A A
B B
DCCC 385/2020
[2021] HKDC 390
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 385 OF 2020
E ____________ E
HKSAR
F v F
CHOI TSZ CHUNG
G G
____________
H H
Before: HH Judge Dufton
I Date: 31 March 2021 I
Present: Mr Andy Lo, SPP, of the Department of Justice, for HKSAR
J Mr Kevin Tang instructed by Messrs Kenneth Lam, J
assigned by the Director of Legal Aid, for the defendant
K
Offence: Riot（暴動） K
L
REASONS FOR SENTENCE L
M 1. The defendant pleads guilty to one charge of taking part in a M
riot, contrary to sections 19(1) and (2) of the Public Order Ordinance, for
N N
which the maximum sentence is 10 years’ imprisonment1.
O O
2. Full particulars of the offence are set out in the amended
P P
summary of facts admitted by the defendant on 22 March 2021.
Q Q
3. The riot took place in the afternoon of Sunday 25 August 2019
R in the vicinity of Yeung Uk Road which is a main road in Tsuen Wan R
consisting of several carriageways on either side of the road. Footbridges
S S
cross the road and there are residential estates and shopping malls nearby.
T T
1
Cap 245.
U U
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A A
B B
4. In summary at around 4:30 p.m. a large scale
C protest/procession called “Tsuen Kwai Tsing Parade” passed by Tsuen C
Wan at which time a crowd of people began to assemble on the
D D
carriageways of Yeung Uk Road.
E E
5. At around 4:45 p.m. a convoy of Police Tactical Unit vehicles
F and anti-riot police arrived to maintain order. The police formed a F
checkline on Yeung Uk Road near Nina Mall.
G G
H 6. By this time nearly a thousand people had assembled on the H
carriageway 40 to 60 meters ahead of the police checkline. The crowd
I I
blocked and occupied Yeung Uk Road and set up barricades on the road.
J J
7. After a while a group of black clads wearing helmets,
K K
respirators, goggles and holding long umbrellas, metal rods, wooden poles
L
and self-made shields stepped forward from the crowd and pressed forward L
towards the police checkline with the rest of the crowd following.
M M
8. Between 5 p.m. and 5:30 p.m. the unlawful assembly of the
N N
crowd on Yeung Uk Road turned into a riot. The group of black clads
O together with others fortified their positions and barricades and hurled large O
amounts of missiles and miscellaneous items such as bricks, stones and
P P
eggs at the checkline.
Q Q
9. In support of the crowd and in furtherance of the disturbance,
R R
a number of people on the footbridges repeatedly shot blue and green laser
S beams at the heads of the anti-riot police and the cameras used by the police S
to record the events of that afternoon.
T T
U U
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A A
B B
10. The police on several occasions displayed warning flags to the
C rioters but in vain. C
D 11. Between 5:36 p.m. and 6:00 p.m. the rioters at the barricades D
kept shooting blue and green laser beams at the checkline. In addition to
E E
bricks and stones, petrol bombs were also hurled at the police. Bricks and
F fires caused by the petrol bombs were all over the carriageways in front of F
the checkline.
G G
H 12. A group of rioters holding water-filled barriers and long H
bamboo sticks charged in an attempt to break through the checkline. At
I I
the same time rioters on the footbridges continued to shoot blue laser
J beams at the checkline. Tear gas was deployed by the police in an attempt J
to disperse the rioters.
K K
L
13. At around 6:18 p.m. under cover of more intensive blue and L
green laser beams shot at the checkline the rioters began to retreat towards
M M
the Tai Wo Hau MTR station.
N N
14. At around 6:30 p.m. police reinforcements arrived and the
O anti-riot police then moved forward to disperse the crowd. At 6:54 p.m. O
the police left Yeung Uk Road because the commotion was spreading to
P P
other parts of Tsuen Wan. The disturbance in the area generally subsided
Q at around 8:00 p.m. that night. Q
R R
Arrest
S S
15. Between 8 p.m. and 10:00 p.m. the same day unlawful
T assemblies took place on Yen Chow Street in the vicinity of the Sham Shui T
Po police station.
U U
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A A
B B
16. At around 10:06 p.m. the police marched along Yen Chow
C Street to disperse the crowd. The defendant was arrested on the C
carriageway amongst the fleeing crowd.
D D
17. In the defendant’s rucksack the police found arm guards, knee
E E
pads, leg guards, a helmet, a respirator, masks, gloves, goggles and a
F change of clothes. The police also found two devices capable of emitting F
laser beams: one Class 4 laser and one Class 3B laser.
G G
H 18. The defendant’s Octopus card showed that he had entered Tai H
Wo Hau MTR station at about 7:54 that evening and exited at Sham Shui
I I
Po station at 8:14 p.m.
J J
19. In subsequent video recorded interviews, the defendant
K K
admitted taking part in the riot in Tsuen Wan. In summary the defendant,
L
inter alia, said that he left home at 3:00 p.m. to join the procession; on the L
bus he changed into a black T-shirt and a blue raincoat; he put on a mask
M M
and the yellow helmet when taking part in the procession; after arriving at
N Yeung Uk Road and seeing the anti-riot police he put on the respirator, N
knee pads and leg guards; he joined in chanting slogans against the police;
O O
he saw people digging up bricks; when the police used tear gas he left and
P went to Sham Shui Po; he bought the laser devices the day before in Apliu P
Street because he had seen other people using laser pointers to shoot at
Q Q
CCTV cameras, buildings and police officers and he wanted to emulate
R them; he only used the Class 4 laser to provoke the police because of bad R
police-community relations; he was aware that shooting laser beams at the
S S
eyes would be hazardous and would cause ocular damage or even blind the
T police officer; he was among the crowd confronting the anti-riot police and T
was one of a dozen people shooting laser beams at the police.
