DCCC892/2020 HKSAR v. WONG CHI FUNG AND OTHERS - LawHero
DCCC892/2020
區域法院（刑事）His Honour Judge Stanley Chan5/5/2021[2021] HKDC 547
合併案件：DCCC876/2020DCCC885/2020
DCCC892/2020
A A
B B
DCCC 876, 885, 890 & 892/2020
(Consolidated)
C C
[2021] HKDC 547
D D
IN THE DISTRICT COURT OF THE
E E
HONG KONG SPECIAL ADMINISTRATIVE REGION
F CRIMINAL CASE NOS 876, 885, 890 AND 892 OF 2020 F
G G
--------------------------------------
H HKSAR H
v
I I
WONG CHI FUNG 黃之鋒 (D1)
J J
SHUM LESTER 岑敖暉 (D2)
K YUEN KA WAI TIFFANY 袁嘉蔚 (D3) K
LEUNG JANNELLE ROSALYNNE 梁凱晴 (D4)
L L
---------------------------------------
M M
N
Before: His Honour Judge Stanley Chan N
Date: 6 May 2021
O O
Present: Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR
P Mr Graham A. Harris, SC, leading Mr David Yuen K K, P
instructed by Ho Tse Wai & Partners, for the 1st, 2nd, 3rd and
Q Q
4th defendants
R Offence: Knowingly taking part in an unauthorized assembly (明知而 R
參與未經批准集結)
S S
T T
U U
V V
-2-
A A
B B
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C REASONS FOR SENTENCE C
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D D
E Background E
F F
1. Relating to this incident, there are a total of 37 cases with 24
G defendants. Orders of transfer were issued in October 2020. The G
4 defendants, together with Chu Hoi Dick Eddie (Chu) in DCCC 865/2020,
H H
were brought before the District Court on 3 November 2020. All of them
I were represented by Mr Man of Messrs Ho Tse Wai & Partners. The cases I
were further adjourned to 5 February 2021.
J J
K 2. On 5 February, the 4 defendants together with Chu, through K
Mr Man, indicated their guilty plea, and the plea and sentence of these
L L
defendants was fixed for 30 April 2021.
M M
3. All along, the proceedings were conducted in Chinese. By a
N N
letter of 26 April 2021, Chu’s lawyer, Mr Man wrote to court that by now
O Chu changed his mind and would not plead guilty to the charge. By another O
letter on the same day, Mr Man wrote to court that they have instructions to
P P
act for Chu and the other 4 defendants. They have engaged Mr Graham
Q Harris SC and Mr David Yuen of counsel to conduct mitigation on behalf Q
of the defendants, and would request the hearing be conducted in English.
R R
S 4. Because of the defence’s request, the proceedings are now S
conducted in English.
T T
U U
V V
-3-
A A
B B
5. On 30 April Mr Harris SC represented all 5 defendants, and
C formally indicated that Chu decided not to plead to the charge. The defence C
requested Chu’s case be adjourned to 11 June this year so that his case
D D
would be mentioned together with the other 19 defendants. I approved the
E request. E
F F
6. In relation to the other 4 defendants, the Prosecution applied
G for a consolidation of these 4 cases. The defence did not object to the G
application. Accordingly, the consolidated charge sheet was approved, that
H H
is to say, DCCC 876, 885, 890 and 892 of 2020 are now consolidated into
I one case. I
J J
7. All 4 defendants pleaded guilty to their respective charge and
K admitted the Summary of Facts as presented by the Prosecution. I K
adjourned the sentence to 6 May.
L L
M The Summary of Facts M
N N
[note: the following brief facts are a concise version of the Summary of
O facts presented by the Prosecution] O
P P
8. On 23 April 2020, Tsoi Yiu Cheong, on behalf of the Hong
Q Kong Alliance, submitted a notification to the Police making an application Q
to hold a public meeting in Victoria Park from 9 am to 10 pm on 4 June
R R
2020.
S S
9. After careful consideration, the Department of Health advised
T T
against holding of any mass gathering events on 4 June 2020.
U U
V V
-4-
A A
B B
C 10. On 1 June 2020, pursuant to s 9 of the Public Order Ordinance C
Cap 245, the Commissioner of Police issued a notice to the Hong Kong
D D
Alliance prohibiting the holding of the proposed public meeting in the
E interests of public order, public safety and the protection of the rights and E
freedoms of others.
F F
G 11. The Hong Kong Alliance did not appeal against the decision G
made by the Police to the Appeal Board on public meetings and
H H
processions.
I I
12. From around 4 pm to 5 pm on 4 June 2020, the police set up 9
J J
loud speakers’ device near or inside Victoria Park. Through these loud
K speakers’ device, the police broadcast certain public announcements until K
around 10:30 pm on the day. The announcements covered the following
L L
messages:-
M M
(a) issuance of a notice prohibiting against holding of
N N
public meeting,
O O
(b) participants would commit the offence of taking part in
P P
an unauthorized assembly
Q Q
(c) the warning about the spread of Covid-19 in the
R R
community, and
S S
T T
U U
V V
-5-
A A
B B
(d) an appeal to the public that they should not participate
C in any unauthorized assembly and that group gathering C
was prohibited.
D D
E 13. The Leisure and Cultural Services Department also broadcast E
announcement to remind the public that group gathering of more than eight
F F
people was not allowed in Victoria Park and the football pitches in Victoria
G Park were all closed. No entry to these facilities was allowed. Various G
notices were also posted inside Victoria Park that the football pitches were
H H
closed until further notice.
