DCCC889/2020

DCCC889/2020

A A B B DCCC 857-875, 877-884, 886-889, 891 & 893/2020 (Consolidated) C [2021] HKDC 1547 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NOS 857-875,877-884, 886-889, 891 & 893 OF 2020 F F G ---------------------------- G HKSAR H H v I LAI CHEE YING (D4) I CHOW HANG TUNG (D13) J J HO KWAI LAM (D19) K ---------------------------- K L L Before: Her Honour Judge Amanda J Woodcock in Court M Date: 9 December 2021 M Present: Ms Laura Ng, Senior Assistant Director of Public N N Prosecutions (Ag) and Mr Edward Lau, Senior Public O Prosecutor (Ag), for HKSAR/Director of Public Prosecutions O P P Mr Robert Pang, S.C., leading Mr Jeffrey Tam, Mr Ernie Q Tung and Mr Joshua Ngai instructed by Robertsons, for the Q 4th defendant R R Mr Y. L. Cheung, instructed by Ho Tse Wai & Partners, for S the 13th defendant S Miss Allison Wong, instructed by Ho Tse Wai & Partners, for T T th the 19 defendant U U V V  -2- A A B B Offences: [1] Incitement to knowingly take part in an unauthorized C assembly（煽惑他人明知而參與未經批准集結） - D1-D13 C [3] Knowingly taking part in an unauthorized assembly（明 D D 知而參與未經批准集結） - D1-D3, D5-D20 E E F -------------------------------------- F REASONS FOR VERDICT G G -------------------------------------- H H 1. This trial arises from a consolidated case that involved 20 I I defendants. 17 defendants pleaded guilty before trial. The 4th, 13th and 19th J defendants proceeded to trial. J K K 2. The 4th and 13th defendants face Charge 1, incitement to L knowingly take part in an unauthorised assembly, contrary to Common L Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and M M punishable under section 101I of the Criminal Procedure Ordinance, Cap N 221. N O O 3. On 4 June 2020 at Water Fountain Plaza, Victoria Park, P Causeway Bay, in Hong Kong they together with other defendants P unlawfully incited other persons unknown to, without lawful authority or Q Q reasonable excuse, knowingly take part in a public meeting which took R place in contravention of section 7 of the Public Order Ordinance, which R was an unauthorised assembly by virtue of section 17A(2)(a) of the same S S Ordinance. T T U U V V  -3- A A B B 4. The 13th and 19th defendants face Charge 3, knowingly taking C part in an unauthorised assembly, contrary to section 17A(3)(a) of the C Public Order Ordinance. D D E 5. On the same day, 4 June 2020, at Victoria Park, they together E with the defendants named and others unknown, without lawful authority F F or reasonable excuse, knowingly took part in a public meeting which took G place in contravention of section 7, which was an unauthorised assembly G by virtue of section 17A(2)(a) of the Public Order Ordinance, “POO”. H H I 6. Charge 2, holding an unauthorised assembly only involved I the 1st defendant, Mr Lee Cheuk Yan who pleaded guilty to this Charge as J J well as Charges 1 and 3 before trial. K K Background L L M 7. For many years now the Hong Kong Alliance in Support of M Patriotic Democratic Movements of China, “Hong Kong Alliance” has N N submitted a notification to the Police to hold a public meeting in Victoria O Park on 4th June each year. On 23 April 2020, the 3rd defendant, Mr. TSOI O Yiu Cheong Richard on behalf of the Hong Kong Alliance submitted a P P similar notification to the Police. The purpose of the public meeting was Q again to “mourn the anniversary of the June 4th Incident” with an estimated Q number of participants between 50,000 and 100,000. R R S 8. There was a liaison meeting between the Police and the S representatives of Hong Kong Alliance including several defendants. The T T Department of Health were also consulted, by memo from the Police, U U V V  -4- A A B B exhibit P50, and advised in writing against holding any mass gatherings on C 4 June 2020 in view of the coronavirus pandemic, exhibit P3. C D D 9. On 1 June 2020, the Commissioner of Police issued a notice E to Hong Kong Alliance as required, prohibiting the holding of the proposed E public meeting in the interests of public order, public safety, and the F F protection of the rights and freedoms of others. Hong Kong Alliance did G not appeal that decision nor Judicial Review it. G H H 10. Despite the prohibition, the prosecution alleges that on 4 June I 2020 members of Hong Kong Alliance and others including the 4th and 13th I defendants, incited others to take part in what would be an unauthorised J J assembly relating to the June 4th Incident. By 8pm that night there were K approximately 20,000 people including the 13th and 19th defendants K gathered on the football pitches inside Victoria Park which were originally L L closed off to the public due to COVID-19. M M 11. Despite the prohibition, the Police did not take any N N enforcement action on the day in Victoria Park nor make their presence O known. There were Police outside Victoria Park in Causeway Bay but O again they took no enforcement action during the material time. The P P decision was made not to take any enforcement action to avoid any conflict Q arising between the Police and members of the public. During the afternoon, Q several roads near Victoria Park had to be closed off to traffic for safety R R reasons and because of the obstruction caused by the number of people S present. S T T U U V V  -5- A A B B The Issues C C 12. The issues raised include whether or not the defendants D D incited other persons unknown to take part in an unauthorised assembly E and whether there was an unauthorised assembly that evening. It was E submitted that the people who were present in Victoria Park were there for F F their own personal reasons and intentions; not convened or organised by G the Hong Kong Alliance. G H H 13. There are constitutional challenges by all the defendants on a I systemic level as well as an operational level. They will come into play if I I find the prosecution has proved the Charges beyond reasonable doubt. J J K 14. The defence submits these offences should not carry a K criminal sanction and/or the maximum sentence of 5 years that can be L L imposed is too severe to be proportional and constitutional. The defence M submits that the sole legitimate aim for imposing criminal sanctions is to M ensure the compliance with the notification system and therefore, the N N restrictions arising from section 17A (3) are not rationally connected with O or are disproportionate to the legitimate aim if it were to be subjected to a O 4-step proportionality test. P P Q 15. On an operational level, the defendants submit that they Q should not have been arrested later nor prosecuted, subjected to a trial and R R possibly face a conviction for what turned out to be a peaceful public S meeting. S T T U U V V  -6- A A B B 16. The 4th defendant submits that the decision of the C Commissioner of Police to prohibit the public meeting can be challenged C by him during the trial and it is submitted that the prohibition of the D D meeting was disproportionate; a constitutional challenge on an operational E level. E F F The Prosecution’s Case G G 17. It is the prosecution’s case that the Commissioner of Police H H took into account the advice of experts, the Department of Health. In view I of the COVID-19 pandemic, the risk of a major community outbreak I existed at the time and the Government’s response level of the J J “preparedness and response plan for novel infectious disease of public K health significance” was at the highest level, an emergency level. Since K January 2020, this response level remained at the highest level. This meant L L that the risk of an impact to health caused by the pandemic on the local M population was high and imminent. M N N 18. The Department of Health assessed the risks and set out their O considerations in their recommendation, exhibit P3. A mass gathering O event was not recommended. Public safety and the protection of the rights P P and freedoms of others must include public health considerations that Q directly affect the local population. Q R R 19. It is the prosecution’s case that the defendants deliberately S flouted the law and ignored the prohibition by the Police by inciting others S and/or then knowingly took part themselves in an unauthorised public T T assembly in Victoria Park on 4 June 2020. U U V V  -7- A A B B C 20. The decision by the Commissioner of Police to prohibit the C holding of the proposed public meeting was widely broadcasted, printed D D and discussed in many media outlets. There were press conferences and E interviews given by defendants in this case who were members of the Hong E Kong Alliance as well as the 4th defendant. These are set out in exhibit P1, F F the Admitted Facts. G G 21. Other than those widely broadcasted interviews and media H H news reports, the prosecution says anybody in or near Victoria Park on 4 I June 2020 must have known that anybody participating in a meeting in I Victoria Park that night would be joining an unauthorised assembly or J J prohibited group gathering. It is admitted that the Police had set up many K loudspeakers near or inside Victoria Park broadcasting from about 4pm K until late in the evening, making continuous announcements and warning L L the public not to join any unauthorised assembly. M M 22. It was also admitted that the football pitches in Victoria Park N N had been closed for some time because of the pandemic and no entry to O these facilities were allowed. They were in fact cordoned off by barriers O which were knocked down by various people so that those gathering in P P Victoria Park that evening could enter and occupy those pitches. Q Q 23. What happened that day on 4 June 2020 in and around R R Victoria Park including who was where and when, who said what and who S went where was all recorded by either the Police or numerous media outlets S and admitted by all parties. The video footage, transcripts and certified T T U U V V  -8- A A B B translations were all agreed. Facebook posts by various defendants C including the 13th and 19th defendants