U U
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A A
B B
Video footage
C C
20. The riot was captured on police video and video footage from
D i-CABLE News the contents of which are summarised in Annex 1 of the D
amended summary of facts. A ‘highlight” video has been prepared
E E
showing the parts of the riot corresponding to the defendant’s confession
F and is summarised in Annex 2A. F
G G
21. The “highlight” video has been played in court. I have also
H viewed all the footage in Annex 1 for the period between 16:34 and 18:18 H
during which time the riot took place.
I I
22. Mr Lo informed the court that there was no injury to any
J J
police officer or other person and that apart from the damage to Yeung Uk
K K
Road as seen in the video footage there was no other specific property
L
damage. L
M Forensic examination M
N N
23. I have read the forensic examination report. In summary the
O forensic examiner found that direct eye exposure to the blue laser emitted O
from the Class 4 laser pointer at any point within 20 meters can cause
P P
ocular damage; viewing the diffused reflections may be hazardous and the
Q laser emitted often represents a fire hazard. Q
R 24. The forensic examiner found that direct eye exposure to the R
green laser emitted from the Class 3B laser pointer at any point within 40
S S
meters can cause ocular damage, including from accidental short time
T exposure. As the laser emitted was not very focused it was unlikely to T
produce any skin injuries or pose any risk of igniting flammable materials.
U U
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A A
B B
Mitigation
C C
25. In passing sentence, I have carefully considered the oral and
D written submissions of Mr Tang, including that the defendant, aged 21, D
lives with his parents and younger brother, is working part-time in King
E E
2
Yo Drink Shop while his studies at IVE have been suspended . I take into
F account the defendant has no previous convictions. F
G G
26. I have read the defendant’s mitigation letter in which he
H describes why he participated in the march on 25 August 2019; that he has H
been unable to finish his studies and will not be able to fulfil his dream of
I I
becoming an ambulance man.
J J
27. I have also read the letters written by the defendant’s parents;
K K
Mr Ho, his lecturer at IVE; friends and colleagues. All speak highly of the
L
defendant. This is also borne out by the certificate from the defendant’s L
school stating that the defendant left school having been honoured as an
M M
excellent disciplinary student leader. The defendant’s father, Mr Ho and
N the defendant’s school friends have attended court to lend their support to N
the defendant.
O O
28. In oral submission Mr Tang asks the court to take into account
P P
that at the first opportunity the defendant confessed to his involvement in
Q the riot in Tsuen Wan thereby saving a lot of police time to investigate and Q
that without the confession the defendant may not have been charged.
R R
S S
T T
2
See §§5 & 6 of the written mitigating submissions
U U
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A A
B B
Discussion
C C
29. As is now a matter of public record, between June and October
D 2019, Hong Kong experienced an exceptional and sustained outbreak of D
violent public lawlessness3. Public disorder took place in various parts of
E E
Hong Kong in which violence escalated and included acts of repeatedly
F blocking roads and attacking police officers with weapons including high- F
powered laser pointers, bricks and throwing petrol bombs4.
G G
H 30. The riot in Yeung Uk Road is one instance of that violent H
public lawlessness.
I I
31. In Secretary for Justice v Wong Chi Fung, the Court of Final
J J
Appeal held that the Court of Appeal were justified in holding that in
K K
sentencing cases of disrupting public order, especially those which involve
L
violence, the court must bear in mind the importance of preserving public L
order and pass sentence that is not only appropriate to the punishment of
M M
the offenders but also takes into account the factor of deterrence5.
N N
32. In HKSAR v Leung Tin Kei & others, a case arising from the
O 2016 Mongkok riots, the Court of Appeal emphasised that the court would O
impose punitive and sufficiently deterrent sentences on people who
P P
6
commit riot .
Q Q
R R
S 3 S
See Kwok Wing Hang & others v Chief Executive in Council FACV 6/2020 at §1.
4
See Kwok Wing Hang & others v Chief Executive in Council FACV 6/2020 at §89.
T 5
T
Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at §119.
6
[2020] 4 HKLRD 462 at §§73-75.
U U
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A A
B B
33. In Secretary for Justice v CMT the Court of Appeal again
C stressed the need for continuous and vigorous application of deterrent C
sentences for offences of unlawful assembly and riot as essential to uphold
D D
the public interest in maintaining peace and safety in Hong Kong7.
E E
34. The court in HKSAR v Leung Tin Kei adopting the factors
F relevant in sentencing for unlawful assembly as endorsed by the Court of F
Final Appeal in Secretary for Justice v Wong Chi Fung8 said that generally
G G
speaking, the factors to be taken into account when passing sentence on the
H offence of riot include9: H
I I
(1) whether the riot was spontaneous or
J premediated; if it was the latter, how detailed and J
precise the plan was;
K K
L
(2) the number of people engaged in the riot; L
M (3) the degree of violence used by the rioters, M
including whether weapons were used and, if so, what
N N
kind and quantity of weapons;
O O
(4) the scale of the riot, including the time, location,
P P
the number of places and the area in which the riot
Q took place; Q
R R
S S
7
[2021] 1 HKLRD 1 at §§41-42.
