DCCC125/2020 HKSAR v. WONG YAM CHOI AND ANOTHER - LawHero
DCCC125/2020
區域法院（刑事）Her Honour Judge A J Woodcock26/11/2020[2020] HKDC 1131
DCCC125/2020
A A
B B
DCCC 125/2020
C [2020] HKDC 1131 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 125 OF 2020
F F
G ----------------------------- G
HKSAR
H H
v
I WONG YAM CHOI (D1) I
CHAN MING KWAI (D2)
J J
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K K
Before: Her Honour Judge A J Woodcock in Court
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Date: 27 November 2020
M Present: Mr Chen Timothy K H, Public Prosecutor, for HKSAR/ M
Director of Public Prosecutions
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Mr Fung Chun Wah Keith, instructed by Keith Lau & Chan,
O assigned by the Director of Legal Aid, for the 1st defendant O
Mr Chu Po Tien David, instructed by Cheung & Co, assigned
P P
by the Director of Legal Aid, for the 2 nd defendant
Q Offence: [1] Riot (暴動) Q
R
[2] Wounding with intent (有意圖而傷人) R
S S
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T REASONS FOR SENTENCE T
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C 1. Both defendants pleaded guilty to Charge 1, a charge of Riot, C
contrary to section 19(1) and (2) of the Public Order Ordinance and Charge
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2, Wounding with intent, contrary to section 17(a) of the Offences against
E the Person Ordinance. E
F F
2. The particulars of Charge 1 are that both defendants on or about
G 9 November 2019, outside Block 1, Beverley Garden, No 1 Tong Ming G
Street, Tseung Kwan O, New Territories together with other persons
H H
unknown, took part in a riot.
I I
3. The particulars of Charge 2 are that both defendants on or about
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the same day at the same location, together with other persons unknown,
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unlawfully and maliciously wounded X with intent to do him grievous K
bodily harm.
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M M
Facts of the case
N N
4. A few days prior to the date of these offences a university
O student fell from a height in a car park nearby. He unfortunately passed O
away on 8 November 2019 from his injuries. His fall led to incidents of
P P
unlawful assembly and protests which escalated on the night of his death.
Q Q
5. Both defendants admit that just after midnight on 9 November
R R
2019 protesters began to gather outside Block 1 of Beverley Garden and
S were shouting and chanting slogans loudly. The number of protesters grew S
which meant the noise they generated increased exponentially.
T T
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6. X is a resident of Beverley Garden and was woken up at about
C 2:30am by the noise coming from downstairs. He was unable to go back to C
sleep and about 15 minutes later he went downstairs to find a group of more
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than 20 protesters shouting incessantly. X did make a noise complaint to
E the police and told the group that he had to work the next day therefore E
could they quieten down. He was then surrounded by a large group of
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protesters, some people wearing press vests and others who appeared to be
G there to watch and film the incident. G
H H
7. The crowd surrounding X grew angry and aggressive. Men who
I appeared to be security guards did try and lead X away but it appears from I
the news footage that he was prevented from leaving. Both defendants
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admitted they were amongst the group of protesters, in fact, the 2nd
K defendant is very visible and it appears was present from the start and one K
of the instigators of the incident. He is seen and heard scolding X.
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M 8. The 2nd defendant grabbed X’s arm and prevented him from M
leaving just before he was pushed to the ground. The 2nd defendant hit him
N N
with his bare hands. X was violently attacked by the defendants and others;
O he was punched, kicked and repeatedly hit with hard objects. He was O
trapped up against a wall. One can hear the objects hitting him in the news
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footage, the blows can actually be heard. The defendants admit this
Q incident turned into a riot. Q
R R
9. The attack on X was prolonged and only broke up when police
S officers arrived at the scene minutes later. The rioters dispersed. Within 10 S
minutes the police swept the area and arrested both defendants.
T T
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10. The 1st defendant was carrying a bag containing a black mask, a
C white mask and 2 pairs of gloves. The 2nd defendant had with him a black C
mask and gloves.
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E 11. X sustained multiple injuries which included lacerations over his E
scalp that required 13 stitches as did other wounds. All over his body he
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sustained cuts, bruises and swollen limbs. He was hospitalised for 3 days.
G G
12. The 1st defendant can be seen in news footage kicking X on the
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ground with the heel of her shoe as hard as she can on three separate
I occasions. Blood stains found on one of her shoes contained X’s DNA. A I
broken metal umbrella shaft was seized from the scene and covered in X’s
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blood.
K K
13. Both defendants admit that at the material time they both
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together with other persons unknown took part in a riot and both together
M with other persons unknown unlawfully and maliciously wounded X with M
intent to cause him grievous bodily harm. The news footage from several
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sources clearly shows the commission of the offences; a riot that was
O senseless and violent leaving a man seriously injured. The riot and attack O
on X went on for nearly 10 minutes.
P P
Q News camera footage Q
R R
14. I have 3 discs marked as MFI-1 containing news footage from
S RTHK News, Now TV and Stand News. From the Stand News footage S
recorded at 37:07 minutes the victim X is heard telling the crowd
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surrounding him to please be quiet because he just wants to sleep. He has
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made a noise complaint to the police. He is then verbally abused and
C scolded. The 2nd defendant can be seen next to X and in the thick of it. The C
nd
crowd including the 2 defendant questioned whether he was a real
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resident and threatened him. For example, there were shouts to watch
E where he went and take note where he lived. He was asked for his residence E
card to prove he lived there. Many of them were demanding answers from
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him or felt entitled to demand he answer. Clearly he felt threatened and
G started to film the crowd surrounding him with his own phone. This phone G
was knocked out of his hand when he was attacked and also stolen. It was
H H
a highly aggressive scene.
