DCCC865/2020 HKSAR v. LEE CHEUK YAN AND OTHERS - LawHero
DCCC865/2020
區域法院（刑事）HH Judge A. J. Woodcock12/12/2021[2021] HKDC 1572
合併案件：DCCC863/2020DCCC861/2020
DCCC865/2020
A A
DCCC 857-875,
877-884, 886-889,
B 891 & 893/2020 B
(Consolidated)
[2021] HKDC 1572
C C
IN THE DISTRICT COURT OF THE
D
HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NOS 857-875, 877-884,
886-889, 891 & 893 OF 2020
E E
----------------------
F HKSAR F
G v G
Lee Cheuk-yan (D1)
H Tsoi Yiu-cheong Richard (D3) H
Lai Chee-ying (D4)
Leung Yiu-chung (D7)
I Leung Kam-wai (D10) I
Chow Hang-tung (D13)
J Wu Chi-wai (D17) J
Ho Kwai-lam (D19)
K ---------------------- K
Before: HH Judge A. J. Woodcock
L L
Date: 13 December 2021 at 2.39 pm
Present: Ms Laura Ng, SADPP (Ag) and Mr Edward Lau, SPP (Ag) of
M Department of Justice, for HKSAR M
The 1st, 13th and 19th defendants appeared in person
Ms Kristine Chan, of Ho Tse Wai & Partners, for 3rd and
N 10th defendants N
Mr Robert Pang, SC, leading Mr Jeffrey Tam, Mr Ernie
Tung and Mr Joshua Ngai, instructed by Robertsons, for
O O
the 4th defendant
Mr Lucas Lau, instructed by Lau & Chan, for the 7th
P defendant P
Mr Lee Hung-mo, instructed by Ho Tse Wai & Partners,
for the 17th defendant
Q Offences: (1) Incitement to knowingly take part in an Q
unauthorized assembly(煽惑他人明知而參與未經批准集結)
R (against D1-D13) R
(2) Holding an unauthorized assembly(舉行一個未經批准集結)
(against D1)
S (3) Knowingly taking part in an unauthorized assembly S
(明知而參與未經批准集結)(against D1-D3, D5-D20)
T T
U U
CRT23/13.12.2021/CP 1 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
---------------------
B Reasons for Sentence B
---------------------
C C
D 1. There were 37 cases arising from the same incident of D
which 4 were dealt with earlier and the remaining 33 were
E consolidated. In this consolidated case, there were 20 E
defendants.
F F
G 2. 12 of the 20 defendants pleaded guilty to their G
respective charges before me and were sentenced on 15 September
H 2021. They were the 2nd, 5th, 6th, 8th, 9th, 11th, 12th, 14th, H
15th, 16th, 18th and 20th defendants. The remaining 8 pleaded
I I
not guilty and a trial was set down for 10 days from 1 November
2021.
J J
K 3. Those remaining 8 defendants appeared before me at a K
pre-trial review on 15 October 2021. Between that date and the
L first day of trial, 5 of the remaining defendants indicated a L
change of plea. They pleaded guilty to their respective charges
M M
on the first day of trial. They were the 1st, 3rd, 7th, 10th and
17th defendants. I will sentence them today.
N N
O 4. 3 defendants maintained their pleas of not guilty and O
were convicted after trial of their respective charges on
P P
9 December 2021. I have heard mitigation earlier today on behalf
of, or from those 3 defendants; the 4th, 13th and 19th
Q Q
defendants.
R R
5. The 4 defendants dealt with and sentenced earlier by
S His Honour Judge Stanley Chan, pleaded guilty to a charge S
arising from the same incident on 4 June 2020 in Victoria Park.
T T
In a consolidated case DCCC 876, 885, 890 and 892/2020, Wong
Chi-fung, Lester Shum, Tiffany Yuen Ka-wai and Rosalynne
U U
Jannelle Leung admitted they knowingly took part in that same
CRT23/13.12.2021/CP 2 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
unauthorised assembly. They were sentenced on 6 May 2021 to
sentences ranging from between 4 to 10 months’ imprisonment.
B B
C Charge 1 C
D D
6. The 1st, 3rd, 7th and 10th defendants pleaded guilty
to Charge 1, incitement to knowingly take part in an
E E
unauthorised assembly, contrary to Common Law and
F section 17A(3)(a) of the Public Order Ordinance, Cap 245 and F
punishable under section 101I of the Criminal Procedure
G Ordinance, Cap 221. G
H H
7. The particulars are that on 4 June 2020 at the Water
I Fountain Plaza, Victoria Park, Causeway Bay, in Hong Kong, they, I
together with other defendants unlawfully incited other persons
J unknown to, without lawful authority or reasonable excuse, J
knowingly take part in a public meeting which took place in
K K
contravention of section 7 of the Public Order Ordinance which
was an unauthorised assembly by virtue of section 17A(2)(a) of
L L
the same Ordinance.
M M
8. The 4th and 13th defendants were convicted after trial
N of Charge 1. N
O O
Charge 2
P P
9. The 1st defendant pleaded guilty to Charge 2, holding
Q an unauthorised assembly, contrary to section 17A(3)(b)(i) of Q
the Public Order Ordinance.
R R
S 10. The particulars are that on the same day, 4 June 2020 S
at Victoria Park, the 1st defendant held a public meeting which
T took place in contravention of section 7 of the Public Order T
Ordinance, which was an unauthorised assembly by virtue of
U U
section 17A(2)(a) of the Public Order Ordinance.
CRT23/13.12.2021/CP 3 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
Charge 3
B B
11. The 1st, 3rd, 7th, 10th and 17th defendants pleaded
C guilty to Charge 3, knowingly taking part in an unauthorised C
assembly, contrary to section 17A(3)(a) of the Public Order
D D
Ordinance.
E E
12. The particulars are that on the same day, 4 June 2020
F at Victoria Park, they together with the defendants named and F
other persons unknown, without lawful authority or reasonable
G excuse, knowingly took part in a public meeting which took place G
in contravention of section 7 of the Public Order Ordinance,
H H
which was an unauthorised assembly by virtue of section
17A(2)(a) of the same Ordinance.
I I
J 13. The 13th and 19th defendants were convicted after J
trial of Charge 3.
K K
The Facts
L L
M 14. When I sentenced 12 of these 20 defendants on 15 M
September 2021, I set out in full the facts agreed by the
N N
defendants and pertinent to sentence. For the sake of brevity,
there is no need to repeat them here in full.
O O
P 15. In convicting the 4th, 13th and 19th defendants after P
trial, on 9 December 2021, in my verdict, I set out the evidence
Q against each defendant that I found proved beyond reasonable Q
doubt that they were guilty as charged. There is no need for me
R R
to repeat it here. I also set out why I rejected the evidence of
the 13th and 19th defendants.
S S
T 16. Suffice to say, the Hong Kong Alliance in Support of T
Patriotic Democratic Movements of China (“Hong Kong Alliance”)
U U
submitted a notification to the Police applying to hold a public
CRT23/13.12.2021/CP 4 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
meeting in Victoria Park between 9 am and 10 pm on 4 June 2020.
The purpose of the meeting was to mourn the 31st anniversary of
B B
the June 4 incident, with an estimated number of participants
C between 50,000 and 100,000. C
D D
17. In light of the pandemic, the Department of Health
were consulted by the Police and advised against holding any
E E
mass gatherings at that time, in view of the coronavirus
F
pandemic. The Department of Health took into account the number F
of COVID-19 cases by the end of May 2020, the upsurge between
G March and early April 2020 as well as several local clusters G
mid-May 2020 with no apparent primary source identifiable. The
H risk of community outbreak existed at that time. All the H
sporting facilities, including the football pitches of Victoria
I I
Park were closed, and had been since March 2020 because of the
pandemic.
J J
K 18. After a liaison meeting between the Police and K
representatives of Hong Kong Alliance, the Commissioner of
L L
Police issued a notice as required, prohibiting the holding of
the proposed public meeting in the interests of public order,
M M
public safety and the protection of the rights and freedoms of
N others. The Letter of Objection was issued on 1 June 2020. N
O 19. Despite the Letter of Objection, these defendants O
defied the police ban and the law. They either incited others to
P P
take part in an unauthorised assembly, and/or knowingly
participated in one that night. The 1st defendant admits he held
Q Q
it.
R R
20. The video footage of the press conference, inciting
S S
others and the actual footage of the unauthorised assembly has
been played in court numerous times in relation to this
T T
consolidated case. Those videos and screen captures identifying
U the defendants and their locations, as well as the transcripts U
CRT23/13.12.2021/CP 5 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
of the speeches and slogans chanted are set out in the Amended
Summary of Facts for these 5 defendants that pleaded.
