區域法院（刑事）Deputy District Judge M Chow16/6/2021[2021] HKDC 1661
DCCC294/2020
A A
B B
DCCC 294/2020
C [2021] HKDC 1661 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 294 OF 2020
F F
G ----------------------------- G
HKSAR
H H
v
I LAI HIU TUNG (D5) I
-----------------------------
J J
K Before: Deputy District Judge M Chow K
Date: 17 June 2021
L L
Present: Mr Lee Wayne, Public Prosecutor and Mr Ng Wing Kit,
M Public Prosecutor, for HKSAR / Director of Public M
Prosecutions
N N
Mr Poon Ting Bond Edward, instructed by Kenneth Lam,
O assigned by the Director of Legal Aid, for the 5th defendant O
Offence: [1] Riot (暴動)
P P
[3] Possession of an offensive weapon in a public place (在公
Q Q
眾地方管有政擊性武器)
R R
-----------------------------------------
S S
REASONS FOR SENTENCE
T ----------------------------------------- T
U U
V V
-2-
A A
B B
1. The defendant pleaded guilty to a charge of riot, contrary to
C section 19 (1) and (2) of the Public Order Ordinance, Cap 245. While C
charge three possession of an offensive weapon is left in the court file, this
D D
Court ordered the charge not to be proceeded with without the leave of the
E court. E
F F
Summary of facts
G G
A. Background
H H
I 2. On 29 September 2019, a public procession was organized by I
members of the public. The procession started from Sogo Department
J J
Store Causeway Bay and ended at the Central Government Offices. (CGO),
K Harcourt Road, Admiralty. The Commissioner of Police had not received K
notification of such procession or meeting.
L L
M 3. Between 1 pm and 2 pm, around 20,000 protesters gathered M
outside Sogo Department Store.
N N
O 4. Protesters ignored the police warnings that it was an O
unauthorized procession and they marched from Causeway Bay towards
P P
the CGO.
Q Q
5. At about 3:45 pm, around 200 to 300 protesters arrived at
R R
Harcourt Road outside the CGO. They blocked the road with barriers and
S traffic cones, thus occupied the carriageways, flyovers of Harcourt Road. S
Traffic was seriously disrupted.
T T
U U
V V
-3-
A A
B B
6. At about 4:05 pm, around 200 to 300 protesters congregated
C on the carriageways of Queensway outside Hong Kong Garden confronting C
the police checkline which was formed outside the United Center. They
D D
set up an array of umbrellas in front of the police checkline to shield
E themselves, and kept hurling patrol bombs and hard objects at the police. E
Some of them set fire underneath the foot bridge connecting Pacific Place
F F
and Queensway Plaza. Police officers were out numbered and they
G retreated. This group of protesters subsequently joined the group of G
protestors outside the CGO.
H H
I Mass arrest on Harcourt Road I
J J
7. Starting from 4:20 pm, around 500 protesters who
K congregated on Tim Wa Avenue, the pavement near the CGO, K
carriageways and flyover of Harcourt Road, they began to hurl patrol
L L
bombs, bricks, stones and hard objects at the CGO. Some petrobombs hit
M the water filled barricades and caused fire. M
N N
8. Police gave repeated warnings and displayed warning flags to
O the protestors with no avail. Teargas and blue colored dye were fired and O
discharged towards Harcourt Road. However, the protesters remained
P P
outside CGO and continued to act violently.
Q Q
9. At around 4:48 pm, police officers came out from the CGO
R R
and arrested 44 persons in Harcourt Road. Subsequent to the mass arrest,
S around 100 to 200 protesters retreated from Harcourt Road along Cotton S
Tree Drive towards Queensway.
T T
U U
V V
-4-
A A
B B
B. Riot in the area of Queensway (Charge 1)
C C
10. At around 5 pm, around 100 to 200 protesters assembled on
D D
Cotton Tree Drive outside Far East Finance Center confronting the police.
E The protestors built barricades with wooden boards and umbrellas. They E
hurled patrol bombs, bricks and other objects at the police. There were
F F
teargas being fired. The police also repeated warnings of dispersal.
G G
11. At around 5:06 pm, the protesters on Cotton Tree Drive
H H
retreated back to Queensway where the police formed the checklines. The
I protesters set barricades, hurled petrol bombs, bricks and hard objects and I
shining laser beams at the police.
