DCCC536/2020 HKSAR v. LAI CHEE YING AND OTHERS - LawHero
DCCC536/2020
區域法院（刑事）Her Honour Judge A J Woodcock15/4/2021[2021] HKDC 457
DCCC536/2020
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DCCC 536/2020
C [2021] HKDC 457 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 536 OF 2020
F F
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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 LEUNG YIU CHUNG (D7) M
LEE CHU MING MARTIN (D8)
N N
AU NOK HIN (D9)
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P P
Before: Her Honour Judge A J Woodcock in Court
Q Date: 16 April 2021 Q
Present: Ms Priscilia T Y Lam, Counsel on Fiat, Ms Karen Ng, Senior
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Public Prosecutor (Ag) and Mr Edward Lau, Public
S Prosecutor, for HKSAR/Director of Public Prosecutions S
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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
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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
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Mr Ambrose Ho, S C leading Isaac C K Chan instructed by
G Ho Tse Wai & Partners for the 3rd defendant G
Mr Hectar H Pun, S C leading Mr Anson Wong Yu Yat
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instructed by Kenneth Lam Solicitors, assigned by the
I Director of Legal Aid, for the 4th defendant I
Mr Graham Harris, S C and Mr Lawrence Lok, S C leading
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Ms Po Wing Kay, Mr Geoffrey Yeung and Mr Simon Kwok
K instructed by Ho Tse Wai & Partners for the 6th & 8th K
defendants
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Mr Paul Harris, S C leading Ms Jacqueline H Y Lam,
M instructed by K B Chau & Co for the 7th defendant M
Mr Man Ho Ching of Ho Tse Wai & Partners for the 9th
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defendant
O Offence: [1] Organizing an unauthorized assembly（組織一個未經批 O
P
准集結） P
[2] Knowingly taking part in an unauthorized assembly（明
Q Q
知而參與未經批准集結）
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S S
REASONS FOR SENTENCE
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C 1. I delivered my verdict on 1 April 2021 and convicted all C
defendants except D7 and D9 after trial of organising an unauthorised
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assembly under section 17A(3)(b)(i) and knowingly taking part in an
E unauthorised assembly under section 17A(3)(a) of the Public Order E
Ordinance, Cap 245, Charges 1 and 2.
F F
G 2. D9 had indicated his intention to plead guilty to these 2 G
charges at the earliest opportunity and I convicted him after his plea on the
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1st day of trial. His mitigation and sentence was adjourned until the end of
I the trial. I
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3. D7 indicated his plea of guilty to charge 2 after the trial was
K set down but before the 1st day commenced. The prosecution did not K
proceed with charge 1 and it was kept on the court file. D7 was convicted
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of charge 2 on the 1st day of trial. His mitigation and sentence was
M adjourned until the end of the trial. M
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The facts
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4. My findings of fact are set out in full in my verdict. I do not
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intend to repeat the facts of the case nor my findings.
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5. I found that the defendants had organised and knowingly
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taken part in a public procession from Victoria Park to Chater Road Central
S on 18 August 2019 when that public procession had been objected to by S
the Commissioner of Police and that objection upheld by a subsequent
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Appeal Board hearing.
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C 6. I found the public procession constituted an unauthorised C
assembly by consisting of more than 30 people and being organised for a
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common purpose which was to “stop the police and gangsters from
E plunging Hong Kong into chaos, implement the 5 demands”. E
F F
7. All the defendants organized and formed the head of a
G procession carrying a long banner displaying the common purpose and led G
thousands of participants from Victoria Park at about 3pm to walk to
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Chater Road. The timing of it and the route they took mirrored the public
I procession banned by the Commissioner of police. I
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8. I found the defendants deliberately defied the law and
K circumvented the ban by alleging they acted on the invitation and K
instructions of the organisers of the authorised public meeting in Victoria
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Park, the Civil Human Rights Front, the CHRF, to assist in their dispersal
M plan of participants. The CHRF had described their method of dispersal of M
participants as a water flow meeting for the sole purpose of facilitating the
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ingress and egress of participants only.
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9. I found the defendants had no reasonable excuse or lawful
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authority for taking part in an unauthorised assembly. I found no evidence
Q of police tacit consent or implied authority for the CHRF to handle the Q
dispersal of participants in this manner.
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S 10. I found it was not a dispersal plan implemented with the S
assistance of the defendants but a planned unauthorised assembly to
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challenge the authority of the Police. It was planned in advance,
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announced in advance but those interviewed stopped short of admitting a
C plan to break the law. Nevertheless, what was said very publicly before C
the 18 August and what was organised on 18 August was irrefutable
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evidence when viewed as a whole of a premeditated intention to commit
E these offences. E
F F
11. This intention was succinctly verbalised by a Hong Kong-
G based singer and actress interviewed by a news channel immediately after G
the banner was laid down by the defendants on Chater Road outside the
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Court of Final Appeal at what was declared as the end of the procession.
I In exhibit P35, a media outlet “HK01” interviewed this participant in the I
procession at 4:48pm and she explained the procession was a way to get
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around the ban.
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12. This interviewee said there was no choice but to use a
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different method if a public procession was not allowed. She said it
M showed how flexible and elastic Hong Kong people were if banned. It was M
not a public procession but only people leaving Victoria Park. She was not
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speaking for the defendants but it shows a participant knew it was not a
O dispersal plan for safety reasons. O
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13. I found the unauthorised assembly caused citywide traffic
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disruptions and road closures far beyond the vicinity of Victoria Park and
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the authorised public meeting. The evidence I accepted which was not R
disputed showed road closures late into the evening that would have
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affected traffic and road users. Many forms of public transport were either
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disrupted or diverted on both sides of the Harbour. T
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14. The Constitutional challenges on a systemic and operational
C level also failed. There was no successful challenge to the constitutionality C
of section 17A or its sanctions. There was no action taken on the day by
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the police that was excessive or without tolerance in mind.
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15. I have heard full mitigation on behalf of all the defendants.
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The reality is that for all of these defendants before me, bar none, their
G reputations and careers are well known to all in Hong Kong. Many have G
provided me with a significant number of mitigation letters. I have read
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and taken them into account.
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Background information of the defendants
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K The 1st defendant K
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16. The 1st defendant is now 73 years old and has no previous
M convictions. He was born in the Mainland and came to Hong Kong as a M
teenager by himself. He started from humble beginnings working as a
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handyman in a factory to become a self-made and successful businessman.
O He founded the retail brand Giordano. He sold his shares in that to focus O
on the media industry in the 1990s. He had by then founded “Next Digital
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Ltd” which later listed on the Hong Kong stock exchange. His mitigation
Q submitted is at MFI-10. Q
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17. He is married with 6 children and many grandchildren. In
S mitigation I have been urged to take into account that he has through his S
businesses made significant contributions to the media industry and the
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economy in Hong Kong. His more advanced age has been stressed as well
C as several medical conditions controlled by medication. C
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The 2nd defendant
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18. The 2nd defendant is 64 years old and has no previous
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convictions. He graduated from the University of Hong Kong in 1978 with
G a bachelor of civil engineering degree. He was a politician and was a G
serving member of the legislature for many years.
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I 19. He founded and is still connected to the Labour Party. He is I
now the general secretary of the Hong Kong Federation of Trade Unions
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and vice chairman of the Labour Party. His background and career in public
K service was provided to me in mitigation in open court. K
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The 3rd defendant
M M
20. The 3rd defendant is 73 years old and she has no previous
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convictions. She is a barrister and politician who devoted 18 years to
O public service and the legal functional constituency. She is also a well- O
known journalist and author in Hong Kong. After retirement from the
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legislative Council in 2012 she dedicated her time to fighting for racial
Q equality, serving the underprivileged, ethnic minorities and in particular, Q
seeking equitable education for ethnic minority children.
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S 21. To pursue those aims and give her time to those causes, the S
3rd defendant has been a member and then Chair of the Executive
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Committee of Hong Kong Unison. I have had many letters of mitigation
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from highly respected members of the Hong Kong community. They make
C for impressive reading. Her mitigation submitted is at MFI-11. C
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22. She decided to discharge her legal representatives before
E mitigation and spoke for herself. I have taken on board all she has said. A E
copy of what she said is at MFI-11A.
F F
G The 4th defendant G
H H
23. The 4th defendant is now 65 years old. He too has been a
I member of the legislative Council for 12 years. He has many previous I
convictions, 17 in total with 3 similar to charges 1 and 2. All his other
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criminal convictions involve offences of a similar nature and many relate
K to public order offences. None of his previous convictions were offences K
motivated by greed, corruption, anger or dishonesty.
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M 24. I have had sight of a radiologists report detailing the results of M
a calcium scoring and CT coronary angiography. There is no medical
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diagnosis obviously in this report but I have been told that two out of three
O heart blood vessels have blockages and he is on medication now. His O
mitigation submitted is at MFI-12.
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Q Q
The 5th defendant
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th
25. The 5 defendant is now 66 years old and she has no previous
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convictions. She is a former legislator with many years’ service as well as
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a founding member of the Labour Party. She was appointed a Justice of the T
Peace in 2014. She too has devoted years to public service and I have had
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sight of numerous letters containing details of her commitment and support
C of many diverse sectors of society, from education resources for C
underprivileged children to sexual inequality. Her mitigation submitted is
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at MFI-13.