B B
C 21. In the afternoon of 4 June 2020, there were crowds C
already around Causeway Bay entrance of Victoria Park
D D
obstructing traffic, and some roads had to be closed to traffic
because of traffic chaos and safety concerns.
E E
F 22. By 8 pm, there were an estimated 20,000 people on the F
invaded football pitches of Victoria Park. The pitches were a
G sea of candlelight. The crowds disbursed by about 11 pm. There G
was some graffiti on walls and on the ground relating to the
H H
June 4th Incident.
I I
Mitigation
J J
23. I have heard mitigation in full from all except the
K K
10th defendant, who had nothing to say, but did submit a
biography. This morning, the 13th defendant acted in person in
L L
mitigation and gave no personal particulars or background but
M made a lengthy statement. Similarly, the 19th defendant gave no M
personal particulars or background in mitigation but made a
N short statement in person. N
O O
24. I have either received written mitigation,
P biographies, statements and supporting authorities in advance or P
received letters of mitigation. The 1st defendant also
Q represented himself in mitigation. I do not intend to repeat all Q
the mitigation provided but all that can be said on behalf of
R R
the represented defendants has been conveyed and considered.
S S
25. For the 1st, 3rd, 7th, 10th and 17th defendants, their
T best mitigation is their pleas of guilty. They did not indicate T
their pleas in a timely manner. They all indicated their pleas
U U
CRT23/13.12.2021/CP 6 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
between the date of the pre-trial review and the first day of
trial.
B B
C 26. It was submitted that by then, the turbulent and C
tumultuous social unrest of 2019 had receded. The obstruction
D D
and inconvenience to the public around Victoria Park was limited
to the streets in the Causeway Bay area only and natural with
E E
any assembly. There was no violence or imminent risk of violence
F
at any time. The unauthorised meeting lasted only a few hours F
and was relatively short.
G G
27. I was urged to, and will consider personal mitigation,
H H
clear records, motive, backgrounds and previous significant
public service.
I I
J Principles of Sentencing J
K K
28. I will adopt paragraphs 40 to 52 in my Reasons for
Sentence dated 15 September 2021 relating to other co-defendants
L L
in this case. I will consider the culpability of the offenders
M individually. The context in which a crime is committed is of M
relevance to assessing its gravity and that culpability. It can
N be relevant to whether a punitive and deterrent sentence is N
appropriate.
O O
P 29. Since preserving public order and public safety is P
important, I have taken into account the prevailing
Q circumstances at the time, some defendants incited others to Q
take part in an unauthorised assembly, and all the defendants
R R
knowingly took part in it, bar the 4th defendant.
S S
30. I have set out in the Reasons for Sentence of other
T co-defendants, why I found a deterrent sentence appropriate. The T
social unrest and violence we saw in 2019 had significantly
U receded by June 2020, but not disappeared entirely. What we did U
CRT23/13.12.2021/CP 7 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
see from the beginning of 2020 was a different threat to public
order, public safety and the protection of the rights and
B B
freedoms of others in the form of the pandemic. This is not an
C epidemic, confined to the Mainland and Hong Kong, but an C
indiscriminate pandemic that by June 2020 had spread across the
D world and is a threat that is still affecting us today, 18 D
months later.
E E
F
31. Whether or not it contributed to the social unrest of F
2019 receding somewhat, the pandemic itself presents a different
G threat and risk. It was this threat and risk that was behind the G
decision of the Commissioner of Police. Since June 2020, we have
H had a 3rd and 4th wave of COVID-19 infections in Hong Kong and H
there may be more to come.
I I
J 32. All sentencing principles are applied to determine J
what is an appropriate sentence to take into account the facts
K of the charges, and in this case, also the prevailing public K
health crisis in Hong Kong at that time.
L L
M
33. The obstruction to traffic and public transport as M
well as some road closures that day is a relevant consideration,
N but in these facts, the risk to public safety, because of this N
pandemic, serves to prove this unauthorised assembly was
O serious. These are factors I have taken into account and will O
reflect in sentence.
P P
Q Reasons for Sentence Q
R R
34. Similarly, for the sake of brevity, I adopt paragraphs
53 to 63 in my Reasons for Sentence dated 15 September 2021,
S S
relating to the other co-defendants in this case. I reiterate
T
here that the Basic Law and the Bill of Rights does guarantee T
the freedom of assembly, procession and demonstration for Hong
U U
CRT23/13.12.2021/CP 8 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
Kong residents. However, these rights are not absolute and are
subject to restrictions ruled constitutional.
B B
C 35. Here, restrictions can be applied in the interests of C
public safety, public order and the protection of others’ rights
D D
and freedoms. A consideration of public safety and the need to
protect the rights of others must include a public health
E E
crisis.
F F
36. When considering an appropriate sentence, I do not
G take into consideration the common purpose of the assembly, nor G
the politics, beliefs, stance and opinions of any of the
H H
defendants. These sentences are not a reflection of, or related
in any way to the politics, beliefs, stance and opinions of any
I I
defendant.
J J
37. I am well aware that the Hong Kong Alliance organised
K K
an annual event in Victoria Park to mark June 4th, but under the
exceptional circumstances, the organisers had other alternative
L L
and creative options to consider, such as an interactive online
M
vigil which would have negated the risk of COVID-19. Not a vigil M
in groups on the streets all over Hong Kong and in Victoria
N Park, in addition to an advertised online vigil, as announced by N
Hong Kong Alliance.
O O
38. The social distancing measures adopted to combat this
P P
pandemic, were not designed to surreptitiously prevent people
Q gathering for a common purpose or as a tool of suppression, as Q
wildly suggested, but to specifically stop people gathering in
R groups to prevent the transmission of COVID-19. R
S S
39. The sole reason for social distancing measures is to
T
protect the public and whole community. Restrictions applied in T
the interests of public safety, public order and the protection
U U
CRT23/13.12.2021/CP 9 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
of others’ rights and freedoms. So to defy and incite others to
defy those restrictions under such circumstances is serious.
B B
C 40. Therefore, I consider a deterrent and punitive C
sentence appropriate. The defendants exhibited a blatant
D D
disregard of a serious risk to the entire community. The
defendants ignored and belittled a genuine public health crisis.
E E
They showed no concern for the safety and health of fellow Hong
F
Kongers. They wrongly and arrogantly believed their common F
purpose and right to commemorate in Victoria Park was more
G important than protecting the community or the public’s right to G
protection from a serious health risk, an invisible risk.
H H
41. Some, or most of those charged with incitement are
I I
well-known public or political figures and their frontline roles
J in this unauthorised assembly is an aggravating factor. They J
have a public profile and what they said and did was widely
K broadcast by media outlets. Moreover, they came together as a K
group for the press to reinforce each other and their message in
L L
order to be more visible to draw as many people as possible to
Victoria Park.
M M
N 42. They were not to know whether the crowds they N
encouraged to participate in an unauthorised assembly would be
O peaceful and non-violent or would diligently adhere to social O
distancing measures. On the day, the video footage clearly shows
P P
the crowds did not adhere to such necessary measures. The fact
that there did not appear to be an outbreak of either violence
Q Q
or COVID cases as a result of this assembly does not detract
R from their culpability. It was fortuitous. R
S S
43. Accordingly, it is in this context, and because of the
prevailing circumstances at the time, I find an immediate
T T
custodial sentence appropriate.
U U
CRT23/13.12.2021/CP 10 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
44. The defendants who incited others to congregate in
large numbers and join them in an organised, unauthorised
B B
assembly on closed off football pitches created a public health
C and safety risk. They committed these offences despite the C
reasons given for the decision to prohibit the proposed meeting,
D being undeniable and credible. D
E E
45. I have taken into account mitigation put forward,
F
submissions made, the facts of the offences and the prevailing F
situation at the time, behind the decision of the Commissioner
G of Police. I have also considered the fact that at the material G
time, all the defendants before me today had clear records,
H except for the 3rd defendant. However, his one previous similar H
offence dates back to 1993.
I I
J 46. The other relevant consideration I cannot ignore is J
that the 1st, 3rd, 4th and 7th defendants were on court bail for
K similar offences when they committed these offences. I sentence K
the defendants as follows:
L L
M
The 1st Defendant M
N 47. I have a biography and personal details of the 1st N
defendant. In fact, I have considered in the last 3 recent cases
O O
of unauthorised assembly charges involving this defendant, many
mitigating letters written on behalf of the defendant as well as
P P
his own. There is no dispute he has dedicated a very long time
Q to public service, in particular the welfare of workers and Q
labour rights. In previous mitigation, his selfless dedication
R has already been highlighted. Pertinent to this case, between R
2011 and 2014, as well as 2019 and 2021, is the fact he was the
S S
chairman of the Hong Kong Alliance.