I I
15. 2 men who may have been security guards from the estate tried
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to escort X away from the baying crowd. He was essentially prevented
K from leaving. At 47:10 minutes the 2 nd defendant was very aggressively K
shouting at X and held his wrist. Seconds later he pushed X with other
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people and X fell to the ground. Many people attacked him on the ground
M and he was backed up against a wall. At 49:02 minutes there is a shout of M
“can the press back up” because they, rioters and voyeurs were obstructing
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any possible way for X to escape. Despite this, no one backed away or
O moved away at all. O
P P
16. From all of the news footage, there does not appear to have been
Q any attempt by anyone to help X or give him room to escape. I use the word Q
voyeur because there were clearly many who stood and filmed; the only
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sad explanation can be they enjoyed seeing the pain or distress of the victim.
S S
17. There are also shouts of “harder, harder” and shouts of “stop
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hitting”. There are shouts of “you will beat him to death”. At 53:00 minutes
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one can see he was beaten with something hard and one can hear the blows
C on his body. There are sickening cheers corresponding with these blows. C
D D
18. At 53:26 minutes the 1st defendant is seen pushing her way
E through the rioting crowd to kick X whilst he is on the ground. She kicks E
him until she is pulled away by somebody. At 53:36 minutes she comes
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again for the 2nd time to kick him with what appears to be the heel of her
G shoe. She even holds onto the tree next to X for leverage to kick him harder. G
Once again, she is pushed away but comes back for a 3 rd time at 53:49
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minutes. Once more she uses the tree as leverage when kicking him on the
I ground. I
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19. The 1st defendant is again seen very clearly in the Now TV
K footage at 3:04:33 kicking X for the 1st time. Again at 3:04:41 kicking him K
for the 2nd time and at 3:04:45 coming back for the last time, holding onto
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the tree for leverage to keep kicking. In the Now TV footage at 3:04:24 one
M can see X’s head being kicked and knocked against the wall behind him. M
There is blood on that wall.
N N
O 20. In all the camera footage provided by the prosecution from news O
agencies it is clear that prior to this incident in Beverley Gardens there was
P P
much unrest, violence and protesting in the surrounding area. When the
Q police arrive at Beverley Gardens it takes them a few minutes to get the Q
crowd and the press to move back to treat X. In several clips he can be seen
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covered in blood lying on the ground against the wall.
S S
21. The prosecution provided me with 3 albums, marked as
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st
MFI - 2 (1-3). In the 1 album there are photographs of the injuries suffered
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by X taken in the hospital. He has had to have all his hair shaved off to
C treat and stitch his head wounds. He has suffered injuries all over his head, C
face, neck, lower limbs and upper limbs; many which required stitches. His
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lower arms and hands are so swollen from the beatings.
E E
22. The 2nd album contains photographs of the clothes and shoes
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worn by both the defendants. Blood stains can be seen on the toecap of the
G 1st defendant shoe. G
H H
23. The 3rd album contains screenshots taken from the news footage
I of the various news agencies capturing both defendants, the riot and the I
rioters attacking X.
J J
K Mitigation K
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24. Everything that can be said on behalf of both defendants has
M M
been presented in mitigation. I thank counsel for written submissions. The
N best mitigation is their pleas of guilty at the earliest opportunity. N
O O
25. The 1st defendant is 30 years old and has 3 children with her
P long-term boyfriend. She previously lived with her boyfriend, children and P
his father but moved out about 2 years ago because of a poor relationship
Q Q
with her boyfriend’s family. She now lives alone in Sham Shui Po whilst
R they live in Tseung Kwan O. She visits them regularly and obviously is R
involved in their daily life and school life.
S S
T T
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A A
B B
26. The 1st defendant has one previous record; in 2016 she was
C sentenced to probation for a forgery offence. She had been arrested for C
wounding and was on police bail at the time of her arrest for these offences.
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I have been told it was a family matter and as a result, in January this year
E she was ordered to be bound over to keep the peace by Kwun Tong E
Magistracy.
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G 27. I have seen mitigation letters from the 1st defendant, her G
boyfriend a pastor of a church that provides support to her and her family,
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2 kindergarten teachers of her son who requires special care at kindergarten
I and has been diagnosed with ADHD. Both sons in fact have a similar I
diagnosis. There is also a letter from a special education teacher who has
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assisted her son and come to know the 1st defendant. All ask for leniency
K on her behalf and the defendant explains she was impulsive, reckless and K
now remorseful.
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M 28. I was informed that she suffered from mental illness for some M
years before her arrest therefore, I adjourned sentencing for a psychiatric
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report and a background report. I won’t repeat the contents of the reports
O but they give me details of the 1st defendant’s background and history of O
her previous diagnosis of adjustment disorder and obsessive-compulsive
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disorder.
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29. She was admitted to hospital after her arrest for this offence and
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during that admission, she was diagnosed to have schizophrenia, with a
S background of obsessive-compulsive disorder. She was treated with S
medication and showed an improvement. She does not require compulsory
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inpatient psychiatric treatment. She told the psychiatrist that she went to
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Beverley Garden that night to join a gathering for the deceased university
C student. She saw X appear and scold the gathering. She claimed to hear a C
voice telling her to kick him at that time. Subsequently she kicked him in
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the head several times.
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30. Defence counsel has specific instructions that she knew what she
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was doing that morning and did not commit these offences because of any
G disease of the mind. Despite what is said in the background report and G
psychiatrist report, the 1st defendant does not suggest any mental illness
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played any part in these offences. The 1st defendant’s instructions are that
I her mental condition did not play any part in these offences. She knew what I
she was doing at the time and did it intentionally even though it was in the
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heat of the moment. What she meant when discussing the offences with the
K probation officer was that she did not premeditate any of these offences. K
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31. Defence counsel have acknowledged there are no sentencing
M guidelines for either offences. They are very much fact specific. It has been M
submitted that I should take into account HKSAR v Tang Ho Yin
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CACC113/2018 and adopt a starting point of not more than 4 years and 6
O months for Charge 1. It is submitted that a starting point of 3 years would O
be appropriate for Charge 2.
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Q 32. The 2nd defendant is now 59 years old and has 2 previous Q
convictions for disorderly conduct and criminal damage but many years
R R
ago. He is married and lives with his wife and son near Beverley Gardens.
S His son is only 17 years old and still a student. Until his arrest, the 2 nd S
defendant was a pest control worker and driver earning $17,000 a month.
