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The judgment notes that, on the evening of 10 November 2019, the two defendants gathered with approximately four hundred people at the junction of Nathan Road and Shantung Street, and the police advanced in three directions to disperse them. The third defendant was alleged to have held a red light baton and worn protective equipment such as goggles, obstructed traffic on the road and, after police orders were given, fled into the crowd before ultimately being subdued; the fifth defendant was accused of kicking a paving brick on the road and then slipping into the press area, where he was arrested. Officers removed his swimming goggles and mask, searched his belongings and conducted a caution interview at the police station. The defence did not give evidence and challenged the police identification, handling of exhibits and witness testimony as containing inaccuracies.
The offence of unlawful assembly carries a maximum sentence of five years’ imprisonment on indictment, and under summary proceedings a maximum level 2 fine and three years’ imprisonment; under the anti-mask regulations the maximum is a level 4 fine and one year’s imprisonment.
It was considered that the prosecution failed to prove that the defendant had engaged in disorderly or threatening or insulting behaviour during an unlawful assembly of three or more persons, nor that the defendant had used a face covering to prevent identification; moreover, discrepancies existed between the audio-visual footage and police testimony, resulting in insufficient evidence linking the defendant’s conduct to the offence elements; accordingly, the charges did not stand.
The judge held that the police dispersal instructions lacked audio evidence; the police officers’ identification of the defendant and their operational procedures were contradictory in many respects; there were serious omissions in the collection and recording of exhibits; the defence’s assertions that the defendant had complied with dispersal orders or was merely passing through were both reasonably explained; taking into account the overall insufficiency of the evidence, the defendant was acquitted.
Both defendants were acquitted of the unlawful assembly and anti-mask offences, and released. (Translated from Chinese to English by AI)
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判刑理由書撮要(由AI生成)
以下撮要以AI生成及／或翻譯，內容以原來的判刑理由書為準。
The judgment states that on the evening of 10 November 2019 approximately 100 people assembled unlawfully in the Nathan Road and Shantung Street area, barricading roads, occupying carriageways and using laser pointers against police. During the dispersal operation three defendants were arrested. The first and fourth defendants were also found in possession of petrol bombs and other items intended to damage property, and the first defendant additionally resisted arrest, carried a spring-loaded knife and unlicensed radiocommunications equipment. All three pleaded guilty to unlawful assembly, with the first and fourth also pleading guilty to related weapons and property-damage charges. These events occurred amid the “sudden and severe deterioration of law and order” in Hong Kong during protests from September to November 2019.
The judge applied the Court of Appeal’s guidance in Secretary for Justice v Wong Chi Fung, holding that in serious, violent unlawful assemblies punishment and deterrence carry great weight and immediate custodial sentences are generally required. For possession of petrol bombs under section 62A of the Crimes Ordinance, starting points range from three to four and a half years’ imprisonment.
The unlawful assembly involved large-scale violent disorder and dangerous items placed in public areas. Aggravating factors included possession of petrol bombs at the scene, use of “black bloc” tactics and semaphore equipment suggesting coordination. Mitigating factors included all defendants’ clear records, expressions of remorse, personal circumstances (the first defendant’s decade-long fire-service career and family dependents; the second defendant’s youth and sporting prospects; the fourth defendant’s family health responsibilities) and guilty pleas, warranting up to one-third discounts.
The judge emphasized that personal mitigation carries limited weight where public safety and deterrence are paramount. Custodial sentences were considered necessary to uphold the rule of law. For the juvenile defendant, alternative custodial training under the Correctional Services Department was appropriate given his age and prospects of rehabilitation.
The first Defendant was sentenced to 34 months’ imprisonment. The fourth Defendant received 28 months’ imprisonment. The second Defendant, being 17 at the time of offence, was ordered to a rehabilitation centre under a training order.
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