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DCCC 534/2020
C [2021] HKDC 645 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 534 OF 2020
F F
G ---------------------------- G
HKSAR
H H
v
I CHAN HO WUN (D1) I
LEE CHEUK YAN (D2)
J J
LEUNG KWOK HUNG (D3)
K HO CHUN YAN (D4) K
YEUNG SUM (D5)
L L
HO SAU LAN CYD (D6)
M NG MAN YUEN AVERY (D7) M
LAI CHEE YING (D8)
N N
SIN CHUNG KAI (D9)
O TSOI YIU CHEONG RICHARD (D10) O
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P P
Q Before: Her Honour Judge Amanda J Woodcock in Court Q
Date: 28 May 2021
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Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior
S Public Prosecutor (Ag) and Mr Edward Lau, Senior Public S
Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
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The 1st defendant appeared in person
C Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and C
th
6 defendants
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Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat,
E instructed by Kenneth Lam Solicitors, assigned by the E
Director of Legal Aid, for the 3rd defendant
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Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse
G Wai & Partners, for the 4th, 5th & 9th defendants G
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by
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JCC Cheung & Co, assigned by the Director of Legal Aid, for
I the 7th defendant I
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr
J J
Ernie Tung, instructed by Robertsons, for the 8th defendant
K Mr Edward Poon, instructed by Tang, Wong & Chow, for the K
10th defendant
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Offences: [1] Incitement to knowingly take part in an unauthorized
M assembly（煽惑他人明知而參與未經批准集結） - D1-D4 M
[2] Making an announcement of an unauthorized public
N N
st
procession (alternative to the 1 Charge)（公告一個未經批
O O
准的公眾遊行）(第一項控罪的交替控罪) - D1-D4
P [3] Organizing an unauthorized assembly（組織一個未經批 P
准集結） - D1-D10
Q Q
[4] Knowingly taking part in an unauthorized assembly（明
R R
知而參與未經批准集結） - D1-D10
S -------------------------------------- S
REASONS FOR SENTENCE
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1. The 1st to 4th defendants pleaded guilty to Charge 1,
C unlawfully inciting other persons unknown to, without lawful authority or C
reasonable excuse, knowingly take part in an unauthorised assembly,
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contrary to Common Law and section 17A(3)(a) of the Public Order
E Ordinance, Cap 245 and punishable under section 101I of the Criminal E
Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
F F
G 2. All 10 defendants pleaded guilty to Charge 3, organising an G
unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public
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Order Ordinance.
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3. The 7th and 10th defendants pleaded guilty to Charge 4,
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knowingly taking part in an unauthorised assembly, contrary to section
K 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 K
was ordered to be kept on the court file, not to be dealt with unless there is
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leave from this court or the Court of Appeal.
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The Facts
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O 4. The particulars of Charge 1 refer to a press conference held O
on 30 September 2019 by the first four defendants where they admit
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unlawfully inciting other persons unknown to, without lawful authority or
Q reasonable excuse, knowingly take part in a public procession which was Q
an unauthorised assembly.
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S 5. The particulars of Charge 3 refer to all the defendants S
organising a public procession which was an unauthorised assembly on 1
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October 2019, and the 7 and 10 defendants admitting they knowingly
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took part in that unauthorised public procession without lawful authority
C or reasonable excuse, Charge 4. Full particulars of the offences are set out C
in the Amended Summary of Facts and admitted by all defendants on 17
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May 2021.
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6. The Commissioner of Police had prohibited the holding of
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public meetings and a public procession on 1 October 2019 by the Civil
G Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. G
The CHRF stated the purpose of the proposed meetings and procession to
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be “October 1 procession: 5 demands, not one less”.
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7. The police put in writing in a letter of objection why they
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prohibited the holding of the public meetings and objected to the holding
K of a public procession. It was made in the interests of public safety, public K
order and the protection of the rights and freedoms of others. It was based
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on the numerous violent incidents arising from public meetings or
M processions organised by the CHRF and other organisations between June M
and September 2019. They listed out those various incidents that turned
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violent in the letter.
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8. The CHRF appealed that decision and on 30 September 2019
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the Appeal Board confirmed the Commissioner’s decision; the appeal was
Q dismissed. It agreed that the events posed a serious threat and risk to Q
members of the public and participants.
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S 9. Shortly after the Appeal Board’s determination the CHRF S
held a press conference expressing their anger and disappointment at the
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Hong Kong Government’s refusal to let citizens express their views in a
C lawful manner. The 1st defendant was part of this press conference. C
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10. The Police Public Relations Branch held a press conference
E on the same day to explain the decision of the Commissioner of Police in E
detail. It was widely broadcasted. They urged the public not to participate
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in any unlawful public events on 1 October because there was a substantial
G risk of violence based on the escalation of violence and wanton destruction G
over the past 3 months. They gave specific examples of recent violence.
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They also shared details of the intelligence they had received relating to
I the public holiday, National Day, 1 October. They used screenshots of I
intelligence and Internet messages to demonstrate their concern.
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K 11. Their intelligence indicated hard-core rioters were planning K
many attacks on 1 October all over Hong Kong. There was an appeal to
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kill police officers and suggestions to disguise themselves as police officers
M to kill others and blame the police. There were calls to set fire to shopping M
malls to cause huge destruction. There was a call to hurl petrol bombs into
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shopping malls and MTR stations as well as petrol stations. There was a
O call for suicide bombers to carry out lethal attacks or rather those that were O
suicidal to volunteer for suicide missions. The police stressed that their
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intelligence was good and the risks were very real. They urged the public
Q to stay at home for their own safety. The transcript of that conference is Q
Exhibit P39 A and B.
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S 12. In the afternoon of 30 September, the 1st to 4th defendants held S
another press conference outside the Court of Final Appeal attended by
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many news media outlets and widely broadcasted. They all jointly incited
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the public to join them and participate in an unauthorised public procession
C from Causeway Bay to Central on 1 October, the following day, C
notwithstanding the decision of the Commissioner and the Appeal Board.
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The transcript and translation of that conference is Exhibit P26A and B.
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13. The 1st defendant posted on his Facebook page on the same
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day following that press conference to continue to incite the public to
G participate. He posted more messages in the morning of 1 October 2019 G
inciting the public to join him and the 2 nd to 4th defendants in Causeway
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Bay to march to Central.
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14. Later, from about 12:20 pm all the defendants arrived at Great
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George Street in Causeway Bay with the last defendant, the 10th defendant
K arriving at about 1:11 pm just as the defendants headed the procession with K
a banner and started to lead the way to Central. The Summary of Facts set
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out what they did, who spoke to the press, what they said, what same
M sloganed T-shirts some wore and what chants were led by some and M
repeated by others before they set off. All 10 defendants pleaded guilty to
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Charge 3 organising this unauthorised assembly together.
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15. They all formed the head of the public procession by either
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holding the banner or walking behind those holding the banner. This
Q banner demanded the end of dictatorial rule and a return of power to the Q
people. They led thousands of participants from Causeway Bay, to
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Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road
S Central and eventually arriving at the junction of Pedder Street and Chater S
Road. All along the route they led the chanting of political slogans that
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were anti-police, anti-government, anti-China, calling for universal
C suffrage and for their 5 demands, not one less. C
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16. On Hennessy Road the 2nd defendant announced a minute of
E silence to mourn National Day when they reached Wanchai MTR station. E
There were police officers stationed on a footbridge on O’Brien Road to
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defend Wanchai MTR station from potential vandalism. The police
G officers were abused with foul language by many protesters who clearly G
became emotional.
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17. After a minute of silence and when the banner group moved
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nd
off again past that footbridge, the 2 defendant can be seen pointing his
J finger at those police officers above and then holding up 5 fingers. Many J
participants followed suit and continued to abuse those officers above.
K K
L 18. Along this route led by the banner group the prosecution L
highlighted acts of vandalism and obstruction as well as the obvious fact
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that those roads and other roads connected to those roads were blocked off
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for traffic and transport. Black clad protesters spray-painted the street,
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others moved barriers, traffic cones and bins to block and barricade several O
roads along the route of the procession. Others vandalised public property.
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These were all incidents filmed by media outlets before the banner group
Q arrived in Central. Q
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19. At 2:25 pm the whole banner group arrived in Central and
S then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th S
defendants stood in close proximity. These speeches are transcribed and
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translated at Exhibit P54A and B. As those speeches finished a black clad
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protester is seen kicking and then throwing another traffic cone in front of
C a moving minibus at that same junction. The protesters were thanked for C
their support and participation but not urged or told to disperse. In fact,
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thousands continued to march past this junction towards the Liaison Office
E of the Central People’s Government. Traffic was seriously disrupted, E
vandals spray-painted public property, roads were barricaded on the way
F F
and many can be seen carrying long bamboo sticks. They were met by a
G police blockade. G
H H
20. All the acts highlighted by the prosecution to show this
I procession was not peaceful and that there was violence and reprehensible I
conduct were all gleaned from hours of footage from several media outlets.
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Much of this was played in open court; MFI-1 is a playlist of video footage
K relied on by the prosecution and played. K
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21. The prosecution also relies on video footage of unlawful
M behaviour, criminal damage, arson and violence filmed during the course M
of that public procession but after the head of the procession had reached
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its destination point in Central. Obviously, the procession stretched back
O a significant distance and all its participants did not arrive at the same time O
at the finishing point. This unauthorised assembly did not start and end
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with the defendants; the procession had a head, body and tail.
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22. The body of the procession was still walking through Wanchai
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at 4:30 pm. Video footage captures bricks being thrown towards police
S stationed on a footbridge near the Police Headquarters and laser beam S
interference. At about the same time groups of protesters gathered at
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Admiralty outside the Central Government Offices throwing petrol bombs.
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There were petrol bombs thrown along or near the route of the public
C procession in Admiralty and Wanchai with explosions heard and fires C
raging.
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E 23. The major roads and side roads from Causeway Bay to the E
Western Harbour Crossing were occupied by protesters causing serious
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disruption to traffic. Over a hundred bus routes were affected and tram
G services suspended. Vehicles were stuck on roads and unable to leave. G
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24. All shops and restaurants on the procession route were
I affected. They were almost all closed. Shops and restaurants in Causeway I
Bay and Wanchai rarely close on a public holiday in Hong Kong; their
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businesses suffered.
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Principles of Sentencing
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M 25. I adopt my principles of sentencing from both DCCC M
536/2020 and DCCC 537/2020. I found there was a need in those cases
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for a deterrent and punitive approach in sentencing and that an immediate
O term of imprisonment was the only appropriate sentencing option. O
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26. I took into account HKSAR v Chow Ting HCMA 374/2020
Q where Barnes J, in that bail application, agreed the magistrate in sentencing Q
the applicant to a term of imprisonment for the offence of incitement to
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knowingly take part in an unauthorised assembly and knowingly taking
S part in an unauthorised assembly could draw on sentencing factors set out S
in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699
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notwithstanding they were for offences of unlawful assembly.