I I
14. At about 6:25 pm on 4 June 2020, people started to gather at
J J
the water fountain plaza in Victoria park. At about 6:36 pm, Lee Cheuk
K Yan (Lee) led a group of around 100 people heading towards the football K
pitches in Victoria Park. Some reporters followed the group.
L L
M 15. At about 6:44 pm, D1 and D2 together with other participants M
entered Victoria park via the entrance at the junction of Gloucester Road
N N
and Great George Street.
O O
16. When Lee and other participants arrived at the north pavement
P P
near the football pitches No. 3 and 4, someone pulled away the mill barriers
Q which were used to close the football pitches. Participants entered the Q
football pitches. The number of participants grew and most of them were
R R
wearing black clothes, and were also holding candles.
S S
T T
U U
V V
-6-
A A
B B
17. From about 7:09 pm to 8 pm, D1 to D4 sat together with others
C at football pitch No. 6. They were wearing black clothes with candles in C
their hands. Participants chanted political slogans.
D D
E 18. At about 7:12 pm, D1 was interviewed by a reporter and later E
Lee was seen chatting with the defendants. A man even took photos with
F F
D1 and D2.
G G
19. At about 7:54 pm, Lee used a loudhailer to shout various
H H
political slogans which were echoed by the crowd. Lee announced that the
I meeting would start at 8 pm and he also gave a speech. I
J J
20. At about 8 pm, D3, D4 and Chu passed a few bouquets of
K white flowers to Lee. D4 together with others put the flowers on the K
ground. At that time, there were around 20,000 participants.
L L
M 21. Lee led the crowd to mourn and to give a minute of silence. M
Thereafter, Lee together with the participants chanted political slogans and
N N
a video was played. Political songs were sung. There were some other
O activities held to commemorate the June 4th incident. O
P P
22. At about 8:43 pm, Lee announced the meeting was finished
Q and the crowd started to leave the football pitches. As captured in the media Q
footage, there were around 20,000 people participating in the public
R R
meeting inside Victoria Park at the material time.
S S
T T
U U
V V
-7-
A A
B B
23. The unauthorized public meeting was broadcast live on the
C website of the Hong Kong Alliance. The program of this meeting was the C
same as the program posted on the Hong Kong Alliance’s online poster.
D D
Songs and video clips played during the meeting were available on the
E Hong Kong Alliance’s live broadcast on the internet. E
F F
24. Subsequently, certain words and phrases in relation to the June
G 4th incident were posted or written on the ground and on some facilities G
inside Victoria Park [see photos at Annex A to the Prosecution bundle].
H H
I 25. Between 7:33 pm and 9:14 pm, as there was a large crowd I
entering and leaving the Park, the police had to implement road closure and
J J
traffic diversions which caused certain road traffic obstructions in the
K vicinity. K
L L
26. Various videos from open source, videos from the police and
M CCTV footages captured the incident at Victoria Park that night. The M
relevant footage and the screen shots can be found at Annex B to K to the
N N
Prosecution bundle.
O O
Mitigation
P P
Q 27. The defence submitted 3 mitigation bundles. It was said since Q
1990, candlelight vigils have been held at Victoria Park on June 4 th each
R R
year. The 2020 vigil was peaceful. The defence said “by then, the turbulent
S times during the social unrest of 2019 had come and gone.” The S
inconvenience to the public was minimal. Road closures and traffic
T T
U U
V V
-8-
A A
B B
diversions were limited to a few streets in Causeway Bay area. The period
C of time for which D1 and D2 stayed inside the park was relatively short. C
D D
28. It was also said the defendants played a passive role at the
E vigil. The defence submitted that there was no or minimal imminence or E
threat to a breach of the peace, and it was a case which can be categorized
F F
as being at the less serious end of the spectrum for this kind of offence. The
G defence urged the court not to hand down any immediate custodial G
sentence.
H H
I 29. Personal biography of each and every defendant was provided. I
J J
30. D1 Wong is currently 24 years old and is single. He was a
K graduate of the Hong Kong Open University. He was a community officer K
or community development officer for two LegCo members at different
L L
times from September 2016 to December 2019. He had a criminal record
M starting from August 2016. M
N N
31. D2 Shum was born in the United States and is aged 27. He
O was married. He was a graduate of the Chinese University of Hong Kong. O
In November 2019, he was elected as a District Councilor. In June 2021, it
P P
was said he gave up his US citizenship. He had one criminal record back
Q in 2018. Q
R R
32. D3 Yuen is aged 27 and single. She was a graduate from the
S City University of Hong Kong. She was elected as a District Councilor in S
November 2019. D3 had a clear record.
T T
U U
V V
-9-
A A
B B
33. D4 Leung is aged 26 and single. She graduated from the Hong
C Kong Polytechnic University. She was also elected as a district councilor C
in Nov 2019. D4 had a clear record. The defence submitted a mitigation
D D
letter from the chairman of the Kwun Tong District Council urging the court
E to pass a lenient sentence. E
F F
Sentence
G G
34. All 4 defendants are represented by Mr Harris SC, an
H H
experienced criminal silk. Upon legal advice, they pleaded guilty to the
I charge against them. They admitted that the assembly on the day of the I
offence was unauthorized and they accepted their culpability. In my view,
J J
given the strength of the evidence against them, that is a wise decision. As
K the usual practice, they can get the full 1/3 discount in sentence. K
L L
35. The Basic Law guarantees freedom of assembly and
M procession for HK people. But it is established that such freedom and rights M
are not absolute and are subject to restrictions, regardless of the status of
N N
the participants and the purposes of the assembly.
