區域法院（刑事）Her Honour Judge A J Woodcock14/5/2020[2020] HKDC 337
DCCC783/2019
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DCCC 783/2019
C [2020] HKDC 337 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 783 OF 2019
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HKSAR
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v
I SIN KA HO I
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K Before: Her Honour Judge A J Woodcock in Court K
Date: 15 May 2020
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Present: Ms Karen Ng, Senior Public Prosecutor (Ag), for
M HKSAR/Director of Public Prosecutions M
Ms Fiona Nam, instructed by Sanny Kwong & Co, for the
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defendant
O Offence: [1] Riot（暴動） O
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[2] & [3] Resisting a police officer in the execution of his duty P
（抗拒執行職責的警務人員）
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REASONS FOR SENTENCE
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1. The defendant pleaded guilty to taking part in a riot, contrary
C to section 19(1) and (2) of the Public Order Ordinance, Cap. 245. The C
particulars of the offence are that the defendant on 12 June 2019, outside
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the public entrance of the Legislative Council Complex, No 1 Legislative
E Council Road, together with other persons took part in a riot. E
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Facts
G G
2. This riot outside the public entrance of the seat of the
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legislature was clearly captured by security cameras; the CCTV footage is
I undisputed. During this riot, the defendant is seen at the front of a crowd I
with others facing police officers and acting violently. He can be clearly
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identified before he was arrested. He did not run away with the rest of the
K rioters behind him. He was essentially caught red-handed. K
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3. That day, 12 June 2019 was when the second reading of the
M Fugitive Offenders and Mutual Legal Assistance in Criminal Matters M
Legislation (Amendment) Bill 2019 was scheduled to resume. The
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designated demonstration area at the public entrance of the Legislative
O Council was not open to the public. The police had issued a letter of no O
objection to a public meeting organised by the Civil Human Rights Front
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on the pavement of Lung Wui Road opposite to the Legislative Council to
Q be held from between 10:00 on 12 June 2019 and midnight on 14 June Q
2019. This public meeting was subject to prescribed conditions.
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S 4. On the morning of 12 June 2019, the police had formed a S
police checkline outside the vehicular entrance of the Legislative Complex
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leading to the public entrance on Tim Mei Avenue. The police were there
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to prevent any unauthorised entry into the Legislative Council and maintain
C public order. Two rows of mills barriers were placed in front of the police C
checkline. From about the same time, a large group of protesters
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congregated opposite the police and built barricades with other mills
E barriers blocking the roads. There was a serious disruption to traffic from E
early morning there.
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G 5. Protesters and activists had called for a general strike that day G
as well as for the public to protest outside the Legislative Council to stall
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the bill from passing its second reading. This prompted the police to
I tighten security around the Legislative Council and the Central I
Government Offices. The roads were blocked around these buildings by
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protesters and by late morning the Legislative Council Secretariat had
K announced that the second reading debate on the bill had been postponed K
indefinitely. This announcement did not disperse the crowds.
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M 6. At lunchtime, around 14:00 an estimated 8,000 to 10,000 M
protesters surrounded the Legislative Council, occupying the pavements
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and roads of Legislative Council Road, Tim Mei Avenue and Lung Wui
O Road. The protesters were by in large peaceful. O
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7. At about 15:30, it appears without provocation, about 40 to 50
Q protesters in front of the police outside the vehicular entrance became Q
emotional, violent and charged at the police checkline. Just prior to the
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charge and almost simultaneously, many of those protesters opened and
S held up their umbrellas. They had already removed the barriers they S
erected in front of them to clear a path for them to charge at the police.
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Some held home-made shields and many hurled items at the police,
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including full water bottles, bricks dug up from pavements, umbrellas and
C iron bars. There were large yellow then red police warning flags displayed C
but ignored.
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E 8. There were several attempts to charge the police checkline E
causing the police to retreat backwards twice. Charging a police checkline
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lawfully formed to prevent people from moving beyond it must be
G disorderly conduct and a breach of the peace. A very large number of G
protesters broke through the police mills barriers and flooded into the
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public entrance of the Legislative Council previously closed. The police
I had to retreat to the main entrance of the public entrance area just in front I
of the glass doors of the Legislative Council.
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K 9. The prosecution says and it can be seen from the CCTV K
footage that those rioters in front of the police in the public entrance caused
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a breach of the peace. Violence was perpetrated by the defendant and
M others. The defendant and others can be seen on CCTV acting in a M
disorderly, intimidating, insulting, provocative and violent manner. Such
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conduct would undoubtedly provoke others to commit a breach of the
O peace. An unlawful assembly turned into a riot. There can be no doubt O
that the defendant took part in the furtherance of a riot, his and the actions
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of others made the assembly a riot. The defendant admits this, hence his
Q plea of guilty. Q
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10. The CCTV footage shows the defendant had an intent to assist
S others close to him in the execution of a common purpose, they displayed S
force and violence sufficient to put a bystander of reasonable firmness and
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courage in fear. He can be seen throwing objects with force at the police
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from a close distance. Other items thrown at the police include hard objects,
C filled water bottles, umbrellas and barriers. Barriers were repeatedly C
rammed against police officers who were backed up against a railing.
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E 11. The defendant himself admits that he picked up items from E
the ground and hurled them at the police. When he was at the front of the
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crowd, he and others together pushed mills barriers against the shields of
G the police in front of them. Those police had to also protect themselves G
from items thrown at them.
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I 12. Within a few minutes the other rioters and protesters behind I
the defendant retreated quickly but he remained to continue to throw items
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at the police. When he did eventually turn to run, the police were close
K enough to subdue him. It took the police firing tear gas regain control of K
the public entrance.
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M 13. The defendant was arrested for unlawful assembly and M
admitted he had participated in an unlawful assembly under caution. When
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arrested, he was wearing a white mask, a black helmet, a black windbreaker
O with a hood, a pair of long black trousers and wearing a pair of thick gloves. O
He was carrying a black bag and when searched, the police found seven
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plastic black strips in it, zip ties commonly seen used to tie metal mills
Q barriers together. Q
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14. That day, eight police officers manning checklines were hit
S by objects and they suffered injuries such as lacerations, abrasions and S
tenderness mainly over the limbs.
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Legislative Council CCTV and media footage
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15. The summary of facts admitted by the defendant includes a
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description of events captured by CCTV footage from the Legislative
E Council from several cameras exhibited in annex 1. Annex 2 contains still E
photographs or screenshots from some of the CCTV footage with the
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defendant identified in a blue box marked on the screenshots. Annex 3
G contains a description of events captured on live news videos from Now G
news. An exhibit is produced containing the CCTV footage from the
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Legislative Council and the news videos. Some of the Legislative Council
I footage was played in open court as part of the prosecution’s summary of I
facts.
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K 16. The difference between the media footage and the CCTV K
footage is as follows. Obviously, the CCTV cameras are fixed and do not
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move to film action as will happen when controlled by a cameraman.
M There is no sound therefore, no commentary which may inadvertently give M
opinions or make statements. The CCTV cameras are wide angled, capture
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more from a height and do so continuously without a break. I was told the
O Legislative Council camera footage was not shared with any news media O
nor has it previously been shown to the public.
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Q Annex 1 Q
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17. I intend to summarise what is described as the events captured
S on CCTV footage. I have watched it all for myself and summarise it from S
my own viewing. It is important to demonstrate the degree of violence
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used and to present the background for the purposes of sentencing. It
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shows how events descended into a riot. Before 15:25 the situation seen
C in footage from camera 22 outside the vehicular entrance was calm, so calm C
that there were pedestrians walking between the police checkline and the
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assembled protesters. The protesters had built barricades using mills
E barriers in front of them but at about 15:28 many of the protesters began to E
remove them. At 15:30 many of the protesters then opened their umbrellas
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to shield themselves. It was not raining. Clearly there was a plan which
G preceded them storming the police checkline. G
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18. The police knew there was to be some action and raised a
I yellow warning flag with the words “police cordon, do not cross”. Those I
protesters in the front held home-made shields and mills barriers. At 15:32
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those holding handmade shields banged them on the ground together
K appearing to signal to the crowd who then charged forward quickly straight K
into the police checkline. At 15:33 that crowd used violence to try to break
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through the mills barriers in front of the police. Hard objects were hurled
M and rammed against the police. The police used pepper spray to repel them. M
They retreated after a minute.
