DCCC480/2017

DCCC480/2017

A A B B DCCC 480/2017 C [2019] HKDC 450 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO 480 OF 2017 F F G ------------------------------- G HKSAR H H v I TAI YIU TING (D1) I CHAN KIN MAN (D2) J J CHU YIU MING (D3) K CHAN TANYA (D4) K SHIU KA CHUN (D5) L L CHEUNG SAU YIN (D6) M CHUNG YIU WA (D7) M WONG HO MING, RAPHAEL (D8) N N LEE WING TAT (D9) O ------------------------------- O P P Before: His Honour Judge Johnny Chan Q Date: 9th April 2019 Q Present: Mr David C Y Leung, SC, DPP, Mr Lui Tsz Ming Ira, SADPP R R and Mr Lau Tak Wai Derek, Senior Public Prosecutor, for S HKSAR / Director of Public Prosecutions S T T U U V V  -2- A A B B Dr Gerard McCoy, SC, Mr Steven M W Kwan, Mr Albert N B C Wong, instructed by Tang, Wong & Chow, for the 1st to 3rd C defendants D D Mr Ching Y Wong, SC, leading Ms Fiona H Y Nam and E Ms Adgie N K Chan, instructed by CLY Lawyers, for the E 4th defendant F F Mr Robert Pang, SC leading Mr Timothy T Y Lam, instructed G by Ho, Tse, Wai & Partners, for the 5th defendant G Mr Hectar H Pun, SC, leading Mr Anson Y Y Wong, H H instructed by Kenneth Lam, assigned by the Director of Legal I Aid, for the 6th defendant I Mr Dykes Philip John, SC, leading Mr Tam Chun Kit, J J instructed by Kenneth Lam, assigned by the Director of Legal K Aid, for the 7th defendant K Mr Lawrence Lok, SC, leading Mr Chan Wai Yin Joe, L L instructed by Ho, Tse, Wai & Partners, assigned by the M Director of Legal Aid, for the 8th defendant M Mr Edwin Choy, SC, Ms Senia Ng and Ms Chow Hang Tung, N N instructed by Ho, Tse, Wai & Partners, for the 9th defendant O Offence: [1] Conspiracy to commit public nuisance (串謀犯公眾妨擾 O P 罪) – D1-D3 P [2] Incitement to commit public nuisance (煽惑他人犯公眾 Q Q 妨擾罪) – D1-D7 R [3] Incitement to incite public nuisance (煽惑他人煽惑公眾 R S 妨擾罪) – D1-D7 S [4] Incitement to commit public nuisance (煽惑他人犯公眾 T T 妨擾罪) – D8 U U V V  -3- A A B B [5] Incitement to incite public nuisance (煽惑他人煽惑公眾 C 妨擾) – D8 C [6] Incitement to commit public nuisance (煽惑他人犯公眾 D D 妨擾罪) – D9 E E F --------------------------------------- F REASONS FOR VERDICT G G --------------------------------------- H H I I J J K K L L M M N N O O P P Q Q R R S S T T U U V V  -i- A A B B CONTENTS C INTRODUCTION Pg. 1-9 (Para. 1-36) C D THE CHARGES Pg. 9-12 (Para. 37) D E WITNESSES Pg. 12-14 (Para. 38-48) E GOOD CHARACTER DIRECTIONS Pg. 14 (Para. 49-50) F F ADMITTED FACTS & SECTION 65B STATEMENTS G G Pg. 14-15 (Para. 51-58) H H LEGAL PRINCIPLES I I CONSPIRACY Pg. 16 (Para. 59-61) J J PUBLIC NUISANCE Pg. 16-18 (Para. 62-67) K K THE REASONABLENESS TEST Pg. 18-20 (Para. 68-74) L INCITEMENT TO COMMIT PUBLIC NUISANCE AND INCITEMENT L M TO INCITE PUBLIC NUISANCE Pg. 20-22 (Para. 75-83) M N ASSESSMENT OF EVIDENCE N O SECTION 65B STATEMENTS Pg. 22 (Para. 84) O LIVE WITNESSES P P PW1 Pg. 23- 24 (Para. 85-87) Q Q PW2 Pg. 24-29 (Para. 88-104) R R PW3 Pg. 29-31 (Para. 105-114) S S PW4 Pg. 31-32 (Para. 115-118) T T PW5 Pg. 32-35 (Para. 119-129) U U V V  - ii - A A B B PW6 Pg. 35-39 (Para. 130-144) C PW7 Pg. 39-41 (Para. 145-149) C D D2 Pg. 41-64 (Para. 150-204) D E DW1 Pg. 64-65 (Para. 205-209) E DW2 Pg. 65-66 (Para. 210-215) F F DW3 Pg. 66-68 (Para. 216-223) G G DW4 Pg. 68-70 (Para. 224-229) H H DW5 Pg. 70-71 (Para. 230-234) I I DW6 Pg. 71-75 (Para. 235-252) J J DW7 Pg. 76 (Para. 253-255) K K CONSIDERATION L CIVIL DISOBEDIENCE Pg. 76-83 (Para. 256-278) L M APPROPRIATENESS & CONSTITUTIONALITY OF CHARGES M N Pg. 83-95 (Para. 279-308) N O PROPORTIONALITY Pg. 95-98 (Para. 309-317) O THE EFFECT OF CORDONING OFF TIM MEI AVENUE BY THE P P POLICE ON 26TH SEPTEMBER 2014 Q Q Pg. 98-109 (Para. 318-332) R R THE APPLICATION OF THE CO-CONSPIRATORS RULE S S Pg. 109-118 (Para. 333-346) T T U U V V  - iii - A A B B INDIVIDUAL CHARGES C CHARGE 1: CONSPIRACY TO COMMIT PUBLIC NUISANCE C D (AGAINST D1 TO D3) D E Pg. 118-140 (Para. 347-405) E CONCLUSION ON CHARGE 1 F F Pg. 140 (Para. 406) G G CHARGE 2: “INCITEMENT TO COMMIT PUBLIC NUISANCE” AND H H CHARGE 3: “INCITEMENT TO INCITE PUBLIC NUISANCE” I I (AGAINST D1 TO D7) J J Pg. 140-237 (Para. 407-661) K K CONCLUSIONS REACHED ON CHARGE 2 AND CHARGE 3 L Pg. 237-238 (Para. 662-667) L M CHARGE 4: “INCITEMENT TO COMMIT PUBLIC NUISANCE” AND M N CHARGE 5: “INCITEMENT TO INCITE PUBLIC NUISANCE” N O (AGAINST D1 TO D8) O Pg. 238-251 (Para. 668-703) P P CONCLUSIONS ON CHARGE 4 AND CHARGE 5 Q Q Pg. 251 (Para. 704-705) R R CHARGE 6: INCITEMENT TO COMMIT PUBLIC NUISANCE S S Pg. 251-266 (Para. 706-754) T T U U V V  - iv - A A B B CONCLUSION ON CHARGE 6 C Pg. 267 (Para. 755-756) C D THE VERDICT D E CHARGE 1 Pg. 267 (Para. 757) E CHARGE 2 Pg. 267 (Para. 758-759) F F CHARGE 3 Pg. 267 (Para. 760-761) G G CHARGE 4 Pg. 267 (Para. 762) H H CHARGE 5 Pg. 267 (Para. 763) I I CHARGE 6 Pg. 268 (Para. 764) J J K K L L M M N N O O P P Q Q R R S S T T U U V V  -1- A A B B INTRODUCTION C C 1. Charge 1 concerns a campaign known as “Occupy Central D D with Love and Peace” or “Let Love and Peace Occupy Central” launched E by D1 to D3 in or about March 2013 (the “OCLP”). D1 to D3, in a press E conference on 27th March 2013, together announced the commencement of F F the OCLP. Through the OCLP, D1 to D3 strived for their advocated form G of universal suffrage in the election of the Chief Executive of the Hong G Kong Special Administrative Region. H H I 2. The OCLP, as announced in the said press conference, was a I four stages campaign: signing of the covenant; the deliberation day; citizen J J authorization process, and finally, the act of civil disobedience. K K 3. It is the prosecution case that D1 to D3 had agreed to obstruct L L unlawfully public places and roads in or in the neighbourhood of Central. M The proposed occupation of the public thoroughfares would be an M unreasonable one and would amount to a common injury to the public or a N N significant section of the public, hence what was agreed was a conspiracy O to commit public nuisance. O P P 4. After the press conference in March 2013, following events Q relevant to Charge 1 took place:- Q R R th (i) On 30 April 2013, D1 to D3 together appeared on a S radio programme in which they talked about the OCLP; S T T U U V V  -2- A A B B (ii) On 1st July 2013, at a public gathering at Chater Garden, C D1 to D3 gave speeches about the campaign of OCLP C and the civil disobedience to occupy Central; D D E (iii) In a street forum on a day between June and October E 2013, D3 gave a speech about the OCLP. F F G 5. On 31st August 2014, the Standing Committee of the National G People’s Congress (“NPCSC”) promulgated its decision on issues relating H H to the election of the Chief Executive of the HKSAR by universal suffrage I in 2017 (“the Decision on 31st August”). I J J 6. Following the Decision on 31st August, certain protestors held K a number of protests against it. K L L 7. By a Notification of Intention to Hold a Public Meeting M (“Notification”) dated 18th September 2014,1 D3 notified the Police that a M public meeting would be held in two parks and a section of Chater Road in N N Central on 1st to 3rd October 2014. An insurance policy2 was taken out and O a meeting was held with the police on 25th September 2014.3 In respect of O Exhibit D3-1, the police issued a Letter of Prohibition. 4 As the events P P st rd developed, the proposed public meeting on 1 to 3 October did not take Q place. Q R R S S 1 Exhibit D3-1 T 2 T Exhibit D2-13 3 Exhibit D3-2 4 Exhibit P153 U U V V  -3- A A B B 8. On 22nd September 2014, the Hong Kong Federation of C Students (“HKFS”) and Scholarism launched class boycotts against the C Decision on 31 August. D D E 9. It was against the above background that two notified public E meetings were held at Tim Mei Avenue, Admiralty on 26th September F F 2014. In respect of these two public meetings, two Notifications were G given to the police on 23rd September 2014, one by Mr. Lai Man Lok of G Scholarism5 and the other one by Mr. Wong Jun Ian of Civic Party.6 The H H police issued two Letters of No Objection (“LONO”) for the two meetings7 I on 24th and 25th respectively. I J J 10. On 26th September 2014, Mr. Wong Jun Ian submitted a K Notificatio8 to hold a public meeting at Tim Mei Avenue on 27th September K 2014, which was a continuation of the public meeting on 26th September, L L i.e. the subject matter of Exhibits P150 and P151. The police issued a M LONO9 on the same day. M N N 11. At about 5:30 p.m. on 26th September 2014, PW2 Senior O Superintendent Wong Kei Wai ordered that the west side carriageway of O Tim Mei Avenue be cordoned off for safety reasons. There is evidence P P that the east side carriageway of Tim Mei Avenue was also cordoned off Q later in the evening on the same day, i.e. at the junction of Tim Mei Avenue Q and Harcourt Road. R R S S 5 Exhibit P148 6 Exhibit P150 T 7 T Exhibit P149 and P151 8 Exhibit P1 9 Exhibit P2 U U V V  -4- A A B B 12. At about 10 p.m. on 26th September 2014, certain students at C the public meeting at Tim Mei Avenue charged into the East Wing C Forecourt of Central Government Offices (“CGO”) to “reclaim” the said D D forecourt, also known as “Civic Square” and some student leaders were E arrested. Some protestors who had entered Civic Square occupied the E flagstaff platform therein and refused to leave. F F G 13. After midnight on 27th September 2014, the assembly at Tim G Mei Avenue continued. A large number of people gather at Tim Mei H H Avenue. There were speakers on the stage with a green backdrop asking I people present to stay and call upon more people to come to Tim Mei I Avenue to support those students who had been arrested and those inside J J Civic Square who were about to be arrested. K K 14. The unchallenged evidence of Senior Superintendent Lam L L Hing Chuen (PW3) shows that at around 00:15 a.m., the southbound and M northbound lanes of the carriageway of Tim Mei Avenue were fully M occupied by people standing, so was the western pavement of Tim Mei N N Avenue adjacent to the Civic Square. The unchallenged evidence of O Superintendent Yau Nai Keung (PW6) shows that at about 8:30 a.m., mills O barriers were seen on both directions of the carriageway of Tim Mei P P Avenue. For the crowd in Tim Mei Avenue, there were more than 100 Q people during the course of the day, the number of people swelled during Q the day. However, when the night fell, there were less people. Traffic on R R th both sides of Tim Mei Avenue was suspended on 27 September 2014. S S T T U U V V  -5- A A B B 15. On 27th September 2014, Mr. Wong Jun Ian further submitted C a Notification 10 to hold a public meeting at Tim Mei Avenue on 28 th C September 2014, the proposed public meeting was a continuation of the D D public meeting on 26th September 2014. Superintendent Wong Kei Wai E (PW2) issued a Letter of Prohibition 11 on 28th September 2014. E F F 16. In the early hours of 28th September 2014, D1 to D3 appeared G on the stage at Tim Mei Avenue and announced the launch of “Occupy G Central” and the human and material resources of the OCLP would “come H H in completely”. I I 17. It is the prosecution case that at the public meeting at Tim Mei J J Avenue on 27th and 28th September 2014, D1 to D7, by the words they used K when they spoke on the main stage:- K L L (i) D1 to D7 had unlawfully incited the persons present at M Tim Mei Avenue to cause a public nuisance to the M public by unlawfully obstructing public places and N N roads at and in the neighbourhood of Tim Mei Avenue O (Charge 2); O P P (ii) D1 to D7 had unlawfully incited the persons present at Q Tim Mei Avenue to incite other persons to cause a Q public nuisance to the public by unlawfully obstructing R R public places and roads at and in the neighbourhood of S Tim Mei Avenue (Charge 3). S T T 10 Exhibit P3 11 Exhibit P152 U U V V  -6- A A B B C 18. Speeches made by D1 to D7 at the public meeting at Tim Mei C Avenue were recorded on videos and produced as evidence. D D E 19. It is the Prosecution case that the alleged conspiracy to E commit public nuisance began in or about March 2013, continued in the F F year of 2014 and subsisted until 2 nd December 2014 when D1 to D3 G publicly announced their common intention to surrender to the police. G H 20. D8 was at Fenwick Pier Street at the material times of Charge H 4 and Charge 5. I I J 21. It is the Prosecution case against D8 that by the words D8 said J to the crowd present at Fenwick Pier Street on 28th September 2014, D8 K K incited those present