were included in the Admitted Facts. C D D 24. The prosecution’s case is that the 1st to the 13th defendants in E this consolidated case gathered together at the Water Fountain Plaza just E inside the entrance of Victoria Park in a show of solidarity when the 1 st F F defendant gave a press interview at 6:25pm. What the 1st defendant, as the G Chairman of Hong Kong Alliance, said and did amounted to inciting others G to knowingly take part in an unauthorised assembly in Victoria Park that H H night. I I 25. The defendants with him, including the 4th defendant and the J J 13th defendant, each lit a candle at the same time at 6:30pm and stood in 2 K rows together facing the press. They showed their support, encouragement K and participation in the incitement by mirroring each other’s actions and L L then chanting slogans with the 1st defendant. When the 1st defendant M chanted “5 demands, not one less” the defendants all raised a hand in M unison with him. N N O 26. Their assembly at the Water Fountain Plaza was planned and O timed for full press coverage. The 4th defendant arrived by himself just P P before this group lineup and press conference. When he arrived he was Q shepherded by the 2nd defendant who then called over the 1st defendant to Q join them. They and all other defendants facing Charge 1 then gathered in R R front of the Water Fountain Plaza not long before 6:30pm. What followed S was the symbolic action of all the defendants lighting a candle and a speech. S The 4th defendant then left at the end of this display of unity as the others T T set off on a slow march into Victoria Park. U U V V  -9- A A B B C 27. The prosecution relies on what the 1st defendant said during C this speech and prior to this speech to prove his intention to incite others to D D join him and other members of Hong Kong Alliance to flout the Police ban E and enter the football pitches; to participate in an unauthorised assembly. E F F 28. The 13th defendant is next to the 1st defendant during the press G conference and when he led other defendants as well as a group of around G 100 people to walk from the Water Fountain Plaza just after the 6:30pm H H candle lighting ceremony to the football pitches. She, like other members I of Hong Kong Alliance, was holding a candle as they walked. Video I footage shows the 1st and 5th defendant, Chan Ho-wun, chanting slogans J J such as “5 demands, not one less” and “Hong Kongers, add oil” and K “Oppose National Security Law”. Other slogans were shouted in Victoria K Park and can be heard during the viewing of the video footage including L L “Liberate Hong Kong, revolution of our times” and “Fight for freedom, M stand with Hong Kong”. M N N 29. The group headed to the football pitches and the 13 th O defendant can be seen pushing aside a barrier to facilitate entry into the O football pitches. They went to football pitch number 6 which is where the P P Hong Kong Alliance would normally have erected a platform or a stage for Q the annual June 4th vigil. Symbolically they sat down where the stage would Q have been erected at about 7pm. The 13th defendant was sat with other R R defendants together. S S 30. The 19th defendant was seen sat with 7 other people in a group T T th minutes after the 13 defendant sat down nearby. The 2 groups were close U U V V  - 10 - A A B B together and separated by mainly members of the press facing the 13 th C defendant and her group. At that time, because of COVID-19 pandemic C measures, group gatherings were limited to 8 per group. D D E 31. The 19th defendant’s group comprised of 4 other defendants E who were also later charged with the same offence, taking part in an F F unauthorised assembly but were dealt with in another consolidated case, G DCCC876, 885, 890 and 892/2020. This group are seen sat with lit candles G in Hong Kong Alliance candle cups. The 19th defendant and some others H H in her group were holding bunches of white flowers. I I 32. From about that time to 8:30pm when the 1st defendant J J declared the vigil over, the 19th defendant remained in her group which was K close to the main group of Hong Kong Alliance members. When they K observed a minute of silence, she stood and observed a minute of silence. L L When there was a flower laying ceremony, consisting of white flowers only, M members of her group carried over white flowers to the main group and lay M them on the ground. N N O 33. The prosecution says the 13th and 19th defendants were O knowingly taking part in an unauthorised assembly together and with other P P persons unknown without lawful authority or reasonable excuse. The Q prosecution estimates from video footage and screenshots that by the end Q of the vigil there were 20,000 people on the soccer pitches of Victoria Park. R R S 34. This unauthorised assembly was a public meeting convened S and organised for the common purpose of mourning the 31st anniversary of T T th June 4 Incident. The group through speeches and chants also expressed U U V V  - 11 - A A B B discontent against the Hong Kong Government, the Communist Party and C its opposition to the National Security Law. C D D 35. The prosecution also rely specifically on what was E undisputedly said by the 13th defendant and 19th defendant either during E interviews, in public or written in their personal Facebook posts to show F F the 13th defendant incited others and both defendants knowingly took part G in an unauthorised assembly. G H H PW1-Superintendant Chow Wing Yee, Josephine I I 36. PW1 was the delegated Superintendent by the Commissioner J J of Police to decide whether or not to approve the Hong Kong Alliance K notification of 23 April 2020. Her evidence was she had to balance the K rights and freedoms of Hong Kongers to hold public meetings but at the L L same time she had to take into account any issues of public safety, public M order as well as the rights and freedoms of others. The pandemic at the time M was very serious and she had to consider its impact on the public and the N N risk of a mass gathering. She examined the data relating to cases and deaths O in March, April and May 2020. O P P 37. In order to do a risk assessment, she had to look not only at Q open source information relating to the pandemic but also seek the Q recommendation of the Department of Health. In her view, public safety R R covers the lives and health of Hong Kong people. To protect the rights of S others would also include considering their health. She considered the S current gazetted prohibitions relating to group gatherings covering the 1 st T T U U V V  - 12 - A A B B week of June 2020. Gatherings of more than 8 people at that time would C have contravened this prohibition regulation under Cap 599. C D D 38. She explained the reasons behind her decision to issue a Letter E of Objection and prohibit the public meeting of the Hong Kong Alliance, E exhibit P4. She took into account that Hong Kong Alliance could not F F verbalise what precautionary measures they could effectively arrange. G During the liaison meeting, she asked this question repeatedly but did not G get any direct answers. She gave evidence of the discussion during the H H liaison meeting. Hong Kong Alliance said they would verbally appeal to I Hong Kong people to social distance and wear a mask. I J J 39. PW1 received the recommendation from the Department of K Health after the liaison meeting. At that time, she had not yet decided to K issue a Letter of Objection. After she read the opinion from Dr Chen, she L L decided to prohibit the public meeting. M M 40. On 4 June 2020 the Police had intelligence and also knew N N from news media that Hong Kong Alliance were still intending to hold a O meeting in Victoria Park despite the Letter of Objection. She decided not O to deploy police officers inside Victoria Park so as not to inflame emotions P P and ongoing tensions between the Police and some of the public. She had Q some officers stationed outside in case there were any unexpected incidents. Q She took into account there were participants in Victoria Park who were R R old, young, disabled and only children. She explained why she took no S enforcement action that evening. S T T U U V V  - 13 - A A B B 41. In cross examination by Mr Robert Pang SC leading Mr C Jeffrey Tam, Mr Ernie Tung and Mr Joshua Ngai, it was suggested that C COVID-19 was stable and according to the numbers, waning. In May 2020, D D the Government had allowed nightclubs, karaokes, bars and party rooms to E resume business albeit with restraints and conditions. Groups of 8 were E allowed to sit together in restaurants, up from groups of 4. F F G 42. It was put to PW1 that she could have imposed conditions on G Hong Kong Alliance such as mandatory masks and grids marked by chalk H H in Victoria Park to ensure social distancing. She agreed she did not take the I initiative to ask the Department of Health what measures or conditions I would be required to ensure any risk was mitigated. PW1 said she decided J J if conditions could not achieve public order, public safety and protect the K rights and interests of others then she would prohibit that meeting. If those K considerations were threatened and they were by COVID-19 then she had L L no choice but to prohibit any mass gathering. M M 43. It was suggested to her that she had decided to prohibit the N N public meeting before she sought the advice of the Department of Health O which she denied. She denied that the mention of an appeal by the Hong O Kong Alliance in the Police memo to the Department of Health meant she P P had already decided. Q Q 44. PW1’s answer to that question was that she anticipated an R R appeal in case the public meeting was prohibited as was usually the case S and since they are heard very quickly after a decision is given, she wanted S the Department of Health to be ready to provide an expert witness to attend T T an Appeal Board hearing. U U V V  - 14 - A A B B C PW2 - Dr Chen Hong C D D 45. This