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O 19. At 15:39 the crowd of protesters again tried to break through O
the police checkline using mills barriers as shields and battering rams.
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Before this second charge, it is clear that those behind the protesters were
Q passing more mills barriers forward to those in the front of the crowd. Q
Before the second charge, the police held up a red warning flag with the
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words “stop charging or we use force” in large letters. This did not deter
S these protesters charging once more. Again, the police tried to disperse S
them with pepper spray. Many missiles can be seen flying through the air
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aimed at the police during this charge.
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C 20. At 15:41 the police retreated from their checkline to behind C
the vehicular entrance only to be quickly followed by the crowd of
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protesters who broke through the mills barriers set up by the police and
E rushed passed the vehicular entrance into the public entrance. The angle E
of camera 22 does move at 15:43 to follow the crowd through the vehicular
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entrance and into the public entrance. The number of protesters clearly
G outnumber the police. The public entrance is a large area under a cover G
with many large pillars.
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I 21. In the footage from camera 23 which points towards the I
public entrance from the vehicular entrance, at 15:41 the police retreated
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from in front of the vehicular gate to behind it but as the protesters charge
K once more, they retreat again towards the public entrance of the Legislative K
Council, to the covered area. Some of the first protesters inside hurl items
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at the police checkline. Within a few minutes, by 15:44 you can see the
M police having to retreat even further back up against the building. The M
whole public entrance area is quickly filled with protesters.
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O 22. In the footage from camera 33 PTZ one can see the whole area O
directly in front of the glass doors of the entrance to the building. It was in
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this area where the defendant rioted with others and was arrested. At 15:43
Q there was a row of police officers guarding the main entrance glass doors. Q
They can clearly see trouble in front of them coming through the vehicular
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entrance. At 15:45 the police who had retreated from the vehicular access
S were inching back towards those glass doors whilst those already there S
moved around. At 15:45:45 one can see the police backed up against the
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railing, the violence escalated, many hard items were thrown at the police
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and mills barriers were actually rammed into them. Those police officers
C had their backs against a railing. At 15:46:50 you can see the majority of C
the group of protesters and rioters suddenly turn and run away leaving the
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defendant on his own, seemingly oblivious to the fact that he was no longer
E surrounded by other protesters and rioters. He was so intent on inflicting E
injury he didn’t run when everyone else ran and was caught.
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G 23. In the footage of camera 33 at 15:45:54 the defendant can be G
seen picking up a mills barrier from the floor when he was near the front
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of the crowd. At 15:45:57 he picked up a yellow helmet and a red umbrella
I from the ground and then threw them at the police. At 15:46:04 the I
defendant again picked up a mills barrier from the ground and pushed it
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against the police; by now he was at the front of the crowd. He continued
K to do so for about 30 seconds. At 15:46:56 defendant can clearly be seen K
picking up and throwing a hard object with force at close range at the police
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in front of him. At 15:46:59 he picked up a dark coloured umbrella but
M when he closed it he discovered it was a folding umbrella which he then M
threw to the ground. At 15:47:05 he picked up a long umbrella and threw
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it like a spear at an officer who used his round shield to deflect it. At
O 15:47:09 the defendant picked up another hard object from the ground and O
threw that. By then everyone around him and behind him had run away
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yet he alone continues to attack doggedly and relentlessly. He was easily
Q caught at 15:47:10 by the police. Q
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24. All of his actions I have just described can clearly be seen in
S the screenshots from that same footage in Annex 2. The defendant agrees S
that it is him circled in blue in all of those screenshots. The prosecution
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also prepared another copy of the footage from camera 33 and 35 with the
C defendant live in action circled in blue when he can be seen. C
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25. Cameras 34 and 35 cover the public entrance from the
E opposite direction to camera 33. The defendant can actually be seen in E
camera 35 doing as I have just described as clearly from this other angle
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from 15:46:56. The camera angle caught the crowd from behind but one
G can see how violent those in front of the crowd were towards the police. G
They not only rammed them with mills barriers but tried to take them over
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the heads of the officers.
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26. Camera 34 covers the whole main entrance pointing in the
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direction of Lung Wo Road; it covers more than camera 33 which is
K pointed towards the glass doors. It is this footage that again demonstrated K
how many people broke through the barriers when the police were forced
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to retreat. It demonstrated how outnumbered the police were. One can see
M many of those people are throwing projectiles at the police and ramming M
mills barriers towards them. It showed how many of those who entered the
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public entrance were violent. Those by the glass doors in camera 33 with
O the defendant became the most violent. The footage then showed how it O
emptied out and how the police regained control of the public entrance.
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Q Annex 2 Q
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27. The screenshots in annex 2 are self-explanatory with the time
S of each screenshot visible and the defendant circled in blue. Those S
screenshots correspond with what he is described as doing in annex 1.
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28. In some of the screenshots there is a yellow object circled in
C red hurled by someone other than defendant. The prosecution suggest it C
was an object set on fire before it was thrown right over the heads of all
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those police officers in front of the glass doors. It clearly bounces off the
E glass doors behind them and lands on the ground. It can then be seen in E
the reflection of the glass in some screenshots and certainly in the actual
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CCTV footage. It does not appear to flicker nor does it appear to cause
G concern to police officers who pass it. I cannot say it was an object on fire G
thrown at police but I can say from the way it bounced off the glass that it
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was a hard projectile.
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Annex 3
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K 29. The prosecution have included two live news videos, video 16 K
and video 17 from Now news. Again, in annex 3 the prosecution have
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described the events as captured by the live news feed.
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30. In video 16 at 15:28 the protesters in front of the vehicular
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entrance began to dismantle and remove the barricades that they had
O previously built up. Even the reporter can be heard commenting on their O
intentions. At 15:29 the police can be heard shouting through a loudhailer
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to the protesters to not advance or attack the police. These verbal warnings
Q continue. A yellow warning flag was held up. At 15:33 a large group of Q
protesters began to charge the police checkline; instigated by several
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banging homemade shields on the ground in unison to appear to signal an
S advance and charge. Projectiles were thrown at the police at the same time, S
one protester was seen stabbing at the police with a metal pole. They
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retreated back but continued to throw hard objects despite verbal warnings.
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C 31. At 15:39 the cameraman panned to a large pile of bricks dug C
up and collected. At this time the protesters again charged the checkline
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with mills barriers and hurled bricks and umbrellas at the police. They
E retreated again within a minute. The events continued in video 17 with the E
police then retreating behind the vehicular entrance. At 15:40, some
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protesters can be seen gathering bricks and moving towards the police. The
G police discharged rubber bullets presumably because verbal warnings and G
flags were ignored. Despite such a serious warning and deterrent, at 15:41
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the protesters again charged at the police checkline that had retreated. At
I 15:43 the protesters are seen rushing into the vehicular entrance after I
breaking through the mills barriers set up by the police. The police are then
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forced to retreat by the oncoming crowd towards the back of the public
K entrance of the Legislative Council and the main glass doors. K
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32. The cameraman moved position and filmed into the public
M entrance from the direction of Lung Wo Road. The protesters rushed in M
and despite a police officer firing rubber bullets, they failed to stop.
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Several triangular battering rams consisting of mills barriers tied together
O were rammed at the police for maximum effect. O
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33. At 15:46 to 15:47 the footage shows teargas. This caused the
Q majority of the protesters who had stormed the public entrance to turn and Q
leave or back out. After the majority had left the public entrance, more
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teargas was fired. This is presumably to regain control of the entrance,
S keep the protesters from storming it again and gave the police an S
opportunity to re-form a checkline at the vehicular entrance which they did
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by 15:50. The police can be seen to regain control of the public entrance
C of the Legislative Council. C
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Mitigation
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34. The defendant is now 22 years old and has a clear record in
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Hong Kong. He has received an education up to Form 6 and when he was
G arrested he was working as a lifeguard earning about $18,000 a month and G
had been working as such for about 5 years. He is single, lives with his
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parents and an elder brother.
