fiona Nam, instructed by Sanny Kwong & Co, for the defendant
Offence: [1] Riot（暴動）
[2] & [3] Resisting a police officer in the execution of his duty （抗拒執行職責的警務人員）
—————————————–
REASONS FOR SENTENCE
—————————————–
The defendant pleaded guilty to taking part in a riot, contrary to section 19(1) and (2) of the Public Order Ordinance, Cap. 245. The particulars of the offence are that the defendant on 12 June 2019, outside the public entrance of the Legislative Council Complex, No 1 Legislative Council Road, together with other persons took part in a riot.
Facts
This riot outside the public entrance of the seat of the legislature was clearly captured by security cameras; the CCTV footage is undisputed. During this riot, the defendant is seen at the front of a crowd with others facing police officers and acting violently. He can be clearly identified before he was arrested. He did not run away with the rest of the rioters behind him. He was essentially caught red-handed.
That day, 12 June 2019 was when the second reading of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 was scheduled to resume. The designated demonstration area at the public entrance of the Legislative Council was not open to the public. The police had issued a letter of no objection to a public meeting organised by the Civil Human Rights Front on the pavement of Lung Wui Road opposite to the Legislative Council to be held from between 10:00 on 12 June 2019 and midnight on 14 June 2019. This public meeting was subject to prescribed conditions.
On the morning of 12 June 2019, the police had formed a police checkline outside the vehicular entrance of the Legislative Complex leading to the public entrance on Tim Mei Avenue. The police were there to prevent any unauthorised entry into the Legislative Council and maintain public order. Two rows of mills barriers were placed in front of the police checkline. From about the same time, a large group of protesters congregated opposite the police and built barricades with other mills barriers blocking the roads. There was a serious disruption to traffic from early morning there.
Protesters and activists had called for a general strike that day as well as for the public to protest outside the Legislative Council to stall the bill from passing its second reading. This prompted the police to tighten security around the Legislative Council and the Central Government Offices. The roads were blocked around these buildings by protesters and by late morning the Legislative Council Secretariat had announced that the second reading debate on the bill had been postponed indefinitely. This announcement did not disperse the crowds.
At lunchtime, around 14:00 an estimated 8,000 to 10,000 protesters surrounded the Legislative Council, occupying the pavements and roads of Legislative Council Road, Tim Mei Avenue and Lung Wui Road. The protesters were by in large peaceful.
At about 15:30, it appears without provocation, about 40 to 50 protesters in front of the police outside the vehicular entrance became emotional, violent and charged at the police checkline. Just prior to the charge and almost simultaneously, many of those protesters opened and held up their umbrellas. They had already removed the barriers they erected in front of them to clear a path for them to charge at the police. Some held home-made shields and many hurled items at the police, including full water bottles, bricks dug up from pavements, umbrellas and iron bars. There were large yellow then red police warning flags displayed but ignored.
There were several attempts to charge the police checkline causing the police to retreat backwards twice. Charging a police checkline lawfully formed to prevent people from moving beyond it must be disorderly conduct and a breach of the peace. A very large number of protesters broke through the police mills barriers and flooded into the public entrance of the Legislative Council previously closed. The police had to retreat to the main entrance of the public entrance area just in front of the glass doors of the Legislative Council.
The prosecution says and it can be seen from the CCTV footage that those rioters in front of the police in the public entrance caused a breach of the peace. Violence was perpetrated by the defendant and others. The defendant and others can be seen on CCTV acting in a disorderly, intimidating, insulting, provocative and violent manner. Such conduct would undoubtedly provoke others to commit a breach of the peace. An unlawful assembly turned into a riot. There can be no doubt that the defendant took part in the furtherance of a riot, his and the actions of others made the assembly a riot. The defendant admits this, hence his plea of guilty.
The CCTV footage shows the defendant had an intent to assist others close to him in the execution of a common purpose, they displayed force and violence sufficient to put a bystander of reasonable firmness and courage in fear. He can be seen throwing objects with force at the police from a close distance. Other items thrown at the police include hard objects, filled water bottles, umbrellas and barriers. Barriers were repeatedly rammed against police officers who were backed up against a railing.