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He was the breadwinner of the family which has caused financial hardship.
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C 33. I have been told that on the night of the offence he was on his C
way to the MTR station when he came across protests and unrest against
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the police force suggesting they were responsible for the death of the
E university student who passed away that night. Out of curiosity he hung E
around and watched the protests. He then found himself unable to leave the
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area due to police blockades so he went to buy some food and beer. He
G made a mistake of not returning home but drinking for some time which G
meant by the time he came across X he was under the influence of alcohol.
H H
I 34. Under the influence of alcohol as well as the volatile and I
emotional crowd surrounding X he lost all self-control as seen in the news
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footage. Initially he was trying to mediate between X and the crowd but
K became agitated by the other aggressors. He then turned against X and K
rioted with others. One can hear what the 2nd defendant says to X and what
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he does on the news footage. He certainly appears coherent.
M M
35. I was asked to bear in mind that he did not use any weapon
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against X and although he was carrying a mask he was not wearing one at
O the time of the offences. He did not try to hide his identity. At times he can O
be seen wearing a cap.
P P
Q 36. I have considered the contents of mitigation letters written by Q
the 2nd defendant, his wife and son. There is also a letter from a leader of
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the church that the defendant attends. His previous employer has written to
S ask for leniency and for the defendant to have an opportunity to redeem S
himself.
T T
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37. Defence counsel for the 2nd defendant has said that although the
C incident was serious and X’s injuries were not minor, the circumstances C
and facts of the case do not warrant a 6 to 7 year starting point.
D D
E 38. The prosecution has submitted a statement from X dated E
October 2020. It is not in the form of a victim impact assessment report but
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a recount from the victim himself as to his injuries and suffering; the
G physical as well as psychological impact of the offences. Defence counsel G
have submitted that it is a bit subjective and could be inaccurate. It is
H H
submitted it is not helpful in terms of sentencing.
I I
39. The Summary of Facts and the photograph albums cover the
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physical injuries suffered as a result of the attack; there can be no dispute
K there. I note the victim states he still suffers intermittent pain which affects K
his performance at work and interrupts his sleep at times. He cannot yet do
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vigourous physical activities. He says that on occasions he has nightmares
M of being beaten. He explains how the attack has had a negative impact on M
his psychological well-being. In my view, these are all consequences one
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can imagine would reasonably result from an incident and attack of this
O nature. O
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Reasons for sentence
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40. 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
S indictment of 10 years. The offence of wounding with intent will attract a S
maximum penalty of life imprisonment.
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B B
41. Freedom of peaceful assembly is guaranteed by the Basic Law
C and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, C
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
E peaceful assembly enables members of the public to voice their criticisms, E
air grievances and seek redress on views they hold.
F F
G 42. However, the freedom of assembly is not absolute. Once a G
protester becomes involved in violence or the threat of violence, a breach
H H
of peace, then that protester crosses the line between constitutionally
I protected peaceful assembly and demonstration to an unlawful activity I
which is subject to legal sanctions. There is such a line to protect public
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order because society is prone to descend into anarchy if public order is not
K preserved. The facts of this case is a demonstration of just that scenario. K
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43. A riot has an immediate and serious impact on the rule of law.
M The rule of law is a core value of Hong Kong and the cornerstone of its M
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
O affects the freedom and rights of citizens. O
P P
44. Sentencing for the offence of riot involves the factor of
Q Q
deterrence. Counsels submit the actions of the defendants were a
R
momentary lapse of judgement and happened in the heat of the moment. It R
is submitted their actions and participation were spontaneous and not
S S
premeditated. They were caught up with the crowd when other rioters
T
surrounded the victim when emotions were running high. They didn’t go T
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out to organise a riot nor promote one. They had no intention to cause harm
C to members of the public or destroy property. C
D D
45. A sentence must not only seek to prevent the offender from
E reoffending, but also give a proper warning to deter others from violating E
the law by breaking and disrupting public order in a like manner. Acts of
F F
violence or threats of violence will not and cannot be tolerated; such acts
G will attract a deterrent sentence to ensure that the public is protected. G
H H
46. The Court of Appeal in Leung Tin Kei and others
I CACC 164/2018 reiterated that courts will impose a sentence that is I
punitive and sufficiently deterrent in accordance with principles
J J
established in applicable case law. It therefore follows that the personal
K background and mitigation as well as the submissions of impulsive K
behaviour and being carried away by the emotions of others carry little
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weight.
M M
47. In this case, a deterrent sentence will reflect the fact that the
N N
defendants rioted in a public place which led to a direct physical attack on
O an innocent resident who was defenceless, vulnerable and entirely on his O
own. It was a shameful attack on peace and order as well as an intention
P P
to injure and wound a man whose only complaint was the noise levels from
Q downstairs in his own estate. Q
R R
48. Deterrence overrides the sentencing principle of rehabilitation
S in the prevailing circumstances including the then increasing incidents of S
unrest and a rising number of large-scale public protests involving violence.
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B B
This is clear from the Court of Final appeal in SJ v Wong Chi Fung 2018
C 21 HKCFAR 35. C
D D
49. The defendants were one of a number engaged in a crime
E against peace, in this case it was definitely the sheer number with the E
defendants that gave them support and encouragement from being together
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with so many others to riot. It is a common feature of mass disorder that
G if individuals within the crowd act violently, this will in turn inflame and G
encourage others to behave similarly. This was what I witnessed in the
H H
news footage, it was disproportionate and without provocation. The victim
I threatened to call the police. That crowd knew the police were nearby so I I
am sure that threat didn’t scare them. I believe some were looking to cause
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trouble and their actions with words led others to behave similarly. The
K harm and destruction done comes from the combined effect of what is done K
en masse.
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M 50. For similar offences with different backgrounds and facts, the M
sentences and starting points in those cases do not provide a helpful
N N
guidance. Each charge must be considered on its own facts. What is a
O common factor is that the sentence should be punitive and sufficiently O
deterrent therefore, an immediate custodial sentence is inevitable.