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35. In mitigation it was submitted that when the protesters
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charged at police checklines several times, the confrontation escalated and
K protesters including the defendant soon became emotional which resulted K
in the riot. The defendant was caught red-handed before he had a chance
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to run away from the scene and has pleaded guilty. His best mitigation is
M his plea of guilty. Defence counsel, Ms Nam has said everything she can M
say on his behalf.
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O 36. I have read the many mitigation letters presented. I have a O
letter from the defendant himself, his parents, his long-term girlfriend and
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his employer. I have also many letters from his previous school principal,
Q deputy principal and his many teachers; they span his lifetime at school. Q
Mitigation letters from those that knew him at school total 16.
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S 37. Defence counsel has reiterated his genuine remorse and the S
fact that his life changed forever when he was arrested that day. She
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submits the many letters from family and past teachers show his true
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character or rather show that his actions seen on CCTV on that day were
C out of character. His current employer has promised to re-employ him even C
if he has to serve a term of imprisonment.
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E 38. In his own mitigation letter the defendant writes that he E
understands that violence is never the way to express one’s opinion. The
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rule of law is not to be undermined and all matters should be resolved by
G more appropriate means. He is sorry to have disappointed his parents, G
brother and his girlfriend. He acknowledges that he, I quote “broke the
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peace of Hong Kong. I set a bad example for those young people yearning
I for change. If I had the opportunity to talk to them myself, I would urge I
them not resort to violence”. He takes full responsibility for his actions
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and mistake. He hopes to be able to contribute to his own family and Hong
K Kong society after serving his sentence. K
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Reasons for sentence
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39. The offence of rioting, contrary to section 19(1) and (2) of the
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Public Order Ordinance, will attract a maximum term of imprisonment on
O indictment of 10 years. O
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40. Freedom of peaceful assembly is guaranteed by the Basic Law
Q and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, Q
like the freedom of speech is indispensable to the building of a civilised
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society and essential to social stability and progress. The freedom of
S peaceful assembly enables members of the public to voice their criticisms, S
air grievances and seek redress on views they hold. However, the freedom
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of assembly is not absolute. Once a protester becomes involved in violence
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or the threat of violence, a breach of peace, then that protester crosses the
C line between constitutionally protected peaceful assembly and C
demonstration to an unlawful activity which is subject to legal sanctions.
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There is such a line to protect public order because society is prone to
E descend into anarchy if public order is not preserved. E
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41. A riot has an immediate and serious impact on the rule of law.
G The rule of law is a core value of Hong Kong and the cornerstone of its G
success. The law ensures that public order and peace are preserved; not
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threatened by the use of violence. If public order is not preserved, this
I affects the freedom and rights of citizens. I
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42. Sentencing for the offence of riot involves the factor of
K deterrence. Ms Nam submits the defendant’s actions and participation was K
out of character. She submits his actions were spontaneous and not
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premeditated. He was caught up with the crowd when protesters tried to
M gain entry to the public entrance and emotions were running high. It is M
against that background that he joined in with what became a riot. He had
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no intention to cause harm to the public. She submits this is not the most
O serious case for an offence of this nature. I am urged to balance his remorse, O
guilty plea, young age and clear record with the need to deter and punish.
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Q 43. A sentence must not only seek to prevent the offender from Q
reoffending, but also to give a proper warning to deter others from violating
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the law by breaking and disrupting public order in a like manner. Acts of
S violence or threats of violence will not and cannot be tolerated; such acts S
will attract a deterrent sentence to ensure that the public is protected. The
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Court of Appeal in HKSAR v Leung Tin Kei and others CACC 164/2018
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reiterated that courts will impose a sentence that is punitive and sufficiently
C deterrent in accordance with principles established in applicable case law. C
It therefore follows that the submissions made on the defendant’s behalf
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carry little weight.
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44. In this case, a deterrent sentence will reflect the fact that the
F defendant joined in an attempt to overpower police performing protective F
duties. Deterrence overrides the sentencing principle of rehabilitation in
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the prevailing circumstances including the increasing incidents of unrest
H and a rising number of large-scale public protests involving violence. This H
is clear from the Court of Final appeal in SJ v Wong Chi Fung 2018 21
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HKCFAR 35.
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K
45. The defendant was one of a large number engaged in a crime K
against peace, perhaps it was the sheer number with the defendant that gave
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him support and encouragement from being together with so many to riot.
M It is a common feature of mass disorder that if individuals within the crowd M
act violently, this will in turn inflame and encourage others to behave
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similarly. The harm done comes from the combined effect of what is done
O en masse. O
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46. For similar offences with different backgrounds and facts, the
Q sentences in those cases do not provide a helpful guidance. Each charge Q
must be considered on its own facts. What is a common factor is that the
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sentence should be punitive and sufficiently deterrent therefore, an
S immediate custodial sentence is inevitable. S
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47. The Court of Appeal in Leung Tin Kei set out various factors
C to be taken into account when passing sentence on the offence of riot. C
Courts must consider these factors and principles to arrive at a sentence
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according to the facts of each individual case. In that authority, the Court
E of Appeal upheld the sentences imposed. Those factors include:- E
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(1) whether the riot was spontaneous or premeditated; if it
G was the latter, how detailed and precise the plan was; G
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(2) the number of people engaged in the riot;
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(3) the degree of violence used by the rioters, including
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whether weapons were used and, if so, what kind and
K quantity of weapons; K
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(4) the scale of the riot, including the time, location, the
M number of places and the area in which the riot took M
place;
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O (5) the duration of the riot, including whether the riot was O
prolonged, and whether it still went on despite repeated
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warnings by the police or public officers;
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(6) the harm caused by the riot; for example, whether there
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was any loss or damage to properties and, if so, to what
S extent; whether anyone was injured and, if so, the S
number of injured persons and the degree of injury;
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(7) what imminence and gravity of threat was caused by
C the riot; C
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(8) the nature and extent of nuisance caused to the public
E by the riot; E
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(9) the impact on the relationship among community
G groups caused by the riot; G
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(10) burden caused to public expenditure by the riot;
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(11) the offender’s role and group participation; for instance,
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apart from taking part in the riot, whether he had
K arranged, led, summoned, incited or advocated others K
to take part in the riot;
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M (12) whether the offender committed any other crimes M
during the course of the riot.
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O 48. In Leung Tin Kei’s case the riot took place on 9 February 2016 O
in Argyle Street. Although I have not seen any video footage of that riot,
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I read a description of the events set out in the reasons for sentence. In my
Q view, this riot in the public entrance of the Legislature is more serious than Q
the riot on Argyle Street.
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S 49. I have been referred to HKSAR v Tang Ho Yin 2019 3 HKLRD S
502 where the appellant was a man with a clear record and aged 24 at the
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time he committed the offence of riot. He pleaded guilty at the earliest
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opportunity and the sentencing judge took a starting point of five years’
C imprisonment. The Court of Appeal considered the facts of that case, a riot C
between Shantung Street and Nathan Road on 9 February 2016 and
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although they said the appropriate starting point for that defendant was four
E years and six months, they dismissed the appeal. E
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50. In HKSAR v Yeung Ka Lun 2019 1 HKC 296, the Court of
G Appeal dealt with a riot that took place on the same day as the riot in Tang G
Ho Yin but in nearby Soy Street. That Court of Appeal described a starting
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point of five years’ imprisonment for the facts of that riot as appropriate.
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51. In deciding the starting point of the offence, the extent of the
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overall violence involved must be considered, not the defendant’s
K individual acts in isolation. It has been suggested in mitigation that the K
defendant joined in at a later stage, his actions were spontaneous and the
L L
riot did not last very long. It was submitted he didn’t bring any weapons
M to the scene and although he was wearing a mask and helmet he did not M
intend to come to cause harm to anyone.