J J
K 12. At all material times, around 500 protesters including D5 K
assembled together at the area of Queensway and conducted themselves in
L L
a disorderly, intimidating, insulting and provocative manner. A breach of
M the peace was committed by the protesters and violence has been M
perpetuated. Despite repeated warnings, the protesters did not desist or
N N
disperse.
O O
B.1 Individual acts of D5
P P
Q 13. The individual acts of D5 were captured on open-source Q
videos. Her acts are summarised as follows:-
R R
S S
T T
U U
V V
-5-
A A
B B
Time Location Acts Source
C D5 C
1725 Queensway D5 assembled together with Open-source
D hours (eastbound hundreds of protesters video D
carriageway) confronting the police. D5
E stood in the first few rows of E
the crowd and shielded herself
F behind an array of umbrellas. F
G G
The arrest
H H
14. At around 5:17 pm, the police checklines began to sweep
I I
forward along Queensway easterly direction. The protesters closest to the
J checklines retreated slowly while maintaining a distance of about 70 to 80 J
meters with the police checklines. When they reached the area between
K K
United Center and Pacific Place, the police checklines went forward, D5
L was subdued and arrested. L
M M
15. At the time of arrest, D5 was wearing a yellow helmet,
N goggles, a 3M respirator with filters, and carrying a rucksack. N
O O
B.2 Taking part in the riot in the area of Queensway
P P
Q
16. At all material times, D5 riotously assembled together with Q
other persons unknown in the area of Queensway, Admiralty. She
R R
individually and jointly took part in the riot formed by herself and other
S persons unknown. S
T T
U U
V V
-6-
A A
B B
CCTV footages
C C
17. CCTV footages from various sources in Harcourt Road and in
D D
the area of Queensway captured the individual acts of D5 and they formed
E part of the summary of facts. E
F F
Mitigation
G G
18. The defendant was 28 at the time of arrest. She has a clear
H H
record. She is now 30 and is currently separated from her husband.
I I
19. She now lives with her parents, father is a construction site
J J
worker, mother is a housewife. The defendant is the main carer of her
K mother who had cancer operation in 2018. The defendant obtained a K
bachelor degree from the University of Tasmania in 2018. She provided
L L
half of her earnings to her family for financial support. She also visited her
M grandmother regularly in Mainland China before the COVID-19 pandemic. M
N N
20. The defence provided me with a large number of mitigating
O letters from her headmaster, previous teachers, school friends, colleagues O
and social worker. I have read them all and do not propose to recite them.
P P
They all have written good words on her behalf to plead for leniency. From
Q all these letters, this Court came to know that the defendant is a well-liked Q
person amongst her school friends and colleagues. She is a mature person
R R
with a kind heart, she is helpful to others. She also participates in charity
S activities and voluntary works. S
T T
U U
V V
-7-
A A
B B
21. She is an active participant in marine environmental
C protection activities. She has completed the scuba instructor examination C
in May this year. She planned to support her parents’ livelihood by
D D
working as a diving instructor while continuing to promote the mission of
E a clean marine environment. E
F F
22. In 2015 the defendant travelled to the remote part of China to
G become a volunteer mental for “Peer China”. G
H H
23. The defendant said that since this incident she was regretful
I for her impulsive behavior. She knew that she has to face a long term of I
imprisonment, she was sorry for what she did, this incident had added
J J
emotional and financial burden to her family. She still wishes to look after
K her family after her discharge from prison and to contribute back to society. K
L L
24. There is a medical report to tell me that the defendant has
M suffered head injury, she was hospitalized for three days and was M
discharged without any follow up treatments.
N N
O Sentence O
P P
25. The maximum sentence for an offence of riot is 10 years.
Q Q
26. According to the case of HKSAR v Leung Tin Kei [2018]
R R
HKCFI 1329, the Court of Appeal set out the factors to be considered in
S sentencing for the offence of riots. The court also said that since the S
background and facts involved in each case of riots are different, each case
T T
has to be considered separately, so the sentences in other cases do not
U U
V V
-8-
A A
B B
provide much guidance, the court in sentencing should apply appropriate
C principles and pay regard to the actual circumstances of individual cases, C
and then imposed a proper sentence.