at Fenwick Pier Street to cause a public nuisance by L urging those who were already on the carriageway of Fenwick Pier Street L to stay on the road and urging other people standing on the nearby M M pavements to go and sit on the carriageway of Fenwick Pier Street. N N O 22. It is the Prosecution case against D8 that by the words D8 said O th to the he crowd present at Fenwick Pier Street on 28 September 2014, he P P also incited the people present at Fenwick Pier Street to call up more people Q to come and obstruct the relevant section of Fenwick Pier Street. Q R R 23. The Prosecution case against D8 is that he directed the people S present to move westward closer to the section of Fenwick Pier Street near S Lung Wui Road and sit closer to the police cordon. The people present did T T as D8 directed. U U V V  -7- A A B B C 24. What D8 said to the people present at Fenwick Pier Street, C which forms the subject matters of complaint of Charge 4 and Charge 5, D D was recorded on videos by the police and produced as evidence. E E 25. The Prosecution called Mr. Tong Wai Tung (PW5), Assistant F F Divisional Officer of Fire Services Department to show how the G obstruction of Fenwick Pier Street on 28th September 2014 had blocked a G vehicle of the Fire Services Department at Kong Wan Fire Station from H H using Fenwick Pier Street to attend to a reported case of “Multiple I Casualties Incident” at Admiralty Centre. I J 26. D9 was at Harcourt Road in the afternoon on 28th September J 2014. K K L 27. Charge 6 against D9 concerns what happened in the afternoon L at Harcourt Road on 28th September 2014. M M N N 28. It is the Prosecution case that at about 3:45 p.m. on O 28 September 2014, D9 urged the crowd of people gathering at the junction O of Lung Wo Road and Fenwick Pier Street to go to Harcourt Road and P P conduct civil disobedience there. At around 4:03 p.m. on the same day, Q D9 was at the junction of Tim Mei Avenue and Harcourt Road. By then, Q a large crowd of protesters had walked onto the carriageway of Harcourt R R Road and the traffic thereon was obstructed as a result. D9 urged the crowd S of people gathering on the southern pavement of Harcourt Road (outside S Admiralty Centre) and those on the northern pavement of Harcourt Road T T (near Tim Mei Avenue) to walk across the carriageway, join together on U U V V  -8- A A B B the road and occupy all 6 carriageways of Harcourt Road, and to hold an C assembly to support the students. C D D 29. What D9 said in the afternoon of 28th September 2014 was E recorded on videos and produced as evidence. E F F 30. The appropriateness and the constitutionality of the offences G of “Conspiracy to commit public nuisance” in the context of peaceful G demonstration, “Incitement to commit public nuisance” and “Incitement to H H incite public nuisance” are challenged by the defence. I I 31. It is the case of the respective defendants what they said and J J did at the material times were lawful as they were exercising their right of K free speech, right of assembly and right of demonstration, protected by the K law and hence the essential ingredient of “not warranted by the law” could L L not be made out. M M 32. It is the case of the respective defendants that given what N N transpired at the material times, the relevant defendants could not have had O the intention to cause public nuisance/to incite others present at Tim Mei O Avenue to cause a public nuisance/to incite others to incite others present P P at Tim Mei Avenue to cause a public nuisance, hence, the relevant Q defendants did not have the mens rea required. Q R R 33. It is the case of the defence that no obstruction was caused by S the words of the relevant defendants, and in any event, the Prosecution fails S to prove that there was common injury to the public or a significant section T T of the public. U U V V  -9- A A B B C 34. It is the defence case that, given that Tim Mei Road had been C th cordoned off by the police since 26 September 2014, it was impossible D D for the relevant defendants to commit Charge 2 and Charge 3. E E 35. It is the defence case that the use of tear gas by the police F F against the crowd gathered at Harcourt Road on 28th September 2014 was G an improper use of force and it was the improper use of tear gas which G caused the extensive and prolonged occupation of the roads and public H H places in Admiralty and Central afterwards. I I 36. It is the defence case that the OCLP initiated by D1 to D3 and J J what happened in late September 2014 and thereafter until 2nd December K 2014 was a movement of Civil Disobedience. K L L THE CHARGES M M 37. The following charges are preferred against D1 to D9:- N N O Charge 1: Conspiracy to commit public nuisance (against O D1 to D3), contrary to Common Law and section P P 159A of the Crimes Ordinance, Cap 200 and Q punishable under section 159C of the Criminal Q Procedure Ordinance, Cap 221. R R S The particulars of offence allege that D1 to D3, S between about March 2013 and 2nd December T T 2014, in Hong Kong, conspired together and U U V V  - 10 - A A B B with other persons to cause a nuisance to the C public through the unlawful obstruction of public C places and roads in or in the neighbourhood of D D Central. E E Charge 2: Incitement to commit public nuisance (against F F D1 to D7), contrary to Common Law and G punishable under section 101I of the Criminal G Procedure Ordinance, Cap 221. H H I The particulars of offence allege that D1 to D7, I between the 27th and 28th of September 2014, in J J Hong Kong, unlawfully incited persons present K at Tim Mei Avenue, Admiralty to cause a public K nuisance to the public by unlawfully obstructing L L public places and roads at and in the M neighbourhood of Tim Mei Avenue. M N N Charge 3: Incitement to incite public nuisance (against D1 O to D7), contrary to Common Law and punishable O under section 101I of the Criminal Procedure P P Ordinance, Cap 221. Q Q The particulars of offence allege that D1 to D7 R R th th allege that D1 to D7, between the 27 and 28 of S September, 2014, at Tim Mei Avenue, Admiralty, S in Hong Kong, unlawfully incited persons at Tim T T Mei Avenue, Admiralty, in Hong Kong, U U V V  - 11 - A A B B unlawfully incited persons present at Tim Mei C Avenue, Admiralty to incite other persons to C cause a public nuisance to the public by D D unlawfully obstructing public places and roads at E and in the neighbourhood of Tim Mei Avenue. E F F Charge 4: Incitement to commit public nuisance (against G D8 only), contrary to Common Law and G punishable under section 101I of the Criminal H H Procedure Ordinance, Cap 221. I I The particulars of offence allege that D8, on 28th J J September, 2014, at Fenwick Pier Street, K Admiralty, in Hong Kong, unlawfully incited K persons present at Fenwick Pier Street, L L Admiralty, to cause a public nuisance to the M public by unlawfully obstructing the carriageway M of Fenwick Pier Street. N N O Charge 5: Incitement to incite public nuisance (against D8 O only), contrary to Common Law and punishable P P under section 101I of the Criminal Procedure Q Ordinance, Cap 221. Q R R th The particulars of offence allege that D8, on 28 S September, 2014, at Fenwick Pier Street, S Admiralty, in Hong Kong, unlawfully incited T T persons present at Fenwick Pier Street, U U V V  - 12 - A A B B Admiralty, to incite other persons to cause a C public nuisance to the public by unlawfully C obstructing the carriageway of Fenwick Pier D D Street. E E Charge 6: Incitement to commit public nuisance (against F F D9 only), contrary to Common Law and G punishable under section 101I of the Criminal G Procedure Ordinance, Cap 221. H H I The particulars of offence allege that D9, on 28th I September, 2014, at Harcourt Road near Tim J J Mei Avenue, Admiralty, in Hong Kong, K unlawfully incited persons present at Harcourt K Road and Tim Mei Avenue, Admiralty, to cause L L a public nuisance to the public by unlawfully M obstructing the carriageway of Harcourt Road. M N N WITNESSES O O 38. The Prosecution called 7 witnesses, they are:- P P Q (i) PW1 Senior Superintendent Tse Ming Yeung; Q (ii) PW2 Senior Superintendent Wong Kei Wai; R R (iii) PW3 Senior Superintendent Lam Hung Chuen; S (iv) PW4 PC 9298 Lam Sau Chung; S (v) PW5 Mr. Tong Wai Tung; T T (vi) PW6 Superintendent Yau Nai Keung; and U U V V  - 13 - A A B B (vii) PW7 Sergeant 58012 Kwok Si Wai. C C 39. After the Prosecution closed its case, I found that each of the D D defendants had a case to answer on the charge(s) against him/her. E E 40. D1 elected not to give evidence or call any witness. F F G 41. D2 elected to give evidence. 6 witnesses testified in his G defence, they are:- H H I (i) DW1 Mr. Wu Chun Him; I (ii) DW2 Mr. Leong Sze Chung James; J J (iii) DW3 Ms. Tsang Wai Kwan; K (iv) DW4 Mr. Lo Wai Ming; K (v) DW5 Cardinal Joseph Zen Ze Kiun; and L L (vi) DW6 Professor Lee Lap Fung Francis. M M 42. D3 elected not to give evidence or call any witness. N N O 43. D4 elected not to give evidence or call any witness. O P P 44. D5 elected not to give evidence or call any witness. Q Q 45. D6 elected not to give evidence but called one witness, R R namely:- S S (i) DW7 Mr. Au Kwok Kuen. T T U U V V  - 14 - A A B B 46. D7 elected not to give evidence or call any witness. C C 47. D8 elected not to give evidence or call any witness. D D E 48. D9 elected not to give evidence or call any witness. E F F GOOD CHARACTER DIRECTIONS G G 49. D1 to D7 and D9 are all persons with clear criminal record, as H H persons of good character, their propensity to commit the offence(s) under I complaint is low. I J J 50. D2, with his good character, is more likely to tell the truth in K his evidence. K L L ADMITTED FACTS & SECTION 65B STATEMENTS M M 51. At trial, admitted facts and statements were prepared and N N tendered as evidence under section 65C and section 65B of the Criminal O Procedure Ordinance, Cap 221 respectively. O P P 52. Facts contained in the documents titled Admitted Facts I and Q Formal Admission, dated 19th November 2018 and 5th December 2018 Q respectively, were agreed between the Prosecution and D1 to D3. R R S 53. Facts contained in the document titled Admitted Facts II, S dated 19th November 2018, were agreed between the Prosecution and D1 T T to D7. U U V V  - 15 - A A B B C 54. Facts contained in the document titled Admitted Facts III, C th dated 19 November 2018, were agreed between the Prosecution and D8. D D Facts contained in the document titled Admitted Facts IV, dated 19 th E November 2018, were agreed between the Prosecution and D9. E F F 55. A statement of Mr. Leong Sze Chung James (DW2) was G admitted pursuant to section 65B of Cap 221. G H H 56. A statement of Chief Superintendent Rupert T.A. Dover12 was I produced pursuant to section 65B of Cap 221. I J J 57. A statement of Madam Liang Shuk Ling Tracy 13 and a K statement of Mr. Lui Lok14 each with a video footage were produced by K D2 and D5 respectively pursuant to section 65B of Cap 221. L L M 58. Three computer certificates respectively prepared by New M World First Bus Services Limited, City Bus Limited and Kowloon Bus Co N N (1933) Limited 15 were produced to show the extent of the effect of the O occupation had on the bus services during the occupation period. O P P Q Q R R S S 12 Exhibit P156 T 13 T Exhibit D2-7 14 Exhibit D5-1 15 Exhibits P145 to P147 U U V V  - 16 - A A B B LEGAL PRINCIPLES C C Conspiracy D D E 59. Charge 1 faced by D1 to D3 is a statutory conspiracy, not a E common law one. By virtue of section 159A (1)(a) of the Crimes F F Ordinance, Cap 200, a person is guilty of conspiracy to commit an offence G in question if he/she agrees with any other person or persons that a course G of conduct shall be pursued which if the agreement is carried out in H H accordance with their intentions, will necessarily amount to or involve the I commission of the offence in question. I J J 60. The actus reus of a statutory conspiracy requires proof of the K agreement between two or more persons, which, if carried out, would K necessarily amount to or involve the commission of an offence in question. L L M 61. The mens rea required for a statutory conspiracy is that the M defendant had an intention to be a party to the agreement to do the unlawful N N act under complaint. The offence was complete once agreement was O formed. O P P Public Nuisance Q Q 62. A public nuisance is a common law offence. In