DCCC813/2019 HKSAR v. LEUNG PAK TIM AND OTHERS - LawHero
DCCC813/2019
區域法院（刑事）Her Honour Judge A J Woodcock23/9/2020[2020] HKDC 838
DCCC813/2019
A A
B B
DCCC 813/2019
C [2020] HKDC 838 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 813 OF 2019
F F
G ----------------------------- G
HKSAR
H H
v
I LEUNG PAK TIM (D1) I
KUNG CHI YUEN (D2)
J J
LEE MAN HIM (D3)
K ----------------------------- K
L L
Before: Her Honour Judge A J Woodcock in Court
M Date: 24 September 2020 M
Present: Mr Ivan Cheung, Senior Public Prosecutor, for
N N
HKSAR/Director of Public Prosecutions
O Mr Shek Shu Ming, Randy, instructed by S T Cheng & Co, O
assigned by the Director of Legal Aid, for the 1st defendant
P P
Mr Lai Kin Wah, Kelvin, instructed by Fan Wong & Tso,
Q assigned by the Director of Legal Aid, for the 2 nd defendant Q
Mr Kwan Hang Fan, Jasper, instructed by Cedric & Co,
R R
rd
assigned by the Director of Legal Aid, for the 3 defendant
S Offence: [1] Riot（暴動） - D1 – D3 S
T [2] Causing grievous bodily harm with intent（有意圖而導 T
致身體受嚴重傷害） - D1 & D3
U U
V V
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A A
B B
[3] Riot（暴動） - D1 & D2
C [4] Causing grievous bodily harm with intent（有意圖而導 C
致身體受嚴重傷害） - D1 & D2
D D
E E
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F
REASONS FOR SENTENCE F
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G G
H 1. There are 2 riot charges in this case, Charges 1 and 3. 2 riots H
took place on Level III, Phase 1 of New Town Plaza in Shatin, New
I I
Territories one after the other. During those riots a police officer was
J wounded in the course of each riot. Charges 2 and 4 are offences of causing J
grievous bodily harm with intent to those 2 officers during those 2 riots.
K K
L 2. The 1st defendant pleaded guilty to Charges 1 and 3. The 2nd L
defendant also pleaded guilty to Charges 1 and 3. The 3rd defendant only
M M
faced one riot charge and pleaded guilty to Charge 1. Those defendants
N facing Charges 2 and 4 pleaded not guilty and those 2 charges were put on N
the court file, not to be dealt with unless there is an order from this court
O O
or the Court of Appeal.
P P
3. Accordingly, the 1st defendant was convicted of both charges
Q Q
nd rd
of riot, Charges 1 and 3 as was the 2 defendant. The 3 defendant was
R convicted of Charge 1, a single riot charge. R
S S
T T
U U
V V
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A A
B B
Facts of the case
C C
4. Since June 2019, Hong Kong experienced a series of protests
D D
in opposition to the Fugitive Offenders and Mutual Legal Assistance in
E Criminal Matters Legislation (Amendment) Bill. The protests escalated E
into serious social unrest and public disorder including on occasions, riots.
F F
G G
5. On the 14 July 2019 there were large crowds of protesters
H H
gathered in the Shatin area. As a result, various units of police officers had
I
to be deployed in the area to restore law and order. A particular unit of I
police officers in plain clothes were deployed together with uniform
J J
officers near Lucky Plaza, Shatin. They dispersed crowds gathered in that
K Plaza before stationing themselves in Shatin Centre at about 21:20 hours. K
L L
6. Amongst these officers were PW1 and PW2 in plain clothes.
M M
PW1 was tasked with video taking duties at the time. At about 21:45 hours
N N
these 2 officers with other members of their party were deployed to enter
O
Shatin New Town Plaza Phase 1. They entered Level III through a O
passageway from Shatin Centre.
P P
Q Q
7. As their party entered Shatin New Town Plaza, uniformed
R officers were assaulted by a large number of protesters with umbrellas, R
punches and kicks. They fell over on the ground because there was an
S S
identified liquid spilled which caused officers to fall. At the same time
T umbrellas and hard objects such as water bottles were thrown from a height T
U
down at those police officers. As a result, during the commotion that police U
V V
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A A
B B
party was separated and scattered on that Level III area and rioting
C occurred. C
D D
8. PW1 was wearing a standard police vest, a police helmet and
E E
was only holding a round shield. He saw a police officer being assaulted
F by protesters and went to help him. As he moved forward, he was on his F
G
own and singled out. He was then quickly surrounded and violently G
assaulted by a large group of protesters of at least 20 people outside Shop
H H
398. He was punched, kicked and stabbed with items such as umbrellas.
I
He was hit with other hard objects. This assault took place at around 21:55 I
hours and lasted for about 1 minute. There is CCTV footage from several
J J
angles of this riot and of this officer on the ground being attacked. Those
K rioters dispersed and stopped hitting PW1 when a uniformed officer came K
to assist him.
L L
M M
st
9. The 1 defendant admits he used an umbrella to repeatedly
N N
assault PW1 and kicked him. In the CCTV footage you can see him holding
O
an umbrella up like a spear to stab at the officer and then he is in the front O
of the rioters where the officer is on the ground. The CCTV footage does
P P
not support the mitigation that the 1st defendant is not a man who
Q participates in gratuitous violence. Q
R R
10. The 2nd defendant tried to penetrate the crowd of rioters and
S S
nd
made his way through just as PW1 got back on his feet. The 2 defendant
T can be seen throwing an umbrella at an officer coming to PW1’s aid before T
U
running away. U
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A A
B B
11. The 3rd defendant is identified in the CCTV footage and he
C stabbed at the officer on the ground with an umbrella in a very fast, C
continuous and aggressive manner; over 20 times. During the attack he
D D
dropped the umbrella but despite people beginning to disperse, he picked
E it up again and resumed the attack. He was one of the last rioters to strike E
PW1 before running away and as he turned to run, he pumped his fist in
F F
the air. This CCTV footage does not support the mitigation he is not a
G violent person but more of a dispute mediator. G
H H
I
12. PW1 was very seriously injured and has suffered life changing I
consequences. He suffered from a left periorbital fracture, left maxillary
J J
fracture (which is a fracture of left orbital floor and medial wall fracture),
K his nose was fractured, bruising to his face and a hematoma on his left eye K
with yellowish vision and binocular double vision.
L L
M M
13. He has since had to have 2 surgeries relating to his left eye
N N
and facial injuries. He suffers impairment in the vision in his left eye and
O
still experiences pain and dizziness. He was on sick leave until 12 March O
2020, about 9 months after the attack. He has been assigned mainly clerical
P P
duties and no longer carries out frontline duties. It appears he can no longer
Q drive either. In fact, a medical board will soon assess his work capacity. It Q
appears his career as a detective police constable will suffer at only 31
R R
years old.
S S
T 14. The 1st, 2nd and 3rd defendant admit that at the material time T
U
they took part in a riot outside Shop 398. There were at least 20 rioters U
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A A
B B
assembled together and the riot comprised of various acts of breaches of
C the peace. The 3 defendants committed those acts individually and together C
with other persons unknown. A result of the riot and violence was the
D D
serious injury suffered by PW1 targeted by the rioters.
E E
F 15. The second riot, Charge 3, took place outside Shop 383 on the F
G
same level of Shatin New Town Plaza about 2 minutes after the first riot. G
PW2 had become separated from his police party after they as a group
H H
entered that Plaza. He too was wearing a standard police vest, a police
I
helmet and was only holding a round shield. He saw uniformed officers I
being assaulted by protesters and went to assist. He tried to proceed to
J J
Level IV up an escalator outside Shop 383. The CCTV footage shows that
K as he ran towards the escalator he was chased by protesters who were trying K
to assault him.