O O
36. The facts of the case are straight forward. On 1 June 2020, the
P P
Commissioner of Police issued a notice to the Hong Kong Alliance,
Q prohibiting the holding of any public meeting in Victoria Park on 4 June Q
2020. The Hong Kong Alliance did not appeal against the decision. The
R R
prohibition notice was lawful and valid.
S S
T T
U U
V V
- 10 -
A A
B B
37. All 4 defendants, being the participants, knew full well that the
C public meeting on 4 June 2020 was unauthorized. From the video footage, C
at certain stage of the public meeting, the defendants sat on the ground in a
D D
group. They wore black T shirts, some of the T shirts bore special design
E [see the photos attached to the mitigation bundle]. D1 was seen being E
interviewed and having photos taken. Each of the defendants posted their
F F
photos onto their respective social media sites [see the photos in the defence
G bundle]. G
H H
38. Defence counsel submitted that the defendants had observed
I the social distancing and put on masks in view of the pandemic. However, I
I think counsel omitted to mention one important factor. That is, from the
J J
very beginning, the public meeting was unauthorized. The fact that the
K participants wearing masks and/or maintaining any kind of social K
distancing cannot exonerate their culpability. Literally speaking, the
L L
defendants and other participants were saying to the public at large that they
M could enjoy more ‘freedom’ than others. On the other hand, the footage M
shows that there was a large crowd of people gathering in Victoria Park,
N N
not to mention the fact that the movement of the crowd would certainly
O generate traffic obstructions, health hazard and other risks factors. O
P P
39. Defence counsel also submitted that this incident was a
Q continuation of the 30-year odd candlelit vigil on June 4. There was no act Q
of violence, nor any damage to property. There was no reprehensive
R R
conduct. The 4 defendants did not intend, encourage or incite others to do
S so. It was submitted that the inconvenience caused to the public was S
insignificant. This incident was the first time the objection was based on
T T
U U
V V
- 11 -
A A
B B
public health consideration. Defence counsel urged the court to give full
C credit to the plea at first opportunity. C
D D
40. Defence counsel said that the defendants played a passive role
E at the public meeting. Obviously that is not the case as D1 and D2, being E
political figures, had their political purposes to serve. D2, D3 and D4 at
F F
that time were also District Councilors. At certain point in time, the
G defendants stood in a group and took a group photo, and they were not G
submerged in the crowd [see the photos provided by the defence].
H H
Undoubtedly, they occupied a special status, and they used the social media
I to ‘advertise’ their presence in the public meeting. I
J J
41. In SJ v Wong Chi Fung [2018] HKCFA 4, a case that D1 in
K this case was also involved, the Court of Final Appeal endorsed the Court K
of Appeal’s sentencing principles and the list of factors relevant to a
L L
decision on the appropriate sentence for unlawful assembly. The CFA also
M said it was right for the Court of Appeal to send the message that unlawful M
assemblies involving violence, even the relatively low degree of violence,
N N
would not be condoned and might justifiably attract sentences of immediate
O imprisonment in the future, given the gravamen of the offence involving O
the instigation of a risk and a fear of a breach of the peace due to the number
P P
of protesters involved. The CFA also promulgated specifically that it is not
Q the role or function of the courts of HKSAR to enter into any other political Q
debate. Instead the duty of the courts is, through an independent judiciary,
R R
to administer the law of the HKSAR and to adjudicate on the legal issues
S raised in any case according to the law. S
T T
U U
V V
- 12 -
A A
B B
42. In the CA judgment of that case, Poon JA [as he then was]
C provided a comprehensive approach to tackle the offence of unlawful C
assembly under the heading of H3 and deliberately designated another
D D
heading of H4 [starting from para 128 to 134 of the judgment] to deal with
E issues relating to ‘Disrupting public order with violence’. The CA made it E
clear, at para 123, that:“In sentencing, the court will consider the gravamen
F F
of the offence with which an offender is charged. The gravamen of the
G offence of unlawful assembly is the participants’ acting in large numbers G
and using those large numbers to achieve their common purposes.” The
H H
Court of Appeal further ruled, at para 125 to 126, that, “the fact that the
I offenders were trying to achieve their common goal by sheer numbers, is a I
characteristic common to all offence of massive public disorder. … when
J J
a large number of demonstrators are gathered, emotions are likely to run
K high, or the crowd may even become agitated, so that these situations have K
the inherent risk of breaking out into violence. Occasionally, unruly
L L
element may also be present, who would seize the opportunity to achieve
M the very objective of fomenting violence. Such risks cannot be M
overlooked… It follows that the provision on unlawful assembly under s 18
N N
is a necessary preventive measure, designed to nip in the bud the serious
O O
consequences which may arise from a breach of the peace or possible
P
breach of the peace.” P
Q Q
Accordingly, the CA stressed, at para 127, that:
R R
“On the basic premise that public order must be maintained, and
S taking into account the gravamen of the offence of unlawful S
assembly, the court, in passing sentence, not only has to impose
a penalty that is appropriate to the punishment of the offenders,
T but it also has to take into account the factor of deterrence. That T
is to say, a sentence must not only seek to prevent the offenders
from reoffending, but also to give a warning to deter others from
U U
V V
- 13 -
A A
B violating the law by breaking and disrupting public order in like B
manner.”