N N
O 52. I quote from the authority R v Caird and others 1970 Cr App O
R 499 where LJ Sachs said at pages 507-508,
P P
Q “those who choose to take part in such unlawful occasions must Q
do so at their peril. … Any participation whatever, irrespective
of its precise form, in an unlawful or riotous assembly of this
R type derives its gravity from becoming one of those who, by R
weight of numbers, pursued a common and unlawful purpose.
The law of this country has always leant heavily against those
S S
who, to attain such a purpose, use the threat that lies in the power
of numbers. ... In the view of this court, it is a wholly wrong
T approach to take the acts of any individual participator in T
isolation. They were not committed in isolation and, as already
U U
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A A
B indicated, it is that very fact that constitutes the gravity of the B
offence.”
C C
Therefore, in considering an appropriate sentence, I consider the extent of
D D
the overall violence involved, not the defendant’s individual acts in
E
isolation. E
F F
53. Defence counsel has asked me to only consider the riot
G “outside the public entrance of the Legislative Council complex” as set out G
in the particulars of the offence. She has said that the charges at the police
H H
checkline at the vehicular entrance and behind the vehicular entrance
I should not be considered. I should only look at the scale of the riot in the I
public entrance to consider the culpability of the defendant.
J J
K 54. In order to consider the culpability of the defendant or to K
assess the defendant’s participation, it is important to say something of the
L L
scene leading up to the riot. I quote again from LJ Sachs in Caird from
M page 504-505 where he says, M
N N
“There has been canvassed before this court the distinction
between unlawful and riotous assemblies. Unlawful assemblies
O and riotous assemblies take many forms. … The moment when O
persons in a crowd, however peaceful their original intention,
commence to act for some shared common purpose supporting
P P
each other and in such a way that reasonable citizens fear a
breach of the peace, the assembly becomes unlawful. In
Q particular that applies when those concerned attempted Q
trespass. … or show preparedness to use force to achieve the
common purpose. The assembly becomes riotous at latest when
R alarming force or violence begins to be used. … R
S The borderline between the two is often not easily drawn with S
precision. … It is the law – and, indeed, in common sense it
should be the case – that any person who actively encourages or
T promotes an unlawful assembly or riot, whether by words, by T
signs or by actions, or who participates in it, is guilty of an
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A A
B offence which derives its great gravity from the simple fact that B
the persons concerned were acting in numbers and using those
C numbers to achieve their purpose.” C
55. Those first two prior charges of the police checklines before
D D
the protesters break through the barriers and enter the public entrance gives
E E
the background of what happened that afternoon. It is artificial to only look
F
at what happened inside the public entrance; it cannot be isolated. As LJ F
Sachs observed, the borderline between when an assembly becomes riotous
G G
is often not easily drawn with precision. In any event, it is part of the
H defendant’s mitigation that he got caught up with the crowd charging at the H
police, breaking through the checklines and entering the public entrance.
I I
This meant he was present when he says emotions were running high and
J it affected his behaviour. J
K K
56. In light of the aforesaid and taking into account the factors
L mentioned in Leung Tin Kei by the Court of Appeal as well as the CCTV L
footage, I take the view that the violence was large in scale and very serious.
M M
It can be seen to escalate. By the time there was a 3rd charge at the police
N checkline they were backed up against a railing in front of the doors to the N
Legislative Council.
O O
P 57. The degree of violence used became more extreme and more P
serious with every charge. I take into account that during the violence,
Q Q
hard objects were aimed at the police including pavement bricks, full water
R bottles and other hard unidentifiable objects. Once inside the public R
entrance, mills barriers designed for crowd control were used as battering
S S
rams against the police; they were repeatedly rammed. Several people with
T the defendant rammed the same barrier with as much strength as they could T
muster. This is clear from the CCTV footage. The officers in front of the
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A A
B B
glass doors were physically backed up against a railing. The violent
C behaviour and subsequent consequences could have been more serious if it C
had gone on any longer. It was cut short by teargas that caused the rioters
D D
to disperse and most of the crowd to leave the public entrance area. Such
E violence cannot be tolerated by a civilised and diversified society. E
F F
58. I repeat, I will consider the extent of the overall violence
G involved, not the defendant’s individual acts in isolation in order to decide G
a starting point. His behaviour seen on CCTV shows he endorsed the
H H
offence and actively took part in it. His culpability is significant.
I I
59. What I also consider relevant when I take into account the
J J
factors set out in Leung Tin Kei, is that the crowd directly in front of the
K police and the vehicular entrance confronted the police for quite some time K
before the riot. The police made repeated announcements and raised flags
L L
to warn the crowd not to charge the checkline. The crowd chose to ignore
M the repeated advice, announcements and warnings. The news footage M
shows people scolding police officers incessantly, stirring up emotions of
N N
people present and causing emotions to rise. Even after the first charge
O when the police discharged rubber bullets, the crowd did not stop or O
dissipate but charged again. It is relevant just how many people poured
P P
into the public entrance after the police checkline was broken through,
Q clearly outnumbering the police making the whole scene potentially even Q
more dangerous.
R R
S 60. Was there any premeditation or was it spontaneous? Looking S
at the crowd in front of the vehicular entrance, almost everyone was
T T
wearing masks, goggles and helmets to hide their identities, some were
U U
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A A
B B
wearing teargas masks. Many were holding home-made shields.
C Umbrellas were seen in the news footage being collected from the back of C
the crowd and carried to the protesters in the front like a conveyor belt as
D D
were more mills barriers after the first charge. Bricks in the pavements
E were dug up and piled up ready to be hurled at the police. A path was E
cleared to make a charge followed by signals when to charge at the police
F F
checkline. Triangular battering rams were made up before the public
G entrance was charged. All this behaviour and action demonstrated some G
premeditation of violence. To make matters worse, prior to the first
H H
planned charge there appears to be no provocation or particular
I confrontation that preceded it. It cannot be said that the violence and I
rioting that occurred was spontaneous.
J J
K 61. I also take the view that a repeated attack on the police in the K
due execution of their duties, their duty to protect the Legislative Council,
L L
which led to a riot at the doors of the Legislature of Hong Kong was a
M direct attack on the rule of law which undoubtedly caused harm. Such M
criminal conduct showed no respect for law and order nor the safety of law
N N
enforcement officers.
O O
P P
62. I have also considered the scale of the disturbance that
Q afternoon caused to the public, the harm to society, including the relation Q
between the police and the public as well as public expenditure resulting
R R
from it. Without a doubt, the present case was a very serious one.
S S
63. Accordingly, the defendant’s mitigation and personal
T T
circumstances are not mitigating factors of any significant weight. His plea
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A A
B B
of guilty does demonstrate remorse and I am sure he is now regretting his
C actions and participation. I note he apologises to his family and loved ones; C
I am conscious of their undoubted suffering as a result of his participation.
D D
E E
64. It is not an inconsiderable task to impose a punitive and
F deterrent sentence on a young man with a previous good character but this F
present case I repeat, is a very serious one and I must give proper weight
G G
to public interest.
H H
65. Having considered all the relevant factors against the
I I
circumstances, I am of the view that the appropriate starting point for
J
taking part in this riot is 6 years’ imprisonment after trial. The defendant J
K
pleaded guilty at the earliest opportunity and is therefore entitled to the K
usual full discount of one third. Accordingly, I reduce the starting point by
L L
two years and sentence the defendant to 4 years’ imprisonment.
