DCCC536/2020

DCCC536/2020

A A B B DCCC 536/2020 C [2021] HKDC 398 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO 536 OF 2020 F F G ----------------------------- G HKSAR H H v I LAI CHEE YING (D1) I LEE CHEUK YAN (D2) J J NG NGOI YEE MARGARET (D3) K LEUNG KWOK HUNG (D4) K HO SAU LAN CYD (D5) L L HO CHUN YAN (D6) M LEE CHU MING MARTIN (D8) M ----------------------------- N N O Before: Her Honour Judge A J Woodcock in Court O Date: 1 April 2021 P P Present: Mr Benjamin Yu, S C leading Ms Priscilia T Y Lam, Counsel Q on Fiat, Mr William Liu, Senior Assistant Law Officer (Civil Q Law), Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr R R Edward Lau, Public Prosecutor, for HKSAR/Director of S Public Prosecutions S T T U U V V  -2- A A B B Ms Audrey Eu, S C and Mr Edwin W B Choy, S C leading C Mr Jeffrey C K Tam and Mr Ernie Tung instructed by C st Robertsons for the 1 defendant D D Mr Philip J Dykes, S C leading Mr Chris C L Ng, Mr E Christopher P H Kan and Mr Timothy R Wong instructed by E JCC Cheung & Co for the 2nd & 5th defendants F F Mr Ambrose Ho, S C leading Mr Isaac C K Chan instructed G by Ho Tse Wai & Partners for the 3rd defendant G Mr Hectar H Pun, S C leading Mr Anson Wong Yu Yat H H instructed by Kenneth Lam Solicitors, assigned by the I Director of Legal Aid, for the 4th defendant I Mr Lawrence Lok, S C leading Ms Po Wing Kay, Mr J J Geoffrey Yeung and Mr Simon Kwok instructed by Ho Tse K Wai & Partners for the 6th & 8th defendants K Offence: [1] Organizing an unauthorized assembly（組織一個未經批 L L 准集結） M M [2] Knowingly taking part in an unauthorized assembly（明 N 知而參與未經批准集結） N O O ----------------------------------------- P REASONS FOR VERDICT P ----------------------------------------- Q Q R 1. The defendants are all jointly charged with organising an R unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public S S Order Ordinance, Charge 1 and knowingly taking part in an unauthorised T T U U V V  -3- A A B B assembly, contrary to section 17A(3)(a) of the same Ordinance, Charge 2. C The 7th and 9th defendant pleaded guilty before trial. C D D 2. The particulars of Charge 1 are that all defendants on 18 E August 2019 organised a public procession which took place in E contravention of section 13 of the Public Order Ordinance, which was an F F unauthorised assembly by virtue of section 17A(2)(a) of the same G Ordinance. G H H 3. The particulars of Charge 2 are that all the defendants on 18 I August 2019 without lawful authority or reasonable excuse, knowingly I took part in a public procession which took place in contravention of J J section 13 of the Public Order Ordinance, which was an unauthorised K assembly by virtue of section 17A(2)(a) of the same Ordinance. K L L BACKGROUND M M 4. On 12 August 2019 the Civil Human Rights Front, hereinafter N N known as “CHRF” submitted a notification of intention to hold a public O meeting and procession, “the notification”, informing the police of the O intention to hold on 18 August 2019; P P Q (1) a public assembly in Victoria Park between 10am and 6pm; Q R R (2) a public procession starting from Victoria Park and ending S at Chater Road Central between 3pm and 7pm, and S T T U U V V  -4- A A B B (3) a 2nd public assembly at Chater Road itself between 5pm C and 11:59pm (Exh P2). C D D 5. There was a liaison meeting between CHRF and the police on E 14 August 2019. (transcript/translation P3 & P3A) After it and on the same E day the CHRF submitted an amended notification to the police specifying F F the proposed route of the public procession from Victoria Park to Chater G Road. (Exh P4) G H H 6. On 15 August 2019 the police issued a letter to CHRF, a letter I of no objection, a “LONO”, to say the police did not object to the holding I of the public assembly in Victoria Park on 18 August 2019. However, J J having regard to the interests of public order and public safety and for the K protection of the rights and freedoms of others, the police objected to both K the public procession from the Park to Chater Road and the 2nd public L L assembly to be held there upon arrival. (Exh P5 & 5A) M M 7. The CHRF appealed against the police decision and after an N N appeal hearing convened by the Appeal Board on 16 August 2019, the O Board upheld the police decision and dismissed the appeal lodged by O CHRF. P P Q 8. The CHRF held several press conference and interviews after Q that. On 17 August 2019 they said the police had not arranged for the R R dispersal of crowds from Victoria Park therefore, pro-democracy S legislators and influential people would be assisting the crowds to disperse S safely. They urged as many people to come to fill up Victoria Park the T T following day. U U V V  -5- A A B B C 9. On 18 August 2019 during the public assembly at Victoria C Park and at about 3pm, all bar one of the defendants carried a long banner D D out of Victoria Park Gate 17 and led a procession of people to Chater Road E Central. The 3rd defendant joined them in Causeway Bay and helped to E carry the banner. The timing and route taken followed the previously F F proposed route of the banned public procession. The procession finished at G Chater Road with the defendants laying the long banner down on the road G and it was declared that the public procession had ended. H H I THE ISSUES I J J 10. Did the defendants organise and knowingly participate in an K unauthorised public procession or were they only assisting the organisers K to disperse the crowds from Victoria Park in a safe and orderly manner? L L Were they leading the crowds away from immediate danger? Did they have M lawful authority or a reasonable excuse to take part in a public procession? M The defendants submitted they can avail themselves of the defence of N N necessity. O O 11. What is not in issue is the merits of the decision of the P P nd Commissioner of Police to ban the public procession and 2 public Q assembly. What is not in issue is the identity of all the defendants either Q carrying the banner or walking in front of the banner shouting slogans R R through a megaphone. What is not in issue is that the defendants led people S from Victoria Park to Central; essentially along the same route and at the S same time as proposed for the banned public procession. T T U U V V  -6- A A B B 12. There are constitutional challenges from all defendants on a C systemic level as well as an operational level. They will come into play if C I find the prosecution has proved a charge or the charges beyond reasonable D D doubt. E E 13. Simply put, the defence submits these offences should not F F carry a criminal sanction and/or the maximum sentence of 5 years that can G be imposed is too severe to be proportional and constitutional. The defence G submits that the sole legitimate aim for imposing criminal sanctions is to H H ensure the compliance with the notification system and therefore the I restrictions arising from section 17A (3) are not rationally connected with I or are disproportionate to the legitimate aim if it were to be subject to a 4- J J step proportionality test. K K 14. On an operational level, the defendants, taking into account L L the police action or inaction on 18 August 2019, should not have been M arrested 8 months later nor prosecuted nor subject to a conviction for what M turned out to be a peaceful assembly. N N O THE PROSECUTION’S CASE O P P 15. It is the prosecution’s case that the defendants deliberately Q Q flouted the law and knowingly ignored the ban by the police by organising R and also taking part in an unauthorized public procession that started from R Victoria Park and ended at Chater Road that day. The defendants formed S S the head of a public procession by carrying a long banner leading thousands T of participants who were told to follow them to leave Victoria Park at about T 3:09pm. The proposed banned public procession by CHRF was originally U U V V  -7- A A B B earmarked to start at 3pm. The banner group arrived at Chater Road at C about 4:38pm. C D D 16. The prosecution say the defendants had knowledge that the E public procession had been objected to by the Commissioner of Police and E the CHRF’s appeal against that decision had been dismissed. They F F nevertheless assisted CHRF by organising one in defiance. They did it in G the name of a dispersal plan. G H H 17. It was a disingenuous excuse to flout the law by describing I their actions as a dispersal plan to lead crowds out of the park and to MTR I stations safely and in an orderly manner. In short, the defendants knew that J J the public procession they organised and took part in was an unauthorised K public procession. K L L 18. The prosecution says that this procession consisted of more M than 30 people and with the words “stop the police and gangsters from M plunging Hong Kong into chaos, implement the 5 demands” printed on the N N banner with the caricature of a female with a wounded bloody eye O promoted the common purpose required to constitute a public procession. O Those words coincided with the purpose of the public assembly that was P P allowed at Victoria Park; to protest against the abuse of their powers by the Q Q police. R R 19. There is much video footage of the public assembly in S S Victoria Park and the procession leaving from Gate 17 in Victoria Park to T Chater Road. There is much video footage of the banner party comprising T of all the defendants walking at the head of that procession to Chater Road. U U V V  -8- A A B B This includes what they did, who said what, which route they took and how C it ended. There is video footage of many press conferences and statements C made by the CHRF and some defendants as well as the Police. The CHRF D D spoke to the press after their appeal was dismissed on 16 August, again E from Victoria Park on 17 August and at the public meeting on the day. E There are transcripts and translations of the liaison meeting and some press F F conferences. None of this evidence was challenged. G G 20. In the admitted facts, P1, all parties agreed that between 10 H H June and 11 August 2019, violence erupted during some protest events I including confrontation between civilians and police officers. The I chronology of events from the submission of the notification, P2 to the J J banner party leaving Victoria Park and arriving in Central was in the main K agreed. Those included press conferences, interviews and various video K footage of 18 August. L L M 21. In the LONO there are the details of the event allowed and all M the terms and conditions imposed by the police. Of particular significance N N to this trial are the conditions that CHRF had 200 marshalls to facilitate the O event and that the organisers adhered to any instructions given to them by O the police on the day. In a second letter to CHRF after the appeal hearing, P P P23 & P23A, the police stressed these conditions. Q Q THE DEFENCE CASE R R S 22. The CHRF were angry; publicly and vocally disappointed S their public procession to Central and the 2nd public meeting was banned. T T They stressed to the police that the public procession was necessary to U U V V  -9- A A B B ensure there was no danger of overcrowding in Victoria Park. They C estimated 300,000 people would attend the public meeting, more than C Victoria Park can accommodate. D D E 23. After the police ban, it was said publicly before and on 18 E August 2019 that the police did not have a dispersal plan for crowd F F management control and the safety of participants. It was publicly declared G during the press conference of 17 August that CHRF had invited influential G people and ex-democratic legislators to assist CHRF to lead participants to H H various MTR stations to disperse the crowds safely and in an orderly I manner. The participants were urged to participate in a peaceful and non- I violent manner on the day. J J K 24. The defence say that the defendants only assisted CHRF that K day in a dispersal plan described as water flow measures. They had not L L intentionally organised or knowingly participated in an unauthorised M assembly. CHRF had to implement their own dispersal plan because the M police deliberately did not implement any crowd management control plan. N N It was done out of reasonable excuse and necessity. The police tacitly O consented to the plan that CHRF would arrange the dispersal of the crowds; O therefore, the defendants had lawful authority to lead the crowds out to P P Central. The police left that to CHRF. Q Q THE PROSEUCTION’S EVIDENCE R R S Prosecution Witnesses S T T U U V V  - 10 - A A B B 25. I have considered the oral evidence of the prosecution C witnesses and exhibits referred to and produced. The evidence of the C witnesses was not challenged in that there were discrepancies in their own D D evidence or amongst them that suggest unreliability. It is more a case of E what the police witnesses didn’t say suggests the defence case was credible. E It is more a case of what they didn’t say that is incredulous and F F unbelievable. G G 26. An enormous number of issues were covered by witnesses H H during the course of this trial. It is simply not practical in the course of I these reasons for verdict for me to attempt to cover every aspect of events I covered by every witness; to identify individually and discuss every J J argument or submission made by counsel for the prosecution and the K defence. The defendants in the main adopted each other’s final K submissions. That I do not mention a particular piece of evidence, L L transcript, video recording or submission does not mean that I have not M considered it or factored it into my decision making. M N N 27. I will highlight the salient points of the evidence of the O prosecution witnesses. None of these witnesses dealt directly with any of O the defendants in relation to this case, these charges, the permitted public P P nd meeting and the decision to ban the proposed procession and 2 meeting. Q No organiser of the public meeting is amongst the defendants. Q R R 28. PW1, Superintendent Simon Cheung Wing Kan was the S Commander of North Point Division at the time. Victoria Park was within S the boundaries of North Point and their responsibility. When he received T T the notification from CHRF he delegated the responsibility of compiling a U U V V  - 11 - A A B B public event action checklist to PW2, Senior Inspector Tang Chun Ho. The C purpose of the checklist was to identify any foreseeable hazards and assess C risk. PW1 classified the proposed public meeting as a significant public D D event. PW2 was also appointed as an assessor to complete a public event E risk assessment form, as well as risk control measures. These 3 documents E were reviewed by PW1. F F G 29. All 3 documents were annexed to an operational order number G 14/2019 issued by PW1 on 16 August 2019, P49. By the time he issued H H this he knew the decision of the Commissioner of police and the result of I the appeal board. The purpose of P49, an internal document, was to notify I all participating colleagues of the details in this action. J J K 30. Paragraph 11 of P49 deals with Police Community Relations K Officers who would on the day liaise with and contact the organisers, L L CHRF, in particular the person in charge. PW6 and PW7 give evidence of M their liaison duties and contact with the person in charge, Figo Chan on the M day in Victoria Park. N N O 31. As the only authorised event was in Victoria Park which was O in North Point Division, PW1 was the immediate commander of the event P P of the day (para 22 of P49). Q Q 32. Under cross examination, it was put to him that the police R R deliberately did not implement crowd management controls nor control S traffic on the day. It was part of their responsibility which they deliberately S neglected or ignored. He disagreed. T T U U V V  - 12 - A A B B 33. PW1 did agree the duties of CHRF marshals in leading or C directing crowds away from the venue was part of the police solution to C the possible overcrowding hazard. He expected the crowds to act in D D accordance with their directions. This part of his evidence was quoted in E MFI-5, the 1st defendant’s final submissions at page 30. E F F 34. PW2, Senior Inspector Tang Chun Ho gave evidence of the G hazards he identified and risk assessment he made. He was attached to the G event management office of North Point Division. He identified 6 hazards, H H gave them risk ratings and set out risk control measures for review. I I 35. Normally for big public events in the park, participants enter J J from the East and West side where Causeway Bay MTR and Tin Hau MTR K were located. In his experience in organising similar events in Victoria K Park, he would request organisers first fill up all the 6 football pitches with L L participants and if more space was then required, the participants were to M be directed by the organisers to the Central lawn which would have been M cleared in advance. If there was still not enough room in Victoria Park, then N N the field commander of the day would consider the necessity of O implementing the tactics of the tidal flow method to deal with the ingress O and egress of participants. P P Q 36. To implement the tactics of the tidal flow method used by the Q police, the Tin Hau Public Transport Interchange and Hing Fat Road Car R R Park at the east side of Victoria Park would be closed in advance to create S a queueing zone for people to safely enter Victoria Park from the East. In S his experience, the North side, South side and higher hill part of the park T T U U V V  - 13 - A A B B would be used for dispersal. If necessary, the police would ask the traffic C unit to facilitate dispersal. C D D 37. In cross examination he gave evidence that he did not know E of the details of the CHRF press conference held on 17 August. He denied E that the police knew organisers would use their own water flow measures F F to disperse the crowds themselves. He himself had not heard that the G organisers had asked ex-legislators to lead the crowd