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The 6th defendant
F F
G 26. The 6th defendant is now 69 years old and has no previous G
convictions. He is a solicitor and founder of his own firm as well as a
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seasoned politician. He too is a former district councillor and legislative
I councillor with over 20 years’ service and has been a core member of the I
Democratic party.
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K 27. He has campaigned for democracy and human rights for K
nearly 40 years and it is stressed always in a peaceful, rational and
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nonviolent manner. In written submissions the full details of his long career
M and commitment to public service is set out succinctly. His mitigation M
submitted is at MFI-14.
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O The 7th defendant O
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th
28. The 7 defendant is now 67 years old, pleaded guilty to charge
Q 2 and has no previous convictions. He has served a lifetime of community Q
and public service. The mitigation bundle prepared is detailed and contains
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a chronology of his career as a teacher, district board member then a
S member of the legislative Council. His contributions to Hong Kong and S
his campaigning for the underprivileged and minority groups are well-
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known. I have read the many impressive letters written on his behalf by
C respectable members of Hong Kong society from all walks of life. C
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29. The defendant is not a man who advocates violence. This is
E illustrated by a video of news footage of 1st July 2019 (Annex 3 of his E
mitigation bundle MFI-15) where he tries to get between rioters trying to
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break the glass doors of LEGCO. He opposed the attempt to enter the
G Legislative Council and tried to stop the crowds by standing in front of the G
glass doors but is bundled aside by black clad rioters.
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I The 8th defendant I
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30. The 8th defendant is 2 months’ shy of 83 years old and has no
K previous convictions. He is a leading Senior Counsel and served as the K
Chairman of the Hong Kong Bar Association. He is infamous for his
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distinguished legal career and pro bono work. He served as a member of
M the Hong Kong Basic Law Drafting Committee. He was one of the longest M
serving members of the Legislative Council; a service of over 22 years.
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O 31. He has devoted much time and effort in serving the public and O
his constituency. He, like all the defendants here, is committed and
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dedicated to democracy and human rights. His mitigation submitted is at
Q MFI-14. Q
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The 9th defendant
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32. The 9th defendant is now 33 years old and had no previous
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convictions at the time of the offence. I repeat he indicated his plea of
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guilty at the very earliest opportunity. He was a district councillor for 8
C years and briefly a member of the Legislative Council as well as a lecturer C
in many tertiary educational institutions in Hong Kong. There are many
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letters of mitigation from friends and colleagues; they stress his public and
E community service should not be ignored. Many stress his peaceful, non- E
violent approach and principles. It is submitted his academic and social
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achievements are especially noteworthy as he is only 33 years old.
G G
33. His substantial efforts in pursuing a career in academia and
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politics appear to be fading with his recent conviction of assaulting a police
I officer and other pending criminal charges. In his own mitigation letter he I
explains why he pleaded guilty, why he will no longer seek a career in
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politics and how he will seek to rebuild his life away from political activism.
K His mitigation submitted is at MFI-16. K
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Mitigation
M M
34. I have heard full mitigation in open court and have the benefit
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of submissions prepared by counsel and need not set it out here.
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35. All defendants submit that these charges and facts do not call
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for a custodial sentence. There are no guidelines or tariffs for sentencing
Q these charges involving unauthorised assemblies. It has been suggested Q
that previous cases with similar charges have attracted financial penalties.
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S 36. The call for a financial penalty is supported by the submission S
that the procession was peaceful with no violent incidents or conflicts
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arising. Severe sanctions are inappropriate and disproportionate. The
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disruption to the roads and public transport system was not severe nor
C wholly related to the unauthorised assembly. Much of the traffic C
congestion around Victoria Park was related to the authorised public
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meeting.
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Principles of Sentencing
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G 37. It is correct there are no prevailing guidelines or tariffs for G
sentences for the present charges. The great majority of the past cases with
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similar offences do either involve a bind over order or a financial penalty
I but none of those cases I have been referred to by the defence stem from I
the social unrest and turmoil of 2019 or anything like it.
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K 38. Public order offences have been established as an exception K
to the general principle that a deterrent sentence should not be passed on a
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person with a clear record and I have referred myself to page 13 of R v
M Nguyen Quang Thong & Ors (1992) 2 HKCLR 10. All defendants here M
but the 4th defendant had a clear record.
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O 39. I have been referred to reasons for judgement arising from O
HKSAR v Chow Ting HCMA 374/2020, a bail application pending a
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magistracy appeal. I thank the prosecution for a translation of those reasons.
Q There, Barnes J refused bail pending appeal for the applicant Chow Ting. Q
She had been sentenced to 10 months’ imprisonment for incitement to
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knowingly take part in an unauthorised assembly and knowingly taking
S part in an unauthorised assembly. S
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40. The facts of that case are set out in those reasons for
C judgement and involve large crowds of protesters gathering first in the C
vicinity of the Central Government Offices on 21 June 2019 before more
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crowds proceeded to besiege the Police Headquarters. That was a day that
E ended in violence, conflict, damage to property, an attack on the police E
headquarters itself and its operation as well as severe traffic disruption until
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the early hours of the morning.
G G
41. The relevance of that case and the reasons for judgement is
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because the learned Magistrate referred to the sentencing considerations
I and factors set out in the Secretary for Justice v Wong Chi Fung 2018 2 I
HKLRD 699; sentencing guidelines for offences of unlawful assembly.
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K 42. Barnes J was only concerned with the application for bail K
pending appeal and not the appeal itself which is still to be heard but she
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did state the reasons why she found the applicant had failed to demonstrate
M that her appeal had a very high or reasonable prospect of success. M
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43. More importantly, and relied on heavily by the prosecution
O here is that she agreed with the learned magistrate and found nothing wrong O
with her “drawing on” the sentencing factors in Wong Chi Fung when
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deciding a custodial sentence was appropriate for an unauthorized
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assembly and said it was clearly far from being wrong in principle.
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44. Wong Chi Fung was an application for review for offences
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relating to unlawful assemblies. In the context of unlawful assemblies
T
involving violence, it was held by the court that the sentencing court’s main T
consideration is the punishment of the offender, as well as deterring others
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from breaking the law in a similar manner. These are the weighty factors
C and the offender’s personal circumstances will not be regarded as C
significant mitigation. The Court of Final Appeal endorsed those
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observations in Secretary for Justice v Wong Chi Fung (2018) 21
E HKCFAR 35. E
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45. The Court of Appeal found it necessary to expound on the
G principles on sentencing in unlawful assemblies that involved violence. In G
paragraph 108 Poon JA, as he then was, set out the sentencing principles
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applicable to the charges. Particularly, in paragraph 127 he stressed that
I the sentence imposed must be appropriate to the punishment of the I
offenders but also takes into account the factor of deterrence on the basic
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premise that public order must be maintained and reflects the gravamen of
K the offence of unlawful assembly. K
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46. In paragraph 135 he identified facts relevant and pertinent to
M unlawful assembly offences involving violence. But before that Poon JA M
discussed not only unlawful assembly involving violence but also unlawful
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assembly involving no actual violence.
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47. In the judgement of Secretary for Justice v Chung Ka Ho
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CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen
Q from Wong Chi Fung that cases that warrant the courts serious treatment Q
include an unlawful assembly without actual violence, which could
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become imminent, given the overall circumstances. Essentially, the Court
S of Appeal said it is artificial and unreasonable to divide unlawful S
assemblies by violence when passing sentence; it all depends on the actual
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circumstances in each case. Equally, the Court of Appeal did not say
C deterrent sentences should not be imposed in the absence of actual violence. C
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48. The Court of Appeal in Chung Ka Ho at paragraph 55 point
E out that the factors identified by Poon JA in paragraph 135 in Wong Chi E
Fung can if adjusted, apply equally to unlawful assemblies with no
F F
violence. Therefore, it is not right to suggest that the judgement in Wong
G Chi Fung is solely applicable to unlawful assembly involving violence. G
H H
49. Although Wong Chi Fung involved an unlawful assembly
I involving violence, Barnes J saw nothing wrong with the magistrate I
drawing on the sentencing considerations because the charges in both
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Wong Chi Fung and Chow Ting were contrary to the Public Order
K Ordinance. Secondly the maximum penalty for those offences in those K
cases were the same. Thirdly both cases were of a similar nature in that
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they involved crowd gatherings and lastly those demonstrations and
M gatherings arose from social issues. M
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50. Although this case before me involves an unauthorised
O assembly on 18 August, if I take into account the overall circumstances, O
the social unrest witnessed from June 2019 that was as relentless as it was
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violent and disturbing then I find I can and should consider sentencing
Q principles such as protecting the public, meting out penalties, open Q
condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I
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too can draw on the sentencing principles in that authority but bear in mind
S these charges involve an unauthorised not an unlawful assembly. S
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51. The facts of this case and offences affected the public;
C members of the public not participating. There was widespread traffic and C
public transport disruption. By identifying as a principle “meting out
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penalties”, the Court of Appeal were reiterating the obvious and that is any
E sentence imposed ought to be commensurate with the offence committed. E
One that reflects the seriousness of the offence and the culpability of the
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offender. The open condemnation factor is self-explanatory, the sentence
G ought to reflect the social disapproval of the offence and the criminal G
conduct of the offender.