L L
M M
16. He ran up the escalator but saw a large number of protesters
N N
running down towards him. He turned to go back down when he was
O
kicked in the back and pushed from behind. He was kicked down the O
escalator and fell to the ground. He was then surrounded by a number of
P P
rioters who punched and kicked him as well stabbed him with umbrellas
Q and hard objects. He was quickly surrounded by a large group and assaulted Q
for about 1 minute. The riot only dispersed when a reporter straddled the
R R
officer on the ground and stopped people from attacking him any further.
S S
T 17. The CCTV footage I was shown in court shows the 1st T
U
defendant and the 2nd defendant surrounding PW2 on the ground at the U
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A A
B B
bottom of the escalator. The 1st defendant can be seen pushing others
C towards that officer on the ground before going in himself and kicking him. C
Both can be seen from several different angles in CCTV footage. The
D D
CCTV footage for both offences is MFI-1 and screenshots taken from the
E footage is MFI-2. E
F F
G
18. The 2nd defendant can be seen at the bottom of the escalator G
striking that officer with an umbrella from behind when the officer was
H H
kicked down the escalator towards him. He was then in the middle of the
I
riot hitting PW2 and even after the reporter straddled the officer on the I
ground, he came in and stabbed his umbrella at him at least 4 times.
J J
K K
19. PW2 suffered a laceration to his right scalp that required
L stitches, abrasion and bruising to his face, tenderness and swelling on his L
right elbow and right leg as well as 3 abrasions on his back. Looking at the
M M
CCTV footage, it is fortunate he was not more seriously injured like PW1.
N N
The reporter and others who went to his aid are the reason he was not more
O
seriously hurt. There are photographs of the injuries of the 2 police officers O
taken later and marked as MFI-3. The Summary of Facts set out the injuries
P P
suffered, subsequent treatment and surgeries as well as prognosis.
Q Q
R 20. The 1st and 2nd defendant admit that at the material time they R
took part in another riot outside Shop 383. There were at least 10 rioters
S S
assembled together and the riot comprised of various acts of breaches of
T the peace. The 2 defendants committed those acts individually and together T
U U
V V
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A A
B B
with other persons unknown. A result of the riot was the serious injury
C suffered by PW2 targeted by the rioters. C
D D
The 1st Defendant
E E
F 21. The Summary of Facts states the 1st defendant left home at F
G
around 16:34 hours and CCTV footage captures what he was wearing. He G
arrived at Shatin New Town Plaza at around 21:39 hours wearing the same
H H
outfit. This is about 50 minutes before the first riot. The CCTV footage
I
shows him changing from a black top into an orange pink short-sleeved T- I
shirt at 21:44 hours inside the Plaza which was worn by him during
J J
Charges 1 and 3.
K K
L 22. After the 2 riots he admits he is captured on CCTV leaving L
the Plaza for Shatin MTR station wearing the same orange pink T-shirt at
M M
around 20:30 hours. He is seen on CCTV having a dispute with other train
N N
passengers. He was arrested by the police on 25 July 2019.
O O
P 23. What is seen on CCTV is that he was part of 2 long human P
chains formed inside Shatin New Town Plaza before the first riot. This
Q Q
human chain can be seen passing many umbrellas along the line and
R upstairs in a very organised fashion. The 1st defendant was clearly there R
with a purpose and was part of the human chain before the riots. He
S S
changed his T-shirt whilst stood in the chain talking to others. He tried to
T tie his black T-shirt around his face as a mask but appeared to fail. T
U U
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A A
B B
C C
24. In mitigation, I have heard that the defendant is now 24 years
D
old, single and lives with some family members. His father has brought D
him and his brother up single-handedly after his divorce when the
E E
defendant was 12. He has one previous criminal record, in 2016 he was
F
sentenced to 42 months’ imprisonment for trafficking in dangerous drugs. F
G G
25. His best mitigation is his plea of guilty. After his arrest for
H H
this offence he was employed as an assistant to a district councillor in Tai
I Po. That councillor writes that although he is young, aggressive and I
enthusiastic, he is at times impulsive. He is remorseful and acted without
J J
thinking that day. He is a hard worker and committed to the community.
K K
L L
26. Defence Counsel has submitted 67 mitigation letters written
M by the defendant, his father, various district councillors who have come M
across him, friends and other people who have benefited from his
N N
community work. The defendant expressed genuine remorse and maturity.
O He takes responsibility for his actions. There are 2 detailed letters from 2 O
social workers who have come to know him well since these offences.
P P
Q Q
27. Most of those letters say much the same thing and are
R R
repetitive. His family dynamics are difficult but improving. His brother and
S father are supportive. He is charitable and gives his time to community S
service and voluntary work. He has been of particular help during the
T T
COVID-19 pandemic by organising distribution of masks and sanitisers in
U U
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A A
B B
his home community. He has been assisting small businesses and
C restaurants survive the pandemic. Most of the letters say he is genuinely C
remorseful. Most say he committed this offence impulsively and because
D D
of his love for Hong Kong. I am asked to be compassionate.
E E
F 28. I have been urged to consider his family background and lack F
G
of maternal care from a young child. It was submitted that the 1st defendant G
is not a person of nefarious nature who relishes in gratuitous violence. At
H H
the material time he was influenced by the anger of the mob and foolishly
I
participated in riots. He acted out of character. I
J J
29. Defence counsel for the 1st defendant, Mr Shek, has urged me
K K
to take into account the duration and spread of the 2 riots was of limited
L time and scope. They did not last long nor involve many people. These L
riots are at the lower end of the scale for such an offence.
M M
N N
30. I have been asked to consider a starting point of 4 years and 6
O O
months adopting the Court of Appeal’s opinion in HKSAR v Tang Ho Yin
P 2019 3 HKLRD 502. Mr Shek submits a starting point of 6 years as I P
adopted in HKSAR v Sin Ka Ho 2020 HKDC 337 would be too high as the
Q Q
factors relevant to sentencing riot cases as set out in HKSAR v Leung Tin
R Kei 2020 HKCA 275 reflect that the facts and riots of this case are less R
serious than the facts of Sin Ka Ho.
S S
T T
U U
V V
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A A
B B
31. The riot in Sin Ka Ho did not last that long either but there
C were many more people in that riot trying to break through a police C
cordoned protecting the main entrance to the Legislative Council building.
D D
The difference is that that riot was outside in the open and in the streets
E whilst the riots here were inside a Shopping Plaza. E
F F
G
The 2nd defendant G
H H
32. The Summary of Facts states the 2nd defendant was seen first
I
at 21:35 hours wandering around the Shatin New Town Plaza. That was I
about 20 minutes before the first riot. He was wearing a cap and carrying a
J J
distinctive red bag with a cartoon figure printed on it. During the 2 riots he
K had put on a face mask. He was seen on CCTV leaving Shatin via Shatin K
MTR station at about 22:25 hours.
L L
M M
33. He was arrested on 19 August 2019 and remained silent under
N N
caution. The clothes he was wearing during the riots were found during a
O
house search. The police also found in his home newspaper cuttings O
nd
depicting the 2 defendant himself caught in the act of rioting.
P P
Q Q
nd
34. In mitigation I have heard that the 2 defendant is now 51
R years old and has a clear record. His best mitigation is also his plea of guilty. R
He lives with his mother who has returned from Canada, is single and
S S
worked as a security guard. His father and other siblings live in Canada.
T His mother is suffering from Parkinson’s disease in its early stages. T
U U
V V
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A A
B B
C C
35. I have received letters from his family, friends, colleagues and
D
social workers. He is a filial son who cares for his mother and worries about D
his father in Canada. He has successfully applied for a shared housing unit
E E
so his mother has assistance from social workers whilst he serves a term of
F
imprisonment. F
G G
36. He used to be a barber and has previously participated in
H H
voluntary programs teaching rehabilitating drug addicts a skill. When he
I had a hair salon business he offered to cut the hair of the elderly for a small I
reduced fee during his spare time. It has been stressed he is a kind, helpful
J J
and generous man.