away from the park G to various MTR stations. It was suggested to him that the police H H deliberately did not supply the manpower to implement their tidal flow I method. He could not answer this as he had left the scene by 2:30pm. He I went back to North Point to deal with internal security works of that station. J J He agreed that the park was already becoming crowded between 1 and 2pm. K K 38. PW3 was Chief Inspector Sin Pui Man who was then the L L Senior Inspector of Operation Wing HKQ. She attended the liaison M meeting between the police and the organisers on 14 August chaired by M Chief Inspector Ku, PW8. She did not recall Figo Chan of CHRF N N specifically refer to water flow measures even though he mentioned it a O few times. She knew that in the past CHRF had asked crowds at public O meetings in Central to leave by MTR in groups so others could arrive. She P P had to report to her senior after the meeting, PW4 who went on to make Q the decision to only allow the public assembly in Victoria Park. PW3 was Q instructed to prepare the LONO, P5. R R S 39. She was mainly asked by PW4 if CHRF had any measures in S place to prevent violence erupting or stopping trouble makers in the crowds. T T U U V V  - 14 - A A B B PW4 confirmed in her evidence that that was her main concern because of C recent violent outbreaks after public events. C D D 40. PW3 also attended the Appeal Board hearing. She knew they E did not judicial review the decisions because she was not informed as such. E She agreed in cross examination that the police have said that CHRF have F F adopted a peaceful, rational and nonviolent approach to their events in the G past and that they have cooperated well with the police. G H H 41. Her evidence was that on the day, she was at Command Office I of Hong Kong Island, HICOM and not at Victoria Park. She said in cross- I examination she had no recollection of the CHRF press conferences and J J had not heard of the plan to ask legislators to lead the crowd out of Victoria K Park to disperse. K L L 42. She was shown video footage but did not agree that Victoria M Park was packed with people by 3pm. She said there was still room in other M places within the Park. It was normal practice for public events at Victoria N N Park to use the main lawn and other areas if the football pitches filled up. O O She did agree that people were still streaming in at that time. P P 43. PW4, Superintendent Chow Wing Yee was in August 2019 Q Q the Acting Senior Superintendent OPS HKI region. It was her decision to R allow the application for a public meeting at Victoria Park and ban the R public procession and 2nd public meeting proposed. On the day, it was her S S duty to monitor the holding of this public meeting as well as monitor the T whole of Hong Kong Island region to see if anything would happen that T day. U U V V  - 15 - A A B B C 44. She spent the day at HICOM monitoring the day through C telephones, beat radios as well as live feed on televisions and the Internet. D D She was aware that 3 platoons had been deployed outside Victoria Park led E by Chief Inspector Chan Lai Man, PW5. She was also aware that he had E withdrawn all 3 platoons in the afternoon; he called her to tell her of his F F decision and she did not object. According to the operation order he was G meant to redeploy his 3 platoons at the commencement of the public G meeting to safeguard police buildings. H H I 45. It was her decision to not deploy police officers in the vicinity I of Victoria Park and subsequently along the route of the unauthorised J J public procession led by the defendants at around 3pm. She knew there K were 3 Police Community Relations Officers, PCRO officers, inside K Victoria Park liaising with the organisers, PW6 and 2 others outside the L L park, PW7. M M 46. She gave a full reason as to why she had decided not to deploy N N police officers having based this decision on risk assessment and to ensure O public safety, public order and to protect the rights and freedoms of others. O The atmosphere in society was bad, especially between the police and P P certain sections of the public because of the many violent incidents that Q took place between June and August 2019. Q R R 47. She decided that if the police gave warnings to the organisers S and participants for this unauthorised public procession or took S enforcement actions there would be a real chance of radical protesters T T within the crowds taking advantage of the police presence to behave U U V V  - 16 - A A B B disruptively and violently. Other than conflict between police and some C members of the public there was also a risk of conflicts between members C of the public with opposing views. She did not want visible police presence D D or any enforcement action to trigger or provoke the emotions of the crowd. E To avoid conflict, she decided not to deploy any police officers visible to E the participants. F F G G 48. In short, she considered the circumstances and found it did not H permit warnings to be given to the defendants on the day without inciting H violence and conflict. After all, the procession and public meeting was I I against the police for their abuse of power. Giving a warning was not her J prime consideration. Her duty was to make sure all members of the public J were safe including the participants, public not protesting and all her police K K officers. In any event, there were no police officers on route to give L warnings. L M M 49. That did not mean however, there were no police officers on N N hand if any incidents occurred, she had deployed police officers nearby at O the Central tunnel in Causeway Bay, Southorn playground in Wanchai, O North Point station and other stations. All close enough to ensure public P P order and public safety as well as respond quickly if necessary but out of Q sight and mind to minimise the risk of confrontation. It was not the case Q that the police did not plan any preparation for issues arising but that the R R police were deliberately deployed out of sight. S S 50. In cross examination she said one of the reasons she refused T T the public procession to and the public meeting in Central was that the U U V V  - 17 - A A B B organisers could not suggest any effective means to prevent violence and C maintain public order and safety. Any public procession then would have C been classified as a high-risk activity because of the violence that had D D broken out in Hong Kong in recent months. E E 51. She was cross-examined at length about the manpower inside F F Victoria Park. That responsibility belonged to the Command of North Point G Division but she did explain that the tidal flow tactic had been used by the G police for many years successfully and it would be implemented if H H necessary. She agreed the police had a duty to take measures to ensure the I safety of the public but the police also heavily relied on the organiser and I the marshals, in this case over 200 marshals were required, to carry out the J J duty of asking people to leave and disperse so that others who were waiting K in queueing zones could come in if that circumstance arose. K L L 52. PW4 explained that the police always required the help of M marshals to facilitate the conduct of a public meeting. Crowds would often M respond more positively to marshals than the police. She reiterated that N N under normal circumstances the police are there to try their best to facilitate O but as with all decisions made by the police, it will depend on risk O assessment of the day in question. P P Q Q 53. Normally police would assist in crowd management but on R that day it was also up to the Command of North Point Division to manage R it. She herself saw no problem that day which required rectification such S S as more manpower for crowd control management; no report was made by T the organisers for assistance nor was any report made to the police. T U U V V  - 18 - A A B B 54. She did not agree in cross examination that the hazard of C overcrowding in Victoria Park had materialised by 2pm. She said there C were a lot of people there and that Chief Inspector Raymond Chan had told D D her that the sentiment of the crowd was running high and emotions against E the police were very negative. She said Victoria Park was not full by the E time the defendants had organised an unauthorised public assembly and F F left the park. G G 55. In cross examination she said she had not heard CHRF H H mention a water flow meeting in press conferences nor had she heard that I legislators would assist people to disperse from the park. She watched the I public procession proceed from Victoria Park to Central and saw that no J J violence erupted; no violence erupted anywhere in Hong Kong Island K which she took as a sign her risk assessment was correct. It was the right K decision not to take any enforcement action aided by an element of luck. L L M 56. It was put to her that the defendants leading people out of M Victoria Park were part of the measures implemented by CHRF to help N N disperse crowds. The police trusted CHRF to take up the task of dispersal. O She disagreed because she knew that PW6, the PCRO liaising with the O officers gave CHRF specific instructions about dispersal of the crowds P P which were deliberately ignored. She did not agree the dispersal was Q orderly because of what CHRF called water flow measures implemented. Q She said the lack of violence was not due to this but because their decision R R not to deploy visible police officers at all was the correct decision. S S 57. She reiterated that the police had banned the proposed public T T procession. The crowds at the authorised public meeting could just enter U U V V  - 19 - A A B B and leave without problem. This meant that CHRF did not need to take up C any task of dispersing the crowd; dispersal was not an issue at 3pm when C the defendants left with a long banner. D D E 58. PW5 Chief Inspector Chan Lai Man was in August 2019 the E Assistant Divisional Commander Ops. North Point Division. He led 3 F F platoons to Victoria Park on 18 August. All were in uniform. Each platoon G consisted of about 30 officers. 2 platoons were stationed at the East G entrance of Victoria Park near Tin Hau MTR whereas the 3rd platoon was H H stationed at the West entrance closest to Causeway Bay MTR. It was in I these 2 directions that participants normally entered Victoria Park for I public events. J J K 59. To facilitate those entering from the East, the police closed off K and reserved the Hing Fat Carpark and the Public Transport Interchange. L L These would be used for queueing zones if required. When they arrived at M around 11am the officers of the platoons were on duty to assist people to M enter the park from both the East and West. N N O 60. As the number of people arriving increased, his officers were O subject to a barrage of verbal abuse, foul language and insults. In the P P morning briefing they had been told to take a tolerant attitude to the crowds Q and exercise restraint. At about 1pm when even more people arrived to Q enter the park the abuse escalated in their direction. The platoon at the West R R entrance was subjected to similar abusive behaviour. S S 61. By about 2pm the abuse was intolerable in that it was a T T constant stream. His view was that the situation was only going to get U U V V  - 20 - A A B B worse and the crowds greatly outnumbered his officers. He made a decision C to tell his officers to leave traffic duty and move away from the crowd. He C recalled the other platoon from the Causeway Bay entrance as well. He had D D assessed the situation and found the emotion of the crowd hostile and in E order to avoid any conflict or violence that would endanger public safety E and order he had decided to withdraw all 3 platoons from work and return F F to police stations. He informed HICOM of his decision and it was G acknowledged. G H H 62. He agrees that paragraph 20 of the Operational Order P49 had I made provisions for the 3 platoons to be redeployed at the commencement I of the meeting. However, he said he had made a decision to leave before J J he was given instructions to act on that deployment. K K 63. It was suggested to him in cross examination that his L L recollection of the severity of the abuse was mistaken because he must have M been abused so much more later in the year. It was put to him that he did M not leave with the 3 platoons because of incessant abuse and insults. He N N disagreed and said he had a deep impression of it because he was personally O abused that day by the crowd. He had never been in that position nor had O ever had to retreat for this reason. P P Q 64. There was no defence evidence that he and the platoons were Q not subject to such abuse leading to his decision to withdraw to avoid any R R conflict as suggested. S S 65. He said they left at 2:30pm and he could see that the Public T T Transport Interchange was not full nor used for queueing to get in yet. He U U V V  - 21 - A A B B did not see any choke points at Gate 7 and 14 by the time he left which C were normally used for ingress. The crowd was moving in from the east C slowly but steadily; there were no crowd issues before he left. They had D D actually implemented tidal wave measures at Gate 7 and 14 for the crowds E arriving but abandoned them when the abuse escalated. E F F 66. He said these measures at these Gates were commonly G implemented for crowd control, for example at the 4 June vigil that year G but the atmosphere was very different and the police were not the target of H H abuse and insults. I I 67. PW6 was Senior Inspector Cheung Ka Man, and on 18 August J J 2019 the Assistant Police Community Relations Officer, APCRO of K Eastern District. She had attended the liaison meeting with the organisers K on 14 August. Her superior was PW7, Chief Inspector Wu Man Yee. She L L attended the briefing in the morning at North Point station and was M instructed to do the direct liaison work inside Victoria Park with the M organisers that day. She had 2 sergeants with her, mainly for her own N N protection. She arrived at Victoria Park with colleagues and her superior; O her superior was stationed outside Victoria Park during the event. She spent O the day under or near the raised stage and marquees close to the organisers. P P Q 68. According to the LONO, the person in charge from CHRF Q was Figo Chan. She first saw him at about 1pm with the 2nd defendant, Mr. R R Lee Cheuk Yan. She chatted with Figo Chan and reminded him that if there S were too many people for all the football pitches then he was to tell the S crowds to go to the main lawn and other places in Victoria Park. She also T T U U V V  - 22 - A A B B reminded him that the public procession had been banned. When she spoke C to him the 2nd defendant was still close by. C D D 69. By about 2:15pm PW6 saw most of the defendants arrive at E the marquees under the stage. She saw Ms Ng Ngoi Yee, D3 arrive first E and then Mr Leung Kwok Hung, D4, Mr Jimmy Lai Chee Ying, D1, Mr F F Martin Lee Chu-Ming, D8, Mr Leung Yiu Chung, D7 and Mr Ho Chun- G Yan, D6. She disagreed in cross examination that she was spying on them G as they arrived. H H I 70. It is not challenged and it is captured on video footage that I just after 3pm all the defendants except D3 left Victoria Park through Gate J J 17 carrying a long white banner and headed westward towards Causeway K Bay. D3 joined the banner party minutes later on Causeway Road and also K helped carry the banner. L L M 71. That afternoon, on 3 separate occasions PW6 gave Figo Chan M what she called “advice” but in reality, it was instructions or directions to N N CHRF. To describe, as suggested, what she told him as the liaison officer O to tell the crowd was only advice that can be ignored is senseless. It was O suggested to her that her advice was not mandatory. However, it is clear P P the content of her advice can leave no one in doubt she meant it as a Q Q direction. She said she used that description as that is the practice of the R police. R S S 72. At about 2:30pm, Figo Chan and other CHRF organisers T went up on the stage and started talking to the crowds. At about 3pm she T was told the football pitches were quite full so she went to talk to Figo U U V V  - 23 - A A B B Chan and give him advice for the 1st time. PW6 told him to tell the crowds C to go the Central Lawn if the pitches were full and if people were leaving, C to leave by heading to Tin Hau and Causeway Bay MTR stations. Her D D evidence was that these instructions were well known to CHRF from many E previous public meetings held in Victoria Park. E F F 73. Figo Chan heard her and understood but when he went back G up to the stage, he only told the crowds to go to the lawn if no space on G pitches. She had no recollection he told the crowd to use the 2 MTR H H Stations she specified to leave the park. I I 74. At about 3pm she saw D1 and D2 with some marshalls leave J J the marquees and head towards Gate 17 on the south side of the K Park with a long rolled up banner. She lost sight of them in the crowds. She K could not follow them as she had to remain near the stage and pay attention L L because by then the speeches were mainly about the abuse of powers by M the police. M N N 75. She heard Figo Chan shout at 3:07pm (transcript/translation O P46A & P46B) and tell the crowds that if they could not leave from O Causeway Bay, then they should leave from Wanchai. If they could not P P leave from Wanchai, then they should leave from Admiralty. If they could Q not leave from Admiralty, then they should leave from Central. He asked Q the crowd if that was okay and they all shouted loudly in agreement. PW6 R R then saw people face towards Gate 17 and start walking in that direction to S leave the park. S T T U U V V  - 24 - A A B B 76. PW6 then heard on her beat radio that the crowds were leaving C via Gate 17 and some were already on Causeway Road on the carriageways C obstructing traffic. She knew that