T T
48. The 1st defendant elected to represent himself in
U mitigation after his plea to Charges 1, 2 and 3. He read out a U
CRT23/13.12.2021/CP 11 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
statement explaining his experiences in Beijing in June 1989
when he was tasked with bringing donations to support protestors
B B
in Tiananmen Square. His involvement and experience led to a
C lifelong need and intention to dedicate himself to the C
commemoration of the June 4th Incident.
D D
49. The depth of his emotion and dedication is palpable.
E E
He writes of his steadfast belief in freedom, rule of law, human
F
rights and democracy. As I have said above, I do not take those F
beliefs and the common purpose here into account; that means the
G deterrent element is not because of his politics, beliefs, or G
grievances. The defendant, I am sure, when he committed these
H offences, did so with his eyes wide open. He knew that there H
would be consequences for his actions, as I am sure did all
I I
other defendants.
J J
50. I intend to take a starting point of 15 months’
K imprisonment, to reflect his prominent role as a leader who K
drove the unauthorised assembly. I will increase it by 3 months
L L
to take into account the aggravating factor of being on court
bail at the time for 3 other public order-related offences from
M M
2019. Therefore, I take a starting point of 18 months’
N imprisonment for Charges 1 and 2. N
O 51. I intend to take a starting point of 6 months’ O
imprisonment for Charge 3. I also increase this by 3 months to
P P
reflect the fact he was on court bail at the time. Therefore, I
take a starting point of 9 months’ imprisonment for Charge 3.
Q Q
R The 3rd Defendant R
S S
52. I sentenced the 3rd defendant to 14 months’
T
imprisonment, suspended for 24 months in DCCC 534/2020. He had T
pleaded guilty to 2 counts of public order offences. I found a
U U
CRT23/13.12.2021/CP 12 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
suspended sentence appropriate for his background, long public
service and minor role in that offence.
B B
C 53. I heard full mitigation on that occasion and had many C
letters from many people from different walks of life such as
D D
friends, colleagues and those who had benefitted from his
dedication to public service. From his biography, I know he has
E E
been a District Councillor, a politician and former vice
F
chairman of the Democratic Party. F
G 54. I have heard full mitigation put forward again on his G
behalf. He is a family man with a long record of serving the
H H
public and the community. One particular achievement was to
successfully advocate for legislation against anti-racial
I I
discrimination. It has been stressed that this unauthorised
J assembly in Victoria Park caused little disruption and J
inconvenience to the community. It was peaceful and without
K violence. It was of a different nature to the unauthorised K
assembly he helped organise in 2019. This was an annual
L L
commemoration he felt had to be remembered despite the pandemic.
M M
55. I have considered the letters submitted on his behalf
N in mitigation. There is a letter from an Associate Professor at N
the Chinese University of Hong Kong, the Reverend Dr Tobias
O Brandner, who speaks of his deep commitment and passion for the O
poor, underprivileged and prison inmates. He is described as
P P
humble, with great concern for those at the margins of society.
Q Q
56. There is another letter from Professor Antony Cheung
R who describes the 3rd defendant as moderate in disposition and R
willing to reach out to all sides within the political spectrum.
S S
He has firm political convictions, yet advocates a peaceful and
rational approach, which caused conflict between himself and his
T T
own party.
U U
CRT23/13.12.2021/CP 13 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
57. In March 2020, he resigned from his position and
duties in the Democratic Party after a joint petition from his
B B
own colleagues. This arose from his criticism of local
C restaurants for discriminating against Mainland Chinese C
customers during the pandemic.
D D
58. He currently works as a community organiser for the
E E
Society of Community Organisations (“SoCo”) and I have a letter
F
from a director describing his dedication and work for the F
underprivileged and grass roots community.
G G
59. What does differentiate the 3rd defendant on this 2nd
H H
occasion before me is that he committed these offences whilst on
bail for similar offences. I am sure he took the risk knowing
I I
that his actions could have serious consequences. Despite his
J mitigation, it is inappropriate to consider a suspended sentence J
again.
K K
60. I intend to take a starting point of 12 months’
L L
imprisonment and I increase it by 3 months to take into account
M
the aggravating factor of being on court bail at the time. M
Therefore, I take a starting point of 15 months for Charge 1.
N N
61. I intend to take starting point of 6 months’
O O
imprisonment for Charge 3 and I increase this by 3 months to
reflect the fact he was on court bail at the time. Therefore, I
P P
take a starting point of 9 months for Charge 3.
Q Q
The 4th Defendant
R R
62. Mr Pang has said all he can say in written and oral
S S
mitigation in relation to the 4th defendant’s background,
T career, health issues as well as his culpability. He has T
referred me to authorities he relies upon and submits that a
U non-custodial sentence would be appropriate and if not, and I U
CRT23/13.12.2021/CP 14 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
find a term of imprisonment is appropriate, then to suspend it
would be the correct approach on these facts.
B B
C 63. I have previously heard full mitigation in DCCC C
536/2020, DCCC 537/2020 and DCCC 534/2020. I sentenced the 4th
D D
defendant to public order related offences committed on those 3
separate occasions in 2019.
E E
F 64. On this occasion, the 4th defendant submitted a letter F
of mitigation which explained his actions and reasons for going
G to Victoria Park just before 6.30 pm on 4 June 2020. He ends G
with a prayer to remember those for whom he lit a candle that
H H
evening.
I I
65. I have taken into account the role played by the 4th
J defendant, his appearance for 15 minutes at the Water Fountain J
Plaza press conference and the fact he left immediately after
K K
it.
L L
66. I intend to take starting point of 10 months’
M imprisonment to reflect the fact he was there for the press M
conference only. He said nothing but was there to lend support
N to Hong Kong Alliance. I will increase that starting point by N
3 months to take into account the aggravating factor of being on
O O
court bail at the time. Therefore, I take a starting point of 13
months for Charge 1.
P P
Q The 7th Defendant Q
R R
67. I sentenced the 7th defendant to 8 months’
imprisonment, suspended for 12 months in DCCC 536/2020. He had
S S
pleaded guilty to one count of knowingly taking part in an
T unauthorised assembly. I found a suspended sentence appropriate T
for his background, age, long and dedicated public service, as
U well as his very minor role in that offence. U
CRT23/13.12.2021/CP 15 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
68. I heard full mitigation on that occasion, and again,
have had many letters written by people from different walks of
B B
life, as well as many respectable members of Hong Kong society,
C such as friends, colleagues and those who have benefitted from C
his dedication to public service. From his biography, I know he
D has been a teacher, District Board member and then a member of D
the Legislative Council. His campaigning for the underprivileged
E E
and minority groups are well-known.
F F
69. Mr Lau has highlighted actions taken by the 7th
G defendant that shows his huge respect for the rule of law, as G
well as his resolute opposition to violence. This last quality
H was illustrated by news footage from 1 July 2019 where the 7th H
defendant puts himself between rioters and the glass doors of
I I
the Legislative Council building to stop them forcibly entering
the building. He tries to hold back the crowds on his own and is
J J
physically bundled aside by black clad rioters. Annex 3 of his
K mitigation bundle are screenshots from that news footage. K
L L
70. From the news footage of this case, it is clear that
the 7th defendant played a minor role in inciting others. He was
M M
last to join the line-up and appeared to have been pushed into
N it by a volunteer helper of the Hong Kong Alliance. He said N
nothing to the press himself. When the members of Hong Kong
O Alliance and others walked into Victoria Park slowly, he can be O
seen at the back of the main group, and he remained at the back
P P
of this group throughout the programme and evening.
Q Q
71. I was told in mitigation that he went to Victoria Park
R in his personal capacity, but he is a member of the Standing R
Committee of Hong Kong Alliance. He was aware of their actions
S and plans I am sure. He participated knowing that he was on S
court bail at the time. However, I agree he largely remained
T T
silent and played a passive, almost reluctant role.
U U
CRT23/13.12.2021/CP 16 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
72. Although he was there at Victoria Park despite the
Police ban, his Facebook posts suggested to people to download a
B B
digital candle and later meet in his Kwai Chung office. He did
C not encourage anyone to join him in Victoria Park because of C
health risks.
D D
73. I have also taken into account the 7th defendant’s
E E
personal letter in this case. Initially, he may well have
F
thought that he would still go to Victoria Park with a group of F
friends and not defy the police ban. But clearly, by early
G afternoon, it was clear to anyone in or near Victoria Park that G
what was to transpire was an unauthorised assembly. What
H transpired at 6.30 pm was an incitement to participate in an H
unauthorised assembly.