K K
L L
37. The 2nd defendant went to Shatin that day in order to
M participate in peaceful assembly, he did not set out to hurt anyone nor M
participate in a riot. It is submitted his participation was a momentary lapse
N N
of good judgement. He acted out of character as can be demonstrated by
O the contents of the mitigation letters. It is submitted that this riot was O
spawned from civil unrest and the atmosphere in Hong Kong at that
P P
material time.
Q Q
R R
38. I have been urged to consider the fact that both riots occurred
S over a short period of time and very soon after one another. Similarly, Mr S
Lai for the 2nd defendant urges me to take into account relevant factors for
T T
sentencing riot cases as set out in Leung Tin Kei. In fact, all Counsel have
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A A
B B
referred me to the same authorities and in the main, adopt each other’s
C submissions. C
D D
The 3rd defendant
E E
F F
39. The 3rd defendant can be seen arriving at Shatin New Town
G G
Plaza with other young men at about 21:03 hours. At about 21:04 hours, he
H is seen on Level III where the riots took place later. He is seen putting on H
a face mask. He is milling around as if waiting for something to happen.
I I
He is not trying to go anywhere nor does he appear to try to leave the Plaza.
J During the riot of Charge 1 he is not only wearing a face mask but also a J
pair of eye goggles as well. He says he picks them up off the floor during
K K
the riot.
L L
M M
40. CCTV footage captures him leaving the Shatin area via Che
N Kung Temple station at around 22:45 hours. He was arrested by the police N
on 16 September 2019 and remained silent under caution.
O O
P P
41. In mitigation I have heard that the defendant is now 17 years
Q Q
old; he was 16 at the time of the offence. He was then a Form 5 student.
R He lives with his parents, elder brother and has a clear record. Whilst R
studying, he had a part-time job as a kitchen worker in Pizza Hut to help
S S
his family financially. His employer says he is a hard-working and capable
T young man. T
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A A
B B
C C
42. I have heard full mitigation on his behalf and urged to take
D
into account the fact he is very young. His best mitigation is his plea of D
guilty. There are many mitigation letters which I have read. All urge me to
E E
believe he was not inclined to use violence generally; he was more of a
F
dispute mediator. The 3rd defendant has written a letter and is very sorry F
that the first victim suffered such serious injuries.
G G
H H
43. At school he has always achieved good results as well as
I participated in other extracurricular activities and voluntary services. His I
principal, vice principal, teacher, counsellor, fellow students and many
J J
others ask for leniency on his behalf and give me an insight into his life in
K K
and out of school.
L L
M 44. After his arrest for this offence he did continue at school on M
bail from September 2019 but his academic results plummeted in Form 5.
N N
He did complete his Form 5 studies but with a lower grade than he had
O hoped for and anticipated. The defendant is hoping to still take the HKDSE O
public examinations and then study to become a professional chef.
P P
Q Q
45. Outside of school he has been known to accompany his
R R
parents to participate in voluntary activities involving the elderly and
S disadvantaged in his community. A Legislative Council member has S
witnessed the 3rd defendant participate willingly and patiently. He vouches
T T
for the defendant’s remorse now.
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A A
B B
C C
46. I have been urged to take into account that he was at the wrong
D
time in the wrong place and took the wrong course of action. He has never D
seen such violence and was caught up in the melee with the other rioters.
E E
He was in fact trying to get home at the time but was experiencing
F
difficulty getting out of the Plaza because of the police presence. He F
became confused and disorientated when he found exits blocked or locked.
G G
He became scared he would be considered a protester by the police there.
H H
I 47. In mitigation I have been told that he then witnessed much I
violence when the police officers entered the Plaza with police using batons
J J
and pepper spray seriously injuring protesters. He had never seen such
K K
violence or chaos and he tried to find a way out. He then saw a group hitting
L
PW1 and feeling confused and aggrieved he picked up an umbrella and L
joined in the attack. It was a herd mentality moment where his emotions
M M
ruled over common sense.
N N
O 48. In the Training Centre report I called for is a somewhat O
different account for his presence and actions. It says the 3rd defendant
P P
recounted how he was on his way home when he noticed there were
Q Q
protests in Shatin New Town Plaza so he joined in on the spur of the
R
moment. Under the influence of the atmosphere he was momentarily R
reckless and committed this offence.
S S
T T
U U
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A A
B B
49. Having watched the video footage for myself, the 3rd
C defendant is the most violent of the 3 defendants and does not appear C
frightened, confused or desperate to avoid violence. 50 minutes before the
D D
riot he participated in, he can be seen putting on a mask and milling around
E inside the Plaza. There is no evidence he was stopped from leaving the E
Plaza before the riot he participated in.
F F
G G
50. It was submitted that I should take into account the principle
H H
of rehabilitation and give the 3rd defendant an opportunity to pursue his
I
future with less obstacles in his way. I
J J
51. I was urged to consider a Training Centre as an option and I
K K
did call for such a report. I do not intend to repeat the contents of the report
L but I have taken it into consideration. The report declares the 3rd defendant L
mentally and physically fit as well as suitable for detention in a Training
M M
Centre. It was submitted that if I found imprisonment to be appropriate then
N N
the starting point should be lower than 4 years and 6 months.
O O
P
52. It was submitted that I should consider the authorities and P
facts of Leung Tin Kei and Tang Ho Yin and find the facts of this riot to be
Q Q
much less serious. The riot was on a very small scale and did not last very
R long. R
S S
T T
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A A
B B
Reasons for Sentence
C C
D 53. The offence of rioting, contrary to section 19(1) and (2) of the D
Public Order Ordinance, will attract a maximum term of imprisonment on
E E
indictment of 10 years.
F F
G G
54. Freedom of peaceful assembly is guaranteed by the Basic Law
H and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, H
like the freedom of speech is indispensable to the building of a civilised
I I
society and essential to social stability and progress. The freedom of
J peaceful assembly enables members of the public to voice their criticisms, J
air grievances and seek redress on views they hold. However, the freedom
K K
of assembly is not absolute. Once a protester becomes involved in violence
L or the threat of violence, a breach of peace, then that protester crosses the L
line between constitutionally protected peaceful assembly and
M M
demonstration to an unlawful activity which is subject to legal sanctions.
N N
There is such a line to protect public order because society is prone to
O
descend into anarchy if public order is not preserved. O
P P
55. A riot has an immediate and serious impact on the rule of law.
Q Q
The rule of law is a core value of Hong Kong and the cornerstone of its
R success. The law ensures that public order and peace are preserved; not R
threatened by the use of violence. If public order is not preserved, this
S S
affects the freedom and rights of citizens.
T T
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A A
B B
56. Sentencing for the offence of riot involves the factor of
C deterrence. All counsel submit the actions of the defendants were out of C
character or a momentary lapse of judgement. It is submitted their actions
D D
and participation were spontaneous and not premeditated. They were
E caught up with the crowd when rioters surrounded the single police officer E
when emotions were running high. They had no intention to cause harm
F F
to the public or destroy property. It is submitted that this is not the most
G serious case for an offence of this nature. G
H H
57. It has been suggested that the defendants are victims as well
I I
which I reject for the purposes of sentencing. I am urged to balance genuine
J remorse, guilty pleas, the young age of the 3rd defendant and clear records J
of the 2nd and 3rd defendants with the need to deter and punish.
K K
L L
58. A sentence must not only seek to prevent the offender from
M M
reoffending, but also give a proper warning to deter others from violating
N the law by breaking and disrupting public order in a like manner. Acts of N
violence or threats of violence will not and cannot be tolerated; such acts
O O
will attract a deterrent sentence to ensure that the public is protected.
P P
Q 59. The Court of Appeal in Leung Tin Kei reiterated that courts Q
will impose a sentence that is punitive and sufficiently deterrent in
R R
accordance with principles established in applicable case law. It therefore
S follows that the personal background and mitigation as well as the S
submissions of impulsive behaviour and being carried away by the
T T
emotions of others carry little weight.