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C 27. Wong Chi Fung was an application for review for offences C
relating to unlawful assemblies. The Court of Appeal held that the use or
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threat to use violence was an aggravating factor and the sentence must
E provide for both punishment and deterrence. Deterrence is necessary to E
maintain public order. Sentencing principles for unlawful assemblies
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involving violence were set out in paragraph 108 of that authority by Poon
G JA, as he then was. G
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28. Poon JA identified the inherent risk of large gatherings when
I he says that from experience, when large numbers of demonstrators gather I
together, emotions will run high and the crowd may become agitated so
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that these situations have the inherent risk of breaking out into violence.
K There will be those who seek to instigate violence from volatile situations, K
therein lies the risk that cannot be ignored.
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M 29. The Court of Appeal in the later judgement of Secretary for M
Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in
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Wong Chi Fung not only applicable to unlawful assembly involving
O violence. In paragraph 54 it is made clear that it is unreasonable to divide O
unlawful assemblies by violence when passing sentence. Even if there is
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no actual violence, the court should take into consideration the threat and
Q imminent risk of violence and actual breach of peace caused by criminal Q
acts.
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S 30. That court said at paragraph 56, “To conclude, there is S
absolutely no basis to say that the decision in Wong Chi Fung solely applies
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to an unlawful assembly involving violence. The decision in Wong Chi
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Fung never held that cases not involving actual violence should not be
C given a strong punitive and deterrent sentence. All have to depend on the C
actual circumstances of each case.” (Quoted from the English translation
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prepared by the Prosecution in their List of Authorities, MFI-10)
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31. The actual circumstances of this case involves an
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unauthorised assembly but it does not mean I cannot take into account the
G criminal and violent acts committed by those who were with the G
unauthorised assembly and procession.
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32. As far as the incitement charge is concerned, I have taken into
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account the recent authority of Secretary for Justice v Poon Yung Wai
J (2021) HKCA 510. The Court of Appeal found on those facts that an J
incitement to unlawful assembly involving violence called for a severe and
K K
deterrent immediate custodial sentence. Here, there was incitement to take
L part in an unauthorised assembly with peace advocated but I have taken on L
board the discussion in that authority and drawn from it; the gravamen of
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this offence can, depending on certain factors, attract a punitive and
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deterrent sentence.
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33. Since preserving public order is important and deterrence a
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consideration, I have also taken into account the prevailing circumstances
Q at the time some defendants incited others to take part in and all organised Q
together that unauthorised assembly. The context in which a crime is
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committed is of relevance to assessing its gravity and the culpability of
S offenders. S
T 34. When these offences were committed in the present case, the T
social unrest from June 2019 had escalated over the ensuing months and
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became relentless, increasingly violent and disturbing. There was social
C unrest, protesting and violent eruptions almost every day by and during the C
month of September. Some of them were riots or violent unlawful
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assemblies of large-scale and lengthy durations. On 29 September 2019,
E the day before Charge 1, approximately 200 petrol bombs were thrown by E
protesters. All sentencing principles applied to determine an appropriate
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sentence should take into account the prevailing tumultuous situation in
G Hong Kong at that time. G
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35. Therefore, in my view, the sentencing principles such as
I protecting the public, meting out penalties, open condemnation and I
deterrence as set out by Poon JA in Wong Chi Fung are applicable to all
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these charges. Meting out penalties will be commensurate with the offence
K committed and the facts. One that reflects the seriousness of the facts and K
the culpability of each offender.
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Reasons for Sentence
M M
N 36. The Basic Law and the Bill of Rights both guarantees the right N
of assembly and right of expression for Hong Kong residents. However,
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these rights are not absolute and are subject to restrictions imposed by law.
P The 3rd defendant in this case has previously challenged the P
constitutionality of those restrictions imposed by law. That challenge was
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ultimately considered by the Court of Final Appeal and the statutory
R requirement for notification was ruled constitutional; Leung Kwok Hung & R
Others v HKSAR (2005) 8 HKCFAR 229.
S S
T 37. Many other jurisdictions in the world have the same or very T
similar requirements. These freedoms are enjoyed subject to those
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restrictions and irrespective of a person’s politics. I add here that the
C politics, beliefs, opinions of any of the defendants and the strength of their C
convictions are irrelevant to sentencing.
D D
E 38. I have taken into account what each of the 1st to 4th defendants E
said in their press conference on 30 September to incite members of the
F F
public to come out in droves the following day to participate in a procession
G banned by the Police. A reading of the transcript shows they know a G
procession is subject to restrictions and when those restrictions were
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imposed, that is when the Police refused to issue a letter of no objection,
I then they called on others to join them to defy the police and ignore the law I
by declaring they were only exercising their right to a peaceful procession.
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K 39. The content and tone of the conference and Facebook posts K
was that they had the right to peaceful procession and did not need the
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Police approval to demonstrate and repeated it over and over again. They
M did call for a peaceful, rational and non-violent procession but how naive M
and unrealistic was that considering what was happening on a daily basis
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was the opposite. This is not with hindsight. The risk was very real every
O day at that time. In fact, even the 2nd defendant prefaced it with “This time, O
we will demonstrate in a peaceful, rational and nonviolent manner.” (Page
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4 of P26B translation).
Q Q
40. I have also taken into account what each defendant is recorded
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as saying when interviewed either on the 30 September or 1 October 2019.
S It was publicly said by many and over and over again that their rights have S
been suppressed, the law is unfair and they have been deprived of their
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freedom. By saying it over and over again does not make a statement come
C true or mitigate the circumstances. C
D D
41. During the press conference on 30 September when there was
E incitement there was anger because of the decision of the Police and the E
Appeal Board. The defendants were angry and frustrated that the Police
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objected to CHRF’s public meetings and procession on National Day.
G G
42. I do not agree with the submission that the defendants, all well
H versed in the Public Order Ordinance and the law, honestly believed the H
prohibition on holding a procession without police permission breached
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their constitutional right of freedom of assembly.
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43. In the context in which these offences were committed, it was
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naive to believe a rallying call for peaceful and rational behaviour would
L be enough to ensure no violence. The submission that this honest belief L
explains their actions, that their moral culpability is relevant and their
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intent to organise a peaceful assembly was genuine carries little weight.
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44. I note that no defendant ever addressed the reasons for the
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Police objection and the Appeal Board’s decision. They did not refute them
P or counter them. They did not make any mention of the intelligence P
received by the police which directly related to unruly elements planning
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violence on that same day. The Police publicly put on record their
R intelligence and what was on the Internet for all to see yet particularly the R
first 4 defendants did not see it necessary to address this despite their
S S
incitement other than to say their procession would be peaceful and non-
T violent. I repeat, I find that often repeated statement was naive and T
unrealistic.
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C 45. All defendants have stressed that they intended the procession C
to be peaceful and submitted that they cannot be held accountable for
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anything unlawful or illegal that happened out of sight or after they arrived
E at the final destination and declared the procession over. However, they E
organised the unauthorised assembly and 4 of them emotively encouraged
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and incited people to participate in it. Actions have consequences for
G everyone irrespective of who they are. G
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46. These charges involve an unauthorised assembly but it does
I not mean I cannot take into account the criminal and violent acts committed I
by those who were with the unauthorised assembly and procession. The
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evidence shows that the line between peaceful assembly and conduct which
K disrupts or threatens to disrupt public order was crossed. K
L L
47. The fact there was criminal damage, acts of violence, weapons
M carried, roads blocked and fires started on or along the route of the M
procession and carried out by participants or people in the vicinity of the
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procession is evidence I can consider and evidence it was not peaceful.
O Public order was affected and the inherent real risk of violence erupting O
where there were large crowds gathered did materialise.
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Q 48. The fact that the defendants made conscious decisions to Q
break the law and challenge public order in this manner during such
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volatile times is a serious factor.
S S
49. After careful consideration of the above principles, factors
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and relevant evidence directly related to this unauthorised assembly as well
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as submissions in mitigation, an immediate term of imprisonment is the
C only appropriate sentencing option. C
D 50. I do not find a term of imprisonment appropriate or impose a D
term of imprisonment because of or for participating in a peaceful assembly.
E E
In any event, the facts show it was not peaceful and the defendants must
F have been well aware of the very real risk that that line would be crossed F
as it had so very often in those months and even days before. Despite this,
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the real risk was ignored and public order jeopardised.
H H
51. What this also means for the motive put forward by several
I I
defendants, that they committed the offences as acts of civil disobedience,
J is that it does not carry significant weight. The submission that their J
behaviour is a form of civil disobedience is not a significant mitigating
K K
factor here. To conform to civil disobedience, the facts must show the acts
L were peaceful and non-violent. L
M Mitigation M
N N
52. At the time of these offences, all the defendants except for the
O 3rd, 7th and 10th defendants had clear records. The 10th defendant has one O
previous conviction for taking part in an unlawful assembly in 1993. The
P P
th
7 defendant had 2 previous convictions and was in breach of a suspended
Q sentence imposed on the 11 September 2019 for 2 counts of inciting others Q
to take part in an unlawful assembly contrary to section 18 of the Public
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Order Ordinance. This sentence was imposed 3 weeks before he
S committed these offences under the same Ordinance. The 3 rd defendant S
has many previous convictions, 17 in total. They all involve offences of a
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similar nature and many relate to public order offences. None of these
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previous convictions mentioned above were offences motivated by greed,
C corruption, anger or dishonesty. C
D D
53. Since this offence all but the 1st, 7th, 9th and 10th defendants
E have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 E
for either organising an unauthorised assembly and/or taking part in an
F F
unauthorised assembly on 18 August 2019 and 31 August 2019
G respectively, only weeks before the commission of these offences here. G
H H
54. The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after
I trial in DCCC 536/2020 and the 2 nd, 5th and 8th defendants pleaded guilty I
in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
J J
55. The facts of this case and those 2 cases cannot be compared.
K K
In my view, the prevailing tumultuous situation in Hong Kong was even
L more volatile by 1 October 2019. L
M M
56. I have heard full mitigation on behalf of all the defendants.
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Many have provided me with a significant number of mitigation letters and
O
biographies relating to their careers and public service. I have read and O
taken them into account.
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Q 57. Most defendants submit that these charges and facts do not Q
call for a custodial sentence and if they did then a suspended sentence
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would be appropriate. It has been highlighted that there are no guidelines
S or tariffs for sentencing these charges involving unauthorised assemblies. S
It has been stressed that the 1st to 4th defendants advocated for a peaceful,
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rational and non-violent public procession. They did not intend any
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violence or reprehensible conduct. When the procession ended, meaning
C when they as the head of the procession arrived at the finishing point in C
Central, there had been no violent incidents attributable to the procession.