the lawn was not yet full so she gave D D Figo Chan advice the 2nd time at 3:20pm. She told him to tell the crowds E that if people were leaving they were to leave by Tin Hau and Causeway E Bay MTR Stations and also not to walk on the carriageways but proceed to F F those MTR stations on pavements. She told him to relay the message on G the stage. Her recollection was that he only told people to fill the lawn and G did not repeat her other instructions. H H I 77. Since he did not follow her instructions, after about 20 I minutes PW6 asked him to come down off the stage again before giving J J him advice for the 3rd time. By then it was about 3:40pm. She repeated her K advice and gave him specific instructions on which walking routes to tell K the crowds to take to go to those 2 designated MTR stations. He even L L challenged her and said it was not feasible to use the 2 MTR stations so she M checked on her beat radio and was told it was feasible; they were open and M operating. She is sure he heard her but when he went back on stage, he did N N not relay her directions to the crowds. He did not convey her advice or O instructions to the crowds as he was required. O P P 78. By then she said it was obvious that the crowds she could see Q on football pitches Nos. 4 and 5 near her were queueing up to leave the Q park via Gate 17. The organisers on the stage were giving speeches and R R chanting slogans; the emotions of the crowd was running very high. S S 79. She heard on her beat radio that by then the crowds were all T T over the carriageways of Causeway Road and Hennessy Road. She also U U V V  - 25 - A A B B heard on her beat radio that the MTR had announced they would consider C trains skipping certain stations according to the prevailing situation but that C the MTR stations were not closed. D D E 80. Her evidence was that at no time did she receive any E complaint from the organisers that there was overcrowding in the venue F F and they needed any assistance from the police. She received no complaints G of any problems for participants entering or leaving the venue. There were G no police report made of any problems of overcrowding. There were no H H crowd management issues such as overcrowding that were brought to her I attention before crowds left from Gate 17. She knew that the lawn was not I yet full before that time. J J K 81. It was suggested to PW6 in cross examination that the police K were to blame as suggested by the organisers onstage. They said the police L L refused to close Causeway Road. They refused to tell the organisers their M dispersal plan. She agreed that that is what the organisers said onstage but M she did not correct Figo Chan as he made similar disparaging statements N N all day long. In fact, after 3:40pm she could not get him down off the stage O to talk to her. He just ignored her. O P P 82. PW6 did consider giving Figo Chan a warning as he was Q failing to follow police instructions but since there was a question of her Q own safety, she decided not to take any action. She also wanted to keep the R R relationship as harmonious as possible as the liaison officer. She did report S to her commanders that he had failed to follow police instructions. It was S suggested to her in cross examination that she might be wrong in her T T U U V V  - 26 - A A B B recollection that she gave him advice 3 times but she disagreed. She C disagreed her recollection of the timing of the 1st advice was wrong. C D D 83. She also disagreed in cross examination that it was potentially E dangerous to tell the crowds to leave by those 2 MTR stations. The stations E were operating, not closed and the lawn and Park were not yet full at that F F stage. G G 84. She disagreed in cross examination that the organisers were H H adamant that the public procession was for the purpose of orderly and safe I dispersal from Victoria Park when discussed at the liaison meeting. She I did recollect that the organisers had a lot of personal opinions and J J expressed them when it was suggested that there would only be a public K meeting at the park. A reading of the transcript does confirm that K recollection. L L M 85. She did not recall the term “water flow meeting” being used M in the liaison meeting although she had heard of that expression but not N N given its meaning much thought. She said she had not given the organisers O instructions to use the water flow method to leave Victoria Park nor was O she aware that they had earlier told the press that the police had advised P P them to use this method to leave. She said, in any event, the police don’t Q have or use a water flow manner method in their practices or operations. Q They implement tidal flow measures if necessary. R R S 86. PW7, Chief Inspector Wu Man Yee was PW6’s superior and S had instructed her to station herself by the stage and liaise directly with the T T U U V V  - 27 - A A B B organisers for the day. PW7 herself was outside Victoria Park to oversee C the communication that day. C D D 87. At 3:15pm she was on the flyover above Causeway Road E between the Central Library and Victoria Park. It gave her a better view of E the proceedings plus some shelter from rain. At that time, she saw the F F defendants carrying a long banner leaving Gate 17. They were at the head G of the procession with a group of reporters in front of them. She saw many G people following them as they headed westward. In her view, it was an H H unauthorised public assembly, a public procession. She did report what she I saw to the command post. I J J 88. She was also in the liaison meeting but had no recollection of K the words “water flow” but she did recall they were uttered during K discussions that did not touch upon the meeting inside Victoria Park. They L L were matters for other districts so she did not pay close attention. She did M not see the subsequent press conferences of the organisers but did hear M about them on the news; in summary they said that the meeting in Victoria N N Park would still proceed. O O 89. It was suggested to her that she could have warned the P P defendants or stopped the unauthorised procession. She said it was only Q herself and a sergeant on the bridge with no equipment, ammunition or Q protective clothing. In any event, it was for her seniors in the command R R post to decide if any action would be taken having assessed the situation. S S 90. PW8, Chief Inspector Ku was tendered for cross examination T T as the chair of the liaison meeting on 14 August. In cross examination he U U V V  - 28 - A A B B said Acting Senior Superintendent, PW4 had told him to discuss with the C organisers in the meeting only holding a public meeting and not a public C procession for the sake of safety and public order. D D E 91. He does recall the person in charge, Figo Chan informing him E that the public procession would end in Central and they intended to F F disperse the crowd in a water flow manner. He understood Figo Chan to G mean using the normal and previously implemented procedure by the G organisers, “the old ways”, to divide participants up into group when they H H arrived in Central at Chater Road to disperse to different MTR entrances I and certain pavements. I J J 92. PW8 was referred to the transcript of the liaison meeting as K he could not recall details of 18 months ago. He agreed that the transcript K reflected that the organisers objected to only a public meeting; several L L made long objections. He agrees that he did tell the organisers that he M would reflect their views to his senior. M N N 93. When he later met his senior, her most pressing concern and O question was whether the organisers would follow their previous O procedures and whether they had any plans to deal with any violence that P P erupted or trouble makers amongst the crowds. He does recollect PW3, Q Chief Inspector Sin, reporting to PW4 that the organisers had not suggested Q any concrete measures. He did not add anything because PW4 did not ask R R him nor gave him time to speak. He agrees he did not repeat all the S grievances of the organisers. S T T U U V V  - 29 - A A B B 94. On the day he was at HICOM and saw the defendants leaving C Victoria Park with the long banner from live broadcasts by news channels. C He was responsible for liaising between other districts, regions and D D formations. He was there to provide help or support if required. Essentially E if anyone needed help or reinforcement they would call him but on that day E there were no such requests; specifically, no calls for assistance with crowd F F management duties. Wanchai and Central Division had no contact with G him for any assistance that day. G H H 95. In cross examination he did not find the concerns expressed I by the organisers at the liaison meeting valid. He said there was a lower I risk to public safety and peace in society if there was only a public meeting J J in Victoria Park as opposed to a public procession through Hong Kong K Island. K L L 96. In his view a crowd of 300,000 was feasible if there was a M control of the flow of pedestrians and speed they travelled. Crowd control M measures could include implementing tidal wave measures. That is those N N moving in one direction would be divided into different batches to proceed O as a way of controlling the crowd. The organiser would normally make O announcements to the crowd to that effect and as directed. P P Q 97. PW9 and PW10 were not police officers. PW9, Mr Chan was Q a Station Manager from MTR Corporation and his statements were R R exhibited as P53 and P53A. He explained that all stations were open and S operating on 18 August but there were times when some trains skipped S stations depending on the pedestrian flow and the number of people on the T T platforms. U U V V  - 30 - A A B B C 98. If trains were coming in and people could not get off safely C because of crowds at that platform and lobby, then the train would skip that D D station and continue on to the next. In his annex he set out how many trains E went to each station and how many skipped stations between which hours E on 18 August 2019. He also explained which and why exits became one F F directional flow at certain times. He explained why some Gates changed G from entry to exit between certain hours. G H H 99. PW10, Mr Leung was from the Transport Department and his I statement at P52. He confirmed in cross examination that the official I transport department documents annexed to his statement was what he J J relied on to make his statement. He set out what roads were temporarily K closed and when as well as what public transport routes were affected on K 18 August 2019. L L M 100. The prosecution also relied on various news footage of police M interviews, of broadcasted police statements, of CHRF press conferences N N and interviews from 16 August to 18 August 2019 to prove the knowledge O of all defendants and to prove a plan to flout the law and ban. O P P Police Press Conference and Announcements Q Q 101. This evidence is important and therefore to be highlighted. It R R is important for what was said to the public over several days by CHRF S and some defendants before 18 August 2019. This equally applies to the S video and audio footage of the defendant’s actions on the day. T T U U V V  - 31 - A A B B 102. MFI-3 is a helpful chart of the videos relied on including their C exhibit numbers, date, source, reference to the 4 trial bundles, whether parts C were played in open court and any remarks such as location filmed. It also D D shows how many different news channels broadcast the same news. It sets E out what relevant news was widely disseminated to the people of Hong E Kong. F F G 103. Before the appeal board decision to uphold the police ban G Chief Superintendent Tse Ming Yeung, CSP Tse, held a press conference H H at 4pm on 16 August; video P7(1), transcript and translation P8 & P8A. In I it, he referred to the CHRF public meeting of 18 August and why the public I procession was banned by the police. He referred to how many public J J activities rapidly became violent events recently so they objected to some K rallies planned on Sunday (18 August) after risk assessment. Statistics were K given with details of how on 18 dates during or after demonstrations there L L was wide scale violence, even those organised by CHRF. M M 104. The ban of the public procession to Chater Road was referred N N to several times before the question and answer session and during it. It O was specifically said several times that if the Appeal Board supported the O police decision to ban it then anyone taking part will be accused of P P participating in an unauthorised assembly. Q Q 105. During that conference, instructions were given which R R Victoria Park Gates to use to enter the public meeting and to use the lawn S and other areas of the park if the football pitches were full. It was said roads S may be closed if necessary. T T U U V V  - 32 - A A B B 106. During the question and answer session, CIP Tse said the C police would coordinate with the organiser CHRF to carry out effective C crowd management by adopting tidal flow arrangements when crowded D D conditions arose. Questions were answered about crowd management E measures for that public meeting. Questions were answered about whether E crowds waiting to enter the park or leave in the facility who were stagnant F F would be accused of committing a crime. The police would make a G judgement whether that was actually the case or that people were G participating in an unauthorised assembly. It would all depend on the H H circumstances and the police would not be drawn into answering I hypothetical questions. I J J 107. Annex 1(A) of the Prosecution’s Amended Opening sets out K the wide circulation of the CIP Tse’s press conference on 16 August 2019; K 17 different media outlets circulated that conference. L L M 108. After the Appeal Board determination SP Liauw Ka-kei M addressed the press at 8:15pm on 16 August; Exh P25(1) broadcast from N N TMHK, transcript and translation P26 & P26A. He appealed to the O organisers to respect the decision made by the appeal board. The decision O to ban the public procession was based on public safety and public order P P considerations. Q Q CHRF Press Conference After Appeal Dismissed ( Exh P25(4)) R R S 109. Immediately after the Appeal Board decision to dismiss the S organisers appeal, CHRF held a press conference at the doorstep of the T T board; transcript and translation P27 & P27A. The person in charge from U U V V  - 33 - A A B B CHRF of the public meeting, Figo Chan spoke first and expressed their C deep disappointment and anger with the Appeal Board decision and what C they saw as a restriction on their fundamental rights. D D E 110. Sham Tsz-kit Jimmy of the CHRF also spoke and said if they E had a procession on 18 August which is peaceful, rational and nonviolent F F then Carrie Lam had to respond to their 5 demands. He urged people to G come and jam Victoria Park first and then it would be reasonable for the G jam to reach Wanchai. H H I 111. The 9th defendant, Au Nok-hin spoke at that same interview I urging more and more Hong Kong people to come out on the day because J J they lost the appeal. He said the police had to bear the consequences of not K allowing a public procession in view of the anticipated turnout. K L L 112. Annex 1(B) of the Prosecution’s Amended Opening sets out M the wide circulation of that CHRF press interview and the statement of SP M Liauw Ka-kei on 16 August 2019;10 different media outlets circulated that N N interview and statement. O O CHRF Press Conference - 17 August 2019 P P Q 113. On 17 August, Sham Tsz-kit, together with the 2nd, 4th and 9th Q defendants held a press interview to explain how the public meeting would R R proceed on 18 August. It was covered in P28 to P31, with the full interview S seen in P28 and transcribed and translated at P31 & P31A. S T T U U V V  - 34 - A A B B 114. Essentially, that press conference was to express their extreme C regret that only the public meeting in Victoria Park was approved. It was C said the police would not answer how participants would disperse. They D D saw it as a deliberate plan by the police or others to cause difficulties to E their public meeting. They appealed to everyone to jam pack Victoria Park E and to be peaceful, rational and nonviolent so as not to fall into this trap. F F G 115. CHRF would arrange for dispersal in an orderly manner by G way of a water flow meeting. The gist of the first two speakers from CHRF H H was that the public meeting would go ahead and if the park was jammed I full they had requested a group of pro-democracy legislators to be I responsible for leading out participants from Victoria Park in an orderly J J manner to get to MTR stations to leave. K K 116. The 2nd defendant appealed for participants to enter Victoria L L Park to stay for a short while and then leave by Causeway Road to M Admiralty and to Central. He said the police had created a problem for M CHRF and Hong Kong people so they will deal with it flexibly. He said N N that on the day they will have a way to deal with the police who were O playing tricks. Their way would be “lawful, peaceful and rational, the O entire act of protest, that is, everyone lines up to enter Victoria Park and P P lines up to leave Victoria Park”. Q Q 117. The 4th defendant said “the procession tomorrow” will be a R R st peaceful one and that this was the 1 CHRF application for a procession to S have been refused so he hoped people will come out and act like water, “be S water”. He expressed hope that pro-democracy legislators and influential T T people in Hong Kong society will come out and walk together with the U U V V  - 35 - A A B B people. He appealed to people to come out and walk with him. He said the C Hong Kong government were wrong to believe they could prevent Hong C Kong people from expressing their views and they would “definitely go D D hand-in-hand as one man and walk