T 8
T
Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at §121.
9
HKSAR v Leung Tin Kei & others [2020] 4 HKLRD 462 at §79.
U U
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A A
B B
(5) the duration of the riot, including whether the
C riot was prolonged; and whether it still went on despite C
repeated warnings by the police or public officers;
D D
(6) the harm caused by the riot: for example,
E E
whether there was any loss or damage to properties
F and, if so, to what extent; whether anyone was injured F
and, if so, the number of injured persons and the degree
G G
of injury;
H H
(7) the imminence and gravity of threat that was
I I
caused by the riot;
J J
(8) the nature and extent of nuisance caused to the
K K
public by the riot;
L L
(9) the impact caused by the riot on the relationship
M among community groups; M
N N
(10) burden caused to public expenditure by the riot;
O O
(11) the offender’s role and degree of participation;
P for instance, apart from taking part in the riot, whether P
he had arranged, led, summoned, incited or advocated
Q Q
others to take part in the riot; and
R R
(12) whether the offender committed any other
S S
crimes during the course of the riot.
T T
U U
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A A
B B
35. The courts have emphasised that since the background and
C facts involved in each case of riot are different, each case has to be C
considered separately, so the sentencing in other cases do not provide much
D D
guidance; the court in sentencing should apply appropriate principles and
E pay regard to the actual circumstances of individual cases, and then impose E
the proper sentence10.
F F
36. The age of an offender is always a relevant mitigating factor
G G
11
in sentencing . The defendant is now 21, 19 nearly 20 at the time of the
H offence. The defendant having turned 21 section 109A of the Criminal H
Procedure Ordinance, which provides no court shall sentence a person of
I I
or over 16 and under 21 years of age to imprisonment unless the court is of
J J
the opinion that no other method of dealing with such person is appropriate,
K
does not apply12. A court must nevertheless exercise great care before K
committing a young offender to prison.
L L
37. In Secretary for Justice v Leung Hiu Yeung the Court of Final
M M
Appeal considered the approach to be taken where a defendant crosses a
N relevant threshold between the dates of offending, conviction and N
sentence13. The court said that if a young offender has turned 21 between
O O
the date of offending and the date of sentence, the fact of his youth will be
P a powerful factor in determining the appropriate sentence for him and that P
Q Q
R R
10
See HKSAR v Leung Tin Kei & others [2020] 4 HKLRD 462 at §80. Also see HKSAR v Lo Kin
S S
Man CACC 164/2018 at §§12 & 13 (application for leave to appeal to the Court of Final Appeal)
11
See Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at §84.
T 12
T
See Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421 at §59.
13
See Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421 at §§74-76.
U U
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A A
B B
the sentence he should receive will, in most cases, be the same as if section
C 109A had applied to him14. C
D 38. The court went on to say that there will, of course be D
exceptions but in practical terms a young offender who has turned 21 by
E E
the time of sentencing should only be sent to prison as a matter of last resort
F and, for that purpose, the sentencing court will have to be alive to the F
possibility it may need to obtain reports15.
G G
H 39. Today Mr Tang, relying on the decision in Secretary for H
Justice v Leung Hiu Yeung, asks the court to call for a report as to the
I I
defendant’s suitability for Detention Centre16. A young offender who is
J over 14 and under 25 is eligible for detention in a Detention Centre. J
K K
40. The Court of Final Appeal in saying there will of course be
L
exceptions referred to their earlier decision in Secretary for Justice v Wong L
17
Chi Fung that in an appropriate case section 109A may be dispensed with .
M M
41. In Secretary for Justice v Wong Chi Fung the Court of Final
N N
Appeal reaffirmed the position that where the facts warrant the sentencing
O court to take the view that the serious nature of an offence so clearly O
overrides any considerations personal to the offender the court can
P P
Q 14 Q
See Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421 at §76.
15
See Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421 at §76.
R 16
R
Also see the supplemental mitigating submissions of Mr Tang submitted in court today.
In his written mitigating submissions filed in court for hearing on 22 March 2021 and when
S mitigating in court on 22 March 2021 Mr Tang did not ask the court to consider the defendant’s S
suitability for Detention Centre. After the court adjourned for sentence Mr Tang wrote to the
T court saying that he had been instructed by the defendant to invite the court to call for a Detention T
Centre Report. I directed that all submissions were to be made in open court.
17
See Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421 at §76.
U U
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A A
B B
determine, without resort to obtaining information pursuant to section
C 109A, that the only appropriate sentence is one of imprisonment 18. C
D 42. In Secretary for Justice v SWS the Court of Appeal said that D
in balancing various sentencing factors the court would give young
E E
offenders a chance to rehabilitate as far as practicable however where as a
F matter of public interest, the seriousness of the offence and the F
circumstances of the case call for a heavy or deterrent sentence, the
G G
offender’s young age and personal background would count very little or
H even pale into insignificance because the need for a punitive or deterrent H
sentence far outweighs the rehabilitative need of the offender19.
I I
J 43. After careful consideration I am satisfied the only appropriate J
sentence is one of imprisonment. I decline to call for a report as to the
K K
defendant’s suitability for Detention Centre. Further, in my view a
L sentence of detention in a Detention Centre would not reflect the gravity of L
the offence.