D D
E 58. It was stressed that none of the defendants were present during E
and certainly did not instigate or condone any of the violence seen on the
F F
video footage shown in open court. It has been submitted that the
G disruption to the roads and public transport system was not so severe and G
the scale of the procession was large but not as large as past unauthorised
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processions such as in DCCC 536/2020.
I I
59. I have reminded myself that the starting point for each charge
J must be commensurate with the offence committed. Deterrent sentences J
must prevail here and therefore; personal individual mitigation may not
K K
carry much weight unless exceptional.
L L
60. The 1st to 4th defendant committed both Charges 1 and 3 and
M M
I differentiate their roles from the other defendants. They incited others to
N join an unauthorised assembly they organised. In light of the necessity of N
a deterrent sentence, positive good character, previous clear record or
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personal exceptional mitigation carries little weight.
P P
nd rd th
61. In any event, the 2 , 3 and 4 defendants are offenders who
Q were involved most recently in DCCC 536 and/or DCCC 537/2020, only Q
weeks before 30 September 2019. In that same vein and for the same reason,
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th th th
that also applies to the 5 , 6 and 8 defendants as well. Their previous
S good character and personal individual mitigation carries little weight in S
this case.
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Charge 1 - Starting Point
C C
62. To arrive at an appropriate starting point for charge 1, inciting
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others to knowingly take part in an unauthorised assembly, I have taken
E into account several factors. That includes the means of incitement and the E
number of people covered; the 1st to 4th defendants arranged a premeditated
F F
press conference outside the Court of Final Appeal with many media
G outlets present to ensure maximum publicity. Then the effects of G
incitement were amplified by the 1st defendant’s Facebook posts.
H H
I 63. I have taken into account what each of these 4 defendants said I
during it to incite others. They made it clear they needed large numbers to
J J
come out and since the meeting point was Causeway Bay with a finishing
K point in Central then it was foreseeable that that whole area would be K
paralysed. The route of the march included Wanchai and Admiralty which
L L
had been the scene of many recent violent clashes. The inherent risk of
M violence breaking out was high. M
N N
64. As I have indicated above, I have taken into account that each
O defendant then went on to commit charge 3, organising that unauthorised O
assembly. Their culpability is higher than the other defendants in this case.
P P
Q Q
65. After all relevant factors are taken into consideration, in my
R R
judgement, a starting point of 24 months’ imprisonment is appropriate.
S S
Charge 3 - Starting Point
T T
U U
V V
- 20 -
A A
B B
66. I find the other defendants, the 5th to 10th defendants, equally
C culpable in organising this unauthorised assembly. It is true some spoke to C
the press, some walked in front of others holding the banner, some replied
D D
to political slogans, others took the lead to chant the slogans whilst others
E did very little except be with the core group of organisers. E
F F
67. After all relevant factors are taken into consideration, in my
G judgement, a starting point of 24 months’ imprisonment is appropriate for G
the 1st to 4th defendants.
H H
68. For the 5th to 10th defendants I take a starting point of 18
I I
months’ imprisonment.
J J
Charge 4 - Starting Point
K K
L 69. The 7th and 9th defendants pleaded to charge 4, knowingly L
taking part in this unauthorised assembly. In light of the facts, close nature
M M
of the charges and totality principle I intend to make sentences for charges
N N
3 and 4 concurrent.
O O
70. After all relevant factors are taken into consideration, in my
P P
judgement, a starting point of 12 months’ imprisonment is appropriate.
Q Q
71. All defendants indicated their pleas before their trial
R commenced but after trial dates were set. I have taken into account the R
authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a
S S
discount of 25% or just under to the starting point for their pleas.
T T
U U
V V
- 21 -
A A
B B
The 1st defendant
C C
72. The defendant is now 25 years old and at the time of the
D D
offence was the vice convenor of the CHRF.
E E
73. The 1st defendant chose to represent himself in mitigation and
F F
read out a letter in open court. He reiterated that he committed the offences
G but had committed no wrongdoing. He committed the offences as acts of G
civil disobedience. His letter is marked MFI-2.
H H
I 74. After a discount of 25% or 6 months is applied to the starting I
point of 24 months for both Charges 1 and 3, I sentence the 1 st defendant
J J
to 18 months’ imprisonment for each charge.
K K
The 2nd defendant
L L
M 75. I have a letter from the 2nd defendant explaining his ideals, M
intentions and commitment. I have taken into account the other 6
N N
mitigation letters and their contents. They reiterate his long dedication to
O public service, in particular the welfare of workers and labour rights. I have O
considered everything said in mitigation as well as all the mitigation
P P
material in MFI-3.
Q Q
76. After a discount of 25% or 6 months is applied to the starting
R R
nd
point of 24 months for both Charges 1 and 3, I sentence the 2 defendant
S to 18 months’ imprisonment for each charge. S
T T
U U
V V
- 22 -
A A
B B
The 3rd defendant
C C
77. I have considered submissions, medical details and the many
D D
mitigation letters from all walks of life who admire him, are indebted to
E him and support him. The contents of the letters illustrate his long-term E
genuine commitment to social injustice and the need to raise public
F F
awareness of it. He has involved himself with the welfare of migrant
G workers, refugees, the homeless, the elderly and other underprivileged G
groups. I have been furnished with a list of judicial review applications
H H
made by the 3rd defendant over many years. In submissions, it is explained
I that he committed these offences as acts of civil disobedience. I
J J
78. I have a letter from the 3rd defendant himself. He has pleaded
K guilty but admits no wrongdoing. He explains why despite knowing he was K
breaking the law, he nevertheless made a public appeal for others to
L L
participate in this unauthorised assembly. He explains his commitment and
M long-term fight for democracy and justice. However, he does not attempt M
to justify his actions. He accepts full responsibility for the consequences of
N N
his actions.
O O
79. I have taken into account his mitigation bundle, MFI-4. I have
P P
been asked to take into account the sentences I imposed in DCCC 536/2020
Q and DCCC 537/2020. However, other than the fact some defendants are Q
repeat offenders, it is not appropriate to compare the cases albeit the
R R
rd
offences are similar. I have been urged not to make the 3 defendant liable
S for offences committed by assembly participants or onlookers acting S
independently.
T T
U U
V V
- 23 -
A A
B B
80. After a discount of 25% or 6 months is applied to the starting
C point of 24 months for both Charges 1 and 3, I sentence the 3 rd defendant C
to 18 months’ imprisonment for each charge.
D D
E The 4th, 5th and 9th defendants E
F F
81. I have considered the submissions, biographies and list of
G authorities in the mitigation bundle, MFI-5. It has been urged upon me to G
give weight to the fact that the 4 defendants who incited others stressed
H H
publicly that the procession must be peaceful. I should also take into
I account that on the whole, the procession was peaceful and sentence on I
that basis. The reprehensible conduct was not incited by either the 4 th, 5th
J J
or 9th defendants.
K K
82. It was submitted that the defendants committed these offences
L L
because they honestly believed that the Police were abusing their power to
M object to peaceful demonstrations and depriving the defendants of their M
constitutional right to peaceful assembly.
N N
O
83. It has been submitted that although the 4th and 5th defendant O
were involved in similar offences only in August 2019 and were repeat
P P
offenders, all offences arose from the social unrest in 2019 which was
Q ongoing. It is submitted that their criminality overlapped and that their Q
motives for committing these offences repeatedly were common and
R R
consistent. I was urged to continue to suspend any term of imprisonment
S for the 4th and 5th defendant and suspend any sentence of imprisonment S
against the 9th defendant.
T T
U U
V V
- 24 -
A A
B B
84. I have a statement from the 5th defendant who says he pleads
C guilty but does not admit any wrongdoing because he was participating in C
an act of civil disobedience. He sets out his personal views. It was
D D
submitted on behalf of all the 3 defendants that their motive, their acts of
E civil disobedience are relevant to sentencing. E
F F
85. I have now been given further detail of the 4th defendant’s
G lesser-known public office appointments to further demonstrate his public G
service. He was given a suspended sentence by me in DCCC 536/2020
H H
where I considered his mitigation, background, public service and
I commitment to the community was such that it justified suspending a term I
of imprisonment.
J J
86. However, this is a repeat offence with an additional charge
K K
and more serious factors in a very short period of time in even more
L tumultuous times and I no longer find a suspended sentence appropriate. L
After a discount of 25% or 6 months is applied to the starting point of 24
M M
months for both Charges 1 and 3, I sentence the 4 defendant to 18 months’
th
N N
imprisonment for each charge.
O O
th
87. The 5 defendant was given a suspended sentence by me in
P P
DCCC 537/2020 where I considered the facts of that case, his previous
Q clear record, background, public service and Silver Bauhinia Star Award. Q
R 88. Similarly, I no longer find a suspended sentence appropriate R
under the circumstances. After I rounded down the discount of 25% applied
S S
to the starting point of 18 months for charge 3, I sentence the 5th defendant
T to 14 months’ imprisonment. T
U U
V V
- 25 -
A A
B B
89. The 9th defendant was not involved in either of those 2
C previous cases. He is now 61 years old, married with 2 children. I have C
been appraised of his distinguished public and community services,
D D
including a Silver Bauhinia Star Award in 2007. It was awarded for his
E distinguished public and community service, in particular for his E
contribution to the development of information technology. He has served
F F
on no less than 24 statutory or advisory boards, committees and councils.
G He is a long-term District Board member, was a Regional Council and later G
a Legislative Council member.
H H
90. After I rounded down the discount of 25% applied to the
I I
starting point of 18 months’ for charge 3, I sentence the 9 defendant to 14
th
J months’ imprisonment. J
K K
91. I find his mitigation, long public service and award gives me
L a valid reason to find it appropriate to suspend his sentence for 24 months. L
In addition, he played a very passive role in organising this unauthorised
M M
assembly. He was first seen half an hour before the procession started and
N was stood with the 1st to 3rd defendant when they gave a press conference N
at the beginning and at the end. He walked behind those holding the banner
O O
during the procession and was not interviewed nor vocal during it.
P P
The 6th defendant
Q Q
R 92. Although I sentenced the 6th defendant to a term of R
imprisonment in DCCC 536/2020 and heard mitigation on that occasion, I
S S
now have more details, more letters and in particular a letter from the 6 th
T defendant herself to consider, MFI-6. I have taken into account her T
personal letter which sets out her family background, upbringing and how
U U
V V
- 26 -
A A
B B
and why she has come to cherish the freedom of expression and freedom
C of assembly for Hong Kong. She laments the lack of trust between the C
administration and the public; she sees reconciliation as necessary to move
D D
forward.