M M
N N
O O
( A J Woodcock )
P District Judge P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 783/2019
C [2020] HKDC 337 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 783 OF 2019
F F
G ----------------------------- G
HKSAR
H H
v
I SIN KA HO I
-----------------------------
J J
K Before: Her Honour Judge A J Woodcock in Court K
Date: 15 May 2020
L L
Present: Ms Karen Ng, Senior Public Prosecutor (Ag), for
M HKSAR/Director of Public Prosecutions M
Ms Fiona Nam, instructed by Sanny Kwong & Co, for the
N N
defendant
O Offence: [1] Riot（暴動） O
P
[2] & [3] Resisting a police officer in the execution of his duty P
（抗拒執行職責的警務人員）
Q Q
R ----------------------------------------- R
REASONS FOR SENTENCE
S S
-----------------------------------------
T T
U U
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A A
B B
1. The defendant pleaded guilty to taking part in a riot, contrary
C to section 19(1) and (2) of the Public Order Ordinance, Cap. 245. The C
particulars of the offence are that the defendant on 12 June 2019, outside
D D
the public entrance of the Legislative Council Complex, No 1 Legislative
E Council Road, together with other persons took part in a riot. E
F F
Facts
G G
2. This riot outside the public entrance of the seat of the
H H
legislature was clearly captured by security cameras; the CCTV footage is
I undisputed. During this riot, the defendant is seen at the front of a crowd I
with others facing police officers and acting violently. He can be clearly
J J
identified before he was arrested. He did not run away with the rest of the
K rioters behind him. He was essentially caught red-handed. K
L L
3. That day, 12 June 2019 was when the second reading of the
M Fugitive Offenders and Mutual Legal Assistance in Criminal Matters M
Legislation (Amendment) Bill 2019 was scheduled to resume. The
N N
designated demonstration area at the public entrance of the Legislative
O Council was not open to the public. The police had issued a letter of no O
objection to a public meeting organised by the Civil Human Rights Front
P P
on the pavement of Lung Wui Road opposite to the Legislative Council to
Q be held from between 10:00 on 12 June 2019 and midnight on 14 June Q
2019. This public meeting was subject to prescribed conditions.
R R
S 4. On the morning of 12 June 2019, the police had formed a S
police checkline outside the vehicular entrance of the Legislative Complex
T T
leading to the public entrance on Tim Mei Avenue. The police were there
U U
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A A
B B
to prevent any unauthorised entry into the Legislative Council and maintain
C public order. Two rows of mills barriers were placed in front of the police C
checkline. From about the same time, a large group of protesters
D D
congregated opposite the police and built barricades with other mills
E barriers blocking the roads. There was a serious disruption to traffic from E
early morning there.
F F
G 5. Protesters and activists had called for a general strike that day G
as well as for the public to protest outside the Legislative Council to stall
H H
the bill from passing its second reading. This prompted the police to
I tighten security around the Legislative Council and the Central I
Government Offices. The roads were blocked around these buildings by
J J
protesters and by late morning the Legislative Council Secretariat had
K announced that the second reading debate on the bill had been postponed K
indefinitely. This announcement did not disperse the crowds.
L L
M 6. At lunchtime, around 14:00 an estimated 8,000 to 10,000 M
protesters surrounded the Legislative Council, occupying the pavements
N N
and roads of Legislative Council Road, Tim Mei Avenue and Lung Wui
O Road. The protesters were by in large peaceful. O
P P
7. At about 15:30, it appears without provocation, about 40 to 50
Q protesters in front of the police outside the vehicular entrance became Q
emotional, violent and charged at the police checkline. Just prior to the
R R
charge and almost simultaneously, many of those protesters opened and
S held up their umbrellas. They had already removed the barriers they S
erected in front of them to clear a path for them to charge at the police.
T T
Some held home-made shields and many hurled items at the police,
U U
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A A
B B
including full water bottles, bricks dug up from pavements, umbrellas and
C iron bars. There were large yellow then red police warning flags displayed C
but ignored.
D D
E 8. There were several attempts to charge the police checkline E
causing the police to retreat backwards twice. Charging a police checkline
F F
lawfully formed to prevent people from moving beyond it must be
G disorderly conduct and a breach of the peace. A very large number of G
protesters broke through the police mills barriers and flooded into the
H H
public entrance of the Legislative Council previously closed. The police
I had to retreat to the main entrance of the public entrance area just in front I
of the glass doors of the Legislative Council.
J J
K 9. The prosecution says and it can be seen from the CCTV K
footage that those rioters in front of the police in the public entrance caused
L L
a breach of the peace. Violence was perpetrated by the defendant and
M others. The defendant and others can be seen on CCTV acting in a M
disorderly, intimidating, insulting, provocative and violent manner. Such
N N
conduct would undoubtedly provoke others to commit a breach of the
O peace. An unlawful assembly turned into a riot. There can be no doubt O
that the defendant took part in the furtherance of a riot, his and the actions
P P
of others made the assembly a riot. The defendant admits this, hence his
Q plea of guilty. Q
R R
10. The CCTV footage shows the defendant had an intent to assist
S others close to him in the execution of a common purpose, they displayed S
force and violence sufficient to put a bystander of reasonable firmness and
T T
courage in fear. He can be seen throwing objects with force at the police
U U
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A A
B B
from a close distance. Other items thrown at the police include hard objects,
C filled water bottles, umbrellas and barriers. Barriers were repeatedly C
rammed against police officers who were backed up against a railing.
D D
E 11. The defendant himself admits that he picked up items from E
the ground and hurled them at the police. When he was at the front of the
F F
crowd, he and others together pushed mills barriers against the shields of
G the police in front of them. Those police had to also protect themselves G
from items thrown at them.
H H
I 12. Within a few minutes the other rioters and protesters behind I
the defendant retreated quickly but he remained to continue to throw items
J J
at the police. When he did eventually turn to run, the police were close
K enough to subdue him. It took the police firing tear gas regain control of K
the public entrance.
L L
M 13. The defendant was arrested for unlawful assembly and M
admitted he had participated in an unlawful assembly under caution. When
N N
arrested, he was wearing a white mask, a black helmet, a black windbreaker
O with a hood, a pair of long black trousers and wearing a pair of thick gloves. O
He was carrying a black bag and when searched, the police found seven
P P
plastic black strips in it, zip ties commonly seen used to tie metal mills
Q barriers together. Q
R R
14. That day, eight police officers manning checklines were hit
S by objects and they suffered injuries such as lacerations, abrasions and S
tenderness mainly over the limbs.
T T
U U
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A A
B B
Legislative Council CCTV and media footage
C C
15. The summary of facts admitted by the defendant includes a
D D
description of events captured by CCTV footage from the Legislative
E Council from several cameras exhibited in annex 1. Annex 2 contains still E
photographs or screenshots from some of the CCTV footage with the
F F
defendant identified in a blue box marked on the screenshots. Annex 3
G contains a description of events captured on live news videos from Now G
news. An exhibit is produced containing the CCTV footage from the
H H
Legislative Council and the news videos. Some of the Legislative Council
I footage was played in open court as part of the prosecution’s summary of I
facts.
J J
K 16. The difference between the media footage and the CCTV K
footage is as follows. Obviously, the CCTV cameras are fixed and do not
L L
move to film action as will happen when controlled by a cameraman.
M There is no sound therefore, no commentary which may inadvertently give M
opinions or make statements. The CCTV cameras are wide angled, capture
N N
more from a height and do so continuously without a break. I was told the
O Legislative Council camera footage was not shared with any news media O
nor has it previously been shown to the public.
P P
Q Annex 1 Q
R R
17. I intend to summarise what is described as the events captured
S on CCTV footage. I have watched it all for myself and summarise it from S
my own viewing. It is important to demonstrate the degree of violence
T T
used and to present the background for the purposes of sentencing. It
U U
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A A
B B
shows how events descended into a riot. Before 15:25 the situation seen
C in footage from camera 22 outside the vehicular entrance was calm, so calm C
that there were pedestrians walking between the police checkline and the
D D
assembled protesters. The protesters had built barricades using mills
E barriers in front of them but at about 15:28 many of the protesters began to E
remove them. At 15:30 many of the protesters then opened their umbrellas
F F
to shield themselves. It was not raining. Clearly there was a plan which
G preceded them storming the police checkline. G
H H
18. The police knew there was to be some action and raised a
I yellow warning flag with the words “police cordon, do not cross”. Those I
protesters in the front held home-made shields and mills barriers. At 15:32
J J
those holding handmade shields banged them on the ground together
K appearing to signal to the crowd who then charged forward quickly straight K
into the police checkline. At 15:33 that crowd used violence to try to break
L L
through the mills barriers in front of the police. Hard objects were hurled
M and rammed against the police. The police used pepper spray to repel them. M
They retreated after a minute.