D D
E 27. The defence said that in the present case the demonstration E
was originally started as a march, it was only subsequently developed into
F F
confrontation with the police. The riot took place at the spot and was not
G planned in advance. G
H H
28. In fact, the march from Sogo to CGO was an unauthorized one.
I The Commissioner of the Police had not been notified. I
J J
29. At 3:45 pm, the protestor arrived at CGO. At 4:48 pm, there
K was a mass arrest of 44 persons. In between this time, the protestors kept K
hurling petrol bombs, bricks, stones and hard objects at the police.
L L
M 30. The Harcourt Road incident started from 4:20 pm to 4:48 pm. M
N N
31. The Queensway riot started from 5 pm to 5:06 pm. The
O Queensway riot in which D5 was involved was plainly part of an ongoing O
incident in Harcourt Road. At 5 pm, outside the Far East Finance Centre,
P P
at 5:06 pm, the riot took place on the carriageway of Queensway.
Q Q
32. In both 5 pm and 5:06 pm, the protestors built barricades,
R R
hurled petrol bombs, bricks and hard objects at the police.
S S
33. To build barricades required man powers. Petrol bombs were
T T
also used by the protestors. They are something that required certain
U U
V V
-9-
A A
B B
degree of preparation and knowledge to make them. They also required
C special types of liquid and materials. C
D D
34. At the time of arrest, D5 was wearing helmet, goggles and a
E 3M respirator with filters. E
F F
35. Clearly, the helmet served to protect her head, goggles to
G prevent the tear gas to get into her eyes and the mask with filter can help G
to prevent the tear gas chemical to get into her respiratory system. D5
H H
anticipated tear gas might be used. She equipped herself to participate in
I riot. I
J J
36. In D5’s rucksack, there were 2 pair of gloves, one pair was an
K ordinary one, the other one was a pair of heavy duty gloves with black K
marks on it. This pair of gloves was made with very strong and thick
L L
material; they can be used to pick up some hot items without the hands
M being burnt. There is no evidence to suggest that D5 had used those gloves M
prior to the arrest. She might or might not use them for herself or might
N N
keep them for others to use.
O O
37. To this extend, I do not agree with the defence that the
P P
Queensway riot was spontaneous, I ruled that it was pre-meditated.
Q Q
38. The defence also emphasized that D5 was standing in the front
R R
row of the protesters and shielding herself with an umbrella, there was no
S direct evidence of provocation or other violent behavior done by D5 S
towards the police or other bystanders. D5 was not a leader in the present
T T
incident.
U U
V V
- 10 -
A A
B B
C 39. However, as the court in Tang Ho Yin (2019) HKLRD 502 C
said that: -
D D
“the gravity of the offence of riot is not to be judged merely by what the
E E
individual did (or did not do), but what the group to whose number he
F
lent his support did.” F
G 40. In the judgment of R v Caird & Others [1970] 54 Cr App R G
499, the court said that: -
H H
“it is a wholly wrong approach to take the acts of any individual
I I
participator in isolation and, as already indicated, it is that very
J fact that constitutes the gravity of the offence”. J
K K
41. That means to isolate D5’s action from the riotous behaviour
L can be unrealistic and misleading. L
M M
42. Therefore, in considering an appropriate sentence, I consider
N the extend of the overall violence involved not D5’s individual acts in N
isolation.
O O
P 43. In order to consider the capability of D5, it is necessary to P
look at the background leading up to the Queensway riot. As I have
Q Q
referred to previously to the Harcourt Road incident which was part of the
R ongoing riot developed into Queensway riot. R
S S
44. D5 admitted to the Summary of Facts that there were around
T 500 protestors assembled at the area of Queensway and conducted T
themselves in a disorderly, intimidating, insulting and provocative manner.
U U
V V
- 11 -
A A
B B
45. Around 100 to 200 protestors assembled outside the Far East
C C
Finance Centre confronting the police. This was a large scale of riot.
D D
46. The protestors used petrol bombs, bricks, hard objects and
E E
shining laser beams at the police. The level of violence was extremely
F serious. Anyone can foresee that the consequences of using petrol bombs, F
bricks, and hard objects can be disastrous when use as weapons. They can
G G
set fire to objects, to kill and to cause serious injuries to people and to cause
H damage to property. The purpose of shining laser beams was to hurt the H
eyes of the police so that they could not carry out their duties at the scene.