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I 52. The factor of deterrence serves as a warning to others and I
prevents the offender from reoffending. The need for deterrent sentences
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cannot be limited to an unlawful assembly or more serious public order
K offences. The need to consider a deterrent sentence will often depend on K
the prevailing circumstances at the time. In fact, all sentencing principles
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applied to determine an appropriate sentence should take into account the
M prevailing tumultuous situation of 2019. M
N N
53. The fact that I draw on the aforesaid sentencing principles
O O
does not mean I am retrospectively imposing a more severe sentence based
P
on new sentencing guidelines from the Court of Appeal in Wong Chi Fung. P
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Reasons for Sentence
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54. I repeat here as I said in my verdict that the Basic Law
S S
guarantees freedom of assembly, procession and demonstration for Hong
T Kong residents. However, these rights are not absolute and are subject to T
restrictions ruled constitutional. Those freedoms are enjoyed subject to
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those restrictions irrespective of a defendant’s politics. The common
C purpose of the procession as well as the politics and stance of any C
participant that day on 18 August 2019 are irrelevant to sentencing just as
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they were irrelevant to the legal issues that arose during the trial.
E E
55. This unauthorised procession did proceed peacefully but we
F F
know from experience, in particular in those volatile months in 2019 that
G when a large number of demonstrators gather, emotions are likely to run G
high which means those situations have an inherent latent risk of breaking
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out into violence.
I I
56. We know from the prosecution witnesses that the police were
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most concerned that unruly elements may be present amongst peaceful
K protesters who would seize the opportunity to achieve the very objective K
of inciting or brewing violence. The police then decided to be invisible so
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as not to provide an opportunity or an excuse for conflict.
M M
57. The present case involved a direct challenge to the authority
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of the police, law and order. The Commissioner of Police had banned a
O public procession and a 2nd public meeting but authorised a meeting in O
Victoria Park. In a police conference an explanation was given why
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consent was not forthcoming to the CHRF.
Q Q
R
58. Yet, despite that and the risk above, the defendants went on to R
organise it; all defendants were well known figures that together as the
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head of a procession were guaranteed to draw a crowd and followers.
T
Influential people can draw a crowd and can wield a certain influence. T
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59. The fact that these particular defendants made a conscious
C decision to break the law and challenge public order in this manner during C
such volatile times was serious. That I find an aggravating factor or the
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gravamen of these facts I found proved. Actions have consequences for
E everyone irrespective of who they are. This is more so when I have a duty E
in sentencing to ensure public order.
F F
G 60. In addition, I take into account the background behind the G
commission of these offences. I take into account my finding that the
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unauthorised assembly was premeditated with prior planning to thwart the
I police ban. It was made known that there was a plan to circumvent the ban I
despite calling the procession a dispersal plan or water flow meeting.
J J
There were many prior calls publicly for as many people as possible to jam
K pack Victoria Park and to participate in this water flow meeting. It was no K
coincident that the dispersal plan mirrored the timing and route of the
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banned procession.
M M
61. The scale of the unauthorised assembly is relevant; the
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procession from Victoria Park to Chater Gardens was on a massive scale
O and long-lasting. That is notwithstanding I accept there would have been O
disruptions in the vicinity of Victoria Park from the authorized public
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meeting. Moreover, as I have noted above, taking into account the
Q circumstances prevailing in Hong Kong at that time, a procession of that Q
size posed an inherent latent risk of possible violence.
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S 62. Therefore, the procession may have been peaceful but there S
was a significant degree of disruption to roads for hours and public
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transport routes that stretched across the harbour.
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C 63. As a result, and after careful consideration of the above C
principles and factors as well as submissions in mitigation, an immediate
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term of imprisonment is the only appropriate sentencing option.
E E
64. The fact all but the 7th and 9th defendant were convicted after
F F
trial as well as being a premeditated and direct challenge to law and order
G when emotions were running so high in Hong Kong means a community G
service order would not be appropriate.
H H
I 65. The background and facts of this case call for a custodial I
sentence. I have referred myself to Wong Chi Fung at paragraph 172 where
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what Pang JA said is applicable to this case and the circumstances that were
K K
prevailing in Hong Kong at that time. That is even though the charge there
L
was more serious. I quote; L
“172. I agree with the judgements of Yeung VP and Poon JA.
M M
The more one feels about an issue, the more one wishes to press
one’s point and the more one desires that there should be
N progress in the matter. This is all very understandable. N
However, if in the course of advocating one’s demand, one is
given to the position that some long and well established law is
O O
but an unreasonable restriction on the right to freedom of
expression, plus indulging one in the self-satisfaction of having
P broken the law as one pleases, that is not a situation which P
would on any ground enable the courts to pass unduly lenient
sentences. An offender who is inflicted with such an attitude not
Q only breaks the law in conduct, but in his mind too he harbours Q
contempt and regards himself as being above the law. With
R
respect to controversial matters of public debate where R
emotions are easily stirred, the grave consequences of such an
attitude gaining ground are self-evident…”
S S
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66. I have taken into account the facts, the mitigation and all
C submissions put forward on behalf of all defendants. I have reminded C
myself that the starting point for each charge must be commensurate with
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the offence committed. Deterrent sentences must prevail here and
E therefore; personal individual mitigation may not carry much weight unless E
exceptional.
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G 67. Having said that, where applicable and because it was a G
peaceful assembly, the positive good character of some defendants, the
H H
even more significant and worthy public service from others will be taken
I into account. It is impossible to list the individual significant commitment I
and contributions of some to the law, society, children, the underprivileged,
J J
minority groups, education issues, sexual and racial equality but it is
K weighty. K
L L
68. I also say here that I intend to make the sentences for Charges
M 1 and 2 concurrent for every defendant in light of the facts, close nature of M
the charges and totality principle.
N N
O
Charge 1 – Starting Point O
P P
69. To arrive at an appropriate starting point for charge 1,
Q organising an unauthorised assembly, I do differentiate between some of Q
the defendants. I made it clear in my verdict that the evidence showed that
R R
the 2nd, 4th and 9th defendant appeared at press conferences, either
S immediately after the CHRF appeal was dismissed or the following day, S
17 August 2019, in Victoria Park and were very vocal. I won’t repeat what
T T
they said but I found they encouraged crowds to come to “jam pack”
U U
V V
- 21 -
A A
B B
Victoria Park and insinuated there would be a procession out of there
C despite the police ban. What they and in particular, the 4th defendant had C
to say almost amounted to a rallying cry.
D D
E 70. After all relevant factors are taken into consideration, in my E
judgement, for the 2nd, 4th and 9th defendant a starting point of 18 months’
F F
imprisonment is appropriate.
G G
71. For the remaining defendants, in my judgement, a starting
H H
point of 15 months’ imprisonment is appropriate.
I I
Charge 2 - Starting Point
J J
K 72. I find all defendants equally culpable in knowingly taking part K
in this unauthorised assembly. It is true some walked in silence, some
L L
replied to political slogans and others took the lead to chant those slogans
M but I do not differentiate between them for the purposes of this offence. M
N N
73. After all relevant factors are taken into consideration, in my
O judgement, a starting point of 12 months’ imprisonment is appropriate. O
P P
Reductions
Q Q
74. I am aware that a clear record is not significant mitigation
R R
where public order offences are concerned nor are personal mitigating
S circumstances where deterrent sentences are to be imposed. Nevertheless, S
in light of the more advanced ages of most of the defendants here and their
T T
U U
V V
- 22 -
A A
B B
public service to Hong Kong, I cannot ignore this type of mitigation
C altogether. C
D D
The 1st defendant
E E
75. I have considered his age, clear record and health issues. The
F F
1st defendant is given a three-month reduction from the 15 months and 12
G months of charges 1 and 2 respectively. G
H H
76. Therefore, the 1st defendant is sentenced to 12 months’
I imprisonment for charge 1 and 9 months’ imprisonment for charge 2, to be I
served concurrently; a total of 12 months’ imprisonment.
J J
K The 2nd defendant K
L L
77. I have considered his age and clear record. For that, the 2nd
M defendant is given a three-month reduction from the 18 months and 12 M
months of charges 1 and 2 respectively.
N N
O 78. From information provided today, I have considered his O
commitment and contribution to public service especially where the
P P
welfare of workers is concerned. Such service deserves recognition and for
Q that I give the 2nd defendant a further discount of 3 months. Q
R R
79. Therefore, the 2 nd
defendant is sentenced to 12 months’
S imprisonment for charge 1 and 6 months’ imprisonment for charge 2, to be S
served concurrently; a total of 12 months’ imprisonment.
T T
U U
V V
- 23 -
A A
B B
The 3rd defendant
C C
80. I have considered her age of 73, clear record as well as her
D D
exceptional and obvious commitment over decades to public service. Not
E only is she a person of positive good character, but an altruist; her E
dedication to the community when a legislator and in her retirement is
F F
worthy of note. I am impressed by the letters referring to her lifelong
G dedication and contributions. G
H H
81. Against that background of her age and exceptional public
I service, I find there to be valid reason and justification to suspend the terms I
of imprisonment I have imposed. I first reduce the 15 months of charge 1
J J
and 12 months of charge 2 by 3 months.