E E
93. It was stressed that the 6th defendant was a Legislative
F F
Councillor and in between 1998 and 2016 she was involved in over 150
G bills committees which demonstrates her dedication and work ethics. I G
have received a list of those Bills gazetted. I have received 2 more letters
H H
from people of different backgrounds who speak on her behalf.
I I
94. After I rounded down the discount of 25% applied to the
J starting point of 18 months for charge 3, I sentence the 6th defendant to 14 J
months’ imprisonment.
K K
L The 7th defendant L
M M
th
95. Written mitigation and authorities for the 7 defendant are
N N
exhibited at MFI-7. It includes a letter from the 7th defendant, his brother,
O
the Chairperson of United Filipinos in Hong Kong, a Professor from Hong O
Kong University and a doctor who cares for his great grand aunt living with
P P
the 7th defendant.
Q Q
96. In submissions, in part B, it was said it was essential to
R R
recognise that the defendants were not acting in contemptuous disregard of
S the law when assessing their moral culpability. Mr Paul Harris SC goes on S
to state that the defendants did not deliberately embark on a campaign of
T T
civil disobedience and that as the 2nd defendant said in that press conference
U U
V V
- 27 -
A A
B B
they believed that the notification required under the Public Order
C Ordinance was unconstitutional. Mr Harris describes it as their honest C
belief.
D D
E 97. It was submitted I could not make the defendants liable for the E
incidents of violence seen in Wanchai and Admiralty after the defendants
F F
arrived at the finishing point of the unauthorised assembly. As I have said
G above I am of the view I can take it into account and it certainly meant the G
assembly itself was not peaceful. I have of course not taken into account
H H
the incidences of violence in other areas of Hong Kong such as Kowloon
I and the New Territories. I
J J
98. It was submitted that the 7th defendant’s role on the day in
K organising and in participating was more akin to a peripheral role. I was K
also asked to consider his social activism comes from a desire to make a
L L
difference to Hong Kong’s socio-political system.
M M
99. I have been asked to take into account the fact he is the only
N N
relative caring for a 96-year-old great grand aunt who is not in good health.
O Whilst I have sympathy, her old age and health conditions were well known O
to the 7th defendant when he committed these offences and committed them
P P
while serving a suspended sentence.
Q Q
100. After I rounded down the discount of 25% applied to the
R R
starting point of 18 months for charge 3, I sentence the 7th defendant to 14
S months’ imprisonment for charge 3. S
T T
U U
V V
- 28 -
A A
B B
101. After I applied the discount of 25% to the starting point of 12
C months for charge 4, I sentence the 7th defendant to 9 months’ C
imprisonment for charge 4.
D D
E The 8th defendant E
F F
102. Mr Graham Harris SC for the 8th defendant submitted in
G mitigation that the likely term of imprisonment to be imposed could be G
suspended on the facts of this case especially as there is no sentencing
H H
guideline for unauthorised assembly. He has urged me to consider the 8 th
I defendant’s role was minor and that he never had any intention for others I
to be violent or destructive. He accepts there was some coincidental
J J
violence resulting from this unauthorised assembly but any punishment
K meted out to the 8th defendant should be proportionate to his own actions. K
L L
103. I have been asked to consider his background, family, health
M issues and commercial success. I have been reminded to take into account M
the totality principle with reference to the sentences I recently passed in
N N
DCCC 536/2020 and DCCC 537/2020, mitigation bundle is MFI-8.
O O
104. After I rounded down the discount of 25% applied to the
P P
starting point of 18 months for charge 3, I sentence the 8th defendant to 14
Q months’ imprisonment for charge 3. Q
R R
The 10th defendant
S S
105. The 10th defendant’s mitigation bundle, MFI-9, contains his
T T
biography, mitigation and 8 letters from many people from different walks
U U
V V
- 29 -
A A
B B
of life; friends, colleagues and those he has helped in his dedication to
C public service. He has been a District Councillor, politician and former vice C
chairman of the Democratic Party.
D D
E 106. I note in March 2020 he resigned from his position and duties E
in the Democratic Party after a joint petition from his very own colleagues.
F F
This arose from his criticism of local restaurants for discriminating against
G Mainland Chinese customers during the COVID pandemic. He had called G
for a wider definition of race discrimination to cover prejudices and
H H
injustice against mainlanders which prompted the petition.
I I
107. He currently works as a community organiser for the Society
J J
for Community Organisations, SoCo and I have a letter from a Director
K describing his dedication and work for the underprivileged and grassroots K
community. I am also impressed by a letter from an associate professor at
L L
the Chinese University of Hong Kong, Rev. Dr. Tobias Brandner who
M speaks of his deep commitment and passion for the poor, underprivileged M
and prison inmates. He is described as humble with great concern for those
N N
at the margins of society.
O O
108. After I rounded down the discount of 25% applied to the
P P
starting point of 18 months for charge 3, I sentence the 10 th defendant to
Q 14 months’ imprisonment for charge 3. Q
R 109. After I applied the discount of 25% to the starting point of 12 R
months for charge 4, I sentence the 10th defendant to 9 months’
S S
imprisonment for charge 4.
T T
U U
V V
- 30 -
A A
B B
110. I find his mitigation and long public service gives me a valid
C reason to find it appropriate to suspend his sentence for 24 months. His one C
previous conviction, although similar was 28 years ago. In addition, he
D D
played a passive role in organising this unauthorised assembly. He was first
E seen just as the procession started off and he walked behind those holding E
the banner during the procession. He was not interviewed nor vocal during
F F
it. He did point to the right upon arrival in Central to indicate the banner
G group turn right but he was not the only one who made this gesture. He was G
not seen again after this nor appeared to be with the banner group when
H H
they declared the procession at an end.
I I
111. Charge 1
J J
1st defendant sentenced to 18 months’ imprisonment.
K K
nd
2 defendant sentenced to 18 months’ imprisonment.
L 3rd defendant sentenced to 18 months’ imprisonment. L
4th defendant sentenced to 18 months’ imprisonment.
M M
N N
112. Charge 3
O
1st defendant sentenced to 18 months’ imprisonment. O
nd
2 defendant sentenced to 18 months’ imprisonment.
P P
3rd defendant sentenced to 18 months’ imprisonment.
Q 4th defendant sentenced to 18 months’ imprisonment. Q
5th defendant sentenced to 14 months’ imprisonment.
R R
6th defendant sentenced to 14 months’ imprisonment.
S 7th defendant sentenced to 14 months’ imprisonment. S
8th defendant sentenced to 14 months’ imprisonment.
T T
U U
V V
- 31 -
A A
B B
9th defendant sentenced to 14 months’ imprisonment
C suspended for 24 months. C
th
10 defendant sentenced to 14 months’ imprisonment
D D
suspended for 24 months.
E E
113. Charge 4
F F
7th defendant sentenced to 9 months’ imprisonment.
G 10th defendant sentenced to 9 months’ imprisonment G
suspended for 24 months.
H H
I Conclusion and the Totality Principle Considered I
J J
114. Charges 1 and 3 to be served concurrently for the 1st defendant.
K A total of 18 months’ imprisonment. K
L L
115. Charges 1 and 3 to be served concurrently for the 2 nd
M defendant, a total of 18 months’ imprisonment. He is currently serving a M
12-month term of imprisonment for DCCC 536/2020 and I ordered 2
N N
months of the six-month term of imprisonment of DCCC 537/2020 to be
O served consecutively to DCCC 536/2020, a total of 14 months’ O
imprisonment. I now order 6 months of this 18 months sentence to be
P P
served consecutively to DCCC 536/2020. A total of 20 months’
Q imprisonment. Q
R R
rd
116. Charges 1 and 3 to be served concurrently for the 3
S defendant, a total of 18 months’ imprisonment. He is currently serving an S
18-month sentence for DCCC 536/2020. I order 4 months of today’s
T T
U U
V V
- 32 -
A A
B B
sentence to be served consecutively to that sentence. A total of 22 months’
C imprisonment. C
D D
117. Charges 1 and 3 to be served concurrently for the 4th defendant,
E a total of 18 months’ imprisonment. E
F F
118. The 5th defendant only faces charge 3 and is sentenced to a
G total of 14 months’ imprisonment. G
H H
119. The 6th defendant only faces charge 3 and is sentenced to a
I total of 14 months’ imprisonment. She is currently serving an 8-month I
sentence for DCCC 536/2020. I order 4 months of today’s sentence to be
J J
served consecutively to that sentence. A total of 12 months’ imprisonment.
K K
120. Charges 3 and 4 to be served concurrently for the 7th defendant,
L L
a total of 14 months’ imprisonment. He agrees he is in breach of a
M suspended sentence from magistracy case WKCC 3654/2017 imposed on M
9 September 2019. I now activate that 14-day sentence and order it to run
N N
consecutively to today’s sentence. A total of 14 months and 14 days
O imprisonment. O
P P
th
121. The 8 defendant only faces charge 3 and is sentenced to a
Q total of 14 months’ imprisonment. He is currently serving a 12-month term Q
of imprisonment for DCCC 536/2020 and I ordered 2 months of the eight-
R R
month term of imprisonment of DCCC 537/2020 to be served
S consecutively to DCCC 536/2020, a total of 14 months’ imprisonment. I S
now order 6 months of this 18 months sentence to be served consecutively
T T
to DCCC 536/2020. A total of 20 months’ imprisonment.
U U
V V
- 33 -
A A
B B
C 122. The 9th defendant only faces charge 3 and is sentenced to a C
total of 14 months’ imprisonment suspended for 24 months.
D D
E 123. Charges 3 and 4 to be served concurrently for the 10th E
defendant, a total of 14 months’ imprisonment suspended for 24 months.