doctor is a consultant with the Department of Health, the E infection-control branch and gave evidence relating to her recommendation E to the Police, exhibit P3. She was tendered for cross examination. At their F F request, she provided a general statement to the Police on the risks to public G health of a mass gathering taking place at the material time. She was asked G about the specific risk to public health. She explained the reasons behind H H her recommendation. I I 46. It was her evidence and she agreed that the number of J J COVID-19 cases had slowed down by the end of May 2020; she attributed K it to social distancing being implemented and effective. However, she said K there were still asymptomatic cases in the community and the Department L L of Health could not locate their origins; they were worried about a 3rd wave M hitting the territory. M N N 47. She herself had in the past attended “June 4th vigils” in O Victoria Park and she knew from personal experience what the crowds O were like. She was of the view that even if all possible precautionary P P measures were implemented she still would not have recommended a mass Q gathering proceed. She explained why and the risks that existed. Q R R PW3 - Mr Chau Yin Fung S S 48. Mr Chau was a manager from the Leisure and Cultural T T Services Department, “LCSD”. As far back as 29 June 2019 his U U V V  - 15 - A A B B Department received an application from Hong Kong Alliance to use the C facilities in Victoria Park for a public meeting from 31 May to 4 June 2020. C He explained that the Department would not process this type of D D application until 2 to 3 months before the event dates. E E 49. The pandemic meant from early 2020 many of the LCSD and F F Victoria Park facilities were closed including football pitches, children’s G playgrounds, basketball, handball and volleyball courts. These facilities G were cordoned off by mill barriers and notices explaining that COVID-19 H H had closed those facilities. They were not opened again until long after 4 I June 2020. He told the applicant from Hong Kong Alliance that COVID- I 19 had meant processing of all applications was suspended and venues J J temporarily closed until further notice. K K 50. He was in Victoria Park on 4 June 2020 because he anticipated L L a public meeting going ahead anyway. Security guards were posted around M the facilities that were closed to warn members of the public not to gather M in breach of the law. Despite appeals to the public, no one dispersed. N N Guards were ignored and he could see that crowds invaded all the football O pitches. The crowds dispersed after 11pm and he inspected the grounds to O find some graffiti on walls and on the surface of the pitches relating to June P P th 4 Incident. Q Q PW4 and PW5 R R S 51. The last 2 prosecution witnesses were Police Officers. PW4 S was in charge of traffic control around Victoria Park in Causeway Bay and T T he decided by late afternoon that the Police had to close off a few roads U U V V  - 16 - A A B B because of the crowds in the area obstructing traffic. Exhibit P52 is a map C showing which roads were closed to vehicles. They became pedestrian C only areas for safety reasons. They were later reopened at 9:14pm after the D D crowds dispersed. E E 52. PW5 was tasked to estimate the crowds that evening and he F F estimated that there were approximately 20,839 people at around 8pm on G all the soccer pitches in Victoria Park. His statement, exhibit P53 was read G into the record in which he explains his methodology in calculating that H H estimate from sequential screenshots of video footage of the pitches. I I The Defence Case J J K The 4th Defendant K L L 53. The 4th defendant is facing only Charge 1 and his case is that M what he said and did in the 15 minutes he was at the Water Fountain Plaza M in Victoria Park on 4 June 2020 cannot amount to incitement. What he said N N or did was not to persuade or encourage another to participate in an O unauthorised assembly. His mere presence as a prominent outspoken O public figure was insufficient to amount to and prove the elements of P P incitement. Q Q The 13th Defendant R R S 54. The 13th defendant elected to give evidence and stressed S several times that as the Vice Chairperson of Hong Kong Alliance, she took T T responsibility and held herself accountable for the speeches and actions U U V V  - 17 - A A B B taken by Hong Kong Alliance irrespective of whether she was the speaker C or not. C D D 55. Her case is that Hong Kong Alliance did not incite others to E participate in an unauthorised assembly because there was no unauthorised E assembly that night. The proposed meeting was prohibited by the Police F F and no longer existed any more. The Hong Kong Alliance planned an G online vigil but also planned for their own members to hold a G commemoration in Victoria Park and as long as they did not exceed 50 H H people then they were not breaking the law. I I 56. The 13th defendant gave evidence that once inside in Victoria J J Park she could not see much beyond her own group of 20 to 30 people as K she was surrounded by reporters. She did not know if those people outside K of her own circle were there because of Hong Kong Alliance or for their L L own reasons. Hong Kong Alliance cannot be held responsible for however M many other people were present at Victoria Park who may have come for M their own personal reasons. She could not have stopped others entering the N N football pitches just as she would not have stopped friends of Hong Kong O Alliance such as the 4th defendant appearing or joining them. O P P 57. Hong Kong Alliance had contingency plans ready if the Q Commissioner of Police prohibited their meeting. They would hold an Q online meeting and appeal to the public to light a candle wherever they R R were in Hong Kong so that “flowers blossom” all over the territory. They S would hand out candles to the public for this purpose. She herself was at a S street booth in the afternoon of 4 June 2020 outside Victoria Park T T distributing candles and leaflets. She is heard announcing that Hong Kong U U V V  - 18 - A A B B Alliance members would still enter Victoria Park to commemorate June 4th C Incident. C D D 58. The 13th defendant’s case is simply that there was no E unauthorised meeting that night in Victoria Park therefore she could not E have knowingly taken part in one. The reasoning was that the notified F F meeting once banned by the Police no longer existed and no one else G applied or notified the Police of another meeting so therefore any meeting G in Victoria Park that night could not be labelled as unauthorised. They were H H not there physically for a meeting, only to light a candle. Lighting a candle I in Victoria Park in a private gathering of Hong Kong Alliance members I and friends of less than 50 was not an unauthorised assembly. J J K 59. She went further and said no authorisation was necessary to K enter Victoria Park to light a candle. Therefore, she did not knowingly take L L part in an unauthorised meeting because there was no unauthorised meeting M that night. M N N 60. The 13th defendant did explain why Hong Kong Alliance O would, in her own words, “of course” choose Victoria Park to light a candle O because the candlelight vigil had been held there for 30 years. Victoria Park P P had a strong symbolic meaning because it represented a defiance to Q authorities and represented resistance to the lies of the regime. She Q described themselves as survivors of the 1989 movement and therefore R R would insist on lighting a candle in Victoria Park. S S T T U U V V  - 19 - A A B B 61. In cross examination by the prosecution, the 13th defendant C agreed that the Alliance was determined to hold the June 4th vigil annually. C She said it was their right, their freedom and their plan. D D E 62. She agreed that when the 1st defendant gave a speech at E 6:25pm on 4 June 2020 at the Water Fountain, she was stood next to him F F and that everyone in the 2 lines were there to support him. She said they G were not there just to support him but there was “a common action amongst G us.” H H I 63. She agreed that Hong Kong Alliance was encouraged by the I turnout at Victoria Park because, despite the prohibition by the Police, J J people still came out to commemorate 4 June 1989. Even though there was K no official Hong Kong Alliance event people still chose to come into K Victoria Park. She said Hong Kong Alliance’s intention was for people to L L go everywhere all over Hong Kong as well as Victoria Park. M M 64. She agrees that she did in the afternoon of 4 June at Great N N George Street shout using a loudhailer, telling the public that the O candlelight vigil in Victoria Park could not be banned. She explained she O meant candle light could not be banned. Lighting a candle was not an P P assembly. She explained when she was asking people to join a vigil, she Q was referring to a vigil online for Hong Kongers and a vigil in Victoria Q Park for people in “our circle”. R R S 65. The 13th defendant agreed the Water Fountain press S conference attended by the 1st to 13th defendant to light a candle at 6:30pm T T was preplanned. A message was sent to the press to notify them that there U U V V  - 20 - A A B B was such an arrangement; at 6:30pm there would be a candle lighting C ceremony and a slow walk into Victoria Park together as a group. However, C she denied it was a call and incitement to other people to persist with their D D right to assembly and come into Victoria Park. E E 66. The prosecution suggested she left her group after they arrived F F at the football pitches and before the commencement of the program; she G walked around as seen in video footage. She agreed she was curious to see G how many people had come and said she did see a lot of people on pitches H H holding candles but was not sure if they were attending a vigil. She I suggested they were perhaps there in Victoria Park