together until the end.” E E 118. The 9th defendant said that some pan-democrat leaders or F F legislators will “try to lead them (the participants) out of Victoria Park and G go to the designated area, especially MTR stations to leave our assembly.” G H H 119. Annex 1(C) of the Prosecution’s Amended Opening sets out I the wide circulation of this CHRF press interview on 17 August 2019; 8 I different media outlets circulated it. J J K CHRF Press Conference - 18 August 2019 K L L 120. On the day, CHRF held a press conference in Victoria Park M before the start of the public meeting at about 1:45pm; video P45, transcript M and translation P45A & P45B. Organisers told the press they could only N N organise a public meeting but not a public procession and that the purpose O of the meeting was to “stop the police and gangsters from plunging Hong O Kong into chaos and to implement the 5 demands”. P P Q 121. They voiced their concern the police would disperse Q participants if there were too many and violence may be used against those R R outside the park. They announced Legislators would lead the crowd to S leave Victoria Park to several MTR stations but it was not a march. It was S emphasised it was not a march but legislators leading the crowd peacefully T T from Victoria Park so more could enter. U U V V  - 36 - A A B B C Videos of the Procession from Victoria Park C D D 122. Exhibit P46 is a continuous news broadcast from NOW TV E from 1:40pm to just past midnight on 18 August. It covers Victoria Park E and the speeches made by the organisers on the stage to the banner F F procession to Chater Road and more. Parts of the day’s proceedings; the G commentary and speeches from the organisers from 1:41pm to 3:58pm G have been transcribed and exhibited at P46A & P46B. H H I 123. P40 is a continuous news broadcast from RTHK News from I 2:52pm to 4:52pm on 18 August. It too covers Victoria Park, organisers J J speeches and the banner procession to Chater Road. In MFI-3 in section 5 K entitled “public procession on 18 August 2019”, it lists all the video footage K exhibits covering the public meeting and the procession from Victoria Park L L to Chater Road. M M 124. At 3:07pm Figo Chan on the stage, after a reading of the 831 N N manifesto declared to the participants that Victoria Park was full but the O police still refused to close off Causeway Road for access. Then he said O very loudly “it’s cleared, right? It’s cleared?” as if to confirm road closure. P P There was loud applause. He then said the police had requested everyone Q to leave Victoria Park in a water flow manner. Q R R 125. Prosecution witnesses have denied that roads were closed by S the police. They were blocked by participants entering the Park. It was S denied the police requested CHRF to disperse people in a water flow T T manner. Despite this, Figo Chan went on to tell people to get up and follow U U V V  - 37 - A A B B legislators assisting the crowds to leave Victoria Park. He said at 15:08:38 C “if you can’t leave from Causeway Bay, go to Wanchai. If you can’t leave C from Wanchai, then go to Admiralty. If you can’t leave from Admiralty, D D go to Central, okay?” to loud cheers. E E 126. Prior to this announcement and instruction PW6 had seen F F almost all the defendants arrive by the stage before she saw the 1st and 2nd G defendants with marshals carrying a long rolled up banner go towards Gate G 17. After this announcement and instruction was given she then saw people H H on football pitches Nos. 4 and 5 lining up to leave by Gate 17. P47 is a map I of Victoria Park with gates labelled in red and P48 is a map of Causeway I Bay to Central. J J K 127. The video footage shows a long banner printed with the words K “Stop the police and gangsters from plunging Hong Kong into chaos, L L implement the 5 demands” and a caricature of a female with a wounded M bloody eye was unfurled and carried by all the defendants to leave through M Gate 17. All but the 3rd defendant who joined the banner party minutes later N N on Causeway Road. Not long after the banner party left, there was a heavy O downpour of rain. O P P nd 128. The 2 defendant held a microphone and walked in front of Q the banner for most of the way to Chater Road. He led the chanting of a Q variety of slogans with a microphone and loudspeaker. As he chanted those R R participants behind and around him would repeat after him or respond S appropriately, for example, if he shouted “5 demands”, the response would S be “not one less”. At times, the 3rd, 4th, 5th and 9th defendants can be seen T T and heard responding. U U V V  - 38 - A A B B C 129. This banner party was wide and long but made even wider and C longer by a black cordon or rope that surrounded it and the defendants, held D D up by others. The banner party and this cordon took up well over the width E of a carriageway. Screenshots from video footage at P33C, P35C, P36C, E P37C, P39C, P40C, 42C and 44C identified all the defendants and show F F close-ups of them carrying the banner. It shows how big the banner party G was with a black cordon around them. G H H 130. Thousands of people can be seen following the banner party I out of Victoria Park. On the way to Chater Road, the 2 nd defendant was I often heard appealing to and urging pedestrians to go to Victoria Park first J J and then come out because this was a water flow meeting, P43B. The K slogan “jam pack Victoria Park” could be heard often, in particular from K the 2nd, 4th and 9th defendants. L L M 131. There is no dispute by the defence and it is clear from the M video footage that the banner party lead participants along Causeway Road, N N Yee Wo Street, Hennessy Road, Queensway, Des Voeux Road Central, Ice O House Street and stopped on Chater Road where the banner was laid on the O road outside the Court of Final Appeal building. P P Q 132. Along the route which took about 90 minutes to walk, not one Q defendant mentioned dispersal nor dispersal by this or that MTR entrance R R as they walked near or passed them. Some of the chanting has been S transcribed and translated; they identify the speaker where possible, see S P33A & B, P35A & B, P36A & B, P39A & B, P40A & B and P43A & B. T T U U V V  - 39 - A A B B 133. When they arrived in Central they turned down Ice House C Street to arrive at Chater Road. That road and several other roads in Central C are pedestrianised on a Sunday and in the shelter of a footbridge on Ice D D House Street were many foreign domestic helpers sitting on cardboard E trying to stay dry. When the banner party arrived the procession had to stop E for some defendants and others to ask the domestic helpers to leave the F F carriageway and help them move all their cardboard. G G 134. The prosecution rely on what was said upon arrival in Central H H by some defendants standing with all the other defendants together to prove I the intention behind this procession was in fact to flout the law and thwart I the ban. An intention that included all of them, to show they were in this J J together. For example, in the transcript and translation P40B at page 143 K at 4:27pm the 9th defendant is recorded as giving directions out loud as to K how they will proceed down which roads to arrive at Chater Road. The 4th L L defendant then chants repeatedly “I have the right of procession. No police M permission is required” and “I have the right to protest”. The 9th defendant M shouts the same chant. N N O 135. At 4:38pm the 2nd defendant told the crowd and procession O that they have arrived in Central now. They were now at the finishing point, P P people could now disperse and this was a water flow pattern walk from Q Victoria Park to Central. Immediately after, the 4th defendant repeated his Q chants that police permission was not required and he has a right of R R procession. The banner party are still all together at this stage. S S 136. Dispersal is mentioned for the 1st time when the 2nd defendant T T said to the crowd, “you are welcome to disperse using the MTR station U U V V  - 40 - A A B B here”. The crowd was told they were welcome to walk back as “it’s a free C marching day in Hong Kong today”. At 4:42pm the 2 nd defendant C continued and said the route they took from Victoria Park equaled the D D procession they had originally planned so their procession can be very E peaceful. These points are repeated several times over. E F F 137. On the day, the police did not arrest or take any enforcement G action against the banner party, the defendants. They were arrested later on G 18 April 2020. PW4, SP Chow explained many times why no enforcement H H action was taken on the day; the main reason was because in light of recent I violent events, the police did not want to provoke the emotions of the I crowds in case it led to violence and serious disorder endangering public J J safety and public order. K K Disruption as a Result of the Procession L L M 138. The prosecution submit the procession led by the defendants M caused serious disruption to traffic and public transport way past Causeway N N Bay and Wanchai. The procession and the participants covered all O carriageways on its path. Even neighbouring roads to those carriageways O were blocked. Vehicles, taxis and buses were trapped on Gloucester Road P P and its flyover. Video footage shows an ambulance being unable to proceed Q along Causeway Road. Q R R 139. The evidence of PW10 from the Transport Department comes S from his statement P52 which sets out from 1pm at intervals, what roads S were temporarily blocked. The first part of his statement sets out road T T closure records on Hong Kong Island until past midnight and the second U U V V  - 41 - A A B B part sets out what public transport was truncated or diverted for the whole C city, not just Hong Kong island. C D D 140. It is not disputed there is video footage of a black clad E protester repeatedly kicking traffic cones near the procession route on E Hennessy Road at about 4:16pm. It is not disputed there was graffiti F F painted or sprayed onto water barriers surrounding the Central Government G Offices, seen on NOW TV footage P46 at about 8:30pm. Chanting can be G heard. H H I 141. It can be seen from the same footage that there were many I people on the blocked off roads and gathered outside the Central J J Government Offices; some were shining laser lights into the premises over K the water barriers. They were clearly aimed at police vehicles parked inside K and police officers just inside the building. When a police vehicle moved L L it was bombarded by laser beams which must have made it difficult to drive. M A viewing of P46 from about 8:30pm until past midnight shows that road M closed with more and more people arriving on the carriageways of Harcourt N N Road outside those offices. O O 142. There are several occasions where there was news footage of P P violence towards a member of the public. At 8:18pm on P46 a man in red Q is loudly accused of being an undercover police officer then a triad. The Q situation was very volatile; he was cornered and abused. He is then filmed R R being followed, abused, jeered at and had laser lights shone in his face. At S about 11pm a man in a white shirt is targeted and surrounded, obviously S assaulted because blood is seen pouring from his head. T T U U V V  - 42 - A A B B DEFENCE SUBMISSIONS C C 143. All defendants submit that the court can construe from the D D evidence of the prosecution witnesses, in particular PW4, that the police E were relieved that their lack of enforcement or action against the banner E party resulted in a peaceful procession desired by the police. Therefore, F F one can draw the inference that the police were trying to achieve that result. G The police knowingly tolerated this procession and tacitly consented to G CHRF organising the dispersal in this manner even though the police had H H publicly banned such a procession. I I 144. Much emphasis was placed on the liaison meeting where the J J organisers set out their reasons for the necessity of a public procession K when it was suggested only a public meeting would be allowed. They K explained in detail that a procession was required for dispersal in view of L L the large crowd anticipated. People had to disperse in a water flow manner, M that is when more than capacity allows a flow into Victoria Park, there M must be a flow out to avoid overcrowding and danger. N N O 145. It was suggested that the widely circulated news of the CHRF O press conferences and interviews meant the police were well aware of the P P water flow dispersal plan the organisers openly said they had to plan in Q advance. It was described as implausible that the police witnesses did not Q hear of or understand the meaning of this water flow dispersal plan when R R it was mentioned on so many occasions. S S 146. Despite this knowledge, the police must have deliberately T T made a conscious decision not to ask CHRF about this water flow meeting, U U V V  - 43 - A A B B what they intended to implement or advise them that it would be an C unauthorised procession. It was described as implausible that police C witnesses on the ground on the day, like PW6 or PW7 did not liaise with D D the organisers on the subject or warn them officially not to organise a E procession out of the park. E F F 147. The police said in the operation order, P49 that they had G intelligence the public procession may proceed despite the ban. The G defence highlighted the lack of action to counter such a likelihood as H H evidence the police tolerated or consented to the procession. The I defendants not only had a reasonable excuse but lawful authority. They I were not the head of an unauthorised procession but part of a necessary J J dispersal plan. K K 148. Once the 3 platoons were withdrawn from Victoria Park there L L were no officers there to carry out the police duty to facilitate the public M meeting and assist with crowd control to ensure public safety. The defence M say this was deliberate because the police relied on the organiser; it was N N incumbent on the organiser to arrange dispersal. After all, PW1 agreed O under cross examination that he hoped and expected the crowds to follow O directions given by the marshals of CHRF. P P Q 149. It was suggested that the lack of police deployment in or Q around the park was deliberate to set a trap for the defendants; it was a R R politically motivated decision. S S 150. The defence submit there was insufficient evidence to show T T st the defendants had organised the public procession. Ms Eu SC for the 1 U U V V  - 44 - A A B B defendant argued there was insufficient evidence to prove he was an C organiser as such. The news coverage clearly indicated the banner party C were invited to assist with dispersal and they responded to directions from D D those on the stage on the day. E E st 151. The 1 defendant like some of the other defendants were not F personally involved in the application for a LONO, not a member or an F organiser from CHRF, did not attend any press conference and did not G G chant slogans nor urge participants to join in a water flow meeting from H the Park to Central. H I I 152. It was suggested by Ms Eu and adopted by all other defence J J counsel that the banner party did not direct the route. They were led by K others; there was no evidence they dictated the route therefore they did not K organise the procession. The fact they were in front and carrying a banner L L is not sufficient to infer they were organisers. The fact that the dispersal M route was substantially the same as the banned procession supports the M st submission it was not the 1 defendant or other defendants who organised N N or planned it. O O 153. It is submitted that the prosecution witnesses were evasive and P P not telling the whole truth. It was submitted that what they did say about Q the operation that day supports the submission that the banner party had Q reasonable grounds to believe that the water flow meeting was known to R R and therefore tolerated as well as tacitly consented to by the police. The S prosecution has been unable to prove beyond reasonable doubt that the S defendants organized and knowingly participated in the alleged procession T T without lawful authority or reasonable excuse. U U V V  - 45 - A A B B C MY FINDINGS C D D 154. As I have said, I will first determine on the facts if the E prosecution has proved beyond reasonable doubt all the elements of the E offences. They do not fall or stand together. The defendants do not fall or F F stand together. G G 155. I have taken into account that as of 18 August 2019, all H H defendants on trial except the 4th defendant had clear records. I have I considered the good character directions in relation to both credibility and I propensity. J J K 156. The burden of proof is on the prosecution. The defendants are K not required to prove their innocence. It is for the prosecution to prove each L L element of the offence beyond reasonable doubt. M M 157. The defendants elected not to give evidence. That is their right N N and no adverse inference can be drawn against them. The fact that no O defendant has given evidence proves nothing, one way or the other. It does O nothing to establish their guilt. However, this means that there is no P P evidence from the defence to undermine, contradict or explain the evidence Q presented by the prosecution. I refer to Li Defan v HKSAR (2002) 5 Q HKCFAR 320. R R S 158. I am assisted by oral and written submissions from all of the S defence, marked MFI-5 to MFI-9 respectively. I emphasise again that it is T T simply not practical in the course of these Reasons for Verdict for me to U U V V  - 46 - A A B B attempt to cover every aspect of the evidence of every witness; to identify C individually and discuss every argument or submission made by individual C counsel for the prosecution and the defence. The defendants adopted each D D other’s final submissions. That I do not mention a particular piece of E evidence, transcript, video