K K
82. After that reduction is applied, the 3rd defendant is sentenced
L L
to 12 months for charge 1 and 9 months for charge 2. Both to be served
M concurrently. Both those sentences are suspended for 24 months. M
N N
rd
83. Therefore, the 3 defendant is sentenced to a total of 12
O
months’ imprisonment suspended for 24 months. O
P P
84. The 3rd defendant is warned that if she is convicted of an
Q Q
offence punishable by imprisonment in the following 24 months from
R today then she will most certainly serve this twelve-month term of R
imprisonment.
S S
T The 4th defendant T
U U
V V
- 24 -
A A
B B
85. I have considered his age and health. It appears his ailment is
C under control with medication; I am not informed otherwise. The 4th C
defendant has a good number of previous convictions; he does not have the
D D
benefit of a clear record. However, I have considered the nature of his
E previous convictions and do not impose a heavier sentence on the 4th E
defendant on account of his criminal record.
F F
G 86. What it does mean is that I see no reason to reduce the G
sentences any further. Therefore, for the reasons given, the 4th defendant is
H H
sentenced to 18 months’ imprisonment for charge 1 and 12 months’
I imprisonment for charge 2, to be served concurrently; a total of 18 months’ I
imprisonment.
J J
K The 5th defendant K
L L
87. I have considered her age and clear record. The 5th defendant
M is given a three-month reduction from the 15 months and 12 months of M
charges 1 and 2 respectively.
N N
O 88. From the information I have, she too can be described as a O
person of positive good character. By that I mean she has devoted many
P P
years to public service and I have had sight of letters containing details of
Q her commitment. Such commitment does deserve recognition and I reduce Q
the sentences by a further 4 Months.
R R
S 89. Therefore, the 5th defendant is sentenced to 8 months’ S
imprisonment for charge 1 and 5 months’ imprisonment for charge 2, to be
T T
served concurrently; a total of 8 months’ imprisonment.
U U
V V
- 25 -
A A
B B
C The 6th defendant C
D D
90. I take into account the 6th defendant is nearly 70 years old with
E a clear record. Like so many others here, he has had a long history of public E
service and can be described as a person of positive good character. His
F F
biography sets out his long career and commitment to the community. I
G accept the submission he has always acted in a peaceful, rational and G
nonviolent manner. Even though he has been physically attacked twice in
H H
2006 and 2019 for his politics he did not let it deter him.
I I
91. Again, his commitment does deserve recognition and
J J
although his service and therefore positive good character may not be as
K notable and exceptional as the 3rd and 8th defendant, I find there to be valid K
reason and justification to suspend the terms of imprisonment I have
L L
imposed.
M M
92. For that and his age, I first reduce the 15 months of charge 1
N N
and 12 months of charge 2 by 3 months. After that reduction is applied, the
O O
6th defendant is sentenced to 12 months for charge 1 and 9 months for
P
charge 2. Both to be served concurrently. P
Q Q
93. Both these sentences are suspended for 24 months. Therefore,
R the 6th defendant is sentenced to a total of 12 months’ imprisonment R
suspended for 24 months.
S S
T The 7th defendant T
U U
V V
- 26 -
A A
B B
94. The 7th defendant pleaded guilty to charge 2 only. It was not
C at the earliest opportunity and I have taken into account the authority of C
HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and will apply a discount of
D D
25% to the starting point of 12 months for his plea. This reduces the starting
E point to 9 months’ imprisonment. E
F F
95. That discount for a guilty plea has an allowance for a clear
G record built into it. Unless there is more, then there should be no further G
discount for a clear record. However, I will give the 7th defendant a further
H H
1-month reduction for his age.
I I
96. Not only is he a person of clear record but also of positive
J J
good character. He showed uncompromising dedication to the community
K as a legislator. I am impressed by the so many letters referring to his K
lifelong commitment and contributions. He has worked tirelessly for so
L L
many different causes and different groups ranging from women’s groups,
M the elderly, the blind, the rehabilitation of prisoners to assistance for M
children with special educational needs and even successfully campaigning
N N
for the presence of doctors in hospital delivery rooms at night to ensure the
O safety of mothers in labour and newborns. O
P P
97. Against that exceptional background and the biography
Q provided, I find there to be a valid reason and justification to suspend the Q
term of imprisonment I have imposed.
R R
S 98. Therefore, for Charge 2, the 7th defendant is sentenced to a S
total of 8 months’ imprisonment suspended for 12 months.
T T
U U
V V
- 27 -
A A
B B
99. The 7th defendant is warned that if he is convicted of an
C offence punishable by imprisonment in the following 12 months from C
today then he will most certainly serve this 8-month term of imprisonment.
D D
E The 8th defendant E
F F
100. The 8th defendant is nearly 83 years old. Not only is he a
G person of positive good character but his dedication to the community as a G
legislator is without doubt and well-known. I am impressed with the
H H
biography prepared which demonstrated his commitment to work for and
I his devotion to the betterment of Hong Kong. I
J J
101. Against that background of his age and exceptional public
K service, I find there to be valid reason and justification to suspend the terms K
of imprisonment I have imposed. I first reduce the 15 months of charge 1
L L
and 12 months of charge 2 by 4 months to reflect his age.
M M
102. After that reduction is applied, the 8th defendant is sentenced
N N
to 11 months for charge 1 and 8 months for charge 2. Both to be served
O concurrently. Both those sentences are suspended for 24 months. O
P P
103. Therefore, the 8th defendant is sentenced to a total of 11
Q Q
months’ imprisonment suspended for 24 months.
R R
104. The 8th defendant is warned that if he is convicted of an
S S
offence punishable by imprisonment in the following 24 months from
T today then he will most certainly serve this 11-month term of T
imprisonment.
U U
V V
- 28 -
A A
B B
C The 9th defendant C
D D
105. The 9th defendant pleaded guilty at the earliest opportunity to
E both charges. He is entitled to a discount of one-third and after that discount E
is applied, the starting points are reduced to 12 months for charge 1 and 8
F F
months for charge 2.
G G
106. He is a young man who unlike most of the defendants here
H H
was only beginning to develop his career; in particular, a career in
I academia. He tells me that that dream will be hard to pursue now in light I
of his present circumstance and recent convictions.
J J
K 107. Although he is only 33 he has already served as a district K
councillor for 8 years. There are many letters of mitigation from friends
L L
and colleagues who stress his contributions to public and community
M service so far should not be ignored. M
N N
108. I agree. The 9th defendant is given a further 2 months’
O discount to reflect and recognise that contribution. O
P P
109. Therefore, he is sentenced to 10 months’ imprisonment for
Q charge 1 and 6 months’ imprisonment for charge 2, to be served Q
R
concurrently; a total of 10 months’ imprisonment. R
S S
T T
U U
V V
- 29 -
A A
B B
Conclusion
C C
110. Charge 1
D D
1st defendant sentenced to 12 months’ imprisonment.
E 2nd defendant sentenced to 12 months’ imprisonment. E
3rd defendant sentenced to 12 months’ imprisonment.
F F
4th defendant sentenced to 18 months’ imprisonment.
G 5th defendant sentenced to 8 months’ imprisonment. G
6th defendant sentenced to 12 months’ imprisonment.
H H
8th defendant sentenced to 11 months’ imprisonment.
I 9th defendant sentenced to 10 months’ imprisonment. I
J J
111. Charge 2
K 1st defendant is sentenced to 9 months’ imprisonment. K
2nd defendant sentenced to 6 months’ imprisonment.
L L
3rd defendant sentenced to 9 months’ imprisonment.
M 4th defendant sentenced to 12 months’ imprisonment. M
5th defendant sentenced to 5 months’ imprisonment.
N N
6th defendant sentenced to 9 months’ imprisonment.
O 7th defendant sentenced to 8 months’ imprisonment, O
suspended for 12 months.
P P
8 def sentenced to 8 months’ imprisonment.
th
Q 9th def sentenced to 6 months’ imprisonment. Q
R R
st nd th
112. Charges 1 and 2 to be served concurrently for the 1 , 2 ,4 ,
S 5th, 9th defendants. S
A total of 12 months for 1st defendant and 2nd defendant.
T T
th
A total of 18 months for 4 defendant.
U U
V V
- 30 -
A A
B B
A total of 8 months for 5th defendant.
C A total of 10 months for 9th defendant. C
D D
113. Charges 1 and 2 to be served concurrently for the 3 rd, 6th and
E 8th defendants and suspended for a term of 24 months. E
A total of 12 months suspended 24 months for the 3rd and 6th
F F
defendants.
G A total of 11 months suspended for 24 months for the 8 th G
defendant.