to join the Hong Kong I Alliance on-line meeting. J J K 67. She disagreed that everything the 1st defendant said and did in K Victoria Park was directed at those crowds present such as leading them in L L song or to observe a minute of silence. She said it was leading or directing M those participating in an online meeting not everyone in Victoria Park. M N N The 19th Defendant O O 68. The 19th defendant said she knew that the Police had banned P P the notified meeting of Hong Kong Alliance. She admits she was first at Q Great George Street at a Demosisto party street booth in the afternoon and Q then entered Victoria Park football pitch number 6 by about 7pm. She R R th herself mourned June 4 Incident her own way and was not there for the S same reasons as members of the Hong Kong Alliance. She was not a S political figure but a very ordinary person in Hong Kong. She had nothing T T to do with Hong Kong Alliance therefore she was not gathered there taking U U V V  - 21 - A A B B part in a public meeting they had convened or organized if they indeed had C done so. C D D 69. The 19th defendant said she was there that night to resist the E prohibition of the Police. She was there to resist the authorities. She went E there because she believed the authorities were using the pandemic as an F F excuse. She thought it was wrong that the Hong Kong Alliance had their G annual event taken away from them. She felt the real purpose behind the G ban was that the Police were trying to scare people from entering Victoria H H Park that night. She had heard Hong Kong Alliance talk about “flowers I blossoming” across the territory but she thought they were not organising I this at Victoria Park and that no one would go to Victoria Park to J J commemorate and that nothing would be done to commemorate. If she had K known the crowds in Victoria Park were commemorating June 4th Incident, K then she would not have gone. L L M 70. When asked in cross examination if she was there to join the M June 4th vigil irrespective of her views on Hong Kong Alliance she said she N N never mourned 4 June because she disagreed that 4 June needed to be O mourned. She thought action needed to be taken to keep alive the O democratic movement of 1989. She believed the spirit of 1989 should P P continue. In any event, she said that she disagreed that there was a vigil in Q Victoria Park there that night and if there were crowds mourning 4 June in Q an unauthorised meeting then she had nothing to do with that crowd and R R did not care what they did. S S 71. The 19th defendant was asked if she was not mourning why T T did she take white flowers which are a symbol of mourning into Victoria U U V V  - 22 - A A B B Park and then take them away. She said she wanted to see if she would be C arrested like those in China would be arrested for commemorating or C mourning the anniversary of 4 June by holding candles and white flowers D D on the street in public. She said there was only one place in the world where E people would be arrested for holding lit candles and flowers on 4 June and E that was in China so she wanted to see if she would also be arrested here F F in Hong Kong. G G 72. What she meant was she was testing the Police and the H H authorities and not mourning the date or incident by being there in Victoria I Park with a lit candle and holding white flowers. In exhibit P40 a copy of I her personal Facebook page, she posted a photo of herself that night at J J 7:56pm shielding a lit candle and holding white flowers with others. K K 73. She said that the proximity of her group of 8 and the group led L L by the 1st defendant, Lee Cheuk Yan with other members of the Hong Kong M Alliance including the 13th defendant was not close, nor planned and M merely a coincidence. She said when she entered Victoria Park she could N N not remember who she entered with but they walked to football pitch O number 6 because she knew that there were many people about to enter the O park behind them so it would become very crowded. They did not choose P P this football pitch or choose to be close to the main group because this pitch Q was symbolic for the stage or platform of Hong Kong Alliance being Q erected there annually. Her actions were not symbolic nor a show of R R solidarity with Hong Kong Alliance and their purpose. S S 74. It was the 19th defendant’s evidence that she did not sing songs T T nor follow the commemoration program as set out by Hong Kong Alliance. U U V V  - 23 - A A B B She did not observe a minute of silence although she did stand and was C silent but only because others around her were silent. She had white flowers C with her when she entered Victoria Park and sat down in her group of 8 but D D has no recollection of what happened to them. She did not bring them to E lay down to commemorate and participate in a June 4th vigil. She held a E candle but says she did not even know how to use the Hong Kong Alliance F F candle cup; in fact, she had one but burnt it by accident. All this said to G show she was not there with Hong Kong Alliance but in her own personal G capacity and therefore not participating in an unauthorised assembly if any. H H I 75. In cross examination she was taken through her Facebook post, I exhibit P40 posted whilst still in Victoria Park just before 8pm. She posted J J photographs of herself and of the crowd. She also wrote that it was the first K June 4th vigil with “no big platform” in 30 years. She referred to chants as K well as songs associated with the June 4th vigil. She ended her post with L L this comment “In the first June 4th vigil with no approval, candlelight still M fills the soccer pitches. Hong Kong people, will not allow our will to be M suppressed.” N N O 76. She however disagreed with the certified translation of “no O big platform” as well as the word “vigil”. Even though Hong Kong P P Alliance had referred to this being the first vigil in 30 years without their Q usual stage or platform built on that soccer pitch, she herself was not Q referring to a physical stage but says she meant “decentralised” as used by R R scholars in a political sense. She disagreed that her reference to the “first S June 4th vigil” meant a vigil in the literal sense. She disagreed she was S referring to the event as a June 4th vigil but explained she meant it was the T T meeting notified but not approved by the Police. U U V V  - 24 - A A B B C 77. The 19th defendant agreed she referred to candlelight in her C post and agreed a lot of people were holding lit candles but abstrusely said D D whether this meant it was a candlelight vigil she could not say. She clarified E this answer and said if she says a vigil did not exist that night how could E she be participating in it; although she lit a candle she was not participating F F in a vigil. She did not know if others were holding a candle to participate G in a vigil because she could not speak for them. G H H 78. The Prosecution, in closing submissions, MFI-12 summarised I in full both the 13th and 19th defendants’ evidence as well as the evidence I of the prosecution witnesses. J J K Defence Submissions K L L 79. Mr Pang for the 4th defendant doubts the evidence and M particulars for Charge 1 prove Hong Kong Alliance were inciting the public M to attend a candlelight vigil inside Victoria Park on 4 June 2020. Their plan N N made public earlier and repeated at that press conference at the Water O Fountain was to urge people to take part in an online rally not to physically O gather in Victoria Park. Therefore, the elements of incitement have not P P been proved. MFI –13, his closing submissions set out the legal principles Q and authorities relating to the definition and elements of incitement. Q R R 80. Mr Pang submits that the defendant’s presence and conduct, S even if he was there to support Hong Kong Alliance was not evidence of S inciting others to commit a specific criminal offence. Even if he was T T supporting Hong Kong Alliance, the subject matter of that press conference U U V V  - 25 - A A B B was an online rally. He himself was not a committee member. The C committee member’s plan to enter Victoria Park themselves was not a plan C to hold a public assembly. Their plan was not a notifiable meeting and D D therefore “not subject to the notice of prohibition”. E E 81. Mr Cheung for the 13th defendant submits the 13th defendant F F and Hong Kong Alliance disseminated a message that there would be an G online vigil or rally for the public and that the members of Hong Kong G Alliance would enter Victoria Park physically in their personal capacity H H only. Upon a reading of speeches made and interviews given, there was no I evidence of incitement of others to join them and Charge 1 cannot be I proved beyond reasonable doubt. J J K 82. The submission was that their own group by themselves, was K not a meeting and therefore not unauthorised. Their group by themselves L L was not a notifiable meeting for the purposes of complying with M regulations in the POO. If there were other people in Victoria Park other M than their group, they were not there with Hong Kong Alliance nor were N N they the responsibility of Hong Kong Alliance, therefore, there was no O unauthorised meeting for the 13th defendant to knowingly participate in. O P P th 83. Miss Wong for the 19 defendant says according to the Q definition of a public meeting in section 2 of the POO, the prosecution have Q not proved there was any public meeting convened or organised in Victoria R R Park that night. The prosecution had to prove that the unauthorised public S meeting was the meeting notified to the police and prohibited. S T T U U V V  - 26 - A A B B 84. The 19th defendant, however, was not there as part of that C meeting notified but prohibited. She was there for her own personal reasons C therefore she was not participating in that particular meeting prohibited. D D Her proximity to the other defendants on football pitch no. 6 was