C C
43. In the case SJ v Chung Ka Ho [2020] HKCA 990, Pang JA
D D
made it clear that the gravamen of the offence is preemptive so that
E damages, if any, to social peace can be eradicated at an early stage and a E
sentencing court has to accord the element of deterrence with priority [see
F F
para 52 to 56 of the judgment]. In that case, the defendant, aged 24, pleaded
G guilty to the offence of unlawful assembly and originally was sentenced to G
a community service order of 120 hours. The Court of Appeal allowed the
H H
review of sentence and imposed an imprisonment term of 3 months.
I I
44. It is also worthy to mention that the case of Wong Chi Fung
J J
related to the offence occurred in September 2014 which was well before
K the unprecedented social turmoil of 2019. The present case occurred in K
June 2020 when the repercussions and impact of the 2019 turmoil still
L L
lingered on, and the risks factors cannot be underestimated.
M M
45. In the present case, it is clear that what the defendants did were
N N
deliberate and premeditated. They openly defied the law, knowing that they
O O
had no lawful authority for taking part in an unauthorized assembly, despite
P
all the public announcements broadcast by the police. The offence was P
committed on 4 June 2020. As I mentioned earlier, I cannot disregard the
Q Q
fact that Hong Kong was and is still suffering from the volatility of public
R order and political turmoil in 2019. Emotion can run high and unruly R
elements can take advantage of any opportunity to incite and encourage
S S
violence. That is especially the case when the event was held on a special
T day. This is a potential risk factor that cannot be underestimated or ignored. T
U U
V V
- 14 -
A A
B B
46. I also have to consider the scale of the unauthorized assembly
C on the date of the offence. The video footages together with the screenshot C
photos [see the screenshot photos C to J attached to the Prosecution bundle]
D D
depict a large crowd of around 20,000 participants gathering on the football
E pitches. With such a crowd, it is not difficult to see the extent of disruptions E
to the traffic and other people in the vicinity when the participants entered
F F
and later exited Victoria Park.
G G
47. The only mitigating factor for all 4 defendants is their guilty
H H
plea, for which they can get 1/3 discount in sentence. They have their
I political belief and conviction, as such, there is no sign of any I
remorsefulness from any of the defendants.
J J
K 48. Defence counsel has suggested that a community service order K
is justified especially for D3 and D4. The CA in the case of Wong Chi Fung
L L
abovementioned [at para 146 and 147] made it clear that,
M M
“The court has always considered genuine remorse as a
N precondition for receiving a community service order. If no N
genuine remorse is demonstrated, the court would normally
refuse to make a community service order.
O O
Genuine remorse means that the offender acknowledges that he
P has committed an offence and shows remorse for what he has P
done and caused.
Q If the offender considers that his prosecution is, in itself, not Q
justified and maintains that particular view even upon conviction,
R that would be a clear indication that he is still refusing to accept R
what he has done is unlawful. In that case, the court will not
accept his claim of genuine remorse, for such a claim contradicts
S his stance that the prosecution was unjustified.” S
T T
U U
V V
- 15 -
A A
B B
C 49. I bear in mind that the defendants were charged with C
unauthorized assembly, not unlawful assembly, but the maximum sentence
D D
under both provisions, namely s 17A(3)(a) and s 18 of Cap 245, is the same.
E I am also of the view that the sentence should reflect the element of E
deterrence, not just to reflect the culpability of the defendants who
F F
committed the offence on the day, but also to deter people from offending
G and re-offending in future. G
H H
50. Taking all factors into account, I sentence the defendants as
I follows:- I
J J
D1 Wong
K K
51. He is aged 24 and had a total of 6 convictions, with 3 similar,
L L
since August 2016. It is to be noted that D1 committed the present offence
M while on court bail when D1 was charged with offences relating to M
unauthorized assembly in Aug 2019 [Court reference WK/2289/2020].
N N
That is an aggravating factor. I consider the sentencing principles
O promulgated by the CA in the case of Wong Chi Fung. I adopt a starting O
point of 15 months’ imprisonment. With his guilty plea, I reduce the
P P
sentence to 10 months.
Q Q
52. D1 was last discharged in July 2019. He committed the
R R
present offence in June 2020. D1 is currently serving a 4-month
S imprisonment term after he was convicted of the offences of taking part in S
an unauthorized assembly and using facial covering. As such, he is a repeat
T T
offender. I have considered the totality principle and take the view that an
U U
V V
- 16 -
A A
B B
accused person should not get more discount if he committed more similar
C offences. That is a wrong message to the public. Accordingly, I order that C
the present sentence should run consecutive to the sentence that D1 is
D D
serving at the moment.
E E
D2 Shum
F F
G 53. He is 27 years old and got married in 2020. He had one G
conviction of contempt of court in 2018 and was sentenced to one month’s
H H
imprisonment which was suspended for 12 months.
I I
54. He was elected in 2019 as a district councilor and assumed
J J
office in 2020. Similarly, D2 will have 1/3 discount in sentence because of
K his plea. I adopt a starting point of 9 months’ imprisonment and reduce the K
sentence to 6 months.
