DCCC917/2021

DCCC917/2021

A A B B DCCC 917/2021 C [2023] HKDC 1463 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO 917 OF 2021 F F G -------------------------------- G HKSAR H H v I CHEUNG KING SANG KINSON (D1) I KWOK WING HO (D2) J J TODOROVSKI CHRIS SHING HANG (D3) K YUNG CHUNG HEI (D4) K -------------------------------- L L M Before: Her Honour Judge A N Tse Ching in Court M Date: 30 October 2023 N N Present: Mr Cheung Cheuk Kan Ivan, Acting Assistant Director of O Public Prosecutions, and Mr Vincent Lee, Senior Public O Prosecutor, for HKSAR P P Mr Robert Pang, Senior Counsel, leading Ms Yvonne Leung, Q Q instructed by O Tse & Co, for the 1st Defendant R Mr Kay Chan, instructed by Tang, Wong & Chow, assigned R nd by the Director of Legal Aid, for the 2 Defendant S S Mr Steven Kwan, instructed by Ho, Tse, Wai & Partners, for T the 3rd Defendant T U U V V  -2- A A B B Mr Billy Yau, instructed by Eric Cheung & Lau, assigned by C the Director of Legal Aid, for the 4th Defendant C Offences: [1] Advocating terrorism (宣揚恐怖主義罪) D D [2] Incitement to wound with intent (煽惑他人有意圖而傷 E 人) E F F ------------------------------------------------ G G REASONS FOR SENTENCE H ------------------------------------------------ H I I 1. The 4 defendants are charged with the following offences: J J (1) Advocating Terrorism, contrary to Article 27 of the K K Law of the People’s Republic of China on Safeguarding L National Security in the Hong Kong Special L Administrative Region (the NSL) in Schedule to the M M Promulgation of National Law 2020 (LN 136 of 2020) N (Charge 1); and N O O (2) Incitement to wound with intent, contrary to Common P Law, section 17(a) of the Offences Against the Person P Ordinance, Cap 212, and punishable under section 101I Q Q of the Criminal Procedure Ordinance, Cap 221, Laws R of Hong Kong (Charge 2). R S S 2. Charge 2 is an alternative charge to Charge 1. T T U U V V  -3- A A B B 3. All 4 defendants pleaded guilty to Charge 2. Their pleas were C accepted by the prosecution. Charge 1 was dismissed. C D D 4. These are the reasons for sentence. E E Admitted Facts F F G 5. The facts admitted by the defendants are as follows: G H H Unlawful wounding of an officer of the Hong Kong Police I Force with intent on 1 July 2021 (the Incident) I J J (1) On 1 July 2021 (which was the HKSAR Establishment K Day), there were appeals on the Internet for protests on K Hong Kong Island. L L M (2) At around 2205 hours on 1 July, a uniformed police M officer (the Police Officer) and his colleagues from the N N Police Tactical Unit were deployed on static O positioning in response to the call for protests. When O the Police Officer was performing this duty outside P P SOGO Department Store in Causeway Bay, a Chinese Q Q male LEUNG Kin Fai (LEUNG) suddenly approached R the Police Officer from behind and used a sabre knife R to stab the Police Officer’s left upper back once. When S S the other police officers at scene tried to subdue T LEUNG, LEUNG immediately stepped backwards, T U U V V  -4- A A B B scattered 8 USBs and used the same sabre knife to stab C his own left chest twice to commit suicide. C D D (3) LEUNG was certified dead at the Ruttonjee Hospital at E 2320 hours as a result of his suicidal conduct. The E Police Officer sustained a 10 cm stab wound. He was F F admitted to hospital, received 21 stitches and was G granted sick leave. G H H (4) The 8 USBs scattered by LEUNG were found to I contain photographs of the sabre knife together with its I parts and a picture of how to conceal the sabre knife J J with clothing. They also contained LEUNG’s “will K notes”, showing his plot of the attack, his intention to K kill himself thereafter and his hostility towards the L L Hong Kong Police Force. M M (5) Immediately after the Incident and between 1 and 6 N N July 2021, the Government issued statements and press O releases to publicly condemn violence and acts O undermining public order. The Incident was P P characterised by the Government as a “lone-wolf Q terrorist attack”. The Incident and the Government’s Q R statements and press releases were extensively covered R by the media, including but not limited to NOW TV, S S Inmediahk, HK01, TVB, Commercial Radio Hong T Kong, Speakout.hk, Ming Pao and UNDERGRAD (the T official editorial board of the Hong Kong University U U V V  -5- A A B B Students’ Union). In their reports of the Incident, the C existence of LEUNG’s “will notes” was mentioned but C not their contents. D D E Roles of D1 to D4 at the material time E F F (6) At the material time, the Hong Kong University G Students’ Union (HKUSU) (also known as the G Students’ Union or the Union) was the main body of H H the students’ association in the University of Hong I Kong (HKU) and was registered under the Societies I Ordinance, Cap 151. According to its structure, the J J Hong Kong University Students’ Union Council K (HKUSUC) had the function of representing members K of the HKUSU in such matters that affect their interests L L and afforded a recognised means of communication M between the HKUSU and the University authorities. At M the material times, the roles of D1 to D4 in the N N HKUSUC were as follows: O O (a) D1 was the Chairperson of the HKUSUC. He P P was elected to this position on 28 February 2021. Q Q In July 2021, D1 was a 2nd year Bachelor of R Social Science (Government and Laws) and R Bachelor of Laws student in HKU; S S T (b) D2 was the President of the Executive T Committee of HKUSU. He was elected to this U U V V  -6- A A B B position in May 2021. At the time of election, D2 C and his union executive members under the name C of “DEFINANCE (薪燧)” issued a campaign D D manifesto setting out their views and position. In E July 2021, D2 was a third year Bachelor of E Engineering (Civil Engineering) student in F F HKU; G G (c) D3 was the representative of Simon K Y Lee H H Hall Students’ Association HKSU in the I HKUSUC, representing members of the Simon I K Y Lee Hall Students’ Association HKUSU. J J Simon K Y Lee Hall is a residential hall or K dormitory of HKU. The Association is a body of K students formed by members of that Hall and L L was affiliated to the HKUSU. In July 2021, D3 M M was a first year Bachelor of Arts student in HKU; N N (d) D4 was the representative of the Arts O O Association HKUSU at the HKUSUC, P representing members of the Arts Association P HKUSU. This Association was formed by Q Q students in the Arts Faculty of HKU and was R affiliated with HKUSU. In July 2021, D4 was a R first year Bachelor of Arts student at HKU. S S T T U U V V  -7- A A B B Websites and Social Media Platforms of the HKUSU, C HKUSUC and related entities C D D (7) At the material times, the means of publication of the E HKUSU, HKUSUC and related entities were as E follows: F F G (a) HKUSU operated and maintained a Facebook G page and a website for publication of content, H H which were all open to public view; I I (b) HKUSUC operated and maintained a Facebook J J page for publication of content, which was open K to public view; K L L (c) The official editorial board of HKUSU, namely M UNDERGRAD, operated and maintained a M Facebook page, an Instagram account and a N N website for publication of content, which were O all open to public view. The publications of O UNDERGRAD may take the form of real-time P P videos and/or publication of the recent affairs, Q Q meetings and resolutions of HKUSUC; R R (d) The audio-visual medium of HKUSU, CAMPUS S S TV, operated and maintained a Facebook page, T an Instagram account and a YouTube channel for T publication of content, which were all open to U U V V  -8- A A B B public view. The publications of CAMPUS TV C may take the form of real-time videos and/or C publication of the recent affairs, meetings and D D resolutions of the HKUSUC. E E (8) Facebook and Instagram are popular online social F F media and social networking platforms. YouTube is the G most popular global online video sharing and social G media platform. All such platforms provide for live H H broadcasting and other real-time and/or publication for I immediate access and circulation of content. Such I platforms can be accessed by means of the Internet J J from devices, such as personal computers, tablets and K smart mobile telephones etc. No payment is required K for the use of such platforms. Anyone can view content L L which is published for public view by users of such M platforms and the contents can be shared with others. M N N Incitement to wound with intent by D1 to D4 through the O calling, holding, making and publication of statements at O the 3rd Emergency Council Meeting Session 2021 of the P P rd HKUSUC (the 3 Meeting) Q Q R (9) In the context of the Incident, where LEUNG’s conduct R constituted an unlawful wounding of the Police Officer S S with intent, the official statements and press releases by T the Government and wide publication of news relating T U U V V  -9- A A B B to the Incident, D1 to D4 individually and jointly C incited others to wound police officers. C D D (10) In the small hours of 5 July 2021, D1 as the Chairperson E of the HKUSUC sent emails to the council members E and members of the HKUSUC to convene the 3rd F F Meeting. This meeting was to be held at 1900 hours on G 7 July 2021 at the Union Council Chamber UG201, G Union Building of the University of Hong Kong. An H H agenda of the meeting was enclosed in those emails. I Item 1 in Section B of the agenda items was “To I discuss the death of Mr Leung Kin Fai”. This was the J J only item which did not relate to the ordinary affairs K and businesses of the HKUSU or its related entities. K L L (11) At about 0155 hours on the same day, a post was also M published in the Facebook page of the HKUSUC with M the same notice of meeting and agenda. The Facebook N N page of the HKUSU was open to public view with O 4,517 followers and 4,359 likes as of 17 August 2021. O This post remains accessible as of 11 September 2023. P P Q Q [See Annex 1: screen capture of the post on the HKUSUC R Facebook page] R S S (12) The 3rd Meeting was held on 7 July 2021 between 1914 T hours and 2203 hours. Proceedings were conducted in T both Punti and English. The meeting was attended by U U V V  - 10 - A A B B D1 to D4 and about 30 other members. The meeting C was filmed by CAMPUS TV and was broadcasted live C on its Facebook page and YouTube channel. The video D D footage was deleted by 16 July 2021. The police were E provided with a copy of the video by a person (not D1 E to D4) when enquiries were made during a search of the F F HKUSU. G G [See Annex 2: Transcript of the 3rd Meeting; Annex 2A: H H Translation of Annex 2 – where D1 was referred to as person I A, D2 was person B, D3 was person D and D4 was person C] I J J (13) During the 3rd Meeting (which was broadcasted live), K D1 to D4 conducted themselves in the following K manner: L L M (a) D1 as Chairperson of the HKUSUC opened the M meeting by saying: N N O “I now invite the Union Council to rise and O observe a minute of silence as we remember the honourable sacrifice of Mr Leung Kin Fai, a P P fellow citizen of Hong Kong on the 1 July 2021。 本席為於二零二一年七月一日，為香港犧牲的 Q 梁 健 輝先 生 默哀 一分 鐘 ” [See counter 1 of Q Annex 2 and Annex 2A] R R (b) After around 6 minutes of discussion of other S S matters, D1 moved to the agenda item “To T discuss the death of Mr Leung Kin Fai” and T U U V V  - 11 - A A B B invited D2 to speak [See counter 7 of Annex 2 C and Annex 2A] C D D (c) D2 introduced himself and explained the reason E of submitting the Motion. He stated that the E regime had classified LEUNG’s death as a lone- F F wolf terrorist attack and that all memorial G activities were classified as illegal. D2 equated G LEUNG’s death to the death of M/LEUNG Ling H H Kit, who fell to his death from Pacific Place I during one of the unlawful events which I commenced in Hong Kong in June 2019. D2 J J described LEUNG as a “martyr who sacrificed K a lot, including his life, for Hong Kong”. In K addition to the one minute of silence observed L L earlier on in the meeting, D2 wished to mourn M LEUNG with the Motion and to record the M Incident in the history of the HKUSU [See N N counter 8 of Annex 2 and Annex 2A]. O O (d) D1 then announced that the following Motion P P was received: Q Q “… that the Union Council expresses its deep R R sadness in the death of Mr Leung Kin Fai, offers its sympathy and condolences to his family and S friends, appreciates his sacrifice to Hong S Kong” (the Motion). T T U U V V  - 12 - A A B B D2 was the proposer and D3 was the seconder of C the Motion. After asking whether D3 had C anything to say and D3 indicating that he had D D nothing to say, D1 invited D4 to speak. [See E counter 9 of Annex 2 and Annex 2A] E F F (e) D4 introduced himself and reiterated “the G importance” of the Incident. He stated that the G Incident took place in a year which was so H H “desperate” and invited members of the I HKUSUC to “express their views” on the I Incident and the Motion [See counter 10 of J J Annex 2 and Annex 2A]. K K (f) No other attendees indicated that they wished to L L speak. D1 then again invited those attendees who M wished to express their condolences through the M Motion to speak and repeated the wording of the N N Motion. After ascertaining that no one wished to O speak, D1 put the Motion to the vote. The Motion O was passed as a resolution of the HKUSUC (the P P Resolution). There were a total of 32 votes, out Q Q of which 30 were in favour of the Motion, 0 R against and 2 abstentions [See counters 13 and R 80 of Annex 2 and Annex 2A]. S S T T U U V V  - 13 - A A B B (g) Thereafter, D1 invited D3 to speak about the C Resolution as part of the comments. D3 stated C that: D D E “… probably this year… when history is E distorted, starts to be distorted, (I) hope that everyone will really remember the sacrifice F made by martyr LEUNG for Hong Kong, that F is… Just seven days after the Incident, Hong Kong police has begun to use various reasons G G to stifle Hongkongers’ expression of condolences or some acts of speaking the H truth… I hope… every Hongkonger, every H student of the University of Hong Kong can… at least… the least we can do is to remember I the truth and to do as much as possible. That I is, probably some memorial activities, also can J just do (your) part yourself as a Hongkonger” J [See counter 81 of Annex 2 and Annex 2A]. K K (h) D4 then stated that there was no discussion on L the Motion and the Motion has been passed as a L resolution because “everyone do not have any M M argument about this Motion”. With reference N to the unlawful events in Hong Kong since June N O 2019, D4 asserted that “defeatism and cynicism O have pervaded Hong Kong”. In respect of the P P Incident, he said that it was a big shock to learn Q of the Incident, be it from Facebook, television Q or news media. He continued by saying “Some R R people, even in such a desperate environment, S they would make… sacrifices for Hong S Kong, … sacrifice their own lives…”. He T T called himself a coward who could not admit his U U V V  - 14 - A A B B weakness “under such a huge totalitarian C suppression”. He stated that LEUNG, an C ordinary citizen and a mere staff of Vitasoy has D D been characterised by the regime as a terrorist. E He referred to President XI Jinping’s statement E on 1 July 2021 at Tiananmen Square calling on F F the 1.4 billion people “to form brass fortresses G and iron walls to protect the Communist Party” G and asserted that those are the “true terrorists” H H who are “really steeped in blood”. He alleged I that those regarded as terrorists by the I Communist Party are in fact heroes. D4 went on J J to “express the highest respect for Mr Leung” K who “showed the best side of human nature” by K sacrificing his life for “the greater good” [See L L counter 83 of Annex 2 and Annex 2A]. M M (i) In the absence of further comments, D1 N N concluded by asking all members of the O HKUSUC to “restrain” their grief. He undertook O to try his best “to convey the respect” from the P P HKUSUC members to LEUNG’s family [See Q Q counter 84 of Annex 2 and Annex 2A]. R R (14) As was the practice for other HKUSUC meetings, the S S proceedings of the 3rd Meeting were filmed by T CAMPUS TV and were broadcasted live on its T Facebook page and YouTube platform. U U V V  - 15 - A A B B C (15) The written text of the Resolution was published and C reported either in real time or published shortly after the D D Resolution in the Facebook pages of UNDERGRAD E and CAMPUS TV. As at about 1240 hours on 17 E August 2021, the Facebook post of UNDERGRAD F F covering the Resolution attracted 253 likes, 65 G comments and 14 shares. As at about 1805 hours on 21 G July 2021, the Facebook post of CAMPUS TV H H covering the Resolution attracted 1,253 likes, 110 I comments and 108 shares. The same or similar content I was also published on the Instagram and/or the website J J of UNDERGRAD and CAMPUS TV. K K (16) The Resolution was also widely reported by the news L L media between 7 July 2021 and 9 July 2021. M M (17) The holding of the the 3rd Meeting and the Resolution N N were extensively covered by various news media and O were all published for public view, particularly between O 7 July 2021 and 9 July 2021. P P Q Q Events after the incitement to wound with intent by D1 to D4 R R rd (18) In response to the 3 Meeting and the Resolution, the S S Government issued public statements condemning the T conduct, including that of D1 to D4. In its statement on T 8 July 2021, the Security Bureau condemned the U U V V  - 16 - A A B B HKUSUC for “beautifying” and treating as heroic the C blatant violence of the attacker who attempted to C murder a police officer [See Annex 3: Government D D press release]. E E (19) On 8 July 2021, the HKU also condemned the F F Resolution for “glorifying violent attacks”. The HKU’s G response was published by UNDERGRAD and G CAMPUS TV on their websites and/or social media H H platforms [See Annex 4: screen capture of HKU’s I response on the Instagram of CAMPUS TV; Annex I 4A: English translation of Annex 4]. J J K (20) After the above events, and not until 0100 hours on 9 K July 2021 did D2 hold a press conference with other L L students dressed in black T-shirts. D2 read out a letter M of