R v R R Rimmington [2006] 1 AC 459, the House of Lords held that the offence has S the following actus reus:- S T T U U V V  - 17 - A A B B (a) Doing an act not warranted by law, or omitting to C discharge a legal duty, and C D D (b) The effect of such act or omission was to endanger the E life, health, property or comfort of the public, or to E obstruct the public in the exercise of rights common to F F everyone. G G 63. The House of Lords in Rimmington held that the requisite H H mens rea is that the accused knew, or ought to have known (because the I means of knowledge were available to him) the consequence of what he I did or omitted to do. J J K 64. In the present case, it is immediately apparent from the K Prosecution case that this case concerns positive act, i.e. obstruction of L L public places and roads, not omission to discharge a public duty. The effect M under complaint is that the public would be obstructed in the exercise of M rights common to everyone, i.e. the use of public carriageways. N N O 65. The offence requires proof that the suffering of common O injury by members of the public by interference with rights enjoyed by P P them as a class of the public. Q Q 66. It is a finding of fact whether the number of persons affected R R is sufficient to constitute a class of public. S S T T U U V V  - 18 - A A B B 67. The common law offence of public nuisance covers a wide C and diverse range of activities, it was held in Rimmington that obstructing C public highways is also covered. D D E The Reasonableness Test E F F 68. As this case concerns a citizen’s exercising of his/her right of G free speech, right of assembly and right of demonstration, the G “reasonableness test” as expounded by the Court of Final Appeal in Yeung H H May Wan v HKSAR (2005) 8 HKCFAR 137 comes into play. I have to I consider and find whether the Prosecution can prove beyond reasonable I doubt that the demonstrators’ conduct impinged unreasonably on the rights J J of others. K K 69. In Yeung May Wan, the relevant offences were public L L obstruction offences contrary to sections 4(28) and 4A of the Summary M Offences Ordinance, Cap 28, these offences require proof that the M obstruction was “without lawful authority or excuse”. The common law N N offence of public nuisance, the predicate offence for all charges in the O present case, requires proof that the act which forms the actus reus is not O warranted by law. P P Q 70. The Court of Final Appeal held in Yeung May Wan, at Para. Q 42 of the judgment, that a person who creates an obstruction could not be R R said to be acting “without lawful excuse” if his conduct involves a S reasonable use of the highway or public places. S T T U U V V  - 19 - A A B B 71. As for the application of the reasonableness test in any case C of obstruction, the Court of Final Appeal held that it is essentially a C question of fact and degree depending on all the circumstances, including D D the extent and duration of the obstruction, the time and place where the E obstruction occurs, as well as the purpose for which the obstruction is done. E F F 72. The Court of Final Appeal held in Yeung May Wan that, where G the obstruction in question results from a peaceful demonstration, in G applying the reasonableness test, the court should recognize the protection H H given by the Basic Law to the right to peaceful demonstration and give it I substantial weight in the balancing exercise. In assessing the I reasonableness of the obstruction, while the interests of those exercising J J their right of free passage along the highway obviously remain important, K and while exercise of the right to demonstrate must not cause an K obstruction exceeding the bounds of what is reasonable in the L L circumstances, such bounds must not be so narrowly defined as to devalue, M or unduly impair the ability to exercise, the constitutional right (Para. 44 M of the judgment). N N O 73. In the present case, the locations of the obstructed places O concern public places and roads in or in the neighbourhood of Central P P (Charge 1), public places and roads in or in the neighbourhood of Tim Mei Q Avenue (Charge 2 and Charge 3), the carriageway of Fenwick Pier Street Q (Charge 4 and Charge 5) and the carriageway of Harcourt Road (Charge R R 6). It is important to note that, in Yeung May Wan [2004] 3 HKLRD 797, S the Court of Appeal held at 848 that:- S T T “As one so often sees in newscasts from around the world, pavements or plazas outside government buildings or embassies U U V V  - 20 - A A B are regularly used for protests, and the reason for the choice site B is clear, namely, that they are the natural or most obvious sites C for demonstrations, precisely because demonstrating “down the C road” is less likely to bring home the intended message either to government or embassy officials or to passers-by.” D D 74. Hence, the court must recognise the right to express views E E extends to the manner in which the protestors wish to express their views F F as well as the location(s) where they wish to do so. G G Incitement to commit public nuisance and Incitement to incite public H H nuisance I I 75. In HKSAR v Jariabka Juraj [2017] 2 HKLRD 266 (CA), the J J Court of Appeal cited the judgment of Tuckey LJ in DPP v Armstrong K [2000] Crim LR 379 as to the elements of the offence of incitement:- K L L “63. Of the offence of incitement, Tuckey LJ said: The actus reus of the offence is the [incitement] by the defendant M of another to do something which is a criminal offence. He must M do so with the intention that if the other person does as he asks he will commit a criminal offence. That is the mens rea. On this N analysis the intention of the person incited is entirely irrelevant. N O 64. He noted that the editors of Archbold asserted “to solicit O another to commit a crime is indictable at common law, even though the solicitation or incitement is of no effect”. P P 65. Tuckey LJ went on to say: Q The nature of the offence of incitement is accurately defined in Q the draft Criminal Code produced by the Law Commission in their paper No 177 at Clause 47 which says: R A person is guilty of incitement to commit an offence if: R (a) He incites another to do or cause to be done an act or acts which, if done, will involve the commission of the offence S S or offences by the other; and (b) He intends or believes that the other, if he acts as incited, T shall or will do so with the fault required for the offence or T offences.” U U V V  - 21 - A A B B C 76. In Young v Cassells (1914) 33 NZLR 852 (CA), it was held C that “incite” means “to rouse; to stimulate; to urge or spur on; to stir up; to D D animate” in the ordinary meaning of the word. It was held in Invicta E Plastics Ltd v Clare [1976] RTR (DC) that an incitement may involve the E “suggestion”, “proposal” or “inducement” to commit an offence. F F G 77. An incitement can be directed to the public at large, for G example, by advertisement and newspaper article, as in the cases of Invicta H H Plastics Ltd v Clare (supra) and R v Most (1881) 7 QBD 244 (CCCR) I respectively. It is necessary to prove that incitement was communicated to I and received by the incitee(s). J J K 78. It is a question of fact in each case whether the acts or words K under complaint amount to an incitement to commit an offence. L L M 79. The Prosecution is correct to point out that though the M offences of “Incitement to commit a public nuisance” and “Incitement to N N incite public nuisance” both concern causing a public nuisance by the O unlawful obstruction of public places and roads, “Incitement to commit a O public nuisance” and “Incitement to incite public nuisance” are separate P P and difference offences with different ingredients. Q Q 80. The actus reus required for the offence of “Incitement to R R commit a public nuisance” is that the defendant incited a person (i.e. the S incitee) to do an act which would involve the commission of the offence of S “public nuisance”. T T U U V V  - 22 - A A B B 81. The mens rea required for the offence of “Incitement to C commit a public nuisance” is that the defendant intended or believed that C the incitee would do the act with the mens rea required for the offence of D D “public nuisance”. E E 82. The actus reus required for the offence of “Incitement to incite F F public nuisance” is that the defendant incited the incitee to do an act which G would involve the commission of the offence of incitement, i.e. inciting a G public nuisance. H H I 83. The mens rea required for the offence of “Incitement to incite I public nuisance” is that the defendant intended or believed that the incitee J J would do the act with the mens rea required for the offence of incitement, K i.e. an intention to incite. K L L ASSESSMENT OF EVIDENCE M M Section 65B Statements N N O 84. No issue is taken as to the reliability and credibility of the O statements admitted under section 65B, Cap 221. I have considered the P P contents of the statements and attach full weight to the contents contained Q therein. Q R R S S T T U U V V  - 23 - A A B B Live Witnesses C C PW1 Senior Superintendent Tse Ming Yeung D D E 85. I accept the evidence of PW1 that at the material times, he was E responsible for the processing of Notifications of Intention to Hold a Public F F meetings in Wanchai Division, which included the Wanchai Section of G Harcourt Road, which stretched from Arsenal Street to Fenwick Pier Street. G All Notifications of Intention to Hold Public Meeting pursuant to the H H Public Order Ordinance, Cap 245 within the purview of Wanchai Division I would be delivered to PW1 for consideration and handling. After a I Notification for the Intention to Hold a Public Meeting had been processed, J J a Letter of No Objection (“LONO”), with or without condition would be K issued by the Police if the Police did not object to the holding of the K proposed public meeting. All notifications and LONOs issued were L L properly recorded. M M 86. I accept as true and reliable the evidence given by PW1 as to N N how a Notice of Prohibition for the Holding of a Public Meeting under Cap. O 245 would be issued by the police. Such notice must be given in writing O and it must state the ground(s) of prohibition. The notice should be served P P on the organizer at least 48 hours before the holding of the meeting, Q provided that the Notification of the Intention to Hold a Public Meeting Q was handed in 7 working days prior to the intended public meeting. R R S 87. I accept as true and reliable PW1’s evidence that for the period S between 26th September and 11th December 2014, no notification was T T U U V V  - 24 - A A B B received for public meetings at either Fenwick Pier Street or the Wanchai C section of Harcourt Road was received by the Police. C D D PW2 Senior Superintendent Wong Kei Wai E E 88. I accept the evidence of PW2 that, as the Assistant District F F Commander of Central District of the Police between February 2014 and G March 2016, one of PW2’s duties was to process Notifications of Intention G to Hold Public Meeting in Central District. H H I 89. I accept PW2’s evidence that irrespective of which police I station a Notification of the Intention to Hold a Public Meeting in the J J Central District was given, it would be delivered to PW2 for consideration K and processing. On the subject of the issuing of LONOs or Letters of K Prohibitions for public meetings in the Central District, apart from PW2, L L the Hong Kong Island Headquarters also had the power to handle M notifications concerning the Central District. M N N 90. I accept also PW2’s evidence that after processing, the Police O could issue a LONO, with or without conditions, or a Letter of Prohibition. O For the notifications processed and LONOs issued, including the ones not P P handled by PW2 personally, e.g. the ones handled by the Hong Kong Island Q Headquarters, they were all recorded properly by the Police and the Central Q District would have copies of the same. R R S 91. Given that the notifications processed and LONOs issued S were properly recorded with copies sent to Central District, I am satisfied T T PW2 was in a position to say, and I accept as true and reliable his evidence U U V V  - 25 - A A B B that, between 26th September and 11th December 2014, PW2 had not C received any Notification of the Intention to Hold a Public Meeting on the C carriageways of the