L L
M D3 Yuen M
N N
55. She is aged 27 and had a clear record. Similarly, she was
O elected as a district councilor in 2019 and assumed office in 2020. I will O
give her 1/3 discount because of her plea. I adopt a starting point of
P P
6 months’ imprisonment and reduce it to 4 months.
Q Q
R R
S S
T T
U U
V V
- 17 -
A A
B B
D4 Leung
C C
56. She is aged 26 and had a clear record. She was pursuing her
D D
career in accounting. She assumed the office of district councilor in 2020.
E Because of her plea, she will have 1/3 discount in sentence. I adopt a E
starting point of 6 months’ imprisonment and reduce it to 4 months.
F F
G G
H H
I ( Stanley Chan ) I
District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 876, 885, 890 & 892/2020
(Consolidated)
C C
[2021] HKDC 547
D D
IN THE DISTRICT COURT OF THE
E E
HONG KONG SPECIAL ADMINISTRATIVE REGION
F CRIMINAL CASE NOS 876, 885, 890 AND 892 OF 2020 F
G G
--------------------------------------
H HKSAR H
v
I I
WONG CHI FUNG 黃之鋒 (D1)
J J
SHUM LESTER 岑敖暉 (D2)
K YUEN KA WAI TIFFANY 袁嘉蔚 (D3) K
LEUNG JANNELLE ROSALYNNE 梁凱晴 (D4)
L L
---------------------------------------
M M
N
Before: His Honour Judge Stanley Chan N
Date: 6 May 2021
O O
Present: Mr Edward Lau, Senior Public Prosecutor (Ag), for HKSAR
P Mr Graham A. Harris, SC, leading Mr David Yuen K K, P
instructed by Ho Tse Wai & Partners, for the 1st, 2nd, 3rd and
Q Q
4th defendants
R Offence: Knowingly taking part in an unauthorized assembly (明知而 R
參與未經批准集結)
S S
T T
U U
V V
-2-
A A
B B
-------------------------------------
C REASONS FOR SENTENCE C
-------------------------------------
D D
E Background E
F F
1. Relating to this incident, there are a total of 37 cases with 24
G defendants. Orders of transfer were issued in October 2020. The G
4 defendants, together with Chu Hoi Dick Eddie (Chu) in DCCC 865/2020,
H H
were brought before the District Court on 3 November 2020. All of them
I were represented by Mr Man of Messrs Ho Tse Wai & Partners. The cases I
were further adjourned to 5 February 2021.
J J
K 2. On 5 February, the 4 defendants together with Chu, through K
Mr Man, indicated their guilty plea, and the plea and sentence of these
L L
defendants was fixed for 30 April 2021.
M M
3. All along, the proceedings were conducted in Chinese. By a
N N
letter of 26 April 2021, Chu’s lawyer, Mr Man wrote to court that by now
O Chu changed his mind and would not plead guilty to the charge. By another O
letter on the same day, Mr Man wrote to court that they have instructions to
P P
act for Chu and the other 4 defendants. They have engaged Mr Graham
Q Harris SC and Mr David Yuen of counsel to conduct mitigation on behalf Q
of the defendants, and would request the hearing be conducted in English.
R R
S 4. Because of the defence’s request, the proceedings are now S
conducted in English.
T T
U U
V V
-3-
A A
B B
5. On 30 April Mr Harris SC represented all 5 defendants, and
C formally indicated that Chu decided not to plead to the charge. The defence C
requested Chu’s case be adjourned to 11 June this year so that his case
D D
would be mentioned together with the other 19 defendants. I approved the
E request. E
F F
6. In relation to the other 4 defendants, the Prosecution applied
G for a consolidation of these 4 cases. The defence did not object to the G
application. Accordingly, the consolidated charge sheet was approved, that
H H
is to say, DCCC 876, 885, 890 and 892 of 2020 are now consolidated into
I one case. I
J J
7. All 4 defendants pleaded guilty to their respective charge and
K admitted the Summary of Facts as presented by the Prosecution. I K
adjourned the sentence to 6 May.
L L
M The Summary of Facts M
N N
[note: the following brief facts are a concise version of the Summary of
O facts presented by the Prosecution] O
P P
8. On 23 April 2020, Tsoi Yiu Cheong, on behalf of the Hong
Q Kong Alliance, submitted a notification to the Police making an application Q
to hold a public meeting in Victoria Park from 9 am to 10 pm on 4 June
R R
2020.
S S
9. After careful consideration, the Department of Health advised
T T
against holding of any mass gathering events on 4 June 2020.
U U
V V
-4-
A A
B B
C 10. On 1 June 2020, pursuant to s 9 of the Public Order Ordinance C
Cap 245, the Commissioner of Police issued a notice to the Hong Kong
D D
Alliance prohibiting the holding of the proposed public meeting in the
E interests of public order, public safety and the protection of the rights and E
freedoms of others.
F F
G 11. The Hong Kong Alliance did not appeal against the decision G
made by the Police to the Appeal Board on public meetings and
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processions.
I I
12. From around 4 pm to 5 pm on 4 June 2020, the police set up 9
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loud speakers’ device near or inside Victoria Park. Through these loud
K speakers’ device, the police broadcast certain public announcements until K
around 10:30 pm on the day. The announcements covered the following
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messages:-
M M
(a) issuance of a notice prohibiting against holding of
N N
public meeting,
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(b) participants would commit the offence of taking part in
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an unauthorized assembly
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(c) the warning about the spread of Covid-19 in the
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community, and
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(d) an appeal to the public that they should not participate
C in any unauthorized assembly and that group gathering C
was prohibited.