P P
Q 51. The Court of Appeal in Leung Tin Kei set out various factors Q
to be taken into account when passing sentence on the offence of riot. In
R R
that case the riot took place in February 2016 in Argyle Street, Kowloon.
S Courts must consider these factors and principles to arrive at a sentence S
according to the facts of each individual case. I have taken them into
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account. In that authority, the Court of Appeal upheld the sentences
C imposed. C
D D
52. In deciding the starting point of the offence, the extent of the
E overall violence involved must be considered, not the defendant’s E
individual acts in isolation. It has been suggested in mitigation that the
F F
defendants actions were spontaneous and not premeditated. It was
G submitted neither used weapons although others did according to the news G
footage and the extent of X’s injuries. The 2nd defendant wasn’t wearing a
H H
mask to hide his identity. However, there were clearly many people there
I wearing caps and masks carrying umbrellas. I
J J
53. I quote from the authority R v Caird and others 1970 Cr App
K
R 499 where LJ Sachs said at pages 507-508, K
L “those who choose to take part in such unlawful occasions must L
do so at their peril. … Any participation whatever, irrespective
of its precise form, in an unlawful or riotous assembly of this
M type derives its gravity from becoming one of those who, by M
weight of numbers, pursued a common and unlawful purpose.
N The law of this country has always leant heavily against those N
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
O approach to take the acts of any individual participator in O
isolation. They were not committed in isolation and, as already
P
indicated, it is that very fact that constitutes the gravity of the P
offence.”
Q Q
54. Therefore, in determining an appropriate sentence, I
R R
considered the extent of the overall violence involved, not the defendant’s
S
individual acts in isolation. Both the defendants pleas and their behaviour S
seen on the camera footage shows they endorsed the offences and actively
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took part in them. Their culpability is significant. I do not differentiate
C between their roles and culpability. C
D 55. I have also considered the scale of the disturbance that night D
caused to the public, residents nearby, the harm to society, including the
E E
relation between the police and the public. There is no doubt that the riot
F was a serious incident. What I also find relevant is the riot was in a public F
place, the number of actual rioters was hard to estimate but enough to make
G G
it significant and frightening.
H H
56. Within that riot, I take into account there was intentional
I I
violence used against X. This makes the riot even more serious. He was
J punched and kicked and obviously hard objects were used to hit him. There J
were those who put up umbrellas to hide the identity of the rioters. At the
K K
time of the riot the police were not present but there were some people
L audibly trying to warn off the rioters but to no avail. It was only cut short L
by the police arriving. Such gratuitous violence cannot be tolerated by a
M M
civilised and diversified society.
N N
57. Accordingly, as mentioned above both the defendants
O O
mitigation and personal circumstances are not mitigating factors of any
P significant weight. A plea of guilty does demonstrate remorse and I’m sure P
they both regret their actions and participation after the event. I am
Q Q
conscious of the undoubted suffering of their family members, especially
R the young children as a result of their participation and actions. However, R
I do have to give proper weight to public interest and a deterrent sentence.
S S
T 58. Similarly wounding with intent is a serious offence which also T
warrants a deterrent sentence. Sentencing is very much case specific and
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there is no tariff as such. In HKSAR v Chan Chun Tat 2013 6 HKC 225,
C the Court of Appeal considered what factors were most relevant to C
sentencing such a serious offence.
D D
E 59. Those include whether there was premeditation, the E
motivation behind it, the mental and emotional state of the attacker,
F F
whether the attacker was acting under the influence of alcohol or drugs,
G whether the assault was committed by the attacker alone or as part of a G
group, type of weapons used, level of force used and injury suffered. Other
H H
aggravating factors would include whether the attack was committed in
I company, unprovoked, in a public place and did the attack go on after the I
victim had fallen down to the ground. For the purposes of sentencing, I’ve
J J
taken into account whether these factors exist in these facts.
K K
60. In this case of riot and wounding, the unlawful assembly of so
L L
many people became a riot and an intentional attack on a defenceless man
M armed with only a mobile phone. This was not obviously premeditated but M
nor can it have been said to have been provoked. The emotional state of
N N
the rioters led to a total loss of self-control, reason and their humanity.
O O
P
61. I have taken into account the facts, mitigation, the background P
of both defendants and the content of the reports I sought. I am of the view
Q Q
that the culpability and seriousness of Charge 1 is higher than that for
R Charge 2, it was a riot with intentional violence against a targeted person. R
I find the appropriate starting point for taking part in this riot to be 5 years’
S S
and 6 months’ imprisonment after trial. I will say that if there had not been
T the intentional attack directed at X, I would have taken a five-year starting T
point.
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62. For charge 2, I take into account the circumstances of the facts
C leading to charge 2 as well as the injuries suffered. I find the appropriate C
starting point to be 4 years and 6 months imprisonment.
D D
E E
63. Both defendants have pleaded guilty at the earliest
F opportunity and are both entitled to the usual full discount after plea. F
Therefore, I reduce the starting points accordingly and sentence the
G G
defendants as follows;
H H
The 1st defendant: Charge 1 3 years and 8 months.
I I
Charge 2 3 years.
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The 2nd defendant : Charge 1 3 years and 8 months.
K K
Charge 2 3 years.