Central District section of Harcourt Road, Tim Mei D D Avenue and Lung Wui Road. Though not explicitly asked if PW2 had E checked the records kept, PW2 would not have said he had not received E any such notification if he had not checked the records kept by the Central F F District. Furthermore, in re-examination, PW2 was asked about his 4th G witness statement16, I accept as true and reliable PW2’s evidence that the G main purpose of making that statement was to mention all the Notifications H H of the Intention to Hold a Public Meeting in relation to Harcourt Road, Tim I Mei Avenue and Lung Wui Road that he had handled during the relevant I period. J J K 92. I accept as true and reliable PW2’s evidence that the purpose K of making that statement was to identify all Notifications of the Intention L L to Hold a Public Meeting that he had handled during the relevant period in M relation to Harcourt Road, Tim Mei Avenue and Lung Wui Road. M N N 93. Questions were asked of PW2 about the firing of tear gas on O 28th September 2014 and it was put to PW2 that it was the use of excessive O force by the police in the evening on 28th September 2014 which incited P P people to occupy the public roads in Central or Admiralty. It is clear from Q PW2’s evidence that he was not at the scene at the time and it was not his Q decision to use tear gas on 28th September 2014. In my judgment, any view R R or comment made by PW2 in his evidence on this issue is only an opinion S of PW2. I exclude from my consideration any opinion expressed by PW2 S T T 16 Exhibit D6-3 U U V V  - 26 - A A B B on the issues of the appropriateness of the force used by the police and C causation of the occupation of public roads. C D D 94. Mr. Choy SC for D9 suggested to PW2 that he deliberately E concealed his presence at the scene on 26th September 2014 in his witness E statement in which PW2 only accounted for the lack of LONO for the F F meeting on 28th September 2014. PW2 firmly denied the suggestion. In G my judgment, if the absence of a LONO was the only matter that PW2 G wanted to address in his witness statement, the fact that he did not mention H H in the statement he was present at the scene did not constitute deliberate I concealment. PW2 was a witness in the trial of Joshua Wong, he could not I possibly control what questions prosecuting counsel or defence counsel J J would ask of him and thus he could not conceal his presence at the scene K if it was a relevant issue in that trial. K L L 95. I accept PW2’s evidence that in processing a notification, M PW2 would strike a balance between the organizer’s freedom of expression M and the right of other members of the public that might be affected by the N N holding of the public meeting. O O 96. I accept the evidence of PW2 that he had been asked to go P P through the records to check in respect of the notifications to hold public Q meeting in Tim Mei Avenue. I accept PW2’s evidence as to his processing Q of the 2 notifications to hold public meeting, i.e. Exhibits P148 and P150 R R and his issuing of the two respective LONOs, i.e. Exhibits P1 and P2. S S 97. I accept the evidence of PW2 as to how he handled the T T Notification for Intention to Hold a Public Meeting at Tim Mei Avenue on U U V V  - 27 - A A B B 28th September 2014 submitted by Mr. Wong Jun Ian on 27th September C 2014. C D D 98. The proposed public meeting was obviously a continuation of E the public meeting held on 27th September 2014. PW2’s reasons for issuing E a Letter of Prohibition 17 were valid, as the public meeting on 27th F F September 2014 was an unlawful assembly, it would be wholly G inappropriate to allow it to proceed on 28th September 2014. I accept G PW2’s evidence that he had considered the factors of public safety and H H public order and he came to the conclusion that it was inappropriate for a I public meeting to be held at Tim Mei Avenue on 28th September 2014. I J J 99. PW2 impresses me as an honest and fair witness, he made no K attempt to hide from the court things that he did not have a clear memory, K thus he gave evidence that according to his recollection, he signed the L L Exhibit P152 during daytime on 28th September 2014. PW2 believed that M the same had been delivered to Mr. Wong Jun Ian by his colleagues. M N N 100. PW2 also frankly admitted that he had no independent O recollection of handling the Notification of Intention to Hold a Public O Meeting on 1st to 3rd October 2014 given by D3 on 18th September 201418 P P th and the meeting between the Police and D3 on 25 September 2014 as Q recorded in the Notes of Meeting.19 Q R R 101. I accept as true and reliable the evidence of PW2 as to what S he saw and did while he was at Tim Mei Avenue between around 5:00 p.m. S T 17 T Exhibit P152 18 Exhibit D3-1 19 Exhibit D3-2 U U V V  - 28 - A A B B on 26th September and around 9:00 a.m. to 10:00 a.m. on 27th September C 2014. When PW2 was at the western pavement at Tim Mei Avenue outside C th CGO shortly before 5:00 p.m. on 26 September 2014, there was a stage D D set up outside the Legislative Council and a public meeting was in progress E with many people participating. E F F 102. At 5:30 p.m., as many people were walking onto the G carriageway of Tim Mei Avenue, PW2 decided to cordon off the western G carriageway of Tim Mei Avenue for safety reasons. H H I 103. I accept as true and reliable the evidence of PW2 as to how I the demonstrators forced their way into the Civic Square (the Forecourt of J J the CGO) at around 10:00 p.m. on 26th September 2014, the deployment of K police officers to handle the incident and what happened in the Civil Square K afterwards. Some demonstrators managed to rush into the Civic Square L L and shut the metal gate. Some demonstrators climbed over the fences into M the Civic Square. Around 150 demonstrators gathered around the flag- M post, surrounded by police officers. At around 11:30 p.m. on 26th N N September, a decision was made by the Police to allow demonstrators in O the Civil Square to leave but not many took the opportunity to leave. O P P 104. In cross-examination, questions were asked of PW2 about the Q use of tear gas by the police on 28th September 2014 and it was put to PW2 Q that it was the excessive force by the Police that incited people to occupy R R the public carriageways. It is clear from PW2’s evidence that he was not S involved in the decisions in relation to the firing of tear gas and its S cessation, any comment or opinion PW2 expressed on the issue is not T T something I should take into consideration. U U V V  - 29 - A A B B C PW3 Senior Superintendent Lam Hung Chuen C D D 105. PW3 was the Assistant District Commander of Central E District of the Police between May 2013 and October 2015. His evidence E concerns what happened on 27th September 2014. F F G 106. PW3 arrived at Tim Mei Avenue near Harcourt Road at G around 00:15 a.m. on 27th September 2014. At that time, both the H H southbound and northbound carriageways of Tim Mei Avenue and the I western pavement of Tim Mei Avenue adjacent to the Civic Square were I fully packed by people standing. PW3 went to the CGO via Tin Wa J J Avenue. Inside the Civic Square, PW3 saw over 100 protestors sitting near K the flag-post. As the situation was being handled by PW2, PW3 went to K Tim Mei Avenue with a team of PTU officers. L L M 107. PW3 and his officers encountered some 50 to 60 protestors at M the junction of Tim Mei Avenue and Harcourt Road. The protestors raised N N their arms and blocked PW3 and his officers. After a standstill of 5 to 10 O minutes, PW3 and his officers walked to Tim Wa Avenue and Tamar Park O but they were blocked by 20 to 30 protestors raising both their arms. P P Warnings were given to the protestors but ignored. Q Q 108. PW3 then noticed some 20 to 30 people walked towards the R R glass door of the Legislative Council Building. PW3 instructed his officers S to rush down to form a cordon line in front of the glass door. Then some S 40 to 50 protestors gathered and lingered in front of the cordon line, some T T of the protestors pointed at and accused the Police. The number of U U V V  - 30 - A A B B protestors increased to approximately 100, PW3 called for reinforcement C to enhance the cordon line. PW3 stayed there for around 30 minutes. C Eventually, PW3 left the scene when the protestors began to disperse and D D only 10 to 20 remained. E E 109. PW3 later returned to CITIC Tower near junction of Lung F F Wui Road and Tim Mei Road. At that time, the western pavement of Tim G Mei Avenue was fully packed of people who PW3 believed to protestors. G PW3 noticed that a lot of mills barriers had been placed on the southbound H H and northbound carriageways of Tim Mei Avenue and the road near the I west side and on top of the roundabout. There were mills barriers blocking I the junction of Tim Mei Avenue and Lung Wui Road. J J K 110. PW3 then received instructions to assist colleagues from the K Crime Department of the Headquarters to escort an arrested person away L L from a stage outside the carpark entrance of the Legislative Council M Building. When PW3 and his officers reached the carriageway of Tim Mei M Avenue, they were blocked by some 50 to 60 people believed to be N N protestors. The protestors bumped against the officers forcefully and O prevented PW3 and his officers from reaching the stage. O P P 111. Eventually the Police escorted the arrested person to a police Q vehicle on the carriageway outside CITIC Tower at Lung Wui Road. A Q cordon line was formed in front of the police vehicle but the cordon line R R was charged by some 8 to 10 protestors. PW3 instructed his officers to S stay and guard the cordon line to protect the police vehicle and the arrested S person. T T U U V V  - 31 - A A B B 112. PW3 stayed until 6:30 a.m., when he was relieved of his duties C by other officers. By the time PW3 left, there were around 1,000 persons C remaining at the pavement and carriageway of Tim Mei Avenue. The place D D was less packed than before as it was almost dawn. E E 113. There was no cross examination of PW3 by the Defence. F F G 114. PW3 gave his evidence in a straightforward manner and there G is nothing unreasonable or inherently improbable in his evidence. I find H H PW3 an honest and reliable witness. I I PW4 PC 9298 Law Sau Chung J J K 115. Sometime after 3 p.m. on 28th September 2014, PW4 was at K Fenwick Pier Street near the back of the Academy for Performing Arts to L L assist in traffic control. PW4 marked his position on Exhibit P144 (PW86). M M 116. PW4 gave evidence that initially, the traffic condition there N N was normal on both the inbound and outbound lanes. PW4 carried on his O observation of the traffic there for some 20 minutes, then he noticed that O more than 100 people spilled out onto the carriageway, including the P P flyover, of Fenwick Pier Street from all directions. They all sat on the Q carriageway. PW4 tried to ask them to leave the carriageway and go back Q to the pavement but they did not comply. The number of persons sitting R R on the carriageway increased in time, PW4 advised them to leave the S carriageway but they ignored him. PW4 then reported the situation to the S consul and he was instructed to leave. During PW4’s stay at Fenwick Pier T T Street, he did not have any physical contact with the people there. U U V V  - 32 - A A B B C 117. There was no cross examination by the Defence. C D D 118. There is nothing inherently improbable in PW4’s evidence. I E accept gave a true and accurate account of what he saw at Fenwick Pier E Street in the afternoon of 28th September 2014. F F G PW5 Mr. Tong Wai Tung G H H 119. On 28th September 2014, PW5 was an Assistant Divisional I Officer of the Fire Service Department attached to Kong Wan Fire Station I at No 14 Harbour Road. J J K 120. At 4:17 p.m. on 28th September 2014, the Fire Services K Control Centre received a report of “Multiple Casualties Incident” which L L took place at Admiralty Centre. The report was routed to the nearest Fire M Station, i.e. Kong Wan Fire Station. M N N 121. PW5 and his colleagues boarded a “elevating platform” O vehicle and set off from Kong Wan Fire Station. PW5 originally took the O normal and most direct route, i.e. to go straight from the station along P P Harbour Road then onto Fenwick Pier Street and Harcourt Road. Q However, upon when PW5’s vehicle reached the Academy for Performing Q