N N
O 19. At 15:39 the crowd of protesters again tried to break through O
the police checkline using mills barriers as shields and battering rams.
P P
Before this second charge, it is clear that those behind the protesters were
Q passing more mills barriers forward to those in the front of the crowd. Q
Before the second charge, the police held up a red warning flag with the
R R
words “stop charging or we use force” in large letters. This did not deter
S these protesters charging once more. Again, the police tried to disperse S
them with pepper spray. Many missiles can be seen flying through the air
T T
aimed at the police during this charge.
U U
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A A
B B
C 20. At 15:41 the police retreated from their checkline to behind C
the vehicular entrance only to be quickly followed by the crowd of
D D
protesters who broke through the mills barriers set up by the police and
E rushed passed the vehicular entrance into the public entrance. The angle E
of camera 22 does move at 15:43 to follow the crowd through the vehicular
F F
entrance and into the public entrance. The number of protesters clearly
G outnumber the police. The public entrance is a large area under a cover G
with many large pillars.
H H
I 21. In the footage from camera 23 which points towards the I
public entrance from the vehicular entrance, at 15:41 the police retreated
J J
from in front of the vehicular gate to behind it but as the protesters charge
K once more, they retreat again towards the public entrance of the Legislative K
Council, to the covered area. Some of the first protesters inside hurl items
L L
at the police checkline. Within a few minutes, by 15:44 you can see the
M police having to retreat even further back up against the building. The M
whole public entrance area is quickly filled with protesters.
N N
O 22. In the footage from camera 33 PTZ one can see the whole area O
directly in front of the glass doors of the entrance to the building. It was in
P P
this area where the defendant rioted with others and was arrested. At 15:43
Q there was a row of police officers guarding the main entrance glass doors. Q
They can clearly see trouble in front of them coming through the vehicular
R R
entrance. At 15:45 the police who had retreated from the vehicular access
S were inching back towards those glass doors whilst those already there S
moved around. At 15:45:45 one can see the police backed up against the
T T
railing, the violence escalated, many hard items were thrown at the police
U U
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A A
B B
and mills barriers were actually rammed into them. Those police officers
C had their backs against a railing. At 15:46:50 you can see the majority of C
the group of protesters and rioters suddenly turn and run away leaving the
D D
defendant on his own, seemingly oblivious to the fact that he was no longer
E surrounded by other protesters and rioters. He was so intent on inflicting E
injury he didn’t run when everyone else ran and was caught.
F F
G 23. In the footage of camera 33 at 15:45:54 the defendant can be G
seen picking up a mills barrier from the floor when he was near the front
H H
of the crowd. At 15:45:57 he picked up a yellow helmet and a red umbrella
I from the ground and then threw them at the police. At 15:46:04 the I
defendant again picked up a mills barrier from the ground and pushed it
J J
against the police; by now he was at the front of the crowd. He continued
K to do so for about 30 seconds. At 15:46:56 defendant can clearly be seen K
picking up and throwing a hard object with force at close range at the police
L L
in front of him. At 15:46:59 he picked up a dark coloured umbrella but
M when he closed it he discovered it was a folding umbrella which he then M
threw to the ground. At 15:47:05 he picked up a long umbrella and threw
N N
it like a spear at an officer who used his round shield to deflect it. At
O 15:47:09 the defendant picked up another hard object from the ground and O
threw that. By then everyone around him and behind him had run away
P P
yet he alone continues to attack doggedly and relentlessly. He was easily
Q caught at 15:47:10 by the police. Q
R R
24. All of his actions I have just described can clearly be seen in
S the screenshots from that same footage in Annex 2. The defendant agrees S
that it is him circled in blue in all of those screenshots. The prosecution
T T
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A A
B B
also prepared another copy of the footage from camera 33 and 35 with the
C defendant live in action circled in blue when he can be seen. C
D D
25. Cameras 34 and 35 cover the public entrance from the
E opposite direction to camera 33. The defendant can actually be seen in E
camera 35 doing as I have just described as clearly from this other angle
F F
from 15:46:56. The camera angle caught the crowd from behind but one
G can see how violent those in front of the crowd were towards the police. G
They not only rammed them with mills barriers but tried to take them over
H H
the heads of the officers.
I I
26. Camera 34 covers the whole main entrance pointing in the
J J
direction of Lung Wo Road; it covers more than camera 33 which is
K pointed towards the glass doors. It is this footage that again demonstrated K
how many people broke through the barriers when the police were forced
L L
to retreat. It demonstrated how outnumbered the police were. One can see
M many of those people are throwing projectiles at the police and ramming M
mills barriers towards them. It showed how many of those who entered the
N N
public entrance were violent. Those by the glass doors in camera 33 with
O the defendant became the most violent. The footage then showed how it O
emptied out and how the police regained control of the public entrance.
P P
Q Annex 2 Q
R R
27. The screenshots in annex 2 are self-explanatory with the time
S of each screenshot visible and the defendant circled in blue. Those S
screenshots correspond with what he is described as doing in annex 1.
T T
U U
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A A
B B
28. In some of the screenshots there is a yellow object circled in
C red hurled by someone other than defendant. The prosecution suggest it C
was an object set on fire before it was thrown right over the heads of all
D D
those police officers in front of the glass doors. It clearly bounces off the
E glass doors behind them and lands on the ground. It can then be seen in E
the reflection of the glass in some screenshots and certainly in the actual
F F
CCTV footage. It does not appear to flicker nor does it appear to cause
G concern to police officers who pass it. I cannot say it was an object on fire G
thrown at police but I can say from the way it bounced off the glass that it
H H
was a hard projectile.
I I
Annex 3
J J
K 29. The prosecution have included two live news videos, video 16 K
and video 17 from Now news. Again, in annex 3 the prosecution have
L L
described the events as captured by the live news feed.
M M
30. In video 16 at 15:28 the protesters in front of the vehicular
N N
entrance began to dismantle and remove the barricades that they had
O previously built up. Even the reporter can be heard commenting on their O
intentions. At 15:29 the police can be heard shouting through a loudhailer
P P
to the protesters to not advance or attack the police. These verbal warnings
Q continue. A yellow warning flag was held up. At 15:33 a large group of Q
protesters began to charge the police checkline; instigated by several
R R
banging homemade shields on the ground in unison to appear to signal an
S advance and charge. Projectiles were thrown at the police at the same time, S
one protester was seen stabbing at the police with a metal pole. They
T T
retreated back but continued to throw hard objects despite verbal warnings.
U U
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A A
B B
C 31. At 15:39 the cameraman panned to a large pile of bricks dug C
up and collected. At this time the protesters again charged the checkline
D D
with mills barriers and hurled bricks and umbrellas at the police. They
E retreated again within a minute. The events continued in video 17 with the E
police then retreating behind the vehicular entrance. At 15:40, some
F F
protesters can be seen gathering bricks and moving towards the police. The
G police discharged rubber bullets presumably because verbal warnings and G
flags were ignored. Despite such a serious warning and deterrent, at 15:41
H H
the protesters again charged at the police checkline that had retreated. At
I 15:43 the protesters are seen rushing into the vehicular entrance after I
breaking through the mills barriers set up by the police. The police are then
J J
forced to retreat by the oncoming crowd towards the back of the public
K entrance of the Legislative Council and the main glass doors. K
L L
32. The cameraman moved position and filmed into the public
M entrance from the direction of Lung Wo Road. The protesters rushed in M
and despite a police officer firing rubber bullets, they failed to stop.
N N
Several triangular battering rams consisting of mills barriers tied together
O were rammed at the police for maximum effect. O
P P
33. At 15:46 to 15:47 the footage shows teargas. This caused the
Q majority of the protesters who had stormed the public entrance to turn and Q
leave or back out. After the majority had left the public entrance, more
R R
teargas was fired. This is presumably to regain control of the entrance,
S keep the protesters from storming it again and gave the police an S
opportunity to re-form a checkline at the vehicular entrance which they did
T T
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A A
B B
by 15:50. The police can be seen to regain control of the public entrance
C of the Legislative Council. C
D D
Mitigation
E E
34. The defendant is now 22 years old and has a clear record in
F F
Hong Kong. He has received an education up to Form 6 and when he was
G arrested he was working as a lifeguard earning about $18,000 a month and G
had been working as such for about 5 years. He is single, lives with his
H H
parents and an elder brother.