H H
I I
J J
K K
( A J Woodcock )
L District Judge L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 536/2020
C [2021] HKDC 457 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 LEUNG YIU CHUNG (D7) M
LEE CHU MING MARTIN (D8)
N N
AU NOK HIN (D9)
O ----------------------------- O
P P
Before: Her Honour Judge A J Woodcock in Court
Q Date: 16 April 2021 Q
Present: Ms Priscilia T Y Lam, Counsel on Fiat, Ms Karen Ng, Senior
R R
Public Prosecutor (Ag) and Mr Edward Lau, Public
S Prosecutor, for HKSAR/Director of 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 Isaac C K Chan instructed by
G 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 Graham Harris, S C and Mr Lawrence Lok, S C leading
J J
Ms Po Wing Kay, Mr Geoffrey Yeung and Mr Simon Kwok
K instructed by Ho Tse Wai & Partners for the 6th & 8th K
defendants
L L
Mr Paul Harris, S C leading Ms Jacqueline H Y Lam,
M instructed by K B Chau & Co for the 7th defendant M
Mr Man Ho Ching of Ho Tse Wai & Partners for the 9th
N N
defendant
O Offence: [1] Organizing an unauthorized assembly（組織一個未經批 O
P
准集結） P
[2] Knowingly taking part in an unauthorized assembly（明
Q Q
知而參與未經批准集結）
R R
-----------------------------------------
S S
REASONS FOR SENTENCE
T T
-----------------------------------------
U U
V V
-3-
A A
B B
C 1. I delivered my verdict on 1 April 2021 and convicted all C
defendants except D7 and D9 after trial of organising an unauthorised
D D
assembly under section 17A(3)(b)(i) and knowingly taking part in an
E unauthorised assembly under section 17A(3)(a) of the Public Order E
Ordinance, Cap 245, Charges 1 and 2.
F F
G 2. D9 had indicated his intention to plead guilty to these 2 G
charges at the earliest opportunity and I convicted him after his plea on the
H H
1st day of trial. His mitigation and sentence was adjourned until the end of
I the trial. I
J J
3. D7 indicated his plea of guilty to charge 2 after the trial was
K set down but before the 1st day commenced. The prosecution did not K
proceed with charge 1 and it was kept on the court file. D7 was convicted
L L
of charge 2 on the 1st day of trial. His mitigation and sentence was
M adjourned until the end of the trial. M
N N
The facts
O O
4. My findings of fact are set out in full in my verdict. I do not
P P
intend to repeat the facts of the case nor my findings.
Q Q
5. I found that the defendants had organised and knowingly
R R
taken part in a public procession from Victoria Park to Chater Road Central
S on 18 August 2019 when that public procession had been objected to by S
the Commissioner of Police and that objection upheld by a subsequent
T T
Appeal Board hearing.
U U
V V
-4-
A A
B B
C 6. I found the public procession constituted an unauthorised C
assembly by consisting of more than 30 people and being organised for a
D D
common purpose which was to “stop the police and gangsters from
E plunging Hong Kong into chaos, implement the 5 demands”. E
F F
7. All the defendants organized and formed the head of a
G procession carrying a long banner displaying the common purpose and led G
thousands of participants from Victoria Park at about 3pm to walk to
H H
Chater Road. The timing of it and the route they took mirrored the public
I procession banned by the Commissioner of police. I
J J
8. I found the defendants deliberately defied the law and
K circumvented the ban by alleging they acted on the invitation and K
instructions of the organisers of the authorised public meeting in Victoria
L L
Park, the Civil Human Rights Front, the CHRF, to assist in their dispersal
M plan of participants. The CHRF had described their method of dispersal of M
participants as a water flow meeting for the sole purpose of facilitating the
N N
ingress and egress of participants only.
O O
9. I found the defendants had no reasonable excuse or lawful
P P
authority for taking part in an unauthorised assembly. I found no evidence
Q of police tacit consent or implied authority for the CHRF to handle the Q
dispersal of participants in this manner.
R R
S 10. I found it was not a dispersal plan implemented with the S
assistance of the defendants but a planned unauthorised assembly to
T T
challenge the authority of the Police. It was planned in advance,
U U
V V
-5-
A A
B B
announced in advance but those interviewed stopped short of admitting a
C plan to break the law. Nevertheless, what was said very publicly before C
the 18 August and what was organised on 18 August was irrefutable
D D
evidence when viewed as a whole of a premeditated intention to commit
E these offences. E
F F
11. This intention was succinctly verbalised by a Hong Kong-
G based singer and actress interviewed by a news channel immediately after G
the banner was laid down by the defendants on Chater Road outside the
H H
Court of Final Appeal at what was declared as the end of the procession.
I In exhibit P35, a media outlet “HK01” interviewed this participant in the I
procession at 4:48pm and she explained the procession was a way to get
J J
around the ban.
K K
12. This interviewee said there was no choice but to use a
L L
different method if a public procession was not allowed. She said it
M showed how flexible and elastic Hong Kong people were if banned. It was M
not a public procession but only people leaving Victoria Park. She was not
N N
speaking for the defendants but it shows a participant knew it was not a
O dispersal plan for safety reasons. O
P P
13. I found the unauthorised assembly caused citywide traffic
Q Q
disruptions and road closures far beyond the vicinity of Victoria Park and
R
the authorised public meeting. The evidence I accepted which was not R
disputed showed road closures late into the evening that would have
S S
affected traffic and road users. Many forms of public transport were either
T
disrupted or diverted on both sides of the Harbour. T
U U
V V
-6-
A A
B B
14. The Constitutional challenges on a systemic and operational
C level also failed. There was no successful challenge to the constitutionality C
of section 17A or its sanctions. There was no action taken on the day by
D D
the police that was excessive or without tolerance in mind.
E E
15. I have heard full mitigation on behalf of all the defendants.
F F
The reality is that for all of these defendants before me, bar none, their
G reputations and careers are well known to all in Hong Kong. Many have G
provided me with a significant number of mitigation letters. I have read
H H
and taken them into account.
I I
Background information of the defendants
J J
K The 1st defendant K
L L
16. The 1st defendant is now 73 years old and has no previous
M convictions. He was born in the Mainland and came to Hong Kong as a M
teenager by himself. He started from humble beginnings working as a
N N
handyman in a factory to become a self-made and successful businessman.
O He founded the retail brand Giordano. He sold his shares in that to focus O
on the media industry in the 1990s. He had by then founded “Next Digital
P P
Ltd” which later listed on the Hong Kong stock exchange. His mitigation
Q submitted is at MFI-10. Q
R R
17. He is married with 6 children and many grandchildren. In
S mitigation I have been urged to take into account that he has through his S
businesses made significant contributions to the media industry and the
T T
U U
V V
-7-
A A
B B
economy in Hong Kong. His more advanced age has been stressed as well
C as several medical conditions controlled by medication. C
D D
The 2nd defendant
E E
18. The 2nd defendant is 64 years old and has no previous
F F
convictions. He graduated from the University of Hong Kong in 1978 with
G a bachelor of civil engineering degree. He was a politician and was a G
serving member of the legislature for many years.
H H
I 19. He founded and is still connected to the Labour Party. He is I
now the general secretary of the Hong Kong Federation of Trade Unions
J J
and vice chairman of the Labour Party. His background and career in public
K service was provided to me in mitigation in open court. K
L L
The 3rd defendant
M M
20. The 3rd defendant is 73 years old and she has no previous
N N
convictions. She is a barrister and politician who devoted 18 years to
O public service and the legal functional constituency. She is also a well- O
known journalist and author in Hong Kong. After retirement from the
P P
legislative Council in 2012 she dedicated her time to fighting for racial
Q equality, serving the underprivileged, ethnic minorities and in particular, Q
seeking equitable education for ethnic minority children.
R R
S 21. To pursue those aims and give her time to those causes, the S
3rd defendant has been a member and then Chair of the Executive
T T
Committee of Hong Kong Unison. I have had many letters of mitigation
U U
V V
-8-
A A
B B
from highly respected members of the Hong Kong community. They make
C for impressive reading. Her mitigation submitted is at MFI-11. C
D D
22. She decided to discharge her legal representatives before
E mitigation and spoke for herself. I have taken on board all she has said. A E
copy of what she said is at MFI-11A.
F F
G The 4th defendant G
H H
23. The 4th defendant is now 65 years old. He too has been a
I member of the legislative Council for 12 years. He has many previous I
convictions, 17 in total with 3 similar to charges 1 and 2. All his other
J J
criminal convictions involve offences of a similar nature and many relate
K to public order offences. None of his previous convictions were offences K
motivated by greed, corruption, anger or dishonesty.
L L
M 24. I have had sight of a radiologists report detailing the results of M
a calcium scoring and CT coronary angiography. There is no medical
N N
diagnosis obviously in this report but I have been told that two out of three
O heart blood vessels have blockages and he is on medication now. His O
mitigation submitted is at MFI-12.
P P
Q Q
The 5th defendant
R R
th
25. The 5 defendant is now 66 years old and she has no previous
S S
convictions. She is a former legislator with many years’ service as well as
T
a founding member of the Labour Party. She was appointed a Justice of the T
Peace in 2014. She too has devoted years to public service and I have had
U U
V V
-9-
A A
B B
sight of numerous letters containing details of her commitment and support
C of many diverse sectors of society, from education resources for C
underprivileged children to sexual inequality. Her mitigation submitted is
D D
at MFI-13.
E E
The 6th defendant
F F
G 26. The 6th defendant is now 69 years old and has no previous G
convictions. He is a solicitor and founder of his own firm as well as a
H H
seasoned politician. He too is a former district councillor and legislative
I councillor with over 20 years’ service and has been a core member of the I
Democratic party.