I I
J 74. I have noted the 7th defendant’s motto in life and in J
his work, as well as his utmost respect for the rule of law
K during his career and from his actions. However, like the 3rd K
defendant, what does differentiate the 7th defendant in this
L L
case from the unauthorised assembly in DCCC 536/2020, when I
imposed a suspended sentence, is that he committed these
M M
offences whilst on court bail for similar offences.Despite his
N exceptional mitigation, it is inappropriate to consider a N
suspended sentence again.
O O
75. I intend to take a starting point of 9 months’
P P
imprisonment to reflect his passive, almost reluctant role, and
increase it by 3 months to take into account the fact that he
Q Q
was on court bail at the time. Therefore, I take a starting
R point of 12 months’ imprisonment for Charge 1. R
S S
76. I intend to take a starting point of 4 months’
imprisonment for Charge 3, and I increase this by 2 months to
T T
reflect the fact he was on court bail. Therefore, I take a
U starting point of 6 months’ imprisonment for Charge 3. U
CRT23/13.12.2021/CP 17 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
The 10th Defendant
B B
77. I was given a biography and informed that the 10th
C defendant was 36 years old, single and had a clear record. He C
has served as a District Councillor since 2012 and chairman of
D D
his District Council since this year. He is serving on many
committees that cover many areas from housing to traffic to
E E
youth affairs. I was told that he had nothing further to add in
F
mitigation relating to his background, or the commission of F
these offences.
G G
78. I intend to take a starting point of 12 months’
H H
imprisonment for Charge 1 and a starting point of 6 months’
imprisonment for Charge 3.
I I
J The 13th Defendant J
K K
79. As I have said above, the 13th defendant represented
herself in mitigation. She gave no personal particulars for
L L
consideration. She read out a lengthy statement.
M M
80. The 13th defendant played a prominent role as the Vice
N N
Chair of Hong Kong Alliance. I rejected her evidence that there
was no incitement on her part, nor a candlelight vigil led by
O O
Hong Kong Alliance on 4 June 2020, but only individuals who
P entered Victoria Park and lit a candle for their own different P
personal reasons. Therefore, there was no unauthorised assembly,
Q as defined by the law. Q
R R
81. Despite her clear record, like the other defendants, I
find a deterrent approach appropriate and intend to take a
S S
starting point of 12 months’ imprisonment for Charge 1 and 6
T months’ imprisonment for Charge 3. T
U U
The 17th Defendant
CRT23/13.12.2021/CP 18 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
82. The 17th defendant is now 59 years old, married and a
father of one. He too has spent over 25 years of his career in
B B
public service, either as a District or a Legislative
C Councillor. He has devoted himself to many causes and projects C
to better the lives of Hong Kong people.
D D
83. In 2016, he was elected Chairman of the Democratic
E E
Party. In mitigation, Mr Chan has given many examples of his
F
achievements in public service. I have had several letters of F
mitigation from fellow Legislative Councillors. He is described
G as having a strong sense of social justice and pushed for more G
proactive government policies for the grassroots and
H underprivileged communities. Despite his achievements, he has H
remained low key and kept a low profile, not needing recognition
I I
for his dedication.
J J
84. In his mitigation letter from Professor Antony Cheung,
K it was suggested that the 17th defendant was caught up in the K
turbulent times and vicious politics of 2019 and 2020. He
L L
suggests the 17th defendant felt pressure to take part in
actions and activities which led to him committing this offence
M M
and other similar offences, yet he was viewed as too
N conservative by other more radical party members. N
O 85. There is one particular letter that is from an O
84-year-old widow who had a very complicated and very sad family
P P
situation. She turned to the 17th defendant for help, even
though she had not lived in his district for some time. Yet, he
Q Q
did not hesitate to help her by personally contacting the Social
R Welfare Department as well as the Housing Authority, to ensure R
that she is now happy and comfortable in her twilight years. She
S asks for leniency for whom she describes as a good and kind man. S
T T
86. Like so many defendants in this case, I do not doubt
U his strong sense of public servitude and commitment, helping U
CRT23/13.12.2021/CP 19 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
those less fortunate or in need, but he knew the risk of
participating in this unauthorised assembly.
B B
C 87. After taking all the mitigation into account, I intend C
to take a starting point of 6 months’ imprisonment for Charge 3.
D D
The 19th Defendant
E E
F 88. As I have said above, the 19th defendant represented F
herself in mitigation. She gave no personal particulars for
G G
consideration. She read out a very short statement. In short,
she said any sentence I imposed on her today will be seen as a
H H
sentence I impose on every Hong Konger in Victoria Park that
I night. I
J 89. I rejected the 19th defendant’s evidence that even if J
there was a candlelight vigil led by Hong Kong Alliance on 4
K K
June 2020 and it constituted an unauthorised assembly, she was
an individual who entered Victoria Park and lit a candle for her
L L
own different personal reasons. Therefore, she did not knowingly
M participate in an unauthorised assembly. M
N N
90. Despite her clear record, like the other defendants, I
find a deterrent approach appropriate and intend to take a
O O
starting point of 6 months’ imprisonment for Charge 3.
P P
Discount after Plea
Q Q
91. I have taken into account the authority of HKSAR v Ngo
R R
Van Nam [2016] 5 HKLRD 1 and will apply a discount of 20% or
S just above, to reflect rounding off sentences to the benefit of S
the 5 defendants who pleaded guilty at a very late stage. These
T 5 defendants indicated their plea long after a trial date was T
set down.
U U
CRT23/13.12.2021/CP 20 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
92. They knew the evidence against them from the very
beginning, after the case was transferred to the District Court.
B B
There was subsequently no change in that evidence that would
C have led them to reconsider their pleas. They, for whatever C
their own reasons, waited until after the pre-trial review and
D just before, or on the first day of the trial to change their D
pleas.
E E
F
Totality Principle F
G 93. Once again, I adopt what I said in my Reasons for G
Sentence dated 15 September 2021 under the heading of “Totality
H H
Principle” from paragraphs 111 to 114. The importance of the
totality principle is to ensure fairness. Courts aim to achieve
I I
a just and balanced sentence that will not punish a defendant
J twice for the same or similar conduct and crush him. J
K K
94. The 1st and 4th defendants are serving sentences for
similar, or the same offences committed on several diverse dates
L L
during the social turmoil in 2019, although the common purpose
M
was clearly not the same as in this case. M
N 95. After considering the facts of those previous similar N
convictions relating to those defendants and the sentences I
O O
have imposed, I find it fair and appropriate to consider
concurrent sentences here.
P P
Q Conclusion Q
R R
96. For the 4th, 13th and 19th defendants found guilty
after trial, I see no reason to apply any discount to the
S S
starting points I have found appropriate. Therefore, I impose
T the following sentences: T
U U
CRT23/13.12.2021/CP 21 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
97. The 4th defendant is sentenced to 13 months’
imprisonment for Charge 1. I order this sentence to run
B B
concurrently to the sentences he is presently serving.
C C
98. The 13th defendant is sentenced to 12 months’
D D
imprisonment for Charge 1. She is sentenced to 6 months’
imprisonment for charge 3. I order these sentences to run
E E
concurrently; a total of 12 months’ imprisonment.
F F
99. The 19th defendant is sentenced to 6 months’
G imprisonment for Charge 3. G
H H
100. For those defendants that pleaded guilty, and after a
I discount of 20% or thereabouts is applied, I impose the I
following sentences:
J J
101. The 1st defendant is sentenced to 14 months’
K K
imprisonment for Charge 1. He is sentenced to 14 months’
imprisonment for Charge 2. Lastly, he is sentenced to 7 months’
L L
imprisonment for Charge 3. All to be served concurrently; a
M total of 14 months’ imprisonment. I order this sentence to run M
concurrently to the sentences he is presently serving.
N N
102. The 3rd defendant is sentenced to 12 months’
O O
imprisonment for Charge 1 and 7 months’ imprisonment for Charge
P 3, to be served concurrently; a total of 12 months’ P
imprisonment.
Q Q
103. The 7th defendant is sentenced to 9 months’
R R
imprisonment for Charge 1 and 4 months and 2 weeks’ imprisonment
for Charge 3, to be served concurrently; a total of 9 months’
S S
imprisonment.
T T
104. The 10th defendant is sentenced to 9 months’
U U
imprisonment for Charge 1 and 4 months and 2 weeks’ imprisonment
CRT23/13.12.2021/CP 22 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
for Charge 3, to be served concurrently; a total of 9 months’
imprisonment.
B B
C 105. The 17th defendant is sentenced to 4 months and 2 C
weeks’ imprisonment for Charge 3.