F F
G 124. The 9th and 10th defendant are warned that if they commit an G
offence punishable by imprisonment in the following 24 months from
H H
today and are convicted then they will most certainly serve this 14-month
I term of imprisonment. I
J J
K K
L L
( A J Woodcock )
M M
District Judge
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 534/2020
C [2021] HKDC 645 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 534 OF 2020
F F
G ---------------------------- G
HKSAR
H H
v
I CHAN HO WUN (D1) I
LEE CHEUK YAN (D2)
J J
LEUNG KWOK HUNG (D3)
K HO CHUN YAN (D4) K
YEUNG SUM (D5)
L L
HO SAU LAN CYD (D6)
M NG MAN YUEN AVERY (D7) M
LAI CHEE YING (D8)
N N
SIN CHUNG KAI (D9)
O TSOI YIU CHEONG RICHARD (D10) O
----------------------------
P P
Q Before: Her Honour Judge Amanda J Woodcock in Court Q
Date: 28 May 2021
R R
Present: Ms Priscilia TY Lam, Counsel on Fiat, Ms Karen Ng, Senior
S Public Prosecutor (Ag) and Mr Edward Lau, Senior Public S
Prosecutor (Ag), for HKSAR/Director of Public Prosecutions
T T
U U
V V
-2-
A A
B B
The 1st defendant appeared in person
C Mr Chris Ng, instructed by JCC Cheung & Co, for the 2nd and C
th
6 defendants
D D
Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat,
E instructed by Kenneth Lam Solicitors, assigned by the E
Director of Legal Aid, for the 3rd defendant
F F
Ms Po Wing Kay and Mr Ernest Wong, instructed by Ho Tse
G Wai & Partners, for the 4th, 5th & 9th defendants G
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by
H H
JCC Cheung & Co, assigned by the Director of Legal Aid, for
I the 7th defendant I
Mr Graham Harris, SC, leading Mr Jeffrey Tam CK and Mr
J J
Ernie Tung, instructed by Robertsons, for the 8th defendant
K Mr Edward Poon, instructed by Tang, Wong & Chow, for the K
10th defendant
L L
Offences: [1] Incitement to knowingly take part in an unauthorized
M assembly（煽惑他人明知而參與未經批准集結） - D1-D4 M
[2] Making an announcement of an unauthorized public
N N
st
procession (alternative to the 1 Charge)（公告一個未經批
O O
准的公眾遊行）(第一項控罪的交替控罪) - D1-D4
P [3] Organizing an unauthorized assembly（組織一個未經批 P
准集結） - D1-D10
Q Q
[4] Knowingly taking part in an unauthorized assembly（明
R R
知而參與未經批准集結） - D1-D10
S -------------------------------------- S
REASONS FOR SENTENCE
T T
--------------------------------------
U U
V V
-3-
A A
B B
1. The 1st to 4th defendants pleaded guilty to Charge 1,
C unlawfully inciting other persons unknown to, without lawful authority or C
reasonable excuse, knowingly take part in an unauthorised assembly,
D D
contrary to Common Law and section 17A(3)(a) of the Public Order
E Ordinance, Cap 245 and punishable under section 101I of the Criminal E
Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.
F F
G 2. All 10 defendants pleaded guilty to Charge 3, organising an G
unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public
H H
Order Ordinance.
I I
3. The 7th and 10th defendants pleaded guilty to Charge 4,
J J
knowingly taking part in an unauthorised assembly, contrary to section
K 17A(3)(a) of the same Ordinance. For the other 8 defendants, Charge 4 K
was ordered to be kept on the court file, not to be dealt with unless there is
L L
leave from this court or the Court of Appeal.
M M
The Facts
N N
O 4. The particulars of Charge 1 refer to a press conference held O
on 30 September 2019 by the first four defendants where they admit
P P
unlawfully inciting other persons unknown to, without lawful authority or
Q reasonable excuse, knowingly take part in a public procession which was Q
an unauthorised assembly.
R R
S 5. The particulars of Charge 3 refer to all the defendants S
organising a public procession which was an unauthorised assembly on 1
T T
th th
October 2019, and the 7 and 10 defendants admitting they knowingly
U U
V V
-4-
A A
B B
took part in that unauthorised public procession without lawful authority
C or reasonable excuse, Charge 4. Full particulars of the offences are set out C
in the Amended Summary of Facts and admitted by all defendants on 17
D D
May 2021.
E E
6. The Commissioner of Police had prohibited the holding of
F F
public meetings and a public procession on 1 October 2019 by the Civil
G Human Rights Front, “the CHRF” and the 1st defendant, its vice convenor. G
The CHRF stated the purpose of the proposed meetings and procession to
H H
be “October 1 procession: 5 demands, not one less”.
I I
7. The police put in writing in a letter of objection why they
J J
prohibited the holding of the public meetings and objected to the holding
K of a public procession. It was made in the interests of public safety, public K
order and the protection of the rights and freedoms of others. It was based
L L
on the numerous violent incidents arising from public meetings or
M processions organised by the CHRF and other organisations between June M
and September 2019. They listed out those various incidents that turned
N N
violent in the letter.
O O
8. The CHRF appealed that decision and on 30 September 2019
P P
the Appeal Board confirmed the Commissioner’s decision; the appeal was
Q dismissed. It agreed that the events posed a serious threat and risk to Q
members of the public and participants.
R R
S 9. Shortly after the Appeal Board’s determination the CHRF S
held a press conference expressing their anger and disappointment at the
T T
U U
V V
-5-
A A
B B
Hong Kong Government’s refusal to let citizens express their views in a
C lawful manner. The 1st defendant was part of this press conference. C
D D
10. The Police Public Relations Branch held a press conference
E on the same day to explain the decision of the Commissioner of Police in E
detail. It was widely broadcasted. They urged the public not to participate
F F
in any unlawful public events on 1 October because there was a substantial
G risk of violence based on the escalation of violence and wanton destruction G
over the past 3 months. They gave specific examples of recent violence.
H H
They also shared details of the intelligence they had received relating to
I the public holiday, National Day, 1 October. They used screenshots of I
intelligence and Internet messages to demonstrate their concern.
J J
K 11. Their intelligence indicated hard-core rioters were planning K
many attacks on 1 October all over Hong Kong. There was an appeal to
L L
kill police officers and suggestions to disguise themselves as police officers
M to kill others and blame the police. There were calls to set fire to shopping M
malls to cause huge destruction. There was a call to hurl petrol bombs into
N N
shopping malls and MTR stations as well as petrol stations. There was a
O call for suicide bombers to carry out lethal attacks or rather those that were O
suicidal to volunteer for suicide missions. The police stressed that their
P P
intelligence was good and the risks were very real. They urged the public
Q to stay at home for their own safety. The transcript of that conference is Q
Exhibit P39 A and B.
R R
S 12. In the afternoon of 30 September, the 1st to 4th defendants held S
another press conference outside the Court of Final Appeal attended by
T T
many news media outlets and widely broadcasted. They all jointly incited
U U
V V
-6-
A A
B B
the public to join them and participate in an unauthorised public procession
C from Causeway Bay to Central on 1 October, the following day, C
notwithstanding the decision of the Commissioner and the Appeal Board.
D D
The transcript and translation of that conference is Exhibit P26A and B.
E E
13. The 1st defendant posted on his Facebook page on the same
F F
day following that press conference to continue to incite the public to
G participate. He posted more messages in the morning of 1 October 2019 G
inciting the public to join him and the 2 nd to 4th defendants in Causeway
H H
Bay to march to Central.
I I
14. Later, from about 12:20 pm all the defendants arrived at Great
J J
George Street in Causeway Bay with the last defendant, the 10th defendant
K arriving at about 1:11 pm just as the defendants headed the procession with K
a banner and started to lead the way to Central. The Summary of Facts set
L L
out what they did, who spoke to the press, what they said, what same
M sloganed T-shirts some wore and what chants were led by some and M
repeated by others before they set off. All 10 defendants pleaded guilty to
N N
Charge 3 organising this unauthorised assembly together.
O O
15. They all formed the head of the public procession by either
P P
holding the banner or walking behind those holding the banner. This
Q banner demanded the end of dictatorial rule and a return of power to the Q
people. They led thousands of participants from Causeway Bay, to
R R
Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road
S Central and eventually arriving at the junction of Pedder Street and Chater S
Road. All along the route they led the chanting of political slogans that
T T
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were anti-police, anti-government, anti-China, calling for universal
C suffrage and for their 5 demands, not one less. C
D D
16. On Hennessy Road the 2nd defendant announced a minute of
E silence to mourn National Day when they reached Wanchai MTR station. E
There were police officers stationed on a footbridge on O’Brien Road to
F F
defend Wanchai MTR station from potential vandalism. The police
G officers were abused with foul language by many protesters who clearly G
became emotional.
H H
17. After a minute of silence and when the banner group moved
I I
nd
off again past that footbridge, the 2 defendant can be seen pointing his
J finger at those police officers above and then holding up 5 fingers. Many J
participants followed suit and continued to abuse those officers above.
K K
L 18. Along this route led by the banner group the prosecution L
highlighted acts of vandalism and obstruction as well as the obvious fact
M M
that those roads and other roads connected to those roads were blocked off
N N
for traffic and transport. Black clad protesters spray-painted the street,
O
others moved barriers, traffic cones and bins to block and barricade several O
roads along the route of the procession. Others vandalised public property.
P P
These were all incidents filmed by media outlets before the banner group
Q arrived in Central. Q
R R
19. At 2:25 pm the whole banner group arrived in Central and
S then the 1st, 2nd and 3rd defendants made speeches with the 4th to 9th S
defendants stood in close proximity. These speeches are transcribed and
T T
translated at Exhibit P54A and B. As those speeches finished a black clad
U U
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-8-
A A
B B
protester is seen kicking and then throwing another traffic cone in front of
C a moving minibus at that same junction. The protesters were thanked for C
their support and participation but not urged or told to disperse. In fact,
D D
thousands continued to march past this junction towards the Liaison Office
E of the Central People’s Government. Traffic was seriously disrupted, E
vandals spray-painted public property, roads were barricaded on the way
F F
and many can be seen carrying long bamboo sticks. They were met by a
G police blockade. G
H H
20. All the acts highlighted by the prosecution to show this
I procession was not peaceful and that there was violence and reprehensible I
conduct were all gleaned from hours of footage from several media outlets.
J J
Much of this was played in open court; MFI-1 is a playlist of video footage
K relied on by the prosecution and played. K
L L
21. The prosecution also relies on video footage of unlawful
M behaviour, criminal damage, arson and violence filmed during the course M
of that public procession but after the head of the procession had reached
N N
its destination point in Central. Obviously, the procession stretched back
O a significant distance and all its participants did not arrive at the same time O
at the finishing point. This unauthorised assembly did not start and end
P P
with the defendants; the procession had a head, body and tail.
Q Q
22. The body of the procession was still walking through Wanchai
R R
at 4:30 pm. Video footage captures bricks being thrown towards police
S stationed on a footbridge near the Police Headquarters and laser beam S
interference. At about the same time groups of protesters gathered at
T T
Admiralty outside the Central Government Offices throwing petrol bombs.
U U
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B B
There were petrol bombs thrown along or near the route of the public
C procession in Admiralty and Wanchai with explosions heard and fires C
raging.
D D
E 23. The major roads and side roads from Causeway Bay to the E
Western Harbour Crossing were occupied by protesters causing serious
F F
disruption to traffic. Over a hundred bus routes were affected and tram
G services suspended. Vehicles were stuck on roads and unable to leave. G
H H
24. All shops and restaurants on the procession route were
I affected. They were almost all closed. Shops and restaurants in Causeway I
Bay and Wanchai rarely close on a public holiday in Hong Kong; their
J J
businesses suffered.