recording, submission or authority submitted E does not mean that I have not considered it or factored it into my decision F F making. G G 159. I am sure after considering the evidence and submissions that H H there was an unauthorised public assembly from Victoria Park to Chater I Road despite an objection to it by the Commissioner of Police. I am I satisfied it consisted of more than 30 persons and was organised for a J J common purpose, a purpose set out in writing on the banner at the head of K the procession. I am sure it was a public assembly that took place in K contravention of section 13 of the POO. L L M 160. I am sure it was not a dispersal plan born out of necessity but M an unauthorised public procession as defined by the POO. I am sure the N N prosecution can prove beyond reasonable doubt that there was a procession O as opposed to a dispersal from the Park. Similarly, I am sure the O prosecution can prove there was no lawful authority or reasonable excuse P P to organise or participate in this possession. Q Q 161. On the face of it, the news footage shows what can only be R R described as a procession with designated leaders in the front that set off S from Victoria Park. There were express instructions from the organisers to S follow those leaders out of Gate 17. It was described as a dispersal to MTR T T stations. Yet and this is important, there was no evidence that U U V V  - 47 - A A B B overcrowding was an imminent hazard before 3pm and no evidence that C dispersal was not possible through the usual exits and 2 MTR stations used C during public meetings at Victoria Park. The park was becoming full and D D there were still participants entering slowly due to their large numbers but E that was no evidence that exit routes were inaccessible or problematic E before 3pm. F F G 162. In fact, there was evidence from PW6 that she had given G express instructions to the person in charge, Figo Chan that were H H deliberately ignored. One of the conditions of the LONO was that the I organisers had to adhere to instructions from the police. I am sure she was I deliberately ignored because there was a pre-planned procession organised J J to start at 3pm despite the ban. K K 163. On the face of it, the news footage shows what can only be L L described as a public procession with thousands following as the head of M the procession chanted slogans relating to the common purpose all the way M to what is described as the finish. There was not one word relating to the N N crowd behind them dispersing safely at MTR stations nearby, be it O Causeway Bay, Wanchai or Admiralty. There was no assistance given to O the crowd as to how to leave safely. This is contrary to what was described P P as a water flow dispersal to nearby MTR stations to disperse safely. Q Q 164. Moreover, what was chanted indicates that the intention was R R to organise and participate in an unauthorised assembly in direct defiance S of the police ban. Nearing and in Central, it was declared that police S permission was not required and there was a right to a procession. This was T T repeatedly and loudly chanted within the cordon of the banner party yet U U V V  - 48 - A A B B none of the other defendants left the group upon hearing this admission. C Moreover, it was also declared that the procession ended at Chater Road C when the banner was laid down by all holding it, another indication it was D D not a dispersal plan but a procession with a start and finish. E E 165. I have carefully considered all that said by the CHRF and the F F 2nd, 4th and 9th defendants in press conferences or interviews after the G appeal failed and before the procession began and find there was a call to G attend the public meeting and show dissatisfaction at the police ban by H H intentionally defying it in the name of dispersal. I I 166. Without repeating again what was said in various interviews, J J the gist of the message was that the police ban restricted the right of K freedom of assembly and expression but Hong Kong people could be K flexible and get around this ban by holding a procession in the name of L L dispersal. What was suggested was to deliberately flout the law openly by M claiming it was necessary for safety reasons. A reading of all the transcripts M and not just highlighting certain sentences and the phrase “water flow” N N clearly reveals this message and intention. O O 167. The 4th defendant told the public to attend the public meeting P P and then “be water” which was a saying adopted by protesters in 2019 to Q keep the police on their toes by being anonymous, spontaneous, flexible Q and disperse quickly – like the flow of water. He promised to walk to the R R end with everyone hand-in-hand. This sounds more like a rallying cry S rather than an explanation behind a dispersal plan and overriding concern S for safety. T T U U V V  - 49 - A A B B 168. If the defendants were only there to assist with dispersal to C ensure public safety and avoid overcrowding, then it does beggar belief C they needed such a large banner that took so many of them to carry it. In D D addition, it appeared necessary for a cordon to go around the entire banner E which meant this banner party took up well over the width of a carriageway. E F F 169. Instead of assisting the crowds to disperse safely, those G crowds were led head on into other oncoming crowds in Causeway Bay by G the banner party forcing the procession to move very slowly and forcing H H people coming in the opposite direction to move to avoid them. The banner I at one stage had to be folded in half lengthways to get through the I oncoming crowd. There was also footage of people in front of the banner J J party being asked politely to clear away for the procession. If safety was K paramount and dispersal the object, then this flies in the face of logic and K credibility. L L M 170. I am sure this public procession was not about dispersal of M crowds. That was a description used to defy the law and circumvent the N N ban. This intention was vocalised repeatedly and publicly days before the O public meeting. It was only a dispersal plan in name and the truth is it was O a planned unauthorized assembly. P P Q 171. It was symbolic for the defendants to lead this procession on Q almost exactly the same route and at the same time as the proposed R R procession; it was no coincidence that this dispersal plan mirrored the S banned procession. S T T U U V V  - 50 - A A B B 172. Has the prosecution proved the defendants had knowledge C they were taking part in an unauthorised assembly? As declared in the press C interview on 17 August the ban on the public procession was a first for D D CHRF hence, their outrage. It was newsworthy and widely broadcasted. E E 173. It was specifically mentioned in the almost daily 4pm police F F conference on 16 August with the police offering an explanation for the G objection. It was also specifically mentioned that anyone participating in G an unauthorised procession in defiance of that objection would be H H committing a criminal offence. I I 174. All of the defendants have ties to democratic parties or J J support the pro-democracy movement, many were well known legislators K known for their pro-democratic stance. 3 of the defendants are legally K trained and very experienced lawyers undoubtedly familiar with the POO. L L It is common knowledge that CHRF is an organisation that is affiliated M with almost all pan-democratic groups in Hong Kong. It is significant that M the organisers issued an invite to influential people known for their pro- N N democratic stance because of who they were and what they stood for to O lead a procession to defy the ban. I am sure this was deliberate. O P P 175. Therefore, I am sure the wide news coverage of the police Q objection and the disappointment and anger of the organisers coupled with Q the announcement of an invitation for them to assist CHRF on the day R R meant all the defendants were well aware that the police had objected to S the public procession but in spite of that, CHRF nonetheless planned for it S to proceed. T T U U V V  - 51 - A A B B 176. I am in no doubt they knowingly participating in an C unauthorised procession but has the prosecution proved they are organisers; C that they organised that unauthorised assembly. A commonsense approach D D must be taken in defining the word “Organise”. The prosecution has relied E on the facts of the case and also Flockhart v Robinson (1950) 2 KB 498. E F F 177. The prosecution relies on the evidence of the acceptance of G the defendants of the invitation by CHRF to join a “water flow meeting” G from Victoria Park on 18 August. They rely on what can only be described H H as an orderly and organised public procession from the video footage to I show it proceeded under the direction and leadership of the defendants. I J J 178. In Flockhart the majority of the Court held that, “as the K essence of a procession was that it proceeded along the route, the person K who directed its route was the person who organised it;…”. It was said that L L the word “organise” is not a term of art. When a person organises a M procession, what does he do? The person who organises the route is the M person who organises the procession. N N O 179. Here, without the defendants forming the banner party it is O unlikely the procession would have come into being. It is clear they agreed P P to be the head of the procession and led the direction in which the Q procession was to proceed. The fact that not all of them spoke or gave Q directions where to go does not preclude them from being an organiser. R R They acted as one. They acted together; all are equally culpable. S S T T U U V V  - 52 - A A B B 180. There of course, can be more than one organiser and an C organiser does not have to ultimately participate or take part in the C procession. D D E 181. The agreement of the defendants to be the banner party E leading the public procession when they knew of the police ban supports F F the prosecution’s case that they were part of the organisers. I find the G evidence supports and proves the element of organisation of an G unauthorised assembly that day and it is applicable to all defendants. H H I 182. This also applies to the 3rd defendant who did not leave with I the banner party through Gate 17 but joined them minutes later. I take into J J account she was seen and photographed with most of the other defendants K inside the park by the organisers red marquees just before the procession K started. L L M 183. I do not accept the defence submission that because they were M not named as part of the organisers of the public meeting nor involved in N N the application for a LONO, they cannot be defined as organisers. Also, O the fact that some of the defendants did not chant slogans or make any O speeches to motivate or galvanise participants does not mean they were P P only following the instructions of the organisers CHRF and were not Q organisers themselves. Q R R st 184. The 1 defendant sought to distinguish Flockhart because the S route was not planned by him. He seeks to rely on the footage of marshals S holding the black cordon around the defendants and banner to prove they T T were in fact dictating the route to him and he only followed. It was U U V V  - 53 - A A B B submitted he only responded to an invitation to lead a dispersal party which C does not make him an organiser. C D D 185. With respect, there is no evidence of why he or any of the E other defendants were there despite suggestions in submissions. There is E no direct evidence of what he or any of the other defendants heard, believed, F F knew or intended despite many suggestions to that effect in submissions. G G 186. There was much emphasis in submissions and in cross H H examination of prosecution witnesses on the duty of the police at this I public meeting, their deployment of officers to facilitate it or lack of, their I lack of responsible planning to ensure public safety and public order, their J J inaction when the organisers did not follow instructions and the defendants K unfurled a banner to lead a procession out. K L L 187. The police headquarter orders from 2005 (P50) and 2019 (P51) M as well as the operational order for the public meeting of 18 August 2019 M (P49) do set out the duties of the police at public events and were the N N subject of many questions and submissions. It was highlighted in O submissions that in P49 the police set out their bottom line in paragraph 34 O where it states they will adopt a flexible and facilitating approach for this P P public meeting and reminded the force of the need for tolerance, Q commonsense; not to take action except for certain stated behaviour. Q R R 188. Ms Eu submitted that the information in this operational order S indicated the police knew that there would be a dispersal plan carried out S by the organisers along a similar route of the proposed banned procession. T T It is submitted the police anticipated overcrowding was a real hazard and U U V V  - 54 - A A B B likely to materialise. They acquiesced to CHRF implementing their water C flow meeting to deal with that hazard. C D D 189. In her submissions she submits the police deliberately ignored E the likely hazards by not deploying sufficient manpower. The evidence that E they did not know of or consider the CHRF water flow meeting procession F F a possibility is not credible. It is not credible they were not briefed on that G likelihood. It is not credible they took no action against Figo Chan ignoring G instructions at the scene nor is it credible that no one acted, reacted or H H considered whether enforcement action was necessary when the public I procession started. I J J 190. It was stressed the police have powers to prevent or stop any K unauthorised assembly under S17 of the Public Order Ordinance therefore K action should have been taken and warnings should have been given. I do L L not agree with the submission from Mr Lok SC for the 6th and 8th M defendants when Ms Po, his learned junior submitted a warning from the M police to the defendants was essential for the prosecution to prove an N N offence had taken place. O O 191. I have considered all submissions relating to the credibility of P P the witnesses and the police operation that day. I have considered and Q accepted the evidence of particularly PW4 in explaining the lack of police Q presence in the park and on route to Central. Her reasoning and own risk R R assessment of police visual presence and any enforcement action including S warnings resonated with the tone of PW1’s operational order for that S specific public meeting. After all, the public meeting was to protest against T T the abuse of police powers. U U V V  - 55 - A A B B C 192. I believe PW5’s evidence as to why he withdrew the 3 C platoons stationed at the West and East side of Victoria Park; it was prudent. D D I believe he did weigh up the pros and cons of remaining to facilitate crowd E control versus withdrawing those 90 officers. It confirmed PW4’s fears E were realistic and her plans to deploy police out of sight but near enough F F if needed were appropriate for that day and in those circumstances. G G 193. In any event, the police plans, actions, inactions or as H H described during the trial as “their planlessness” are not relevant to whether I the defendants intended to organise and participate in an unauthorised I assembly. J J K 194. Even if the police made mistakes, neglected their duties, K ignored the CHRF press interviews and conferences or as Ms Po suggested, L L the police handling contained a “litany of errors” from the start, it does not M make the public procession a dispersal plan. M N N 195. I do not find merit in the submission that the prosecution’s O evidence supports a defence of lawful authority or reasonable excuse. That O is because I am sure an unauthorised procession was planned in advance to P P mirror the banned procession and flout the law. That is why Figo Chan did Q not even pay lip service to instructions given to him by PW6. Q R R 196. I do not accept Ms Po’s submission that because the police S withdrew when they had a duty to facilitate the meeting to protect the S public and ensure public order and at a time when she said CHRF needed T T them most, they abandoned that duty and they abandoned their role to U U V V  - 56 - A A B B protect the rule of law. She submits their abandonment means there was C reasonable excuse for the participation of the defendants. C D D 197. I reject the defence submission that the police tolerated the E public procession and even tacitly consented to it. I do not accept they E turned a blind eye. I believe the police made a conscious decision to operate F F in a way to minimise any risk of violence or confrontation that day. I accept G the evidence that they planned their operation either before or on the day G with the information they had and were constantly receiving in such a way H H to ensure this and to protect public order, public safety and protect the I rights and freedoms of others. I J J 198. In view of this and my findings above, I am sure that there K was no lawful authority or reasonable excuse for the defendants to K knowingly take part in an unauthorised assembly. These defences are not L L available to any of the defendants. I’m satisfied the prosecution evidence M does not support these defences. M N N 199. Ms Eu has submitted that even if I were to find the 1st O defendant was an organiser and knowingly participated without lawful O authority or reasonable excuse in an unauthorised assembly, I should P P nevertheless go on to acquit him on the basis that the procession was “a Q reasonable and proportionate contravention of the law, having regard to the Q evil of a risk of serious injuries which could be caused by a potential R R stampede when a downpour descended on the crowd.”