I I
J 47. The protestors also set up barricades along Queensway, they J
took control of this part of the area. It was an important road in the centre
K K
of Hong Kong Island. It is also one of the importance central business
L districts in Hong Kong. L
M M
48. Within that area, there are high end shopping malls, 5 stars
N hotels and commercial buildings. The High Court building is also located N
there. Businesses of all kind were seriously affected. D5 was in the middle
O O
of road of Queensway. She knew that traffic was seriously disturbed.
P P
49. There was no evidence to suggest that there were any police
Q Q
suffered any injuries or there was any damage to any property.
R R
50. D5 knew she was one of the rioters. She equipped herself
S S
with helmet, mask, goggle to hide her face. She knew that would add
T
difficulties for police to investigate. She was in the front row with others T
U U
V V
- 12 -
A A
B B
confronting the police checkline, she knew what the police was coming to
C them for as there was a previous arrest of 44 persons. C
D D
51. 21 months has gone since the arrest of D5, during this period
E of time, she has reflected upon herself and confessed that it hurts her deeply E
that she has to face up a long period of imprisonment. She is prepared to
F F
accept the consequence. That consequence comes with a price that she will
G not be able to look after her parents. G
H H
52. D5 shows her remorse by indicating her guilty plea at the
I earliest opportunity. I
J J
53. As said in the judgment of Leung Tin Kei that:-
K K
“73. In order to protect public order from being harmed by
L violence and the rule of law from being damaged as a result, the L
court in imposing sentence for the offence of riot must reflect
the determination of the law in protecting public order, and to
M M
convey a clear message to society and the public that the law
does not condone any unlawful damage or disruption of public
N order by violence…” N
O 54. When I pass sentence on the defendant, I bear in mind of all O
mitigating factors which have been said on her behalf. I also bear in mind
P P
that sentence of riot offence carries an element of deterrence.
Q Q
55. Having considered all the factors before me, I consider that a
R R
proper starting point is one of 4 years and 9 months imprisonment and it is
S appropriate in the present case, I reduce it to 3 years 2 months by 1/3 S
discount, I further reduce another 6 months to give credit to her charity
T T
works.
U U
V V
- 13 -
A A
B B
C 56. The defendant is ordered to serve a term of 2 years and 8 C
months imprisonment.
D D
E E
F F
( M Chow )
Deputy District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 294/2020
C [2021] HKDC 1661 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 294 OF 2020
F F
G ----------------------------- G
HKSAR
H H
v
I LAI HIU TUNG (D5) I
-----------------------------
J J
K Before: Deputy District Judge M Chow K
Date: 17 June 2021
L L
Present: Mr Lee Wayne, Public Prosecutor and Mr Ng Wing Kit,
M Public Prosecutor, for HKSAR / Director of Public M
Prosecutions
N N
Mr Poon Ting Bond Edward, instructed by Kenneth Lam,
O assigned by the Director of Legal Aid, for the 5th defendant O
Offence: [1] Riot (暴動)
P P
[3] Possession of an offensive weapon in a public place (在公
Q Q
眾地方管有政擊性武器)
R R
-----------------------------------------
S S
REASONS FOR SENTENCE
T ----------------------------------------- T
U U
V V
-2-
A A
B B
1. The defendant pleaded guilty to a charge of riot, contrary to
C section 19 (1) and (2) of the Public Order Ordinance, Cap 245. While C
charge three possession of an offensive weapon is left in the court file, this
D D
Court ordered the charge not to be proceeded with without the leave of the
E court. E
F F
Summary of facts
G G
A. Background
H H
I 2. On 29 September 2019, a public procession was organized by I
members of the public. The procession started from Sogo Department
J J
Store Causeway Bay and ended at the Central Government Offices. (CGO),
K Harcourt Road, Admiralty. The Commissioner of Police had not received K
notification of such procession or meeting.
L L
M 3. Between 1 pm and 2 pm, around 20,000 protesters gathered M
outside Sogo Department Store.
N N
O 4. Protesters ignored the police warnings that it was an O
unauthorized procession and they marched from Causeway Bay towards
P P
the CGO.