K K
Principles of Sentencing
L L
M 25. I adopt my principles of sentencing from both DCCC M
536/2020 and DCCC 537/2020. I found there was a need in those cases
N N
for a deterrent and punitive approach in sentencing and that an immediate
O term of imprisonment was the only appropriate sentencing option. O
P P
26. I took into account HKSAR v Chow Ting HCMA 374/2020
Q where Barnes J, in that bail application, agreed the magistrate in sentencing Q
the applicant to a term of imprisonment for the offence of incitement to
R R
knowingly take part in an unauthorised assembly and knowingly taking
S part in an unauthorised assembly could draw on sentencing factors set out S
in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699
T T
notwithstanding they were for offences of unlawful assembly.
U U
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B B
C 27. Wong Chi Fung was an application for review for offences C
relating to unlawful assemblies. The Court of Appeal held that the use or
D D
threat to use violence was an aggravating factor and the sentence must
E provide for both punishment and deterrence. Deterrence is necessary to E
maintain public order. Sentencing principles for unlawful assemblies
F F
involving violence were set out in paragraph 108 of that authority by Poon
G JA, as he then was. G
H H
28. Poon JA identified the inherent risk of large gatherings when
I he says that from experience, when large numbers of demonstrators gather I
together, emotions will run high and the crowd may become agitated so
J J
that these situations have the inherent risk of breaking out into violence.
K There will be those who seek to instigate violence from volatile situations, K
therein lies the risk that cannot be ignored.
L L
M 29. The Court of Appeal in the later judgement of Secretary for M
Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in
N N
Wong Chi Fung not only applicable to unlawful assembly involving
O violence. In paragraph 54 it is made clear that it is unreasonable to divide O
unlawful assemblies by violence when passing sentence. Even if there is
P P
no actual violence, the court should take into consideration the threat and
Q imminent risk of violence and actual breach of peace caused by criminal Q
acts.
R R
S 30. That court said at paragraph 56, “To conclude, there is S
absolutely no basis to say that the decision in Wong Chi Fung solely applies
T T
to an unlawful assembly involving violence. The decision in Wong Chi
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Fung never held that cases not involving actual violence should not be
C given a strong punitive and deterrent sentence. All have to depend on the C
actual circumstances of each case.” (Quoted from the English translation
D D
prepared by the Prosecution in their List of Authorities, MFI-10)
E E
31. The actual circumstances of this case involves an
F F
unauthorised assembly but it does not mean I cannot take into account the
G criminal and violent acts committed by those who were with the G
unauthorised assembly and procession.
H H
32. As far as the incitement charge is concerned, I have taken into
I I
account the recent authority of Secretary for Justice v Poon Yung Wai
J (2021) HKCA 510. The Court of Appeal found on those facts that an J
incitement to unlawful assembly involving violence called for a severe and
K K
deterrent immediate custodial sentence. Here, there was incitement to take
L part in an unauthorised assembly with peace advocated but I have taken on L
board the discussion in that authority and drawn from it; the gravamen of
M M
this offence can, depending on certain factors, attract a punitive and
N N
deterrent sentence.
O O
33. Since preserving public order is important and deterrence a
P P
consideration, I have also taken into account the prevailing circumstances
Q at the time some defendants incited others to take part in and all organised Q
together that unauthorised assembly. The context in which a crime is
R R
committed is of relevance to assessing its gravity and the culpability of
S offenders. S
T 34. When these offences were committed in the present case, the T
social unrest from June 2019 had escalated over the ensuing months and
U U
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B B
became relentless, increasingly violent and disturbing. There was social
C unrest, protesting and violent eruptions almost every day by and during the C
month of September. Some of them were riots or violent unlawful
D D
assemblies of large-scale and lengthy durations. On 29 September 2019,
E the day before Charge 1, approximately 200 petrol bombs were thrown by E
protesters. All sentencing principles applied to determine an appropriate
F F
sentence should take into account the prevailing tumultuous situation in
G Hong Kong at that time. G
H H
35. Therefore, in my view, the sentencing principles such as
I protecting the public, meting out penalties, open condemnation and I
deterrence as set out by Poon JA in Wong Chi Fung are applicable to all
J J
these charges. Meting out penalties will be commensurate with the offence
K committed and the facts. One that reflects the seriousness of the facts and K
the culpability of each offender.
L L
Reasons for Sentence
M M
N 36. The Basic Law and the Bill of Rights both guarantees the right N
of assembly and right of expression for Hong Kong residents. However,
O O
these rights are not absolute and are subject to restrictions imposed by law.
P The 3rd defendant in this case has previously challenged the P
constitutionality of those restrictions imposed by law. That challenge was
Q Q
ultimately considered by the Court of Final Appeal and the statutory
R requirement for notification was ruled constitutional; Leung Kwok Hung & R
Others v HKSAR (2005) 8 HKCFAR 229.
S S
T 37. Many other jurisdictions in the world have the same or very T
similar requirements. These freedoms are enjoyed subject to those
U U
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restrictions and irrespective of a person’s politics. I add here that the
C politics, beliefs, opinions of any of the defendants and the strength of their C
convictions are irrelevant to sentencing.
D D
E 38. I have taken into account what each of the 1st to 4th defendants E
said in their press conference on 30 September to incite members of the
F F
public to come out in droves the following day to participate in a procession
G banned by the Police. A reading of the transcript shows they know a G
procession is subject to restrictions and when those restrictions were
H H
imposed, that is when the Police refused to issue a letter of no objection,
I then they called on others to join them to defy the police and ignore the law I
by declaring they were only exercising their right to a peaceful procession.
J J
K 39. The content and tone of the conference and Facebook posts K
was that they had the right to peaceful procession and did not need the
L L
Police approval to demonstrate and repeated it over and over again. They
M did call for a peaceful, rational and non-violent procession but how naive M
and unrealistic was that considering what was happening on a daily basis
N N
was the opposite. This is not with hindsight. The risk was very real every
O day at that time. In fact, even the 2nd defendant prefaced it with “This time, O
we will demonstrate in a peaceful, rational and nonviolent manner.” (Page
P P
4 of P26B translation).
Q Q
40. I have also taken into account what each defendant is recorded
R R
as saying when interviewed either on the 30 September or 1 October 2019.
S It was publicly said by many and over and over again that their rights have S
been suppressed, the law is unfair and they have been deprived of their
T T
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freedom. By saying it over and over again does not make a statement come
C true or mitigate the circumstances. C
D D
41. During the press conference on 30 September when there was
E incitement there was anger because of the decision of the Police and the E
Appeal Board. The defendants were angry and frustrated that the Police
F F
objected to CHRF’s public meetings and procession on National Day.
G G
42. I do not agree with the submission that the defendants, all well
H versed in the Public Order Ordinance and the law, honestly believed the H
prohibition on holding a procession without police permission breached
I I
their constitutional right of freedom of assembly.
J J
43. In the context in which these offences were committed, it was
K K
naive to believe a rallying call for peaceful and rational behaviour would
L be enough to ensure no violence. The submission that this honest belief L
explains their actions, that their moral culpability is relevant and their
M M
intent to organise a peaceful assembly was genuine carries little weight.
N N
44. I note that no defendant ever addressed the reasons for the
O O
Police objection and the Appeal Board’s decision. They did not refute them
P or counter them. They did not make any mention of the intelligence P
received by the police which directly related to unruly elements planning
Q Q
violence on that same day. The Police publicly put on record their
R intelligence and what was on the Internet for all to see yet particularly the R
first 4 defendants did not see it necessary to address this despite their
S S
incitement other than to say their procession would be peaceful and non-
T violent. I repeat, I find that often repeated statement was naive and T
unrealistic.
U U
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C 45. All defendants have stressed that they intended the procession C
to be peaceful and submitted that they cannot be held accountable for
D D
anything unlawful or illegal that happened out of sight or after they arrived
E at the final destination and declared the procession over. However, they E
organised the unauthorised assembly and 4 of them emotively encouraged
F F
and incited people to participate in it. Actions have consequences for
G everyone irrespective of who they are. G
H H
46. These charges involve an unauthorised assembly but it does
I not mean I cannot take into account the criminal and violent acts committed I
by those who were with the unauthorised assembly and procession. The
J J
evidence shows that the line between peaceful assembly and conduct which
K disrupts or threatens to disrupt public order was crossed. K
L L
47. The fact there was criminal damage, acts of violence, weapons
M carried, roads blocked and fires started on or along the route of the M
procession and carried out by participants or people in the vicinity of the
N N
procession is evidence I can consider and evidence it was not peaceful.
O Public order was affected and the inherent real risk of violence erupting O
where there were large crowds gathered did materialise.
P P
Q 48. The fact that the defendants made conscious decisions to Q
break the law and challenge public order in this manner during such
R R
volatile times is a serious factor.
S S
49. After careful consideration of the above principles, factors
T T
and relevant evidence directly related to this unauthorised assembly as well
U U
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as submissions in mitigation, an immediate term of imprisonment is the
C only appropriate sentencing option. C
D 50. I do not find a term of imprisonment appropriate or impose a D
term of imprisonment because of or for participating in a peaceful assembly.
E E
In any event, the facts show it was not peaceful and the defendants must
F have been well aware of the very real risk that that line would be crossed F
as it had so very often in those months and even days before. Despite this,
G G
the real risk was ignored and public order jeopardised.
H H
51. What this also means for the motive put forward by several
I I
defendants, that they committed the offences as acts of civil disobedience,
J is that it does not carry significant weight. The submission that their J
behaviour is a form of civil disobedience is not a significant mitigating
K K
factor here. To conform to civil disobedience, the facts must show the acts
L were peaceful and non-violent. L
M Mitigation M
N N
52. At the time of these offences, all the defendants except for the
O 3rd, 7th and 10th defendants had clear records. The 10th defendant has one O
previous conviction for taking part in an unlawful assembly in 1993. The
P P
th
7 defendant had 2 previous convictions and was in breach of a suspended
Q sentence imposed on the 11 September 2019 for 2 counts of inciting others Q
to take part in an unlawful assembly contrary to section 18 of the Public
R R
Order Ordinance. This sentence was imposed 3 weeks before he
S committed these offences under the same Ordinance. The 3 rd defendant S
has many previous convictions, 17 in total. They all involve offences of a
T T
similar nature and many relate to public order offences. None of these
U U
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previous convictions mentioned above were offences motivated by greed,
C corruption, anger or dishonesty. C
D D
53. Since this offence all but the 1st, 7th, 9th and 10th defendants
E have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 E
for either organising an unauthorised assembly and/or taking part in an
F F
unauthorised assembly on 18 August 2019 and 31 August 2019
G respectively, only weeks before the commission of these offences here. G
H H
54. The 2nd, 3rd, 4th, 6th and 8th defendants were convicted after
I trial in DCCC 536/2020 and the 2 nd, 5th and 8th defendants pleaded guilty I
in DCCC 537/2020. The 2nd and 8th defendants were involved in both cases.