U U
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A A
B B
C C
60. In this case, a deterrent sentence will reflect the fact that the
D
defendants rioted in a public place, inside a Shopping Plaza which led to D
direct attacks on police officers holding a shield. It was a direct attack on
E E
law and order and an intention to injure and overpower police officers
F
performing their duties. F
G G
61. Deterrence overrides the sentencing principle of
H H
rehabilitation in the prevailing circumstances including the increasing
I incidents of unrest and a rising number of large-scale public protests I
involving violence. This is clear from the Court of Final Appeal in SJ v
J J
Wong Chi Fung 2018 21 HKCFAR 35.
K K
L L
62. The defendants were one of a number engaged in a crime
M against peace, perhaps it was the sheer number with the defendants that M
gave them support and encouragement from being together with so many
N N
to riot. It is a common feature of mass disorder that if individuals within
O the crowd act violently, this will in turn inflame and encourage others to O
behave similarly. The harm and destruction done comes from the
P P
combined effect of what is done en masse.
Q Q
R R
63. For similar offences with different backgrounds and facts, the
S sentences in those cases do not provide a helpful guidance. Each charge S
must be considered on its own facts. What is a common factor is that the
T T
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A A
B B
sentence should be punitive and sufficiently deterrent therefore, an
C immediate custodial sentence is inevitable. C
D D
64. The Court of Appeal in Leung Tin Kei set out various factors
E E
to be taken into account when passing sentence on the offence of riot. In
F that case the riot took place in February 2016 in Argyle Street, Kowloon. F
G
Courts must consider these factors and principles to arrive at a sentence G
according to the facts of each individual case. In that authority, the Court
H H
of Appeal upheld the sentences imposed.
I I
J 65. I have been referred to HKSAR v Tang Ho Yin where the J
appellant was a man with a clear record and aged 24 at the time he
K K
committed the offence of riot. He pleaded guilty at the earliest opportunity
L and the sentencing judge took a starting point of five years’ imprisonment. L
The Court of Appeal considered the facts of that case, a riot between
M M
Shantung Street and Nathan Road on 9 February 2016 and although they
N N
said the appropriate starting point for that defendant was four years and six
O
months, they dismissed the appeal. Mr Shek has submitted I should take O
the same starting point.
P P
Q Q
66. In deciding the starting point of the offence, the extent of the
R overall violence involved must be considered, not the defendant’s R
individual acts in isolation. I quote from the authority R v Caird and others
S S
1970 Cr App R 499 where LJ Sachs said at pages 507-508,
T T
U U
V V
- 21 -
A A
B “those who choose to take part in such unlawful occasions must B
do so at their peril. … Any participation whatever, irrespective
C of its precise form, in an unlawful or riotous assembly of this C
type derives its gravity from becoming one of those who, by
weight of numbers, pursued a common and unlawful purpose.
D The law of this country has always leant heavily against those D
who, to attain such a purpose, use the threat that lies in the power
E
of numbers. ... In the view of this court, it is a wholly wrong E
approach to take the acts of any individual participator in
isolation. They were not committed in isolation and, as already
F indicated, it is that very fact that constitutes the gravity of the F
offence.”
G G
67. It therefore follows that I should consider the extent of the
H H
overall violence involved, not each defendant’s individual acts in each riot
I I
separately and in isolation.
J J
K 68. I have considered the factors relevant to sentencing as set out K
in Leung Tin Kei. This riot was spontaneous in that it arose when the police
L L
entered the Plaza to disperse protesters and PW1 became separated from
M other officers. However, from the CCTV footage you can see there was M
prior organised activity in the form of human chains passing items to be
N N
st
used if necessary with the 1 defendant an active participant. There were
O people handing out facemasks as a form of protection and to cover one’s O
face. The 3rd defendant took one and put it on in anticipation. The 2nd
P P
defendant came armed with a face mask.
Q Q
R R
69. I agree the number of people engaged in both riots were not
S as large as other recent riot cases but these riots took place indoors, inside S
a Shopping Plaza with as a result, some limitations. Despite this, the degree
T T
of violence was palpable. A viewing of the CCTV shows how brutal and
U U
V V
- 22 -
A A
B B
savage the rioters were when they surrounded PW1 and later PW2. They
C just lost all control and self-restraint. This is a factor I take into account C
and place weight on.
D D
E E
70. It may not have lasted long this riot but it was so vicious that
F PW1 was seriously injured. Both PW1 and PW2 were targets of the rioters F
G
because they were police officers. The harm caused is immeasurable to G
particularly PW1. Not just the physical harm and disability caused but the
H H
adverse impact they will have on his police career. This is another serious
I
factor of this riot of Charge 1. I
J J
71. As far as the other factors are concerned the nature and extent
K K
of the nuisance caused to the public by these riots inside the Shopping Plaza
L is foreseeable. Such riots conceivably affected the relationship amongst L
community groups, residents and the police on this occasion.
M M
N N
72. Defence counsel have urged me to look at what each
O defendant actually did during the course of the riot or riots. I repeat, it is a O
wholly wrong approach to take the acts of any individual participator in
P P
isolation. They were not committed in isolation. It is that very fact that
Q constitutes the gravity of the offence. They are all equally culpable. One Q
considers what the group to whose number the defendants lent their support
R R
did.
S S
T 73. Defence counsel have also urged me to look at each T
defendant’s personal circumstances, mitigation, age and lack of criminal
U U
V V
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A A
B B
records. However, it is necessary to re-emphasis deterrence and
C punishment in sentencing the offence of riot. Courts must show that such C
conduct will not be tolerated in this community. It is in these types of cases
D D
where general deterrence has an overriding effect on the resulting sentence
E to be imposed. E
F F
74. It therefore follows, as I said above, that personal
G G
circumstances and mitigation as well as the submissions of impulsive
H behaviour and being carried away by the emotions of others carry little H
weight. That applies equally to the 3rd defendant. He may have been young
I I
but in my view his mitigation, his age and student status does not negate
J the need to impose a deterrent and custodial sentence which in this case J
will be a term of imprisonment.
K K
L L
Sentence
M M
N N
75. All 3 defendants have pleaded guilty at the earliest
O O
opportunity which does demonstrate remorse. From a reading of all the
P
letters, in particular those from the defendants personally, I am sure all P
regret their actions and participation.
Q Q
R 76. It is not an inconsiderable task to impose a punitive and R
deterrent sentence on young men and those with previous good characters
S S
but this present case requires me to give proper weight to public interest.
T T
U U
V V
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A A
B B
77. Having considered all the relevant factors against the
C circumstances, I am of the view that the appropriate starting point for C
Charge 1, where all 3 defendants took part in this riot is 5 years’
D D
imprisonment after trial.
E E
78. I am of the view that the appropriate starting point for Charge
F F
3, where the 1st and 2nd defendant took part in this second riot is 6 years’
G imprisonment after trial. These riots took place one after the other and G
instead of taking stock and walking away from more rioting and violence,
H H
the 1st and 2nd defendant took part in another riot hence the higher starting
I point for the Charge 3. I
J J
K
79. All defendants pleaded guilty at the earliest opportunity and K
are therefore entitled to the usual full discount of one-third after plea.
L L
M 80. Accordingly, I reduce the starting point of Charge 1 by 1 year M
and 8 months and sentence all defendants to 3 years and 4 months’
N N
imprisonment for Charge 1.
O O
81. I reduce the starting point of Charge 3 by 2 years and sentence
P P
the 1st and 2nd defendant to 4 years’ imprisonment for Charge 3.
Q Q
82. The higher starting point for Charge 3 reflects the fact they
R participated in a second riot and I will order all sentences to be served R
S
concurrently. S
T 83. Therefore, the 1st defendant is sentenced to a total of 4 years’ T
imprisonment.
U U
V V
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A A
B B
C 84. The 2nd defendant is sentenced to a total of 4 years’ C
imprisonment.
D D
E 85. The 3rd defendant is sentenced to 3 years and 4 months’ E
imprisonment.