irrelevant E and insignificant. E F F 85. Even if the Court found that the prohibited meeting of Hong G Kong Alliance was convened and unauthorised, there were other people G including herself with different views and for a different purpose also H H present in Victoria Park that night. The prosecution cannot prove they were I all there for the one and same prohibited unauthorised meeting. If the I prosecution cannot prove she was there for that prohibited meeting, then J J the elements of Charge 3 have not been proved. This submission was also K adopted by the 13th defendant. K L L 86. In final submissions, the prosecution made it clear that in M relation to Charge 3 the unauthorised assembly particularised does mean M the Hong Kong Alliance’s public meeting notified but subsequently N N prohibited as well as what was a spontaneous meeting of more than 50 O people of which the police were not notified pursuant to the Public Order O Ordinance. The prosecution’s case is that Hong Kong Alliance held and P P conducted an unauthorised meeting and had always intended to hold one Q regardless of whether or not they had authority to do so. Q R R 87. The prosecution accepts that there may have been other S people in Victoria Park that night for their own purposes but their case is S that there was a large unauthorised meeting held by the 1 st defendant of T T th th th Hong Kong Alliance and it was a June 4 vigil. The 13 and 19 U U V V  - 27 - A A B B defendants were by their conduct and proximity to the 1st defendant and C Hong Kong Alliance committee members clearly participating in that vigil. C D D My Findings E E 88. As I indicated earlier, I will first determine on the facts proved F F if the prosecution has proved beyond reasonable doubt all the elements of G the offences. They do not fall or stand together. The defendants themselves G do not fall or stand together. H H I 89. I have taken into account that on the date of the offence, 4 I June 2020, all defendants on trial had clear records. I have considered the J J good character directions in relation to both credibility and propensity. K K 90. The 4th defendant elected not to give evidence. That is his L L right and no adverse inference can be drawn against him. The fact that he M did not give evidence proves nothing, one way or the other. It does nothing M to establish his guilt. However, this means that there is no evidence from N N the defence to undermine, contradicted or explained the evidence presented O by the prosecution. I referred myself to Li Defan v HKSAR (2002) 5 O HKCFAR 320. P P Q 91. I have considered the oral as well as written submissions of Q the prosecution, MFI-12, the 4th defendant, MFI -13, 13th defendant, MFI - R R th 14 and the 19 defendant, MFI-15. It is simply not practical in the course S of these Reasons for Verdict for me to attempt to cover every aspect of the S evidence of the witnesses; to identify individually and discuss every T T argument or submission made by individual counsel for the prosecution U U V V  - 28 - A A B B and the defence. That I do not mention a particular piece of evidence, C transcript, video recording, translation, submission or authority submitted C does not mean that I have not considered it or factored it into my decision D D making. E E Charge 1 - the 4th and 13th defendants F F G 92. I have considered the elements of the incitement charge and G legal principles I have been referred to, in particular by Mr Pang. A person H H is guilty of incitement to commit an offence if he incites another to do or I cause to be done an act or acts which, if done, will involve the commission I of the offence or offences by the other and he intends or believes that the J J other, if he acts as incited, shall or will do so with the fault required for the K offence or offences. K L L 93. It is the prosecution’s case that the unlawful act was to M participate in an unauthorised public meeting inside Victoria Park on 4 M June 2020. It is their case that the 1st to 13th defendants incited others when N N they gathered to line up at the Water Fountain Plaza at 6:25pm in a group O to face the press together. The video footage, exhibit P21 shows the 4th O defendant arriving to be greeted by the 1st and 2nd defendants before they P P and other defendants grouped together to light a candle at 6:30pm to start Q proceedings. Q R R th 94. I am sure the 4 defendant arrived when he did for the sole S purpose of or in order to participate in this press conference and candle S lighting ceremony at 6:30pm. He can be heard suggesting to the 1st T T defendant when they should start lighting candles. He stood with the group U U V V  - 29 - A A B B during the 1st defendant’s speech and chanted slogans with them in unison. C The 4th defendant left as soon as the speeches were over and the others C began to walk inside Victoria Park. D D E 95. Clearly he was there to support Hong Kong Alliance and did E lend his support to their aim and that was, in my findings, to hold an F F unauthorised assembly despite the police ban and incite others to join them. G He is a prominent public figure known to publicly share similar views as G Hong Kong Alliance. H H I 96. Apple Daily online news ran an interview with the 4 th I defendant dated 2 June 2020 at 2:20am, exhibit P10, where he is quoted as J J saying “if you are not intimidated by them, you should come out and K continue to mourn in your own way or at Victoria Park.” He said it was K important to light the candle to indicate their refusal to fade into oblivion L L on the night of 4 June. He said he would still walk into Victoria Park that M night to mourn. He makes several references to the significance of M candlelight on 4 June. This was the day after the widely reported ban by N N the police. This gives an indication of why he was present at the Water O Fountain on 4 June 2020. O P P th 97. As usual and as anticipated, when the 4 defendant did arrive Q at Victoria Park he was surrounded and followed by photographers and Q reporters. His presence at that press conference was a deliberate act to rally R R support for and publicly spotlight the unauthorised assembly that followed. S He need not use words of incitement to intend to incite others. S T T U U V V  - 30 - A A B B 98. He was interviewed later that evening after attending a church C service to commemorate the date and said he was encouraged and inspired C by the large turnout of those who did enter Victoria Park that night. That D D was immediately after the press conference he attended which I find was E for the purpose of inciting others without lawful authority or reasonable E excuse, to knowingly take part in an unauthorised assembly. F F G 99. The 13th defendant was the Vice Chair of Hong Kong Alliance G at the material time. She stood with the 1st defendant and the other 11 H H defendants also charged with inciting to light a candle at 6:30pm, to support I the 1st defendant whilst he made a speech and chant in unison with him I after his speech. I have no doubt what was said before and during this J J speech showed an intention by Hong Kong Alliance to hold an K unauthorised assembly in Victoria Park despite the police ban. There is a K transcript of the 1st defendant’s speech at that time which clearly indicates L L that Hong Kong Alliance were appealing to people to light candles all over M the territory but also to come into Victoria Park to do the same. He appealed M to “friends” to light candles “not only in Victoria Park but also anywhere” N N around the territory. O O 100. In fact, what the 1st defendant and other defendants said before P P this press conference and after the vigil was declared at an end clearly Q indicated an intention to defy the police ban. As an example, the 6 th Q defendant gave a press conference from the Legislative Council, exhibit R R P11, that afternoon which was very inflammatory; he accused the police, S the Government and the LCSD of suppression. He specifically says the S Hong Kong Alliance will not give in to the Government or the police ban. T T U U V V  - 31 - A A B B He then referred to going to Victoria Park himself after that press C conference. C D D 101. After the 1st defendant announced the end of the meeting in E Victoria Park he can be heard saying at about 8:40pm that despite the police E ban “as usual, our candlelight blossoms everywhere at Victoria Park”. He F F made several references to many Hong Kongers lighting candles with G Hong Kong Alliance inside Victoria Park. G H H 102. The 13th defendant handed out candles and leaflets near the I Water Fountain Plaza in Victoria Park before the 6:30pm press conference I and can be heard at about 5:40pm repeatedly making appeals to the public J J with a microphone to collect a candle whilst making reference to an online K vigil. However, she also made many references to participating in the K commemoration vigil that night without mentioning from where. She did L L make reference to the Hong Kong Alliance going inside Victoria Park and M lighting candles saying they would not let the candlelight at Victoria Park M extinguish. N N O 103. A reading of the 13th defendant’s own Facebook post, exhibit O P38, clearly makes reference to those that will definitely join her in P P Victoria Park that night. She does not specifically appeal or invite people Q to join her but implicitly that intention is there. She signs off with “see you Q tonight”. R R S 104. I am sure the prosecution has proved beyond reasonable doubt S from the evidence admitted that what was said and done as a group T T th th gathered at the Water Fountain Plaza was an intention by the 4 and 13 U U V V  - 32 - A A B B defendants and others to unlawfully incited others to knowingly take part C in an unauthorised assembly in Victoria Park that evening. The elements C of the offence have been proved. D D E 105. The 13th defendant’s evidence was a weak attempt to deflect E the truth and intention to publicly