L L
64. I have taken into account the facts and the totality principle.
M M
The 2 charges are intertwined and I order that all charges be served
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concurrently. Therefore, the 1st and 2nd defendant will serve a total of 3
O
years and 8 months’ imprisonment. O
P P
65. I order psychiatric treatment be arranged for the 1st defendant
Q whilst she is serving this sentence as deemed necessary by a psychiatrist. Q
R R
S S
T T
( A J Woodcock )
District Judge
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DCCC 125/2020
C [2020] HKDC 1131 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 125 OF 2020
F F
G ----------------------------- G
HKSAR
H H
v
I WONG YAM CHOI (D1) I
CHAN MING KWAI (D2)
J J
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K K
Before: Her Honour Judge A J Woodcock in Court
L L
Date: 27 November 2020
M Present: Mr Chen Timothy K H, Public Prosecutor, for HKSAR/ M
Director of Public Prosecutions
N N
Mr Fung Chun Wah Keith, instructed by Keith Lau & Chan,
O assigned by the Director of Legal Aid, for the 1st defendant O
Mr Chu Po Tien David, instructed by Cheung & Co, assigned
P P
by the Director of Legal Aid, for the 2 nd defendant
Q Offence: [1] Riot (暴動) Q
R
[2] Wounding with intent (有意圖而傷人) R
S S
-----------------------------------------
T REASONS FOR SENTENCE T
-----------------------------------------
U U
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A A
B B
C 1. Both defendants pleaded guilty to Charge 1, a charge of Riot, C
contrary to section 19(1) and (2) of the Public Order Ordinance and Charge
D D
2, Wounding with intent, contrary to section 17(a) of the Offences against
E the Person Ordinance. E
F F
2. The particulars of Charge 1 are that both defendants on or about
G 9 November 2019, outside Block 1, Beverley Garden, No 1 Tong Ming G
Street, Tseung Kwan O, New Territories together with other persons
H H
unknown, took part in a riot.
I I
3. The particulars of Charge 2 are that both defendants on or about
J J
the same day at the same location, together with other persons unknown,
K
unlawfully and maliciously wounded X with intent to do him grievous K
bodily harm.
L L
M M
Facts of the case
N N
4. A few days prior to the date of these offences a university
O student fell from a height in a car park nearby. He unfortunately passed O
away on 8 November 2019 from his injuries. His fall led to incidents of
P P
unlawful assembly and protests which escalated on the night of his death.
Q Q
5. Both defendants admit that just after midnight on 9 November
R R
2019 protesters began to gather outside Block 1 of Beverley Garden and
S were shouting and chanting slogans loudly. The number of protesters grew S
which meant the noise they generated increased exponentially.
T T
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B B
6. X is a resident of Beverley Garden and was woken up at about
C 2:30am by the noise coming from downstairs. He was unable to go back to C
sleep and about 15 minutes later he went downstairs to find a group of more
D D
than 20 protesters shouting incessantly. X did make a noise complaint to
E the police and told the group that he had to work the next day therefore E
could they quieten down. He was then surrounded by a large group of
F F
protesters, some people wearing press vests and others who appeared to be
G there to watch and film the incident. G
H H
7. The crowd surrounding X grew angry and aggressive. Men who
I appeared to be security guards did try and lead X away but it appears from I
the news footage that he was prevented from leaving. Both defendants
J J
admitted they were amongst the group of protesters, in fact, the 2nd
K defendant is very visible and it appears was present from the start and one K
of the instigators of the incident. He is seen and heard scolding X.
L L
M 8. The 2nd defendant grabbed X’s arm and prevented him from M
leaving just before he was pushed to the ground. The 2nd defendant hit him
N N
with his bare hands. X was violently attacked by the defendants and others;
O he was punched, kicked and repeatedly hit with hard objects. He was O
trapped up against a wall. One can hear the objects hitting him in the news
P P
footage, the blows can actually be heard. The defendants admit this
Q incident turned into a riot. Q
R R
9. The attack on X was prolonged and only broke up when police
S officers arrived at the scene minutes later. The rioters dispersed. Within 10 S
minutes the police swept the area and arrested both defendants.
T T
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A A
B B
10. The 1st defendant was carrying a bag containing a black mask, a
C white mask and 2 pairs of gloves. The 2nd defendant had with him a black C
mask and gloves.
D D
E 11. X sustained multiple injuries which included lacerations over his E
scalp that required 13 stitches as did other wounds. All over his body he
F F
sustained cuts, bruises and swollen limbs. He was hospitalised for 3 days.
G G
12. The 1st defendant can be seen in news footage kicking X on the
H H
ground with the heel of her shoe as hard as she can on three separate
I occasions. Blood stains found on one of her shoes contained X’s DNA. A I
broken metal umbrella shaft was seized from the scene and covered in X’s
J J
blood.
K K
13. Both defendants admit that at the material time they both
L L
together with other persons unknown took part in a riot and both together
M with other persons unknown unlawfully and maliciously wounded X with M
intent to cause him grievous bodily harm. The news footage from several
N N
sources clearly shows the commission of the offences; a riot that was
O senseless and violent leaving a man seriously injured. The riot and attack O
on X went on for nearly 10 minutes.
P P
Q News camera footage Q
R R
14. I have 3 discs marked as MFI-1 containing news footage from
S RTHK News, Now TV and Stand News. From the Stand News footage S
recorded at 37:07 minutes the victim X is heard telling the crowd
T T
surrounding him to please be quiet because he just wants to sleep. He has
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A A
B B
made a noise complaint to the police. He is then verbally abused and
C scolded. The 2nd defendant can be seen next to X and in the thick of it. The C
nd
crowd including the 2 defendant questioned whether he was a real
D D
resident and threatened him. For example, there were shouts to watch
E where he went and take note where he lived. He was asked for his residence E
card to prove he lived there. Many of them were demanding answers from
F F
him or felt entitled to demand he answer. Clearly he felt threatened and
G started to film the crowd surrounding him with his own phone. This phone G
was knocked out of his hand when he was attacked and also stolen. It was
H H
a highly aggressive scene.
I I
15. 2 men who may have been security guards from the estate tried
J J
to escort X away from the baying crowd. He was essentially prevented
K from leaving. At 47:10 minutes the 2 nd defendant was very aggressively K
shouting at X and held his wrist. Seconds later he pushed X with other
L L
people and X fell to the ground. Many people attacked him on the ground
M and he was backed up against a wall. At 49:02 minutes there is a shout of M
“can the press back up” because they, rioters and voyeurs were obstructing
N N
any possible way for X to escape. Despite this, no one backed away or
O moved away at all. O
P P
16. From all of the news footage, there does not appear to have been
Q any attempt by anyone to help X or give him room to escape. I use the word Q
voyeur because there were clearly many who stood and filmed; the only
R R
sad explanation can be they enjoyed seeing the pain or distress of the victim.