D D
E E
F F
(A J Woodcock)
G G
District Judge
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
CRT23/13.12.2021/CP 23 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
DCCC 857-875,
877-884, 886-889,
B 891 & 893/2020 B
(Consolidated)
[2021] HKDC 1572
C C
IN THE DISTRICT COURT OF THE
D
HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NOS 857-875, 877-884,
886-889, 891 & 893 OF 2020
E E
----------------------
F HKSAR F
G v G
Lee Cheuk-yan (D1)
H Tsoi Yiu-cheong Richard (D3) H
Lai Chee-ying (D4)
Leung Yiu-chung (D7)
I Leung Kam-wai (D10) I
Chow Hang-tung (D13)
J Wu Chi-wai (D17) J
Ho Kwai-lam (D19)
K ---------------------- K
Before: HH Judge A. J. Woodcock
L L
Date: 13 December 2021 at 2.39 pm
Present: Ms Laura Ng, SADPP (Ag) and Mr Edward Lau, SPP (Ag) of
M Department of Justice, for HKSAR M
The 1st, 13th and 19th defendants appeared in person
Ms Kristine Chan, of Ho Tse Wai & Partners, for 3rd and
N 10th defendants N
Mr Robert Pang, SC, leading Mr Jeffrey Tam, Mr Ernie
Tung and Mr Joshua Ngai, instructed by Robertsons, for
O O
the 4th defendant
Mr Lucas Lau, instructed by Lau & Chan, for the 7th
P defendant P
Mr Lee Hung-mo, instructed by Ho Tse Wai & Partners,
for the 17th defendant
Q Offences: (1) Incitement to knowingly take part in an Q
unauthorized assembly(煽惑他人明知而參與未經批准集結)
R (against D1-D13) R
(2) Holding an unauthorized assembly(舉行一個未經批准集結)
(against D1)
S (3) Knowingly taking part in an unauthorized assembly S
(明知而參與未經批准集結)(against D1-D3, D5-D20)
T T
U U
CRT23/13.12.2021/CP 1 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
---------------------
B Reasons for Sentence B
---------------------
C C
D 1. There were 37 cases arising from the same incident of D
which 4 were dealt with earlier and the remaining 33 were
E consolidated. In this consolidated case, there were 20 E
defendants.
F F
G 2. 12 of the 20 defendants pleaded guilty to their G
respective charges before me and were sentenced on 15 September
H 2021. They were the 2nd, 5th, 6th, 8th, 9th, 11th, 12th, 14th, H
15th, 16th, 18th and 20th defendants. The remaining 8 pleaded
I I
not guilty and a trial was set down for 10 days from 1 November
2021.
J J
K 3. Those remaining 8 defendants appeared before me at a K
pre-trial review on 15 October 2021. Between that date and the
L first day of trial, 5 of the remaining defendants indicated a L
change of plea. They pleaded guilty to their respective charges
M M
on the first day of trial. They were the 1st, 3rd, 7th, 10th and
17th defendants. I will sentence them today.
N N
O 4. 3 defendants maintained their pleas of not guilty and O
were convicted after trial of their respective charges on
P P
9 December 2021. I have heard mitigation earlier today on behalf
of, or from those 3 defendants; the 4th, 13th and 19th
Q Q
defendants.
R R
5. The 4 defendants dealt with and sentenced earlier by
S His Honour Judge Stanley Chan, pleaded guilty to a charge S
arising from the same incident on 4 June 2020 in Victoria Park.
T T
In a consolidated case DCCC 876, 885, 890 and 892/2020, Wong
Chi-fung, Lester Shum, Tiffany Yuen Ka-wai and Rosalynne
U U
Jannelle Leung admitted they knowingly took part in that same
CRT23/13.12.2021/CP 2 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
unauthorised assembly. They were sentenced on 6 May 2021 to
sentences ranging from between 4 to 10 months’ imprisonment.
B B
C Charge 1 C
D D
6. The 1st, 3rd, 7th and 10th defendants pleaded guilty
to Charge 1, incitement to knowingly take part in an
E E
unauthorised assembly, contrary to Common Law and
F section 17A(3)(a) of the Public Order Ordinance, Cap 245 and F
punishable under section 101I of the Criminal Procedure
G Ordinance, Cap 221. G
H H
7. The particulars are that on 4 June 2020 at the Water
I Fountain Plaza, Victoria Park, Causeway Bay, in Hong Kong, they, I
together with other defendants unlawfully incited other persons
J unknown to, without lawful authority or reasonable excuse, J
knowingly take part in a public meeting which took place in
K K
contravention of section 7 of the Public Order Ordinance which
was an unauthorised assembly by virtue of section 17A(2)(a) of
L L
the same Ordinance.
M M
8. The 4th and 13th defendants were convicted after trial
N of Charge 1. N
O O
Charge 2
P P
9. The 1st defendant pleaded guilty to Charge 2, holding
Q an unauthorised assembly, contrary to section 17A(3)(b)(i) of Q
the Public Order Ordinance.
R R
S 10. The particulars are that on the same day, 4 June 2020 S
at Victoria Park, the 1st defendant held a public meeting which
T took place in contravention of section 7 of the Public Order T
Ordinance, which was an unauthorised assembly by virtue of
U U
section 17A(2)(a) of the Public Order Ordinance.
CRT23/13.12.2021/CP 3 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
Charge 3
B B
11. The 1st, 3rd, 7th, 10th and 17th defendants pleaded
C guilty to Charge 3, knowingly taking part in an unauthorised C
assembly, contrary to section 17A(3)(a) of the Public Order
D D
Ordinance.
E E
12. The particulars are that on the same day, 4 June 2020
F at Victoria Park, they together with the defendants named and F
other persons unknown, without lawful authority or reasonable
G excuse, knowingly took part in a public meeting which took place G
in contravention of section 7 of the Public Order Ordinance,
H H
which was an unauthorised assembly by virtue of section
17A(2)(a) of the same Ordinance.
I I
J 13. The 13th and 19th defendants were convicted after J
trial of Charge 3.
K K
The Facts
L L
M 14. When I sentenced 12 of these 20 defendants on 15 M
September 2021, I set out in full the facts agreed by the
N N
defendants and pertinent to sentence. For the sake of brevity,
there is no need to repeat them here in full.
O O
P 15. In convicting the 4th, 13th and 19th defendants after P
trial, on 9 December 2021, in my verdict, I set out the evidence
Q against each defendant that I found proved beyond reasonable Q
doubt that they were guilty as charged. There is no need for me
R R
to repeat it here. I also set out why I rejected the evidence of
the 13th and 19th defendants.
S S
T 16. Suffice to say, the Hong Kong Alliance in Support of T
Patriotic Democratic Movements of China (“Hong Kong Alliance”)
U U
submitted a notification to the Police applying to hold a public
CRT23/13.12.2021/CP 4 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
meeting in Victoria Park between 9 am and 10 pm on 4 June 2020.
The purpose of the meeting was to mourn the 31st anniversary of
B B
the June 4 incident, with an estimated number of participants
C between 50,000 and 100,000. C
D D
17. In light of the pandemic, the Department of Health
were consulted by the Police and advised against holding any
E E
mass gatherings at that time, in view of the coronavirus
F
pandemic. The Department of Health took into account the number F
of COVID-19 cases by the end of May 2020, the upsurge between
G March and early April 2020 as well as several local clusters G
mid-May 2020 with no apparent primary source identifiable. The
H risk of community outbreak existed at that time. All the H
sporting facilities, including the football pitches of Victoria
I I
Park were closed, and had been since March 2020 because of the
pandemic.
J J
K 18. After a liaison meeting between the Police and K
representatives of Hong Kong Alliance, the Commissioner of
L L
Police issued a notice as required, prohibiting the holding of
the proposed public meeting in the interests of public order,
M M
public safety and the protection of the rights and freedoms of
N others. The Letter of Objection was issued on 1 June 2020. N
O 19. Despite the Letter of Objection, these defendants O
defied the police ban and the law. They either incited others to
P P
take part in an unauthorised assembly, and/or knowingly
participated in one that night. The 1st defendant admits he held
Q Q
it.
R R
20. The video footage of the press conference, inciting
S S
others and the actual footage of the unauthorised assembly has
been played in court numerous times in relation to this
T T
consolidated case. Those videos and screen captures identifying
U the defendants and their locations, as well as the transcripts U
CRT23/13.12.2021/CP 5 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
of the speeches and slogans chanted are set out in the Amended
Summary of Facts for these 5 defendants that pleaded.
B B
C 21. In the afternoon of 4 June 2020, there were crowds C
already around Causeway Bay entrance of Victoria Park
D D
obstructing traffic, and some roads had to be closed to traffic
because of traffic chaos and safety concerns.