Q Q
5. At about 3:45 pm, around 200 to 300 protesters arrived at
R R
Harcourt Road outside the CGO. They blocked the road with barriers and
S traffic cones, thus occupied the carriageways, flyovers of Harcourt Road. S
Traffic was seriously disrupted.
T T
U U
V V
-3-
A A
B B
6. At about 4:05 pm, around 200 to 300 protesters congregated
C on the carriageways of Queensway outside Hong Kong Garden confronting C
the police checkline which was formed outside the United Center. They
D D
set up an array of umbrellas in front of the police checkline to shield
E themselves, and kept hurling patrol bombs and hard objects at the police. E
Some of them set fire underneath the foot bridge connecting Pacific Place
F F
and Queensway Plaza. Police officers were out numbered and they
G retreated. This group of protesters subsequently joined the group of G
protestors outside the CGO.
H H
I Mass arrest on Harcourt Road I
J J
7. Starting from 4:20 pm, around 500 protesters who
K congregated on Tim Wa Avenue, the pavement near the CGO, K
carriageways and flyover of Harcourt Road, they began to hurl patrol
L L
bombs, bricks, stones and hard objects at the CGO. Some petrobombs hit
M the water filled barricades and caused fire. M
N N
8. Police gave repeated warnings and displayed warning flags to
O the protestors with no avail. Teargas and blue colored dye were fired and O
discharged towards Harcourt Road. However, the protesters remained
P P
outside CGO and continued to act violently.
Q Q
9. At around 4:48 pm, police officers came out from the CGO
R R
and arrested 44 persons in Harcourt Road. Subsequent to the mass arrest,
S around 100 to 200 protesters retreated from Harcourt Road along Cotton S
Tree Drive towards Queensway.
T T
U U
V V
-4-
A A
B B
B. Riot in the area of Queensway (Charge 1)
C C
10. At around 5 pm, around 100 to 200 protesters assembled on
D D
Cotton Tree Drive outside Far East Finance Center confronting the police.
E The protestors built barricades with wooden boards and umbrellas. They E
hurled patrol bombs, bricks and other objects at the police. There were
F F
teargas being fired. The police also repeated warnings of dispersal.
G G
11. At around 5:06 pm, the protesters on Cotton Tree Drive
H H
retreated back to Queensway where the police formed the checklines. The
I protesters set barricades, hurled petrol bombs, bricks and hard objects and I
shining laser beams at the police.
J J
K 12. At all material times, around 500 protesters including D5 K
assembled together at the area of Queensway and conducted themselves in
L L
a disorderly, intimidating, insulting and provocative manner. A breach of
M the peace was committed by the protesters and violence has been M
perpetuated. Despite repeated warnings, the protesters did not desist or
N N
disperse.
O O
B.1 Individual acts of D5
P P
Q 13. The individual acts of D5 were captured on open-source Q
videos. Her acts are summarised as follows:-
R R
S S
T T
U U
V V
-5-
A A
B B
Time Location Acts Source
C D5 C
1725 Queensway D5 assembled together with Open-source
D hours (eastbound hundreds of protesters video D
carriageway) confronting the police. D5
E stood in the first few rows of E
the crowd and shielded herself
F behind an array of umbrellas. F
G G
The arrest
H H
14. At around 5:17 pm, the police checklines began to sweep
I I
forward along Queensway easterly direction. The protesters closest to the
J checklines retreated slowly while maintaining a distance of about 70 to 80 J
meters with the police checklines. When they reached the area between
K K
United Center and Pacific Place, the police checklines went forward, D5
L was subdued and arrested. L
M M
15. At the time of arrest, D5 was wearing a yellow helmet,
N goggles, a 3M respirator with filters, and carrying a rucksack. N
O O
B.2 Taking part in the riot in the area of Queensway
P P
Q
16. At all material times, D5 riotously assembled together with Q
other persons unknown in the area of Queensway, Admiralty. She
R R
individually and jointly took part in the riot formed by herself and other
S persons unknown. S
T T
U U
V V
-6-
A A
B B
CCTV footages
C C
17. CCTV footages from various sources in Harcourt Road and in
D D
the area of Queensway captured the individual acts of D5 and they formed
E part of the summary of facts. E
F F
Mitigation
G G
18. The defendant was 28 at the time of arrest. She has a clear
H H
record. She is now 30 and is currently separated from her husband.