J J
K 27. He has campaigned for democracy and human rights for K
nearly 40 years and it is stressed always in a peaceful, rational and
L L
nonviolent manner. In written submissions the full details of his long career
M and commitment to public service is set out succinctly. His mitigation M
submitted is at MFI-14.
N N
O The 7th defendant O
P P
th
28. The 7 defendant is now 67 years old, pleaded guilty to charge
Q 2 and has no previous convictions. He has served a lifetime of community Q
and public service. The mitigation bundle prepared is detailed and contains
R R
a chronology of his career as a teacher, district board member then a
S member of the legislative Council. His contributions to Hong Kong and S
his campaigning for the underprivileged and minority groups are well-
T T
U U
V V
- 10 -
A A
B B
known. I have read the many impressive letters written on his behalf by
C respectable members of Hong Kong society from all walks of life. C
D D
29. The defendant is not a man who advocates violence. This is
E illustrated by a video of news footage of 1st July 2019 (Annex 3 of his E
mitigation bundle MFI-15) where he tries to get between rioters trying to
F F
break the glass doors of LEGCO. He opposed the attempt to enter the
G Legislative Council and tried to stop the crowds by standing in front of the G
glass doors but is bundled aside by black clad rioters.
H H
I The 8th defendant I
J J
30. The 8th defendant is 2 months’ shy of 83 years old and has no
K previous convictions. He is a leading Senior Counsel and served as the K
Chairman of the Hong Kong Bar Association. He is infamous for his
L L
distinguished legal career and pro bono work. He served as a member of
M the Hong Kong Basic Law Drafting Committee. He was one of the longest M
serving members of the Legislative Council; a service of over 22 years.
N N
O 31. He has devoted much time and effort in serving the public and O
his constituency. He, like all the defendants here, is committed and
P P
dedicated to democracy and human rights. His mitigation submitted is at
Q MFI-14. Q
R R
The 9th defendant
S S
32. The 9th defendant is now 33 years old and had no previous
T T
convictions at the time of the offence. I repeat he indicated his plea of
U U
V V
- 11 -
A A
B B
guilty at the very earliest opportunity. He was a district councillor for 8
C years and briefly a member of the Legislative Council as well as a lecturer C
in many tertiary educational institutions in Hong Kong. There are many
D D
letters of mitigation from friends and colleagues; they stress his public and
E community service should not be ignored. Many stress his peaceful, non- E
violent approach and principles. It is submitted his academic and social
F F
achievements are especially noteworthy as he is only 33 years old.
G G
33. His substantial efforts in pursuing a career in academia and
H H
politics appear to be fading with his recent conviction of assaulting a police
I officer and other pending criminal charges. In his own mitigation letter he I
explains why he pleaded guilty, why he will no longer seek a career in
J J
politics and how he will seek to rebuild his life away from political activism.
K His mitigation submitted is at MFI-16. K
L L
Mitigation
M M
34. I have heard full mitigation in open court and have the benefit
N N
of submissions prepared by counsel and need not set it out here.
O O
35. All defendants submit that these charges and facts do not call
P P
for a custodial sentence. There are no guidelines or tariffs for sentencing
Q these charges involving unauthorised assemblies. It has been suggested Q
that previous cases with similar charges have attracted financial penalties.
R R
S 36. The call for a financial penalty is supported by the submission S
that the procession was peaceful with no violent incidents or conflicts
T T
arising. Severe sanctions are inappropriate and disproportionate. The
U U
V V
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A A
B B
disruption to the roads and public transport system was not severe nor
C wholly related to the unauthorised assembly. Much of the traffic C
congestion around Victoria Park was related to the authorised public
D D
meeting.
E E
Principles of Sentencing
F F
G 37. It is correct there are no prevailing guidelines or tariffs for G
sentences for the present charges. The great majority of the past cases with
H H
similar offences do either involve a bind over order or a financial penalty
I but none of those cases I have been referred to by the defence stem from I
the social unrest and turmoil of 2019 or anything like it.
J J
K 38. Public order offences have been established as an exception K
to the general principle that a deterrent sentence should not be passed on a
L L
person with a clear record and I have referred myself to page 13 of R v
M Nguyen Quang Thong & Ors (1992) 2 HKCLR 10. All defendants here M
but the 4th defendant had a clear record.
N N
O 39. I have been referred to reasons for judgement arising from O
HKSAR v Chow Ting HCMA 374/2020, a bail application pending a
P P
magistracy appeal. I thank the prosecution for a translation of those reasons.
Q There, Barnes J refused bail pending appeal for the applicant Chow Ting. Q
She had been sentenced to 10 months’ imprisonment for incitement to
R R
knowingly take part in an unauthorised assembly and knowingly taking
S part in an unauthorised assembly. S
T T
U U
V V
- 13 -
A A
B B
40. The facts of that case are set out in those reasons for
C judgement and involve large crowds of protesters gathering first in the C
vicinity of the Central Government Offices on 21 June 2019 before more
D D
crowds proceeded to besiege the Police Headquarters. That was a day that
E ended in violence, conflict, damage to property, an attack on the police E
headquarters itself and its operation as well as severe traffic disruption until
F F
the early hours of the morning.
G G
41. The relevance of that case and the reasons for judgement is
H H
because the learned Magistrate referred to the sentencing considerations
I and factors set out in the Secretary for Justice v Wong Chi Fung 2018 2 I
HKLRD 699; sentencing guidelines for offences of unlawful assembly.
J J
K 42. Barnes J was only concerned with the application for bail K
pending appeal and not the appeal itself which is still to be heard but she
L L
did state the reasons why she found the applicant had failed to demonstrate
M that her appeal had a very high or reasonable prospect of success. M
N N
43. More importantly, and relied on heavily by the prosecution
O here is that she agreed with the learned magistrate and found nothing wrong O
with her “drawing on” the sentencing factors in Wong Chi Fung when
P P
deciding a custodial sentence was appropriate for an unauthorized
Q Q
assembly and said it was clearly far from being wrong in principle.
R R
44. Wong Chi Fung was an application for review for offences
S S
relating to unlawful assemblies. In the context of unlawful assemblies
T
involving violence, it was held by the court that the sentencing court’s main T
consideration is the punishment of the offender, as well as deterring others
U U
V V
- 14 -
A A
B B
from breaking the law in a similar manner. These are the weighty factors
C and the offender’s personal circumstances will not be regarded as C
significant mitigation. The Court of Final Appeal endorsed those
D D
observations in Secretary for Justice v Wong Chi Fung (2018) 21
E HKCFAR 35. E
F F
45. The Court of Appeal found it necessary to expound on the
G principles on sentencing in unlawful assemblies that involved violence. In G
paragraph 108 Poon JA, as he then was, set out the sentencing principles
H H
applicable to the charges. Particularly, in paragraph 127 he stressed that
I the sentence imposed must be appropriate to the punishment of the I
offenders but also takes into account the factor of deterrence on the basic
J J
premise that public order must be maintained and reflects the gravamen of
K the offence of unlawful assembly. K
L L
46. In paragraph 135 he identified facts relevant and pertinent to
M unlawful assembly offences involving violence. But before that Poon JA M
discussed not only unlawful assembly involving violence but also unlawful
N N
assembly involving no actual violence.
O O
47. In the judgement of Secretary for Justice v Chung Ka Ho
P P
CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen
Q from Wong Chi Fung that cases that warrant the courts serious treatment Q
include an unlawful assembly without actual violence, which could
R R
become imminent, given the overall circumstances. Essentially, the Court
S of Appeal said it is artificial and unreasonable to divide unlawful S
assemblies by violence when passing sentence; it all depends on the actual
T T
U U
V V
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A A
B B
circumstances in each case. Equally, the Court of Appeal did not say
C deterrent sentences should not be imposed in the absence of actual violence. C
D D
48. The Court of Appeal in Chung Ka Ho at paragraph 55 point
E out that the factors identified by Poon JA in paragraph 135 in Wong Chi E
Fung can if adjusted, apply equally to unlawful assemblies with no
F F
violence. Therefore, it is not right to suggest that the judgement in Wong
G Chi Fung is solely applicable to unlawful assembly involving violence. G
H H
49. Although Wong Chi Fung involved an unlawful assembly
I involving violence, Barnes J saw nothing wrong with the magistrate I
drawing on the sentencing considerations because the charges in both
J J
Wong Chi Fung and Chow Ting were contrary to the Public Order
K Ordinance. Secondly the maximum penalty for those offences in those K
cases were the same. Thirdly both cases were of a similar nature in that
L L
they involved crowd gatherings and lastly those demonstrations and
M gatherings arose from social issues. M
N N
50. Although this case before me involves an unauthorised
O assembly on 18 August, if I take into account the overall circumstances, O
the social unrest witnessed from June 2019 that was as relentless as it was
P P
violent and disturbing then I find I can and should consider sentencing
Q principles such as protecting the public, meting out penalties, open Q
condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I
R R
too can draw on the sentencing principles in that authority but bear in mind
S these charges involve an unauthorised not an unlawful assembly. S
T T
U U
V V
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A A
B B
51. The facts of this case and offences affected the public;
C members of the public not participating. There was widespread traffic and C
public transport disruption. By identifying as a principle “meting out
D D
penalties”, the Court of Appeal were reiterating the obvious and that is any
E sentence imposed ought to be commensurate with the offence committed. E
One that reflects the seriousness of the offence and the culpability of the
F F
offender. The open condemnation factor is self-explanatory, the sentence
G ought to reflect the social disapproval of the offence and the criminal G
conduct of the offender.