E E
F 22. By 8 pm, there were an estimated 20,000 people on the F
invaded football pitches of Victoria Park. The pitches were a
G sea of candlelight. The crowds disbursed by about 11 pm. There G
was some graffiti on walls and on the ground relating to the
H H
June 4th Incident.
I I
Mitigation
J J
23. I have heard mitigation in full from all except the
K K
10th defendant, who had nothing to say, but did submit a
biography. This morning, the 13th defendant acted in person in
L L
mitigation and gave no personal particulars or background but
M made a lengthy statement. Similarly, the 19th defendant gave no M
personal particulars or background in mitigation but made a
N short statement in person. N
O O
24. I have either received written mitigation,
P biographies, statements and supporting authorities in advance or P
received letters of mitigation. The 1st defendant also
Q represented himself in mitigation. I do not intend to repeat all Q
the mitigation provided but all that can be said on behalf of
R R
the represented defendants has been conveyed and considered.
S S
25. For the 1st, 3rd, 7th, 10th and 17th defendants, their
T best mitigation is their pleas of guilty. They did not indicate T
their pleas in a timely manner. They all indicated their pleas
U U
CRT23/13.12.2021/CP 6 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
between the date of the pre-trial review and the first day of
trial.
B B
C 26. It was submitted that by then, the turbulent and C
tumultuous social unrest of 2019 had receded. The obstruction
D D
and inconvenience to the public around Victoria Park was limited
to the streets in the Causeway Bay area only and natural with
E E
any assembly. There was no violence or imminent risk of violence
F
at any time. The unauthorised meeting lasted only a few hours F
and was relatively short.
G G
27. I was urged to, and will consider personal mitigation,
H H
clear records, motive, backgrounds and previous significant
public service.
I I
J Principles of Sentencing J
K K
28. I will adopt paragraphs 40 to 52 in my Reasons for
Sentence dated 15 September 2021 relating to other co-defendants
L L
in this case. I will consider the culpability of the offenders
M individually. The context in which a crime is committed is of M
relevance to assessing its gravity and that culpability. It can
N be relevant to whether a punitive and deterrent sentence is N
appropriate.
O O
P 29. Since preserving public order and public safety is P
important, I have taken into account the prevailing
Q circumstances at the time, some defendants incited others to Q
take part in an unauthorised assembly, and all the defendants
R R
knowingly took part in it, bar the 4th defendant.
S S
30. I have set out in the Reasons for Sentence of other
T co-defendants, why I found a deterrent sentence appropriate. The T
social unrest and violence we saw in 2019 had significantly
U receded by June 2020, but not disappeared entirely. What we did U
CRT23/13.12.2021/CP 7 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
see from the beginning of 2020 was a different threat to public
order, public safety and the protection of the rights and
B B
freedoms of others in the form of the pandemic. This is not an
C epidemic, confined to the Mainland and Hong Kong, but an C
indiscriminate pandemic that by June 2020 had spread across the
D world and is a threat that is still affecting us today, 18 D
months later.
E E
F
31. Whether or not it contributed to the social unrest of F
2019 receding somewhat, the pandemic itself presents a different
G threat and risk. It was this threat and risk that was behind the G
decision of the Commissioner of Police. Since June 2020, we have
H had a 3rd and 4th wave of COVID-19 infections in Hong Kong and H
there may be more to come.
I I
J 32. All sentencing principles are applied to determine J
what is an appropriate sentence to take into account the facts
K of the charges, and in this case, also the prevailing public K
health crisis in Hong Kong at that time.
L L
M
33. The obstruction to traffic and public transport as M
well as some road closures that day is a relevant consideration,
N but in these facts, the risk to public safety, because of this N
pandemic, serves to prove this unauthorised assembly was
O serious. These are factors I have taken into account and will O
reflect in sentence.
P P
Q Reasons for Sentence Q
R R
34. Similarly, for the sake of brevity, I adopt paragraphs
53 to 63 in my Reasons for Sentence dated 15 September 2021,
S S
relating to the other co-defendants in this case. I reiterate
T
here that the Basic Law and the Bill of Rights does guarantee T
the freedom of assembly, procession and demonstration for Hong
U U
CRT23/13.12.2021/CP 8 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
Kong residents. However, these rights are not absolute and are
subject to restrictions ruled constitutional.
B B
C 35. Here, restrictions can be applied in the interests of C
public safety, public order and the protection of others’ rights
D D
and freedoms. A consideration of public safety and the need to
protect the rights of others must include a public health
E E
crisis.
F F
36. When considering an appropriate sentence, I do not
G take into consideration the common purpose of the assembly, nor G
the politics, beliefs, stance and opinions of any of the
H H
defendants. These sentences are not a reflection of, or related
in any way to the politics, beliefs, stance and opinions of any
I I
defendant.
J J
37. I am well aware that the Hong Kong Alliance organised
K K
an annual event in Victoria Park to mark June 4th, but under the
exceptional circumstances, the organisers had other alternative
L L
and creative options to consider, such as an interactive online
M
vigil which would have negated the risk of COVID-19. Not a vigil M
in groups on the streets all over Hong Kong and in Victoria
N Park, in addition to an advertised online vigil, as announced by N
Hong Kong Alliance.
O O
38. The social distancing measures adopted to combat this
P P
pandemic, were not designed to surreptitiously prevent people
Q gathering for a common purpose or as a tool of suppression, as Q
wildly suggested, but to specifically stop people gathering in
R groups to prevent the transmission of COVID-19. R
S S
39. The sole reason for social distancing measures is to
T
protect the public and whole community. Restrictions applied in T
the interests of public safety, public order and the protection
U U
CRT23/13.12.2021/CP 9 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
of others’ rights and freedoms. So to defy and incite others to
defy those restrictions under such circumstances is serious.
B B
C 40. Therefore, I consider a deterrent and punitive C
sentence appropriate. The defendants exhibited a blatant
D D
disregard of a serious risk to the entire community. The
defendants ignored and belittled a genuine public health crisis.
E E
They showed no concern for the safety and health of fellow Hong
F
Kongers. They wrongly and arrogantly believed their common F
purpose and right to commemorate in Victoria Park was more
G important than protecting the community or the public’s right to G
protection from a serious health risk, an invisible risk.
H H
41. Some, or most of those charged with incitement are
I I
well-known public or political figures and their frontline roles
J in this unauthorised assembly is an aggravating factor. They J
have a public profile and what they said and did was widely
K broadcast by media outlets. Moreover, they came together as a K
group for the press to reinforce each other and their message in
L L
order to be more visible to draw as many people as possible to
Victoria Park.
M M
N 42. They were not to know whether the crowds they N
encouraged to participate in an unauthorised assembly would be
O peaceful and non-violent or would diligently adhere to social O
distancing measures. On the day, the video footage clearly shows
P P
the crowds did not adhere to such necessary measures. The fact
that there did not appear to be an outbreak of either violence
Q Q
or COVID cases as a result of this assembly does not detract
R from their culpability. It was fortuitous. R
S S
43. Accordingly, it is in this context, and because of the
prevailing circumstances at the time, I find an immediate
T T
custodial sentence appropriate.
U U
CRT23/13.12.2021/CP 10 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
44. The defendants who incited others to congregate in
large numbers and join them in an organised, unauthorised
B B
assembly on closed off football pitches created a public health
C and safety risk. They committed these offences despite the C
reasons given for the decision to prohibit the proposed meeting,
D being undeniable and credible. D
E E
45. I have taken into account mitigation put forward,
F
submissions made, the facts of the offences and the prevailing F
situation at the time, behind the decision of the Commissioner
G of Police. I have also considered the fact that at the material G
time, all the defendants before me today had clear records,
H except for the 3rd defendant. However, his one previous similar H
offence dates back to 1993.
I I
J 46. The other relevant consideration I cannot ignore is J
that the 1st, 3rd, 4th and 7th defendants were on court bail for
K similar offences when they committed these offences. I sentence K
the defendants as follows:
L L
M
The 1st Defendant M
N 47. I have a biography and personal details of the 1st N
defendant. In fact, I have considered in the last 3 recent cases
O O
of unauthorised assembly charges involving this defendant, many
mitigating letters written on behalf of the defendant as well as
P P
his own. There is no dispute he has dedicated a very long time
Q to public service, in particular the welfare of workers and Q
labour rights. In previous mitigation, his selfless dedication
R has already been highlighted. Pertinent to this case, between R
2011 and 2014, as well as 2019 and 2021, is the fact he was the
S S
chairman of the Hong Kong Alliance.