I I
19. She now lives with her parents, father is a construction site
J J
worker, mother is a housewife. The defendant is the main carer of her
K mother who had cancer operation in 2018. The defendant obtained a K
bachelor degree from the University of Tasmania in 2018. She provided
L L
half of her earnings to her family for financial support. She also visited her
M grandmother regularly in Mainland China before the COVID-19 pandemic. M
N N
20. The defence provided me with a large number of mitigating
O letters from her headmaster, previous teachers, school friends, colleagues O
and social worker. I have read them all and do not propose to recite them.
P P
They all have written good words on her behalf to plead for leniency. From
Q all these letters, this Court came to know that the defendant is a well-liked Q
person amongst her school friends and colleagues. She is a mature person
R R
with a kind heart, she is helpful to others. She also participates in charity
S activities and voluntary works. S
T T
U U
V V
-7-
A A
B B
21. She is an active participant in marine environmental
C protection activities. She has completed the scuba instructor examination C
in May this year. She planned to support her parents’ livelihood by
D D
working as a diving instructor while continuing to promote the mission of
E a clean marine environment. E
F F
22. In 2015 the defendant travelled to the remote part of China to
G become a volunteer mental for “Peer China”. G
H H
23. The defendant said that since this incident she was regretful
I for her impulsive behavior. She knew that she has to face a long term of I
imprisonment, she was sorry for what she did, this incident had added
J J
emotional and financial burden to her family. She still wishes to look after
K her family after her discharge from prison and to contribute back to society. K
L L
24. There is a medical report to tell me that the defendant has
M suffered head injury, she was hospitalized for three days and was M
discharged without any follow up treatments.
N N
O Sentence O
P P
25. The maximum sentence for an offence of riot is 10 years.
Q Q
26. According to the case of HKSAR v Leung Tin Kei [2018]
R R
HKCFI 1329, the Court of Appeal set out the factors to be considered in
S sentencing for the offence of riots. The court also said that since the S
background and facts involved in each case of riots are different, each case
T T
has to be considered separately, so the sentences in other cases do not
U U
V V
-8-
A A
B B
provide much guidance, the court in sentencing should apply appropriate
C principles and pay regard to the actual circumstances of individual cases, C
and then imposed a proper sentence.
D D
E 27. The defence said that in the present case the demonstration E
was originally started as a march, it was only subsequently developed into
F F
confrontation with the police. The riot took place at the spot and was not
G planned in advance. G
H H
28. In fact, the march from Sogo to CGO was an unauthorized one.
I The Commissioner of the Police had not been notified. I
J J
29. At 3:45 pm, the protestor arrived at CGO. At 4:48 pm, there
K was a mass arrest of 44 persons. In between this time, the protestors kept K
hurling petrol bombs, bricks, stones and hard objects at the police.
L L
M 30. The Harcourt Road incident started from 4:20 pm to 4:48 pm. M
N N
31. The Queensway riot started from 5 pm to 5:06 pm. The
O Queensway riot in which D5 was involved was plainly part of an ongoing O
incident in Harcourt Road. At 5 pm, outside the Far East Finance Centre,
P P
at 5:06 pm, the riot took place on the carriageway of Queensway.
Q Q
32. In both 5 pm and 5:06 pm, the protestors built barricades,
R R
hurled petrol bombs, bricks and hard objects at the police.
S S
33. To build barricades required man powers. Petrol bombs were
T T
also used by the protestors. They are something that required certain
U U
V V
-9-
A A
B B
degree of preparation and knowledge to make them. They also required
C special types of liquid and materials. C
D D
34. At the time of arrest, D5 was wearing helmet, goggles and a
E 3M respirator with filters. E
F F
35. Clearly, the helmet served to protect her head, goggles to
G prevent the tear gas to get into her eyes and the mask with filter can help G
to prevent the tear gas chemical to get into her respiratory system. D5
H H
anticipated tear gas might be used. She equipped herself to participate in
I riot. I
J J
36. In D5’s rucksack, there were 2 pair of gloves, one pair was an
K ordinary one, the other one was a pair of heavy duty gloves with black K
marks on it. This pair of gloves was made with very strong and thick
L L
material; they can be used to pick up some hot items without the hands
M being burnt. There is no evidence to suggest that D5 had used those gloves M
prior to the arrest. She might or might not use them for herself or might
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keep them for others to use.