and openly defy the police ban. The F F undisputed and admitted evidence does not support her attempt to try and G contradict or misrepresent it. I am sure the prosecution can prove beyond G reasonable doubt that the 4th and 13th defendant committed Charge 1 H H despite their clear records at that material time. I I 106. As the offence of incitement is for preventative purposes, an J J incomplete or attempted crime is sufficient to amount to incitement. K However, in this case I am sure, after considering the evidence and K submissions that there was an unauthorised public assembly in Victoria L L Park despite an objection to it by the Commissioner of Police. M M Charge 3 - the 13th and 19th defendants N N O 107. Both the 13th and 19th defendants face Charge 3. Both admit O knowing the Hong Kong Alliance meeting had been banned. Both gave P P evidence why they were in Victoria Park and why they were not part of Q any unauthorised assembly. I reject their evidence as frankly nonsensical. Q They were both at times evasive and abstruse for the purposes of being R R provocative and argumentative. I repeat, even the admitted facts do not S support the evidence given by either defendant. Their evidence was a poor S attempt to either negate or repudiate evidence that was overwhelming and T T undisputed. U U V V  - 33 - A A B B C 108. I find an unauthorised assembly was held by Hong Kong C Alliance who announced in advance they would still be proceeding into D D Victoria Park to hold a vigil despite the police ban. From the evidence of E news footage, it is clear that many people followed them in. Barriers were E torn down around the football pitches and they were occupied by thousands F F of people. By 8pm there were an estimated 20,000 people. G G 109. So much of what the 1st defendant did, with the 13th defendant H H beside him showed that they intended to hold a candlelight vigil and I commemorate the date. So much of what he said showed that they knew I there were many people in Victoria Park with them and for the same reason. J J He referred to “friends” in Victoria Park and “friends behind him” and K “friends here”. When he appealed to “friends here” to observe a minute of K silence, it is quite clear from the news footage that many people did observe L L a minute of silence. He referred to them occupying the whole Victoria Park M to continue to commemorate. He shouted many slogans that were repeated M at volume. N N O 110. The 13th defendant can be seen at 7:40pm before the program O started walking around the football pitches with another person weaving P P amongst groups of people sat on the ground. Her evidence that she could Q not see or hear beyond her own group was clearly an attempt to evade Q questions about the many thousands of people in Victoria Park and on the R R pitches. S S 111. I also reject the 19th defendant’s evidence that she was there T T for her own purpose and definitely not there to commemorate the date with U U V V  - 34 - A A B B Hong Kong Alliance. I reject the submission that she did not come within C the meaning or interpretation or definition of “meeting” as set out in section C 2 of the POO. D D E 112. Taking into account the facts agreed, the news footage of the E 19th defendant’s movements, actions and position inside Victoria Park in F F relation to her proximity to the Hong Kong Alliance committee members, G her Facebook post including photos attached, as well as her carrying a G bunch of white flowers and a lit candle, I am sure she was there to H H commemorate the date, participate in the vigil as planned by Hong Kong I Alliance as well as protest against the police ban. The reality was, any I intention to come out and participate in the candlelight vigil in Victoria J J Park that night was an act of defiance and protest against the police. K K 113. At 7:56pm that evening, whilst sat on a football pitch inside L L Victoria Park very close to the Hong Kong Alliance group, she posted M photographs and a comment on her Facebook page. She referred to what M was going on in Victoria Park as “first June 4th vigil with “no big platform” N N in 30 years”. She referred to the “flowers of freedom” song played which O is known to be associated with this vigil. She mentioned chants of “Liberate O Hong Kong, revolution of our times” associated with the social unrest from P P 2019. She ended her post with “today, in times of the National Security Q Law, mourning is resisting. In the first June 4th vigil with no approval, Q candlelight still fills the soccer pitches. Hong Kong people, will not allow R R our will to be suppressed”. S S 114. This post is accompanied by a photograph of her stood next T T to another with both cradling a bunch of white flowers as well as holding U U V V  - 35 - A A B B a lit candle in a Hong Kong Alliance candle cup. Both are shielding the C candle to prevent it extinguishing. C D D 115. The 19th defendant objected to the certified translation of E “vigil” and “big platform” however, I find no fault in the certification as E confirmed by my qualified interpreter. She said she put quotations around F F “no big platform” to indicate she meant decentralised in the political sense. G Even if that was her intention behind the quote, a plain and literal reading G of the rest of the post indicates she was participating in the banned June 4 th H H vigil by holding a candle amongst enough other people to fill all the I football pitches. Her evidence that despite her reference to candlelight she I did not know if all those people holding candles were participating in the J J June 4th vigil is neither here nor there; I am sure that the majority were K there for that reason. K L L 116. Much was made of the statutory definition of “meeting” and M that it was incapable of covering “decentralised” political actions which M were not organised or convened by one particular organiser but N N spontaneous and self-initiated by individuals. I can deal shortly with this O submission; I am sure from the evidence proved by the prosecution that the O 19th defendant was indeed knowingly participating in an unauthorised P P assembly intentionally held by Hong Kong Alliance. Q Q 117. I am sure there was a public meeting that night in Victoria R R Park that was subject to an objection by the Commissioner of Police which S became an unauthorised assembly. I am sure the prosecution can prove S beyond reasonable doubt from the evidence proved and admitted that both T T th th the 13 and 19 defendants were knowingly taking part in that U U V V  - 36 - A A B B unauthorised assembly which took place in contravention of section 7 of C the POO, which was an unauthorised assembly by virtue of section C 17A(2)(a) of the same Ordinance. All the elements of charge 3 are proved. D D E 118. In conclusion, I find the 4th and 13th defendants both guilty of E Charge 1 and the 13th and 19th defendants both guilty of Charge 3. F F G Constitutional Challenges G H H 119. On 1 September 2021 as directed, the 4th defendant filed I written submissions on his systemic constitutional challenge whilst the 13 th I defendant by letter from her solicitors raised certain issues relating to the J J decision of the Commissioner of Police and submitted that to impose K criminal liability on a peaceful demonstration is a disproportionate K restriction of a defendant’s right to freedom of assembly, demonstration L L and speech. The 19th defendant indicated she adopted both their M submissions. M N N Systemic Proportionality Challenge O O 120. The systemic constitutional challenge raised by the 4th P P defendant was raised by him in a recent “unauthorised assembly” case, Q HKSAR v Lai Chi Ying and others, [2021] HKDC 398. In that case there Q was a systemic challenge by the 4th defendant to the constitutionality of R R section 17A(3)(a) and section 17A(3)(b)(i) of the POO. S S 121. In this case, the same challenge is raised as to whether T T criminalising the participation of an unauthorised assembly as provided for U U V V  - 37 - A A B B in section 17A (3) amounts to a disproportionate restriction on the right of C freedom of assembly and procession protected under Article 27 of the C Basic Law and Article 17 of the Hong Kong Bill of Rights Ordinance, Cap D D 383 which corresponds to Article 21 of the International Covenant on Civil E and Political Rights. E F F 122. The 4th defendant submits that section 17A (3) should be G struck down as unconstitutional as it fails to satisfy the proportionality G analysis. If the predicate offence is found to be unconstitutional, the 4 th H H defendant cannot therefore be guilty of incitement to commit an I unconstitutional offence. All defendants submit that to impose criminal I sanctions for participation in a peaceful unauthorised assembly would J J disproportionately restrict the right to freedom of assembly. K K 123. The 4th defendant also submits that the maximum term of L L imprisonment of 5 years that could be imposed for a breach is too severe; M so severe it is disproportionate. So severe it has a chilling effect on those M that wish to exercise their right to freedom of assembly. N N O 124. The 13th defendant challenges the decision of the O Commissioner of Police. She submits the prohibition of the June 4th vigil P P on the grounds of public health was neither prescribed by law nor Q proportionate; therefore, ultra vires and unconstitutional. The prohibition Q of the public meeting on the grounds of public health is not prescribed by R R law nor derived from authority provided for by section 9 (1) of the POO. S S 125. Section 9 (1) provides that the Commissioner of Police may T T prohibit the holding of any public meeting notified under section 8 where U U V V  - 38 - A A B B he reasonably considers such prohibition to be necessary in the interests of C national security or public safety, public order or the protection of the rights C and freedoms of others. D D E 126. At the same time, it was submitted