T T
48. The 1st defendant elected to represent himself in
U mitigation after his plea to Charges 1, 2 and 3. He read out a U
CRT23/13.12.2021/CP 11 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
statement explaining his experiences in Beijing in June 1989
when he was tasked with bringing donations to support protestors
B B
in Tiananmen Square. His involvement and experience led to a
C lifelong need and intention to dedicate himself to the C
commemoration of the June 4th Incident.
D D
49. The depth of his emotion and dedication is palpable.
E E
He writes of his steadfast belief in freedom, rule of law, human
F
rights and democracy. As I have said above, I do not take those F
beliefs and the common purpose here into account; that means the
G deterrent element is not because of his politics, beliefs, or G
grievances. The defendant, I am sure, when he committed these
H offences, did so with his eyes wide open. He knew that there H
would be consequences for his actions, as I am sure did all
I I
other defendants.
J J
50. I intend to take a starting point of 15 months’
K imprisonment, to reflect his prominent role as a leader who K
drove the unauthorised assembly. I will increase it by 3 months
L L
to take into account the aggravating factor of being on court
bail at the time for 3 other public order-related offences from
M M
2019. Therefore, I take a starting point of 18 months’
N imprisonment for Charges 1 and 2. N
O 51. I intend to take a starting point of 6 months’ O
imprisonment for Charge 3. I also increase this by 3 months to
P P
reflect the fact he was on court bail at the time. Therefore, I
take a starting point of 9 months’ imprisonment for Charge 3.
Q Q
R The 3rd Defendant R
S S
52. I sentenced the 3rd defendant to 14 months’
T
imprisonment, suspended for 24 months in DCCC 534/2020. He had T
pleaded guilty to 2 counts of public order offences. I found a
U U
CRT23/13.12.2021/CP 12 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
suspended sentence appropriate for his background, long public
service and minor role in that offence.
B B
C 53. I heard full mitigation on that occasion and had many C
letters from many people from different walks of life such as
D D
friends, colleagues and those who had benefitted from his
dedication to public service. From his biography, I know he has
E E
been a District Councillor, a politician and former vice
F
chairman of the Democratic Party. F
G 54. I have heard full mitigation put forward again on his G
behalf. He is a family man with a long record of serving the
H H
public and the community. One particular achievement was to
successfully advocate for legislation against anti-racial
I I
discrimination. It has been stressed that this unauthorised
J assembly in Victoria Park caused little disruption and J
inconvenience to the community. It was peaceful and without
K violence. It was of a different nature to the unauthorised K
assembly he helped organise in 2019. This was an annual
L L
commemoration he felt had to be remembered despite the pandemic.
M M
55. I have considered the letters submitted on his behalf
N in mitigation. There is a letter from an Associate Professor at N
the Chinese University of Hong Kong, the Reverend Dr Tobias
O Brandner, who speaks of his deep commitment and passion for the O
poor, underprivileged and prison inmates. He is described as
P P
humble, with great concern for those at the margins of society.
Q Q
56. There is another letter from Professor Antony Cheung
R who describes the 3rd defendant as moderate in disposition and R
willing to reach out to all sides within the political spectrum.
S S
He has firm political convictions, yet advocates a peaceful and
rational approach, which caused conflict between himself and his
T T
own party.
U U
CRT23/13.12.2021/CP 13 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
57. In March 2020, he resigned from his position and
duties in the Democratic Party after a joint petition from his
B B
own colleagues. This arose from his criticism of local
C restaurants for discriminating against Mainland Chinese C
customers during the pandemic.
D D
58. He currently works as a community organiser for the
E E
Society of Community Organisations (“SoCo”) and I have a letter
F
from a director describing his dedication and work for the F
underprivileged and grass roots community.
G G
59. What does differentiate the 3rd defendant on this 2nd
H H
occasion before me is that he committed these offences whilst on
bail for similar offences. I am sure he took the risk knowing
I I
that his actions could have serious consequences. Despite his
J mitigation, it is inappropriate to consider a suspended sentence J
again.
K K
60. I intend to take a starting point of 12 months’
L L
imprisonment and I increase it by 3 months to take into account
M
the aggravating factor of being on court bail at the time. M
Therefore, I take a starting point of 15 months for Charge 1.
N N
61. I intend to take starting point of 6 months’
O O
imprisonment for Charge 3 and I increase this by 3 months to
reflect the fact he was on court bail at the time. Therefore, I
P P
take a starting point of 9 months for Charge 3.
Q Q
The 4th Defendant
R R
62. Mr Pang has said all he can say in written and oral
S S
mitigation in relation to the 4th defendant’s background,
T career, health issues as well as his culpability. He has T
referred me to authorities he relies upon and submits that a
U non-custodial sentence would be appropriate and if not, and I U
CRT23/13.12.2021/CP 14 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
find a term of imprisonment is appropriate, then to suspend it
would be the correct approach on these facts.
B B
C 63. I have previously heard full mitigation in DCCC C
536/2020, DCCC 537/2020 and DCCC 534/2020. I sentenced the 4th
D D
defendant to public order related offences committed on those 3
separate occasions in 2019.
E E
F 64. On this occasion, the 4th defendant submitted a letter F
of mitigation which explained his actions and reasons for going
G to Victoria Park just before 6.30 pm on 4 June 2020. He ends G
with a prayer to remember those for whom he lit a candle that
H H
evening.
I I
65. I have taken into account the role played by the 4th
J defendant, his appearance for 15 minutes at the Water Fountain J
Plaza press conference and the fact he left immediately after
K K
it.
L L
66. I intend to take starting point of 10 months’
M imprisonment to reflect the fact he was there for the press M
conference only. He said nothing but was there to lend support
N to Hong Kong Alliance. I will increase that starting point by N
3 months to take into account the aggravating factor of being on
O O
court bail at the time. Therefore, I take a starting point of 13
months for Charge 1.
P P
Q The 7th Defendant Q
R R
67. I sentenced the 7th defendant to 8 months’
imprisonment, suspended for 12 months in DCCC 536/2020. He had
S S
pleaded guilty to one count of knowingly taking part in an
T unauthorised assembly. I found a suspended sentence appropriate T
for his background, age, long and dedicated public service, as
U well as his very minor role in that offence. U
CRT23/13.12.2021/CP 15 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
68. I heard full mitigation on that occasion, and again,
have had many letters written by people from different walks of
B B
life, as well as many respectable members of Hong Kong society,
C such as friends, colleagues and those who have benefitted from C
his dedication to public service. From his biography, I know he
D has been a teacher, District Board member and then a member of D
the Legislative Council. His campaigning for the underprivileged
E E
and minority groups are well-known.
F F
69. Mr Lau has highlighted actions taken by the 7th
G defendant that shows his huge respect for the rule of law, as G
well as his resolute opposition to violence. This last quality
H was illustrated by news footage from 1 July 2019 where the 7th H
defendant puts himself between rioters and the glass doors of
I I
the Legislative Council building to stop them forcibly entering
the building. He tries to hold back the crowds on his own and is
J J
physically bundled aside by black clad rioters. Annex 3 of his
K mitigation bundle are screenshots from that news footage. K
L L
70. From the news footage of this case, it is clear that
the 7th defendant played a minor role in inciting others. He was
M M
last to join the line-up and appeared to have been pushed into
N it by a volunteer helper of the Hong Kong Alliance. He said N
nothing to the press himself. When the members of Hong Kong
O Alliance and others walked into Victoria Park slowly, he can be O
seen at the back of the main group, and he remained at the back
P P
of this group throughout the programme and evening.
Q Q
71. I was told in mitigation that he went to Victoria Park
R in his personal capacity, but he is a member of the Standing R
Committee of Hong Kong Alliance. He was aware of their actions
S and plans I am sure. He participated knowing that he was on S
court bail at the time. However, I agree he largely remained
T T
silent and played a passive, almost reluctant role.
U U
CRT23/13.12.2021/CP 16 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
72. Although he was there at Victoria Park despite the
Police ban, his Facebook posts suggested to people to download a
B B
digital candle and later meet in his Kwai Chung office. He did
C not encourage anyone to join him in Victoria Park because of C
health risks.
D D
73. I have also taken into account the 7th defendant’s
E E
personal letter in this case. Initially, he may well have
F
thought that he would still go to Victoria Park with a group of F
friends and not defy the police ban. But clearly, by early
G afternoon, it was clear to anyone in or near Victoria Park that G
what was to transpire was an unauthorised assembly. What
H transpired at 6.30 pm was an incitement to participate in an H
unauthorised assembly.