H H
I 52. The factor of deterrence serves as a warning to others and I
prevents the offender from reoffending. The need for deterrent sentences
J J
cannot be limited to an unlawful assembly or more serious public order
K offences. The need to consider a deterrent sentence will often depend on K
the prevailing circumstances at the time. In fact, all sentencing principles
L L
applied to determine an appropriate sentence should take into account the
M prevailing tumultuous situation of 2019. M
N N
53. The fact that I draw on the aforesaid sentencing principles
O O
does not mean I am retrospectively imposing a more severe sentence based
P
on new sentencing guidelines from the Court of Appeal in Wong Chi Fung. P
Q Q
Reasons for Sentence
R R
54. I repeat here as I said in my verdict that the Basic Law
S S
guarantees freedom of assembly, procession and demonstration for Hong
T Kong residents. However, these rights are not absolute and are subject to T
restrictions ruled constitutional. Those freedoms are enjoyed subject to
U U
V V
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A A
B B
those restrictions irrespective of a defendant’s politics. The common
C purpose of the procession as well as the politics and stance of any C
participant that day on 18 August 2019 are irrelevant to sentencing just as
D D
they were irrelevant to the legal issues that arose during the trial.
E E
55. This unauthorised procession did proceed peacefully but we
F F
know from experience, in particular in those volatile months in 2019 that
G when a large number of demonstrators gather, emotions are likely to run G
high which means those situations have an inherent latent risk of breaking
H H
out into violence.
I I
56. We know from the prosecution witnesses that the police were
J J
most concerned that unruly elements may be present amongst peaceful
K protesters who would seize the opportunity to achieve the very objective K
of inciting or brewing violence. The police then decided to be invisible so
L L
as not to provide an opportunity or an excuse for conflict.
M M
57. The present case involved a direct challenge to the authority
N N
of the police, law and order. The Commissioner of Police had banned a
O public procession and a 2nd public meeting but authorised a meeting in O
Victoria Park. In a police conference an explanation was given why
P P
consent was not forthcoming to the CHRF.
Q Q
R
58. Yet, despite that and the risk above, the defendants went on to R
organise it; all defendants were well known figures that together as the
S S
head of a procession were guaranteed to draw a crowd and followers.
T
Influential people can draw a crowd and can wield a certain influence. T
U U
V V
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A A
B B
59. The fact that these particular defendants made a conscious
C decision to break the law and challenge public order in this manner during C
such volatile times was serious. That I find an aggravating factor or the
D D
gravamen of these facts I found proved. Actions have consequences for
E everyone irrespective of who they are. This is more so when I have a duty E
in sentencing to ensure public order.
F F
G 60. In addition, I take into account the background behind the G
commission of these offences. I take into account my finding that the
H H
unauthorised assembly was premeditated with prior planning to thwart the
I police ban. It was made known that there was a plan to circumvent the ban I
despite calling the procession a dispersal plan or water flow meeting.
J J
There were many prior calls publicly for as many people as possible to jam
K pack Victoria Park and to participate in this water flow meeting. It was no K
coincident that the dispersal plan mirrored the timing and route of the
L L
banned procession.
M M
61. The scale of the unauthorised assembly is relevant; the
N N
procession from Victoria Park to Chater Gardens was on a massive scale
O and long-lasting. That is notwithstanding I accept there would have been O
disruptions in the vicinity of Victoria Park from the authorized public
P P
meeting. Moreover, as I have noted above, taking into account the
Q circumstances prevailing in Hong Kong at that time, a procession of that Q
size posed an inherent latent risk of possible violence.
R R
S 62. Therefore, the procession may have been peaceful but there S
was a significant degree of disruption to roads for hours and public
T T
transport routes that stretched across the harbour.
U U
V V
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A A
B B
C 63. As a result, and after careful consideration of the above C
principles and factors as well as submissions in mitigation, an immediate
D D
term of imprisonment is the only appropriate sentencing option.
E E
64. The fact all but the 7th and 9th defendant were convicted after
F F
trial as well as being a premeditated and direct challenge to law and order
G when emotions were running so high in Hong Kong means a community G
service order would not be appropriate.
H H
I 65. The background and facts of this case call for a custodial I
sentence. I have referred myself to Wong Chi Fung at paragraph 172 where
J J
what Pang JA said is applicable to this case and the circumstances that were
K K
prevailing in Hong Kong at that time. That is even though the charge there
L
was more serious. I quote; L
“172. I agree with the judgements of Yeung VP and Poon JA.
M M
The more one feels about an issue, the more one wishes to press
one’s point and the more one desires that there should be
N progress in the matter. This is all very understandable. N
However, if in the course of advocating one’s demand, one is
given to the position that some long and well established law is
O O
but an unreasonable restriction on the right to freedom of
expression, plus indulging one in the self-satisfaction of having
P broken the law as one pleases, that is not a situation which P
would on any ground enable the courts to pass unduly lenient
sentences. An offender who is inflicted with such an attitude not
Q only breaks the law in conduct, but in his mind too he harbours Q
contempt and regards himself as being above the law. With
R
respect to controversial matters of public debate where R
emotions are easily stirred, the grave consequences of such an
attitude gaining ground are self-evident…”
S S
T T
U U
V V
- 20 -
A A
B B
66. I have taken into account the facts, the mitigation and all
C submissions put forward on behalf of all defendants. I have reminded C
myself that the starting point for each charge must be commensurate with
D D
the offence committed. Deterrent sentences must prevail here and
E therefore; personal individual mitigation may not carry much weight unless E
exceptional.
F F
G 67. Having said that, where applicable and because it was a G
peaceful assembly, the positive good character of some defendants, the
H H
even more significant and worthy public service from others will be taken
I into account. It is impossible to list the individual significant commitment I
and contributions of some to the law, society, children, the underprivileged,
J J
minority groups, education issues, sexual and racial equality but it is
K weighty. K
L L
68. I also say here that I intend to make the sentences for Charges
M 1 and 2 concurrent for every defendant in light of the facts, close nature of M
the charges and totality principle.
N N
O
Charge 1 – Starting Point O
P P
69. To arrive at an appropriate starting point for charge 1,
Q organising an unauthorised assembly, I do differentiate between some of Q
the defendants. I made it clear in my verdict that the evidence showed that
R R
the 2nd, 4th and 9th defendant appeared at press conferences, either
S immediately after the CHRF appeal was dismissed or the following day, S
17 August 2019, in Victoria Park and were very vocal. I won’t repeat what
T T
they said but I found they encouraged crowds to come to “jam pack”
U U
V V
- 21 -
A A
B B
Victoria Park and insinuated there would be a procession out of there
C despite the police ban. What they and in particular, the 4th defendant had C
to say almost amounted to a rallying cry.
D D
E 70. After all relevant factors are taken into consideration, in my E
judgement, for the 2nd, 4th and 9th defendant a starting point of 18 months’
F F
imprisonment is appropriate.
G G
71. For the remaining defendants, in my judgement, a starting
H H
point of 15 months’ imprisonment is appropriate.
I I
Charge 2 - Starting Point
J J
K 72. I find all defendants equally culpable in knowingly taking part K
in this unauthorised assembly. It is true some walked in silence, some
L L
replied to political slogans and others took the lead to chant those slogans
M but I do not differentiate between them for the purposes of this offence. M
N N
73. After all relevant factors are taken into consideration, in my
O judgement, a starting point of 12 months’ imprisonment is appropriate. O
P P
Reductions
Q Q
74. I am aware that a clear record is not significant mitigation
R R
where public order offences are concerned nor are personal mitigating
S circumstances where deterrent sentences are to be imposed. Nevertheless, S
in light of the more advanced ages of most of the defendants here and their
T T
U U
V V
- 22 -
A A
B B
public service to Hong Kong, I cannot ignore this type of mitigation
C altogether. C
D D
The 1st defendant
E E
75. I have considered his age, clear record and health issues. The
F F
1st defendant is given a three-month reduction from the 15 months and 12
G months of charges 1 and 2 respectively. G
H H
76. Therefore, the 1st defendant is sentenced to 12 months’
I imprisonment for charge 1 and 9 months’ imprisonment for charge 2, to be I
served concurrently; a total of 12 months’ imprisonment.
J J
K The 2nd defendant K
L L
77. I have considered his age and clear record. For that, the 2nd
M defendant is given a three-month reduction from the 18 months and 12 M
months of charges 1 and 2 respectively.
N N
O 78. From information provided today, I have considered his O
commitment and contribution to public service especially where the
P P
welfare of workers is concerned. Such service deserves recognition and for
Q that I give the 2nd defendant a further discount of 3 months. Q
R R
79. Therefore, the 2 nd
defendant is sentenced to 12 months’
S imprisonment for charge 1 and 6 months’ imprisonment for charge 2, to be S
served concurrently; a total of 12 months’ imprisonment.