. I was referred to S the law on the defence of necessity. Mr Dykes SC for the 2nd and 5th S defendants similarly referred to it and expanded on it in his submissions. T T U U V V  - 57 - A A B B 200. It was submitted that because of the very real risk of serious C injuries due to a potential stampede when and if it rained hard as well as C the abdication by the police of their responsibility to facilitate the dispersal D D of the large crowds inside the park, there was a necessity for someone to E organise and to participate in an orderly dispersal of this crowds. E F F 201. The defence of necessity is not common and usually only G pleaded in extreme circumstances. The prosecution has referred me to the G defence of duress of circumstances which has, without going into the H H relevant case law, taken over in cases which would have come under I necessity. Duress operates to provide an excuse for breaking the law. I J J 202. As it has been raised by the defence, it is for the prosecution K to prove that whilst the defendants had the mens rea required when K committing the offence, they were not acting out of compulsion. The L L prosecution needs to show the defendants did not act as they did because M as a result of what they reasonably believed to be the situation, they had M good cause to fear that otherwise death or serious physical injury would N N result or as Mr Dykes suggested, “could” result. The prosecution needs to O show the commission of the offence, viewed objectively, was not O reasonable and not proportionate having regard to the evil to be avoided or P P prevented. Q Q 203. As a result of my findings above, there is no evidence of any R R situation where death or serious physical injury was imminent. Necessity S was not the sine qua non of the commission of the offences. This defence S is not available. T T U U V V  - 58 - A A B B Defences read into Charge 1 – the 3rd Defendant C C rd 204. Mr Ho SC leading Mr Isaac Chan for the 3 defendant D D submits the defences of “lawful authority or reasonable excuse” should be E read into Charge 1 and should operate in the same way as it does for Charge E 2. He argues that the court has an equal duty to give effect to the right of F F freedom of assembly under both subsections; that right is engaged in both G the offences of organising and knowingly participating in. The addition of G those defences does no violence to the underlying legislative intent but on H H the contrary, it gives efficacy to the whole scheme under the POO. His I submission was adopted by all. I J J 205. I agree with the prosecution when they say this point is K academic because the defendants cannot establish lawful authority or K reasonable excuse in the facts of this case. I also agree that in any event, it L L must be deliberate that these defences are available for one charge and not M the other. The person who participates in an unauthorised assembly may M have a reasonable excuse but it is difficult to conceive of the same when N N someone actually organises it. O O CONCLUSION P P Q 206. I have taken the totality of the evidence into account, this Q means the oral evidence, documentary evidence and all of the video R R footage of news coverage before 18 August and of that date. The transcripts S have been of enormous assistance when read in their entirety. I have S considered all submissions. T T U U V V  - 59 - A A B B 207. I am sure I can draw an irresistible inference from the C evidence when considered together that the defendants with others C organised and participated in it themselves, an assembly that was subject D D to an objection by the Commissioner of Police and therefore unauthorised. E E 208. In conclusion, I find the prosecution has proved beyond F F reasonable doubt that all the defendants organised a public procession G which took place in contravention of s13 of the POO which was an G unauthorised assembly by virtue of s17(A)(2)(a). All the elements of H H Charge 1 have been proved. I I 209. Similarly, I find the prosecution has proved beyond J J reasonable doubt that all the defendants without lawful authority or K reasonable excuse, knowingly took part in a public procession which took K place in contravention of the same section, which was an unauthorised L L assembly. All the elements of Charge 2 have been proved. M M CONSTITUTIONAL CHALLENGES N N O 210. All defendants have launched a constitutional challenge of O both s17A(3)(b)(i) and s17A(3)(a) of the POO on a systemic level and an P P operational level. It is submitted the sections should be struck down as Q unconstitutional as they failed to satisfy the proportionality analysis on Q both levels. R R S Systemic Proportionality Challenge S T T U U V V  - 60 - A A B B 211. The systematic constitutional challenge centres on whether C criminalising the organisation and participation in an unauthorised C assembly amounts to a disproportionate restriction on the right to freedom D D of assembly and procession protected under Article 27 of the Basic Law E and Article 17 of the Hong Kong Bills of Rights Ordinance, Cap 383 E (“BORO)” which mirrors Article 21 of the International Covenant on Civil F F and Political Rights (“ICCPR”). G G 212. The defence unanimously drew a distinction between a H H peaceful and a non-peaceful unauthorised assembly to argue that the I imposition of criminal sanctions where there was a peaceful unauthorised I assembly would disproportionately restrict the right to freedom of J J assembly. K K 213. It was submitted that the sole legitimate aim for imposing L L criminal sanctions where there was a peaceful assembly was to ensure the M compliance with the notification system therefore the subject offences M were not rationally connected with the legitimate aim. It was submitted that N N the imposition of criminal sanctions had no legitimate societal benefits, O failing to strike a fair balance between the societal benefits and the O protected rights of the defendants. This sanction creating offence was P P therefore an unacceptable burden on the defendants. Q Q 214. The defence also unanimously submitted that the maximum R R term of imprisonment of 5 years that could be imposed for a breach of these S offences is too severe; so severe it is disproportionate. So severe it had a S chilling effect on those that wished to exercise the right to freedom of T T assembly. U U V V  - 61 - A A B B C 215. Courts recognise certain constitutional guaranteed rights are C absolute and never subject to a proportionality analysis. Where guaranteed D D rights are not absolute, the law can create restrictions limiting such rights. E The courts can question those restrictions and it will do so by subjecting E them to a proportionality analysis. F F G 216. Article 39 of the Basic Law states the provisions of the ICCPR G and other international conventions as applied to Hong Kong will be H H implemented through our laws. Article 39 (2) states that the rights and I freedoms enjoyed by Hong Kong residents shall not be restricted unless as I prescribed by law. Those restrictions must be consistent with the J J provisions of the specified international conventions. K K 217. Article 27 of the Basic Law provides; L L M “Hong Kong residents shall have freedom of speech, of the press M and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to N form and join trade unions, and to strike.” N O O 218. Article 17 of the BORO guarantees the right of peaceful P assembly as follows; P Q Q “The right of peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right other than R those imposed in conformity with the law and which are R necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the S S protection of public health or morals or the protection of the rights and freedoms of others.” T T U U V V  - 62 - A A B B 219. Article 17 recognises the right to peaceful assembly but C restrictions are imposed, including those for preserving public safety and C public order, and protecting the rights of others. The courts will apply a D D narrow interpretation to those restrictions to protect the constitutional right E to peaceful assembly but people must still exercise that right in a lawful E manner. Hong Kong people do enjoy the same freedoms of assembly, F F speech, procession and demonstration as other advanced and free societies G worldwide. Similarly, in those other countries, those freedoms are subject G to the prescribed laws of their own jurisdiction. H H I 220. That means Hong Kong people are obliged to respect the laws I that are in force even those that restrict these rights. As Hon Yeung VP said J J in Secretary for Justice v Wong Chi Fung & Others (2018) 2 HKLRD 699; K K “3. …Any act of protest or demonstration for which the police L have not issued a Notice of No Objection, or in which violence L or the threat of violence is used to express one’s opinions, crosses the boundary of the peaceful exercise of the rights and M M enters the territory of unlawful activities; it becomes an unlawful act which interferes with the rights and freedoms of others.” N N 221. Hon Yeung VP said in that authority that “in recent years, an O O unhealthy wind has been blowing in Hong Kong…”. It appears to have P continued into 2019 and escalated from June that year. That was when this P city experienced serious social unrest, public disorder, vandalism and Q Q escalating violence for months. R R 222. The prosecution’s response to this constitutional challenge S S raised by all the defendants is that it is precluded by the Court of Final T Appeal decision in Leung Kwok Hung & Others v HKSAR (2005) 8 T HKCFAR 229. A systemic challenge cannot be launched on either U U V V  - 63 - A A B B S17A(3)(b)(i) and S17A(3)(a) of the POO because it was held in that C authority that the statutory notification scheme under the POO was C constitutional. That decision includes sanctions and is binding on this court. D D E 223. Leung Kwok Hung, the 4th defendant here, was convicted of E holding an unauthorised assembly contrary to s17A(3)(b)(i) of the POO, F F the same section as Charge 1 in this case. He refused to go through the G statutory notification procedure despite a warning from the police. The G offence arose from a peaceful procession of between 40 and 96 people H H which was therefore unauthorised. At issue was whether the statutory I scheme for regulating public processions was contrary to the right to I freedom of peaceful assembly guaranteed by the Basic Law and Hong J J Kong Bill of Rights. K K 224. Although the majority of the Court of Final Appeal in 2005 L L held that the statutory scheme under the POO did not satisfy the M “prescribed by law” requirement (with regard to the concept of “ordre M public”), the majority held that such reference to “ordre public” could be N N severed and the remaining concept of public order is sufficiently certain. It O was decided the notification scheme was constitutional and the convictions O were upheld. P P Q 225. In that authority the Court of Final Appeal examined the full Q range of discretionary powers that the Commissioner of Police and the R R police could exercise in restricting the freedom of assembly and procession. S S 226. This authority is 15 years old but despite a submission T T otherwise, it is still without doubt good law and binding on lower courts. U U V V  - 64 - A A B B It has been referred to since as good law and not least, most recently in C Leung Kwok Hung v Secretary for Justice (No 2) (2020) 2 HKLRD 771. C This appeal stemmed from a judicial review of The Prohibition on Face D D Covering Regulation made under the Emergency Regulations Ordinance, E Cap 241 and related constitutional challenges. E F F 227. The defence unanimously submitted that the Court of Final G Appeal in Leung Kwok Hung 2005 did not focus on or decide that the G sanctions imposed under s17A were proportionate and constitutional. H H Therefore, the systemic challenge here is not precluded by that decision. If I that submission is correct then the validity of the sanction provision should I be analysed through a four step proportionality test. It would be subject to J J a proportionality analysis as set out in Hysan Development Co Ltd v Town K Planning Board (2016) 19 HKCFAR 372. K L L 228. There are similarities between this case and Leung Kwok M Hung 2005. The 4th defendant was convicted of the same charge as charge M 1 here. Both unauthorised public processions were peaceful, in that there N N was no violence. However, in this case I find there was the major traffic O disruption on Hong Kong Island caused by the unauthorised public O procession held on 18 August 2019; during and after it. It is distinguishing P P and is relevant to the submission the procession was peaceful. Q Q 229. One other notable difference is that in 2005 Leung Kwok R R Hung did not notify the Commissioner of Police of an intention to hold a S public procession whereas in this case there was notification but no Letter S of No Objection. That difference, in my view, does not distinguish that T T U U V V  - 65 - A A B B authority. If anything, the existence of a police ban or objection makes C these facts more serious. C D D Is Leung Kwok Hung & Ors v HKSAR (2005) Binding Precedent? E E 230. After the Court of Appeal decision in Leung Kwok Hung 2005, F F a Notice of Motion was filed for a certificate certifying that there was G involved in the said decision, a point of law of great and general G importance. It was granted and the point was namely “Whether the H H notification scheme under S13 to S15 of the Public Order Ordinance I contravenes Article 21 of the ICCPR, Article 17 of the Hong Kong Bill of I Rights and Articles 27 and 39 of the Basic Law” (see Tab 41/Prosecution’s J J supplemental authorities bundle (B)) K K 231. In that same bundle at Tab 42, the Determination of the Court L L of Final Appeal dated 6 January 2005 decided that the 3 questions certified M by the Court of Appeal boiled down to one and the same question and that M was “is the scheme which the Public Order Ordinance lays down for N N notification and control of public processions constitutional? The answer O to that question is likely to affect also the scheme which the same O Ordinance lays down for notification and control of public meetings”. P P Leave to appeal to the Court of Final Appeal was granted. Q Q 232. The prosecution has referred me to the judgements of the R R lower courts to support their submission. The decision of the Chief S Magistrate, Mr Patrick Li, as he then was, is reported in (2003) 1 HKLRD S 468. It is useful for this chronology to highlight the defendant’s argument T T U U V V  - 66 - A A B B set out in the headnote. Leung Kwok Hung and the other defendants argued C that: C D D (a) the notification system meant a public procession must E first be approved by the Commissioner, and this E unreasonably circumscribed the right to peaceful F F assembly; G G (b) the provisions regarding the exercise of the H H Commissioner’s power to object to a public procession I were too ambiguous and lacked appropriate checks and I balances; and J J K (c) organising an unauthorised public procession amounted K to a criminal offence, and the penalty imposed for that L L offence was disproportionate. M M 233. The Chief Magistrate found the defendants guilty and held N N that the penalty provided by s17A(3) was not disproportionate to the O offence. He found “Penalties imposed by legislation were maximum O penalties, and the court was entitled to take into account various factors in P P determining an appropriate sentence.” (See p481B-C Chinese & p473C-D Q Q English) R R 234. He reiterated the primary principle in sentencing which is that S S punishment must be commensurate to the criminality. The legislation T simply prescribes maximum penalties. He found that the section, that is T s17A(3), did not violate the standard provided in the BORO. U U V V  - 67 - A A B B C 235. The majority of the Court of Appeal, reported in (2004) 3 C HKLRD 729 also found that the notification system was constitutional and D D dismissed the appeal. Ma CJHC as he then was, confirmed at para 9 on E page 737 that the constitutional challenge made by the appellants was E against ss. 13, 13A, 14, 15, 16, 17A, 43, 44 and 44A of the POO. F F G 236. S17A(3) is set out in its entirety in para 34 of the judgement. G In para 38, the Court of Appeal refers to the specific challenge by the H H appellants to the offence creating provisions of s17A. In para 39, it is I apparent no separate submissions were made by the defence with regard to I this section. Ma CJHC said the issue of the constitutionality of s17A J J depended on the determination of the constitutionality of the notification K provisions of the Ordinance. K L L 237. The Court of Appeal by a majority held that the notification M scheme was constitutional. The appeals were dismissed and the M convictions upheld. As Ma CJHC said at para 61; N N O “Accordingly, I am of the view that the notification scheme for O public processions contained in ss.13 to 15 of the POO is constitutional, whichever test is adopted (see paras 20 to 22 P P above). It follows from this that s17A is constitutional as well” Q Q 238. Next, the Court of Final Appeal by a majority dismissed the R appeal and upheld the convictions. The prosecution submitted that in R finding the notification scheme constitutional, the highest court took into S S account the criminalisation and the penalty as well. It did not correct or T qualify what Ma CJHC said and that is s17A is constitutional as well. T U U V V  - 68 - A A B B 239. Para 63 of that judgement, under the heading “Police powers C and criminal offences” summarised the police powers and criminal C offences. The court covered and set out the various criminal sanctions of D D s17 and s17A in full including the penalties, that is the maximum penalty E is 5 years’ imprisonment on conviction on indictment or a fine of $5000 E and 3 years’ imprisonment on summary conviction for s17A(3)(b)(i). The F F sections imposing sanctions and penalties were clearly taken into account