Arts near Fenwick Pier Street, PW5’s vehicle was blocked by large number R R of people gathering at Lung Wo Road and Fenwick Pier Street. There were S more than 1,000 people on the carriageway and the road was completely S blocked. At the time, both the siren and the alarm lights of his vehicle were T T turned on and PW5 and his colleagues asked the people blocking the U U V V  - 33 - A A B B carriageway to give way but the people on the carriageway ignored the plea C by PW5 and his colleagues and refused to give way. PW5 was not sure C whether Fenwick Pier Street was blocked as a result of instructions given D D by anyone. PW5 did not hear any words or incitement or instructions to E block his vehicle. PW5 said what happened to his vehicle was consistent E with the video footage in Exhibit P84. F F G 122. As the normal and most direct route could not be taken, G PW5’s vehicle made a U-turn at Harbour Road and travelled along Fleming H H Road, Lockhart Road, Fenwick Pier Street, Hennessy Road and I Queensway. The vehicle then turned into eastbound Queensway upon I reaching Lippo Centre. It entered Rodney Street and then Drake Street. J J PW5 and his colleagues arrived at Admiralty Centre at 4:31 p.m. and K attended to 17 injured persons, i.e. 13 police officers and 4 civilians. K L L 123. PW5 agreed that when he set off, he had not been informed M that there was traffic obstruction at Fenwick Pier Street. M N N 124. For the arrival time at Admiralty Centre, PW5 agreed that he O had made no written record of the incident in his notebook. However, PW5 O compiled an Incident Report on 19th October 201420, which contained the P P arrival time at Admiralty Centre. The arrival time was based on the Q information supplied to PW5 by the Fire Services Department. The Q departure time and arrival times of the vehicle used on 28th September 2014 R R were electronically recorded by the Fire Services Department. When PW5 S set off from the station and when he arrived at Admiralty Centre he pressed S T T 20 Exhibit D8-1 U U V V  - 34 - A A B B a button on his vehicle and the times would be recorded. PW5 said there C was nothing abnormal in the recording system on 28th September 2014. C D D 125. There were different performance pledges for a built-up area E and a dispersed and isolated area. Admiralty Centre would fall into the E category of a built-up area. For a built-up area, the performance pledge F F was 6 minutes from the time the report was received. For a dispersed and G isolated area, the performance pledge was 9 to 23 minutes. However, the G performance did not strictly apply to a report of “Multiple Casualties H H Incident”. I I 126. In PW5’s experience, a fire engine from Kong Wan Fire J J Station should be able to reach Admiralty Centre within 6 minutes. K K 127. I find PW5 an honest and reliable witness. What he said L L happened at Fenwick Pier Street is consistent with the video footage in M Exhibit P84. M N N 128. I accept the evidence of PW5 that, in his experience, a fire O engine from Kong Wan Station should be able to reach Admiralty Centre O within 6 minutes via the normal and most direct route, i.e. to go straight P P from the station along Harbour Road then onto Fenwick Pier Street and Q Harcourt Road. The time estimate of 6 minutes is reasonable. I am aware Q of PW5’s evidence as to how he obtained the departure time and arrival R R time from the Fire Services Department. I am sure that PW5, who was S onboard the fire engine throughout the journey to Admiralty Centre, was S in a good position to tell whether the detour he had to take had taken him T T a longer than the normal time to arrive at Admiralty Centre without having U U V V  - 35 - A A B B to resort to any information in relation to the departure and arrival time C provided by the Fire Services Department. I accept PW5’s evidence that C on that day the detour had taken him a longer time at arrive at Admiralty D D Centre. E E 129. I do not find the comparison of the performance pledge of F F 6 minutes and the actual time spent by PW5 and his colleagues helpful in G assessing the effect of the traffic obstruction at Fenwick Pier Street had on G the fire services, as PW5 very fairly pointed out, the said performance H H pledge did not apply to the report of “Multiple Casualties Incident” at I Admiralty Centre. I J J PW6 Superintendent Yau Nai Keung K K 130. PW6 was a member of the Crime, Mass Processing L L Mechanism and Legal Support Working Group in September to December M 2014, responsible for handling the Occupy Central Movement. M N N 131. The evidence of PW6 concerns what happened between 27th O September 2014 up to the firing of tear gas at around 6:00 p.m. on 28th O September 2014 and what happened after the firing of tear gas up to the P P th operation for the opening of the roads carried out by the Police on 11 Q December 2014. Q R R 132. Mr. Leung SC, in Para. 6 his reply submissions, made it clear S that:- S T T “… The Prosecution does not seek to prove the intention of D5 when making the incitements by reference to the events that U U V V  - 36 - A A B happened after 28th September 2014. The evidence of B Superintendent Yau Ngai-keung (PW6) as to the obstruction to C public places and roads in Admiralty after 28th September 2014 C was adduced to show the consequences of the offences which are relevant to the culpability of the accused.” D D 133. The evidence of PW6 as to what happened after 28 th E E September 2014 should thus be read in the light of the above stated position F F taken by the Prosecution. G G 134. I accept the evidence of PW6 as to what he witnessed between H H 27th and 28th September 2014. There is nothing inherently improbable in I the evidence of PW6, which he gave in a straightforward manner. The I evidence of PW6 as to what happened at Harcourt Road before the firing J J of tear gas on 28th September 2014 is also consistent with the video footage K in Exhibit P84 played to him. K L L 135. When PW6 arrived at Admiralty at 8:30 a.m. on 27th M September 2014, he saw over 100 protesters on the pavement and M carriageway between Harcourt Road and Tim Mei Avenue. Further down N N Tim Mei Avenue there were over 1,000 protestors. There were layers of O mills barriers on the pavement and carriageway. PW6 observed that the O number of protestors grew beyond 1,000 during the day but the number P P dropped when the night fell. Traffic was suspended on both sides of Tim Q Mei Road on 27th September 2014. Q R R 136. PW6 witnessed a sweeping action by the uniformed police S officers at CITIC footbridge at around dusk time on the 27 th September S 2014. Police officers equipped with shields pushed forward and forced T T more than 200 to 300 protestors to leave the footbridge. The protestors U U V V  - 37 - A A B B retreated to Rodney Street near Queensway Plaza and United Centre. The C CITIC footbridge was closed by the Police in the afternoon on 28th C September 2014. The closure of the footbridge, however, did not deter D D protesters from joining the protestors at Tim Mei Avenue. Large number E of protestors proceeded to Tim Mei Avenue from the direction of the E Academy of Performing Arts via the northern pavement of Harcourt Road. F F G 137. At around 7 p.m. on 27th September 2014, the protestors at G Tim Mei Avenue near junction of Harcourt Road behaved in a peaceful H H manner. As for the protestors at the green stage, in general they were not I violent, except for the few who tried to climb over the fences into the Civic I Square. According to PW6, when he left on 27th September 2014, vehicles J J could still travel on Harcourt Road. There were crowds on Tim Mei K Avenue all the way to the roundabout at the north of Tim Mei Avenue, i.e. K the roundabout outside CITIC Tower. L L M 138. At around 11 a.m. on 28th September 2014, the traffic on both M lanes of Tim Mei Avenue was still suspended. There were many mills N N barriers placed irregularly on Lung Wui Road. These mills barriers were O not guarded by the police and they extended to the pavement and O carriageway of Lung Wui Road. The traffic of Lung Wui Road was P P suspended. Q Q 139. The number of protestors in Admiralty swelled between 11:00 R R th a.m. and 6:00 p.m. on 28 September 2014. The protestors did not listen S to Police instructions and rushed out onto the carriageway of Harcourt S Road. The Police tried but failed to stop the protestors from doing so. T T Eventually the entire Harcourt Road, from the elevated walkway over U U V V  - 38 - A A B B Harcourt Road to the Red Cross Headquarters, was blocked and occupied C by the protestors. Both the eastbound and westbound carriageway of C Harcourt Road were blocked by protestors standing on the carriageways. D D The video footage in Exhibit P84, shows the situation at 5:12 p.m. and 5:32 E p.m. on 28th September 2014. E F F 140. At around 6:00 p.m. on 28th September 2014, Police used tear G gas against the protestors, but the vehicular access to Harcourt Road was G still blocked by protestors, who started to place objects on the carriageway. H H Objects like plastic fences, mills barriers, garbage bins, bamboo sticks and I road signs from construction sites were stacked at Harcourt Road at the I east side of CITIC footbridge and on the Fenwick Pier Street down J J Harcourt Road at the bottom of the flyover near Harcourt Road. Upon the K firing of tear gas cannisters, protestors who were on Tim Mei Avenue and K Harcourt Road left the locations to avoid the effect of tear gas but people L L gathered very quickly again in those locations after the effect of each round M of cannisters of tea gas was over. PW6 could not tell if the people who M gathered again were the same people who had dispersed earlier on. N N O 141. PW6 could not tell whether there was a substantial difference O in number about the protestors at Tim Mei Avenue and Harcourt Road P P before and after the use of tear gas. Q Q 142. PW6 agreed that there were no tents and barricades on R R th Harcourt Road before the firing of tear gas on the night of 28 September S 2014. Tents and barricades were only set up by protestors on the S carriageways of Tim Mei Avenue and Harcourt Road afterwards. T T U U V V  - 39 - A A B B 143. I accept the evidence of PW6 as to what he observed on 3rd- C 4th & 13th -14th October 2014 and 11th December 2014. C D D 144. I would not set out in detail the evidence of PW6 which E concerns what happened after 28th September 2014 in the light of the E Prosecution’s position as to the relevance of the evidence of PW6 F F concerning what happened after 28th September 2014. The evidence of G PW6 as to what happened after 28th September up to 11th December 2014 G has been summarized in Para. 67 to 76 of the Prosecution Closing H H Submissions. I find the summary of the evidence a fair and accurate one. I I PW7 Sergeant 58012 Kwok Si Wai J J K 145. The evidence of PW7 concerns how he delivered a Letter of K Prohibition21 on 29th September 2014. L L M 146. I accept PW7’s evidence that he tried to look for D3 or Mr. Lo M Wai Ming (DW4) at 8th Floor, Good Hope Building, No. 618 Nathan Road, N N i.e. the address of Hong Kong Professional Teachers’ Union, that was also O the address provided in the Notification of the Intention to Hold a Public O Meeting.22 PW7 was told neither D3 nor Mr. Lo was there and PW7 was P P th asked to go to 7 Floor of Chung Kiu Commercial Building. PW7 went to Q Chung Kiu Commercial Building and found out that the address was also Q used by Hong Kong Professional Teachers’ Union, neither D3 nor Mr. Lo R R were there, and PW7 was received by a Mr. Chan Hung. After some S enquiries made with Mr. Chan and after Mr. Chan indicated he could S T T 21 Exhibit P153 22 Exhibit D3-1 U U V V  - 40 - A A B B receive the document on D3 and Mr. Lo’s behalf, PW7 delivered Exhibit C P153 to Mr. Chan and obtained a written acknowledgement from the latter. C D D 147. Issue was taken by counsel for D1 to D3 as to whether the E service of the Letter of Prohibition complied with the legal requirements. E In my judgment, as the proposed public meeting on 1st to 3rd October 2014 F F did not take place, the propriety or otherwise of the service of the Letter of G Prohibition has no bearing on the important issues in the present case. It is G clear from the evidence of D2, he was aware of the Letter of Prohibition H H when he was at Tim Mei Avenue, though he could not