T T
U U
V V
- 23 -
A A
B B
The 3rd defendant
C C
80. I have considered her age of 73, clear record as well as her
D D
exceptional and obvious commitment over decades to public service. Not
E only is she a person of positive good character, but an altruist; her E
dedication to the community when a legislator and in her retirement is
F F
worthy of note. I am impressed by the letters referring to her lifelong
G dedication and contributions. G
H H
81. Against that background of her age and exceptional public
I service, I find there to be valid reason and justification to suspend the terms I
of imprisonment I have imposed. I first reduce the 15 months of charge 1
J J
and 12 months of charge 2 by 3 months.
K K
82. After that reduction is applied, the 3rd defendant is sentenced
L L
to 12 months for charge 1 and 9 months for charge 2. Both to be served
M concurrently. Both those sentences are suspended for 24 months. M
N N
rd
83. Therefore, the 3 defendant is sentenced to a total of 12
O
months’ imprisonment suspended for 24 months. O
P P
84. The 3rd defendant is warned that if she is convicted of an
Q Q
offence punishable by imprisonment in the following 24 months from
R today then she will most certainly serve this twelve-month term of R
imprisonment.
S S
T The 4th defendant T
U U
V V
- 24 -
A A
B B
85. I have considered his age and health. It appears his ailment is
C under control with medication; I am not informed otherwise. The 4th C
defendant has a good number of previous convictions; he does not have the
D D
benefit of a clear record. However, I have considered the nature of his
E previous convictions and do not impose a heavier sentence on the 4th E
defendant on account of his criminal record.
F F
G 86. What it does mean is that I see no reason to reduce the G
sentences any further. Therefore, for the reasons given, the 4th defendant is
H H
sentenced to 18 months’ imprisonment for charge 1 and 12 months’
I imprisonment for charge 2, to be served concurrently; a total of 18 months’ I
imprisonment.
J J
K The 5th defendant K
L L
87. I have considered her age and clear record. The 5th defendant
M is given a three-month reduction from the 15 months and 12 months of M
charges 1 and 2 respectively.
N N
O 88. From the information I have, she too can be described as a O
person of positive good character. By that I mean she has devoted many
P P
years to public service and I have had sight of letters containing details of
Q her commitment. Such commitment does deserve recognition and I reduce Q
the sentences by a further 4 Months.
R R
S 89. Therefore, the 5th defendant is sentenced to 8 months’ S
imprisonment for charge 1 and 5 months’ imprisonment for charge 2, to be
T T
served concurrently; a total of 8 months’ imprisonment.
U U
V V
- 25 -
A A
B B
C The 6th defendant C
D D
90. I take into account the 6th defendant is nearly 70 years old with
E a clear record. Like so many others here, he has had a long history of public E
service and can be described as a person of positive good character. His
F F
biography sets out his long career and commitment to the community. I
G accept the submission he has always acted in a peaceful, rational and G
nonviolent manner. Even though he has been physically attacked twice in
H H
2006 and 2019 for his politics he did not let it deter him.
I I
91. Again, his commitment does deserve recognition and
J J
although his service and therefore positive good character may not be as
K notable and exceptional as the 3rd and 8th defendant, I find there to be valid K
reason and justification to suspend the terms of imprisonment I have
L L
imposed.
M M
92. For that and his age, I first reduce the 15 months of charge 1
N N
and 12 months of charge 2 by 3 months. After that reduction is applied, the
O O
6th defendant is sentenced to 12 months for charge 1 and 9 months for
P
charge 2. Both to be served concurrently. P
Q Q
93. Both these sentences are suspended for 24 months. Therefore,
R the 6th defendant is sentenced to a total of 12 months’ imprisonment R
suspended for 24 months.
S S
T The 7th defendant T
U U
V V
- 26 -
A A
B B
94. The 7th defendant pleaded guilty to charge 2 only. It was not
C at the earliest opportunity and I have taken into account the authority of C
HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and will apply a discount of
D D
25% to the starting point of 12 months for his plea. This reduces the starting
E point to 9 months’ imprisonment. E
F F
95. That discount for a guilty plea has an allowance for a clear
G record built into it. Unless there is more, then there should be no further G
discount for a clear record. However, I will give the 7th defendant a further
H H
1-month reduction for his age.
I I
96. Not only is he a person of clear record but also of positive
J J
good character. He showed uncompromising dedication to the community
K as a legislator. I am impressed by the so many letters referring to his K
lifelong commitment and contributions. He has worked tirelessly for so
L L
many different causes and different groups ranging from women’s groups,
M the elderly, the blind, the rehabilitation of prisoners to assistance for M
children with special educational needs and even successfully campaigning
N N
for the presence of doctors in hospital delivery rooms at night to ensure the
O safety of mothers in labour and newborns. O
P P
97. Against that exceptional background and the biography
Q provided, I find there to be a valid reason and justification to suspend the Q
term of imprisonment I have imposed.
R R
S 98. Therefore, for Charge 2, the 7th defendant is sentenced to a S
total of 8 months’ imprisonment suspended for 12 months.
T T
U U
V V
- 27 -
A A
B B
99. The 7th defendant is warned that if he is convicted of an
C offence punishable by imprisonment in the following 12 months from C
today then he will most certainly serve this 8-month term of imprisonment.
D D
E The 8th defendant E
F F
100. The 8th defendant is nearly 83 years old. Not only is he a
G person of positive good character but his dedication to the community as a G
legislator is without doubt and well-known. I am impressed with the
H H
biography prepared which demonstrated his commitment to work for and
I his devotion to the betterment of Hong Kong. I
J J
101. Against that background of his age and exceptional public
K service, I find there to be valid reason and justification to suspend the terms K
of imprisonment I have imposed. I first reduce the 15 months of charge 1
L L
and 12 months of charge 2 by 4 months to reflect his age.
M M
102. After that reduction is applied, the 8th defendant is sentenced
N N
to 11 months for charge 1 and 8 months for charge 2. Both to be served
O concurrently. Both those sentences are suspended for 24 months. O
P P
103. Therefore, the 8th defendant is sentenced to a total of 11
Q Q
months’ imprisonment suspended for 24 months.
R R
104. The 8th defendant is warned that if he is convicted of an
S S
offence punishable by imprisonment in the following 24 months from
T today then he will most certainly serve this 11-month term of T
imprisonment.
U U
V V
- 28 -
A A
B B
C The 9th defendant C
D D
105. The 9th defendant pleaded guilty at the earliest opportunity to
E both charges. He is entitled to a discount of one-third and after that discount E
is applied, the starting points are reduced to 12 months for charge 1 and 8
F F
months for charge 2.
G G
106. He is a young man who unlike most of the defendants here
H H
was only beginning to develop his career; in particular, a career in
I academia. He tells me that that dream will be hard to pursue now in light I
of his present circumstance and recent convictions.
J J
K 107. Although he is only 33 he has already served as a district K
councillor for 8 years. There are many letters of mitigation from friends
L L
and colleagues who stress his contributions to public and community
M service so far should not be ignored. M
N N
108. I agree. The 9th defendant is given a further 2 months’
O discount to reflect and recognise that contribution. O
P P
109. Therefore, he is sentenced to 10 months’ imprisonment for
Q charge 1 and 6 months’ imprisonment for charge 2, to be served Q
R
concurrently; a total of 10 months’ imprisonment. R
S S
T T
U U
V V
- 29 -
A A
B B
Conclusion
C C
110. Charge 1
D D
1st defendant sentenced to 12 months’ imprisonment.
E 2nd defendant sentenced to 12 months’ imprisonment. E
3rd defendant sentenced to 12 months’ imprisonment.
F F
4th defendant sentenced to 18 months’ imprisonment.
G 5th defendant sentenced to 8 months’ imprisonment. G
6th defendant sentenced to 12 months’ imprisonment.
H H
8th defendant sentenced to 11 months’ imprisonment.
I 9th defendant sentenced to 10 months’ imprisonment. I
J J
111. Charge 2
K 1st defendant is sentenced to 9 months’ imprisonment. K
2nd defendant sentenced to 6 months’ imprisonment.
L L
3rd defendant sentenced to 9 months’ imprisonment.
M 4th defendant sentenced to 12 months’ imprisonment. M
5th defendant sentenced to 5 months’ imprisonment.
N N
6th defendant sentenced to 9 months’ imprisonment.
O 7th defendant sentenced to 8 months’ imprisonment, O
suspended for 12 months.
P P
8 def sentenced to 8 months’ imprisonment.
th
Q 9th def sentenced to 6 months’ imprisonment. Q
R R
st nd th
112. Charges 1 and 2 to be served concurrently for the 1 , 2 ,4 ,
S 5th, 9th defendants. S
A total of 12 months for 1st defendant and 2nd defendant.
T T
th
A total of 18 months for 4 defendant.
U U
V V
- 30 -
A A
B B
A total of 8 months for 5th defendant.
C A total of 10 months for 9th defendant. C
D D
113. Charges 1 and 2 to be served concurrently for the 3 rd, 6th and
E 8th defendants and suspended for a term of 24 months. E
A total of 12 months suspended 24 months for the 3rd and 6th
F F
defendants.
G A total of 11 months suspended for 24 months for the 8 th G
defendant.
H H
I I
J J
K K
( A J Woodcock )
L District Judge L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V