M M
N 44. Mr Tang asks the court to take into account the defendant only N
used a laser pen and did not engage in any other violent conduct; that he
O O
was not the leader nor the initiator and was influenced by the “sheep-flock”
P effect and foolishly followed others20. P
Q 45. In HKSAR v Tang Ho Yin, a case also arising from the 2016 Q
Mongkok riots, the Court of Appeal derived three important principles
R R
from a review of authorities from the English Court of Appeal.
S S
18
See Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at §90.
T 19
T
Secretary for Justice v SWS [2020] HKCA 788 at §48.
20
See §16 of the written mitigating submissions.
U U
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A A
B B
46. Firstly, the gravity of the offence of riot is not to be judged
C merely by what the individual did (or did not do), but by what the group to C
whose number he lent his support did; secondly, the offence may be
D D
aggravated by the commission of other crimes during the course of the riot;
E and thirdly, those who resort to the company and association of others in E
order to inflict widespread violence and destruction must be strongly
F F
deterred21.
G G
47. Mr Tang submits that after the march finished the defendant
H acted out of impulse on seeing the police have confrontation with other H
protestors. The defendant’s parents also believe the defendant acted on the
I I
22
spur of the moment .
J J
48. In the defendant’s mitigation letter reference is made to the
K K
police issuing a letter of no objection to the parade. In court Mr Lo
L confirmed that the police had issued a letter of no objection to the parade; L
at the end stage of the parade in Tsuen Wan the people began to leave;
M M
Yeung Uk Road was beyond the end of the parade and that at the time of
N the riot the lawful march had finished. N
O O
49. In HKSAR v Chow Nok Hang, Riberio PJ stated that “Once a
P demonstrator becomes involved in violence or the threat of violence …. P
that demonstrator crosses the line separating constitutionally protected
Q Q
peaceful demonstration from unlawful activity which is subject to legal
R sanctions and constraints”23. R
S S
21
[2019] 3 HKLRD 502 at §24.
T 22
T
See §§4, 16 & 17 of the written mitigating submissions and the letter written by the parents.
23
(2013) 16 HKCFAR 837 at §39.
U U
V V
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A A
B B
50. Similarly, in Secretary for Justice v Wong Chi Fung the Court
C of Final appeal stated that, “In such a case involving violence, a deterrent C
sentence may be called for and will not be objectionable on the ground that
D D
it creates a “chilling effect” on the exercise of a constitutional right, since
E there is no right to be violent. Quite simply the line of acceptability has E
been crossed”24.
F F
51. Notwithstanding the defendant’s young age at the time, 19
G G
nearly 20, I do not accept the defendant acted on impulse once the march
H had ended. Nor do I accept what the defendant says in his letter that all he H
wanted to do was escape from the scene immediately but was unable to do
I I
so.
J J
52. The defendant left home taking with him arm guards, knee
K K
pads, leg guards, a helmet, a respirator, masks, gloves, goggles and a
L change of clothes together with two devices capable of emitting laser L
beams which he had bought the day before to emulate other protestors and
M M
provoke the police, knowing that shooting laser beams at the eyes would
N be hazardous and could cause ocular damage or even blind a police officer. N
O O
53. In addition, the defendant did not go home. After taking part
P in the riot the defendant entered the Tai Wo Hau MTR station at 7:54 p.m. P
and instead of going home went to Sham Shui Po, the scene of other
Q Q
unlawful assemblies that night, arriving at 8:14 p.m. The defendant was
R R
S S
T T
24
(2018) 21 HKCFAR 35 at §69.
U U
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A A
B B
arrested nearly two hours later amongst the fleeing crowd on Yen Chow
C Street when the police were dispersing the unlawful assemblies 25. C
D 54. The scale of the riot can be seen by watching the video footage, D
not just the highlight video, in particular i-CABLE News for the period
E E
17:24-18:14 which shows the riot from different angles. Both sides of the
F carriageway were blocked. The riot lasted for about an hour. F
Notwithstanding many warnings had been given by the police and tear gas
G G
used, the rioters continued to shoot green and blue laser beams at the police
H and throw bricks and petrol bombs. H
I I
55. Throwing of petrol bombs poses obvious and potentially
J lethal danger to the police, protestors and other persons who happen to be J
at or near the scene. This is perhaps best seen at the end of police video 5,
K K
time duration between 11:54 and 12:12, when a petrol bomb was thrown
L and landed next to reporters who were filming the police. Fortunately, L
nobody, including police officers, was injured.
M M
N 56. The throwing of petrol bombs, albeit not by the defendant, N
adds to the scale of violence used in the riot. By associating himself with
O O
the rioters who were throwing bricks and petrol bombs the defendant was
P clearly lending support and encouragement to others in the group to P
violently attack the police.
Q Q
57. Taking into account all the circumstances of the riot as shown
R R
in the video footage and that the defendant is a first offender who was 19
S S
T 25
By agreement the charge of taking part in an unlawful assembly (charge 2) and possession of T
offensive weapon in a public place (charge 3) are left on the court file not to be proceeded with
without leave of the court or the Court of Appeal.
U U
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A A
B B
nearly 20 at the time and confessed to taking part in the riot at the earliest
C opportunity, I am satisfied a starting point of 6 years’ imprisonment is C
appropriate.
D D
58. Giving the defendant full credit for his plea of guilty he is
E E
convicted and sentenced to 4 years’ imprisonment.