recall when he I became aware of it. I J J 148. The relevance of the Notification of Intention to Hold a Public K Meeting on 1st to 3rd October 2014 goes to the issue of the extent of K obstruction that the proposed meeting would cause and the intention of the L L Trio, i.e. whether they intention to cause a public nuisance by the launching M of the OCLP after the notified public meeting. The non-compliance of the M requirements of the service of Exhibit P153, in my judgment, is not N N relevant to the disputed issues in this case. O O 149. In any event, having heard the evidence of PW7 and all P P matters taken into consideration, I find PW7 an honest and reliable witness. Q There was no mala fide on the part of PW7 for not trying to contact D3 or Q Mr. Lo by phone or to look for D3 in Admiralty on 29 September 2014. I R R accept also PW7’s evidence that he was unaware of the deadline time of S the service of Exhibit P153, i.e. before 3:00 p.m. on 29th September 2014. S It is not in dispute that it was his first time to serve a Letter of Prohibition, T T it is therefore not surprising that he was not aware of the relevant legal U U V V  - 41 - A A B B requirements. In my judgment, there was no reason for deliberate non- C compliance by the Police, and for that matter PW7, when a decision had C st rd been made by the Police not to allow the public meeting on 1 to 3 D D October 2014 to go ahead. E E D2 Professor Chan Kin Man F F G 150. D2’s evidence started on day 8 and finished on day 11. I shall G not recite in detail every aspect of D2’s evidence, suffice to say I have H H considered his evidence and the exhibits referred to in his evidence. I I 151. The evidence of D2 in relation to his personal and J J professional background is not an issue in dispute. I accept also the K evidence of D2 as to his views on and beliefs in genuine universal suffrage. K In so accepting D2’s evidence, I express no view on the correctness or L L otherwise on D2’s views and beliefs on the subject. I accept as a matter of M fact, D2 had those views and held the beliefs he stated in his evidence on M the issue. N N O 152. I also accept D2’s evidence as to his relationship with D1 and O D3. He had been a friend of D3 for many years. He was not familiar with P P D1 at the beginning of 2013. In early 2013, D2 read about a newspaper Q article written by D1 and he did not agree totally with it. Later D1 named Q D2 and D3 as candidates for leading a occupy movement in Hong Kong. R R D2 then had a dialogue with D1 and D2 came to understand that civil S disobedience was only the last resort of D1 in the campaign to strive for S genuine universal suffrage. T T U U V V  - 42 - A A B B 153. D2 referred to a newspaper article he wrote entitled “May C Love and Peace Occupy Central” published on 4th March 2013.23 In that C article, D2 stated, among other things, that participants in the movement D D should surrender themselves to the Police and there is no need to defend in E Court. D2 explained why D1 to D3 entered pleas of not guilty to the E charges in this case despite that they had surrendered to the Police. They F F consider the charges unreasonable and may have a long-term effect on the G freedom of speech. D2’s view of the reasonableness of the charges and for G that matter, the appropriateness of the charges and the constitutionality H H challenge to the charges are matter that I have to consider and deal with, I but the reasons of D2 to defend his case in court is not something I shall I take into consideration in assessing the credibility and reliability of his J J evidence. K K 154. D2 stressed in his evidence that the essence of civil L L disobedience was to raise public awareness on the unjust situations and M hence the Trio (D1 to D3) insisted on peaceful and non-violent protest. On M the evidence before me, I find that the D1 to D3 all along called for a N N peaceful and non-violent approach. O O 155. The Prosecution submitted that D2 agreed under cross- P P examination that there was a possibility of members of public participating Q in Occupy Central without signing the Letter of Intent24 and there was still Q chance that some participants might get violent despite all the means and R R measures taken to reduce the chance of violence. S S T T 23 Exhibit D2-3 24 Exhibit D2-6 U U V V  - 43 - A A B B 156. In my judgment, the fact that there was chance of outbreak of C violence would not alter the nature of the movement that D1 to D3 C advocated for. The chance outbreak of violence by some participants in D D the OCLP movement planned and agreed by D1 to D3 should not turn the E movement into a non-peaceful or even violent one. By the same token, a E fortuitous incident of football hooliganism in an otherwise properly F F organized football match should not affect the peaceful nature of the sport G event. The “not warranted by law” element for the offence of public G nuisance cannot be proved by the possibility that some participants might H H turn violent during the OCLP movement. I I 157. D2 said in his evidence that the essence of civil disobedience J J was to raise public awareness on the unjust situations. Whilst it is not for K this court to find whether the situations were unjust, I am prepared to find K that D1 to D3 saw the situations were unjust. L L 158. On the evidence before me, it is an understatement to say that M M the essence of civil disobedience that D1 to D3 was advocating, i.e. the N N OCLP, was to raise public awareness on their perceived unjust situations. O The evidence shows that they D1 to D3 wanted to successfully fight for a O form of election system that suited their criterion for genuine universal P P suffrage through the OCLP movement. D2 agreed under cross- Q examination, in Exhibit D2-11, the “OCLP Basic Tenets”, it is stated that Q “Should tens of thousands (In the Chinese version, it is “Several hundreds R R of thousands”) turn out to Occupy Central, the primary concern of the S authorities would have to be different. Then it would not be a matter of S arresting or dispersing the protestors. It would be a matter of moving T T towards introducing genuine universal suffrage, ….”. Under cross- U U V V  - 44 - A A B B examination by the Prosecution, D2 agreed that by announcing the C inclusion of stage 4 of occupation in the Manifesto,25 the chance of success C for the first three stages would be increased. D D E 159. I accept D2’s evidence as to how he met with D1 and D3 E following Exhibit D2-3. D1 to D3 agreed that the movement would consist F F of 4 stages, namely (1) deliberation, (2) authorization, (3) negotiation and G (4) occupation. I accept also D2’s evidence that it was agreed between D1 G to D3 that civil disobedience by way of occupation would only take place H H after all legal ways had been exhausted. The civil disobedient that D1 to I D3 had in mind was dependent on the results of negotiations with the I Central or HKSAR Government. D2 gave evidence that at that stage, J J though D1 to D3 had a plan to occupy a place or places, their intention did K not extend beyond Central, in fact they had a very specific location in mind, K i.e. Chater Road. L L M 160. I accept the evidence of D2 that on 27th March 2013, the Trio M announced a Manifesto,26 jointly prepared by the three, at Union Church, N N Kowloon. D2’s evidence as to what happened on 27th March 2017 is O consistent with the video footages in Exhibits P96 and P98 to P100. It O should be noted that D2 said under cross-examination, at that time in March P P 2017, i.e. at the time Exhibit D2-4 was published, it had been decided that Q occupation could be carried out in Central but the specific location and Q duration were yet to be discussed. D2’s evidence on the location where R R occupation would be carried out is different from his evidence given in S chief that the Trio had a very specific location in mind, i.e. Chater Road, S T T 25 Exhibit D2-4 26 Exhibit D2-4 U U V V  - 45 - A A B B when they agreed on the four stages plan. In my judgment, given the long C lapse of time since March 2014 and the minor nature of the aforesaid C discrepancy, the discrepancy does not affect the credibility of D2. I accept D D the evidence of D2 that though he could not recall the exact time when the E Trio first agreed to carry out occupation in the pedestrian precincts at E Chater Road, the location must have been agreed by 1st July 2014. F F G 161. I accept the evidence of D2 as to what was done in respect of G stage 1 of the four phases, namely deliberation, from June 2013 to May H H 2014. A series of meetings called “Deliberation Days” were held to discuss I the movement and the proposal(s) for constitutional reform. D2’s evidence I on what was done in relation to the first “Deliberation Day” is consistent J J with the video footages in Exhibits P116 and P117. K K 162. I accept D2’s evidence that the second Deliberation Day L L consisted of a series of deliberation conferences held in different M communities. I accept D2’s evidence that the 3,000 people who attended M the third Deliberation Day had participated in the previous Deliberation N N Days. Proposals which met the international standard for universal O suffrage were put forward for the participants to choose from. O P P 163. I accept D2’s evidence as to what was done in relation to stage Q 2, i.e. the authorization stage. Between 20th and 29th June 2014, D1 to D3 Q organised a civil referendum. In short, the proposal from the “Alliance for R R Genuine Universal Suffrage” had support from 792,000 voters who voted S in the referendum. The said proposal, together with a veto proposal were S agreed upon following the holding of the referendum. T T U U V V  - 46 - A A B B 164. I accept D2’s evidence as to the position D1 to D3 took in C respect of the occupation by students of part of Central on 1st July 2014. C The students called the said occupation, which was short in duration, a D D rehearsal of Occupy Central. D1 to D3 disagreed with the students’ views E but respected them. The Trio (“D1 to D3”) took the view that as Stage 3, E i.e. negotiation was then not yet complete, they did not want to start civil F F disobedience. G G 165. I accept D2’s evidence as to the contact between the Trio and H H the Government on the issue of constitutional reform, what happened I during the short meeting with and the response from the then Secretary for I Administration Carrie Lam and Secretary Lau Kong Wah on 29th J J July 2014. The meeting yielded no result and there was no further meeting K arranged. K L L 166. I accept D2’s evidence that the Decision on 31st August M represented the critical date on which they decided that Stage 4 of M occupation would be implemented. I accept also D2’s evidence as to what N N D1 to D3 did after the promulgation of the Decision on 31 st August, they O held meetings and jointly took the view that there was no room for O discussion any more. The three agreed that the Occupy Central Movement P P st th would be commenced on 1 October 2014. As a result, on 18 September Q 2014 they gave the Police a Notification of Intention to Hold a Public Q Meeting.27 The proposed public meeting was to be held (i) at the pedestrian R R st area of Chater Garden from 3:00 p.m. to 11:59 p.m. on 1 October 2014 S and from 7 a.m. to 11:59 p.m. on 2nd October 2014; and (iii) at Chater S Garden and Statute Square from 3:00 p.m. on 1st October 2014 to 11:59 T T 27 Exhibit D3-1 U U V V  - 47 - A A B B p.m. on 3rd October 2014. Though D2 had not seen Exhibit D3-1 before it C was submitted to the Police as D2 and D1 had left the logistics of filling in C the Notification to D3, the Trio had agreed on the location, commencement D D date and approximate duration of occupation. They agreed to occupy the E pedestrian precincts of Chater Road from 1st October 2014 for probably a E few days. If a LONO was issued by the Police, they would start the civil F F disobedience part of the movement by staying behind after the notified G meeting was over. G H H 167. I accept D2’s that the Trio hoped that a LONO would be I issued as the OCLP could attract more participants if the initial stage was I a legal one. J J K 168. I accept the evidence of D2 as to what D1 to D3 planned to do K if no Letter of Prohibition was received from the Police. They would stay L L behind after the lawful part of the meeting, ie the notified meeting, as it M would not be