apology issued by the HKUSU. He stated that the M Resolution was inappropriate and that the HKUSU did N N not intend to encourage or promote any illegal or O unlawful behaviour. He further said that “as a gesture O of apology”, the HKUSUC will withdraw the P P Resolution and the members of the HKUSU Executive Q Q Committee will resign immediately. D2 explained that R that meant the persons present at the press conference R (who were the members of such Executive Committee) S S will resign. D1 was not present at the press conference. T This press conference was filmed by CAMPUS TV and T was broadcasted live on its Facebook and YouTube U U V V  - 17 - A A B B platforms. The video is still accessible as of 11 C September 2023 [See Annex 5: Transcript of the press C conference; Annex 5A: English translation of Annex 5 D D where D2 was referred to as person A]. E E (21) On 10 July 2021 between 1824 hours and 2252 hours, F F the 4th Emergency Council Meeting of the HKUSUC G Session 2021 (the 4th Meeting) was held. The G proceedings were filmed by CAMPUS TV and H H broadcasted live on its Facebook and YouTube I platforms. This video was deleted by 16 July 2021. The I police was provided with a copy of the video by a J J person (not D1 to D4) when enquiries were made K during the search the HKUSU [See Annex 6: K Transcript of the 4th Meeting; Annex 6A: Translation L L of Annex 6 where D1 was referred to as person A]. M M (22) At the 4th Meeting, D1 continued to act as the N N chairperson whilst D2 to D4 were absent. D3 and D4 O were said to be absent because of private matters. D1 O read out letters from D3 and D4. D3 thanked D1, D2 P P and others for all that he had learnt in Session 2021; he Q wished “HKUSU and our dear city all the best”. D4 Q R also thanked D1 and stated that he was “sorry for all R my inability and cowardice” [See counters 8, 12, 109 S S of Annex 6 and Annex 6A]. During the meeting, the T Motion and the Resolution were rescinded [See T counter 107 of Annex 6 and Annex 6A]. D2’s letter of U U V V  - 18 - A A B B resignation was read out at this meeting. He stated that C “the ups and downs that we have gone through has C made this journey a remarkable one yet with regret”. D D His resignation from his post of president of the E HKUSU Executive Committee was voted upon and E passed as a resolution [See counter 109, 165 of Annex F F 6 and Annex 6A]. G G Police Investigation and search of HKUSU and related H H premises I I (23) On 16 July 2021, the police conducted enquiries at and J J a search of the HKUSU. The police obtained the K relevant footages of the 3rd Meeting. Search of the K premises resulted in the seizure of exhibits, including L L name displays, the constitution, rules and regulations of M the HKUSU and/or the HKUSUC and other similar M documents. Sketches of the premises were made and N N rd photographs were taken, including the venue of the 3 O Meeting. In particular, a copy of a letter purporting to O be “A letter of Apology from the Hong Kong P P University Students’ Union” was found and seized at Q Q the UNDERGRAD office. R R Arrest of D1 to D4 S S T (24) On 18 August 2021, D1 to D4 were respectively T arrested for “Conspiracy to advocate terrorism”. Under U U V V  - 19 - A A B B caution, D2 to D4 exercised their right to remain silent. C Upon arrest and under caution, D1 stated: “I was the C chairman of HKUSUC. I did participate in chairing the D D HKU Students’ Union’s 3rd Emergency Council E Meeting on the evening of the 7 July 2021 that you have E just talked about”. In subsequent cautioned interviews, F F D1 stated, inter alia, : G G (a) he took up the role as chairperson of the H H HKUSUC in March 2021. As the chairperson, he I was responsible for drafting agendas, convening I and holding the HKUSUC meetings; J J K (b) CAMPUS TV would conduct live broadcasts of K the meetings, while CAMPUS TV and L L UNDERGRAD would publish reports relating to M meetings; M N N (c) At the time, D1 as the chairperson hosted and O convened the 3rd Meeting which took place at O 1900 hours on 7 July 2021. He was responsible P P for drafting the agenda. Emergency Council Q Q Meetings would be called to discuss urgent R matters or agenda when the time was insufficient R to call an ordinary Council Meeting. D1 had the S S power to convene such emergency meetings or T pursuant to the joint requests of several T HKUSUC members; U U V V  - 20 - A A B B C (d) He included “To discuss the death of LEUNG C Kin Fai” as an agenda item because some D D students indicated that the Incident was E important and worthy of discussion and he was E of the same view; F F G (e) D1 admitted to have led the attendees to observe G a minute of silence for LEUNG at the meeting; H H I (f) D2 was the proposer and D3 was the seconder of I the Motion. D1 admitted that D3 and D4 made J J statements relating to the Motion but D1 claimed K to have no recollection of what they said; K L L (g) D1 admitted that he knew that the representatives M of UNDERGRAD and CAMPUS TV abstained M from voting on the Motion. He claimed that he N N rd had forgotten who had attended the 3 Meeting; O O (h) D1 understood that the 3rd Meeting would be P P filmed or broadcasted live by CAMPUS TV. He Q Q knew that UNDERGRAD and CAMPUS TV R had social media platforms to broadcast and R publish the proceedings of the meeting to the S S public; T T U U V V  - 21 - A A B B (i) D1 claimed that he should remain neutral at the C meeting and hence he would not proactively stop C any person from speaking as he was worried D D about a conflict of interest. However, D1 E admitted that on previous occasions, he had E stopped students from raising topics relating to F F national unification. At the 3rd Meeting, he was G not sensitive enough to stop students from G raising the matter and he felt remorseful. H H I (25) D1’s digital devices were seized and were subjected to I forensic examination. The police found PDF files in J J D1’s Dell laptop which contain the agenda of the 3rd K and 4th Meetings signed by D1. Those files were found K to have been deleted before D1’s arrest but were L L recovered in the trash folder at 1703 hours on 20 July M 2021. M N N (26) Digital devices of D2 were seized and were subjected O to forensic examination. A document which appeared O to be a draft of the purported “Apology Letter” in P P respect of the Resolution was found in D2’s MacBook. Q Q A copy of the annual report of the Current Affairs R Committee of the HKUSUC in Session 2020 was also R recovered in the same laptop. This showed that D1 to S S D4 had been involved in the activities of that committee T before their common membership in the HKUSUC. T U U V V  - 22 - A A B B Charge 2: “Incitement to wound with intent” C C (27) At the time of Charge 2, D1 to D4 jointly and by their D D individual conduct at the 3rd Meeting, unlawfully E incited other persons to unlawfully and maliciously E wound officers of the Hong Kong Police Force with F F intent to do grievous bodily harm to those police G officers. G H H (28) In particular, D1 to D4 publicly advocated LEUNG’s I wounding of the Police Officer to incite others, I including but not limited to HKUSUC members present J J at the 3rd Meeting as well as persons who had access to K the video of the 3rd Meeting on the websites, news K media and/or social media platforms (which were open L L to the public). At the material time, D1 to D4 knew that M the Incident garnered widespread media publicity and M they committed Charge 2 in that context. N N O Sentencing Principles O P P 6. Wounding with intent under section 17 of the Offences Q Q Against the Person Ordinance, Cap 212 is an extremely serious offence, R the maximum sentence for which is life imprisonment. Pursuant to section R 101I of the Criminal Procedure Ordinance, Cap 221, the maximum S S sentence for incitement to commit wounding with intent is also life T imprisonment. There is no tariff. T U U V V  - 23 - A A B B 7. There is no dispute that the sentencing principles for this type C of cases are set out in HKSAR v Poon Yung Wai [2021] HKCA 510. In C that case, the respondent was convicted of one count of “inciting others to D D take part in an unlawful assembly” at San Uk Ling after trial. At the time, E San Uk Ling was used as a temporary holding centre for protesters arrested E since June 2019 due to unlawful assemblies. The respondent was a user of F F Facebook and was a member of the Facebook group “Not climbing over G the wall is hard; it’s hard not to climb over the wall (exclusively for G political topics)”. During that period, this group had at least 10,000 to H H 20,000 members. At around 0339 hours on 19 September 2019, the I respondent published a post to the group alleging that he had a former I schoolmate who was a “black cop”. He asserted that this schoolmate told J J him after a few drinks that the female detainees in San Uk Ling were raped K (including gang raped) or sexually assaulted by the police whilst many K other detainees committed suicide or were beaten to death. Applications by L L Justices of the Peace to visit the facility were refused. The respondent M subsequently admitted under caution that those assertions were false. M N N 8. The Magistrate sentenced the respondent to 160 hours of O community service. The Court of Appeal held that the sentence was O manifestly inadequate and substituted it with a sentence of 13 months’ P P imprisonment. Q Q R 9. In paragraph 20 of that Judgment, the Court of Appeal listed R some factors which the prosecution urged the court to consider in S S sentencing for the offence of incitement to commit unlawful assembly: T T (1) the manner of incitement and the number of recipients; U U V V  - 24 - A A B B C (2) Whether it was a single incitement or some means was C used to enhance the effect of the incitement; D D E (3) Whether it was spontaneous or premeditated; E F F (4) As regards the unlawful assembly that might take place: G G (a) The contemplated number of people involved; H H (b) The contemplated degree of violence; I (c) The contemplated scale of violence; I (d) The possible consequences; J J (e) The gravity and degree of imminence of the K possible threat; K L L (5) Whether the act of incitement in fact led to an unlawful M assembly or other related illegal acts (even though the M situation was perhaps not yet an unlawful assembly or N N had become more serious, such as a riot); O O (6) The subject location. P P Q Q 10. The Court of Appeal held that: R R “33. Inciting others to commit an offence is a common law offence and one of the inchoate offences. Put simply, a person is S S guilty of incitement if he persuades or encourages another to commit an act which would constitute a crime if done by the T other: R v Curr [1968] 2 QB 944. The offence of incitement was T created to prevent the commission of crimes and therefore it is U U V V  - 25 - A A B sufficient to constitute incitement even if the crime is not carried B out or attempted: R v Higgins [1801] 2 East 5. C C 34. The gravamen of the offence of incitement is to: D (1) stop people from persuading or encouraging others to D commit crime, even if no one so persuaded or encouraged E carried out the crime; and E (2) allow intervention of the law at the earliest possible time F to stop a person who has been incited from carrying out F the relevant crime. G G 35. With regard to the penalty for the offence of incitement, section 101I(2)(c) of the Criminal Procedure Ordinance H provides: H “Where a person is convicted of – I Incitement, to commit an offence for which a maximum I penalty is provided by any Ordinance and no penalty is J otherwise provided by any Ordinance for such… J incitement, he shall be liable to be sentenced to that maximum penalty.” K K 36. The maximum penalty provided by section 101I(2)(c) for L the offence of incitement is the one for the crime the subject of L the incitement since the offence of incitement requires there to be a target crime. The culpability of that crime does necessarily M relate to the inciter’s culpability for his incitement as he incited M another person to commit the crime despite not committing it himself. Consequently, in determining sentence for a person who N N has committed the offence of incitement, consideration needs to be given to the crime incited by him as well as its culpability and O sentence; the approach to consideration should depend on the O actual circumstances of the case. In general, the factors submitted by (the prosecution) as set out in [20] above are of P some reference value for the offence of incitement to unlawful P assembly. In any given case, whether these factors are applicable Q or whether there are any other factors that need to be considered, Q and the application of an applicable factor in assessing the offender’s culpability are dependent on the actual circumstances R of the case. R 37. The present case concerns inciting others to commit S S unlawful assembly involving violence. In Wong Chi Fung, the Court of Appeal and the Court of Final Appeal both emphasised T that unlawful assembly involving violence was a serious offence T for which the court was required to give sufficient consideration to deterrence and punishment in sentencing. Likewise, inciting U U V V  - 26 - A A B others to commit unlawful assembly involving violence is of B course a serious offence for which the court is also required to C do the same in sentencing. In addition, the facts of the offence C committed by the respondent were grave, which considerably aggravated his culpability, and the court must severely punish D and deter. D E 38. First, according to the general sentencing principles, the E context of offending is of relevance to the gravity of an offence and the culpability of an offender: see Tse Chung, at p 458; F Divin, at [20]. In the present case, the respondent committed the F offence amid a series of persistent, serious and violent confrontations and illegal acts in Hong Kong, among which were G G many large-scale protracted riots or unlawful assemblies involving violence that affected extensive areas or quite a H number of places. The respondent’s inciting others in this social H context and under these circumstances to commit unlawful assembly involving violence clearly increased the risk of I breaking social peace and order. I J 39. Second, the respondent incited others to take part in an J unlawful assembly targeting the San Uk Ling Holding Centre, which was then a temporary holding centre for the police to cope K with large-scale arrests in their operations against unlawful K meetings. By targeting the police facility, the respondent not L only intended to impede the police’s work there but also made a L direct challenge to the law enforcement by the police, in particular, their enforcement in response to the severe threat to M social order Hong Kong was facing at the time. M 40. Third, related to the second point is that the respondent N N described, in the 1st post, police officers at the San Uk Ling Holding Centre as “black cops”, smearing them by saying that O they sexually molested female protesters in ways that were O extreme and cruel, that some male protesters were even “beaten to death alive” and that requests for visits from Justices of the P Peace who had received reports were declined. The respondent’s P wordings and accusations could very easily stir up in readers of Q the post intense dissatisfaction or even disgust for the police, and Q could lead to deepened distrust of, or even animosity towards, the police on the part of the readers, especially those who already R had suspicion or dissatisfaction against the police. This would R undermine the credibility of the police and, in turn, affect their enforcement of the law. S S 41. Fourth, the respondent posted the posts in question in an T online group having more than 10,000 members. It is common T knowledge that messages posted on the internet can circulate rapidly and widely. The respondent, in choosing to incite by U U V V  - 27 - A A B means of this, albeit without specifying the time, obviously B intended to incite, as soon as possible, many people to go to San C Uk Ling Holding Centre for a violent unlawful assembly. His C conduct aggravated his culpability: see Blackshaw, at [73]; Yiu Ka Kiu, at [28]. D D 42. Fifth, the contents of the posts in question were all E fabrications. In order to boost his credibility, the respondent even E made up a character of a “black cop former schoolmate” who told him after drinking. Some members in the Group said that F they believed what was stated in the posts. When some other F members remarked that they did not, the respondent argued with them, insisting all the time on the truthfulness of the contents of G G his posts. This is compounding the wrongdoing knowingly committed. H H 43. On the whole, the respondent’s culpability is very high, necessitating a sentence of sufficient punishment and deterrence. I Immediate custody is the only appropriate sentencing option.” I J J 11. In R v Umran Javed [2008] 2 Cr App R(S) 12, the English K Court of Appeal held that in sentencing inchoate offences that can lead K others to commit the target crime: L L M “… it is material to have regard to the period of time covered by M the offending, the sophistication, skill and industry devoted to it, and the likelihood that the offending would lead others to N commit acts of [the target crime], or may even have done so.” N O O Whether Charge 2 is an Excepted Offence P P 12. In his written submissions, counsel for D3, Mr Steven Kwan, Q Q stated that “if sentence is passed immediately on 11 September 2023, R s.109A of the Criminal Procedure Ordinance (Cap 221) would be relevant. R However, if sentence is passed on or after 17 September 2023, s.109A S S would not be applicable to D3”. T T U U V V  - 28 - A A B B 13. The court queried the applicability of s.109A of the Criminal C Procedure Ordinance as wounding with intent is an Excepted Offence C under Schedule 3 of that Ordinance. In answer, Mr Kwan replied that only D D the actual offence of “wounding with intent” was an Excepted Offence. He E drew the court’s attention to Schedule 3 of the Ordinance, which states: E F F “Excepted Offences The following offences