I I
J 74. I have noted the 7th defendant’s motto in life and in J
his work, as well as his utmost respect for the rule of law
K during his career and from his actions. However, like the 3rd K
defendant, what does differentiate the 7th defendant in this
L L
case from the unauthorised assembly in DCCC 536/2020, when I
imposed a suspended sentence, is that he committed these
M M
offences whilst on court bail for similar offences.Despite his
N exceptional mitigation, it is inappropriate to consider a N
suspended sentence again.
O O
75. I intend to take a starting point of 9 months’
P P
imprisonment to reflect his passive, almost reluctant role, and
increase it by 3 months to take into account the fact that he
Q Q
was on court bail at the time. Therefore, I take a starting
R point of 12 months’ imprisonment for Charge 1. R
S S
76. I intend to take a starting point of 4 months’
imprisonment for Charge 3, and I increase this by 2 months to
T T
reflect the fact he was on court bail. Therefore, I take a
U starting point of 6 months’ imprisonment for Charge 3. U
CRT23/13.12.2021/CP 17 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
The 10th Defendant
B B
77. I was given a biography and informed that the 10th
C defendant was 36 years old, single and had a clear record. He C
has served as a District Councillor since 2012 and chairman of
D D
his District Council since this year. He is serving on many
committees that cover many areas from housing to traffic to
E E
youth affairs. I was told that he had nothing further to add in
F
mitigation relating to his background, or the commission of F
these offences.
G G
78. I intend to take a starting point of 12 months’
H H
imprisonment for Charge 1 and a starting point of 6 months’
imprisonment for Charge 3.
I I
J The 13th Defendant J
K K
79. As I have said above, the 13th defendant represented
herself in mitigation. She gave no personal particulars for
L L
consideration. She read out a lengthy statement.
M M
80. The 13th defendant played a prominent role as the Vice
N N
Chair of Hong Kong Alliance. I rejected her evidence that there
was no incitement on her part, nor a candlelight vigil led by
O O
Hong Kong Alliance on 4 June 2020, but only individuals who
P entered Victoria Park and lit a candle for their own different P
personal reasons. Therefore, there was no unauthorised assembly,
Q as defined by the law. Q
R R
81. Despite her clear record, like the other defendants, I
find a deterrent approach appropriate and intend to take a
S S
starting point of 12 months’ imprisonment for Charge 1 and 6
T months’ imprisonment for Charge 3. T
U U
The 17th Defendant
CRT23/13.12.2021/CP 18 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
82. The 17th defendant is now 59 years old, married and a
father of one. He too has spent over 25 years of his career in
B B
public service, either as a District or a Legislative
C Councillor. He has devoted himself to many causes and projects C
to better the lives of Hong Kong people.
D D
83. In 2016, he was elected Chairman of the Democratic
E E
Party. In mitigation, Mr Chan has given many examples of his
F
achievements in public service. I have had several letters of F
mitigation from fellow Legislative Councillors. He is described
G as having a strong sense of social justice and pushed for more G
proactive government policies for the grassroots and
H underprivileged communities. Despite his achievements, he has H
remained low key and kept a low profile, not needing recognition
I I
for his dedication.
J J
84. In his mitigation letter from Professor Antony Cheung,
K it was suggested that the 17th defendant was caught up in the K
turbulent times and vicious politics of 2019 and 2020. He
L L
suggests the 17th defendant felt pressure to take part in
actions and activities which led to him committing this offence
M M
and other similar offences, yet he was viewed as too
N conservative by other more radical party members. N
O 85. There is one particular letter that is from an O
84-year-old widow who had a very complicated and very sad family
P P
situation. She turned to the 17th defendant for help, even
though she had not lived in his district for some time. Yet, he
Q Q
did not hesitate to help her by personally contacting the Social
R Welfare Department as well as the Housing Authority, to ensure R
that she is now happy and comfortable in her twilight years. She
S asks for leniency for whom she describes as a good and kind man. S
T T
86. Like so many defendants in this case, I do not doubt
U his strong sense of public servitude and commitment, helping U
CRT23/13.12.2021/CP 19 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
those less fortunate or in need, but he knew the risk of
participating in this unauthorised assembly.
B B
C 87. After taking all the mitigation into account, I intend C
to take a starting point of 6 months’ imprisonment for Charge 3.
D D
The 19th Defendant
E E
F 88. As I have said above, the 19th defendant represented F
herself in mitigation. She gave no personal particulars for
G G
consideration. She read out a very short statement. In short,
she said any sentence I imposed on her today will be seen as a
H H
sentence I impose on every Hong Konger in Victoria Park that
I night. I
J 89. I rejected the 19th defendant’s evidence that even if J
there was a candlelight vigil led by Hong Kong Alliance on 4
K K
June 2020 and it constituted an unauthorised assembly, she was
an individual who entered Victoria Park and lit a candle for her
L L
own different personal reasons. Therefore, she did not knowingly
M participate in an unauthorised assembly. M
N N
90. Despite her clear record, like the other defendants, I
find a deterrent approach appropriate and intend to take a
O O
starting point of 6 months’ imprisonment for Charge 3.
P P
Discount after Plea
Q Q
91. I have taken into account the authority of HKSAR v Ngo
R R
Van Nam [2016] 5 HKLRD 1 and will apply a discount of 20% or
S just above, to reflect rounding off sentences to the benefit of S
the 5 defendants who pleaded guilty at a very late stage. These
T 5 defendants indicated their plea long after a trial date was T
set down.
U U
CRT23/13.12.2021/CP 20 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
92. They knew the evidence against them from the very
beginning, after the case was transferred to the District Court.
B B
There was subsequently no change in that evidence that would
C have led them to reconsider their pleas. They, for whatever C
their own reasons, waited until after the pre-trial review and
D just before, or on the first day of the trial to change their D
pleas.
E E
F
Totality Principle F
G 93. Once again, I adopt what I said in my Reasons for G
Sentence dated 15 September 2021 under the heading of “Totality
H H
Principle” from paragraphs 111 to 114. The importance of the
totality principle is to ensure fairness. Courts aim to achieve
I I
a just and balanced sentence that will not punish a defendant
J twice for the same or similar conduct and crush him. J
K K
94. The 1st and 4th defendants are serving sentences for
similar, or the same offences committed on several diverse dates
L L
during the social turmoil in 2019, although the common purpose
M
was clearly not the same as in this case. M
N 95. After considering the facts of those previous similar N
convictions relating to those defendants and the sentences I
O O
have imposed, I find it fair and appropriate to consider
concurrent sentences here.
P P
Q Conclusion Q
R R
96. For the 4th, 13th and 19th defendants found guilty
after trial, I see no reason to apply any discount to the
S S
starting points I have found appropriate. Therefore, I impose
T the following sentences: T
U U
CRT23/13.12.2021/CP 21 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
97. The 4th defendant is sentenced to 13 months’
imprisonment for Charge 1. I order this sentence to run
B B
concurrently to the sentences he is presently serving.
C C
98. The 13th defendant is sentenced to 12 months’
D D
imprisonment for Charge 1. She is sentenced to 6 months’
imprisonment for charge 3. I order these sentences to run
E E
concurrently; a total of 12 months’ imprisonment.
F F
99. The 19th defendant is sentenced to 6 months’
G imprisonment for Charge 3. G
H H
100. For those defendants that pleaded guilty, and after a
I discount of 20% or thereabouts is applied, I impose the I
following sentences:
J J
101. The 1st defendant is sentenced to 14 months’
K K
imprisonment for Charge 1. He is sentenced to 14 months’
imprisonment for Charge 2. Lastly, he is sentenced to 7 months’
L L
imprisonment for Charge 3. All to be served concurrently; a
M total of 14 months’ imprisonment. I order this sentence to run M
concurrently to the sentences he is presently serving.
N N
102. The 3rd defendant is sentenced to 12 months’
O O
imprisonment for Charge 1 and 7 months’ imprisonment for Charge
P 3, to be served concurrently; a total of 12 months’ P
imprisonment.
Q Q
103. The 7th defendant is sentenced to 9 months’
R R
imprisonment for Charge 1 and 4 months and 2 weeks’ imprisonment
for Charge 3, to be served concurrently; a total of 9 months’
S S
imprisonment.
T T
104. The 10th defendant is sentenced to 9 months’
U U
imprisonment for Charge 1 and 4 months and 2 weeks’ imprisonment
CRT23/13.12.2021/CP 22 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V
A A
for Charge 3, to be served concurrently; a total of 9 months’
imprisonment.
B B
C 105. The 17th defendant is sentenced to 4 months and 2 C
weeks’ imprisonment for Charge 3.
D D
E E
F F
(A J Woodcock)
G G
District Judge
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
CRT23/13.12.2021/CP 23 DCCC 857-875, 877-884, 886-889,
V 891 & 893/2020(1)/Sentence V