The defendant himself admits that he picked up items from the ground and hurled them at the police. When he was at the front of the crowd, he and others together pushed mills barriers against the shields of the police in front of them. Those police had to also protect themselves from items thrown at them.
Within a few minutes the other rioters and protesters behind the defendant retreated quickly but he remained to continue to throw items at the police. When he did eventually turn to run, the police were close enough to subdue him. It took the police firing tear gas regain control of the public entrance.
The defendant was arrested for unlawful assembly and admitted he had participated in an unlawful assembly under caution. When arrested, he was wearing a white mask, a black helmet, a black windbreaker with a hood, a pair of long black trousers and wearing a pair of thick gloves. He was carrying a black bag and when searched, the police found seven plastic black strips in it, zip ties commonly seen used to tie metal mills barriers together.
That day, eight police officers manning checklines were hit by objects and they suffered injuries such as lacerations, abrasions and tenderness mainly over the limbs.
Legislative Council CCTV and media footage
The summary of facts admitted by the defendant includes a description of events captured by CCTV footage from the Legislative Council from several cameras exhibited in annex 1. Annex 2 contains still photographs or screenshots from some of the CCTV footage with the defendant identified in a blue box marked on the screenshots. Annex 3 contains a description of events captured on live news videos from Now news. An exhibit is produced containing the CCTV footage from the Legislative Council and the news videos. Some of the Legislative Council footage was played in open court as part of the prosecution’s summary of facts.
The difference between the media footage and the CCTV footage is as follows. Obviously, the CCTV cameras are fixed and do not move to film action as will happen when controlled by a cameraman. There is no sound therefore, no commentary which may inadvertently give opinions or make statements. The CCTV cameras are wide angled, capture more from a height and do so continuously without a break. I was told the Legislative Council camera footage was not shared with any news media nor has it previously been shown to the public.
Annex 1
I intend to summarise what is described as the events captured on CCTV footage. I have watched it all for myself and summarise it from my own viewing. It is important to demonstrate the degree of violence used and to present the background for the purposes of sentencing. It shows how events descended into a riot. Before 15:25 the situation seen in footage from camera 22 outside the vehicular entrance was calm, so calm that there were pedestrians walking between the police checkline and the assembled protesters. The protesters had built barricades using mills barriers in front of them but at about 15:28 many of the protesters began to remove them. At 15:30 many of the protesters then opened their umbrellas to shield themselves. It was not raining. Clearly there was a plan which preceded them storming the police checkline.
The police knew there was to be some action and raised a yellow warning flag with the words “police cordon, do not cross”. Those protesters in the front held home-made shields and mills barriers. At 15:32 those holding handmade shields banged them on the ground together appearing to signal to the crowd who then charged forward quickly straight into the police checkline. At 15:33 that crowd used violence to try to break through the mills barriers in front of the police. Hard objects were hurled and rammed against the police. The police used pepper spray to repel them. They retreated after a minute.
At 15:39 the crowd of protesters again tried to break through the police checkline using mills barriers as shields and battering rams. Before this second charge, it is clear that those behind the protesters were passing more mills barriers forward to those in the front of the crowd. Before the second charge, the police held up a red warning flag with the words “stop charging or we use force” in large letters. This did not deter these protesters charging once more. Again, the police tried to disperse them with pepper spray. Many missiles can be seen flying through the air aimed at the police during this charge.
At 15:41 the police retreated from their checkline to behind the vehicular entrance only to be quickly followed by the crowd of protesters who broke through the mills barriers set up by the police and rushed passed the vehicular entrance into the public entrance. The angle of camera 22 does move at 15:43 to follow the crowd through the vehicular entrance and into the public entrance. The number of protesters clearly outnumber the police. The public entrance is a large area under a cover with many large pillars.