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37. To this extend, I do not agree with the defence that the
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Queensway riot was spontaneous, I ruled that it was pre-meditated.
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38. The defence also emphasized that D5 was standing in the front
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row of the protesters and shielding herself with an umbrella, there was no
S direct evidence of provocation or other violent behavior done by D5 S
towards the police or other bystanders. D5 was not a leader in the present
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incident.
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C 39. However, as the court in Tang Ho Yin (2019) HKLRD 502 C
said that: -
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“the gravity of the offence of riot is not to be judged merely by what the
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individual did (or did not do), but what the group to whose number he
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lent his support did.” F
G 40. In the judgment of R v Caird & Others [1970] 54 Cr App R G
499, the court said that: -
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“it is a wholly wrong approach to take the acts of any individual
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participator in isolation and, as already indicated, it is that very
J fact that constitutes the gravity of the offence”. J
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41. That means to isolate D5’s action from the riotous behaviour
L can be unrealistic and misleading. L
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42. Therefore, in considering an appropriate sentence, I consider
N the extend of the overall violence involved not D5’s individual acts in N
isolation.
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P 43. In order to consider the capability of D5, it is necessary to P
look at the background leading up to the Queensway riot. As I have
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referred to previously to the Harcourt Road incident which was part of the
R ongoing riot developed into Queensway riot. R
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44. D5 admitted to the Summary of Facts that there were around
T 500 protestors assembled at the area of Queensway and conducted T
themselves in a disorderly, intimidating, insulting and provocative manner.
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B B
45. Around 100 to 200 protestors assembled outside the Far East
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Finance Centre confronting the police. This was a large scale of riot.
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46. The protestors used petrol bombs, bricks, hard objects and
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shining laser beams at the police. The level of violence was extremely
F serious. Anyone can foresee that the consequences of using petrol bombs, F
bricks, and hard objects can be disastrous when use as weapons. They can
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set fire to objects, to kill and to cause serious injuries to people and to cause
H damage to property. The purpose of shining laser beams was to hurt the H
eyes of the police so that they could not carry out their duties at the scene.
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J 47. The protestors also set up barricades along Queensway, they J
took control of this part of the area. It was an important road in the centre
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of Hong Kong Island. It is also one of the importance central business
L districts in Hong Kong. L
M M
48. Within that area, there are high end shopping malls, 5 stars
N hotels and commercial buildings. The High Court building is also located N
there. Businesses of all kind were seriously affected. D5 was in the middle
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of road of Queensway. She knew that traffic was seriously disturbed.
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49. There was no evidence to suggest that there were any police
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suffered any injuries or there was any damage to any property.
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50. D5 knew she was one of the rioters. She equipped herself
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with helmet, mask, goggle to hide her face. She knew that would add
T
difficulties for police to investigate. She was in the front row with others T
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V V
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A A
B B
confronting the police checkline, she knew what the police was coming to
C them for as there was a previous arrest of 44 persons. C
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51. 21 months has gone since the arrest of D5, during this period
E of time, she has reflected upon herself and confessed that it hurts her deeply E
that she has to face up a long period of imprisonment. She is prepared to
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accept the consequence. That consequence comes with a price that she will
G not be able to look after her parents. G
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52. D5 shows her remorse by indicating her guilty plea at the
I earliest opportunity. I
J J
53. As said in the judgment of Leung Tin Kei that:-
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“73. In order to protect public order from being harmed by
L violence and the rule of law from being damaged as a result, the L
court in imposing sentence for the offence of riot must reflect
the determination of the law in protecting public order, and to
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convey a clear message to society and the public that the law
does not condone any unlawful damage or disruption of public
N order by violence…” N
O 54. When I pass sentence on the defendant, I bear in mind of all O
mitigating factors which have been said on her behalf. I also bear in mind
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that sentence of riot offence carries an element of deterrence.
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55. Having considered all the factors before me, I consider that a
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proper starting point is one of 4 years and 9 months imprisonment and it is
S appropriate in the present case, I reduce it to 3 years 2 months by 1/3 S
discount, I further reduce another 6 months to give credit to her charity
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works.
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V V
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A A
B B
C 56. The defendant is ordered to serve a term of 2 years and 8 C
months imprisonment.
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F F
( M Chow )
Deputy District Judge
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