J J
55. The facts of this case and those 2 cases cannot be compared.
K K
In my view, the prevailing tumultuous situation in Hong Kong was even
L more volatile by 1 October 2019. L
M M
56. I have heard full mitigation on behalf of all the defendants.
N N
Many have provided me with a significant number of mitigation letters and
O
biographies relating to their careers and public service. I have read and O
taken them into account.
P P
Q 57. Most defendants submit that these charges and facts do not Q
call for a custodial sentence and if they did then a suspended sentence
R R
would be appropriate. It has been highlighted that there are no guidelines
S or tariffs for sentencing these charges involving unauthorised assemblies. S
It has been stressed that the 1st to 4th defendants advocated for a peaceful,
T T
rational and non-violent public procession. They did not intend any
U U
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violence or reprehensible conduct. When the procession ended, meaning
C when they as the head of the procession arrived at the finishing point in C
Central, there had been no violent incidents attributable to the procession.
D D
E 58. It was stressed that none of the defendants were present during E
and certainly did not instigate or condone any of the violence seen on the
F F
video footage shown in open court. It has been submitted that the
G disruption to the roads and public transport system was not so severe and G
the scale of the procession was large but not as large as past unauthorised
H H
processions such as in DCCC 536/2020.
I I
59. I have reminded myself that the starting point for each charge
J must be commensurate with the offence committed. Deterrent sentences J
must prevail here and therefore; personal individual mitigation may not
K K
carry much weight unless exceptional.
L L
60. The 1st to 4th defendant committed both Charges 1 and 3 and
M M
I differentiate their roles from the other defendants. They incited others to
N join an unauthorised assembly they organised. In light of the necessity of N
a deterrent sentence, positive good character, previous clear record or
O O
personal exceptional mitigation carries little weight.
P P
nd rd th
61. In any event, the 2 , 3 and 4 defendants are offenders who
Q were involved most recently in DCCC 536 and/or DCCC 537/2020, only Q
weeks before 30 September 2019. In that same vein and for the same reason,
R R
th th th
that also applies to the 5 , 6 and 8 defendants as well. Their previous
S good character and personal individual mitigation carries little weight in S
this case.
T T
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Charge 1 - Starting Point
C C
62. To arrive at an appropriate starting point for charge 1, inciting
D D
others to knowingly take part in an unauthorised assembly, I have taken
E into account several factors. That includes the means of incitement and the E
number of people covered; the 1st to 4th defendants arranged a premeditated
F F
press conference outside the Court of Final Appeal with many media
G outlets present to ensure maximum publicity. Then the effects of G
incitement were amplified by the 1st defendant’s Facebook posts.
H H
I 63. I have taken into account what each of these 4 defendants said I
during it to incite others. They made it clear they needed large numbers to
J J
come out and since the meeting point was Causeway Bay with a finishing
K point in Central then it was foreseeable that that whole area would be K
paralysed. The route of the march included Wanchai and Admiralty which
L L
had been the scene of many recent violent clashes. The inherent risk of
M violence breaking out was high. M
N N
64. As I have indicated above, I have taken into account that each
O defendant then went on to commit charge 3, organising that unauthorised O
assembly. Their culpability is higher than the other defendants in this case.
P P
Q Q
65. After all relevant factors are taken into consideration, in my
R R
judgement, a starting point of 24 months’ imprisonment is appropriate.
S S
Charge 3 - Starting Point
T T
U U
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B B
66. I find the other defendants, the 5th to 10th defendants, equally
C culpable in organising this unauthorised assembly. It is true some spoke to C
the press, some walked in front of others holding the banner, some replied
D D
to political slogans, others took the lead to chant the slogans whilst others
E did very little except be with the core group of organisers. E
F F
67. After all relevant factors are taken into consideration, in my
G judgement, a starting point of 24 months’ imprisonment is appropriate for G
the 1st to 4th defendants.
H H
68. For the 5th to 10th defendants I take a starting point of 18
I I
months’ imprisonment.
J J
Charge 4 - Starting Point
K K
L 69. The 7th and 9th defendants pleaded to charge 4, knowingly L
taking part in this unauthorised assembly. In light of the facts, close nature
M M
of the charges and totality principle I intend to make sentences for charges
N N
3 and 4 concurrent.
O O
70. After all relevant factors are taken into consideration, in my
P P
judgement, a starting point of 12 months’ imprisonment is appropriate.
Q Q
71. All defendants indicated their pleas before their trial
R commenced but after trial dates were set. I have taken into account the R
authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a
S S
discount of 25% or just under to the starting point for their pleas.
T T
U U
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B B
The 1st defendant
C C
72. The defendant is now 25 years old and at the time of the
D D
offence was the vice convenor of the CHRF.
E E
73. The 1st defendant chose to represent himself in mitigation and
F F
read out a letter in open court. He reiterated that he committed the offences
G but had committed no wrongdoing. He committed the offences as acts of G
civil disobedience. His letter is marked MFI-2.
H H
I 74. After a discount of 25% or 6 months is applied to the starting I
point of 24 months for both Charges 1 and 3, I sentence the 1 st defendant
J J
to 18 months’ imprisonment for each charge.
K K
The 2nd defendant
L L
M 75. I have a letter from the 2nd defendant explaining his ideals, M
intentions and commitment. I have taken into account the other 6
N N
mitigation letters and their contents. They reiterate his long dedication to
O public service, in particular the welfare of workers and labour rights. I have O
considered everything said in mitigation as well as all the mitigation
P P
material in MFI-3.
Q Q
76. After a discount of 25% or 6 months is applied to the starting
R R
nd
point of 24 months for both Charges 1 and 3, I sentence the 2 defendant
S to 18 months’ imprisonment for each charge. S
T T
U U
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B B
The 3rd defendant
C C
77. I have considered submissions, medical details and the many
D D
mitigation letters from all walks of life who admire him, are indebted to
E him and support him. The contents of the letters illustrate his long-term E
genuine commitment to social injustice and the need to raise public
F F
awareness of it. He has involved himself with the welfare of migrant
G workers, refugees, the homeless, the elderly and other underprivileged G
groups. I have been furnished with a list of judicial review applications
H H
made by the 3rd defendant over many years. In submissions, it is explained
I that he committed these offences as acts of civil disobedience. I
J J
78. I have a letter from the 3rd defendant himself. He has pleaded
K guilty but admits no wrongdoing. He explains why despite knowing he was K
breaking the law, he nevertheless made a public appeal for others to
L L
participate in this unauthorised assembly. He explains his commitment and
M long-term fight for democracy and justice. However, he does not attempt M
to justify his actions. He accepts full responsibility for the consequences of
N N
his actions.
O O
79. I have taken into account his mitigation bundle, MFI-4. I have
P P
been asked to take into account the sentences I imposed in DCCC 536/2020
Q and DCCC 537/2020. However, other than the fact some defendants are Q
repeat offenders, it is not appropriate to compare the cases albeit the
R R
rd
offences are similar. I have been urged not to make the 3 defendant liable
S for offences committed by assembly participants or onlookers acting S
independently.
T T
U U
V V
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A A
B B
80. After a discount of 25% or 6 months is applied to the starting
C point of 24 months for both Charges 1 and 3, I sentence the 3 rd defendant C
to 18 months’ imprisonment for each charge.
D D
E The 4th, 5th and 9th defendants E
F F
81. I have considered the submissions, biographies and list of
G authorities in the mitigation bundle, MFI-5. It has been urged upon me to G
give weight to the fact that the 4 defendants who incited others stressed
H H
publicly that the procession must be peaceful. I should also take into
I account that on the whole, the procession was peaceful and sentence on I
that basis. The reprehensible conduct was not incited by either the 4 th, 5th
J J
or 9th defendants.
K K
82. It was submitted that the defendants committed these offences
L L
because they honestly believed that the Police were abusing their power to
M object to peaceful demonstrations and depriving the defendants of their M
constitutional right to peaceful assembly.
N N
O
83. It has been submitted that although the 4th and 5th defendant O
were involved in similar offences only in August 2019 and were repeat
P P
offenders, all offences arose from the social unrest in 2019 which was
Q ongoing. It is submitted that their criminality overlapped and that their Q
motives for committing these offences repeatedly were common and
R R
consistent. I was urged to continue to suspend any term of imprisonment
S for the 4th and 5th defendant and suspend any sentence of imprisonment S
against the 9th defendant.
T T
U U
V V
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A A
B B
84. I have a statement from the 5th defendant who says he pleads
C guilty but does not admit any wrongdoing because he was participating in C
an act of civil disobedience. He sets out his personal views. It was
D D
submitted on behalf of all the 3 defendants that their motive, their acts of
E civil disobedience are relevant to sentencing. E
F F
85. I have now been given further detail of the 4th defendant’s
G lesser-known public office appointments to further demonstrate his public G
service. He was given a suspended sentence by me in DCCC 536/2020
H H
where I considered his mitigation, background, public service and
I commitment to the community was such that it justified suspending a term I
of imprisonment.
J J
86. However, this is a repeat offence with an additional charge
K K
and more serious factors in a very short period of time in even more
L tumultuous times and I no longer find a suspended sentence appropriate. L
After a discount of 25% or 6 months is applied to the starting point of 24
M M
months for both Charges 1 and 3, I sentence the 4 defendant to 18 months’
th
N N
imprisonment for each charge.
O O
th
87. The 5 defendant was given a suspended sentence by me in
P P
DCCC 537/2020 where I considered the facts of that case, his previous
Q clear record, background, public service and Silver Bauhinia Star Award. Q
R 88. Similarly, I no longer find a suspended sentence appropriate R
under the circumstances. After I rounded down the discount of 25% applied
S S
to the starting point of 18 months for charge 3, I sentence the 5th defendant
T to 14 months’ imprisonment. T
U U
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A A
B B
89. The 9th defendant was not involved in either of those 2
C previous cases. He is now 61 years old, married with 2 children. I have C
been appraised of his distinguished public and community services,
D D
including a Silver Bauhinia Star Award in 2007. It was awarded for his
E distinguished public and community service, in particular for his E
contribution to the development of information technology. He has served
F F
on no less than 24 statutory or advisory boards, committees and councils.
G He is a long-term District Board member, was a Regional Council and later G
a Legislative Council member.
H H
90. After I rounded down the discount of 25% applied to the
I I
starting point of 18 months’ for charge 3, I sentence the 9 defendant to 14
th
J months’ imprisonment. J
K K
91. I find his mitigation, long public service and award gives me
L a valid reason to find it appropriate to suspend his sentence for 24 months. L
In addition, he played a very passive role in organising this unauthorised
M M
assembly. He was first seen half an hour before the procession started and
N was stood with the 1st to 3rd defendant when they gave a press conference N
at the beginning and at the end. He walked behind those holding the banner
O O
during the procession and was not interviewed nor vocal during it.