S S
17. There are also shouts of “harder, harder” and shouts of “stop
T T
hitting”. There are shouts of “you will beat him to death”. At 53:00 minutes
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B B
one can see he was beaten with something hard and one can hear the blows
C on his body. There are sickening cheers corresponding with these blows. C
D D
18. At 53:26 minutes the 1st defendant is seen pushing her way
E through the rioting crowd to kick X whilst he is on the ground. She kicks E
him until she is pulled away by somebody. At 53:36 minutes she comes
F F
again for the 2nd time to kick him with what appears to be the heel of her
G shoe. She even holds onto the tree next to X for leverage to kick him harder. G
Once again, she is pushed away but comes back for a 3 rd time at 53:49
H H
minutes. Once more she uses the tree as leverage when kicking him on the
I ground. I
J J
19. The 1st defendant is again seen very clearly in the Now TV
K footage at 3:04:33 kicking X for the 1st time. Again at 3:04:41 kicking him K
for the 2nd time and at 3:04:45 coming back for the last time, holding onto
L L
the tree for leverage to keep kicking. In the Now TV footage at 3:04:24 one
M can see X’s head being kicked and knocked against the wall behind him. M
There is blood on that wall.
N N
O 20. In all the camera footage provided by the prosecution from news O
agencies it is clear that prior to this incident in Beverley Gardens there was
P P
much unrest, violence and protesting in the surrounding area. When the
Q police arrive at Beverley Gardens it takes them a few minutes to get the Q
crowd and the press to move back to treat X. In several clips he can be seen
R R
covered in blood lying on the ground against the wall.
S S
21. The prosecution provided me with 3 albums, marked as
T T
st
MFI - 2 (1-3). In the 1 album there are photographs of the injuries suffered
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A A
B B
by X taken in the hospital. He has had to have all his hair shaved off to
C treat and stitch his head wounds. He has suffered injuries all over his head, C
face, neck, lower limbs and upper limbs; many which required stitches. His
D D
lower arms and hands are so swollen from the beatings.
E E
22. The 2nd album contains photographs of the clothes and shoes
F F
worn by both the defendants. Blood stains can be seen on the toecap of the
G 1st defendant shoe. G
H H
23. The 3rd album contains screenshots taken from the news footage
I of the various news agencies capturing both defendants, the riot and the I
rioters attacking X.
J J
K Mitigation K
L L
24. Everything that can be said on behalf of both defendants has
M M
been presented in mitigation. I thank counsel for written submissions. The
N best mitigation is their pleas of guilty at the earliest opportunity. N
O O
25. The 1st defendant is 30 years old and has 3 children with her
P long-term boyfriend. She previously lived with her boyfriend, children and P
his father but moved out about 2 years ago because of a poor relationship
Q Q
with her boyfriend’s family. She now lives alone in Sham Shui Po whilst
R they live in Tseung Kwan O. She visits them regularly and obviously is R
involved in their daily life and school life.
S S
T T
U U
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A A
B B
26. The 1st defendant has one previous record; in 2016 she was
C sentenced to probation for a forgery offence. She had been arrested for C
wounding and was on police bail at the time of her arrest for these offences.
D D
I have been told it was a family matter and as a result, in January this year
E she was ordered to be bound over to keep the peace by Kwun Tong E
Magistracy.
F F
G 27. I have seen mitigation letters from the 1st defendant, her G
boyfriend a pastor of a church that provides support to her and her family,
H H
2 kindergarten teachers of her son who requires special care at kindergarten
I and has been diagnosed with ADHD. Both sons in fact have a similar I
diagnosis. There is also a letter from a special education teacher who has
J J
assisted her son and come to know the 1st defendant. All ask for leniency
K on her behalf and the defendant explains she was impulsive, reckless and K
now remorseful.
L L
M 28. I was informed that she suffered from mental illness for some M
years before her arrest therefore, I adjourned sentencing for a psychiatric
N N
report and a background report. I won’t repeat the contents of the reports
O but they give me details of the 1st defendant’s background and history of O
her previous diagnosis of adjustment disorder and obsessive-compulsive
P P
disorder.
Q Q
29. She was admitted to hospital after her arrest for this offence and
R R
during that admission, she was diagnosed to have schizophrenia, with a
S background of obsessive-compulsive disorder. She was treated with S
medication and showed an improvement. She does not require compulsory
T T
inpatient psychiatric treatment. She told the psychiatrist that she went to
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B B
Beverley Garden that night to join a gathering for the deceased university
C student. She saw X appear and scold the gathering. She claimed to hear a C
voice telling her to kick him at that time. Subsequently she kicked him in
D D
the head several times.
E E
30. Defence counsel has specific instructions that she knew what she
F F
was doing that morning and did not commit these offences because of any
G disease of the mind. Despite what is said in the background report and G
psychiatrist report, the 1st defendant does not suggest any mental illness
H H
played any part in these offences. The 1st defendant’s instructions are that
I her mental condition did not play any part in these offences. She knew what I
she was doing at the time and did it intentionally even though it was in the
J J
heat of the moment. What she meant when discussing the offences with the
K probation officer was that she did not premeditate any of these offences. K
L L
31. Defence counsel have acknowledged there are no sentencing
M guidelines for either offences. They are very much fact specific. It has been M
submitted that I should take into account HKSAR v Tang Ho Yin
N N
CACC113/2018 and adopt a starting point of not more than 4 years and 6
O months for Charge 1. It is submitted that a starting point of 3 years would O
be appropriate for Charge 2.
P P
Q 32. The 2nd defendant is now 59 years old and has 2 previous Q
convictions for disorderly conduct and criminal damage but many years
R R
ago. He is married and lives with his wife and son near Beverley Gardens.
S His son is only 17 years old and still a student. Until his arrest, the 2 nd S
defendant was a pest control worker and driver earning $17,000 a month.
T T
He was the breadwinner of the family which has caused financial hardship.