are declared to be excepted offences – G 1. Manslaughter. G 2. Rape or attempted rape. 3. Affray. H H 4. Any offence against section 4, 5 or 6 of the Dangerous Drugs Ordinance (Cap 134). I 5. Any offence contrary to section 10, 11, 12, 13, 14, 17, I 19, 20, 21, 22, 23, 28, 29, 30, 36 or 42 of the Offences against the Person Ordinance (Cap 212). …” J J K 14. Mr Kwan argued that only offences explicitly listed under K Schedule 3 constituted an Excepted Offence. For rape, the inchoate form L L of attempted rape was so listed. However, this was not the case for the M offences under the Offences Against the Person Ordinance. On that basis, M he concluded that all inchoate forms of the offences under the Offences N N Against the Person Ordinance are NOT Excepted Offences. O O 15. Apart from the issue of whether Charge 2 was an Excepted P P Offence, there was another legal argument put forward by D2 (which is Q dealt with below). Firstly, the prosecution must be given time to reply to Q the defence arguments. Secondly, the issues raised by D2 and D3 may also R R have an impact on the sentence of the other defendants. Counsel for the S other defendants must also be given time to properly consider the matter, S to see if they would join in the argument. In those circumstances, the matter T T U U V V  - 29 - A A B B was adjourned to 20 September 2023 for argument and the parties were C directed to file written submissions (if any). C D D 16. Counsel for the 4 defendants filed a Joint Submission on 18 E September 2023 (the Joint Submission). They pointed out that section E 109B(1) of the Criminal Procedure Ordinance, Cap 221 provides: F F G “A court which passes a sentence of imprisonment for a term of G not more than 2 years for an offence, other than an excepted offence, may order that the sentence shall not take effect, unless, H during a period specified in the order, being not less than 1 year H nor more than 3 years from the date of the order, the offender commits in Hong Kong another offence punishable with I I imprisonment and thereafter a court having power to do so orders under section 109C that the original sentence shall take effect.” J J 17. Section 109G of the Criminal Procedure Ordinance provides: K K L “In sections 109B, 109C, 109D, 109E and 109F… excepted L offence means an offence declared to be an excepted offence by Schedule 3;” M M N 18. Counsel for the 4 defendants argued that: N O O (1) Incitement to commit a substantive offence is a P common law offence punishable under s.101I(2) of the P Criminal Procedure Ordinance; Q Q R (2) Section 109G deliberately omits to mention any R inchoate offence to commit the excepted offences S S declared under Schedule 3; T T U U V V  - 30 - A A B B (3) Some (but not all) of the offences in Schedule 3 are C inchoate offences (for example, attempted rape under C paragraph 2; attempt to administer poison, shoot or D D drown; attempt to murder; attempt to choke, suffocate E or strangle and attempt to apply or administer E chloroform under paragraph 5; attempted indecent F F assault under paragraph 6). G G 19. The defence cited the Court of Appeal’s decision in AG v H H Chan Ka Shu CAAR 4/1984 in support of their argument. In that case, the I respondent, aged 18 at the time of the offence, was convicted of conspiracy I to rob after trial. The Attorney General applied for a review of sentence J J after the respondent was sentenced to Detention Centre. The Court of K Appeal found that the sentence was manifestly inadequate and substituted K the Detention Centre Order with a Training Centre Order. L L M 20. The defence only cited part of the Court of Appeal’s M observations and omitted parts which are wholly relevant: N N O “Mr Duckett for the applicant drew our attention to a number of O decisions of this court. It is unnecessary to go into those in any detail. Each of the three cases to which he referred were P P instances of actual kidnapping, the charges being laid under Section 42 of the Offences Against Person Ordinance, for which Q the maximum sentence is 14 years. Under the law as it was at Q the time when the judge dealt with the present case conspiracy attracted a maximum sentence of 7 years only. R R The decisions to which Mr Ducker has referred to us are useful only to the extent that in each case the Court of Appeal stressed S the gravity of the nature of this offence. In only one of those S cases was a sentence actually reduced. That was on the basis that the trial judge, in imposing sentence, had been under the T misconception that the maximum was life imprisonment. The T term of 12 years imposed was therefore considered by the U U V V  - 31 - A A B appellate court to be too close to the real maximum of 14 years B to be sustained under circumstances disclosed in that case… C C The judge was at the time of the trial entitled and indeed obliged, by virtue of s 109A of the Criminal Procedure Ordinance to D regard rehabilitation as the paramount consideration. Since then, D the law has been altered and the maximum which now E applies in respect of conspiracy is life imprisonment. E Although, technically speaking, the offence will still remain a non-excepted offence under Section 109A that is now so F technical a distinction that one would incline to the view that, F in dealing with such offences in the future, the courts will not be entitled to consider rehabilitation in the way in which it G G was considered in the present case…” H H 21. The defence submitted that in that case is also supported by I the interpretative principle of expressio unius exclusio alterius (the express I provision of one thing implies the exclusion of everything else). They J J argued that the fact that the Legislature decided to expressly include some K inchoate offences in Schedule 3 of the Criminal Procedure Ordinance K implies that it did not intend to include other inchoate offences not L L expressly included therein. They cited Bennion, Bailey & Norbury on M Statutory Interpretation (8th edition): M N N “The principle of construction can be… explained based on the argument that (unless some other reason appears) there was no O O reason to mention some only of the possible items unless the intention was that they were to be the only ones dealt with, so P that the rest are excluded… it is doubtful whether the maxim P does any more than draw attention to a fairly obvious linguistic point, viz that in many contexts the mention of some matters Q warrants an inference that other cognate matters were Q intentionally excluded” (paragraph 23.12). R R 22. The defence argued that had the Legislature intended to S S include an incitement to commit an excepted offence in Schedule 3 to the T Criminal Procedure Ordinance, it can be easily achieved by an amendment T to the schedule under section 124 of the same Ordinance, in the same way U U V V  - 32 - A A B B that it did in relation to the offence of rape or indecent assault. They C proceeded to invite the court to consider a suspended sentence. C D D 23. In reply, the prosecution pointed out that on the face of E Schedule 3, it appears that attempts to commit only certain Excepted E Offences were expressly included in Schedule 3 of the Criminal Procedure F F Ordinance. However, they pointed out that the Court of Appeal’s G observation in Chan Ka Shu (supra) was obiter dicta. The defence G conceded that the question as to whether inchoate forms of Excepted H H Offences were included in Schedule 3 was not an issue in that case and the I matter was not fully argued. I J J 24. I have considered the arguments very carefully. I agree with K the prosecution’s observations in Chan Ka Shu was obiter dicta without K hearing full legal arguments. I wholly disagree with the analysis of L L Schedule 3 by the defence. M M 25. The answer to this issue is to be found in the way that Charge N N 2 is framed and the wording of paragraph 5 of Schedule 3. The Statement O of Offence of Charge 2 is: O P P “Incitement to wound with intent, contrary to Common Q Law, section 17(a) of the Offences Against the Q Person Ordinance, Cap 212, and punishable under R section 101I of the Criminal Procedure Ordinance…” R S 26. Firstly, Incitement is not an offence by itself. Only incitement S to commit a “target offence” carries criminal liability. That is why the T T charge is always framed to include the “target offence”, as was the case U U V V  - 33 - A A B B here. In the present case, the defendants were charged and convicted of an C offence under section 17 of the Offences Against the Person Ordinance. C D D 27. I also disagree that the Legislature had expressly omitted the E inchoate forms of the offence. Paragraph 5 of Schedule 3 provides that E “ANY offence contrary to section… 17 of the Offences Against the Person F F Ordinance…” is an Excepted Offence. The inchoate forms of this offence G have not been excluded. Charge 2 comes within the wording of Schedule G 3. Therefore, the maxim expressio unius exclusio alterius does not apply. H H I 28. By reason of the aforesaid matters, it was unnecessary for I Schedule 3 to mention the different inchoate forms of the offence. J J K 29. In my judgment, Charge 2 is an Excepted Offence. Even if I K were wrong, the discussion is purely academic. All the defendants are over L L 21. As explained below, there are a number of very serious aggravating M features in the present case. The present case is much more serious than M Poon Yung Wai in many respects. In that case, the Court of Appeal has N N already pointed out that the appropriate sentence is one of immediate O custody. A suspended sentence suggested by the defence is wholly O unrealistic; any order other than a substantial immediate custodial term P P would be manifestly inadequate and would be sending a wrong message to Q Q the rest of society. R R Sentences in Similar Cases S S T 30. Apart from Poon Yung Wai (supra), the defence refer to the T sentences passed in similar cases, the background for some of which was U U V V  - 34 - A A B B identical to the present case. Counsel for D1, D2 and D4 then asked this C court to compare the present case with those cases. The cases include 香港 C 特別行政區 訴 葉倩敏 [2023] HKDC 768, 香港特別行政區 訴 黎哲 D D [2023] HKDC 1185, 香港特別行政區 訴 趙浩楠 [2023] HKDC 8, 香港 E E 特別行政區 訴 鍾志超 [2023] HKDC 629 and 香港特別行政區 訴 蕭張 F 龍 [2021] HKDC 1534。 F G G 31. Firstly, apart from Poon Yung Wai (supra) all the other cases H are District Court cases. It is trite law that those cases are not authorities H and are not binding on this court. I I J 32. Secondly, although the social context and background of J some of the cases are identical to the present case, there are marked K K differences between the facts of each case. In Poon Yung Wai, the Court L of Appeal held that “in determining sentence for a person who has L M committed the offence of incitement, consideration needs to be given to the M crime incited by him…”. In 葉倩敏 , the target offence was unlawful N N assembly which carries a maximum sentence of 5 years’ imprisonment, O whereas Charge 2 in the present case carries a maximum sentence of life O imprisonment. The words of incitement, the intended audience, the P P language used and the number of persons involved in the cases mentioned Q by the defence are also different from the present case. For example, in all Q of those cases, the defendant committed the offence alone, whereas in the R R present case, it was a joint enterprise. In some of the cases, the inciting S words were published within a limited group. In 蕭張龍, the inciting words S T were published in a Telegram group that had over 20,000 members. In 黎 T 哲 and 鍾志超, the offending posts were published in LIHKG which is U U V V  - 35 - A A B B only popular in Hong Kong and Chinese speakers. In 趙 浩 楠 , the C incitement was published in both LIHKG and a Telegram group. In 葉倩 C 敏 , the inciting words were published in a Telegram group with about D D 10,000 members together with Facebook and Instagram which were open E E to the public. In all those cases, the inciting words were in Chinese. In the F present case, the offending words were published on Facebook, Instagram F and YouTube. Some of the words were in both Chinese and English and G G the publication was accessible to the public, both locally and H internationally. H I I 33. As the Court of Appeal has repeatedly emphasised, sentences J in other similar cases are of limited guidance. Each case must be sentenced J on its own facts. Lamentably, those decisions appear to have fallen on deaf K K ears. This was emphasised again by the Court of Appeal in 2 recent cases: L L (1) In 香 港特 別行 政 區 訴 唐 健帮 及 另二人 CAAR M M 13/2022 [2023] HKCA 896 第 35 段，上訴法庭重申： N N 「第一，雙方於本案存檔了多份區域法院的判刑理由 O O 書，希望法庭藉此支持己方立場，本庭在律政司司長 訴 溫達揚一案第 27 段已指出： P P 「…因為這些判刑，從來就沒有經過上訴而被 Q 肯定，也沒有什麼量刑原則可言，對量刑既沒 Q 有約束力也沒有參考價值，根本起不了任何指 R 導作用，根本不應稱之為「案例」…」 R 況且，「有意圖而傷人」及「暴動/非法集結」罪的案 S 情，以及某被告人的背景、犯案動機、於該案所扮演 S 的角色等事項，可謂千變萬化，任何單純對案件判刑 T 作出比較的做法，都不能協助本庭處理原審判刑是否 T 恰當這個議題。歸根究底，控罪要旨（gravamen of the U U V V  - 36 - A A B offence）及適用的量刑因素才是重點所在，而非個別 B 案件的判刑。」 C C (2) In 香 港 特 別行 政 區 訴 劉 晉 旭 及另 三人 CACC D D 243/2021, [2023] HKCA 1098, the Court of Appeal E E again felt the need to stress at paragraph 51: F F 「在完結前特別一提，申請方曾在他們的書面陳詞援 G 引區域法院另一宗二號橋暴動案的原審判刑（香港特 G 別行政區 訴 陳起行 [2021] HKDC 874），作為適用 蔡家輝案的支持點以支持本案量刑基準過高的主張， H H 結果終被勸退。本庭已在過往指出過多次，在今年的 律政司司長 對 唐健帮及另二人 [2023] HKCA 896（判 I 案理由書日期：2023 年 8 月 25 日）又再重申：未經 I 上訴的原審判刑對同級法院沒有約束力，對上訴法庭 J 也沒有任何參考價值，作上訴時的依據。」 J K K Factual Basis of Sentence L L 34. Leading Counsel for D1 first dealt with the principles in M M dealing with the factual basis of sentencing. He referred to §21-36 of N Sentencing in Hong Kong (10th Ed): N O O “… In the absence of any specific finding on a point of mitigation, a sentence should, unless the court decides to hear P evidence and resolve the issue itself, be passed to reflect the P factual version most favourable to the accused: R v Hiroyuki Sato [1994] 1 HKCLR 119, 121, [1994] HKCU 223, [7]; HKSAR v Q Q Chow Kam Lung [2010] 6 HKC 49, 52…” R R 35. I accept that principle. However, not only were some of the S submissions contrary to the admitted evidence, they were contradicted by S the documents produced by the defence. I will now deal with them in turn. T T U U V V  - 37 - A A B B Submissions from D1 C C 36. Leading Counsel submitted that “any suggestion that (D1) D D called the 3rd Meeting and provided the other defendants a platform to E discuss the impugned motion must be refuted”. He argued that D1 was E merely hosting the HKUSUC meetings and facilitating the discussion of F F the councillors in the course of carrying out his duties as the Chairperson. G He pointed out that as the Chairperson, it was not D1’s duty to propose G policies. He was also not the proposer or seconder of the Motion. Secondly, H H Counsel submitted that the agenda was drafted in neutral terms (namely, to I discuss the death of Mr Leung Kin Fai”). During the cautioned interview, I D1 explained that the item was included in the agenda because “there were J J students indicating that the incident was important and worthy to discuss, K and he thought the same”. K L L 37. Those submissions are wholly contrary to the admitted M evidence and cannot be accepted. M N N 38. The function of the HKUSUC is set out in Section VII Article O 1 of “The Constitution of the Hong Kong University Students’ Union” O (The Constitution) [See page 66 of D1’s Mitigation Bundle]: P P Q “Article 1 - Function Q The function of the Union Council shall: R (a) represent Members of the Union in such matters as affect R their interests; (b) afford a recognised means of communication between S the Union and the University authorities.” S T T U U V V  - 38 - A A B B 39. Section VII Articles 11 and 12 of the Constitution (pages 66 C to 67 of D1’s Mitigation Bundle) which govern meetings of the HKUSUC C and the business to be transacted at such meeting provide: D D E “Article 11 - Meeting E (a) The Union Council shall meet at least once every Semester. F (b) Meeting of the Union Council shall be convened by the F Chairperson of the Union Council at his/her initiative, or at the request of the President of the Union or any Union G G Councillor seconded by three Union Councillors. (c) A notice of all Union Council Meetings and the agenda H thereof shall be posted five clear days beforehand. Such H notice and agenda shall be sent to each Union Councillor and Official Observer. I (d) … I (e) … J (f) An Emergency Meeting of the Union Council shall be J convened by the Chairperson of the Union Council at his/her initiative, or at the request of the President of the K Union or any Union Councillor seconded by three Union K Councillors. A notice of any such meeting and the agenda L thereof shall be posted one clear day beforehand… L Article 12 - Business M (a) To receive and consider, and approve, or amend and M approve the annual budget estimates of Union Income and Expenditure at the beginning of each Union Session. N N (b) To elect four Vice-Patrons, one Honorary Treasurer, one Honorary Legal Advisor, one Honorary Archivist and O one Honorary Auditor of the Union to hold office for O particular Union Session(s). (c) To receive and adopt the Annual Report of the previous P Union Session prepared by the Union Executives, the P Undergrad, the Campus TV and Popularly Elected Union Q Councillors at the beginning of such Union Session. Q (d) To receive and adopt the Honorary Treasurer’s report and the audited Statement of Accounts and Balance Sheet R prepared to the end of the previous Calendar Year. R (e) To establish Committees ad hoc when necessary… (f) To appoint the members of all Standing Committee of the S S Union Council. (g) To receive and consider, and approve or reject T applications from organisations for affiliation to the T Union. U U V V  - 39 - A A B (h) To consider any proved, grievance, or alleged B infringement of the Union Constitution, and all such C matters as may be placed before the Union Council by C any member of the Union or a Sub-organisation, and deemed necessary, to adjudicate upon, or act in all such D cases. D (i) To frame by-laws from time to time. E (j) To conduct any Union Business not explicitly conferred E on any other body.” F F 40. It is obvious that the Incident had nothing to do with the G students’ interests or the Union’s communication with the University and G does not come within the meaning of “Business” in the Constitution. H H I 41. There is no dispute that in the early hours on 5 July 2021, D1 I as the Chairperson of HKUSUC gave notice of the 3rd Meeting, to be held J J in the evening of 7 July 2021. That meeting was an Emergency meeting K with only one clear day’s notice [See paragraph 10 of the Amended K Summary of Facts]. L L M M 42. D1 admitted that he drafted the agenda for the 3rd Meeting. N Agendum A only related to correspondences (which were apologies for N non-attendance) and adoption of the agenda [See counters 3 to 7 of Annex O O 2 and 2A). The real business to be dealt with at the 3rd Meeting was set out P in Agendum B. The first item on that Agendum was “To discuss the death P of Mr Leung Kin Fai” [See counter 7 of Annex 2 and 2A]. The fact that the Q Q Incident was placed as the first item shows the importance D1 placed on it. R The other items on the agenda were “To Establish the working group on R Union Restructuring [Agendum B2 counter 154 of Annex 2 and 2A]; To S S consider and approve the Audited Financial Statements of Session 2028 T [Agendum B3, counter 163 of Annex 2 and 2A]; To enact the English T version of the Orientation Regulation [Agendum B4, counter 170 of Annex U U V V  - 40 - A A B B 2 and 2A]; To enact the English version of another document regarding C Orientation 2021 [Agendum B5 counter 188, 261 of Annex 2 and 2A] and C To discuss the Union’s relationship with the University of Hong Kong D D [Agendum B6, counter 263 of Annex 2 and 2A].” Those were all routine E matters and there was nothing urgent which necessitated an Emergency E Meeting. In fact, D1 admitted in his 3rd video-recorded interview that he F F thought that the Motion was important and would impact the society, so G important that he decided to read it out twice [See counter 619 at page 168 G of D1’s Mitigation Bundle]. H H I 43. Not only was the topic of Leung made the first item of the I agenda for the 3rd Meeting, D1 opened the meeting with the following J J words [counter 1 of Annex 2 and 2A and paragraph 13 of the Amended K Summary of Facts]: K L L “I now invite the Union Council to rise and observe a minute of silence as we remember the honourable sacrifice of Mr Leung M Kin Fai, a fellow citizen of Hong Kong on the 1st of July 2021。 