I I
35. In mitigation it was submitted that when the protesters
J J
charged at police checklines several times, the confrontation escalated and
K protesters including the defendant soon became emotional which resulted K
in the riot. The defendant was caught red-handed before he had a chance
L L
to run away from the scene and has pleaded guilty. His best mitigation is
M his plea of guilty. Defence counsel, Ms Nam has said everything she can M
say on his behalf.
N N
O 36. I have read the many mitigation letters presented. I have a O
letter from the defendant himself, his parents, his long-term girlfriend and
P P
his employer. I have also many letters from his previous school principal,
Q deputy principal and his many teachers; they span his lifetime at school. Q
Mitigation letters from those that knew him at school total 16.
R R
S 37. Defence counsel has reiterated his genuine remorse and the S
fact that his life changed forever when he was arrested that day. She
T T
submits the many letters from family and past teachers show his true
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A A
B B
character or rather show that his actions seen on CCTV on that day were
C out of character. His current employer has promised to re-employ him even C
if he has to serve a term of imprisonment.
D D
E 38. In his own mitigation letter the defendant writes that he E
understands that violence is never the way to express one’s opinion. The
F F
rule of law is not to be undermined and all matters should be resolved by
G more appropriate means. He is sorry to have disappointed his parents, G
brother and his girlfriend. He acknowledges that he, I quote “broke the
H H
peace of Hong Kong. I set a bad example for those young people yearning
I for change. If I had the opportunity to talk to them myself, I would urge I
them not resort to violence”. He takes full responsibility for his actions
J J
and mistake. He hopes to be able to contribute to his own family and Hong
K Kong society after serving his sentence. K
L L
Reasons for sentence
M M
39. The offence of rioting, contrary to section 19(1) and (2) of the
N N
Public Order Ordinance, will attract a maximum term of imprisonment on
O indictment of 10 years. O
P P
40. Freedom of peaceful assembly is guaranteed by the Basic Law
Q and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, Q
like the freedom of speech is indispensable to the building of a civilised
R R
society and essential to social stability and progress. The freedom of
S peaceful assembly enables members of the public to voice their criticisms, S
air grievances and seek redress on views they hold. However, the freedom
T T
of assembly is not absolute. Once a protester becomes involved in violence
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A A
B B
or the threat of violence, a breach of peace, then that protester crosses the
C line between constitutionally protected peaceful assembly and C
demonstration to an unlawful activity which is subject to legal sanctions.
D D
There is such a line to protect public order because society is prone to
E descend into anarchy if public order is not preserved. E
F F
41. A riot has an immediate and serious impact on the rule of law.
G The rule of law is a core value of Hong Kong and the cornerstone of its G
success. The law ensures that public order and peace are preserved; not
H H
threatened by the use of violence. If public order is not preserved, this
I affects the freedom and rights of citizens. I
J J
42. Sentencing for the offence of riot involves the factor of
K deterrence. Ms Nam submits the defendant’s actions and participation was K
out of character. She submits his actions were spontaneous and not
L L
premeditated. He was caught up with the crowd when protesters tried to
M gain entry to the public entrance and emotions were running high. It is M
against that background that he joined in with what became a riot. He had
N N
no intention to cause harm to the public. She submits this is not the most
O serious case for an offence of this nature. I am urged to balance his remorse, O
guilty plea, young age and clear record with the need to deter and punish.
P P
Q 43. A sentence must not only seek to prevent the offender from Q
reoffending, but also to give a proper warning to deter others from violating
R R
the law by breaking and disrupting public order in a like manner. Acts of
S violence or threats of violence will not and cannot be tolerated; such acts S
will attract a deterrent sentence to ensure that the public is protected. The
T T
Court of Appeal in HKSAR v Leung Tin Kei and others CACC 164/2018
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A A
B B
reiterated that courts will impose a sentence that is punitive and sufficiently
C deterrent in accordance with principles established in applicable case law. C
It therefore follows that the submissions made on the defendant’s behalf
D D
carry little weight.
E E
44. In this case, a deterrent sentence will reflect the fact that the
F defendant joined in an attempt to overpower police performing protective F
duties. Deterrence overrides the sentencing principle of rehabilitation in
G G
the prevailing circumstances including the increasing incidents of unrest
H and a rising number of large-scale public protests involving violence. This H
is clear from the Court of Final appeal in SJ v Wong Chi Fung 2018 21
I I
HKCFAR 35.
J J
K
45. The defendant was one of a large number engaged in a crime K
against peace, perhaps it was the sheer number with the defendant that gave
L L
him support and encouragement from being together with so many to riot.
M It is a common feature of mass disorder that if individuals within the crowd M
act violently, this will in turn inflame and encourage others to behave
N N
similarly. The harm done comes from the combined effect of what is done
O en masse. O
P P
46. For similar offences with different backgrounds and facts, the
Q sentences in those cases do not provide a helpful guidance. Each charge Q
must be considered on its own facts. What is a common factor is that the
R R
sentence should be punitive and sufficiently deterrent therefore, an
S immediate custodial sentence is inevitable. S
T T
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A A
B B
47. The Court of Appeal in Leung Tin Kei set out various factors
C to be taken into account when passing sentence on the offence of riot. C
Courts must consider these factors and principles to arrive at a sentence
D D
according to the facts of each individual case. In that authority, the Court
E of Appeal upheld the sentences imposed. Those factors include:- E
F F
(1) whether the riot was spontaneous or premeditated; if it
G was the latter, how detailed and precise the plan was; G
H H
(2) the number of people engaged in the riot;
I I
(3) the degree of violence used by the rioters, including
J J
whether weapons were used and, if so, what kind and
K quantity of weapons; K
L L
(4) the scale of the riot, including the time, location, the
M number of places and the area in which the riot took M
place;
N N
O (5) the duration of the riot, including whether the riot was O
prolonged, and whether it still went on despite repeated
P P
warnings by the police or public officers;
Q Q
(6) the harm caused by the riot; for example, whether there
R R
was any loss or damage to properties and, if so, to what
S extent; whether anyone was injured and, if so, the S
number of injured persons and the degree of injury;
T T
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A A
B B
(7) what imminence and gravity of threat was caused by
C the riot; C
D D
(8) the nature and extent of nuisance caused to the public
E by the riot; E
F F
(9) the impact on the relationship among community
G groups caused by the riot; G
H H
(10) burden caused to public expenditure by the riot;
I I
(11) the offender’s role and group participation; for instance,
J J
apart from taking part in the riot, whether he had
K arranged, led, summoned, incited or advocated others K
to take part in the riot;
L L
M (12) whether the offender committed any other crimes M
during the course of the riot.
N N
O 48. In Leung Tin Kei’s case the riot took place on 9 February 2016 O
in Argyle Street. Although I have not seen any video footage of that riot,
P P
I read a description of the events set out in the reasons for sentence. In my
Q view, this riot in the public entrance of the Legislature is more serious than Q
the riot on Argyle Street.
R R
S 49. I have been referred to HKSAR v Tang Ho Yin 2019 3 HKLRD S
502 where the appellant was a man with a clear record and aged 24 at the
T T
time he committed the offence of riot. He pleaded guilty at the earliest
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A A
B B
opportunity and the sentencing judge took a starting point of five years’
C imprisonment. The Court of Appeal considered the facts of that case, a riot C
between Shantung Street and Nathan Road on 9 February 2016 and
D D
although they said the appropriate starting point for that defendant was four
E years and six months, they dismissed the appeal. E
F F
50. In HKSAR v Yeung Ka Lun 2019 1 HKC 296, the Court of
G Appeal dealt with a riot that took place on the same day as the riot in Tang G
Ho Yin but in nearby Soy Street. That Court of Appeal described a starting
H H
point of five years’ imprisonment for the facts of that riot as appropriate.