G in the deliberation of the Court of Final Appeal. G H H 240. The prosecution submits the question of constitutionality of I s17A(3) was very much part of the defence submissions to the Court of I Final Appeal. The question of the severity of the penalty and even whether J J there should be any criminal sanction for failure to notify the police was K specifically raised by leading Counsel for the 2nd and 3rd appellant in that K appeal. L L M 241. The prosecution has exhibited the submissions dated 5 May M 2005 from Counsel of those appellants, Mr Martin Lee SC, the 8th N N defendant in this trial. He made submissions on “what the new scheme O should be”, see Tab 43/Prosecution’s supplemental authorities bundle (B). O P P 242. Mr Lee submitted there were many objectionable provisions Q in the POO which were unconstitutional including the maximum penalty Q of 5 years’ imprisonment for holding and taking part in an unauthorised R R assembly. At page 6 of those submissions Mr Lee suggested that in a new S scheme that should be enacted by the Legislative Council, there should be S no criminal sanction in the notification system for merely failing to notify T T U U V V  - 69 - A A B B the police or alternatively, if there was a penalty then it should only be a C financial penalty. C D D 243. I agree with the prosecution that the decision to uphold that E scheme under the POO as constitutional included all aspects of the scheme, E even s17A. There is no direct reference to s17A in the ratio decidendi but F F it can be read that the court took into account the criminalisation and G penalty in coming to its decision to uphold the convictions. G H H 244. It was certainly a live matter during the appeal as seen from I Mr Lee’s written submissions and the reference to the actual provisions of I that section in the judgement. I do not agree with the submission that J J because the Court of Final Appeal did not focus on the proportionality of K the penalty therefore, that penalty section has not been subject to any K authoritative scrutiny. L L M 245. The Court of Appeal in Leung Kwok Hung (No.2) 2020, M clearly thought it had been subject to scrutiny and a proportionality N N analysis. In para 206 the court noted that in Leung Kwok Hung 2005 even O though on the facts of the case that conviction was due to the failure to give O notification, the Court of Final Appeal examined the discretionary powers P P that the Commissioner and the police could exercise in restricting the Q freedom of assembly procession. The court goes on and I quote; Q R R “…In light of that, it would be surprising if after the severance of ordre public from the relevant provisions, the majority of the S S Court of Final Appeal still regarded some aspects of the statutory discretion concerning unauthorised assembly other than the T requirement to give notification to be unconstitutional and made T no comment on the same.” U U V V  - 70 - A A B B 246. This means the Court of Final Appeal in 2005 considered the C constitutionality of not just the notification requirement but so much more, C and found all sections relating to the notification scheme constitutional. If D D they did not, then they would have commented on it. E E 247. Therefore, no specific reference to s17A in the Court of Final F F Appeal decision in Leung Kwok Hung 2005 is neither here nor there. As G an integral part of the notification scheme, that is the offence creating G section, it has been included in the decision and is binding under the H H doctrine of stare decisis. I I 248. The Court of Appeal in Leung Kwok Hung (No 2) 2020 goes J J on to state in paragraph 208 when it finds that there are valid and serious K public order concerns for an unauthorised assembly in their appeal; K L L “208.…(1) for those gatherings held without complying with the requisite notification requirement, the justification for imposing M criminal sanctions against the same has been explained by the M majority in Leung Kwok Hung & Ors v HKSAR;…” N N 249. It is clear from that confirmation that S17A was also O O considered in 2005 to be constitutional. It is worthy of note that even P Bokhary PJ, dissenting in 2005, considered the constitutionality of s17A P and did not strike it down for being disproportionate, see para 214-5. That Q Q comes after his observation that s17A arms each scheme with a R “formidable set of teeth capable of biting down with a maximum force of R 5 years’ imprisonment”, para 115. Despite the severity of that penalty S S being a live issue in that appeal, he said no more and did not go on to strike T it down for that reason. T U U V V  - 71 - A A B B 250. The prosecution has referred me to a 1988 article by the Hon C Sir Anthony Mason entitled “The use and abuse of precedent” for the C Australian Bar Review. In particular, the last paragraph of page 103 and I D D quote; E E “every decision has its ratio decidendi, even the decision for F which no reasons are given. Then the case is only authority for F what it actually decides, that is, for the proposition of law to be derived from the order of the court and the material facts.” G G 251. Clearly in Leung Kwok Hung 2005 the order of the court was H H to uphold the convictions and the material facts included the entire I I notification scheme; the sentence and sanction were part of the material J facts as discussed in the body of the judgement. J K K 252. The doctrine of stare decisis is the doctrine of precedent and L means “to stand by things decided”. I am of the view that through this L doctrine, the principle of law that is established by the Court of Final M M Appeal in Leung Kwok Hung 2005 is binding on lower courts. N N 253. This court cannot now reconsider the constitutionality and O O proportionality of that section alone just because the defence again raise a P systemic challenge to it and focus specifically on the statutory purpose of P that section. I agree with the prosecution that this challenge is precluded Q Q by that Court of Final Appeal decision in 2005. R R 254. The defence did rely on what Poon CJHC said in his S S judgement in the Matter of the Application of Mr David Perry, QC, to be T approved, admitted and enrolled as a barrister of the High Court of the T U U V V  - 72 - A A B B HKSAR for the purposes of prosecuting this trial. In that judgement, (2021) C HKCFI 113, the defence referred me to particularly paragraphs 11-13. C D D 255. The submission was that Poon CJHC indicated Leung Kwok E Hung 2005 was not binding because there the Court of Final Appeal dealt E with a “much narrower challenge than the wholesale attacks now sought F F to be launched against the constitutionality of s17A as an offence creating G provision, the scheme of objection and the appeal mechanism.” G H H 256. However, the legal issues identified in that application (in I paragraph 6) were not in fact raised in this trial. The only issue identified I that was raised in this trial was whether criminalising the organisation or J J participation of a peaceful assembly or procession under s17A of the POO K amounts to a disproportionate restriction on the freedom of peaceful K assembly or processions. Even then, not by all and not with much vigour L L or substantive submission. M M 257. The court was told the constitutional issues to be raised had N N not been fully addressed or canvassed by the Court of Final Appeal in 2005. O O However, the wholesale attack Poon CJHC was told was to be launched in P this trial did not materialise. P Q Q 258. Mr Jonathan Chang SC for the bar, opposing the application R to admit Mr David Perry QC, submitted that the constitutional issues R identified had previously been addressed in 2005. He submitted that S S decision was binding if a constitutional challenge was launched on the T notification scheme provisions. T U U V V  - 73 - A A B B 259. In my view, the defence cannot rely on this submission C because what the Court of First Instance was told was materially different C to the challenge raised before this court and in any event, I do not agree D D what was said in the judgment indicated that the 2005 decision would not E be binding. E F F 260. The defence also unanimously submitted that this systemic G challenge is in the context of an ultimately peaceful assembly. Much was G made of the difference in approach when the unauthorised assembly was H H peaceful. It is unnecessary for me to refer to all the submissions and the I authorities including many from the European Court of Human Rights I because of my finding that I am bound by the Leung Kwok Hung 2005 J J authority. K K 261. However, a short answer would have been that the majority L L of that Court of Final Appeal upheld the convictions when that M unauthorised procession was peaceful. If I were to have undertaken a M closer examination of this submission, firstly, I would have found that this N N unauthorised public procession on 18 August 2019 was not without O reprehensible conduct. Public order considerations are not confined to just O outbreaks of violence but also serious traffic disruption as arose here. P P Q Q 262. Secondly, there is a distinction in this case in that there was R notification but no consent given which is more serious, especially in the R light of my finding that there was a prior plan and intent to thwart that ban. S S It would make no sense and make the law illusory if a prosecution here T would be disproportionate because the unauthorised acts were without T violence. U U V V  - 74 - A A B B C 263. I will address the defence submission that the defendants were C relying on their right of peaceful demonstration as a lawful excuse. It was D D submitted that when a defendant says he is acting within the lawful E exercise of his freedom of peaceful assembly and it was peaceful then, to E establish if he has any reasonable excuse must require an application of the F F four step proportionality test. The authority of Yeung May Wan & Ors v G HKSAR (2005) 8 HKCFAR 137 and DPP v Ziegler (2019) 1Cr App R 454 G were cited to support that submission. Ziegler is subject to an appeal H H pending. Neither the Ziegler and Yeung May Wan cases were concerned I with whether a scheme was constitutional. I J J 264. In Ziegler, the case concerned an obstruction of the highway K by the defendant. In Yeung May Wan, the defendant held a sit in protest on K the pavement, she was charged with causing nuisance in a public place. L L The nature of those charges and their facts are very different to these facts M and a s17(A) offence. M N N 265. In view of my finding that I am bound by precedent and there O are no grounds for a constitutional systemic challenge here, then O reasonable excuse as a defence for charge 2 would only have succeeded if P P there was any excuse acceptable to a reasonable person to justify ignoring Q Q the ban by the Commissioner of Police. R R 266. There are no authorities that suggest an offender may rely on S S a defence of reasonable excuse when he has knowingly participated in a T banned public assembly because it was ultimately peaceful. T U U V V  - 75 - A A B B 267. Equally, it cannot be right that to arrest and prosecute is C disproportionate in this case because no actual violence broke out. That C would give the law no teeth and make a mockery of it. It cannot be right D D for an offender to argue that although his act was unauthorised, E (unauthorised because the legitimate aim behind it is public order) but E because it was ultimately peaceful and there was no violence he should not F F be arrested, prosecuted or convicted. G G 268. This leads me to the defence submission that the purpose for H H imposing criminal sanctions against a peaceful assembly procession is to I maintain, uphold, enforce or ensure the compliance with the notification I system. This was in the context of what would be the legitimate aim for J J imposing sanctions against peaceful processions. It was suggested that the K purpose behind Charges 1 and 2 is limited only to maintaining and K upholding the effectiveness of the notification system. This would be to L L enable the police to make appropriate arrangements to facilitate M processions. M N N 269. The submission here was that this very narrow interpretation O of the legitimate aim behind those offences would mean that the O restrictions are not rationally connected with the legitimate aim for the P P purposes of analysing proportionality. It would follow that the restrictions Q are not proportionate to achieve the legitimate aim. It would also follow Q that the imposition of criminal sanctions failed to strike a fair balance R R between the societal benefits and the protected rights of an individual. S S 270. It is not necessary for me to analyse the validity of s17A (3) T T by going through the four step proportionality test from the Hysan U U V V  - 76 - A A B B Development authority because I am bound by the Leung Kwok Hung 2005 C decision but if I had, I would have found that that authority made it clear C that the legitimate purpose or aim was identified as public order. It cannot D D be right that the purpose is only to ensure compliance with the notification E system. That is one of the purposes but not the only purpose. E F F 271. The Court of Final Appeal in that authority made it clear that G the legitimate aims of criminalising the participation in or the organisation G of an unauthorised assembly are to maintain public order and public safety, H H and to protect the rights and freedom of others, irrespective of whether it I was peaceful in the end. I J J 272. I would have found that the subject offences are rationally K connected with those legitimate aims identified. If not, then the whole K notification scheme would be pointless if criminal sanctions are not L L justified. These would have been the first 2 steps of the four step M proportionality test if I had analysed the validity of section 17(A). M N N 273. I would have agreed with the prosecution that if I had O O proceeded to the 3rd step, in view of the safeguards built into the P notification scheme and the court’s role in sentencing according to the P criminality, the subject offences would satisfy the proportionality test Q Q under both the “no more than necessary” and “manifestly without R reasonable foundation” thresholds. R S S 274. I would have rejected the submission above that the T imposition of criminal sanctions failed to strike a fair balance between the T societal benefits and the protected rights of an individual, the 4th step. I U U V V  - 77 - A A B B would have weighed up the societal benefits of effectively implementing C the notification scheme against the fact that the sanctions are not C mandatory and sentences are more often than not financial penalties. D D E 275. I will add here that the prosecution did submit that if I did not E accept their submission that the systemic challenge was precluded by the F F Court of Final Appeal decision in 2005, then an examination of the validity G of s17A (3) through the four step proportionality test would conclude it G was proportionate. I was taken through it in submissions to demonstrate H H that the constitutional challenge would still fail. I would have found favour I in their analysis. I J J 276. I also do not agree with the submission that a maximum of 5 K years’ imprisonment is too severe and would have a chilling effect on those K intending to hold or participate in a procession. If I had analysed the L L proportionality of s17A(3), I would have said it is not a mandatory M sentence but flexible and reserved for the worst-case scenario. It is always M up to the court to decide on a penalty which is commensurate and N N proportionate to the facts and the mitigation. Any sentence can be subject O to scrutiny in an appeal. O P P 277. I would have reviewed and been entitled to take into account Q Q the many legislative debates in the 1990s on the provisions of the POO in R the Legislative Council’s Official Record of Proceedings. Particularly in a R debate in December 2000 where sanctions were debated, the severity of S S the sanctions were debated and even sanctions in similar provisions in T overseas jurisdictions were debated. T U U V V  - 78 - A A B B 278. Many of the defendants before me today were then C legislators actively involved in the debate against that motion. That motion C was carried by the majority, see Tabs 35-38/Prosecution’s supplemental D D authorities bundle (A). Penalties are for the local legislature to decide after E consideration of relevant factors but also after taking into account the E rights of individuals as well as the interests of the society as is evident from F F various Official Records of Proceedings of the Hong Kong Legislative G Council. G H H 279. As to the numerous references to overseas jurisdictions and I authorities to support the submissions, they are persuasive but not binding I on Hong Kong Courts. Where matters of disruption to public order are J J concerned, Hong Kong is unique with its high-density, crowded districts, K very different locality issues and even cultural considerations when K compared. Not often will situations elsewhere be identical or comparable L L to that in Hong Kong. M M 280. The “chilling effect” of harsh sanctions submission would N N have had little traction if I had analysed the validity of s17(A). Exhibit P57 O is a table compiled from police records relating to the figures for public O order events annually, between 2000 and 2020. It sets out the number of P P notified public meetings held with a Letter of No Objection as well as the Q number of notified public processions held with a Letter of No Objection. Q It shows how many meetings have been prohibited and how many R R processions have been objected to by the Commissioner of Police. Even in S 2019, there were a total of 884 authorised public meetings and processions. S Without evidence to the contrary, this submission would have failed. T T U U V V  - 79 - A A B B C CONCLUSION C D D 