F F
G G
H H
(D. J. DUFTON)
District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
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A A
B B
DCCC 385/2020
[2021] HKDC 390
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 385 OF 2020
E ____________ E
HKSAR
F v F
CHOI TSZ CHUNG
G G
____________
H H
Before: HH Judge Dufton
I Date: 31 March 2021 I
Present: Mr Andy Lo, SPP, of the Department of Justice, for HKSAR
J Mr Kevin Tang instructed by Messrs Kenneth Lam, J
assigned by the Director of Legal Aid, for the defendant
K
Offence: Riot（暴動） K
L
REASONS FOR SENTENCE L
M 1. The defendant pleads guilty to one charge of taking part in a M
riot, contrary to sections 19(1) and (2) of the Public Order Ordinance, for
N N
which the maximum sentence is 10 years’ imprisonment1.
O O
2. Full particulars of the offence are set out in the amended
P P
summary of facts admitted by the defendant on 22 March 2021.
Q Q
3. The riot took place in the afternoon of Sunday 25 August 2019
R in the vicinity of Yeung Uk Road which is a main road in Tsuen Wan R
consisting of several carriageways on either side of the road. Footbridges
S S
cross the road and there are residential estates and shopping malls nearby.
T T
1
Cap 245.
U U
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A A
B B
4. In summary at around 4:30 p.m. a large scale
C protest/procession called “Tsuen Kwai Tsing Parade” passed by Tsuen C
Wan at which time a crowd of people began to assemble on the
D D
carriageways of Yeung Uk Road.
E E
5. At around 4:45 p.m. a convoy of Police Tactical Unit vehicles
F and anti-riot police arrived to maintain order. The police formed a F
checkline on Yeung Uk Road near Nina Mall.
G G
H 6. By this time nearly a thousand people had assembled on the H
carriageway 40 to 60 meters ahead of the police checkline. The crowd
I I
blocked and occupied Yeung Uk Road and set up barricades on the road.
J J
7. After a while a group of black clads wearing helmets,
K K
respirators, goggles and holding long umbrellas, metal rods, wooden poles
L
and self-made shields stepped forward from the crowd and pressed forward L
towards the police checkline with the rest of the crowd following.
M M
8. Between 5 p.m. and 5:30 p.m. the unlawful assembly of the
N N
crowd on Yeung Uk Road turned into a riot. The group of black clads
O together with others fortified their positions and barricades and hurled large O
amounts of missiles and miscellaneous items such as bricks, stones and
P P
eggs at the checkline.
Q Q
9. In support of the crowd and in furtherance of the disturbance,
R R
a number of people on the footbridges repeatedly shot blue and green laser
S beams at the heads of the anti-riot police and the cameras used by the police S
to record the events of that afternoon.
T T
U U
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A A
B B
10. The police on several occasions displayed warning flags to the
C rioters but in vain. C
D 11. Between 5:36 p.m. and 6:00 p.m. the rioters at the barricades D
kept shooting blue and green laser beams at the checkline. In addition to
E E
bricks and stones, petrol bombs were also hurled at the police. Bricks and
F fires caused by the petrol bombs were all over the carriageways in front of F
the checkline.
G G
H 12. A group of rioters holding water-filled barriers and long H
bamboo sticks charged in an attempt to break through the checkline. At
I I
the same time rioters on the footbridges continued to shoot blue laser
J beams at the checkline. Tear gas was deployed by the police in an attempt J
to disperse the rioters.
K K
L
13. At around 6:18 p.m. under cover of more intensive blue and L
green laser beams shot at the checkline the rioters began to retreat towards
M M
the Tai Wo Hau MTR station.
N N
14. At around 6:30 p.m. police reinforcements arrived and the
O anti-riot police then moved forward to disperse the crowd. At 6:54 p.m. O
the police left Yeung Uk Road because the commotion was spreading to
P P
other parts of Tsuen Wan. The disturbance in the area generally subsided
Q at around 8:00 p.m. that night. Q
R R
Arrest
S S
15. Between 8 p.m. and 10:00 p.m. the same day unlawful
T assemblies took place on Yen Chow Street in the vicinity of the Sham Shui T
Po police station.
U U
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A A
B B
16. At around 10:06 p.m. the police marched along Yen Chow
C Street to disperse the crowd. The defendant was arrested on the C
carriageway amongst the fleeing crowd.
D D
17. In the defendant’s rucksack the police found arm guards, knee
E E
pads, leg guards, a helmet, a respirator, masks, gloves, goggles and a
F change of clothes. The police also found two devices capable of emitting F
laser beams: one Class 4 laser and one Class 3B laser.
G G
H 18. The defendant’s Octopus card showed that he had entered Tai H
Wo Hau MTR station at about 7:54 that evening and exited at Sham Shui
I I
Po station at 8:14 p.m.
J J
19. In subsequent video recorded interviews, the defendant
K K
admitted taking part in the riot in Tsuen Wan. In summary the defendant,
L
inter alia, said that he left home at 3:00 p.m. to join the procession; on the L
bus he changed into a black T-shirt and a blue raincoat; he put on a mask
M M
and the yellow helmet when taking part in the procession; after arriving at
N Yeung Uk Road and seeing the anti-riot police he put on the respirator, N
knee pads and leg guards; he joined in chanting slogans against the police;
O O
he saw people digging up bricks; when the police used tear gas he left and
P went to Sham Shui Po; he bought the laser devices the day before in Apliu P
Street because he had seen other people using laser pointers to shoot at
Q Q
CCTV cameras, buildings and police officers and he wanted to emulate
R them; he only used the Class 4 laser to provoke the police because of bad R
police-community relations; he was aware that shooting laser beams at the
S S
eyes would be hazardous and would cause ocular damage or even blind the
T police officer; he was among the crowd confronting the anti-riot police and T
was one of a dozen people shooting laser beams at the police.