M 本席現在邀請全體嘅評議員起立，為於二零二一年七月一 N 日，為香港犧牲的梁健輝先生默哀一分鐘…” N O O 44. I also disagree that D1 as the Chairperson of the HKUSUC P was merely hosting the 3rd Meeting to facilitate discussion of the P rd councillors. As was admitted by D1 in his 3 video-recorded interview, Q Q they only knew that Leung stabbed the Police Officer and thereafter R committed suicide. The police has not yet released further information of R the investigation. The full circumstances of the Incident, the reasons or S S motive behind LEUNG’s attack were unknown. In fact, D1 did not even T know if Leung was a mental patient (counters 425 and 445 of D1’s 3rd T video-recorded interview). There was no basis for any discussion. U U V V  - 41 - A A B B C 45. Throughout the investigation and these proceedings, D1 has C been trying to hide behind the provision for neutrality of the Chairperson. D D He has been trying to shirk his responsibility, blaming the other defendants E and members of the HKUSUC. E F F 46. It is true that pursuant to the Constitution: G G (1) The Chairperson is not a member of the Executive H H Committee of the HKUSUC and it is for the Executive I Committee to decide on policy matters (See Section I VIII Articles 1 and 2 of the Constitution at page 68 of J J D1’s Mitigation Bundle); K K (2) The Chairperson of the HKUSUC is not allowed to L L move, second or vote upon motions unless he is vacated M from the chair (See Section VII Articles 7(a) and (b) of M the Constitution at page 65 of D1’s Mitigation Bundle); N N O (3) The Chairperson does not have a right to speak in O discussions of any motion [See Section VII Article 7(c) P P of the Constitution and Section E, clause 4 of the Q Q Standing Orders of the Hong Kong University R Students’ Union Council (the Standing Orders) at pages R 65 and 90 of D1’s Mitigation Bundle]; S S T 47. Although D1 did not propose, second, or vote on the Motion, T he made it clear at the outset of the meeting that he had a predisposed stance U U V V  - 42 - A A B B about the Incident. He was not at all impartial and made his views known C to the Council before any of the purported discussions. This was reinforced C after the Resolution was passed, when D1 stated [counter 84 of Annex 2 D D and 2A]: E E 「…希望咁多位評議員大家節哀啦，咁我會嘗試盡力將大家 F 嘅誒尊敬之情呢轉達畀…梁先生嘅屋企人。」 F G 48. I also disagree that the agenda in relation to the Incident was G H drafted in neutral terms. Leung chose to commit suicide. On the other hand, H the Police Officer was only carrying out his duty but was injured as a result I I of an extremely violent and cold-blooded attack with a dangerous weapon. J In his 3rd video-recorded interview, D1 admitted that he did not know the J condition of the Police Officer and that the officer may well die from his K K injuries [See counter 784 at page 188 of D1’s Mitigation Bundle]. If the L defendants were genuinely concerned about the Incident, the Police Officer L should have been mentioned. Yet, there was no proposed discussion about M M the attack. N N 49. Leading Counsel for D1 also submitted that the HKUSUC O O page on Facebook had minimal coverage. After the agenda of the 3rd P Meeting was posted, there were only 6 reactions including negative P responses, most of which were angry emojis. Although there were 48 Q Q replies, none of those replies were relied on by the prosecution. R R 50. Contrary to what is alleged in mitigation, it was admitted that S S the agenda was not only published on the HKUSUC Facebook page, it was T circulated to all Union Council members. There is no dispute that that T Facebook page was open to the public and had 4,517 followers as at 17 U U V V  - 43 - A A B B August 2021. That post remains accessible as at 11 September 2023 [See C paragraphs 10 and 11 of the Amended Summary of Facts]. C D D 51. D1 knew that the proceedings of HKUSUC meetings E (including the 3rd Meeting) were filmed by CAMPUS TV [paragraph 12 E of the Amended Summary of Facts]. In fact, he was a member of the F F Executive Committee of CAMPUS TV [See Section XI Article 2(a) of the G Constitution at page 74 of D1’s Mitigation Bundle]. He knew that the G proceedings would be broadcasted live on the Facebook and YouTube H H platforms of CAMPUS TV and UNDERGRAD, which is also open to the I public, both locally and internationally. That footage was viewed a total of I 122 times but was taken down by 16 July 2021 [See statistics produced by J J D3 and paragraph 12 of the Amended Summary of Facts]. As was the usual K practice, the written text of the Resolution was published by both K CAMPUS TV and UNDERGRAD. As at 1240 hours on 17 August 2021, L L the Facebook post on the UNDERGRAD’s page attracted 253 likes, 65 M comments and 14 shares. As at 1805 hours on 21 July 2021, the post on the M Facebook page of CAMPUS TV attracted 1,253 likes, 110 comments and N N 108 shares. Similar content was also published by UNDERGRAD and O CAMPUS TV on their Instagram accounts and websites [See paragraphs O 14 to 15 of the Amended Summary of Facts]. Save for YouTube, the above P P figures only reflect the number of people who reacted to the posts and not Q Q the number of people who had viewed them. The submission that there was R minimum coverage is a complete misrepresentation. R S S 52. Further, the Court of Appeal has already dealt with a similar T argument in Poon Yung Wai and labelled it erroneous. The Court of T Appeal explained that: U U V V  - 44 - A A B B “41. Fourth, the respondent posted the posts in question in an C C online group having more than 10,000 members. It is common knowledge that messages posted on the internet can circulate D rapidly and widely. The respondent, in choosing to incite others D by means of this, … His conduct aggravated his culpability: see Blackshaw, [73]; Yu Ka Kiu, [28]… E E 44. Mr Tam contended that the respondent’s posts, whose F contents were plainly false and incredible, generated little F response and the majority of the responses questioned what was said; at the end, the incitement to an unlawful assembly at the G San Uk Ling Holding Centre was not acted on. The Magistrate G held the same view and that was the main reason she sentenced H the respondent to community service. H 45. This court does not accept these arguments because: I I (1) they ignored the gravamen of the offence of incitement in preventing the commission of crime. The respondent J J committed the offence of inciting others to unlawfully assemble when he posted the posts in question. The court K should assess his culpability against the then K circumstances, including factors such as the context, the place and individuals targeted, the modus operandi; and L the risk of undermining law and order. The incitement to L an unlawful assembly which would involve violence at M the San Uk Ling Holding Centre, if acted on, would M aggravate the respondent’s culpability, but that it did not come to fruition would not mitigate his culpability. This N court’s view can find support in Divin, where against the N backdrop that riots had broken out in a number of cities O and districts in England, which had been widely reported O by the media in Scotland, the appellants incited others to take part in a riot in Scotland by means of Facebook. The P High Court of Justiciary stressed at [20] of its judgment P that even though riots had not spread to Scotland, the appellants’ culpability was quite high irrespective of the Q Q terms they used or the responses posted by members of the public. The same applies in the present case. R R (2) due to these erroneous arguments, the Magistrate failed to properly assess the respondent’s culpability.” S S T 53. Leading Counsel added that D1 only read out the Motion as T an impartial Chairperson. He did not tamper with the contents. He believed U U V V  - 45 - A A B B albeit wrongly that he had no power to disallow the Motion proposed by a C member of the HKUSUC. C D D 54. This submission is also erroneous. In his 3rd video-recorded E interview, D1 suggested that he was not aware of the wording of the E Motion before he read it out. Once the Motion was proposed and seconded, F F he had no choice but to put the Motion to the vote [See counters 542 and G 570 at D1’s Mitigation Bundle page 159 and 162]. This is untrue. Under G the Standing Orders, the Chairman has the power to “direct the discussion”. H H D1 admitted in the 3rd video-recorded interview that he had the power to I stop inappropriate discussions [See counter 455 at page 150 of D1’s I Mitigation Bundle]. Further, D1 was clearly aware of this power and in fact J J exercised it during the 3rd Meeting to reserve item B6 on the agenda as K discussion was premature. K L L 55. Leading Counsel further stated that D1 was blindsided by the M need for impartiality, which made him insensitive to screen inappropriate M agenda items, observance of silence and motions. As explained above, D1 N N rd was not impartial at all. He drafted the agenda and gave notice of the 3 O Meeting. He had ample time to consider what he was going to say (if O anything). He made his predisposed stance clear at the commencement of P P rd the 3 Meeting. Q Q R 56. Lastly, Leading Counsel pointed out that at the time of the 3rd R Meeting, the content of LEUNG’s “will notes” in the 8 USBs had not yet S S been revealed to the public. This is a double-edged sword. It also means T that D1 had absolutely no reason to conclude that Leung had made an T “honourable sacrifice” for Hong Kong. U U V V  - 46 - A A B B C 57. In the light of all the matters mentioned above, it was clear C rd that the 3 Meeting was engineered by D1 to provide a platform to glorify D D the Incident. E E D2’s Submissions F F G 58. Counsel submitted that at the outset, D2 opposed addressing G the Incident in the manner proposed and he declined to call the 3rd Meeting. H H I 59. As is evident from Article 11 of the Constitution mentioned I above, D2, as the President of the Union may request a meeting provided J J that his request is supported by 3 other Union Councillors. Even then, only K the Chairperson of the HKUSUC has the power to convene a meeting. K L L 60. D2 was clearly supported the way that the Incident was M addressed. The agenda (which included the purported discussion of the M Incident) was passed unanimously [See counter 7 of Annex 2A]. D2 N N admitted that he was the proposer of the Motion, which stated as follows O [See counter 9 of Annex 2 and 2A; paragraph 24(f) of the Amended O Summary of Facts]: P P Q “The motion that the Union Council expresses its deep sadness Q in the death of Mr Leung Kin Fai offer its sympathy and R condolences to his family and friends. Appreciate his sacrifice to R Hong Kong”. S S 61. D2 then proceeded to explain the reason behind the Motion T [paragraph 13(c) of the Amended Summary of Facts and Counter 8 of T Annex 2 and 2A]: U U V V  - 47 - A A B B 「係，多謝主席…一個星期之前梁健輝，即係梁烈士佢身重 C C 不治，咁政權唔單止將佢嘅行為定義為孤狼式恐怖襲擊，更 加將所有嘅悼念情況都定性係犯法，但係其實梁健輝先生同 D 埋…兩年前，因為反送中運動而逝世嘅梁凌傑先生，其實都 D 係為香港付出咗好多，同埋為香港犧牲咗性命嘅一個烈士。 E 咁所以除咗啱啱嘅默哀儀式之外，我希望學生會可以…以一 E 個 motion 嘅形式去悼念梁烈士，喺寫入我哋自己 Union 嘅 F 歷史入面…」 F G 62. Notice of the 3rd Meeting was given in the early hours of 5 G July 2021. If D2 did not agree with it, he does not have to attend the H H meeting. Any Union Councillor could have proposed the Motion. If D2 did I not agree with it, he was not required to propose, speak about or vote in I favour of the Motion. As soon as the Motion was read out, D1 invited D2 J J to speak, without any indication from D2 that he would propose the Motion K [See counter 7 of Annex 2 and 2A]. There was clearly a prior agreement K L for D2 to be the proposer. Counsel’s statement is not only misleading, it is L contrary to the admitted evidence. M M N D3 N O O 63. Counsel submitted that D3 did not call the 3rd Meeting, or P draft the agenda. Counsel asserted that D3 only decided to second the P Motion after hearing the reasons behind it. Q Q R 64. Firstly, as explained above, it was not a matter of choice. R Under Article 11 of the Constitution, only the Chairperson has the power S S to call a meeting. After the Motion was read by D1 and after D2’s speech, T there was no need for D1 to ask if anyone was prepared to second the T Motion. D1 knew that D3 was the seconder [See counter 9 of Annex 2 and U U V V  - 48 - A A B B 2A]. It was clear that there was a prior agreement for D3 to second the C Motion. C D D 65. Counsel submitted that D3 did not take the initiative to speak E after the Resolution. He was invited by D1 to speak. D3 did not advocate E for violence. The focus of his speech was to mourn the dead, instead of F F glorifying him. G G 66. That submission is again misleading. D3 was the seconder of H H the Motion, which glorified LEUNG’s crime as a “sacrifice” for Hong I Kong. His speech must also be assessed in the context of the observation I of silence, and the speeches of D1, D2 and D4. The incitement is not J J restricted to the events prior to the passing of the Resolution. D3 made a K speech after the Resolution was passed which was also broadcasted to the K public [See counter 81 of Annex 2 and 2A]. He was clearly glorifying the L L Incident. He said: M M 「多謝主席，李國賢堂學生會代表杜林丞亨，…希望真 N 係…Union Council 各位…即係之後大家都會…即係可能而 N 家呢一年…，歷史都被篡改，開始被篡改嘅時候，希望大家 O 係真係記得梁烈士為香港作出嘅犧牲…呢件事發生咗都只 O 係七日，香港警方…已經開始係用種種嘅理由去扼殺香港人 P 去悼念喇，或者係講返真相嘅一啲嘅行動咁樣。