U U
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B B
C 33. I have been told that on the night of the offence he was on his C
way to the MTR station when he came across protests and unrest against
D D
the police force suggesting they were responsible for the death of the
E university student who passed away that night. Out of curiosity he hung E
around and watched the protests. He then found himself unable to leave the
F F
area due to police blockades so he went to buy some food and beer. He
G made a mistake of not returning home but drinking for some time which G
meant by the time he came across X he was under the influence of alcohol.
H H
I 34. Under the influence of alcohol as well as the volatile and I
emotional crowd surrounding X he lost all self-control as seen in the news
J J
footage. Initially he was trying to mediate between X and the crowd but
K became agitated by the other aggressors. He then turned against X and K
rioted with others. One can hear what the 2nd defendant says to X and what
L L
he does on the news footage. He certainly appears coherent.
M M
35. I was asked to bear in mind that he did not use any weapon
N N
against X and although he was carrying a mask he was not wearing one at
O the time of the offences. He did not try to hide his identity. At times he can O
be seen wearing a cap.
P P
Q 36. I have considered the contents of mitigation letters written by Q
the 2nd defendant, his wife and son. There is also a letter from a leader of
R R
the church that the defendant attends. His previous employer has written to
S ask for leniency and for the defendant to have an opportunity to redeem S
himself.
T T
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B B
37. Defence counsel for the 2nd defendant has said that although the
C incident was serious and X’s injuries were not minor, the circumstances C
and facts of the case do not warrant a 6 to 7 year starting point.
D D
E 38. The prosecution has submitted a statement from X dated E
October 2020. It is not in the form of a victim impact assessment report but
F F
a recount from the victim himself as to his injuries and suffering; the
G physical as well as psychological impact of the offences. Defence counsel G
have submitted that it is a bit subjective and could be inaccurate. It is
H H
submitted it is not helpful in terms of sentencing.
I I
39. The Summary of Facts and the photograph albums cover the
J J
physical injuries suffered as a result of the attack; there can be no dispute
K there. I note the victim states he still suffers intermittent pain which affects K
his performance at work and interrupts his sleep at times. He cannot yet do
L L
vigourous physical activities. He says that on occasions he has nightmares
M of being beaten. He explains how the attack has had a negative impact on M
his psychological well-being. In my view, these are all consequences one
N N
can imagine would reasonably result from an incident and attack of this
O nature. O
P P
Reasons for sentence
Q Q
40. The offence of rioting, contrary to section 19(1) and (2) of the
R R
Public Order Ordinance, will attract a maximum term of imprisonment on
S indictment of 10 years. The offence of wounding with intent will attract a S
maximum penalty of life imprisonment.
T T
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B B
41. Freedom of peaceful assembly is guaranteed by the Basic Law
C and the Hong Kong Bill of Rights Ordinance. The freedom of assembly, C
like the freedom of speech is indispensable to the building of a civilised
D D
society and essential to social stability and progress. The freedom of
E peaceful assembly enables members of the public to voice their criticisms, E
air grievances and seek redress on views they hold.
F F
G 42. However, the freedom of assembly is not absolute. Once a G
protester becomes involved in violence or the threat of violence, a breach
H H
of peace, then that protester crosses the line between constitutionally
I protected peaceful assembly and demonstration to an unlawful activity I
which is subject to legal sanctions. There is such a line to protect public
J J
order because society is prone to descend into anarchy if public order is not
K preserved. The facts of this case is a demonstration of just that scenario. K
L L
43. A riot has an immediate and serious impact on the rule of law.
M The rule of law is a core value of Hong Kong and the cornerstone of its M
success. The law ensures that public order and peace are preserved; not
N N
threatened by the use of violence. If public order is not preserved, this
O affects the freedom and rights of citizens. O
P P
44. Sentencing for the offence of riot involves the factor of
Q Q
deterrence. Counsels submit the actions of the defendants were a
R
momentary lapse of judgement and happened in the heat of the moment. It R
is submitted their actions and participation were spontaneous and not
S S
premeditated. They were caught up with the crowd when other rioters
T
surrounded the victim when emotions were running high. They didn’t go T
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B B
out to organise a riot nor promote one. They had no intention to cause harm
C to members of the public or destroy property. C
D D
45. A sentence must not only seek to prevent the offender from
E reoffending, but also give a proper warning to deter others from violating E
the law by breaking and disrupting public order in a like manner. Acts of
F F
violence or threats of violence will not and cannot be tolerated; such acts
G will attract a deterrent sentence to ensure that the public is protected. G
H H
46. The Court of Appeal in Leung Tin Kei and others
I CACC 164/2018 reiterated that courts will impose a sentence that is I
punitive and sufficiently deterrent in accordance with principles
J J
established in applicable case law. It therefore follows that the personal
K background and mitigation as well as the submissions of impulsive K
behaviour and being carried away by the emotions of others carry little
L L
weight.
M M
47. In this case, a deterrent sentence will reflect the fact that the
N N
defendants rioted in a public place which led to a direct physical attack on
O an innocent resident who was defenceless, vulnerable and entirely on his O
own. It was a shameful attack on peace and order as well as an intention
P P
to injure and wound a man whose only complaint was the noise levels from
Q downstairs in his own estate. Q
R R
48. Deterrence overrides the sentencing principle of rehabilitation
S in the prevailing circumstances including the then increasing incidents of S
unrest and a rising number of large-scale public protests involving violence.
T T
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A A
B B
This is clear from the Court of Final appeal in SJ v Wong Chi Fung 2018
C 21 HKCFAR 35. C
D D
49. The defendants were one of a number engaged in a crime
E against peace, in this case it was definitely the sheer number with the E
defendants that gave them support and encouragement from being together
F F
with so many others to riot. It is a common feature of mass disorder that
G if individuals within the crowd act violently, this will in turn inflame and G
encourage others to behave similarly. This was what I witnessed in the
H H
news footage, it was disproportionate and without provocation. The victim
I threatened to call the police. That crowd knew the police were nearby so I I
am sure that threat didn’t scare them. I believe some were looking to cause
J J
trouble and their actions with words led others to behave similarly. The
K harm and destruction done comes from the combined effect of what is done K
en masse.