U U
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A A
B B
Video footage
C C
20. The riot was captured on police video and video footage from
D i-CABLE News the contents of which are summarised in Annex 1 of the D
amended summary of facts. A ‘highlight” video has been prepared
E E
showing the parts of the riot corresponding to the defendant’s confession
F and is summarised in Annex 2A. F
G G
21. The “highlight” video has been played in court. I have also
H viewed all the footage in Annex 1 for the period between 16:34 and 18:18 H
during which time the riot took place.
I I
22. Mr Lo informed the court that there was no injury to any
J J
police officer or other person and that apart from the damage to Yeung Uk
K K
Road as seen in the video footage there was no other specific property
L
damage. L
M Forensic examination M
N N
23. I have read the forensic examination report. In summary the
O forensic examiner found that direct eye exposure to the blue laser emitted O
from the Class 4 laser pointer at any point within 20 meters can cause
P P
ocular damage; viewing the diffused reflections may be hazardous and the
Q laser emitted often represents a fire hazard. Q
R 24. The forensic examiner found that direct eye exposure to the R
green laser emitted from the Class 3B laser pointer at any point within 40
S S
meters can cause ocular damage, including from accidental short time
T exposure. As the laser emitted was not very focused it was unlikely to T
produce any skin injuries or pose any risk of igniting flammable materials.
U U
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A A
B B
Mitigation
C C
25. In passing sentence, I have carefully considered the oral and
D written submissions of Mr Tang, including that the defendant, aged 21, D
lives with his parents and younger brother, is working part-time in King
E E
2
Yo Drink Shop while his studies at IVE have been suspended . I take into
F account the defendant has no previous convictions. F
G G
26. I have read the defendant’s mitigation letter in which he
H describes why he participated in the march on 25 August 2019; that he has H
been unable to finish his studies and will not be able to fulfil his dream of
I I
becoming an ambulance man.
J J
27. I have also read the letters written by the defendant’s parents;
K K
Mr Ho, his lecturer at IVE; friends and colleagues. All speak highly of the
L
defendant. This is also borne out by the certificate from the defendant’s L
school stating that the defendant left school having been honoured as an
M M
excellent disciplinary student leader. The defendant’s father, Mr Ho and
N the defendant’s school friends have attended court to lend their support to N
the defendant.
O O
28. In oral submission Mr Tang asks the court to take into account
P P
that at the first opportunity the defendant confessed to his involvement in
Q the riot in Tsuen Wan thereby saving a lot of police time to investigate and Q
that without the confession the defendant may not have been charged.
R R
S S
T T
2
See §§5 & 6 of the written mitigating submissions
U U
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A A
B B
Discussion
C C
29. As is now a matter of public record, between June and October
D 2019, Hong Kong experienced an exceptional and sustained outbreak of D
violent public lawlessness3. Public disorder took place in various parts of
E E
Hong Kong in which violence escalated and included acts of repeatedly
F blocking roads and attacking police officers with weapons including high- F
powered laser pointers, bricks and throwing petrol bombs4.
G G
H 30. The riot in Yeung Uk Road is one instance of that violent H
public lawlessness.
I I
31. In Secretary for Justice v Wong Chi Fung, the Court of Final
J J
Appeal held that the Court of Appeal were justified in holding that in
K K
sentencing cases of disrupting public order, especially those which involve
L
violence, the court must bear in mind the importance of preserving public L
order and pass sentence that is not only appropriate to the punishment of
M M
the offenders but also takes into account the factor of deterrence5.
N N
32. In HKSAR v Leung Tin Kei & others, a case arising from the
O 2016 Mongkok riots, the Court of Appeal emphasised that the court would O
impose punitive and sufficiently deterrent sentences on people who
P P
6
commit riot .
Q Q
R R
S 3 S
See Kwok Wing Hang & others v Chief Executive in Council FACV 6/2020 at §1.
4
See Kwok Wing Hang & others v Chief Executive in Council FACV 6/2020 at §89.
T 5
T
Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at §119.
6
[2020] 4 HKLRD 462 at §§73-75.
U U
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A A
B B
33. In Secretary for Justice v CMT the Court of Appeal again
C stressed the need for continuous and vigorous application of deterrent C
sentences for offences of unlawful assembly and riot as essential to uphold
D D
the public interest in maintaining peace and safety in Hong Kong7.
E E
34. The court in HKSAR v Leung Tin Kei adopting the factors
F relevant in sentencing for unlawful assembly as endorsed by the Court of F
Final Appeal in Secretary for Justice v Wong Chi Fung8 said that generally
G G
speaking, the factors to be taken into account when passing sentence on the
H offence of riot include9: H
I I
(1) whether the riot was spontaneous or
J premediated; if it was the latter, how detailed and J
precise the plan was;
K K
L
(2) the number of people engaged in the riot; L
M (3) the degree of violence used by the rioters, M
including whether weapons were used and, if so, what
N N
kind and quantity of weapons;
O O
(4) the scale of the riot, including the time, location,
P P
the number of places and the area in which the riot
Q took place; Q
R R
S S
7
[2021] 1 HKLRD 1 at §§41-42.