In the footage from camera 23 which points towards the public entrance from the vehicular entrance, at 15:41 the police retreated from in front of the vehicular gate to behind it but as the protesters charge once more, they retreat again towards the public entrance of the Legislative Council, to the covered area. Some of the first protesters inside hurl items at the police checkline. Within a few minutes, by 15:44 you can see the police having to retreat even further back up against the building. The whole public entrance area is quickly filled with protesters.
In the footage from camera 33 PTZ one can see the whole area directly in front of the glass doors of the entrance to the building. It was in this area where the defendant rioted with others and was arrested. At 15:43 there was a row of police officers guarding the main entrance glass doors. They can clearly see trouble in front of them coming through the vehicular entrance. At 15:45 the police who had retreated from the vehicular access were inching back towards those glass doors whilst those already there moved around. At 15:45:45 one can see the police backed up against the railing, the violence escalated, many hard items were thrown at the police and mills barriers were actually rammed into them. Those police officers had their backs against a railing. At 15:46:50 you can see the majority of the group of protesters and rioters suddenly turn and run away leaving the defendant on his own, seemingly oblivious to the fact that he was no longer surrounded by other protesters and rioters. He was so intent on inflicting injury he didn’t run when everyone else ran and was caught.
In the footage of camera 33 at 15:45:54 the defendant can be seen picking up a mills barrier from the floor when he was near the front of the crowd. At 15:45:57 he picked up a yellow helmet and a red umbrella from the ground and then threw them at the police. At 15:46:04 the defendant again picked up a mills barrier from the ground and pushed it against the police; by now he was at the front of the crowd. He continued to do so for about 30 seconds. At 15:46:56 defendant can clearly be seen picking up and throwing a hard object with force at close range at the police in front of him. At 15:46:59 he picked up a dark coloured umbrella but when he closed it he discovered it was a folding umbrella which he then threw to the ground. At 15:47:05 he picked up a long umbrella and threw it like a spear at an officer who used his round shield to deflect it. At 15:47:09 the defendant picked up another hard object from the ground and threw that. By then everyone around him and behind him had run away yet he alone continues to attack doggedly and relentlessly. He was easily caught at 15:47:10 by the police.
All of his actions I have just described can clearly be seen in the screenshots from that same footage in Annex 2. The defendant agrees that it is him circled in blue in all of those screenshots. The prosecution also prepared another copy of the footage from camera 33 and 35 with the defendant live in action circled in blue when he can be seen.
Cameras 34 and 35 cover the public entrance from the opposite direction to camera 33. The defendant can actually be seen in camera 35 doing as I have just described as clearly from this other angle from 15:46:56. The camera angle caught the crowd from behind but one can see how violent those in front of the crowd were towards the police. They not only rammed them with mills barriers but tried to take them over the heads of the officers.
Camera 34 covers the whole main entrance pointing in the direction of Lung Wo Road; it covers more than camera 33 which is pointed towards the glass doors. It is this footage that again demonstrated how many people broke through the barriers when the police were forced to retreat. It demonstrated how outnumbered the police were. One can see many of those people are throwing projectiles at the police and ramming mills barriers towards them. It showed how many of those who entered the public entrance were violent. Those by the glass doors in camera 33 with the defendant became the most violent. The footage then showed how it emptied out and how the police regained control of the public entrance.
Annex 2
The screenshots in annex 2 are self-explanatory with the time of each screenshot visible and the defendant circled in blue. Those screenshots correspond with what he is described as doing in annex 1.
In some of the screenshots there is a yellow object circled in red hurled by someone other than defendant. The prosecution suggest it was an object set on fire before it was thrown right over the heads of all those police officers in front of the glass doors. It clearly bounces off the glass doors behind them and lands on the ground. It can then be seen in the reflection of the glass in some screenshots and certainly in the actual CCTV footage. It does not appear to flicker nor does it appear to cause concern to police officers who pass it. I cannot say it was an object on fire thrown at police but I can say from the way it bounced off the glass that it was a hard projectile.
Annex 3
The prosecution have included two live news videos, video 16 and video 17 from Now news. Again, in annex 3 the prosecution have described the events as captured by the live news feed.