civil disobedience if one only stays for the notified period, M ie everything is done lawfully. D1 to D3 had slightly different estimates N N as to the time of staying after the notified period. Whilst all three agreed O that the occupation would end in a few days, their estimates of the time O might not be the same. D2 thought that it might end on or around 5th P P October 2014, i.e. he planned to stay on for 3 more days after the notified Q meeting. The intention was to occupy the area as set out in D3-1. D1 to Q D3 shared similar views as to estimated number of people attending, it R R would be from several thousand to 10,000 people. D1 to D3 were confident S that if the number of participants were as they estimated, they could keep S the crowd within the pedestrian area of Chater Road. In my judgment, by T T “the pedestrian area of Chater Road”, D2 obviously meant the carriageway U U V V  - 48 - A A B B of Chater Road designated as pedestrian area during public holidays and C not the pedestrian pavements on both sides of Chater Road. C D D 169. I accept D2’s evidence that that the Trio had a discussion on E the scenario where the Police issued a Letter of Prohibition to the proposed E meeting. If the Police prohibited the meeting, people would still go the F F planned location, sit and remain there after the public holidays and G commence civil disobedience there. G H H 170. For Exhibit D2-9, i.e. “OCLP – Manual of Disobedience”, I shown to D2 by Mr. Pang SC in cross-examination, D2 confirmed that a I large part of the manual was devoted to arrest and what one should do J J before, during and after arrest. D2 said the whole idea was to be arrested K within a fairly short time. In Exhibit D2-9, two scenarios were mentioned, K firstly how the police would effect arrest of a protestor who would get on L L a police vehicle voluntarily; and secondly, how the Police would effect M arrest of a protestor who insisted on staying. In the second scenario, the M protestor would be lifted by a group of four officers each lifting one of the N N limbs of the protestor. In order words, the Trio appreciated that the arrest O of just one protestor who was not willing to get on a police vehicle would O require the joint effort of 4 police officers. P P Q 171. In Exhibit D2-10, i.e. the “Press Release by OCLP”, D2 stated Q it was hard to predict how long the occupy action will last but “recommend R R participants to prepare enough food for two or three days.” S S 172. In Exhibit D2-11, i.e. the “OCLP Basic Tenets”, it was stated T T therein that “Given the strength of the Hong Kong Police establishment, U U V V  - 49 - A A B B the government has the capacity to arrest all the protestors in a matter of C one or two days without resorting to force.” C D D 173. It should be noted that in the press conference on 27th March E 2013, D2 said:- E F “If, by then, we sit on the road surface in Central, if he/she F comes to arrest us, we won’t put up resistance; we’ll let (him/her) carry us on board a police vehicle, and then go to the G police station. So, actually, if he/she is not going to let Central G be paralysed, it is actually very easy (to do so). He/She just H arrests us and that’ll do.”28 H I 174. In the said press conference, D2 was obviously talking about I the second scenario, not the first one. Given the Trio’s estimate that there J J would be several thousand to 10,000 people parting part in the OCLP, I K reject D2’s evidence that there he thought/believed the arrest action to K OCLP could be completed with ease, be it the occupation of Chater Road L L in Central or the one which actually took place at Tim Mei Avenue and the M public places and roads in the neighbourhood of Tim Mei Avenue. M N N 175. On the part of D5, there is no evidence that he was aware of O the contents of Exhibit D2-9 or that he addressed the crowds at the material O times on the basis the contents of D2-9. I do not see how Exhibits D2-9, P P D2-10 and D2-11 can assist D5, or other defendants jointly charged with Q Q the Trio under Charge 2 and Charge 3. R R 176. I accept D2’s evidence he was aware of the launch of class S boycott by HKFS and Scholarism on 22 September 2014. S T T 28 Exhibit P100, page 603 U U V V  - 50 - A A B B 177. I accept also D2’s evidence that the Trio had a meeting with C organizers of OCLP on 26th September 2014 and detailed arrangements for C st 1 October were discussed during the meeting. It was after the meeting D D that the Trio became aware of the storming of the CGO to reclaim Civic E Square by some students and the arrest of some student leaders. Upon E knowing that, it was still the intention of the Trio to continue with the F F notified meeting on 1st October 2014. G G 178. I accept D2’s evidence that on 27th September 2014, he H H received a call from D1 in the morning. D1 said the situation was urgent I and asked D2 to accompany him to Admiralty. The two met up in I Admiralty and went to the CGO together. On their way, youngsters urged J J them to launch Occupy Central immediately. D2 gave evidence that D1 to K D3 later met up and they had a discussion in the afternoon. They K considered whether the Occupy Central Movement should start early. L L They also considered whether the occupation starting at Tim Mei Avenue M could extend to Harcourt Road and after some time, the Trio agreed that M traffic at Harcourt Road was heavy and people going onto the carriageway N N might get hurt. The Trio agreed to first ask people to go to Tim Mei O Avenue. Pausing here, it should be noted that, firstly, when D1 addressed O the crowd in the presence of D2 on 27th September 2014 at Tim Mei P P Square, he said amongst other things:- Q Q “…..Let’s over-cram Admiralty first. Where shall (we) over- R cram next? Central! We must be able to see the arrival of R genuine universal suffrage in Hong Kong!” 29 S S T T 29 Exhibit P20, page 1107 U U V V  - 51 - A A B B In the said address, D1 asked for the over-cramming of Admiralty and C Central, a geographical ambit much wider than the location of Tim Mei C Avenue. Secondly, from what was discussed between D1 to D3, they were D D not talking about abandoning the OCLP movement and participate in E another movement, ie the one started and run by the students. Thirdly, a E decision had been made by D1 to D3, after their discussion in the afternoon, F F as to how the occupy movement should develop, i.e. the over-cramming of G Admiralty, followed by Central. G H H 179. I accept the evidence of D2 that, before the announcement of I the launching of the OCLP, there was no misunderstanding between HKFS I and the Trio following the discussion between student leaders of HKFS J J and the Trio. The video clips show that the announcement was made K together with the students. No students had expressed their disagreement K before D1 announced the launching of OCLP and those who raised their L L objections after the announcement were not representatives of HKFS. M From the video footage in Exhibit P44, one can see that when D1 made the M announcement, D2, D3, D6, D7 and the two student leaders of HKFS N N present in the meeting with the Trio were all on the stage. Both D6 and the O two student leaders clapped in support of the announcement. As for D7, O he echoed D1 by holding up his fist and chanting. P P Q 180. On the evidence before me, despite what D2 said in his Q evidence, i.e. he considered that the possibility of the suggested R R misunderstanding between the Trio and HKFS was not high but he would S not rule it out, I am satisfied that there was no misunderstanding between S the Trio and HKFS that an announcement of the commencement of Occupy T T Central would be made by the Trio after the meeting between the Trio and U U V V  - 52 - A A B B student leaders of HKFS. The crowds present at Tim Mei Avenue reacted C negatively to the announcement. D6 and D7 tried to stop the departure in C their addresses. What happened was a misjudgment of people’s response D D to the announcement of the commencement of Occupy Central, but not a E misunderstanding between the Trio and HKFS as suggested, i.e. the Trio E wanted to announce the commencement of Occupy Central whereas HKFS F F only wanted the support from OCLP in the form of PA system, marshals G and volunteers. G H H 181. I accept the evidence of D2 that when tear gas cannisters were I discharged at Harcourt Road and smoke was coming towards Tim Mei I Avenue, D2 asked D5 to instruct the protestors to leave immediately. The J J evidence of D2 in this aspect is consistent with what D5 said in the video K footage.30 K L 182. In my judgment, at the time when tear gas cannisters were L being fired, it was only natural that people who had a role to play in the M M occupy movement would want the protestors to leave the site at Tim Mei N N Avenue. The evidence of D2 and Exhibit LL-1 could not impinge on the O Prosecution case. In determining whether a defendant had the intent to O cause a public nuisance, to incite a public nuisance or to incite others to P P cause one, how that defendant reacted to the firing of tear gas cannisters Q had little bearing on the issue of intent, whether the charge under Q consideration is conspiracy to cause a public nuisance, incitement to cause R R a public nuisance or incitement to incite a public nuisance. S S T T 30 Exhibit LL-1 U U V V  - 53 - A A B B 183. The response of D2 to the use of tear gas on 28 September C 2018 was consistent with what he said at the time the announcement was C made as recorded in Exhibit P44. At the time, D2 addressed the people at D D Tim Mei Avenue that “If the police disperse us with tear gas, we, the rally, E will make an announcement about the location where everyone, citizens E who got scattered, can gather afterwards. We will tell everyone about these F F measures very soon.” The evidence of D2 in this respect and the video G footage captured in Exhibit LL-1 do not, in my judgment, undermine the G Prosecution case. H H I 184. D2 did not agree to the suggestion put to him by the I Prosecution that the Tim Mei Avenue movement was merely a modified J J plan of the original plan of OCLP. D2 considered the movement at Tim K Mei Avenue a very thorough modification. On this issue, one should note K what D1 said at the time of the announcement of the launch of Occupy L L Central and what he said immediately after.31 M M 185. When D1 announced the launch of Occupy Central, he said, N N amongst other things “I am going to make a very important announcement O here, which is a – an announcement that everybody has long been waiting O for. Does everybody know what this announcement is? It is announced P P here and now that the ‘Occupy Central’ formally begins. ‘Occupy Central’ Q formally begins”.32 In my judgment, what D1 meant by “an announcement Q that everybody has long been waiting for” must be the OCLP that the Trio R R had been planning since March 2013 and the one that they had planned to S start on 1st October 2014. Had the Trio intended to abandon the OCLP and S T T 31 Exhibit P124 32 Exhibit P124, page 741 U U V V  - 54 - A A B B start another movement, D1 would not have said what he said in the C announcement at 1:36 a.m. Furthermore, in a press interview held C immediately after the announcement, D1 was asked if the launch of D D Occupy Central at Tim Mei Avenue involved any change in the plan, D1 E said, amongst other things, that “Actually, the impact is not really that big, E actually it concerns just some technical arrangement, for example, the F F management of manpower, the management of the sites, this is because our G original plan was based on a certain point in Central, all the planned G sketches are ready. And now we are going to make the changes, but I think H H this concerns only technical issues”.33 The only reasonable inference to be I drawn from what D1 said in Exhibit P124 is that the Trio did not see the I announcement at 1:36 am as the launching of a different movement but that J J the launching of the movement that they had been planning was put K forward from 1st October 2014 to 28th September 2014. K L L 186. D2 gave evidence as why he considered the movement the M Trio planned to commence on 1st October 2014 at Chater Road was M different materially from the one they announced to commence at 1:36 a.m. N N on 28th September 2014. He identified four major areas of difference, O ie (1) theme, (2) management and