P P
The 6th defendant
Q Q
R 92. Although I sentenced the 6th defendant to a term of R
imprisonment in DCCC 536/2020 and heard mitigation on that occasion, I
S S
now have more details, more letters and in particular a letter from the 6 th
T defendant herself to consider, MFI-6. I have taken into account her T
personal letter which sets out her family background, upbringing and how
U U
V V
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A A
B B
and why she has come to cherish the freedom of expression and freedom
C of assembly for Hong Kong. She laments the lack of trust between the C
administration and the public; she sees reconciliation as necessary to move
D D
forward.
E E
93. It was stressed that the 6th defendant was a Legislative
F F
Councillor and in between 1998 and 2016 she was involved in over 150
G bills committees which demonstrates her dedication and work ethics. I G
have received a list of those Bills gazetted. I have received 2 more letters
H H
from people of different backgrounds who speak on her behalf.
I I
94. After I rounded down the discount of 25% applied to the
J starting point of 18 months for charge 3, I sentence the 6th defendant to 14 J
months’ imprisonment.
K K
L The 7th defendant L
M M
th
95. Written mitigation and authorities for the 7 defendant are
N N
exhibited at MFI-7. It includes a letter from the 7th defendant, his brother,
O
the Chairperson of United Filipinos in Hong Kong, a Professor from Hong O
Kong University and a doctor who cares for his great grand aunt living with
P P
the 7th defendant.
Q Q
96. In submissions, in part B, it was said it was essential to
R R
recognise that the defendants were not acting in contemptuous disregard of
S the law when assessing their moral culpability. Mr Paul Harris SC goes on S
to state that the defendants did not deliberately embark on a campaign of
T T
civil disobedience and that as the 2nd defendant said in that press conference
U U
V V
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A A
B B
they believed that the notification required under the Public Order
C Ordinance was unconstitutional. Mr Harris describes it as their honest C
belief.
D D
E 97. It was submitted I could not make the defendants liable for the E
incidents of violence seen in Wanchai and Admiralty after the defendants
F F
arrived at the finishing point of the unauthorised assembly. As I have said
G above I am of the view I can take it into account and it certainly meant the G
assembly itself was not peaceful. I have of course not taken into account
H H
the incidences of violence in other areas of Hong Kong such as Kowloon
I and the New Territories. I
J J
98. It was submitted that the 7th defendant’s role on the day in
K organising and in participating was more akin to a peripheral role. I was K
also asked to consider his social activism comes from a desire to make a
L L
difference to Hong Kong’s socio-political system.
M M
99. I have been asked to take into account the fact he is the only
N N
relative caring for a 96-year-old great grand aunt who is not in good health.
O Whilst I have sympathy, her old age and health conditions were well known O
to the 7th defendant when he committed these offences and committed them
P P
while serving a suspended sentence.
Q Q
100. After I rounded down the discount of 25% applied to the
R R
starting point of 18 months for charge 3, I sentence the 7th defendant to 14
S months’ imprisonment for charge 3. S
T T
U U
V V
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A A
B B
101. After I applied the discount of 25% to the starting point of 12
C months for charge 4, I sentence the 7th defendant to 9 months’ C
imprisonment for charge 4.
D D
E The 8th defendant E
F F
102. Mr Graham Harris SC for the 8th defendant submitted in
G mitigation that the likely term of imprisonment to be imposed could be G
suspended on the facts of this case especially as there is no sentencing
H H
guideline for unauthorised assembly. He has urged me to consider the 8 th
I defendant’s role was minor and that he never had any intention for others I
to be violent or destructive. He accepts there was some coincidental
J J
violence resulting from this unauthorised assembly but any punishment
K meted out to the 8th defendant should be proportionate to his own actions. K
L L
103. I have been asked to consider his background, family, health
M issues and commercial success. I have been reminded to take into account M
the totality principle with reference to the sentences I recently passed in
N N
DCCC 536/2020 and DCCC 537/2020, mitigation bundle is MFI-8.
O O
104. After I rounded down the discount of 25% applied to the
P P
starting point of 18 months for charge 3, I sentence the 8th defendant to 14
Q months’ imprisonment for charge 3. Q
R R
The 10th defendant
S S
105. The 10th defendant’s mitigation bundle, MFI-9, contains his
T T
biography, mitigation and 8 letters from many people from different walks
U U
V V
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A A
B B
of life; friends, colleagues and those he has helped in his dedication to
C public service. He has been a District Councillor, politician and former vice C
chairman of the Democratic Party.
D D
E 106. I note in March 2020 he resigned from his position and duties E
in the Democratic Party after a joint petition from his very own colleagues.
F F
This arose from his criticism of local restaurants for discriminating against
G Mainland Chinese customers during the COVID pandemic. He had called G
for a wider definition of race discrimination to cover prejudices and
H H
injustice against mainlanders which prompted the petition.
I I
107. He currently works as a community organiser for the Society
J J
for Community Organisations, SoCo and I have a letter from a Director
K describing his dedication and work for the underprivileged and grassroots K
community. I am also impressed by a letter from an associate professor at
L L
the Chinese University of Hong Kong, Rev. Dr. Tobias Brandner who
M speaks of his deep commitment and passion for the poor, underprivileged M
and prison inmates. He is described as humble with great concern for those
N N
at the margins of society.
O O
108. After I rounded down the discount of 25% applied to the
P P
starting point of 18 months for charge 3, I sentence the 10 th defendant to
Q 14 months’ imprisonment for charge 3. Q
R 109. After I applied the discount of 25% to the starting point of 12 R
months for charge 4, I sentence the 10th defendant to 9 months’
S S
imprisonment for charge 4.
T T
U U
V V
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A A
B B
110. I find his mitigation and long public service gives me a valid
C reason to find it appropriate to suspend his sentence for 24 months. His one C
previous conviction, although similar was 28 years ago. In addition, he
D D
played a passive role in organising this unauthorised assembly. He was first
E seen just as the procession started off and he walked behind those holding E
the banner during the procession. He was not interviewed nor vocal during
F F
it. He did point to the right upon arrival in Central to indicate the banner
G group turn right but he was not the only one who made this gesture. He was G
not seen again after this nor appeared to be with the banner group when
H H
they declared the procession at an end.
I I
111. Charge 1
J J
1st defendant sentenced to 18 months’ imprisonment.
K K
nd
2 defendant sentenced to 18 months’ imprisonment.
L 3rd defendant sentenced to 18 months’ imprisonment. L
4th defendant sentenced to 18 months’ imprisonment.
M M
N N
112. Charge 3
O
1st defendant sentenced to 18 months’ imprisonment. O
nd
2 defendant sentenced to 18 months’ imprisonment.
P P
3rd defendant sentenced to 18 months’ imprisonment.
Q 4th defendant sentenced to 18 months’ imprisonment. Q
5th defendant sentenced to 14 months’ imprisonment.
R R
6th defendant sentenced to 14 months’ imprisonment.
S 7th defendant sentenced to 14 months’ imprisonment. S
8th defendant sentenced to 14 months’ imprisonment.
T T
U U
V V
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A A
B B
9th defendant sentenced to 14 months’ imprisonment
C suspended for 24 months. C
th
10 defendant sentenced to 14 months’ imprisonment
D D
suspended for 24 months.
E E
113. Charge 4
F F
7th defendant sentenced to 9 months’ imprisonment.
G 10th defendant sentenced to 9 months’ imprisonment G
suspended for 24 months.
H H
I Conclusion and the Totality Principle Considered I
J J
114. Charges 1 and 3 to be served concurrently for the 1st defendant.
K A total of 18 months’ imprisonment. K
L L
115. Charges 1 and 3 to be served concurrently for the 2 nd
M defendant, a total of 18 months’ imprisonment. He is currently serving a M
12-month term of imprisonment for DCCC 536/2020 and I ordered 2
N N
months of the six-month term of imprisonment of DCCC 537/2020 to be
O served consecutively to DCCC 536/2020, a total of 14 months’ O
imprisonment. I now order 6 months of this 18 months sentence to be
P P
served consecutively to DCCC 536/2020. A total of 20 months’
Q imprisonment. Q
R R
rd
116. Charges 1 and 3 to be served concurrently for the 3
S defendant, a total of 18 months’ imprisonment. He is currently serving an S
18-month sentence for DCCC 536/2020. I order 4 months of today’s
T T
U U
V V
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A A
B B
sentence to be served consecutively to that sentence. A total of 22 months’
C imprisonment. C
D D
117. Charges 1 and 3 to be served concurrently for the 4th defendant,
E a total of 18 months’ imprisonment. E
F F
118. The 5th defendant only faces charge 3 and is sentenced to a
G total of 14 months’ imprisonment. G
H H
119. The 6th defendant only faces charge 3 and is sentenced to a
I total of 14 months’ imprisonment. She is currently serving an 8-month I
sentence for DCCC 536/2020. I order 4 months of today’s sentence to be
J J
served consecutively to that sentence. A total of 12 months’ imprisonment.
K K
120. Charges 3 and 4 to be served concurrently for the 7th defendant,
L L
a total of 14 months’ imprisonment. He agrees he is in breach of a
M suspended sentence from magistracy case WKCC 3654/2017 imposed on M
9 September 2019. I now activate that 14-day sentence and order it to run
N N
consecutively to today’s sentence. A total of 14 months and 14 days
O imprisonment. O
P P
th
121. The 8 defendant only faces charge 3 and is sentenced to a
Q total of 14 months’ imprisonment. He is currently serving a 12-month term Q
of imprisonment for DCCC 536/2020 and I ordered 2 months of the eight-
R R
month term of imprisonment of DCCC 537/2020 to be served
S consecutively to DCCC 536/2020, a total of 14 months’ imprisonment. I S
now order 6 months of this 18 months sentence to be served consecutively
T T
to DCCC 536/2020. A total of 20 months’ imprisonment.
U U
V V
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A A
B B
C 122. The 9th defendant only faces charge 3 and is sentenced to a C
total of 14 months’ imprisonment suspended for 24 months.
D D
E 123. Charges 3 and 4 to be served concurrently for the 10th E
defendant, a total of 14 months’ imprisonment suspended for 24 months.
F F
G 124. The 9th and 10th defendant are warned that if they commit an G
offence punishable by imprisonment in the following 24 months from
H H
today and are convicted then they will most certainly serve this 14-month
I term of imprisonment. I
J J
K K
L L
( A J Woodcock )
M M
District Judge
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
DCCC534/2020 HKSAR v. CHAN HO WUN AND OTHERS - LawHero