T 8
T
Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at §121.
9
HKSAR v Leung Tin Kei & others [2020] 4 HKLRD 462 at §79.
U U
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A A
B B
(5) the duration of the riot, including whether the
C riot was prolonged; and whether it still went on despite C
repeated warnings by the police or public officers;
D D
(6) the harm caused by the riot: for example,
E E
whether there was any loss or damage to properties
F and, if so, to what extent; whether anyone was injured F
and, if so, the number of injured persons and the degree
G G
of injury;
H H
(7) the imminence and gravity of threat that was
I I
caused by the riot;
J J
(8) the nature and extent of nuisance caused to the
K K
public by the riot;
L L
(9) the impact caused by the riot on the relationship
M among community groups; M
N N
(10) burden caused to public expenditure by the riot;
O O
(11) the offender’s role and degree of participation;
P for instance, apart from taking part in the riot, whether P
he had arranged, led, summoned, incited or advocated
Q Q
others to take part in the riot; and
R R
(12) whether the offender committed any other
S S
crimes during the course of the riot.
T T
U U
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A A
B B
35. The courts have emphasised that since the background and
C facts involved in each case of riot are different, each case has to be C
considered separately, so the sentencing in other cases do not provide much
D D
guidance; the court in sentencing should apply appropriate principles and
E pay regard to the actual circumstances of individual cases, and then impose E
the proper sentence10.
F F
36. The age of an offender is always a relevant mitigating factor
G G
11
in sentencing . The defendant is now 21, 19 nearly 20 at the time of the
H offence. The defendant having turned 21 section 109A of the Criminal H
Procedure Ordinance, which provides no court shall sentence a person of
I I
or over 16 and under 21 years of age to imprisonment unless the court is of
J J
the opinion that no other method of dealing with such person is appropriate,
K
does not apply12. A court must nevertheless exercise great care before K
committing a young offender to prison.
L L
37. In Secretary for Justice v Leung Hiu Yeung the Court of Final
M M
Appeal considered the approach to be taken where a defendant crosses a
N relevant threshold between the dates of offending, conviction and N
sentence13. The court said that if a young offender has turned 21 between
O O
the date of offending and the date of sentence, the fact of his youth will be
P a powerful factor in determining the appropriate sentence for him and that P
Q Q
R R
10
See HKSAR v Leung Tin Kei & others [2020] 4 HKLRD 462 at §80. Also see HKSAR v Lo Kin
S S
Man CACC 164/2018 at §§12 & 13 (application for leave to appeal to the Court of Final Appeal)
11
See Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at §84.
T 12
T
See Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421 at §59.
13
See Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421 at §§74-76.
U U
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A A
B B
the sentence he should receive will, in most cases, be the same as if section
C 109A had applied to him14. C
D 38. The court went on to say that there will, of course be D
exceptions but in practical terms a young offender who has turned 21 by
E E
the time of sentencing should only be sent to prison as a matter of last resort
F and, for that purpose, the sentencing court will have to be alive to the F
possibility it may need to obtain reports15.
G G
H 39. Today Mr Tang, relying on the decision in Secretary for H
Justice v Leung Hiu Yeung, asks the court to call for a report as to the
I I
defendant’s suitability for Detention Centre16. A young offender who is
J over 14 and under 25 is eligible for detention in a Detention Centre. J
K K
40. The Court of Final Appeal in saying there will of course be
L
exceptions referred to their earlier decision in Secretary for Justice v Wong L
17
Chi Fung that in an appropriate case section 109A may be dispensed with .
M M
41. In Secretary for Justice v Wong Chi Fung the Court of Final
N N
Appeal reaffirmed the position that where the facts warrant the sentencing
O court to take the view that the serious nature of an offence so clearly O
overrides any considerations personal to the offender the court can
P P
Q 14 Q
See Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421 at §76.
15
See Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421 at §76.
R 16
R
Also see the supplemental mitigating submissions of Mr Tang submitted in court today.
In his written mitigating submissions filed in court for hearing on 22 March 2021 and when
S mitigating in court on 22 March 2021 Mr Tang did not ask the court to consider the defendant’s S
suitability for Detention Centre. After the court adjourned for sentence Mr Tang wrote to the
T court saying that he had been instructed by the defendant to invite the court to call for a Detention T
Centre Report. I directed that all submissions were to be made in open court.
17
See Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421 at §76.
U U
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A A
B B
determine, without resort to obtaining information pursuant to section
C 109A, that the only appropriate sentence is one of imprisonment 18. C
D 42. In Secretary for Justice v SWS the Court of Appeal said that D
in balancing various sentencing factors the court would give young
E E
offenders a chance to rehabilitate as far as practicable however where as a
F matter of public interest, the seriousness of the offence and the F
circumstances of the case call for a heavy or deterrent sentence, the
G G
offender’s young age and personal background would count very little or
H even pale into insignificance because the need for a punitive or deterrent H
sentence far outweighs the rehabilitative need of the offender19.
I I
J 43. After careful consideration I am satisfied the only appropriate J
sentence is one of imprisonment. I decline to call for a report as to the
K K
defendant’s suitability for Detention Centre. Further, in my view a
L sentence of detention in a Detention Centre would not reflect the gravity of L
the offence.