F F
G G
H H
I I
( A J Woodcock )
J District Judge J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 813/2019
C [2020] HKDC 838 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 813 OF 2019
F F
G ----------------------------- G
HKSAR
H H
v
I LEUNG PAK TIM (D1) I
KUNG CHI YUEN (D2)
J J
LEE MAN HIM (D3)
K ----------------------------- K
L L
Before: Her Honour Judge A J Woodcock in Court
M Date: 24 September 2020 M
Present: Mr Ivan Cheung, Senior Public Prosecutor, for
N N
HKSAR/Director of Public Prosecutions
O Mr Shek Shu Ming, Randy, instructed by S T Cheng & Co, O
assigned by the Director of Legal Aid, for the 1st defendant
P P
Mr Lai Kin Wah, Kelvin, instructed by Fan Wong & Tso,
Q assigned by the Director of Legal Aid, for the 2 nd defendant Q
Mr Kwan Hang Fan, Jasper, instructed by Cedric & Co,
R R
rd
assigned by the Director of Legal Aid, for the 3 defendant
S Offence: [1] Riot（暴動） - D1 – D3 S
T [2] Causing grievous bodily harm with intent（有意圖而導 T
致身體受嚴重傷害） - D1 & D3
U U
V V
-2-
A A
B B
[3] Riot（暴動） - D1 & D2
C [4] Causing grievous bodily harm with intent（有意圖而導 C
致身體受嚴重傷害） - D1 & D2
D D
E E
-----------------------------------------
F
REASONS FOR SENTENCE F
-----------------------------------------
G G
H 1. There are 2 riot charges in this case, Charges 1 and 3. 2 riots H
took place on Level III, Phase 1 of New Town Plaza in Shatin, New
I I
Territories one after the other. During those riots a police officer was
J wounded in the course of each riot. Charges 2 and 4 are offences of causing J
grievous bodily harm with intent to those 2 officers during those 2 riots.
K K
L 2. The 1st defendant pleaded guilty to Charges 1 and 3. The 2nd L
defendant also pleaded guilty to Charges 1 and 3. The 3rd defendant only
M M
faced one riot charge and pleaded guilty to Charge 1. Those defendants
N facing Charges 2 and 4 pleaded not guilty and those 2 charges were put on N
the court file, not to be dealt with unless there is an order from this court
O O
or the Court of Appeal.
P P
3. Accordingly, the 1st defendant was convicted of both charges
Q Q
nd rd
of riot, Charges 1 and 3 as was the 2 defendant. The 3 defendant was
R convicted of Charge 1, a single riot charge. R
S S
T T
U U
V V
-3-
A A
B B
Facts of the case
C C
4. Since June 2019, Hong Kong experienced a series of protests
D D
in opposition to the Fugitive Offenders and Mutual Legal Assistance in
E Criminal Matters Legislation (Amendment) Bill. The protests escalated E
into serious social unrest and public disorder including on occasions, riots.
F F
G G
5. On the 14 July 2019 there were large crowds of protesters
H H
gathered in the Shatin area. As a result, various units of police officers had
I
to be deployed in the area to restore law and order. A particular unit of I
police officers in plain clothes were deployed together with uniform
J J
officers near Lucky Plaza, Shatin. They dispersed crowds gathered in that
K Plaza before stationing themselves in Shatin Centre at about 21:20 hours. K
L L
6. Amongst these officers were PW1 and PW2 in plain clothes.
M M
PW1 was tasked with video taking duties at the time. At about 21:45 hours
N N
these 2 officers with other members of their party were deployed to enter
O
Shatin New Town Plaza Phase 1. They entered Level III through a O
passageway from Shatin Centre.
P P
Q Q
7. As their party entered Shatin New Town Plaza, uniformed
R officers were assaulted by a large number of protesters with umbrellas, R
punches and kicks. They fell over on the ground because there was an
S S
identified liquid spilled which caused officers to fall. At the same time
T umbrellas and hard objects such as water bottles were thrown from a height T
U
down at those police officers. As a result, during the commotion that police U
V V
-4-
A A
B B
party was separated and scattered on that Level III area and rioting
C occurred. C
D D
8. PW1 was wearing a standard police vest, a police helmet and
E E
was only holding a round shield. He saw a police officer being assaulted
F by protesters and went to help him. As he moved forward, he was on his F
G
own and singled out. He was then quickly surrounded and violently G
assaulted by a large group of protesters of at least 20 people outside Shop
H H
398. He was punched, kicked and stabbed with items such as umbrellas.
I
He was hit with other hard objects. This assault took place at around 21:55 I
hours and lasted for about 1 minute. There is CCTV footage from several
J J
angles of this riot and of this officer on the ground being attacked. Those
K rioters dispersed and stopped hitting PW1 when a uniformed officer came K
to assist him.
L L
M M
st
9. The 1 defendant admits he used an umbrella to repeatedly
N N
assault PW1 and kicked him. In the CCTV footage you can see him holding
O
an umbrella up like a spear to stab at the officer and then he is in the front O
of the rioters where the officer is on the ground. The CCTV footage does
P P
not support the mitigation that the 1st defendant is not a man who
Q participates in gratuitous violence. Q
R R
10. The 2nd defendant tried to penetrate the crowd of rioters and
S S
nd
made his way through just as PW1 got back on his feet. The 2 defendant
T can be seen throwing an umbrella at an officer coming to PW1’s aid before T
U
running away. U
V V
-5-
A A
B B
11. The 3rd defendant is identified in the CCTV footage and he
C stabbed at the officer on the ground with an umbrella in a very fast, C
continuous and aggressive manner; over 20 times. During the attack he
D D
dropped the umbrella but despite people beginning to disperse, he picked
E it up again and resumed the attack. He was one of the last rioters to strike E
PW1 before running away and as he turned to run, he pumped his fist in
F F
the air. This CCTV footage does not support the mitigation he is not a
G violent person but more of a dispute mediator. G
H H
I
12. PW1 was very seriously injured and has suffered life changing I
consequences. He suffered from a left periorbital fracture, left maxillary
J J
fracture (which is a fracture of left orbital floor and medial wall fracture),
K his nose was fractured, bruising to his face and a hematoma on his left eye K
with yellowish vision and binocular double vision.
L L
M M
13. He has since had to have 2 surgeries relating to his left eye
N N
and facial injuries. He suffers impairment in the vision in his left eye and
O
still experiences pain and dizziness. He was on sick leave until 12 March O
2020, about 9 months after the attack. He has been assigned mainly clerical
P P
duties and no longer carries out frontline duties. It appears he can no longer
Q drive either. In fact, a medical board will soon assess his work capacity. It Q
appears his career as a detective police constable will suffer at only 31
R R
years old.
S S
T 14. The 1st, 2nd and 3rd defendant admit that at the material time T
U
they took part in a riot outside Shop 398. There were at least 20 rioters U
V V
-6-
A A
B B
assembled together and the riot comprised of various acts of breaches of
C the peace. The 3 defendants committed those acts individually and together C
with other persons unknown. A result of the riot and violence was the
D D
serious injury suffered by PW1 targeted by the rioters.
E E
F 15. The second riot, Charge 3, took place outside Shop 383 on the F
G
same level of Shatin New Town Plaza about 2 minutes after the first riot. G
PW2 had become separated from his police party after they as a group
H H
entered that Plaza. He too was wearing a standard police vest, a police
I
helmet and was only holding a round shield. He saw uniformed officers I
being assaulted by protesters and went to assist. He tried to proceed to
J J
Level IV up an escalator outside Shop 383. The CCTV footage shows that
K as he ran towards the escalator he was chased by protesters who were trying K
to assault him.
L L
M M
16. He ran up the escalator but saw a large number of protesters
N N
running down towards him. He turned to go back down when he was
O
kicked in the back and pushed from behind. He was kicked down the O
escalator and fell to the ground. He was then surrounded by a number of
P P
rioters who punched and kicked him as well stabbed him with umbrellas
Q and hard objects. He was quickly surrounded by a large group and assaulted Q
for about 1 minute. The riot only dispersed when a reporter straddled the
R R
officer on the ground and stopped people from attacking him any further.