咁希望…各 P 位香港人，各位港大同學，係可以去…即係最少做到最少嘅 嘢都係至少去銘記番個真相，同埋去盡做喇，即係可能係一 Q Q 啲悼念嘅活動咁樣，都可以自己去做返自己一個香港人嘅本 分…」 R R S 67. Counsel continued to submit that D3 had no control over the S rd broadcasts of the proceedings of the 3 Meeting. This submission was T T echoed by Counsel for D4. There is no dispute that the broadcasts were a U U V V  - 49 - A A B B matter of course for all meetings. D3 decided to attend, second, speak and C vote on the Motion in that setting. C D D Aggravating Factors E E 68. There is no dispute that the nature of Charge 2 is very serious. F F In addition, there are a number of very serious aggravating factors. G G Committing the Offence with Others H H I 69. This is not a case where a defendant committed the offence I alone. It was a joint enterprise. Counsel for D3 submitted that although the J J defendants are jointly charged, it does not mean that the role of each K defendant was the same. When their roles are markedly different, the court K is not “constrained” to pass the same sentence on all of them [paragraph 48 L L of D3’s submissions]. M M 70. I disagree that the defendants’ roles were markedly different. N N rd Under Article 11, only D1 had the power to call the 3 Meeting. He drafted O the agenda. Although he was supposed to be neutral, he made his stance O known at the outset of the meeting. D1 was prevented from proposing or P P seconding the Motion. Those roles were taken up by D2 and D3. D2 and Q Q D4 then made a speech about the Motion, whilst D3 and D4 provided the R “comments” after the Resolution was passed. They each had their own role R to play without which the Resolution would never have been passed or S S have the same impact. T T U U V V  - 50 - A A B B Premeditation C C 71. The offence was not committed on the spur of the moment. D D Notice of the meeting was given on 5 July 2021. An agenda and the Motion E was drafted. As stated earlier, there was a prior agreement for D2 to E propose and D3 to second the Motion. F F G The modus operandi and Formality G H H 72. This is not a case where an ordinary citizen decided to spread I inciting words on their private social media accounts. The defendants I chose to use the most formal channel of a HKUSUC meeting to publish the J J inciting words. In the eyes of the rest of society, the Resolution would K appear to be the stance of all the students of one of the foremost K Universities and lend it credence. L L M Abuse of Power M N N 73. As was pointed out above, the Incident had nothing to do with O the functions or business of the HKUSUC. The decision to use the O HKUSUC as a channel for incitement was an abuse of power (公器私用). P P Q Q Open Defiance to the Law R R 74. As was stated by the Court of Appeal in Poon Yung Wai S S (supra), the culpability of the defendants must be assessed in the context T of the crime. Since June 2019, Hong Kong experienced an unprecedented T period of violence and chaos, in which the police were regularly attacked. U U V V  - 51 - A A B B Normality and public order were only restored after the enactment of the C Law of the People’s Republic of China on Safeguarding National Security. C That legislation came into effect on 30 June 2020. The defendants stated D D during the 3rd Meeting that the Incident was labelled as a lone-wolf terrorist E attack and they believed that all mourning activities were characterised as E illegal. Yet, they decided to hold the 3rd Meeting, pass the Resolution and F F broadcast the proceedings. This was open defiance of the law. The words G used during the 3rd Meeting were likely to incite hatred for the G Administration and the police. In Poon Yung Wai, the Court of Appeal H H expressly stated that inciting others in this social context and under those I circumstances clearly increased the risk of reviving the social unrest. I J J Impact K K 75. As was admitted by the defence, the University of Hong Kong L L is one of the foremost universities not only locally, but internationally. The M students in this institution are regarded by the rest of society as the educated M and the elite. The defendants are the student leaders in the University. N N Many of the protestors who took part in the unlawful assemblies and riots O are young people, who regarded and respected these student leaders as their O role models. P P Q Q Target R R 76. During the incident, the Police Officer was attacked and S S injured. The defendants admitted that by glorifying the Incident, they were T inciting others to unlawfully and maliciously wound the police with intent T U U V V  - 52 - A A B B to cause grievous bodily harm. In other words, the police were being C targeted and they were validating attacks against them. C D D Means of Publication E E 77. All the defendants knew that the 3rd Meeting and the F F Resolution would be published on various social media platforms which G are open to the public, both locally and internationally. In fact, the 3rd G Meeting and the Resolution were widely reported by the media between 7 H H and 9 July 2021 [See paragraphs 16 to 17 of the Amended Summary of I Facts]. There is also an international element which is a serious aggravating I factor [See D2’s admission at the press conference that the Resolution J J attracted international interest: Annex 5, counter 2). K K Starting Point L L M 78. In assessing the appropriate starting point, I bear in mind that M the incitement was not worded in such explicit terms as cases like 葉倩敏 N N (supra). However, in the light of the above mentioned aggravating factors, O O I am of the view that the appropriate starting is one of 35 months’ P imprisonment. P Q Q Mitigation R R Discount for Guilty Plea S S T 79. In HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, the Court of T Appeal laid down guidelines in respect of the appropriate discounts for U U V V  - 53 - A A B B guilty pleas. The discount is determined by the time and stage of C proceedings when the pleas were tendered. C D D 80. For the District Court, the Court of Appeal stated: E E “An indication of a plea of guilty at Plea Day: one-third discount F F 222. We are satisfied that, subject to the overriding discretion of the judge in sentencing, a one-third discount from the starting G point taken for sentence is to be afforded to those defendants G who indicate at the Plea Day that they intend pleading guilty. H That is to be the case whether that is done on the first of such H hearing dates or on a subsequent Plea Day, necessitated in order to obtain adequate instructions and provide a defendant with I appropriate advice. A lesser discount is to be afforded to a I defendant who pleads guilty thereafter. J J Plea of guilty at the first day of trial: 20% discount K 223. If the plea of guilty is tendered at the first day of trial, K subject to the judge’s overriding discretion in sentencing, the appropriate discount for sentence is 20% of that taken as the L starting point. L M An indication of a plea of guilty after the fixing of trial dates but M before the first day of trial N 224. Subject to the overriding discretion of the judge in N sentencing, a defendant who gives the court or the prosecution O an indication of a plea of not guilty at the Plea Day after which O trial dates are fixed, who then indicated to the court or the prosecution before the first day of trial that he wishes to plead P guilty, is to be afforded a discount between 25% and 20% of that P taken as the starting point for sentence. In determining the appropriate discount to be afforded to the defendant in those Q Q circumstances, the judge will have regard to the time at which the indication was given and to all the other relevant R circumstances…” R S 81. In the same case, the Court of Appeal held that in cases S committed for trial or sentence in the High Court, “the stage at which a T T discount of a full one-third is to be afforded to the defendant is at the stage U U V V  - 54 - A A B B of committal”. Those representing the defendant in such cases must advise C a defendant of his options, so that he is in a position to make an informed C choice. That does not require that a defendant is given an assessment of D D “the prospects of conviction or acquittal”. At issue only, is whether or not E in his instructions the defendant acknowledges that he performed the acts, E with the accompanying mental element, proof of which is required to F F establish the offence. G G 82. No reasons were advanced by Counsel for D2 in his written H H submissions as to why a one-third discount would be appropriate. In his I oral submissions, counsel for D2 suggested that the change of legal I representation, followed by a plea bargain amounted to exceptional J J circumstances. Counsel for D3 suggested a late “plea bargain” amounted K to “other relevant circumstances” that the Court of Appeal in Ngo Van K Nam “would have in mind”. L L M Chronology of Events M N N 83. The prosecution has helpfully provided the court with a O chronology of events. The defence has no quarrel with the facts stated in O that Chronology, which is: P P Q Q Date Event Related case number / Remarks R R 2021-07-07 Date of Offence S S 2021-08-18 D1-D4 arrested for the offence of “Advocating D1-D4 remanded in Terrorism” custody T T U U V V  - 55 - A A B B 2021-08-19 D1-D4 charged with: D1-D4 remanded in (1) Advocating terrorism; and custody C (2) Incitement to wound with intent (alternative C charge) D D 2021-08-19 D1-D4 first appeared before West Kowloon WKCC 3292/2021 Magistrates’ Courts: D1-D4 remanded in E E − No plea was taken for D1-D4; custody − Mention date fixed for 2021-09-14 to report F on progress of examination of digital F devices; − Case was adjourned to 2021-10-10 for G G further police enquiries; − D4 granted bail by Acting Chief Magistrate H Peter Law. Bail for D1-D3 was refused and H they were remanded in custody; − Prosecution applied to review bail decision. I I D4 also remanded in custody. J J 2021-08-20 D4’s bail review before the Hon Madam Justice HCCP 446/2021 Toh in the High Court. Hearing adjourned to D1-D4 remanded in K 2021-08-27. custody K L 2021-08-27 D4 granted bail by the Hon Madam Justice Toh HCCP 446/2021 L and was released from custody D4 on bail. D1-D3 in custody M M 2021-09-03 D1-D3 also applied for bail. Hearing set down HCCP 446/2021 N for 2021-09-24. D1-D3 in custody N O 2021-09-14 Mention at West Kowloon Magistrates’ Courts: WKCC 3292/2021 O − No plea was taken; D1-D3 in custody P − Report on progress of examination of P digital devices; − Case adjourned to 2021-10-10 for further Q police enquiries. Q R 2021-09-24 Bail review for D1-D3 heard by the Hon HCCP 446/2021 R Madam Justice Toh. Bail granted and released D1-D4 on bail. S from custody. S 2021-10-10 Hearing at West Kowloon Magistrates’ Courts WKCC 3292/2021 T T fir transfer to the District Court: − No plea was taken; U U V V  - 56 - A A B B − Case was transferred to the District Court for “Plea Day” hearing on 2021-10-28. C C 2021-10-28 Plea Day in the District Court: DCCC 917/2021 D − Case adjourned to 2022-01-20 for D1-D4 to D apply for Legal Aid. E E 2022-01-20 Mention in the District Court: DCCC 917/2021 − Case adjourned to 2022-03-24 for D1-D4 to F F seek legal advice and consider the papers. G G 2022-03-24 Case was adjourned to 2022-06-23 due to the DCCC 917/2021 Pandemic. H H 2022-04-13 Letter from D1 to the prosecution seeking to I dispose of the case by way of an ONE / Bind I Over. Suggestion rejected by prosecution by a letter dated 2022-06-08. J J 2022-06-23 Mention in the District Court: DCCC 917/2021 K K − D3-D4 indicated that they will seek further legal advice and asked for an adjournment L to make representations to the prosecution; L − Case adjourned to 1430 on 2022-08-11. M M 2022-07-07 Letter from Professor Albert Chen making representations on D1’s behalf, asking for case N to be disposed of by way of an ONE / Bind N Over. This was rejected by the prosecution by a O letter dated 2022-08-05. O P 2022-07-20 Letter from D4 seeking to dispose of the case P by way of an ONE / Bind Over. Suggestion rejected by the prosecution by a letter dated Q 2022-08-05. Q R 2022-08-08 Letter from D1 proposing a further R adjournment. D1 also enquired about the basis and facts for plea to the alternative charge. S S There had been subsequent discussions with D1 in respect of a plea to the alternative charge but T no formal proposal was received by the T prosecution. U U V V  - 57 - A A B B 2022-08-11 Mention in the District Court: DCCC 917/2021 − Parties informed the court of possible new C development and sought an adjournment; C − Before the hearing, there has been verbal discussions of a possible plea bargain; D D − Case was adjourned to 1430 on 2022-10-20. E E 2022-10-20 Mention in the District Court: DCCC 917/2921 − Parties informed the court of possible new F development and sought an adjournment to F facilitate discussions. The defendants indicated that they would approach the G G prosecution and/or require further time to consider their pleas and seek legal advice; H − The court directed that D1-D4 must indicate H whether they will plead guilty or not guilty at the next hearing; I I − Case adjourned to 1430 on 2022-12-06. J J 2022-12-06 Mention in the District Court: DCCC 917/2021 − D1-D4 indicated not guilty pleas. PTR fixed K on 2023-07-20 and trial set down for 2023- K 09-11 to 2023-09-20. L L 2023-07-05 Letter from D2 to court, indicating that he will plead guilty to Advocating Terrorism (Charge M 1). M N 2023-07-18 Letter from D3 with plea proposal. Suggestion N was rejected by the prosecution on 2023-07-19. O O 2023-07-19 Letter from D2 to the court stating that D2 will P withdraw his indication to plead guilty. P Q 2023-07-20 1st PTR in the District Court: DCCC 917/2021 Q − Letter and indication of guilty plea from D2 withdrawn; D2’s legal team indicated they R were professionally embarrassed and that a R new legal team will be assigned to D2 by S Legal Aid; S − D1-D4 maintained their not guilty pleas; − Because of the change of legal team for D2, T the court was unable to give directions. T Case was adjourned to 2023-08-24 for a 2nd U U V V  - 58 - A A B B PTR. Court directed that the new legal team for D2 must be ready to assist on trial C preparation at the 2nd PTR. C D 2023-08-04 Letter from D3, offering to plead guilty to the D alternative charge (Charge 2). Offer was accepted by the prosecution. E E 2023-08-09 Letters from D2 and D4, offering to plead guilty F F to the alternative charge (Charge 2). Offer was accepted by the prosecution. G G 2023-08-24 2nd PTR in the District Court: DCCC 917/2021 H − D2-D4 indicated that they will plead guilty H to the alternative charge (Charge 2); − D1 maintained his not guilty plea but I informed the court that there was a chance I that he would also plead guilty like D2-D4. J Counsel undertook to inform the court and J the prosecution by 2023-08-29; − Case adjourned for trial of D1 on 2023-09- K 11 to 2023-09-20 and for plea and sentence K for D2-D4 on 2023-09-11. L L 2023-08-28 Letter from D1 to the prosecution offering to M plead guilty to the alternative charge (Charge M 2). Offer accepted by the prosecution. Subsequent directions given by the court for N plea and sentence for all defendants. N O 2023-09-11 D1-D4 pleaded guilty to the alternative charge O (Charge 2) P P Q The Defence Arguments Q R R 84. The defendants were charged with both offences on 19 August S 2021, The trial dates were fixed on 6 December 2022. D3 indicated that he S would plead guilty to the alternative charge on 4 August 2023. D2 and D4 T T gave a clear indication of their pleas to the alternative charge on 9 August U U V V  - 59 - A A B B 2023. D1 only indicated that he would plead guilty to the alternative charge C on 24 August 2023. C D D 85. In their initial written submissions, Leading Counsel for D1 E and counsel for D4 asked for a 25% discount in line with the guidelines in E Ngo Van Nam [See paragraph 46 of D1’s Mitigation Bundle and paragraph F F 16 of D4’s Mitigation Bundle]. However, Counsel for D2 and D3 argued G that there were exceptional circumstances and asked for a one-third G discount although their guilty pleas were only indicated long after trial H H dates were fixed [See paragraph 7 of D2’s Mitigation Bundle and I paragraphs 72 to 74 of D3’s Mitigation Bundle]. I J J 86. The matter was adjourned to 20 September 2023 for the K parties to file full legal arguments (in relation to the discount for guilty plea K and whether Charge 2 is an Excepted Offence). L L M 87. The Joint Submissions were filed by the defence on 18 M September 2023. In those submissions, all the defendants submitted that N N the prosecution has the power to accept or reject a guilty plea to the O alternative charge. They relied on Kirkwood v Coalburn District Co- O operative Society Ltd [1930] JC 38. In that case, a company was charged P P with 2 offences, one of which was an alternative charge with a lighter Q Q penalty. The prosecution rejected the guilty plea to the lesser charge but R the trial judge held that the defendant’s plea “ended the matter”. On the R prosecution’s appeal, Lord Clyde held: S S “This sharply raises the question whether a prosecutor is ever T T bound to accept a plea tendered by the accused, and, in particular, whether he is bound to accept a plea to the lighter of U U V V  - 60 - A A B two alternatives in a complaint, to the effect of being B compelled to give up a major alternative. C C I do not think a prosecutor is ever bound to accept a plea, whether the charge be alternative or not, but is always entitled to insist on D leading evidence before the jury and obtaining a verdict if he D can… I do not think it makes any difference that the charge is an E alternative one; and I do not think that, if the charge is E alternative, the accused has any right to elide the major charge by the device of pleading to the minor one…” F F 88. In the same case, Lord Blackburn held: G G H “… in a criminal case which contains two charges which are in H fact alternative… the person charged cannot insist on being discharged by tendering a plea of guilty to the lesser charge. His I I plea must be accepted by the prosecutor before any effect can be given to it, and, if the prosecutor refuses to accept it, the case J must go on, leaving the prosecutor to prove either the major J offence charged, “or otherwise” the minor, if he is able to do so.” [See also R v Yeardley [2000] QB 374; HKSAR v Lee Wai K K Keung [2012] 1 HKLRD 663; R v Read [2014] EWCA Crim 687. L L 89. I accept that proposition. However, the issue before this court M M is whether the defendants can “turn back the clock” and become entitled to N a one-third discount by reason of a late “plea bargain”. N O O Discussion P P 90. In the Joint Submissions, the defence explained the alleged Q Q reason for the timing of the plea bargain and asked for a discount of less R than one-third but more than 25%: R S S (1) The charge sheet contains the main charge of T T advocating terrorism and the alternative charge of U U V V  - 61 - A A B B incitement to wound with intent was signed and C delivered on about 15 October 2021; C D D (2) At that time, the issue of minimum sentence under the E NSL had not yet arisen in HKSAR v Lui Sai Yu DCCC E 401/2021; F F G (3) The issue arose in the sentence of Lui Sai Yu on 22 G April 2022; H H I (4) The Court of Appeal’s decision in Lui Sai Yu was I given on 30 November 2022. However, it was uncertain J J whether the matter would be taken further to the CFA; K K (5) The present trial was fixed on 6 December 2022 as it L L was impracticable to wait for a further Appeal to the M CFA in Lui Sai Yu; M N N (6) The certificate of points of law of great and general O importance was only given by the Court of Appeal on O 27 April 2023; P P Q Q (7) Having considered the possibility of a minimum R sentence being imposed for charge 1, plea negotiations R started on about 18 July 2023 and resulted in an S S agreement regarding D2-D4 just before the 2nd PTR on T 24 August 2023 and regarding D1 shortly after the 2nd T PTR; U U V V  - 62 - A A B B C (8) The plea negotiation is unusual in this case because the C defendants proposed to plead guilty to the alternative D D charge which alleges a greater offence in the sense that E it carries a higher maximum sentence but without a E minimum sentence. F F G 91. I agree that the alternative charge is the graver charge. Both G the main charge (Charge 1: Advocating Terrorism) and the alternative H H Charge (Charge 2: Incitement to wound with intent) were in existence as I early as 19 August 2021. The factual bases of both charges were the same. I The main charge carries a maximum sentence of 10 years’ imprisonment J J whilst the alternative charge carries a maximum sentence of life K imprisonment. Under the alternative charge, there is no