M M
N 44. Mr Tang asks the court to take into account the defendant only N
used a laser pen and did not engage in any other violent conduct; that he
O O
was not the leader nor the initiator and was influenced by the “sheep-flock”
P effect and foolishly followed others20. P
Q 45. In HKSAR v Tang Ho Yin, a case also arising from the 2016 Q
Mongkok riots, the Court of Appeal derived three important principles
R R
from a review of authorities from the English Court of Appeal.
S S
18
See Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at §90.
T 19
T
Secretary for Justice v SWS [2020] HKCA 788 at §48.
20
See §16 of the written mitigating submissions.
U U
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A A
B B
46. Firstly, the gravity of the offence of riot is not to be judged
C merely by what the individual did (or did not do), but by what the group to C
whose number he lent his support did; secondly, the offence may be
D D
aggravated by the commission of other crimes during the course of the riot;
E and thirdly, those who resort to the company and association of others in E
order to inflict widespread violence and destruction must be strongly
F F
deterred21.
G G
47. Mr Tang submits that after the march finished the defendant
H acted out of impulse on seeing the police have confrontation with other H
protestors. The defendant’s parents also believe the defendant acted on the
I I
22
spur of the moment .
J J
48. In the defendant’s mitigation letter reference is made to the
K K
police issuing a letter of no objection to the parade. In court Mr Lo
L confirmed that the police had issued a letter of no objection to the parade; L
at the end stage of the parade in Tsuen Wan the people began to leave;
M M
Yeung Uk Road was beyond the end of the parade and that at the time of
N the riot the lawful march had finished. N
O O
49. In HKSAR v Chow Nok Hang, Riberio PJ stated that “Once a
P demonstrator becomes involved in violence or the threat of violence …. P
that demonstrator crosses the line separating constitutionally protected
Q Q
peaceful demonstration from unlawful activity which is subject to legal
R sanctions and constraints”23. R
S S
21
[2019] 3 HKLRD 502 at §24.
T 22
T
See §§4, 16 & 17 of the written mitigating submissions and the letter written by the parents.
23
(2013) 16 HKCFAR 837 at §39.
U U
V V
- 14 -
A A
B B
50. Similarly, in Secretary for Justice v Wong Chi Fung the Court
C of Final appeal stated that, “In such a case involving violence, a deterrent C
sentence may be called for and will not be objectionable on the ground that
D D
it creates a “chilling effect” on the exercise of a constitutional right, since
E there is no right to be violent. Quite simply the line of acceptability has E
been crossed”24.
F F
51. Notwithstanding the defendant’s young age at the time, 19
G G
nearly 20, I do not accept the defendant acted on impulse once the march
H had ended. Nor do I accept what the defendant says in his letter that all he H
wanted to do was escape from the scene immediately but was unable to do
I I
so.
J J
52. The defendant left home taking with him arm guards, knee
K K
pads, leg guards, a helmet, a respirator, masks, gloves, goggles and a
L change of clothes together with two devices capable of emitting laser L
beams which he had bought the day before to emulate other protestors and
M M
provoke the police, knowing that shooting laser beams at the eyes would
N be hazardous and could cause ocular damage or even blind a police officer. N
O O
53. In addition, the defendant did not go home. After taking part
P in the riot the defendant entered the Tai Wo Hau MTR station at 7:54 p.m. P
and instead of going home went to Sham Shui Po, the scene of other
Q Q
unlawful assemblies that night, arriving at 8:14 p.m. The defendant was
R R
S S
T T
24
(2018) 21 HKCFAR 35 at §69.
U U
V V
- 15 -
A A
B B
arrested nearly two hours later amongst the fleeing crowd on Yen Chow
C Street when the police were dispersing the unlawful assemblies 25. C
D 54. The scale of the riot can be seen by watching the video footage, D
not just the highlight video, in particular i-CABLE News for the period
E E
17:24-18:14 which shows the riot from different angles. Both sides of the
F carriageway were blocked. The riot lasted for about an hour. F
Notwithstanding many warnings had been given by the police and tear gas
G G
used, the rioters continued to shoot green and blue laser beams at the police
H and throw bricks and petrol bombs. H
I I
55. Throwing of petrol bombs poses obvious and potentially
J lethal danger to the police, protestors and other persons who happen to be J
at or near the scene. This is perhaps best seen at the end of police video 5,
K K
time duration between 11:54 and 12:12, when a petrol bomb was thrown
L and landed next to reporters who were filming the police. Fortunately, L
nobody, including police officers, was injured.
M M
N 56. The throwing of petrol bombs, albeit not by the defendant, N
adds to the scale of violence used in the riot. By associating himself with
O O
the rioters who were throwing bricks and petrol bombs the defendant was
P clearly lending support and encouragement to others in the group to P
violently attack the police.
Q Q
57. Taking into account all the circumstances of the riot as shown
R R
in the video footage and that the defendant is a first offender who was 19
S S
T 25
By agreement the charge of taking part in an unlawful assembly (charge 2) and possession of T
offensive weapon in a public place (charge 3) are left on the court file not to be proceeded with
without leave of the court or the Court of Appeal.
U U
V V
- 16 -
A A
B B
nearly 20 at the time and confessed to taking part in the riot at the earliest
C opportunity, I am satisfied a starting point of 6 years’ imprisonment is C
appropriate.
D D
58. Giving the defendant full credit for his plea of guilty he is
E E
convicted and sentenced to 4 years’ imprisonment.
F F
G G
H H
(D. J. DUFTON)
District Judge
I I
J 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