281. After careful consideration of the submissions, I am unable to E consider the systemic challenge to the constitutionality of ss. 17A(3)(a) E and 17A(3)(b)(i) on the ground that this challenge is precluded by the F F Court of Final Appeal decision in Leung Kwok Hung 2005. That decision G upheld the constitutionality of the scheme under the POO including s17A. G That offence creating section must have been in the purview of the Court H H of Final Appeal therefore, I am bound it. I I 282. Accordingly, this systemic challenge must fail. J J K K OPERATIONAL PROPORTIONALITY CHALLENGE L L 283. All but the 4th defendant submits the decision to later arrest M M those defendants, the decision to prosecute and the subsequent conviction N is in violation of and disproportionate to the constitutional guarantees and N rights of those defendants. Mr Hector Pun SC for the 4th defendant appears O O to have no issue with the arrest but submits a decision to prosecute violates P the principle of tolerance and proportionality on an operational level. P Q Q 284. It was submitted as relevant to this challenge the fact that R there was on the day no warning from the police nor any enforcement R action to stop the procession. Also, there was no disruption to traffic or S S public transport which was due to the defendants themselves; it stemmed T from the public meeting in Victoria Park. There was no violence or breach T of the peace or reprehensible conduct caused directly by the defendants. U U V V  - 80 - A A B B The delay of 8 months before arrest is unjustified. The defendants were C only exercising their constitutional rights peacefully and the public C procession ended peacefully. D D E 285. Ms Eu submits the Court of Appeal in Leung Kwok Hung (No E 2) 2020 laid down guidelines for an operational challenge. In the lead up F F to these guidelines the Court of Appeal first considered relevant authorities G on the permissible restrictions on the fundamental rights of demonstration G and expression. H H I 286. That Prohibition on Face Covering Regulation came into I being because, as the Court of Appeal observed “since June 2019, Hong J J Kong has experienced serious social unrests and public disorders marked K by protests, escalating violence, vandalisms and arson across the territory. K It is a dire situation that has not been seen in the last 50 years.” para 1. L L M 287. The Court of Appeal made it clear when either measures that M interfered with freedom of assembly or enforcement action taken by N N authorities were to be subject to a proportionality requirement then, that O proportionality analysis has to be applied on 2 different levels. I quote the O paragraphs identified as the guidelines; P P Q “182. Thus, the proportionality analysis has to be applied on 2 Q different levels: R (1) examining the systemic proportionality by reference to the R legislation or rules in question; S S (2) examining the operational proportionality by reference to the actual implementation or enforcement of the relevant rule on T the facts and specific circumstances of a case at the T operational level. U U V V  - 81 - A A B B 183. In these appeals, it should be emphasised that we are C only concerned with the first level of challenges. It remains for C the court to assess the proportionality on the second level on the facts and circumstances in a particular case if a charge is brought D against a person. D E 184. The Strasbourg Court continued at (155) – (157) in E Kudrevicious v Lithuania to identify the need to have measures to restrict conducts causing disruption to ordinary life to a degree F exceeding that which is inevitable for peaceful demonstration F and assembly. At (155), the Court alluded to 2 important G mindsets for striking the balance: G (1) on the one hand, the public authorities have to show a degree H of tolerance; H (2) on the other hand, demonstrators should comply with the I I regulations in force.” J J K 288. The operational challenge is explained at para 182(2). What K is to be operationally proportional is the actual implementation or L L enforcement if there is any, on the facts and specific circumstances of a M case. This must be read in conjunction with paragraph 181 and the Court M of Appeal references to Kudrevicius v Lithuania (2016) 62 EHRR 34. N N O 289. In para 181, it refers to a scenario when a demonstration has O not been authorised. It summarises some general observations from P P Kudrevicius; Q Q “181…..Whilst acknowledging that it is essential to have a R system of prior notification, the absence of prior authorisation R does not give carte blanche to the authorities in taking S enforcement actions. Such actions would still be subject to S proportionality requirement. The Court highlighted that though there could be special circumstances which justify the holding T of spontaneous demonstrations without prior notification, such T exception must not be extended to the point where the absence U U V V  - 82 - A A B of prior notification of a spontaneous demonstration can never B be a legitimate basis for crowd dispersal.” C C 290. In my view, the Court of Appeal is referring to enforcement D D action against a demonstration on the day, here with specific reference in E the last line to crowd dispersal. Public authorities have to show a degree of E tolerance in what action they decide to take at the time. Some level of F F disruption can be inevitable in any demonstration so just that fact alone G does not justify an interference with the right to freedom of assembly hence, G a tolerant approach is required. H H I 291. Indisputably, on 18 August 2019 the police took no I enforcement action. I am sure for the reasons given by PW4 which meant J J there was no restriction upon the exercise by the defendants of their rights K of freedom of procession and freedom of assembly. There is nothing to K subject to an operational proportionality challenge. However, it does not L L follow that there will be no action taken by the authorities later. M M 292. As an illustration, if the police had taken any enforcement N N action on 18 August 2019 such as warnings followed by more drastic O O enforcement action such as making arrests, dispersing the crowds, P containing the crowds, using pepper spray, teargas or diverting or blocking P the procession, then those acts could be subject to an operational Q Q proportionality challenge according to para182(2). There cannot be “carte R blanche” enforcement action ignoring tolerance and proportionality if the R procession was peaceful or disruption minor. S S T 293. Paragraph 193 considers this principle of tolerance and T proportionality on the operational level as discussed in the Kudrevicius U U V V  - 83 - A A B B case and refers to paragraphs 182-184 quoted above. The Court takes as an C example a s17A(2)(a) offence where a public meeting or procession which C takes place in contravention of s 7 or s 13 would be an unauthorised D D assembly. Unless there is violence or other reprehensible conduct on the E part of some demonstrators posing serious and imminent risk to public E order and safety which requires immediate actions on the part of the police F F then, in light of the principle of tolerance and proportionality, there should G be prior warnings and the issuance and announcement of an order under G s17(3) before more drastic actions like arrests and physical dispersal are H H taken. I I 294. This again can only mean with a plain reading that the Court J J of Appeal contemplates what would be subject to an operational K proportionality challenge is any concrete or definitive actions taken on the K day that imposes a restriction upon the exercise by the defendants of their L L rights of freedom of assembly and procession. The same consideration is M applied to other offences under s17A as discussed in paragraph 194. Again, M it does not follow that there will be no action taken by the authorities later N N if there was unlawful activity. O O 295. In the Kudrevicius case, the demonstration was initially P P authorised but the farmers protesting about subsidies for the agricultural Q sector moved their demonstration to a major highway which was not within Q the specified limits of the permit issued. They intended to cause major R R disruption. They did cause significant traffic disruption for 2 days. Farmers S were arrested, prosecuted and convicted; they were given suspended S sentences. They appealed and the European Court of Human Rights, the T T “ECHR”, held that the criminal convictions were justified as being U U V V  - 84 - A A B B necessary for pursuing the legitimate aims of prevention of disorder and C protection of the rights and freedoms of others and found no violation of C the freedom of assembly. D D E 296. The ECHR found that despite the serious traffic disruption E caused, the public authorities displayed a high degree of tolerance. The F F police did not disperse the farmers and only ordered them to remove the G roadblocks and gave them warnings. Clearly they had attempted to balance G the interests of the demonstrators with those of the highway users to ensure H H the peaceful conduct of the gathering and safety of everyone which I satisfied any positive obligation they had. The Court ruled the sanctions I were not disproportionate in view of the serious disruption of public order J J and traffic; it was classified as reprehensible acts. K K 297. Those farmers in Lithuania had authorisation to protest but in L L this case there was notification followed by a ban. In this case I can take M into account there was also traffic disruption, public transport affected with M significant road closures caused by the unauthorised procession, certainly N N in Wanchai, Admiralty and Central area and even other areas of the O territory. This must be relevant in a city as crowded as Hong Kong. These O are relevant distinguishing features. P P Q Q 298. The prosecution in their final submissions MFI-4 submit none R of the matters relied on by the defendants can constitute arguable ground R for an operational proportionality challenge. Specifically, the subsequent S S arrest and decision to prosecute are not matters envisaged by the Court of T Appeal in Leung Kwok Hung (No.2) 2020 to be subject to the operational T proportionality challenge. I agree with that interpretation. U U V V  - 85 - A A B B C 299. In effect, the defence are submitting that the decision to later C arrest defendants and the decision to prosecute as well as a conviction D D should be subject to a proportionality analysis, the four step test as set out E in the Hysan Development case. The prosecution reply to this is that if the E systemic challenge has failed and the criminalisation and sanctions of these F F 2 charges are constitutional then how can it be disproportionate for G defendants to then be arrested and prosecuted. G H H 300. I do not agree with Ms Po’s submission for the 6th and 8th I defendants that the last few words of paragraph 183 I have quoted above, I particularly the words “in a particular case if a charge is brought against a J J person.” can be interpreted to mean that that charge or the decision to K prosecute is open to an operational proportionality challenge and the K decision to prosecute should be examined. It just simply means if a person L L is charged and if there is a challenge, the court can assess the M proportionality by reference to the actual implementation or enforcement M taken that day on the facts and specific circumstances of that case. N N O 301. In the submissions from counsel to support their operational O challenge on the arrest, decision to prosecute and conviction there was P P reliance on police action or inaction before 18 August and on 18 August. Q None of the matters sought to be relied on were relevant to the charges Q themselves when I found the prosecution proved the charges beyond R R reasonable doubt but more importantly none of these matters relied on or S referred to restricted or limited the rights or freedoms of the defendants S relating to assembly or procession. T T U U V V  - 86 - A A B B The Arrest and Decision to Prosecute C C 302. I do not agree with the defence that these actions should be D D subject to a proportionality analysis. The systemic challenge has failed and E the relevant sections constitutional. The arrest was therefore lawful. If the E propriety, necessity and lawfulness of an arrest is questioned, that will be F F dealt with on the facts during the course of the criminal trial and not by a G constitutional challenge. G H H 303. Only if there have been restrictions limiting some I constitutional rights on an operational level would the court determine the I permissible extent of those restrictions applying the 4-step proportionality J J test. K K 304. With respect, I reject the submission that any subsequent L L arrest is a restriction on a fundamental right. It is suggested the whole M essence of an operational challenge means when a man is charged and M brought to court, the court looks at all the facts and applies the four step N N test. I do not agree that that is what the Court of Appeal meant or decided O in Leung Kwok Hung (No 2) 2020. O P P 305. In Hong Kong the decision to prosecute is governed by Q Article 63 of the Basic Law. The Department of Justice shall control Q criminal prosecutions, free from any interference. There are very few R R instances where the Judiciary will interfere with a decision to prosecute S unless it can either be demonstrated that the Department of Justice acted in S bad faith or in obedience to a political instruction. T T U U V V  - 87 - A A B B 306. I refer to the decision of Hartmann J (as he then was) in RV v C Director of Immigration (2008) 4 HKLRD 529 who considered in-depth C the question of whether it was appropriate to judicial review the Secretary D D for Justice’s prosecutorial decisions. He ultimately held that that control of E criminal prosecutions is amenable to judicial review but only to the very E limited extent that he described. Therefore, in a judicial review the court F F can determine whether the Secretary for Justice has, or has not, acted G within the limits of their constitutional power. G H H 307. Hartmann J only mentioned 3 particular situations where the I Secretary would be regarded as having acted outside the constitutional I limits and that would be if either acting in obedience to a political J J instruction, or in bad faith or there was rigid fettering of prosecutorial K discretion. However, that list was not exhaustive of the circumstances in K which judicial interference would be justified. It is essentially only in L L extremely rare situations would a court find a prosecutorial decision M unconstitutional. Otherwise, the court should not encroach on the right set M out in Article 63. N N O 308. I have been referred to James v DPP (2016) 1 WLR 2118 by O the prosecution. There it was held by the Appeal Court that it is no part of P P the function of a criminal trial court to rule upon a contention by reference Q to Articles 10 and 11 of the European Convention on Human Rights that Q the decision to prosecute was disproportionate, unless it was contended by R R the defendant that the decision to prosecute was an abuse of the court’s S process, itself an exceptional and limited remedy; and that, therefore, the S district judge had been right to refuse to consider the defendant’s T T submission that the decision to prosecute was disproportionate. U U V V  - 88 - A A B B C 309. The facts of that case are similar to the facts of this case. The C defence submits the decision to prosecute in relation to Articles D D guaranteeing similar freedoms here should be subject to proportionality E analysis. I disagree, that decision to prosecute is not an issue for this court E to deal with; the task of this court is to try the case on the evidence F F admissible in a criminal trial. G G 310. Therefore, unless the defendants are suggesting that the H H decision to prosecute was an abuse of the court’s process then it is not the I function of the court to decide whether that decision per se is I disproportionate. The same principle must apply to the submission that a J J conviction is disproportionate. K K CONCLUSION L L M 311. After a careful consideration of the submissions, I find no M matters raised by any of the defendants that can constitute arguable N N grounds for an operational proportionality challenge. Accordingly, the O constitutional challenge of both s17A(3)(b)(i) and s17A(3)(a) of the POO O on an operational level must fail. P P Q IN SUMMARY Q R R 312. I have found after trial the prosecution able to prove beyond S reasonable doubt that all of the defendants together organised what S amounted to an unauthorised assembly on 18 August 2019. At the same T T U U V V  - 89 - A A B B time, the prosecution has proved beyond reasonable doubt that they all C knowingly participated in that unauthorised assembly. C D D 313. Accordingly, and despite the clear records of all bar the 4th E defendant, I find the 1st, 2nd, 3rd, 4th, 5th, 6th and 8th defendants guilty of both E Charges 1 and 2. F F G 314. I did go on to consider the constitutional challenges. The G systemic challenge fails for the sole reason that this court is bound by the H H decision made by the Court of Final Appeal in Leung Kwok Hung 2005. I The constitutionality of s17A was decided in that authority and a binding I precedent. J J K 315. The operational challenge fails for the sole reason that there K were no matters relied upon by the defendants that could constitute good L L and arguable grounds for an operational proportionality analysis as M envisaged by the Court of Appeal in Leung Kwok Hung (No 2) 2020. M N N 316. The decision to prosecute remains the sole authority of the O Department of Justice according to the Basic Law; there were no grounds O raised to justify an interference with that decision. P P Q Q R R S S ( A J Woodcock ) T T District Judge U U V V