that alternatives to a E complete ban had not been considered; a complete ban was a F F disproportionate restriction. There was a failure on the part of the G Commissioner of Police who had a positive duty to facilitate peaceful G assemblies. H H I 127. The 13th defendant also submits the prohibition of the public I meeting was politically motivated as was the subsequent arrest and J J prosecution of the 13th defendant. The aim was to eliminate dissenting K voices and opposition leaders as well as suppress the memory of the June K 4th Incident. This was not put to any witness. L L M 128. Courts recognise certain constitutional guaranteed rights are M absolute and never subject to a proportionality analysis. Where guaranteed N N rights are not absolute, the law can create restrictions limiting such rights. O Courts can question those restrictions and it will do so by subjecting them O to a proportionality analysis. P P Q 129. For the sake of brevity and because the argument is identical Q I adopt my reasons and findings from Lai Chee Ying and others 2021. I R R found I was bound by precedent and there were no grounds for a S constitutional systemic challenge to section 17A (3) on the ground that this S challenge was precluded by the authority of Leung Kwok Hung v HKSAR T T (2005) 8 HKCFAR 229. That decision held the notification scheme under U U V V  - 39 - A A B B the POO was constitutional, including section 17A. That offence creating C section must have been in the purview of the Court of Final Appeal and I C was bound by it. D D E 130. I adopt my paragraphs 216 to 253 and 260 to 282 in Lai Chee E Ying and others 2021. I found then and I find again here in this case no F F grounds to challenge the imposition of criminal sanctions nor the provision G of sanctions itself. G H H 131. Accordingly, this challenge on a systemic level fails and I find I that the subject offence under section 17A (3) is constitutional. I This J J Is Public Health Part of Public Safety? K K 132. The 13th defendant submits that the decision to prohibit the L L public meeting was based on public health grounds as a result of the M pandemic arising from COVID-19. Since public health has nothing to do M with national security or public safety, public order or the protection of the N N rights and freedoms of others then the decision must be ultra vires and not O prescribed by law. O P P 133. The prosecution’s case was that in the context of the POO, the Q concept of public safety would include the risks and threats posed to the Q lives, physical integrity or health of the public. Equally, the concept of R R protecting the rights and freedoms of others would include the same. S S 134. COVID-19 was declared a pandemic in March 2020. The T T pandemic is an epidemic of an infectious disease that has spread worldwide U U V V  - 40 - A A B B and affected millions of people. In Dr Chen’s memo to the police she points C out there is ample evidence that mass gatherings can amplify the spread of C infectious diseases. COVID-19, a threat in the form of a pandemic, was a D D different threat to public order, public safety and the protection of the rights E and freedoms of others from, for example, certain violence and destruction E arising from serious social unrest but nonetheless still a threat. F F G 135. Clearly it was prudent of the Police to seek the advice of the G Department of Health as to their view of mass gathering events at that H H material time. A situation that affects the safety of Hong Kongers as well I as their rights and freedoms to be protected from a pandemic must be I considered by the Commissioner of Police. In fact, he would be negligent J J to ignore a pandemic and the advice of the Department of Health. I find K there is no basis for the 13th defendant to argue that the Commissioner of K Police’s decision to prohibit the public meeting notified was not prescribed L L by law. M M Operational Proportionality challenge N N O 136. All defendants challenge the merits of the decision of the O Commissioner of Police. It was submitted that on an operational level, the P P Police had unnecessarily prohibited the public meeting and the Q unnecessary prohibition had the effect of disproportionately encroaching Q on the right and freedom of assembly. R R S 137. It was also submitted that to later arrest, prosecute and S possibly convict and sentence the defendants for either inciting peaceful T T assembly or taking part in one is in violation of and disproportionate to the U U V V  - 41 - A A B B constitutional guarantees and rights of those defendants. This violates the C principle of tolerance and proportionality on an operational level. C D D 138. The defendants point out that the pandemic was not severe at E the material time, the number of cases of COVID-19 were decreasing at E the material time and therefore the decision to prohibit the public meeting F F was disproportionate. G G 139. The defence also submits that the Police should have explored H H and proposed precautionary conditions for the organisers to implement so I as to facilitate the public meeting and the exercise of the defendants’ I constitutional rights to freedom of peaceful assembly. J J K 140. The prosecution argues that it is not open to any of the K defendants to challenge the merits of the decision of the Commissioner of L L Police in a criminal trial. That should have been resolved by an appeal to M the Appeal Board or a Judicial Review. Moreover, that decision itself is M not an essential element of the subject offence under section 17A (3). N N O 141. The prosecution submits that there are in fact, no arguable O grounds for a challenge on an operational level. I have referred myself the P P Court of Appeal in Leung Kwok Hung v Secretary for Justice (No. 2) (2020) Q 2 HKLRD 771 which I believe lays down guidelines for an operational Q challenge. R R S 142. An operational proportionality challenge was raised in Lai S Chee Ying and others 2021 and I rely on my decision there and quote T T myself from paragraph 285, U U V V  - 42 - A A B B “285. …in the lead up to these guidelines the Court of C C Appeal (in Leung Kwok Hung (No. 2) 2020) first considered D relevant authorities on the permissible restrictions on the D fundamental rights of demonstration and expression. E E 286. That prohibition on Face Covering Regulation came F F into being because, as the Court of Appeal observed “since June G 2019, Hong Kong has experienced serious social unrests and G public disorder marked by protests, escalating violence, H vandalisms and arson across the territory. It is a dire situation H that has not been seen in the last 50 years.” Paragraph 1. I I 287. The Court of Appeal made it clear when either J J measures that interfered with freedom of assembly or K enforcement action taken by authorities were to be subject to a K proportionality requirement then, that proportionality analysis L has to be applied on 2 different levels. I quote the paragraphs L identified as the guidelines; M M N “182. Thus, the proportionality analysis has to be N applied on 2 different levels: O (1) examining the systemic proportionality by O reference to the legislation or rules in question; P P (2) examining the operational proportionality by reference to the actual implementation or enforcement of the Q Q relevant rule on the facts and specific circumstances of a case at R the operational level. R S 183. In these appeals, it should be emphasised S that we are only concerned with the first level of challenges. It T T remains for the court to assess the proportionality on the second U U V V  - 43 - A A B level on the facts and circumstances in a particular case if a B charge is brought against a person. C C D 184. The Strasbourg Court continued at (155) – D (157) in Kudrevicious v Lithuania to identify the need to have E measures to restrict conducts causing disruption to ordinary life E to a degree exceeding that which is inevitable for peaceful F F demonstration and assembly. At (155), the Court alluded to 2 important mindsets for striking the balance: G G (1) on the one hand, the public authorities have to H show a degree of tolerance; H (2) on the other hand, demonstrators should comply I with the regulations in force.” I J J 288. The operational challenge is explained at para 182(2). What is to be operationally proportional is the actual K implementation or enforcement if there is any, on the facts and K specific circumstances of a case. This must be read in conjunction with paragraph 181 and the Court of Appeal L L references to Kudrevicius v Lithuania (2016) 62 EHRR 34. M 289. In para 181, it refers to a scenario when a demonstration M has not been authorised. It summarises some general observations from Kudrevicius; N N “181. ...Whilst acknowledging that it is essential to O have a system of prior notification, the absence of prior O authorisation does not give carte blanche to the authorities in taking enforcement actions. Such actions would still be subject P to proportionality requirement. The Court highlighted that P though there could be special circumstances which justify the Q holding of spontaneous demonstrations without prior Q notification, such exception must not be extended to the point where the absence of prior notification of a spontaneous R demonstration can never be a legitimate basis for crowd R dispersal.” S S 290. In my view, the Court of Appeal is referring to enforcement action against a demonstration on the day, here T with specific reference in the last line to crowd dispersal. Public T authorities have to show a degree of tolerance in what action they decide to take at the time. Some level of disruption can be U U V V  - 44 - A A B inevitable in any demonstration so just that fact alone does not B justify an interference with the right to freedom of assembly C hence, a tolerant approach is required.” C D D 143. Indisputably, on 4 June 2020 the Police took no enforcement E action. PW1 gave