I I
51. In deciding the starting point of the offence, the extent of the
J J
overall violence involved must be considered, not the defendant’s
K individual acts in isolation. It has been suggested in mitigation that the K
defendant joined in at a later stage, his actions were spontaneous and the
L L
riot did not last very long. It was submitted he didn’t bring any weapons
M to the scene and although he was wearing a mask and helmet he did not M
intend to come to cause harm to anyone.
N N
O 52. I quote from the authority R v Caird and others 1970 Cr App O
R 499 where LJ Sachs said at pages 507-508,
P P
Q “those who choose to take part in such unlawful occasions must Q
do so at their peril. … Any participation whatever, irrespective
of its precise form, in an unlawful or riotous assembly of this
R type derives its gravity from becoming one of those who, by R
weight of numbers, pursued a common and unlawful purpose.
The law of this country has always leant heavily against those
S S
who, to attain such a purpose, use the threat that lies in the power
of numbers. ... In the view of this court, it is a wholly wrong
T approach to take the acts of any individual participator in T
isolation. They were not committed in isolation and, as already
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A A
B indicated, it is that very fact that constitutes the gravity of the B
offence.”
C C
Therefore, in considering an appropriate sentence, I consider the extent of
D D
the overall violence involved, not the defendant’s individual acts in
E
isolation. E
F F
53. Defence counsel has asked me to only consider the riot
G “outside the public entrance of the Legislative Council complex” as set out G
in the particulars of the offence. She has said that the charges at the police
H H
checkline at the vehicular entrance and behind the vehicular entrance
I should not be considered. I should only look at the scale of the riot in the I
public entrance to consider the culpability of the defendant.
J J
K 54. In order to consider the culpability of the defendant or to K
assess the defendant’s participation, it is important to say something of the
L L
scene leading up to the riot. I quote again from LJ Sachs in Caird from
M page 504-505 where he says, M
N N
“There has been canvassed before this court the distinction
between unlawful and riotous assemblies. Unlawful assemblies
O and riotous assemblies take many forms. … The moment when O
persons in a crowd, however peaceful their original intention,
commence to act for some shared common purpose supporting
P P
each other and in such a way that reasonable citizens fear a
breach of the peace, the assembly becomes unlawful. In
Q particular that applies when those concerned attempted Q
trespass. … or show preparedness to use force to achieve the
common purpose. The assembly becomes riotous at latest when
R alarming force or violence begins to be used. … R
S The borderline between the two is often not easily drawn with S
precision. … It is the law – and, indeed, in common sense it
should be the case – that any person who actively encourages or
T promotes an unlawful assembly or riot, whether by words, by T
signs or by actions, or who participates in it, is guilty of an
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A A
B offence which derives its great gravity from the simple fact that B
the persons concerned were acting in numbers and using those
C numbers to achieve their purpose.” C
55. Those first two prior charges of the police checklines before
D D
the protesters break through the barriers and enter the public entrance gives
E E
the background of what happened that afternoon. It is artificial to only look
F
at what happened inside the public entrance; it cannot be isolated. As LJ F
Sachs observed, the borderline between when an assembly becomes riotous
G G
is often not easily drawn with precision. In any event, it is part of the
H defendant’s mitigation that he got caught up with the crowd charging at the H
police, breaking through the checklines and entering the public entrance.
I I
This meant he was present when he says emotions were running high and
J it affected his behaviour. J
K K
56. In light of the aforesaid and taking into account the factors
L mentioned in Leung Tin Kei by the Court of Appeal as well as the CCTV L
footage, I take the view that the violence was large in scale and very serious.
M M
It can be seen to escalate. By the time there was a 3rd charge at the police
N checkline they were backed up against a railing in front of the doors to the N
Legislative Council.
O O
P 57. The degree of violence used became more extreme and more P
serious with every charge. I take into account that during the violence,
Q Q
hard objects were aimed at the police including pavement bricks, full water
R bottles and other hard unidentifiable objects. Once inside the public R
entrance, mills barriers designed for crowd control were used as battering
S S
rams against the police; they were repeatedly rammed. Several people with
T the defendant rammed the same barrier with as much strength as they could T
muster. This is clear from the CCTV footage. The officers in front of the
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A A
B B
glass doors were physically backed up against a railing. The violent
C behaviour and subsequent consequences could have been more serious if it C
had gone on any longer. It was cut short by teargas that caused the rioters
D D
to disperse and most of the crowd to leave the public entrance area. Such
E violence cannot be tolerated by a civilised and diversified society. E
F F
58. I repeat, I will consider the extent of the overall violence
G involved, not the defendant’s individual acts in isolation in order to decide G
a starting point. His behaviour seen on CCTV shows he endorsed the
H H
offence and actively took part in it. His culpability is significant.
I I
59. What I also consider relevant when I take into account the
J J
factors set out in Leung Tin Kei, is that the crowd directly in front of the
K police and the vehicular entrance confronted the police for quite some time K
before the riot. The police made repeated announcements and raised flags
L L
to warn the crowd not to charge the checkline. The crowd chose to ignore
M the repeated advice, announcements and warnings. The news footage M
shows people scolding police officers incessantly, stirring up emotions of
N N
people present and causing emotions to rise. Even after the first charge
O when the police discharged rubber bullets, the crowd did not stop or O
dissipate but charged again. It is relevant just how many people poured
P P
into the public entrance after the police checkline was broken through,
Q clearly outnumbering the police making the whole scene potentially even Q
more dangerous.
R R
S 60. Was there any premeditation or was it spontaneous? Looking S
at the crowd in front of the vehicular entrance, almost everyone was
T T
wearing masks, goggles and helmets to hide their identities, some were
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A A
B B
wearing teargas masks. Many were holding home-made shields.
C Umbrellas were seen in the news footage being collected from the back of C
the crowd and carried to the protesters in the front like a conveyor belt as
D D
were more mills barriers after the first charge. Bricks in the pavements
E were dug up and piled up ready to be hurled at the police. A path was E
cleared to make a charge followed by signals when to charge at the police
F F
checkline. Triangular battering rams were made up before the public
G entrance was charged. All this behaviour and action demonstrated some G
premeditation of violence. To make matters worse, prior to the first
H H
planned charge there appears to be no provocation or particular
I confrontation that preceded it. It cannot be said that the violence and I
rioting that occurred was spontaneous.
J J
K 61. I also take the view that a repeated attack on the police in the K
due execution of their duties, their duty to protect the Legislative Council,
L L
which led to a riot at the doors of the Legislature of Hong Kong was a
M direct attack on the rule of law which undoubtedly caused harm. Such M
criminal conduct showed no respect for law and order nor the safety of law
N N
enforcement officers.
O O
P P
62. I have also considered the scale of the disturbance that
Q afternoon caused to the public, the harm to society, including the relation Q
between the police and the public as well as public expenditure resulting
R R
from it. Without a doubt, the present case was a very serious one.
S S
63. Accordingly, the defendant’s mitigation and personal
T T
circumstances are not mitigating factors of any significant weight. His plea
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A A
B B
of guilty does demonstrate remorse and I am sure he is now regretting his
C actions and participation. I note he apologises to his family and loved ones; C
I am conscious of their undoubted suffering as a result of his participation.
D D
E E
64. It is not an inconsiderable task to impose a punitive and
F deterrent sentence on a young man with a previous good character but this F
present case I repeat, is a very serious one and I must give proper weight
G G
to public interest.
H H
65. Having considered all the relevant factors against the
I I
circumstances, I am of the view that the appropriate starting point for
J
taking part in this riot is 6 years’ imprisonment after trial. The defendant J
K
pleaded guilty at the earliest opportunity and is therefore entitled to the K
usual full discount of one third. Accordingly, I reduce the starting point by
L L
two years and sentence the defendant to 4 years’ imprisonment.
M M
N N
O O
( A J Woodcock )
P District Judge P
Q Q
R R
S S
T T
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