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E 13. The Leisure and Cultural Services Department also broadcast E
announcement to remind the public that group gathering of more than eight
F F
people was not allowed in Victoria Park and the football pitches in Victoria
G Park were all closed. No entry to these facilities was allowed. Various G
notices were also posted inside Victoria Park that the football pitches were
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closed until further notice.
I I
14. At about 6:25 pm on 4 June 2020, people started to gather at
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the water fountain plaza in Victoria park. At about 6:36 pm, Lee Cheuk
K Yan (Lee) led a group of around 100 people heading towards the football K
pitches in Victoria Park. Some reporters followed the group.
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M 15. At about 6:44 pm, D1 and D2 together with other participants M
entered Victoria park via the entrance at the junction of Gloucester Road
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and Great George Street.
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16. When Lee and other participants arrived at the north pavement
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near the football pitches No. 3 and 4, someone pulled away the mill barriers
Q which were used to close the football pitches. Participants entered the Q
football pitches. The number of participants grew and most of them were
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wearing black clothes, and were also holding candles.
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17. From about 7:09 pm to 8 pm, D1 to D4 sat together with others
C at football pitch No. 6. They were wearing black clothes with candles in C
their hands. Participants chanted political slogans.
D D
E 18. At about 7:12 pm, D1 was interviewed by a reporter and later E
Lee was seen chatting with the defendants. A man even took photos with
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D1 and D2.
G G
19. At about 7:54 pm, Lee used a loudhailer to shout various
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political slogans which were echoed by the crowd. Lee announced that the
I meeting would start at 8 pm and he also gave a speech. I
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20. At about 8 pm, D3, D4 and Chu passed a few bouquets of
K white flowers to Lee. D4 together with others put the flowers on the K
ground. At that time, there were around 20,000 participants.
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M 21. Lee led the crowd to mourn and to give a minute of silence. M
Thereafter, Lee together with the participants chanted political slogans and
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a video was played. Political songs were sung. There were some other
O activities held to commemorate the June 4th incident. O
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22. At about 8:43 pm, Lee announced the meeting was finished
Q and the crowd started to leave the football pitches. As captured in the media Q
footage, there were around 20,000 people participating in the public
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meeting inside Victoria Park at the material time.
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23. The unauthorized public meeting was broadcast live on the
C website of the Hong Kong Alliance. The program of this meeting was the C
same as the program posted on the Hong Kong Alliance’s online poster.
D D
Songs and video clips played during the meeting were available on the
E Hong Kong Alliance’s live broadcast on the internet. E
F F
24. Subsequently, certain words and phrases in relation to the June
G 4th incident were posted or written on the ground and on some facilities G
inside Victoria Park [see photos at Annex A to the Prosecution bundle].
H H
I 25. Between 7:33 pm and 9:14 pm, as there was a large crowd I
entering and leaving the Park, the police had to implement road closure and
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traffic diversions which caused certain road traffic obstructions in the
K vicinity. K
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26. Various videos from open source, videos from the police and
M CCTV footages captured the incident at Victoria Park that night. The M
relevant footage and the screen shots can be found at Annex B to K to the
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Prosecution bundle.
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Mitigation
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Q 27. The defence submitted 3 mitigation bundles. It was said since Q
1990, candlelight vigils have been held at Victoria Park on June 4 th each
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year. The 2020 vigil was peaceful. The defence said “by then, the turbulent
S times during the social unrest of 2019 had come and gone.” The S
inconvenience to the public was minimal. Road closures and traffic
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diversions were limited to a few streets in Causeway Bay area. The period
C of time for which D1 and D2 stayed inside the park was relatively short. C
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28. It was also said the defendants played a passive role at the
E vigil. The defence submitted that there was no or minimal imminence or E
threat to a breach of the peace, and it was a case which can be categorized
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as being at the less serious end of the spectrum for this kind of offence. The
G defence urged the court not to hand down any immediate custodial G
sentence.
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I 29. Personal biography of each and every defendant was provided. I
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30. D1 Wong is currently 24 years old and is single. He was a
K graduate of the Hong Kong Open University. He was a community officer K
or community development officer for two LegCo members at different
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times from September 2016 to December 2019. He had a criminal record
M starting from August 2016. M
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31. D2 Shum was born in the United States and is aged 27. He
O was married. He was a graduate of the Chinese University of Hong Kong. O
In November 2019, he was elected as a District Councilor. In June 2021, it
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was said he gave up his US citizenship. He had one criminal record back
Q in 2018. Q
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32. D3 Yuen is aged 27 and single. She was a graduate from the
S City University of Hong Kong. She was elected as a District Councilor in S
November 2019. D3 had a clear record.
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33. D4 Leung is aged 26 and single. She graduated from the Hong
C Kong Polytechnic University. She was also elected as a district councilor C
in Nov 2019. D4 had a clear record. The defence submitted a mitigation
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letter from the chairman of the Kwun Tong District Council urging the court
E to pass a lenient sentence. E
F F
Sentence
G G
34. All 4 defendants are represented by Mr Harris SC, an
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experienced criminal silk. Upon legal advice, they pleaded guilty to the
I charge against them. They admitted that the assembly on the day of the I
offence was unauthorized and they accepted their culpability. In my view,
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given the strength of the evidence against them, that is a wise decision. As
K the usual practice, they can get the full 1/3 discount in sentence. K
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35. The Basic Law guarantees freedom of assembly and
M procession for HK people. But it is established that such freedom and rights M
are not absolute and are subject to restrictions, regardless of the status of
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the participants and the purposes of the assembly.