In video 16 at 15:28 the protesters in front of the vehicular entrance began to dismantle and remove the barricades that they had previously built up. Even the reporter can be heard commenting on their intentions. At 15:29 the police can be heard shouting through a loudhailer to the protesters to not advance or attack the police. These verbal warnings continue. A yellow warning flag was held up. At 15:33 a large group of protesters began to charge the police checkline; instigated by several banging homemade shields on the ground in unison to appear to signal an advance and charge. Projectiles were thrown at the police at the same time, one protester was seen stabbing at the police with a metal pole. They retreated back but continued to throw hard objects despite verbal warnings.
At 15:39 the cameraman panned to a large pile of bricks dug up and collected. At this time the protesters again charged the checkline with mills barriers and hurled bricks and umbrellas at the police. They retreated again within a minute. The events continued in video 17 with the police then retreating behind the vehicular entrance. At 15:40, some protesters can be seen gathering bricks and moving towards the police. The police discharged rubber bullets presumably because verbal warnings and flags were ignored. Despite such a serious warning and deterrent, at 15:41 the protesters again charged at the police checkline that had retreated. At 15:43 the protesters are seen rushing into the vehicular entrance after breaking through the mills barriers set up by the police. The police are then forced to retreat by the oncoming crowd towards the back of the public entrance of the Legislative Council and the main glass doors.
The cameraman moved position and filmed into the public entrance from the direction of Lung Wo Road. The protesters rushed in and despite a police officer firing rubber bullets, they failed to stop. Several triangular battering rams consisting of mills barriers tied together were rammed at the police for maximum effect.
At 15:46 to 15:47 the footage shows teargas. This caused the majority of the protesters who had stormed the public entrance to turn and leave or back out. After the majority had left the public entrance, more teargas was fired. This is presumably to regain control of the entrance, keep the protesters from storming it again and gave the police an opportunity to re-form a checkline at the vehicular entrance which they did by 15:50. The police can be seen to regain control of the public entrance of the Legislative Council.
Mitigation
The defendant is now 22 years old and has a clear record in Hong Kong. He has received an education up to Form 6 and when he was arrested he was working as a lifeguard earning about $18,000 a month and had been working as such for about 5 years. He is single, lives with his parents and an elder brother.
In mitigation it was submitted that when the protesters charged at police checklines several times, the confrontation escalated and protesters including the defendant soon became emotional which resulted in the riot. The defendant was caught red-handed before he had a chance to run away from the scene and has pleaded guilty. His best mitigation is his plea of guilty. Defence counsel, Ms Nam has said everything she can say on his behalf.
I have read the many mitigation letters presented. I have a letter from the defendant himself, his parents, his long-term girlfriend and his employer. I have also many letters from his previous school principal, deputy principal and his many teachers; they span his lifetime at school. Mitigation letters from those that knew him at school total 16.
Defence counsel has reiterated his genuine remorse and the fact that his life changed forever when he was arrested that day. She submits the many letters from family and past teachers show his true character or rather show that his actions seen on CCTV on that day were out of character. His current employer has promised to re-employ him even if he has to serve a term of imprisonment.
In his own mitigation letter the defendant writes that he understands that violence is never the way to express one’s opinion. The rule of law is not to be undermined and all matters should be resolved by more appropriate means. He is sorry to have disappointed his parents, brother and his girlfriend. He acknowledges that he, I quote “broke the peace of Hong Kong. I set a bad example for those young people yearning for change. If I had the opportunity to talk to them myself, I would urge them not resort to violence”. He takes full responsibility for his actions and mistake. He hopes to be able to contribute to his own family and Hong Kong society after serving his sentence.
Reasons for sentence
The offence of rioting, contrary to section 19(1) and (2) of the Public Order Ordinance, will attract a maximum term of imprisonment on indictment of 10 years.