her reasons for this decision. There was no restriction E therefore upon the exercise by any defendant of their rights or freedom of F F procession and freedom of assembly that day. There is nothing to subject G to an operational proportionality challenge. However, it does not follow G that there cannot or will not be any action taken later by the authorities in H H the form of arrests and prosecutions. I I 144. The decision to prosecute remains the sole authority of the J J Department of Justice according to the Basic Law; there were no grounds K raised to justify an interference with that decision. K L L 145. I adopt what I said from paragraph 291 to 310 in that same M case, Lai Chee Ying and others 2021. For the sake of brevity again, I will M not repeat my reasons. I am sure the Court of Appeal did not mean in Leung N N Kwok Hung (No.2) 2020 at paragraph 183 that a charge or the decision to O prosecute is open to an operational proportionality challenge and the O decision to prosecute should be examined. P P Q 146. In Leung Kwok Hung (No.2) 2020 no criminal charge or Q conviction was the subject of that appeal therefore, they were only R R st concerned with the 1 level of challenge and that was a proportionality S S analysis examining the systemic proportionality by reference to the T legislation or rules in question. The court would only examine the 2nd level, T the operational proportionality if charges are brought against a person U U V V  - 45 - A A B B which was not the situation in that appeal. Hence, their remark that it C remains for the court in another case to assess the proportionality on the C nd 2 level on the facts and circumstances when a charge is brought against a D D person. E E 147. I agree with the prosecution’s submission that there are no F F matters relied on by the defendants that constitute arguable grounds for an G operational proportionality challenge. I agree with the interpretation that G any subsequent arrest and decision to prosecute are not matters to be H H subject to that challenge. I I 148. In paragraphs 302 to 310 in Lai Chee Ying and others 2021 I J J dealt with the same submission as here that the decision to arrest and K decision to prosecute the defendants should be subject to a proportionality K analysis. The systemic challenge has failed and the relevant sections L L constitutional. The subsequent arrest of the defendants was therefore M lawful. If the propriety and lawfulness of an arrest is questioned, that will M be dealt with on the facts during the course of the criminal trial and not by N N a constitutional challenge. The same principle applies to the submission O that a conviction would be disproportionate. O P P th 149. The 4 defendant has relied on a recent appeal from the Q Supreme Court of the United Kingdom, Director of Public Prosecutions v Q Ziegler (2021) 3 WLR 179 a case concerning the obstruction of roads and R R highways. There the Court considered the conduct and intention of the S appellants in an evaluation of proportionality. Did their actions cause or S prevent disorder; was the conduct reasonable. A defence was raised in that T T authority. U U V V  - 46 - A A B B C 150. I have considered that authority and find I can distinguish it C because the nature of those charges in that authority were very different D D from the offences under section 17A of the Public Order Ordinance. I also E made a similar distinction in Lai Chee Ying and others 2021 and I adopt E my paragraphs 263 and 264. F F G Merits of the Decision of the Commissioner of Police G H H 151. The 4th defendant challenges the reasonableness of the I decision of the Commissioner of Police in banning the public meeting. In I final submissions it is stated that he accepts that whether the Commissioner J J was right or wrong in objecting to the public meeting cannot be challenged K as laid down by the decision of Leung Kwok Hung 2005. He goes on to say K however, the reasonableness of that decision is a relevant consideration for L L this Court when considering whether a conviction is a justifiable M infringement on the constitutional rights, paragraph 34 of MFI-13. M N N 152. Much was made of the police memo to the Department of O Health. Much was made of the evidence and opinion of Dr Chen as well as O the statistics as to the number of COVID cases in January to May 2020 P P referred to in exhibit D2. Q Q 153. Mr Pang for the 4th defendant says that he would have been R R unable to appeal to the Appeal Board after the Letter of Objection from the S Commissioner of Police because the 4th defendant had no locus standi. S Similarly, the same would apply to the 4th defendant launching a Judicial T T U U V V  - 47 - A A B B Review. Mr Pang says that his only recourse in challenging the merits of C that decision is during the criminal trial and in his defence of Charge 1. C D D 154. The prosecution’s position is that to argue the merits of the E decision to prohibit the public meeting or to deny that COVID-19 was the E real reason behind the decision are not constitutional challenges on the F F subject offence on either a systemic or operational level. I agree with this G position. G H H 155. It is not open to the defendants to challenge to the merits of I the decision during the trial. Firstly, the issue should have been resolved I by the Appeal Board according to the statutory mechanism for aggrieved J J parties and then a Judicial Review. K K 156. The prosecution’s case is that, in any event, on a true L L construction of the POO, the validity and merits of the Commissioner’s M decision is not an essential element of the subject offence under section M 17A (3) and therefore, it is unnecessary for this Court to consider. I also N N agree with this position. O O 157. I was referred to an authority for the proposition that it was P P not open to a defendant in a criminal trial to challenge the validity of a Q statutory or regulatory order unless there were no other avenues available Q to him to appeal the order, HKSAR v Sky Wide Development Ltd (2013) 1 R R HKLRD 613. In that authority the defendants challenged the validity of a S building demolition order during their trial when the Buildings Ordinance S provided a statutory mechanism for an avenue for appeal which was not T T utilised. U U V V  - 48 - A A B B C 158. It would make no sense if only those named in the Notification C th submitted under the POO could appeal to the Appeal Board yet the 4 D D defendant, being someone who incited others to participate in an E unauthorised assembly was able to effectively appeal it during a criminal E trial instead. F F G 159. After considering submissions from both the defence and the G prosecution, I do not find it open to the 4th defendant in this trial to H H challenge the merits of the decision of the Commissioner of Police. It is I not relevant to the elements of either Charge 1 or Charge 3. It is I unnecessary for the purposes of this trial to determine whether the ban of J J the public meeting was justified, reasonable or proportionate. K K 160. However, I will add that even if it was relevant and I should L L consider the merits of the decision then I would, without hesitation, rule M against the defence. The Department of Health’s opinion and M recommendation was very clear. The numbers of COVID cases from April N N 2020 had decreased because Dr Chen contributed that to the concerted O efforts of the whole community in maintaining social distancing amongst O other effective measures. That did not mean Hong Kongers were safe from P P COVID-19. Q Q 161. I would have given weight to Dr Chen’s evidence that even if R R all possible precautionary measures were implemented in Victoria Park S during a public meeting of between 50,000 and 100,000 people, she would S still be of the same professional opinion that a mass gathering of that nature T T U U V V  - 49 - A A B B of which she had had prior personal experience, would be a risk to public C health at that material time. C D D Conclusion E E 162. After a careful consideration of the submissions, I find no F F matters raised by any of the defendants can constitute arguable grounds for G an operational proportionality challenge. Accordingly, the constitutional G challenge of section 17A (3) of the Public Order Ordinance on an H H operational level must fail. Both constitutional challenges on the systemic I and operational level have failed. I J J Summary K K 163. I have found after trial the prosecution able to prove beyond L L reasonable doubt that on 4 June 2020, the 4th and 13th defendants together M with others unlawfully incited other persons to that lawful authority or M reasonable excuse, knowingly take part in a public meeting which was an N N unauthorised assembly. O O 164. I have also found after trial the prosecution able to prove P P th th beyond reasonable doubt that on the same day the 13 and 19 defendants Q knowingly took part in an unauthorised assembly as defined in section Q 17A(2)(a) of POO in Victoria Park without lawful authority or reasonable R R excuse. S S 165. I did go on to consider constitutional challenges. The systemic T T challenge failed for the sole reason that this Court is bound by the decision U U V V  - 50 - A A B B made by the Court of Final Appeal in Leung Kwok Hung 2005. The C constitutionality of section 17A was decided in that authority and a binding C precedent. D D E 166. Similarly, I found the operational challenge failed for the sole E reason that there were no matters relied upon by the defendants that could F F constitute good and arguable grounds for an operational proportionality G analysis as envisaged by the Court of Appeal in Leung Kwok Hung (No. 2) G 2020. H H I 167. Accordingly, and despite the clear records of all 3 defendants, I I find the 4th and 13th defendants guilty of Charge 1. I find the 13th and 19th J J defendants guilty of Charge 3. K K L L M M (A J Woodcock) N N District Judge O O P P Q Q R R S S T T U U V V