provision for a K minimum sentence. Under the main charge, if the offence committed by L L the accused were serious, Article 27 provides that the sentence shall be M fixed term imprisonment of not less than 5 years and not more than 10 M years together with a fine or confiscation of property. In other N N circumstances, the sentence shall be fixed-term imprisonment of not more O than 5 years, short term detention or restriction together with a fine. In other O words, judging by the maximum sentence, the defendants have pleaded P P guilty to the more serious charge. Q Q R 92. However, I disagree that the plea bargain only began on about R 18 July 2023. Although the offer to dispose of the case by way of an ONE S S / Bind Over was wholly unrealistic in the light of the nature of the charge T and all the aggravating factors, it is evident from the Chronology that T negotiations for D1 began on 13 April 2022; for D4 on 20 July 2022 at the U U V V  - 63 - A A B B latest. Even if the court were to only consider the offer to plead to the C alternative charge, there were indications of negotiations for a plea to the C alternative charge by 11 August 2022. D D E 93. In HKSAR v Sae Lam Ekapoj [2018] HKCFI 2061, the E indictment included a count of trafficking in dangerous drugs (count 1) and F F an alternative charge of being a tenant permitting premises to be used for G unlawful trafficking of dangerous drugs (count 2). The alternative count G was neither a common law or statutory alternative to trafficking in H H dangerous drugs. The prosecution informed the court about 3 months I before trial that “there have been plea bargain and a guilty plea to count 2 I would be accepted. In sentencing the defendant, the court stated: J J K “The plea to the alternative count was accepted by the K prosecution… It was only after the case had been committed that the alternative charge appeared. The plea bargain then took place L and the proposed plea was accepted by the prosecution.” L M M 94. Although the alternative count was not in the original N indictment and was only added as a result of the plea bargain, the court did N not accept the plea to the alternative charge was a timely plea and only O O gave a discount of about 24%. P P 95. In HKSAR v Lam Kai Man [2020] 4 HKLRD 107, the Q Q indictment contained a count of rape and an alternative count of R procurement of unlawful sexual intercourse by threat. The defendant R pleaded guilty to the alternative count and not guilty to rape, which was S S accepted by the prosecution. Despite the withdrawal of the appeal against T sentence, the Court of Appeal considered it necessary to “supplement what T has been said in Ngo Van Nam in respect of the position in this jurisdiction U U V V  - 64 - A A B B where early pleas of guilty to lesser offences or alternative charges are C offered by a defendant, which pleas either match the eventual verdict of the C jury or are later accepted by the prosecution” [See paragraph 52]. D D E 96. The Court of Appeal then laid down 4 principles: E F F “52. In light of these authorities to which we have referred, we consider that it is necessary to supplement what has been said G in Ngo Van Nam in respect of the position in this jurisdiction G where early pleas of guilty to lesser offences or alternative charges are offered by a defendant, which pleas either match the H H eventual verdict of the jury or are later accepted by the prosecution. I I 53. First, if a defendant wishes to plead guilty to a lesser or alternative charge, he should make a clear and unequivocal J statement of his position in court and on the record. This J should be done by formally entering a plea to the proposed K charge on the court record, but it may also in certain K circumstances be achieved by his legal representative stating, again formally on the court record, the defendant’s intention and L the basis of his proposed plea. L 54. Secondly, the defendant should adhere to his stated M M position for the remainder of the proceedings. By this, we do not in any way mean to limit the right of a defendant to a trial or to N conduct his case in any way he sees fit. We are only concerned N with how a court should assess a claim by a defendant to a sentencing discount as a result of his earlier offer of a plea of O O guilty. P 55. Thirdly, we do not propose to close the door entirely P on clear and unequivocal offers to plead guilty to lesser or alternative charges made in writing by the defendant’s legal Q representatives to the prosecution, which cannot for some Q good reason be entered formally on the record. However, the R court should satisfy itself that there was good reason for the plea R not being formally entered on the court record, and the onus will be firmly upon the defendant seeking the discount to show S that he clearly and unequivocally offered the plea in question S and the basis for the plea; and that such position had been adhered to for the remainder of the proceedings. T T U U V V  - 65 - A A B 56. Finally, the extent of the discount will of course B depend on the stage at which the proposed plea is clearly and C unequivocally entered on the court record. Even then, it C must be subject to the overriding discretion of the judge and the principles set out in Ngo Van Nam. However, that D discretion must not be exercised in such a way as to D compromise these principles.” E E 97. It is trite law that guidelines are not strait jackets. However, F F they should only be departed from for good reason. G G 98. The alternative charge was in existence at the outset (18 H H August 2021). Even according to the defence, the issue of whether there I was a minimum sentence for the main charge only arose in the Lui Sai Yu I case on 22 April 2022. In other words, between 19 August 2021 and 22 J J April 2022, there was nothing to prevent the defendants from plea K bargaining or indicating their intention to plead guilty to the alternative K charge. L L M 99. It is clear from Ngo Van Nam and Lam Kai Man that the M discount to be accorded to a guilty plea depends on the stage when the N N indication of a plea was made. O O 100. In their judgment in Ngo Van Nam, the Court of Appeal held P P at paragraph 201: Q Q “Knowledge of the facts of the prosecution case and receipt of R R legal advice S 201. As noted earlier, in the judgment of the Court of Appeal S of England and Wales in R v Caley and that of Lord Justice Clerk Gill in Gemmell v HM Advocate in the High Court of Justiciary T of Scotland, in determining what was the “first reasonable T opportunity” for a defendant to indicate his guilt or what was “an U early plea” respectively, a distinction was drawn between that U V V  - 66 - A A B stage of proceedings and the separate and different stage at B which a defendant exercised his undoubted right to avail himself C of the opportunity, “for his lawyers to assess the strength of the C case against him and to advise him on it”. Of the different circumstances, Hughes LJ said “… the second depends on the D evidence being assembled and served. The first, however D frequently does not.” However, he acknowledged that “… there E will certainly be cases where a defendant genuinely does not E know whether he is guilty or not and needs advice, and/or sight of the evidence in order to decide.” Nevertheless, he went on to F conclude: F ‘Such cases aside, however, whilst it is perfectly proper G G for a defendant to require advice from his lawyers on the strength of the evidence (just as he is perfectly entitled to H insist on putting the Crown to proof at trial), he does not H require it in order to know whether he is guilty or not; he requires it in order to assess the prospects of I conviction or acquittal, which is different.’” (My I emphasis) J J 101. In other words, the defendants only have to know whether K K they did the acts with the requisite mens rea to decide whether they should L plead guilty to either of the charges. The strength of the prosecution’s L evidence or the likely sentence are not part of that consideration. M M N 102. As was obvious from the explanation in the Joint N Submissions, the only matter that the defence was concerned with was the O O possibility of a minimum sentence for the main charge. There was no P suggestion that the defendants were unaware of what they were charged P with or whether they were guilty of the offences. In those circumstances, Q Q there was no reason why an indication of a guilty plea could not be given R earlier. R S S 103. In the Lui Sai Yu case, the appellant pleaded guilty to a charge T of “incitement to secession, contrary to Articles 20 and 21 of the NSL T U (NSL20 and NSL 21 respectively). The sentences prescribed by NSL21 on U V V  - 67 - A A B B a charge of incitement to secession fall into two bands or tiers. If the C circumstances of the offence are “of a serious nature”, NSL provides that C “the person shall be sentenced to fixed-term imprisonment of not less than D D five years but not more than ten years”. And if the circumstances of the E offence are “of a minor nature”, the person “shall be sentenced to fixed- E term imprisonment of not more than five years, short term detention or F F restriction.” The sentencing provisions are identical to those in the present G case. G H H 104. Having considered the submissions made on the appellant’s I behalf and having reviewed the agreed facts, Her Honour concluded that I the circumstances of the offence were “of a serious nature” and thus fell J J within the upper band. While the Judge reviewed submissions in K mitigation, she held that a deterrent sentence was required and that ‘the K nature of this offence and seriousness of the facts means personal L L circumstances, mitigation put forward and previous good character carries M little weight”. Her Honour held that a starting point of five years and six M months’ imprisonment should be adopted. After hearing submissions from N N the prosecution, she concluded that NSL21 provided for a minimum O sentence of five years and therefore confined the discount for the guilty O plea to a reduction of six months, imposing a sentence of five years’ P P imprisonment. The appellant’s appeal against sentence was dismissed by Q Q the Court of Appeal. R R 105. The appellant appealed to the Court of Final Appeal. In gist, S S the appellant argued that the legislative intention regarding serious NSL21 T offences was “to lay down a range of starting points between the maximum T of ten years and the minimum of five years” rather than to set five years’ U U V V  - 68 - A A B B imprisonment as the hard and fast minimum sentence for offences falling C within that band. Having settled on the starting point, so it was contended, C mitigating factors (such as a guilty plea) could be given full effect, resulting D D in a sentence falling below the five-year minimum. E E 106. The Court of Final Appeal ruled that the argument was “an F F untenable argument… To suggest, as Counsel for this appellant did, that G they are concerned merely with establishing starting-points for the G purposes of sentencing exercise is to attribute a meaning which the H H language cannot bear” [See paragraph 64]. I I 107. In the present case, D1 began his “plea bargain” on 13 April J J 2022, offering to dispose of the case by way of an ONE / Bind Over. K Representations were made by Professor Albert Chen on D1’s behalf with K the same offer on 7 July 2022. On 20 July 2022, D4 followed suit. L L M 108. The appeal in Lui Sai Yu was concerned with the true M construction of the “serious” band for sentence. Sentences under the N N “minor” band was obviously discretionary. The offers to dispose of the O case by way of an ONE / Bind Over demonstrate that the legal O representatives of those defendants and Professor Chen thought that the P P culpability in this case not only falls within the “minor” band, but was at Q Q the very lowest end of the spectrum. If they were correct, then the decision R in Lui Sai Yu would be wholly irrelevant to the present case. R S S 109. In August 2022, the defence began negotiations for a plea to T the alternative charge. There are no provisions for a minimum sentence T under that charge. The Court of Appeal’s decision in Lui Sai Yu was given U U V V  - 69 - A A B B on 30 November 2022. At that time, the trial dates in the present case have C not been fixed (6 December 2022). As was admitted in the Joint C Submissions, it was uncertain whether the appellant in Lui Sai Yu would D D take the matter further to the Court of Final Appeal. There was nothing to E stop the defendants in the present case from giving an indication of a guilty E plea prior to the hearing on 6 December 2022, when trial dates were fixed. F F G 110. The certificate of points of law of great and general G importance in Lui Sai Yu was only given by the Court of Appeal on 27 H H April 2023. Even if the appellant in Lui Sai Yu were to succeed in his I appeal, it would only mean that there was a minimum starting point I (instead of a minimum sentence) of 5 years for the “serious” band for the J J main charge in the present case. The sentence for the “minor” band in the K main charge would not be affected and the sentence for the alternative K charge was discretionary. Even if the likely sentence is in any way relevant L L to the defendants’ decision, they already had sufficient information. All of M the above means that the decision in Lui Sai Yu was irrelevant. M N N 111. The defence suggested that the decision whether the O defendants pleaded guilty or not depended on the prosecution’s acceptance O of the plea bargain. The learned author of Criminal Procedure: Trial on P P Indictment explained the procedure of plea bargains at VI [353]: Q Q “Where the accused pleads guilty to a lesser alternative R R offence in full satisfaction of an indictment but that plea is rejected by the prosecution, the consequence of this course S depends on whether the lesser alternative was pleaded on the S indictment. If the lesser alternative charge to which the accused has tendered a plea of guilty is expressly pleaded in the T indictment then the trial proceeds on the main charge. If the T accused is acquitted on the main charge then he is sentenced U on the charge to which he pleaded guilty.” U V V  - 70 - A A B B C 112. In the present case, the alternative charge was expressly C pleaded in the indictment. The prosecution can reject the plea to the D D alternative charge and insist on proceeding with the main charge. However, E if the defendants were only convicted of the alternative charge after trial, E they would be entitled to a discount for their guilty pleas. The discount F F would depend on the timing of their pleas. In other words, the defendants G do not need the prosecution’s acceptance of the plea bargain to give a clear G and unequivocal indication of their plea to the alternative charge. H H I 113. This was borne out by Ngo Van Nam: I J J “161. Of what constituted an early plea of guilty, Lord Justice Clerk Gill said: K K ‘We have become familiar in this court with the L argument that the accused is justified in withholding an L early plea yet invoking s 196 where there has been a delay in obtaining Crown disclosure, police statements, M forensic reports and the like; or where investigations M have been carried out by the defence. This is a specious argument. I repeat what I said in HM Advocate v N N Thomson (2006 SCCCR, p 271, para 27): O ‘If an accused person has committed the crime O charged, he can plead guilty to it at the outset and benefit from his plea by way of discount when the P sentence is assessed; or he can defer pleading P until he is sure that the Crown have a Q corroborated case, in the knowledge that a Q sentence discount may be reduced or refused altogether. That is the choice that he must make. R He cannot have it both ways’’” R S S 114. By reason of all the above mentioned matters, I find that the T defence submissions are wrong in fact and wholly devoid of merit. The T court appreciates that these are very serious charges and the defendants are U U V V  - 71 - A A B B entitled to full consideration of their positions. However, the timing of an C indication of a guilty plea was up to the defendants. If they decide to give C a late indication, they have to accept the consequences of their decisions. D D The alleged “late plea bargain” does not amount to “exceptional E circumstances” and does not take the discount for a guilty plea beyond the E guidelines laid down in Ngo Van Nam. The appropriate discount for their F F guilty plea is 20% to 25%. G G 115. The defendants have decided to give an indication of a guilty H H plea to the alternative charge at a very late stage of the proceedings, at I which point most of the preparation for trial was complete and substantial I amounts of time and taxpayers’ money had been expended (for example in J J the preparation of transcripts and translations). The appropriate discount is K 20%. K L L Personal Background M M 116. The court has been provided with voluminous bundles of N N mitigation letters written on their behalf. It is impossible for the court to O repeat each of them here. In short, all 4 defendants were students with O outstanding academic achievements, a good background and a bright P P future. They have continued with their academic pursuits after their arrests. Q Q I will take the mitigation letters into consideration in assessing sentence. R Only the most basic personal background of the defendants will be set out R below. S S T T U U V V  - 72 - A A B B D1 C C nd 117. D1 was a 2 year student in the University of Hong Kong and D D was 19 years old at the time of the offence. He is now a 5th year University E Student and is expected to graduate on 30 June 2024 with first honours. He E has a clear record. F F G 118. D1 lives with his parents. His father, aged 66 is a security G guard and his mother, aged 60 is a clerk. They are both near retirement. H H I 119. D1 graduated from Ying Wah Secondary school. He obtained I outstanding results in the HKDSE and was admitted to the University of J J Hong Kong to pursue a double degree of social sciences (Government and K Laws) and Bachelor of Laws. He is expected to graduate in the summer of K 