Freedom of peaceful assembly is guaranteed by the Basic Law and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, like the freedom of speech is indispensable to the building of a civilised society and essential to social stability and progress. The freedom of peaceful assembly enables members of the public to voice their criticisms, air grievances and seek redress on views they hold. However, the freedom of assembly is not absolute. Once a protester becomes involved in violence or the threat of violence, a breach of peace, then that protester crosses the line between constitutionally protected peaceful assembly and demonstration to an unlawful activity which is subject to legal sanctions. There is such a line to protect public order because society is prone to descend into anarchy if public order is not preserved.
A riot has an immediate and serious impact on the rule of law. The rule of law is a core value of Hong Kong and the cornerstone of its success. The law ensures that public order and peace are preserved; not threatened by the use of violence. If public order is not preserved, this affects the freedom and rights of citizens.
Sentencing for the offence of riot involves the factor of deterrence. Ms Nam submits the defendant’s actions and participation was out of character. She submits his actions were spontaneous and not premeditated. He was caught up with the crowd when protesters tried to gain entry to the public entrance and emotions were running high. It is against that background that he joined in with what became a riot. He had no intention to cause harm to the public. She submits this is not the most serious case for an offence of this nature. I am urged to balance his remorse, guilty plea, young age and clear record with the need to deter and punish.
A sentence must not only seek to prevent the offender from reoffending, but also to give a proper warning to deter others from violating the law by breaking and disrupting public order in a like manner. Acts of violence or threats of violence will not and cannot be tolerated; such acts will attract a deterrent sentence to ensure that the public is protected. The Court of Appeal in HKSAR v Leung Tin Kei and others CACC 164/2018 reiterated that courts will impose a sentence that is punitive and sufficiently deterrent in accordance with principles established in applicable case law. It therefore follows that the submissions made on the defendant’s behalf carry little weight.
In this case, a deterrent sentence will reflect the fact that the defendant joined in an attempt to overpower police performing protective duties. Deterrence overrides the sentencing principle of rehabilitation in the prevailing circumstances including the increasing incidents of unrest and a rising number of large-scale public protests involving violence. This is clear from the Court of Final appeal in SJ v Wong Chi Fung 2018 21 HKCFAR 35.
The defendant was one of a large number engaged in a crime against peace, perhaps it was the sheer number with the defendant that gave him support and encouragement from being together with so many to riot. It is a common feature of mass disorder that if individuals within the crowd act violently, this will in turn inflame and encourage others to behave similarly. The harm done comes from the combined effect of what is done en masse.
For similar offences with different backgrounds and facts, the sentences in those cases do not provide a helpful guidance. Each charge must be considered on its own facts. What is a common factor is that the sentence should be punitive and sufficiently deterrent therefore, an immediate custodial sentence is inevitable.
The Court of Appeal in Leung Tin Kei set out various factors to be taken into account when passing sentence on the offence of riot. Courts must consider these factors and principles to arrive at a sentence according to the facts of each individual case. In that authority, the Court of Appeal upheld the sentences imposed. Those factors include:-
whether the riot was spontaneous or premeditated; if it was the latter, how detailed and precise the plan was;
the number of people engaged in the riot;
the degree of violence used by the rioters, including whether weapons were used and, if so, what kind and quantity of weapons;
the scale of the riot, including the time, location, the number of places and the area in which the riot took place;
the duration of the riot, including whether the riot was prolonged, and whether it still went on despite repeated warnings by the police or public officers;
the harm caused by the riot; for example, whether there was any loss or damage to properties and, if so, to what extent; whether anyone was injured and, if so, the number of injured persons and the degree of injury;
what imminence and gravity of threat was caused by the riot;
the nature and extent of nuisance caused to the public by the riot;
the impact on the relationship among community groups caused by the riot;
burden caused to public expenditure by the riot;
the offender’s role and group participation; for instance, apart from taking part in the riot, whether he had arranged, led, summoned, incited or advocated others to take part in the riot;
whether the offender committed any other crimes during the course of the riot.
In Leung Tin Kei’s case the riot took place on 9 February 2016 in Argyle Street. Although I have not seen any video footage of that riot, I read a description of the events set out in the reasons for sentence. In my view, this riot in the public entrance of the Legislature is more serious than the riot on Argyle Street.