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36. The facts of the case are straight forward. On 1 June 2020, the
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Commissioner of Police issued a notice to the Hong Kong Alliance,
Q prohibiting the holding of any public meeting in Victoria Park on 4 June Q
2020. The Hong Kong Alliance did not appeal against the decision. The
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prohibition notice was lawful and valid.
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37. All 4 defendants, being the participants, knew full well that the
C public meeting on 4 June 2020 was unauthorized. From the video footage, C
at certain stage of the public meeting, the defendants sat on the ground in a
D D
group. They wore black T shirts, some of the T shirts bore special design
E [see the photos attached to the mitigation bundle]. D1 was seen being E
interviewed and having photos taken. Each of the defendants posted their
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photos onto their respective social media sites [see the photos in the defence
G bundle]. G
H H
38. Defence counsel submitted that the defendants had observed
I the social distancing and put on masks in view of the pandemic. However, I
I think counsel omitted to mention one important factor. That is, from the
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very beginning, the public meeting was unauthorized. The fact that the
K participants wearing masks and/or maintaining any kind of social K
distancing cannot exonerate their culpability. Literally speaking, the
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defendants and other participants were saying to the public at large that they
M could enjoy more ‘freedom’ than others. On the other hand, the footage M
shows that there was a large crowd of people gathering in Victoria Park,
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not to mention the fact that the movement of the crowd would certainly
O generate traffic obstructions, health hazard and other risks factors. O
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39. Defence counsel also submitted that this incident was a
Q continuation of the 30-year odd candlelit vigil on June 4. There was no act Q
of violence, nor any damage to property. There was no reprehensive
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conduct. The 4 defendants did not intend, encourage or incite others to do
S so. It was submitted that the inconvenience caused to the public was S
insignificant. This incident was the first time the objection was based on
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public health consideration. Defence counsel urged the court to give full
C credit to the plea at first opportunity. C
D D
40. Defence counsel said that the defendants played a passive role
E at the public meeting. Obviously that is not the case as D1 and D2, being E
political figures, had their political purposes to serve. D2, D3 and D4 at
F F
that time were also District Councilors. At certain point in time, the
G defendants stood in a group and took a group photo, and they were not G
submerged in the crowd [see the photos provided by the defence].
H H
Undoubtedly, they occupied a special status, and they used the social media
I to ‘advertise’ their presence in the public meeting. I
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41. In SJ v Wong Chi Fung [2018] HKCFA 4, a case that D1 in
K this case was also involved, the Court of Final Appeal endorsed the Court K
of Appeal’s sentencing principles and the list of factors relevant to a
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decision on the appropriate sentence for unlawful assembly. The CFA also
M said it was right for the Court of Appeal to send the message that unlawful M
assemblies involving violence, even the relatively low degree of violence,
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would not be condoned and might justifiably attract sentences of immediate
O imprisonment in the future, given the gravamen of the offence involving O
the instigation of a risk and a fear of a breach of the peace due to the number
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of protesters involved. The CFA also promulgated specifically that it is not
Q the role or function of the courts of HKSAR to enter into any other political Q
debate. Instead the duty of the courts is, through an independent judiciary,
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to administer the law of the HKSAR and to adjudicate on the legal issues
S raised in any case according to the law. S
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42. In the CA judgment of that case, Poon JA [as he then was]
C provided a comprehensive approach to tackle the offence of unlawful C
assembly under the heading of H3 and deliberately designated another
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heading of H4 [starting from para 128 to 134 of the judgment] to deal with
E issues relating to ‘Disrupting public order with violence’. The CA made it E
clear, at para 123, that:“In sentencing, the court will consider the gravamen
F F
of the offence with which an offender is charged. The gravamen of the
G offence of unlawful assembly is the participants’ acting in large numbers G
and using those large numbers to achieve their common purposes.” The
H H
Court of Appeal further ruled, at para 125 to 126, that, “the fact that the
I offenders were trying to achieve their common goal by sheer numbers, is a I
characteristic common to all offence of massive public disorder. … when
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a large number of demonstrators are gathered, emotions are likely to run
K high, or the crowd may even become agitated, so that these situations have K
the inherent risk of breaking out into violence. Occasionally, unruly
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element may also be present, who would seize the opportunity to achieve
M the very objective of fomenting violence. Such risks cannot be M
overlooked… It follows that the provision on unlawful assembly under s 18
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is a necessary preventive measure, designed to nip in the bud the serious
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consequences which may arise from a breach of the peace or possible
P
breach of the peace.” P
Q Q
Accordingly, the CA stressed, at para 127, that:
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“On the basic premise that public order must be maintained, and
S taking into account the gravamen of the offence of unlawful S
assembly, the court, in passing sentence, not only has to impose
a penalty that is appropriate to the punishment of the offenders,
T but it also has to take into account the factor of deterrence. That T
is to say, a sentence must not only seek to prevent the offenders
from reoffending, but also to give a warning to deter others from
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B violating the law by breaking and disrupting public order in like B
manner.”