S S
T 17. The CCTV footage I was shown in court shows the 1st T
U
defendant and the 2nd defendant surrounding PW2 on the ground at the U
V V
-7-
A A
B B
bottom of the escalator. The 1st defendant can be seen pushing others
C towards that officer on the ground before going in himself and kicking him. C
Both can be seen from several different angles in CCTV footage. The
D D
CCTV footage for both offences is MFI-1 and screenshots taken from the
E footage is MFI-2. E
F F
G
18. The 2nd defendant can be seen at the bottom of the escalator G
striking that officer with an umbrella from behind when the officer was
H H
kicked down the escalator towards him. He was then in the middle of the
I
riot hitting PW2 and even after the reporter straddled the officer on the I
ground, he came in and stabbed his umbrella at him at least 4 times.
J J
K K
19. PW2 suffered a laceration to his right scalp that required
L stitches, abrasion and bruising to his face, tenderness and swelling on his L
right elbow and right leg as well as 3 abrasions on his back. Looking at the
M M
CCTV footage, it is fortunate he was not more seriously injured like PW1.
N N
The reporter and others who went to his aid are the reason he was not more
O
seriously hurt. There are photographs of the injuries of the 2 police officers O
taken later and marked as MFI-3. The Summary of Facts set out the injuries
P P
suffered, subsequent treatment and surgeries as well as prognosis.
Q Q
R 20. The 1st and 2nd defendant admit that at the material time they R
took part in another riot outside Shop 383. There were at least 10 rioters
S S
assembled together and the riot comprised of various acts of breaches of
T the peace. The 2 defendants committed those acts individually and together T
U U
V V
-8-
A A
B B
with other persons unknown. A result of the riot was the serious injury
C suffered by PW2 targeted by the rioters. C
D D
The 1st Defendant
E E
F 21. The Summary of Facts states the 1st defendant left home at F
G
around 16:34 hours and CCTV footage captures what he was wearing. He G
arrived at Shatin New Town Plaza at around 21:39 hours wearing the same
H H
outfit. This is about 50 minutes before the first riot. The CCTV footage
I
shows him changing from a black top into an orange pink short-sleeved T- I
shirt at 21:44 hours inside the Plaza which was worn by him during
J J
Charges 1 and 3.
K K
L 22. After the 2 riots he admits he is captured on CCTV leaving L
the Plaza for Shatin MTR station wearing the same orange pink T-shirt at
M M
around 20:30 hours. He is seen on CCTV having a dispute with other train
N N
passengers. He was arrested by the police on 25 July 2019.
O O
P 23. What is seen on CCTV is that he was part of 2 long human P
chains formed inside Shatin New Town Plaza before the first riot. This
Q Q
human chain can be seen passing many umbrellas along the line and
R upstairs in a very organised fashion. The 1st defendant was clearly there R
with a purpose and was part of the human chain before the riots. He
S S
changed his T-shirt whilst stood in the chain talking to others. He tried to
T tie his black T-shirt around his face as a mask but appeared to fail. T
U U
V V
-9-
A A
B B
C C
24. In mitigation, I have heard that the defendant is now 24 years
D
old, single and lives with some family members. His father has brought D
him and his brother up single-handedly after his divorce when the
E E
defendant was 12. He has one previous criminal record, in 2016 he was
F
sentenced to 42 months’ imprisonment for trafficking in dangerous drugs. F
G G
25. His best mitigation is his plea of guilty. After his arrest for
H H
this offence he was employed as an assistant to a district councillor in Tai
I Po. That councillor writes that although he is young, aggressive and I
enthusiastic, he is at times impulsive. He is remorseful and acted without
J J
thinking that day. He is a hard worker and committed to the community.
K K
L L
26. Defence Counsel has submitted 67 mitigation letters written
M by the defendant, his father, various district councillors who have come M
across him, friends and other people who have benefited from his
N N
community work. The defendant expressed genuine remorse and maturity.
O He takes responsibility for his actions. There are 2 detailed letters from 2 O
social workers who have come to know him well since these offences.
P P
Q Q
27. Most of those letters say much the same thing and are
R R
repetitive. His family dynamics are difficult but improving. His brother and
S father are supportive. He is charitable and gives his time to community S
service and voluntary work. He has been of particular help during the
T T
COVID-19 pandemic by organising distribution of masks and sanitisers in
U U
V V
- 10 -
A A
B B
his home community. He has been assisting small businesses and
C restaurants survive the pandemic. Most of the letters say he is genuinely C
remorseful. Most say he committed this offence impulsively and because
D D
of his love for Hong Kong. I am asked to be compassionate.
E E
F 28. I have been urged to consider his family background and lack F
G
of maternal care from a young child. It was submitted that the 1st defendant G
is not a person of nefarious nature who relishes in gratuitous violence. At
H H
the material time he was influenced by the anger of the mob and foolishly
I
participated in riots. He acted out of character. I
J J
29. Defence counsel for the 1st defendant, Mr Shek, has urged me
K K
to take into account the duration and spread of the 2 riots was of limited
L time and scope. They did not last long nor involve many people. These L
riots are at the lower end of the scale for such an offence.
M M
N N
30. I have been asked to consider a starting point of 4 years and 6
O O
months adopting the Court of Appeal’s opinion in HKSAR v Tang Ho Yin
P 2019 3 HKLRD 502. Mr Shek submits a starting point of 6 years as I P
adopted in HKSAR v Sin Ka Ho 2020 HKDC 337 would be too high as the
Q Q
factors relevant to sentencing riot cases as set out in HKSAR v Leung Tin
R Kei 2020 HKCA 275 reflect that the facts and riots of this case are less R
serious than the facts of Sin Ka Ho.
S S
T T
U U
V V
- 11 -
A A
B B
31. The riot in Sin Ka Ho did not last that long either but there
C were many more people in that riot trying to break through a police C
cordoned protecting the main entrance to the Legislative Council building.
D D
The difference is that that riot was outside in the open and in the streets
E whilst the riots here were inside a Shopping Plaza. E
F F
G
The 2nd defendant G
H H
32. The Summary of Facts states the 2nd defendant was seen first
I
at 21:35 hours wandering around the Shatin New Town Plaza. That was I
about 20 minutes before the first riot. He was wearing a cap and carrying a
J J
distinctive red bag with a cartoon figure printed on it. During the 2 riots he
K had put on a face mask. He was seen on CCTV leaving Shatin via Shatin K
MTR station at about 22:25 hours.
L L
M M
33. He was arrested on 19 August 2019 and remained silent under
N N
caution. The clothes he was wearing during the riots were found during a
O
house search. The police also found in his home newspaper cuttings O
nd
depicting the 2 defendant himself caught in the act of rioting.
P P
Q Q
nd
34. In mitigation I have heard that the 2 defendant is now 51
R years old and has a clear record. His best mitigation is also his plea of guilty. R
He lives with his mother who has returned from Canada, is single and
S S
worked as a security guard. His father and other siblings live in Canada.
T His mother is suffering from Parkinson’s disease in its early stages. T
U U
V V
- 12 -
A A
B B
C C
35. I have received letters from his family, friends, colleagues and
D
social workers. He is a filial son who cares for his mother and worries about D
his father in Canada. He has successfully applied for a shared housing unit
E E
so his mother has assistance from social workers whilst he serves a term of
F
imprisonment. F
G G
36. He used to be a barber and has previously participated in
H H
voluntary programs teaching rehabilitating drug addicts a skill. When he
I had a hair salon business he offered to cut the hair of the elderly for a small I
reduced fee during his spare time. It has been stressed he is a kind, helpful
J J
and generous man.