L L
M 50. For similar offences with different backgrounds and facts, the M
sentences and starting points in those cases do not provide a helpful
N N
guidance. Each charge must be considered on its own facts. What is a
O common factor is that the sentence should be punitive and sufficiently O
deterrent therefore, an immediate custodial sentence is inevitable.
P P
Q 51. The Court of Appeal in Leung Tin Kei set out various factors Q
to be taken into account when passing sentence on the offence of riot. In
R R
that case the riot took place in February 2016 in Argyle Street, Kowloon.
S Courts must consider these factors and principles to arrive at a sentence S
according to the facts of each individual case. I have taken them into
T T
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A A
B B
account. In that authority, the Court of Appeal upheld the sentences
C imposed. C
D D
52. In deciding the starting point of the offence, the extent of the
E overall violence involved must be considered, not the defendant’s E
individual acts in isolation. It has been suggested in mitigation that the
F F
defendants actions were spontaneous and not premeditated. It was
G submitted neither used weapons although others did according to the news G
footage and the extent of X’s injuries. The 2nd defendant wasn’t wearing a
H H
mask to hide his identity. However, there were clearly many people there
I wearing caps and masks carrying umbrellas. I
J J
53. I quote from the authority R v Caird and others 1970 Cr App
K
R 499 where LJ Sachs said at pages 507-508, K
L “those who choose to take part in such unlawful occasions must L
do so at their peril. … Any participation whatever, irrespective
of its precise form, in an unlawful or riotous assembly of this
M type derives its gravity from becoming one of those who, by M
weight of numbers, pursued a common and unlawful purpose.
N The law of this country has always leant heavily against those N
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
O approach to take the acts of any individual participator in O
isolation. They were not committed in isolation and, as already
P
indicated, it is that very fact that constitutes the gravity of the P
offence.”
Q Q
54. Therefore, in determining an appropriate sentence, I
R R
considered the extent of the overall violence involved, not the defendant’s
S
individual acts in isolation. Both the defendants pleas and their behaviour S
seen on the camera footage shows they endorsed the offences and actively
T T
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A A
B B
took part in them. Their culpability is significant. I do not differentiate
C between their roles and culpability. C
D 55. I have also considered the scale of the disturbance that night D
caused to the public, residents nearby, the harm to society, including the
E E
relation between the police and the public. There is no doubt that the riot
F was a serious incident. What I also find relevant is the riot was in a public F
place, the number of actual rioters was hard to estimate but enough to make
G G
it significant and frightening.
H H
56. Within that riot, I take into account there was intentional
I I
violence used against X. This makes the riot even more serious. He was
J punched and kicked and obviously hard objects were used to hit him. There J
were those who put up umbrellas to hide the identity of the rioters. At the
K K
time of the riot the police were not present but there were some people
L audibly trying to warn off the rioters but to no avail. It was only cut short L
by the police arriving. Such gratuitous violence cannot be tolerated by a
M M
civilised and diversified society.
N N
57. Accordingly, as mentioned above both the defendants
O O
mitigation and personal circumstances are not mitigating factors of any
P significant weight. A plea of guilty does demonstrate remorse and I’m sure P
they both regret their actions and participation after the event. I am
Q Q
conscious of the undoubted suffering of their family members, especially
R the young children as a result of their participation and actions. However, R
I do have to give proper weight to public interest and a deterrent sentence.
S S
T 58. Similarly wounding with intent is a serious offence which also T
warrants a deterrent sentence. Sentencing is very much case specific and
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A A
B B
there is no tariff as such. In HKSAR v Chan Chun Tat 2013 6 HKC 225,
C the Court of Appeal considered what factors were most relevant to C
sentencing such a serious offence.
D D
E 59. Those include whether there was premeditation, the E
motivation behind it, the mental and emotional state of the attacker,
F F
whether the attacker was acting under the influence of alcohol or drugs,
G whether the assault was committed by the attacker alone or as part of a G
group, type of weapons used, level of force used and injury suffered. Other
H H
aggravating factors would include whether the attack was committed in
I company, unprovoked, in a public place and did the attack go on after the I
victim had fallen down to the ground. For the purposes of sentencing, I’ve
J J
taken into account whether these factors exist in these facts.
K K
60. In this case of riot and wounding, the unlawful assembly of so
L L
many people became a riot and an intentional attack on a defenceless man
M armed with only a mobile phone. This was not obviously premeditated but M
nor can it have been said to have been provoked. The emotional state of
N N
the rioters led to a total loss of self-control, reason and their humanity.
O O
P
61. I have taken into account the facts, mitigation, the background P
of both defendants and the content of the reports I sought. I am of the view
Q Q
that the culpability and seriousness of Charge 1 is higher than that for
R Charge 2, it was a riot with intentional violence against a targeted person. R
I find the appropriate starting point for taking part in this riot to be 5 years’
S S
and 6 months’ imprisonment after trial. I will say that if there had not been
T the intentional attack directed at X, I would have taken a five-year starting T
point.
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A A
B B
62. For charge 2, I take into account the circumstances of the facts
C leading to charge 2 as well as the injuries suffered. I find the appropriate C
starting point to be 4 years and 6 months imprisonment.
D D
E E
63. Both defendants have pleaded guilty at the earliest
F opportunity and are both entitled to the usual full discount after plea. F
Therefore, I reduce the starting points accordingly and sentence the
G G
defendants as follows;
H H
The 1st defendant: Charge 1 3 years and 8 months.
I I
Charge 2 3 years.
J J
The 2nd defendant : Charge 1 3 years and 8 months.
K K
Charge 2 3 years.
L L
64. I have taken into account the facts and the totality principle.
M M
The 2 charges are intertwined and I order that all charges be served
N N
concurrently. Therefore, the 1st and 2nd defendant will serve a total of 3
O
years and 8 months’ imprisonment. O
P P
65. I order psychiatric treatment be arranged for the 1st defendant
Q whilst she is serving this sentence as deemed necessary by a psychiatrist. Q
R R
S S
T T
( A J Woodcock )
District Judge
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