C C
43. In the case SJ v Chung Ka Ho [2020] HKCA 990, Pang JA
D D
made it clear that the gravamen of the offence is preemptive so that
E damages, if any, to social peace can be eradicated at an early stage and a E
sentencing court has to accord the element of deterrence with priority [see
F F
para 52 to 56 of the judgment]. In that case, the defendant, aged 24, pleaded
G guilty to the offence of unlawful assembly and originally was sentenced to G
a community service order of 120 hours. The Court of Appeal allowed the
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review of sentence and imposed an imprisonment term of 3 months.
I I
44. It is also worthy to mention that the case of Wong Chi Fung
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related to the offence occurred in September 2014 which was well before
K the unprecedented social turmoil of 2019. The present case occurred in K
June 2020 when the repercussions and impact of the 2019 turmoil still
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lingered on, and the risks factors cannot be underestimated.
M M
45. In the present case, it is clear that what the defendants did were
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deliberate and premeditated. They openly defied the law, knowing that they
O O
had no lawful authority for taking part in an unauthorized assembly, despite
P
all the public announcements broadcast by the police. The offence was P
committed on 4 June 2020. As I mentioned earlier, I cannot disregard the
Q Q
fact that Hong Kong was and is still suffering from the volatility of public
R order and political turmoil in 2019. Emotion can run high and unruly R
elements can take advantage of any opportunity to incite and encourage
S S
violence. That is especially the case when the event was held on a special
T day. This is a potential risk factor that cannot be underestimated or ignored. T
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46. I also have to consider the scale of the unauthorized assembly
C on the date of the offence. The video footages together with the screenshot C
photos [see the screenshot photos C to J attached to the Prosecution bundle]
D D
depict a large crowd of around 20,000 participants gathering on the football
E pitches. With such a crowd, it is not difficult to see the extent of disruptions E
to the traffic and other people in the vicinity when the participants entered
F F
and later exited Victoria Park.
G G
47. The only mitigating factor for all 4 defendants is their guilty
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plea, for which they can get 1/3 discount in sentence. They have their
I political belief and conviction, as such, there is no sign of any I
remorsefulness from any of the defendants.
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K 48. Defence counsel has suggested that a community service order K
is justified especially for D3 and D4. The CA in the case of Wong Chi Fung
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abovementioned [at para 146 and 147] made it clear that,
M M
“The court has always considered genuine remorse as a
N precondition for receiving a community service order. If no N
genuine remorse is demonstrated, the court would normally
refuse to make a community service order.
O O
Genuine remorse means that the offender acknowledges that he
P has committed an offence and shows remorse for what he has P
done and caused.
Q If the offender considers that his prosecution is, in itself, not Q
justified and maintains that particular view even upon conviction,
R that would be a clear indication that he is still refusing to accept R
what he has done is unlawful. In that case, the court will not
accept his claim of genuine remorse, for such a claim contradicts
S his stance that the prosecution was unjustified.” S
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C 49. I bear in mind that the defendants were charged with C
unauthorized assembly, not unlawful assembly, but the maximum sentence
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under both provisions, namely s 17A(3)(a) and s 18 of Cap 245, is the same.
E I am also of the view that the sentence should reflect the element of E
deterrence, not just to reflect the culpability of the defendants who
F F
committed the offence on the day, but also to deter people from offending
G and re-offending in future. G
H H
50. Taking all factors into account, I sentence the defendants as
I follows:- I
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D1 Wong
K K
51. He is aged 24 and had a total of 6 convictions, with 3 similar,
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since August 2016. It is to be noted that D1 committed the present offence
M while on court bail when D1 was charged with offences relating to M
unauthorized assembly in Aug 2019 [Court reference WK/2289/2020].
N N
That is an aggravating factor. I consider the sentencing principles
O promulgated by the CA in the case of Wong Chi Fung. I adopt a starting O
point of 15 months’ imprisonment. With his guilty plea, I reduce the
P P
sentence to 10 months.
Q Q
52. D1 was last discharged in July 2019. He committed the
R R
present offence in June 2020. D1 is currently serving a 4-month
S imprisonment term after he was convicted of the offences of taking part in S
an unauthorized assembly and using facial covering. As such, he is a repeat
T T
offender. I have considered the totality principle and take the view that an
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accused person should not get more discount if he committed more similar
C offences. That is a wrong message to the public. Accordingly, I order that C
the present sentence should run consecutive to the sentence that D1 is
D D
serving at the moment.
E E
D2 Shum
F F
G 53. He is 27 years old and got married in 2020. He had one G
conviction of contempt of court in 2018 and was sentenced to one month’s
H H
imprisonment which was suspended for 12 months.
I I
54. He was elected in 2019 as a district councilor and assumed
J J
office in 2020. Similarly, D2 will have 1/3 discount in sentence because of
K his plea. I adopt a starting point of 9 months’ imprisonment and reduce the K
sentence to 6 months.
L L
M D3 Yuen M
N N
55. She is aged 27 and had a clear record. Similarly, she was
O elected as a district councilor in 2019 and assumed office in 2020. I will O
give her 1/3 discount because of her plea. I adopt a starting point of
P P
6 months’ imprisonment and reduce it to 4 months.
Q Q
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D4 Leung
C C
56. She is aged 26 and had a clear record. She was pursuing her
D D
career in accounting. She assumed the office of district councilor in 2020.
E Because of her plea, she will have 1/3 discount in sentence. I adopt a E
starting point of 6 months’ imprisonment and reduce it to 4 months.
F F
G G
H H
I ( Stanley Chan ) I
District Judge
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K K
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M M
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O O
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