I have been referred to HKSAR v Tang Ho Yin 2019 3 HKLRD 502 where the appellant was a man with a clear record and aged 24 at the time he committed the offence of riot. He pleaded guilty at the earliest opportunity and the sentencing judge took a starting point of five years’ imprisonment. The Court of Appeal considered the facts of that case, a riot between Shantung Street and Nathan Road on 9 February 2016 and although they said the appropriate starting point for that defendant was four years and six months, they dismissed the appeal.
In HKSAR v Yeung Ka Lun 2019 1 HKC 296, the Court of Appeal dealt with a riot that took place on the same day as the riot in Tang Ho Yin but in nearby Soy Street. That Court of Appeal described a starting point of five years’ imprisonment for the facts of that riot as appropriate.
In deciding the starting point of the offence, the extent of the overall violence involved must be considered, not the defendant’s individual acts in isolation. It has been suggested in mitigation that the defendant joined in at a later stage, his actions were spontaneous and the riot did not last very long. It was submitted he didn’t bring any weapons to the scene and although he was wearing a mask and helmet he did not intend to come to cause harm to anyone.
I quote from the authority R v Caird and others 1970 Cr App R 499 where LJ Sachs said at pages 507-508,
“those who choose to take part in such unlawful occasions must do so at their peril. … Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who, by weight of numbers, pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers. … In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.”
Therefore, in considering an appropriate sentence, I consider the extent of the overall violence involved, not the defendant’s individual acts in isolation.
Defence counsel has asked me to only consider the riot “outside the public entrance of the Legislative Council complex” as set out in the particulars of the offence. She has said that the charges at the police checkline at the vehicular entrance and behind the vehicular entrance should not be considered. I should only look at the scale of the riot in the public entrance to consider the culpability of the defendant.
In order to consider the culpability of the defendant or to assess the defendant’s participation, it is important to say something of the scene leading up to the riot. I quote again from LJ Sachs in Caird from page 504-505 where he says,
“There has been canvassed before this court the distinction between unlawful and riotous assemblies. Unlawful assemblies and riotous assemblies take many forms. … The moment when persons in a crowd, however peaceful their original intention, commence to act for some shared common purpose supporting each other and in such a way that reasonable citizens fear a breach of the peace, the assembly becomes unlawful. In particular that applies when those concerned attempted trespass. … or show preparedness to use force to achieve the common purpose. The assembly becomes riotous at latest when alarming force or violence begins to be used. …
The borderline between the two is often not easily drawn with precision. … It is the law – and, indeed, in common sense it should be the case – that any person who actively encourages or promotes an unlawful assembly or riot, whether by words, by signs or by actions, or who participates in it, is guilty of an offence which derives its great gravity from the simple fact that the persons concerned were acting in numbers and using those numbers to achieve their purpose.”
Those first two prior charges of the police checklines before the protesters break through the barriers and enter the public entrance gives the background of what happened that afternoon. It is artificial to only look at what happened inside the public entrance; it cannot be isolated. As LJ Sachs observed, the borderline between when an assembly becomes riotous is often not easily drawn with precision. In any event, it is part of the defendant’s mitigation that he got caught up with the crowd charging at the police, breaking through the checklines and entering the public entrance. This meant he was present when he says emotions were running high and it affected his behaviour.
In light of the aforesaid and taking into account the factors mentioned in Leung Tin Kei by the Court of Appeal as well as the CCTV footage, I take the view that the violence was large in scale and very serious. It can be seen to escalate. By the time there was a 3rd charge at the police checkline they were backed up against a railing in front of the doors to the Legislative Council.
The degree of violence used became more extreme and more serious with every charge. I take into account that during the violence, hard objects were aimed at the police including pavement bricks, full water bottles and other hard unidentifiable objects. Once inside the public entrance, mills barriers designed for crowd control were used as battering rams against the police; they were repeatedly rammed. Several people with the defendant rammed the same barrier with as much strength as they could muster. This is clear from the CCTV footage. The officers in front of the glass doors were physically backed up against a railing. The violent behaviour and subsequent consequences could have been more serious i