K K
L L
37. The 2nd defendant went to Shatin that day in order to
M participate in peaceful assembly, he did not set out to hurt anyone nor M
participate in a riot. It is submitted his participation was a momentary lapse
N N
of good judgement. He acted out of character as can be demonstrated by
O the contents of the mitigation letters. It is submitted that this riot was O
spawned from civil unrest and the atmosphere in Hong Kong at that
P P
material time.
Q Q
R R
38. I have been urged to consider the fact that both riots occurred
S over a short period of time and very soon after one another. Similarly, Mr S
Lai for the 2nd defendant urges me to take into account relevant factors for
T T
sentencing riot cases as set out in Leung Tin Kei. In fact, all Counsel have
U U
V V
- 13 -
A A
B B
referred me to the same authorities and in the main, adopt each other’s
C submissions. C
D D
The 3rd defendant
E E
F F
39. The 3rd defendant can be seen arriving at Shatin New Town
G G
Plaza with other young men at about 21:03 hours. At about 21:04 hours, he
H is seen on Level III where the riots took place later. He is seen putting on H
a face mask. He is milling around as if waiting for something to happen.
I I
He is not trying to go anywhere nor does he appear to try to leave the Plaza.
J During the riot of Charge 1 he is not only wearing a face mask but also a J
pair of eye goggles as well. He says he picks them up off the floor during
K K
the riot.
L L
M M
40. CCTV footage captures him leaving the Shatin area via Che
N Kung Temple station at around 22:45 hours. He was arrested by the police N
on 16 September 2019 and remained silent under caution.
O O
P P
41. In mitigation I have heard that the defendant is now 17 years
Q Q
old; he was 16 at the time of the offence. He was then a Form 5 student.
R He lives with his parents, elder brother and has a clear record. Whilst R
studying, he had a part-time job as a kitchen worker in Pizza Hut to help
S S
his family financially. His employer says he is a hard-working and capable
T young man. T
U U
V V
- 14 -
A A
B B
C C
42. I have heard full mitigation on his behalf and urged to take
D
into account the fact he is very young. His best mitigation is his plea of D
guilty. There are many mitigation letters which I have read. All urge me to
E E
believe he was not inclined to use violence generally; he was more of a
F
dispute mediator. The 3rd defendant has written a letter and is very sorry F
that the first victim suffered such serious injuries.
G G
H H
43. At school he has always achieved good results as well as
I participated in other extracurricular activities and voluntary services. His I
principal, vice principal, teacher, counsellor, fellow students and many
J J
others ask for leniency on his behalf and give me an insight into his life in
K K
and out of school.
L L
M 44. After his arrest for this offence he did continue at school on M
bail from September 2019 but his academic results plummeted in Form 5.
N N
He did complete his Form 5 studies but with a lower grade than he had
O hoped for and anticipated. The defendant is hoping to still take the HKDSE O
public examinations and then study to become a professional chef.
P P
Q Q
45. Outside of school he has been known to accompany his
R R
parents to participate in voluntary activities involving the elderly and
S disadvantaged in his community. A Legislative Council member has S
witnessed the 3rd defendant participate willingly and patiently. He vouches
T T
for the defendant’s remorse now.
U U
V V
- 15 -
A A
B B
C C
46. I have been urged to take into account that he was at the wrong
D
time in the wrong place and took the wrong course of action. He has never D
seen such violence and was caught up in the melee with the other rioters.
E E
He was in fact trying to get home at the time but was experiencing
F
difficulty getting out of the Plaza because of the police presence. He F
became confused and disorientated when he found exits blocked or locked.
G G
He became scared he would be considered a protester by the police there.
H H
I 47. In mitigation I have been told that he then witnessed much I
violence when the police officers entered the Plaza with police using batons
J J
and pepper spray seriously injuring protesters. He had never seen such
K K
violence or chaos and he tried to find a way out. He then saw a group hitting
L
PW1 and feeling confused and aggrieved he picked up an umbrella and L
joined in the attack. It was a herd mentality moment where his emotions
M M
ruled over common sense.
N N
O 48. In the Training Centre report I called for is a somewhat O
different account for his presence and actions. It says the 3rd defendant
P P
recounted how he was on his way home when he noticed there were
Q Q
protests in Shatin New Town Plaza so he joined in on the spur of the
R
moment. Under the influence of the atmosphere he was momentarily R
reckless and committed this offence.
S S
T T
U U
V V
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B B
49. Having watched the video footage for myself, the 3rd
C defendant is the most violent of the 3 defendants and does not appear C
frightened, confused or desperate to avoid violence. 50 minutes before the
D D
riot he participated in, he can be seen putting on a mask and milling around
E inside the Plaza. There is no evidence he was stopped from leaving the E
Plaza before the riot he participated in.
F F
G G
50. It was submitted that I should take into account the principle
H H
of rehabilitation and give the 3rd defendant an opportunity to pursue his
I
future with less obstacles in his way. I
J J
51. I was urged to consider a Training Centre as an option and I
K K
did call for such a report. I do not intend to repeat the contents of the report
L but I have taken it into consideration. The report declares the 3rd defendant L
mentally and physically fit as well as suitable for detention in a Training
M M
Centre. It was submitted that if I found imprisonment to be appropriate then
N N
the starting point should be lower than 4 years and 6 months.
O O
P
52. It was submitted that I should consider the authorities and P
facts of Leung Tin Kei and Tang Ho Yin and find the facts of this riot to be
Q Q
much less serious. The riot was on a very small scale and did not last very
R long. R
S S
T T
U U
V V
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A A
B B
Reasons for Sentence
C C
D 53. The offence of rioting, contrary to section 19(1) and (2) of the D
Public Order Ordinance, will attract a maximum term of imprisonment on
E E
indictment of 10 years.
F F
G G
54. Freedom of peaceful assembly is guaranteed by the Basic Law
H and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, H
like the freedom of speech is indispensable to the building of a civilised
I I
society and essential to social stability and progress. The freedom of
J peaceful assembly enables members of the public to voice their criticisms, J
air grievances and seek redress on views they hold. However, the freedom
K K
of assembly is not absolute. Once a protester becomes involved in violence
L or the threat of violence, a breach of peace, then that protester crosses the L
line between constitutionally protected peaceful assembly and
M M
demonstration to an unlawful activity which is subject to legal sanctions.
N N
There is such a line to protect public order because society is prone to
O
descend into anarchy if public order is not preserved. O
P P
55. A riot has an immediate and serious impact on the rule of law.
Q Q
The rule of law is a core value of Hong Kong and the cornerstone of its
R success. The law ensures that public order and peace are preserved; not R
threatened by the use of violence. If public order is not preserved, this
S S
affects the freedom and rights of citizens.
T T
U U
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A A
B B
56. Sentencing for the offence of riot involves the factor of
C deterrence. All counsel submit the actions of the defendants were out of C
character or a momentary lapse of judgement. It is submitted their actions
D D
and participation were spontaneous and not premeditated. They were
E caught up with the crowd when rioters surrounded the single police officer E
when emotions were running high. They had no intention to cause harm
F F
to the public or destroy property. It is submitted that this is not the most
G serious case for an offence of this nature. G
H H
57. It has been suggested that the defendants are victims as well
I I
which I reject for the purposes of sentencing. I am urged to balance genuine
J remorse, guilty pleas, the young age of the 3rd defendant and clear records J
of the 2nd and 3rd defendants with the need to deter and punish.
K K
L L
58. A sentence must not only seek to prevent the offender from
M M
reoffending, but also give a proper warning to deter others from violating
N the law by breaking and disrupting public order in a like manner. Acts of N
violence or threats of violence will not and cannot be tolerated; such acts
O O
will attract a deterrent sentence to ensure that the public is protected.
P P
Q 59. The Court of Appeal in Leung Tin Kei reiterated that courts Q
will impose a sentence that is punitive and sufficiently deterrent in
R R
accordance with principles established in applicable case law. It therefore
S follows that the personal background and mitigation as well as the S
submissions of impulsive behaviour and being carried away by the
T T
emotions of others carry little weight.