2024. L L M D2 M N N 120. D2 was born in November 2000. He is now 22 years old. At O the time of the Offence, he was an Engineering student at the University of O Hong Kong and had a clear record. He lived with his family. His father, P P aged 61 is a civil servant; his mother, aged 53 is a housewife and his sister, Q Q aged 23 is a student. D2 was married in February this year and is now living R with his wife. R S S T T U U V V  - 73 - A A B B D3 C C 121. D3 was born in September 2002 and was an 18-year-old D D student in the University of Hong Kong at the time of the offence. He is E now 21 years old. E F F 122. D3 was brought up in a single parent family. His father G deserted the family; his mother is a clerk. D3 and his mother live with D3’s G maternal grandmother who is 86 years old and they are the grandmother’s H H primary carers. I I D4 J J K 123. D4 was born in August 2002 and is now 21 years old. He has K a clear record. He attained outstanding results in the DSE exams and was L L a 1st year Bachelor of Arts student in the University of Hong Kong at the M time of the offence. M N N 124. D4 was born and raised in a devout Catholic family. His O father, aged 58, is a secondary school teacher. His mother is 56 years old O and is a social worker. D4 has 2 elder brothers, aged 24 and 22 respectively. P P His eldest brother is a doctor and the other brother is a secondary school Q Q teacher. R R 125. Incitement to wound with intent is a very serious offence. As S S explained above, there are a number of serious aggravating factors. T Although the courts will normally give such weight as they can to the T personal circumstances of the accused, such personal circumstances may U U V V  - 74 - A A B B “not weigh in the balance at all” when dealing with a serious offence: C HKSAR v Mak Shing [2002] HKCU 1109 (CACC 322/2001, 18 C September 2002, unreported). D D E 126. In HKSAR v Chan Lincoln [2021] 3 HKC 604, [2021] 2 E HKLRD 226, [2021] HKCA 255 [30], the court stated “When public F F interest justifies deterrent sentence, neither youth nor personal background G is a strong mitigating factor and/or pale into insignificance”. [See also G Secretary for Justice v Wong Chi Fung and Ors [2018] 2 HKC 50, [2018] H H 21 HKCFAR 35, [2018] HKCFA 4]. I I 127. In such case, “the only way judges can demonstrate that J J society will not tolerate a particular type of conduct is by passing a sentence K which truly reflects the abhorrence which right-minded members of the K public have of the offender’s conduct”: R v Prime [1983] 54 Cr App R(S) L L 127, at 133. The rehabilitation needs of the defendants are of very low M importance: HKSAR v Nawaz Ashanti [2019] 6 HKC 358, [2019] HKCA M 459 [66]. N N O 128. The nature of Charge 2 in the present case and the seriousness O of the facts call for a deterrent sentence, both individually and generally. P P The defendants’ background and rehabilitation needs all pale into Q Q insignificance. A lenient sentence would only pass the wrong message to R the rest of society. R S S T T U U V V  - 75 - A A B B Academic Achievements C C 129. The defendants were all outstanding students and have D D continued in their academic pursuits after they were arrested. However, E being a good student is not a mitigating factor, as one cannot by virtue of E his education claim preferential treatment. In addition, courts should, in F F each case, give proper weight to the public interest and not simply regard G the welfare of the defendants as the paramount consideration: R v Caird G [1970] 54 Cr App R 499. H H I 130. The court appreciates that it is heartbreaking for the I defendants’ family, friends and teachers to see these defendants being J J sentenced to a substantial term of immediate imprisonment. The sentences K may even result in financial pressure for some families. However, this is K not a mitigating factor. As was stated by the Court of Appeal in 香港特別 L L 行政區 訴 楊家倫 (Yeung Ka Lun) [2018] HKCA 146 (CACC 130/2017, M M 18 April 2018): N N 「60. 本庭認同原審法官的說法，要對有關罪行判處具阻嚇 O 性的刑罰，對犯案滋事者迎頭棒喝，防止同類事件再次出現， O 否則社會要付出慘痛代價，有違公眾及執法人員的利益。 P P 61. 對於一名出身自良好家庭及有良好教育的年輕人處 以長期監禁的刑罰，對他個人，其家庭、甚至社會都是悲劇， Q 但法庭必須堅決打擊本案所顯示的罔顧法紀及漠視社會秩 Q 序和執法人員安危的犯罪行為。」 R R Clear Record S S T 131. In Ngo Van Nam, the Court of Appeal dealt with the factors T subsumed in the discount given for a guilty plea: U U V V  - 76 - A A B B “129. Of the discount from the starting point taken for sentence, C C over and above the one-third discount, afforded to the respondent, in the judgment of this court, Yeung JA said: D D ‘The Court of Appeal have repeatedly emphasised that the one-third discount “is usually to be regarded as the E high watermark of the discount given to a defendant E pleading guilty in good time.” …’ F F 130. … G ‘In our judgment, … Only in exceptional cases should a G discount of more than one-third be given for a timely H plea.’” H I 132. In fact, a clear record is subsumed in the discount given for a I guilty plea. In Sentencing in Hong Kong (10th Ed), it was said: J J K “[7-6] Credit for a clear record is, however, by no means a given. K Much will depend upon the nature of the offence and the position of the offender. In HKSAR v Law Num Chun [2014] 6 HKC 606, L 617, Luann VP said: L M [T]he principle is that good character is not a factor relevant M generally to determining the starting point to be taken for sentence in serious criminal offences for which a deterrent N sentence is required… N O [7-14] The practice of the courts in recent times has been to give O the accused who pleads guilty a sentencing discount of one-third: HKSAR v Lo Chi Yip and Anor [2000] 3 HKLRD 270, 277, P [2000] HKCU 607, [20]. However, much depends on the P timeliness of the plea, with the full discount being awarded for a plea at the earliest opportunity, and a lesser discount Q Q attaching to pleas entered at a later stage: HKSAR v Ngo Van Nam [2016] 5 HKC 231, [2016] 5 HKLRD 1. The accused R who pleads guilty at the outset will receive a full discount R irrespective of whether he has a criminal record, is caught red-handed or is genuinely remorseful. Since the ‘one-third S rule’ has solidified into principle, there is no scope for a S further discount, save in exceptional circumstances, such as T where assistance is provided to the authorities. In HKSAR v T Yan Wai Ming [2003] HKCU 264 (CACC 417/2002, 26 February 2003, unreported), Stuart-Moore VP said: U U V V  - 77 - A A B B In the days before the discount of one-third on timely C pleas of guilty became standard practice, previous C good character used to be one of many factors which judges would take into account in deciding what D discount to give on a plea of guilty. The one-third D discount is usually, as we have said on numerous E occasions, to be taken as the high watermark of the E discount unless there are very special factors to be taken into account. F F [7-15] in Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 751, 757, [2001] HKCU 1103, [20], Stock JA said that the ‘lack G G of previous convictions will often be subsumed in the credit given for a plea of guilty’. In Secretary for Justice v Lee Cho H Keung and Ors [2004] 4 HKC 179, 189, the court noted that ‘the H established course is now to view the presence of good character as part and parcel of the one-third discount given upon a plea’. I The ‘element of good character is normally taken as being I included in the one-third discount for a plea of guilty’: Secretary J for Justice v Tso Tsz Kin [2004] 2 HKC 139, 144. In HKSAR v J Cheng Kelly Kit Yin [2014] 4 HKLRD 34, [2014] HKCU 1441, Barma J said ‘the one-third discount for a plea of guilty is the K discount to be afforded even to those with clear record’ [16]. In K Secretary for Justice v Cheng Tsz Hin [2020] 1 HKC 576, [2020] L 1 HKLRD 1057, [2020] HKCA 45, a judge who awarded a L two-month sentencing discount to an accused who had been convicted of dangerous driving causing death for his clear M record and perfect driving record was held to have erred… M a clear record is not, of itself, a ground for suspending a sentence of imprisonment: Secretary for Justice v Mong Hon N N Ming [2009] 3 HKC 481, 493. O [7-16] The judge who granted an accused who pleaded guilty an O additional discount of three months’ imprisonment ‘to take account of her … good character’, was said to have erred in P Secretary for Justice v Chan Wan Fun [2007] 1 HKC 423, 428, P [2006] 3 HKLRD 577, 582. The discount for a guilty plea Q already has ‘built into it an allowance for good record where Q there is one’: HKSAR v Yung Wai Siu [2001] 1 HKLRD 277, 279, [2001] HKCU 108, [8]. The withholding of an additional R discount for a clear record ‘has not been a valid ground of appeal R for a considerable time’: HKSAR v Yan Wai Ming [2003] HKCU 264 (CACC 417/2002, 26 February 2003, unreported). In this S S context, a clear record is not so much a mitigating factor as a ‘neutral feature in the case’: HKSAR v Wen Zelang [2006] 4 T HKLRD 460, 465, [2006] HKCU 1554, [22]. T U U V V  - 78 - A A B [7-17] In HKSAR v Wong King Wai [2008] 2 HKC 614, 622, B Stuart-Moore ACJHC said: C C ‘Personal circumstances including a clear record may, of course, have a bearing on mitigation for offences which D are comparatively minor in nature. However, for serious D offences we have indicated time and time again that, with E the introduction of the ‘one-third rule’ which in usual E circumstances provides a discount of a third of the prison sentence that would normally have been imposed after F trial following timely pleas of guilty, there should be no F further discount for a clear record unless evidence of positive good character is forthcoming.’” G G H 133. The relevance of good character is related to the H circumstances of the accused. Good character sometimes refers to no more I I than an absence of previous convictions, and this is not a basis for an J additional discount: HKSAR v Wong Kam Shing, Jackie [2010] 4 HKC 580. J At other times, it may refer to something altogether more positive. Good K K character can be recognised as a factor in mitigation ‘where positive good L character is shown by, for example, the provision of unpaid service to the L community, as opposed merely to the absence of a criminal record’: M M Secretary for Justice v Tso Tsz Kin [2004] 2 HKC 139, 144. The mere N absence of criminal convictions must not be confused with positive good N character, and the simple discharge of duties in a proper manner ‘does not O O constitute what is to be regarded as positive good character’: HKSAR v P Leung Ping Nam [2007] 5 HKC 413, 427; HKSAR v Chung Ka Hung P [2010] HKCU 738 (CACC 349/2008, 31 March 2010, unreported)… Much Q Q however, depends on the circumstances of the case, and ‘military service R even in the most difficult circumstances does not lead automatically to R lenient sentencing for crimes committed later in life’: Attorney General’s S S Reference; R v Gregson [2020] EWCA CA Crim 1528, [2020] All ER (D) T 156 (Nov)… T U U V V  - 79 - A A B “[7-23] If the court decides that the offence is such as to require B a deterrent sentence, it may be necessary to select a higher C starting point. The clear record of the accused will not, that is, C affect the starting point for sentence: HKSAR v Lam Ying Yu [2014] 2 HKLRD 895, [2014] HKCU 820. In such D circumstances, perhaps because of the magnitude or prevalence D of the offence and the need for deterrence, the personal E circumstances of the accused will count for little. In Re E Applications for Review of Sentences [1972] HKLR 370, 406, Huggins J said: F F ‘Of course there will be classes of cases where the public interest so manifestly calls for a deterrent sentence that G G only the most exceptional circumstances relating to the offender could outweigh the need to deter others, but we H must never rule out that such exceptional circumstances H may arise.’ I [7-27] … the existence of a clear record in a sufficiently serious I case can never of itself be enough to save an accused from an J immediate sentence of imprisonment: Securities and Futures J Commission and Choy Wai Zak [2003] 1 HKC 30, 35. In HKSAR v Cheung Sing Hoi (HCMA 1334/2001, 8 March 2001, K unreported), [9], Toh DHCJ said that ‘whilst it is true that the K court would hesitate before sending someone with a clear record L to prison for most offences, this is the type of offence where a L clear message should be sent out to those who are thinking of making false allegations that they cannot get away with them’. M In other words, previous good character is not a bar to the M imposition of a deterrent sentence if the gravity of the offence justifies it: HKSAR v Chan Mo Kong [1998] 1 HKLRD 678, 680, N N [1998] HKCU 2659, [8].” O O 134. Counsel for the 4 defendants listed some alleged public P service. I do not view the attendance of the flag raising ceremony, summer P schools, mock trials, Boy Scouts and competitions as public service. Q Q R Remorse R S S 135. Counsel asserted that all the defendants have reflected on their T conduct and are extremely remorseful. I disagree. D2 to D4 attended an T informal meeting where a letter of Apology was drafted. This was U U V V  - 80 - A A B B subsequently read out in a press conference. D2 to D4 also immediately C tendered their resignation from the HKUSUC. C D D 136. In fact, D1 has tried to hide behind the need for impartiality E throughout the investigation and these proceedings. Despite making his E predisposed stance crystal clear at the outset of the 3rd meeting, he tried to F F blame the other Union Councillors for the Motion and the Resolution. D1 G attended the informal meeting, but stated in his 3rd video-recorded G interview that he paid no attention to what was said and left the meeting H H early. Counsel conceded that D1 never apologised or attended the press I conference, again on the pretext of maintaining neutrality. His attempts to I shirk responsibility and blame others have pervaded his mitigation. J J K 137. Despite apologising and resigning from the HKUSUC, this is K what D2 said in his mitigation letter: L L M 「無容置疑，自社會事件以來，很多市民因警察濫暴濫權、 M 選擇性執法，或使用過份武力鎮壓示威者，而不滿警察的執 N 法手段，甚至痛恨及仇視警員。我不能否認當時我亦有類似 N 的情緒。在梁健輝先生刺警然後自殺的事件發生後，很多同 學及市民長久以來對警察的不滿得到了宣洩，認為警察終於 O O 得到其應有的報應，因而對梁先生產生同情……我一向為人 直率，忠於自己，因此我希望向你坦誠相對。於我而言，社 P 會運動中的警民衝突已經給香港帶來難以磨滅的創傷，昔日 P 的社會和諧和警民關係已經回不去了。社會重回安定，但這 Q 個地方的傷痕，卻未能撫平；失去了的人心，亦難以挽回。 Q 即使兩年已過，我也無法違心地說，我突然由當初討厭警察 R 變得十分支持警察；我也無法違心地說，警察完全沒有濫捕 R 濫權，責任存在示威者一方。……」 S S 138. Since June 2019, Hong Kong experienced an unprecedented T period of violence and chaos. Schools had to be suspended, public facilities T U were destroyed, police officers and anyone who dared to disagree with the U V V  - 81 - A A B B protesters were attacked. Yet, even now, D2 can only blame the police. C Unless D2 witnessed the incidents, he does not know the full circumstances C behind the arrests. In this court’s experience in hearing those cases, the D D police only took action after repeated attempts at persuading the protesters E failed. E F F 139. Although the court is doubtful about D1 and D2’s remorse, it G would not affect their sentence. Remorse is already subsumed in the G discount for a guilty plea. As was held in Ngo Van Nam: H H I “Factors of mitigation subsumed in a one-third discount I 200. In contrast to the approach in sentencing in Scotland and J Australia, as evidenced in the judgments of the courts of those J jurisdictions, in Hong Kong to a considerable extent this court K has elided the difference between the utilitarian value of a plea K of guilty and the subjective factor of remorse. So, other than in exceptional circumstances, the remorse of a defendant who L pleads guilty is taken to be subsumed in the discount if one- L third afforded for a plea of guilty. As noted earlier, this court has used the phrase the “high water mark” in a number of M M judgments in reference to the one-third discount to describe the fact that remorse is subsumed in that discount…” N N Family Circumstances O O P 140. In their mitigation letters, D1 mentioned that his parents are P elderly and near retirement. D3 spoke about his grandmother who is elderly Q Q and fragile. R R 141. The learned authors of Sentencing in Hong Kong (10th Ed) S S said: T T U U V V  - 82 - A A B “[30-130] Family circumstances are often prayed in aid in B mitigation by convicted persons. However, ‘family hardship C which is usually attendant upon the conviction is to be viewed as C a part of the price an accused must pay for the crime’: HKSAR v Li Kwok Ching [2005] HKCU 1702 (HCMA 1132/2005, 30 D November 2005, unreported). Those who commit offences D should keep in mind ‘the principle that the adverse effect of E imprisonment upon an offender’s family is not a factor normally E to be taken into account’: HKSAR v Chan Kin Chung [2002] 4 HKC 314, 321. Family circumstances, in any event, ‘are matters F which a wise man would take into consideration before he F commits an offence and not after’: HKSAR v To Yiu Cho [2009] 5 HKLRD 309, 311, [2009] HKCU 1122. G G [30-131] … In HKSAR v Shum Chung Wai [2002] 2 HKLRD 81, H 87, the court said ‘This court has said many times that family H circumstances should be disregarded, particularly when sentences for serious offences are concerned’.” I I J Medical Condition J K K 142. Counsel stated that D4 previously suffered a serious injury to L his nose; he still has breathing difficulties and is still on medication and L requires regular follow up. The medical report produced as Annex 6 (p 16) M M of D4’s Mitigation Bundle shows that his condition is stable and he can N hardly be described as of ill health. N O O 143. The learned authors of Sentencing in Hong Kong (10th Ed) P stated: P Q Q “[30-174] The ill health of an accused ‘is not a licence to commit crime’: Clarkson v R [2007] 171 A Crim R 1, 49. R R [30-175] In Yip Kai Foon v HKSAR [2000] 1 HKC 335, 339, [2000] 3 HKCFAR 31, 35, Li CJ said: ‘Under the guidelines and S S principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of T gravity’… T U U V V  - 83 - A A B [30-176] The objective criminality of particular offences will B often be such that the sentence of imprisonment which is C otherwise appropriate is necessary, irrespective of health factors: C HKSAR v Tong Fuk Sing [1999] 3 HKC 332, 336 [1999] 3 HKLRD 710. The Correctional Services Department operates D ‘excellent’ medical facilities: HKSAR v Wong Chi Choi [2005] D HKCU 1443 (HKMA 628/2005, 6 October 2005, unreported). In E HKSAR v Woo Shun Cheong and Anor [1998] HKCU 2082 E (CACC 120/1998, 10 December 1998, unreported), an aged offender who complained of ill health was told that his condition F could be ‘adequately dealt with in prison’. F [30-177] In HKSAR v Tam Yuen Tong [2007] 1 HKLRD 894, G G 896, [2007] HKCU 165, McMahon J made the point that ‘as a matter of reality most prisoners receive medical attention in H prison of an equal or better standard than they would otherwise H receive. In HKSAR v Chan Kau Tai [2008] 3 HKC 78, 89, [2008] 4 HKLRD 404, it was noted that the accused who needed a liver I transplant was being attended to in the custodial ward of Queen I Mary Hospital and was ‘in good hands’. Save in the rarest of J cases, a prisoner’s medical condition is not a matter to which this J court will have regard for mitigation of a proper sentence’: R v Ho Mei Lin [1996] 4 HKC 491, 493.” K K Impact of Social Conditions L L M 144. “Being compelled by circumstances” is not a mitigating M N factor: R v Caird [1970] 54 Cr App R 499 and Secretary for Justice v N Wong Chi Fung & 2 Others [2018] 2 HKLRD 699. Action against the O O police for their alleged brutalities and misconduct generally is also not a P mitigating factor: HKSAR v Leung Tin Kei (Chinese) [2019] 1 HKLRD P 1330; R v McCormack [1981] VR 104; R v Poynter ex parte Attorney Q Q General (Qld) [2006] QCA 517; R v Carling [2016] EWCA Crim 1947 at R paragraph 20. R S S 145. Further, these 4 defendants are highly intelligent individuals. T As pointed out above, the purported discussion of the Incident is beyond T the functions and business of the HKUSUC. This was a cogent reason for U U V V  - 84 - A A B B not dealing with the Incident at the HKUSUC. The defendants were C perfectly prepared to make use of the terms of the HKUSUC Constitution C when it suited them, but ignored them when the terms were against their D D stance. E E Conduct after Arrest F F G 146. The defence submitted that the defendants have continued to G work hard after their arrest and have attained outstanding academic H H achievements. In Sentencing in Hong Kong (10th Ed), the learned authors I said: I J J “[30-62] The way in which the accused has conducted himself since he committed the offence may sometimes affect sentence. K If there is ‘clear evidence of rehabilitation’ this may have K relevance: FGC v Western Australia [2008] 183 A Crim R 313, L 341, [2008] WASCA 47; R v Wong Hung Biu (CACC 579/1988, L 9 March 1989, unreported)… M [30-63] A discount, however, is by no means a given, as where M the offence involves a serious sexual assault… Absent a ‘character change or moral conversion’, the mere absence of N N criminality by an accused over the years since the offence may not avail him: HKSAR v Yasmin [2017] HKCU 3086 (CACC O 360/2016, 1 December 2017, unreported). Something more O substantial will normally be required. P [30-64] in R v Tutty [1998] 3 NZLR 165, 168, Thomas J said: P Q “… He may have faced up to and acknowledged his Q problem, demonstrated genuine remorse, obtained counselling or treatment where necessary, or in some R other way sought to reform himself and atone for his R earlier misdeeds… He may have made amends in many ways and be able to show that he has led an exemplary S S life since his early offending… While in such circumstances the need for deterrence in the case of the T offender him or herself may have diminished or T disappeared altogether, the need for a sentence which will serve as a general deterrent to such offending U U V V  - 85 - A A B remains. So too, the need for a sentence to mark society’s B denunciation and abhorrence of such offending is C unaffected.” C D 147. Bearing in mind the seriousness of the facts of the present case D and the gravamen of the offence, the principle enunciated in R v Tutty is E E applicable in the present case. F F Youth G G H 148. In Secretary for Justice v Wong Chi Fung and Ors [2018] 2 H HKC 50, [2018] 21 HKCFAR 35, [2018] HKCFA 4, it was said that the I I ‘age of an offender, whether youth or advanced age, is always a relevant J mitigating factor in sentencing’. J K K 149. However, youth is not a panacea, especially when the nature L L and facts of the case are serious. In Sentencing in Hong Kong (10th Ed), M it was pointed out that: M N N “[30-25] Youth notwithstanding, the court must keep in mind the classical principles of sentencing which, apart from O rehabilitation, include retribution, deterrence and prevention: O Attorney General v Fong Ming Yuen [1989] 1 HKC 327, [1989] 2 HKLR 177, 180. The interests of the community as a whole P must also be considered: Attorney General v Law Ying Cheung P [1981] HKC 161, 163. This means, for example, that the youth Q of the accused who commits a serious robbery, will count for Q little: R v Chung Man Kit [1990] 1 HKC 87, 89. Like considerations apply to the young offender who trafficks in a R dangerous drug: Secretary for Justice v Ko Fei Tat [2002] 4 R HKC 59, 64… In HKSAR v Bayanmunkh [2012] 2 HKC 233, 238, McWalters J said that the courts were at pains ‘to make it S S clear that no special consideration will be accorded to the young, the aged, the ill or disadvantaged or the financially impoverished T who are recruited to become drug couriers’. T U U V V  - 86 - A A B [30-26] in Re Applications for Review of Sentences [1972] B HKLR 370, 417, it was explained that: ‘The personality, youth C or personal circumstances of the offender may pale into C insignificance because of the magnitude or prevalence of the offence in question’. If serious crimes are committed by young D persons, they cannot expect to turn their age to their advantage D upon conviction. The courts, instead, must be prepared to ‘steel E themselves, unless there are particularly powerful and peculiar E contrary reasons attaching to the circumstances of the offender and his involvement in the offence, to the imposition of F substantial prison terms’: HKSAR v Law Ka Kit and Ors [2003] F 2 HKC 178, 187.” G G 150. It was obvious even to a child that honouring a criminal who H H chose to launch a vicious and cold-blooded attack on a law enforcement I officer is extremely wrong. The defendants in the present case were 18 to I 21 at the time of the offence. They were young but not of extreme youth. J J They are highly intelligent individuals who possessed abilities to think K critically. They chose to glorify the Incident in the most public and formal K manner. Having regard to the facts of the case, their youth is of very little L L significance to sentencing. M M Retraction N N O 151. There is no dispute that in the early hours on 9 July 2021, D2 O held a press conference where he read out a “letter of apology issued by P P HKUSU. He stated that the Resolution was inappropriate and that the Q HKUSU did not intend to promote any illegal or unlawful behaviour and Q that “as a gesture of apology”, the Resolution will be withdrawn and the R R members of the Executive Committee of the the HKUSU will resign S immediately. The press conference was filmed and broadcasted live on S Facebook and YouTube platforms of CAMPUS TV. T T U U V V  - 87 - A A B B 152. D1 did not apologise or attend the press conference. He C convened the 4th Meeting where the Motion and the Resolution were C rescinded. D2 to D4 did not attend the meeting, allegedly because of D D private matters. D3 thanked D1 and others for all that he has learnt and E wished “HKUSU and our dear city all the best”. D4 also thanked D1 and E said he was so “deeply sorry for all my inability and cowardice”. The F F resolution in respect of D2’s resignation as the president of the Executive G Committee of the HKUSU was passed; his letter stating that “the ups and G downs that we have gone through has made this journey a remarkable one H H yet with regret”. The proceedings of the 4th Meeting were filmed and I broadcasted live by CAMPUS TV on its Facebook and YouTube I platforms. J J K 153. Defence counsel relied on HKSAR v Lam Ka Sin [2021] 2 K HKLRD 32 and submitted that the swift rescission of the Motion and the L L Resolution was the most powerful mitigation. M M 154. In that case, the defendant pleaded guilty to a charge of N N conspiracy to launder money. She agreed to process a cheque through her O bank account for a fee. After the agreement, she changed her mind and had O to be forced to process the cheque. The cheque was defective on its face P P and could not be processed. The defendant then withdrew from the Q arrangement and a new cheque was negotiated through someone else’s Q R bank account. The court held that “… Where a person agrees to engage in R criminal conduct but because of some reason or intervening factor decides S S not to continue to be involved, this is a matter that clearly reflects on the T gravity of the offence and the culpability of the offender. The appellant’s T withdrawal from the arrangement provided strong support that she was U U V V  - 88 - A A B B forced to go through with this arrangement… Mr Lin conceded that there C was support for the appellant’s claim that she was forced to go through C with the arrangement, and that this was a matter favourable to the D D appellant…”. E E 155. Firstly, I have to point out that the appellant was forced to take F F part in the money laundering but cheque could not be processed. She then G changed her mind and withdrew from the arrangement. In the present case, G the offence was completed and there was no suggestion that the defendants H H committed the offence under duress. I I 156. The present case is more analogous to Secretary for Justice v J J Mong Hon Ming [2009] 4 HKLRD 298. In that case, the defendant, who K was the chief editor of Eastweek magazine pleaded guilty to publishing an K obscene article. The magazine published on the cover and the inside page L L of the Entertainment section, semi-nude photographs of a well-known M actress in distress and under compulsion taken by her kidnappers years M earlier. An accompanying article claimed it was in the public interest to N N warn young girls about the dark side of the entertainment industry. The O defendant based his plea on vicarious liability and falsely claimed that he O had been in the Mainland at the time of the publication. The Magistrate P P adopted a 9-month starting point and reduced it to 6 months for plea, he Q Q then suspended the sentence for 2 years given the mitigation and the R defendant’s “failure to supervise and scrutinise”. The Secretary for Justice R applied for a review of sentence. At the hearing, the defendant adduced an S S office memorandum showing that he was at work 4 days before the T photographs were published. The application for review was granted. It T was held that: U U V V  - 89 - A A B B C (1) This was, of its kind, a uniquely serious offence calling C for condign punishment… The very idea that any D D responsible member of the press would contemplate E publishing, under the guise of public interest, a story of E this kind, illustrated by photographs of a half-naked F F woman, taken when she was a victim of abuse, almost G defied belief and showed that scant regard was paid to G her dignity and feelings. H H I (2) Further, the defendant’s remorse was extremely I shallow, whilst his admission of guilt in the press J J became eventually, more than six years later, an K admission of guilt in court, this only occurred after K exhausting all legal manoeuvres. Even then, however, L L the defendant had tried to avoid any moral blame by M advancing false mitigation, which had seriously misled M the Magistrate. N N O 157. In his judgment, the court stated that: O P P “37. … there was no honest purpose in printing the article… In doing this, Eastweek and others, including its chief editor, Q Q showed that they paid scant regard for the dignity and feelings of a woman who was, at the time she was photographed, in a R state of undress and was the victim of abuse. Not surprisingly, R there was a public outcry and only after this occurred was an apology printed in the newspapers. S S 38. The apology itself is not without interest. It was written T in terms which accepted that the article was “totally wrong” and T stated that the publishers would “punish those who were responsible and account to the public”. However, it is difficult to U U V V  - 90 - A A B see that any punishment was in fact carried out having regard to B the respondent’s reinstatement only a few months later under the C new management which took over Eastweek. Nonetheless, we C recognise, at least to an extent, the fact that the respondent had at least come clean and admitted his wrongdoing when attaching D himself to the apology in the press. D E 39. This being said, in the light of what has now emerged, it E appears that the respondent’s remorse was shallow. Whilst it is true that the admission of guilt made by the respondent in the F newspaper became eventually, over six years later, an admission F of guilt in court, this came about only after all legal manoeuvres had been exhausted. Even then, however, the respondent was not G G prepared to face up to reality or put a truthful account of his involvement in this publication before the court. Instead, he H falsified his account by trying to avoid any moral blame by H saying that he was thousands of kilometres away at the time of the publication.” I I J 158. The chaos and violence since June 2019 placed Hong Kong J under international scrutiny. Although normality was restored after the K K NSL was enacted, the international scrutiny did not stop. It was in this L context that the defendants committed the present offence. They decided L to utter the inciting words in the most formal manner, purporting to M M represent the highest educational institution in the city, knowing full well N that the proceedings would be published to the public both locally and N internationally across all the social media platforms of the HKUSUC, O O UNDERGRAD and CAMPUS TV. In committing the offence, not only did P they pay absolutely no regard to the condition of the Police Officer, his P family and the effect of the Resolution on public law and order, they in fact Q Q glorified the violence. It was wholly foreseeable that the Resolution would R attract wide media coverage. What the defendants did not expect was the R public outcry that followed. S S T 159. The Government issued public statements condemning the T defendants’ conduct. On 8 July 2021: the Security Bureau issued U U V V  - 91 - A A B B statements to the public condemning HKUSUC for beautifying and C treating as heroic LEUNG’s blatant violence of attempting to murder the C Police Officer. On the same day, the HKU also condemned the Resolution D D for “glorifying violent attacks”. There was of course a possibility of E criminal liability and disciplinary action by the University against the E defendants [See Annex 5 counters 5 to 8]. The publications across social F F media also attracted some angry emojis. The apology was only issued and G the Motion and the Resolution rescinded in this context. G H H 160. During the 3rd Meeting, D2 and D3 suggested that the I Government was trying to suppress any activities to mourn Leung and I change the “truth”. D2 said: J J K 「…即係梁烈士佢身重不治，咁政權唔單止將佢嘅行為定義 K 為孤狼式恐怖襲擊，更加將所有嘅悼念情況都定性係犯 L 法…」 L M 161. D3 said: M N N 「…可能而家呢一年…，歷史都被篡改，開始被篡改嘅時 候…係呢件事發生咗都只係七日喇，咁即係香港警方佢都已 O O 經開始係用種種嘅理由去扼殺香港人去悼念喇，或者係講番 真相嘅一啲嘅行動…希望做到最少嘅嘢都係至少去銘記番 P 個真相…」（my emphasis) P Q Q 162. During the press conference, the media asked D2 whether R they were under pressure from the University, he replied: R S S 「記者：其實校方有冇就住呢件事喺呢一日同你哋接觸過或 者有冇要求過你哋做咩嘢行動先可以補救返呢？ T T U U V V  - 92 - A A B D2：我哋呢個係自己去構思嘅行動嘅…咁我哋個目的都係 B 想…我哋都覺得自己係辜負咗市民嘅期望，咁我哋都想喺度 C 藉呢個機會對於投票俾我哋嘅…投票信任我哋嘅同學喇、香 C 港大學學生…香港大學嘅學生同埋甚至乎係社會大眾嘅期 D 望，我哋都有辜負到嘅，咁呢度係我哋係致歉嘅。 D 記者：阿同學，…想問一問…學委會主席…李國章…對事件 E E 都有睇法、校方都有睇法。…擔唔擔心今次呢個嘅決議會帶 嚟一啲學生裏面嘅層面…嘅後果？同埋…都有提到話要用 F 國安法…或者法律嗰方面嚟去作追究…你哋擔唔擔心有呢 F 個後果？有啲咩嘢準備呢？ G G D2：…呢個我唔能夠評論太多，我亦都會唔會揣測太多… H 記者：學生會個層面呢？即係…唔關心…學籍上面或者紀律 H 聆訊咁樣？ I I D2：…我哋唔能夠選擇太多，同埋…其他學生成員嘅言論， 我哋唔能夠評論太多。 J J 記者：咁校方有冇施壓啊？ K K D2：對於學生以外嘅人嘅言論，我哋唔能…唔會評論太多。」 L L 163. D2’s answers gave the impression that the HKUSUC M M members were only tendering the apology, rescinding the Motion and N Resolution and resigning as a result of the consequences and pressure and N does little to mitigate the damage that was done. O O P 164. The defendants’ alleged remorse was very shallow. D1 never P apologised or attended the press conference, as was pointed out above, he Q Q has been trying to shift the blame on the other Council members and hiding R behind the alleged need for impartiality. Although their resignation has not R yet taken effect, D2 to D4 did not attend the 4th Meeting. D3 only wished S S “our dear city all the best”. D4 apologised for all his ‘inability and T cowardice”. Counsel suggested that the alleged cowardice was the lack of T U U V V  - 93 - A A B B courage to face the music at the 4th meeting. However, that does not explain C the word ‘inability”. C D D 165. In my judgment, the Apology, resignations and retraction of E the Motion and Resolution is of little mitigation value. E F F Sentence G G 166. As explained earlier, in view of the grave nature of the offence H H and the seriousness of the facts of this case, the appropriate starting point I is 35 months’ imprisonment. The defendants indicated their guilty plea I only at a very late stage, shortly before the trial. The appropriate discount J J is 20%. The sentence is reduced to 28 months’ imprisonment. The court K understands that the defendants were 18 to 21 at the time of the offence. K They are now all over 21. However, it was the defendants who chose not L L to plead guilty at the earliest opportunity, but instead tried to negotiate a M plea bargain that was wholly unrealistic. Although they are not significant M mitigating factors, I further reduce the sentence by 4 months on account of N N the defendants’ youth and renunciation of the Motion and Resolution. They O are each sentenced to 24 months’ imprisonment. O P P Q Q R R S S ( A N Tse Ching ) District Judge T T U U V V