U U
V V
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A A
B B
C C
60. In this case, a deterrent sentence will reflect the fact that the
D
defendants rioted in a public place, inside a Shopping Plaza which led to D
direct attacks on police officers holding a shield. It was a direct attack on
E E
law and order and an intention to injure and overpower police officers
F
performing their duties. F
G G
61. Deterrence overrides the sentencing principle of
H H
rehabilitation in the prevailing circumstances including the increasing
I incidents of unrest and a rising number of large-scale public protests I
involving violence. This is clear from the Court of Final Appeal in SJ v
J J
Wong Chi Fung 2018 21 HKCFAR 35.
K K
L L
62. The defendants were one of a number engaged in a crime
M against peace, perhaps it was the sheer number with the defendants that M
gave them support and encouragement from being together with so many
N N
to riot. It is a common feature of mass disorder that if individuals within
O the crowd act violently, this will in turn inflame and encourage others to O
behave similarly. The harm and destruction done comes from the
P P
combined effect of what is done en masse.
Q Q
R R
63. For similar offences with different backgrounds and facts, the
S sentences in those cases do not provide a helpful guidance. Each charge S
must be considered on its own facts. What is a common factor is that the
T T
U U
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A A
B B
sentence should be punitive and sufficiently deterrent therefore, an
C immediate custodial sentence is inevitable. C
D D
64. The Court of Appeal in Leung Tin Kei set out various factors
E E
to be taken into account when passing sentence on the offence of riot. In
F that case the riot took place in February 2016 in Argyle Street, Kowloon. F
G
Courts must consider these factors and principles to arrive at a sentence G
according to the facts of each individual case. In that authority, the Court
H H
of Appeal upheld the sentences imposed.
I I
J 65. I have been referred to HKSAR v Tang Ho Yin where the J
appellant was a man with a clear record and aged 24 at the time he
K K
committed the offence of riot. He pleaded guilty at the earliest opportunity
L and the sentencing judge took a starting point of five years’ imprisonment. L
The Court of Appeal considered the facts of that case, a riot between
M M
Shantung Street and Nathan Road on 9 February 2016 and although they
N N
said the appropriate starting point for that defendant was four years and six
O
months, they dismissed the appeal. Mr Shek has submitted I should take O
the same starting point.
P P
Q Q
66. In deciding the starting point of the offence, the extent of the
R overall violence involved must be considered, not the defendant’s R
individual acts in isolation. I quote from the authority R v Caird and others
S S
1970 Cr App R 499 where LJ Sachs said at pages 507-508,
T T
U U
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A A
B “those who choose to take part in such unlawful occasions must B
do so at their peril. … Any participation whatever, irrespective
C of its precise form, in an unlawful or riotous assembly of this C
type derives its gravity from becoming one of those who, by
weight of numbers, pursued a common and unlawful purpose.
D The law of this country has always leant heavily against those D
who, to attain such a purpose, use the threat that lies in the power
E
of numbers. ... In the view of this court, it is a wholly wrong E
approach to take the acts of any individual participator in
isolation. They were not committed in isolation and, as already
F indicated, it is that very fact that constitutes the gravity of the F
offence.”
G G
67. It therefore follows that I should consider the extent of the
H H
overall violence involved, not each defendant’s individual acts in each riot
I I
separately and in isolation.
J J
K 68. I have considered the factors relevant to sentencing as set out K
in Leung Tin Kei. This riot was spontaneous in that it arose when the police
L L
entered the Plaza to disperse protesters and PW1 became separated from
M other officers. However, from the CCTV footage you can see there was M
prior organised activity in the form of human chains passing items to be
N N
st
used if necessary with the 1 defendant an active participant. There were
O people handing out facemasks as a form of protection and to cover one’s O
face. The 3rd defendant took one and put it on in anticipation. The 2nd
P P
defendant came armed with a face mask.
Q Q
R R
69. I agree the number of people engaged in both riots were not
S as large as other recent riot cases but these riots took place indoors, inside S
a Shopping Plaza with as a result, some limitations. Despite this, the degree
T T
of violence was palpable. A viewing of the CCTV shows how brutal and
U U
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A A
B B
savage the rioters were when they surrounded PW1 and later PW2. They
C just lost all control and self-restraint. This is a factor I take into account C
and place weight on.
D D
E E
70. It may not have lasted long this riot but it was so vicious that
F PW1 was seriously injured. Both PW1 and PW2 were targets of the rioters F
G
because they were police officers. The harm caused is immeasurable to G
particularly PW1. Not just the physical harm and disability caused but the
H H
adverse impact they will have on his police career. This is another serious
I
factor of this riot of Charge 1. I
J J
71. As far as the other factors are concerned the nature and extent
K K
of the nuisance caused to the public by these riots inside the Shopping Plaza
L is foreseeable. Such riots conceivably affected the relationship amongst L
community groups, residents and the police on this occasion.
M M
N N
72. Defence counsel have urged me to look at what each
O defendant actually did during the course of the riot or riots. I repeat, it is a O
wholly wrong approach to take the acts of any individual participator in
P P
isolation. They were not committed in isolation. It is that very fact that
Q constitutes the gravity of the offence. They are all equally culpable. One Q
considers what the group to whose number the defendants lent their support
R R
did.
S S
T 73. Defence counsel have also urged me to look at each T
defendant’s personal circumstances, mitigation, age and lack of criminal
U U
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A A
B B
records. However, it is necessary to re-emphasis deterrence and
C punishment in sentencing the offence of riot. Courts must show that such C
conduct will not be tolerated in this community. It is in these types of cases
D D
where general deterrence has an overriding effect on the resulting sentence
E to be imposed. E
F F
74. It therefore follows, as I said above, that personal
G G
circumstances and mitigation as well as the submissions of impulsive
H behaviour and being carried away by the emotions of others carry little H
weight. That applies equally to the 3rd defendant. He may have been young
I I
but in my view his mitigation, his age and student status does not negate
J the need to impose a deterrent and custodial sentence which in this case J
will be a term of imprisonment.
K K
L L
Sentence
M M
N N
75. All 3 defendants have pleaded guilty at the earliest
O O
opportunity which does demonstrate remorse. From a reading of all the
P
letters, in particular those from the defendants personally, I am sure all P
regret their actions and participation.
Q Q
R 76. It is not an inconsiderable task to impose a punitive and R
deterrent sentence on young men and those with previous good characters
S S
but this present case requires me to give proper weight to public interest.
T T
U U
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A A
B B
77. Having considered all the relevant factors against the
C circumstances, I am of the view that the appropriate starting point for C
Charge 1, where all 3 defendants took part in this riot is 5 years’
D D
imprisonment after trial.
E E
78. I am of the view that the appropriate starting point for Charge
F F
3, where the 1st and 2nd defendant took part in this second riot is 6 years’
G imprisonment after trial. These riots took place one after the other and G
instead of taking stock and walking away from more rioting and violence,
H H
the 1st and 2nd defendant took part in another riot hence the higher starting
I point for the Charge 3. I
J J
K
79. All defendants pleaded guilty at the earliest opportunity and K
are therefore entitled to the usual full discount of one-third after plea.
L L
M 80. Accordingly, I reduce the starting point of Charge 1 by 1 year M
and 8 months and sentence all defendants to 3 years and 4 months’
N N
imprisonment for Charge 1.
O O
81. I reduce the starting point of Charge 3 by 2 years and sentence
P P
the 1st and 2nd defendant to 4 years’ imprisonment for Charge 3.
Q Q
82. The higher starting point for Charge 3 reflects the fact they
R participated in a second riot and I will order all sentences to be served R
S
concurrently. S
T 83. Therefore, the 1st defendant is sentenced to a total of 4 years’ T
imprisonment.
U U
V V
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A A
B B
C 84. The 2nd defendant is sentenced to a total of 4 years’ C
imprisonment.
D D
E 85. The 3rd defendant is sentenced to 3 years and 4 months’ E
imprisonment.
F F
G G
H H
I I
( A J Woodcock )
J District Judge J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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