leadership, (3) organizational method O and (4) composition of participants. P P Q 187. I shall not go onto the evidence of D2 on this topic in great Q length. It is clear to me that the planned movement at Chater Road and R R what took place at Tim Mei Avenue both involved occupation of public S places and public roads. D1 to D3 all along considered the planned S T T 33 Exhibit P124, page 757 U U V V  - 55 - A A B B movement at Chater Road and the one at Tim Mei Avenue a civil C disobedience. C D D 188. On the theme of occupation, the withdrawal of the Decision E on 31st August and the reboot of political reform were common in both the E planned movement at Chater Road and what took place at Tim Mei F F Avenue. Whilst it is true that the themes such as reopening of the Civic G Square and the request for the release of the arrested students were not in G the planned movement to occupy Central, it should be noted that the class H H boycotts, the attempt to recapture Civic Square and the arrest of student I leaders were all related one way or the other to the common themes of the I withdrawal of the Decision on 31st August and the reboot of political J J reform. K K 189. On the question of management and leadership, D2 said the L L OCLP was there to support the students and that marshals of the OCLP M were expected to follow the instructions of HKFS. D2 also said they were M soon marginalized. However, given the evidence of D2 that the Trio only N N faded out from the movement after the Government’s negotiation with the O students and that D2 still regarded the Trio as one of the major components O of the movement at Tim Mei Avenue, it is difficult to see how the P P difference in management and leadership perceived by D2 can assist the Q case of D1 to D3. Charge 2 and Charge 3 concern words said by the Q relevant defendants between 27th and 28th September 2014, during the said R R period of time, the Government’s negotiation with the students had yet to S take place; the Trio had yet to fade out; there was no marginalization of the S Trio and the Trio still considered themselves one of the major components T T of the movement at Tim Mei Avenue. U U V V  - 56 - A A B B C 190. As for Charge 1, from the totality of the evidence, it is fair to C describe D1 to D3 as the important figures of the OCLP. I have explained D D in the preceding Para. why I found the Trio did not see the announcement E at 1:36 a.m. on 28th September 2014 as the launching of a different E movement. What they did at 1:36 a.m. was to put forward the launching F F of the movement that they had been planning was put forward from 1 st G October 2014 to 28th September 2014. G H H 191. I accept the evidence of D2 as to the difference between I HKFS and OCLP in terms of organization method. HKFS did not agree I with OCLP’s way of disobedience to await arrest. Instead, a more J J proactive approach was adopted by HKFS, it kept mobilizing people to K block off the major points of access. However, it should be noted that when K D2 addressed the crowd shortly after the announcement, he still asked the L L participants to lie down, interlinked their arms, lighten their bodies so that M the Police had to lift them up in order to effect arrest.34 Later on during M daytime on 28th September 2014, D2 addressed the crowd at Tim Mei N N Avenue and said amongst other things:- O O “Every er, voluntary picket (and) supporter of ‘Occupy Central P with peace’……. We suggest each voluntary picket, citizen P should adopt the effective protest approach adopted by the Hong Kong Federation of Students in these few days. If anyone sees Q that the main stage or the local commanders need our help, we Q are required to block certain important accesses, strongholds, or similar to what had happened just now, we are required to R R block some vehicles …”.35 S S T T 34 Exhibit P44, page 1329, Exhibit P124, page 750 35 Exhibit P64, page 1482-1483 U U V V  - 57 - A A B B In the said address, D2 was asking the voluntary pickets and supporters of C OCLP to adopt the protest approach of HKFS, i.e. the blocking of C important points of access. The said address shows a modification of the D D original plan, not the cessation of it. E E 192. As Mr. Leung SC pointed out, D2 agreed under cross- F F examination that with the additional party of students running the G movement, such difference would inevitably exist. Even if the Occupy G Central Movement were to start in Central, certain organizational methods H H had to be adapted to suit the situation. I I 193. On composition of participants, D2 said OCLP contemplated J J participants comprising mostly of people who had signed the Letter of K Intent, and 3,000 people had done so. He accepted, however, for the K Occupy Movement to start on 1st October at Chater Road, the Trio did not L L intend to exclude participants with no Letter of Intent as OCLP did not M have the power to stop them from joining. I accept D2’s evidence that for M the several thousand people at Tim Mei Avenue at the time of the N N announcement, one could not be sure how many of them had signed a O Letter of Intent and would accept OCLP’s way of resistance. D2 accepted O that by launching the Occupy Central Movement, they were launching it to P P the whole of Hong Kong population and not only to those 3,000 who had Q signed the Letter of Intent. Q R R 194. On the issue of the composition of participants, in my S judgment, it was the intention of D1 to D3 to merge the voluntary pickets S and supporters of OCLP and the participants at Tim Mei Avenue by T T announcing the commencement of Occupy Central. The addresses they U U V V  - 58 - A A B B made after the announcement show that they wanted the movement to be C expanded hence they asked more people to join the movement. In other C words, they wanted to ride with the tide, i.e. to make the best use of the D D events that took place after the commencement of class boycotts, e.g. the E storming of the Civic Square and arrest of student leaders. I accept that D1 E to D2 wanted to support the student protestors and the arrested student F F leaders but it was obviously also their intention to make the best use of the G development of the events. It should be noted that the two demands made G by D1 at the time of the announcement were the withdrawal of the Decision H H on 31 August and a reboot of constitutional reform.36 I I 195. D2 said in his evidence that the Trio had assumed that people J J would come to Tim Mei Avenue where the supporters in the number of K several thousand to 10,000 could be accommodated or managed. D2’s K evidence that the Trio had assumed that people would come to Tim Mei L L Avenue is at odd with what D1 said on 27th September 2014 when he M address the crowd in the presence of D2 and D4 at Tim Mei Square:- M N “…..Let’s over-cram Admiralty first. Where shall (we) N over-cram next? Central! We must be able to see the O arrival of genuine universal suffrage in Hong Kong!” 37 O P On the same occasion, immediately after D1’s address, D4 said amongst P other things:- Q Q R “Hey, let’s go to occupy Admiralty now. Thank you, Benny. R ‘Chung’ (transliteration), now it is the ‘Chung’ (transliteration) of ‘Kam Chung’ (transliteration) (the name of Admiralty in S S T T 36 Exhibit P124, page 742-743 37 Exhibit P20, page 1107 U U V V  - 59 - A A B Chinese). Later, it will be the ‘Chung” (transliteration) of B ‘Chung Wan’ (the name of Central in Chinese)…..”.38 C C In my judgment, the above address of D1 shows that firstly, it was never D D the intention of D1 to D4 that the supporters joining the movement at Tim E Mei Avenue would just come to Tim Mei Avenue; secondly, the Trio E hoped that the number of supporters would be large enough to over-cram F F Admiralty, which is closer to Tim Mei Avenue, and then Central, thus the G order “…..Let’s over-cram Admiralty first. Where shall (we) over-cram G next? Central!” The evidence of D2 that by launching the Occupy Central H H Movement, they were launching it to the whole of Hong Kong population I and not only those 3,000 who had signed the Letter of Intent should be read I in this light. J J K 196. D2 said in his evidence that the documentary film “Umbrella K Diaries: The First Umbrella 39 is an accurate representation of the incident. L L In my judgment, in order to have a balanced view of the incident, one must M not just look at Exhibit D2, which shows things mostly from the view point M of the protestors. One can have a more balanced and accurate picture of N N the incident when both the video clips recorded by the police and the ones O O produced by the defence40 are considered. P P 197. I have considered the evidence of D2 as to what happened in Q Q relation to the Occupy Movement and what the Trio did after 29 th R September 2014 up to the announcement by the Trio on 2nd December 2014 R of their intention to surrender themselves on the following day. D2 S S T 38 T Exhibit P20, page 1107 39 Exhibit D2-2 40 including Exhibit D2-2 U U V V  - 60 - A A B B testified that he was worried on 29th September 2014 because he was C trapped in Tim Mei Avenue yet the Police did not arrest him, he was C worried what the Government intended to do and wondered if the D D Government wanted to create a status of anarchy. In my judgment, D2 E might be worried on 29th September 2014, given what happened on the E previous night. But it could not be reasonably argued that the Police did F F not arrest D2 because of some ulterior motives. If the Police were to arrest G D2 the day after the firing of tear gas, when emotions of protesters still G went high, as evidenced by the increase in the numbers of protestors on H H Harcourt Road, such arrest action might just stir up further reaction that the I Police did not want to see. There is simply no evidential basis to suggest I the Government or the Police wanted to create a status of anarchy. In any J J event, the evidence of D2 as to the worry he had on 29th September 2014 K has no bearing on the important issues in this case. K L L 198. I accept the evidence of D2 to as to the contact between the M Trio and Government officials like Carrie Lam and Yau Tang Wah M sometime between 30th September and 2nd October 2014. D2 testified that N N Carrie Lam gave a negative reply about Chief Executive Leung Chun Ying O and Commissioner of Police Tsang Wai Hung stepping down but her O attitude about an independent investigation committee to investigate the P P use of tear gas was positive. As D2 said he could not recall details of the Q conversation with Carrie Lam, the evidential value of the Trio’s contact Q with Carrie Lam and Yau Tang Wah is limited, apart from showing that R R D1 to D3 were trying to establish a dialogue with the Government. S S 199. I accept D2’s evidence as to what took place between 2nd T T st nd October and 21 October 2014. On 2 October 2014, the Government U U V V  - 61 - A A B B announced that it would have a dialogue with the students. The students C called off the dialogue after some triad members assaulted the protestors in C rd Mongkok on 3 October 2014. There was a discussion with Yau Tang D D Wah focusing on how to restore the dialogue between the Government and E the students. The Government called off the dialogue when pan-democrats E suggested an all-citizen resistance. It was only after some twists and turns F F that a dialogue between the Government and the students finally took place G on 21st October 2014. In the said dialogue, the Government designated G HKFS as counterpart for negotiation. H H I 200. I accept the evidence of D2 that between 2 nd October and 21st I October 2014, OCLP took steps to re-open footbridges to CGO by talking J J to occupiers known as “villagers”, as there were different occupied areas K known as “villages”. The villagers would not just accept instructions from K OCLP and OCLP had to talk to the “village heads” of the villages in L L question. The evidence of D2 on this issue shows that D1 to D3 had little M control over the protestors (“villagers”) between 2 nd October and 21st M October 2014. What happened between 2 nd October and 21st October 2014 N N concerns Charge 1 but not Chares 2 to 6. As for Charge 1, in my judgment, O whether D1 to D3 were in control of the Occupy Movement between 2 nd O October and 21st October 2014 is one thing, whether there was still a P P conspiracy to cause public nuisance, if one ever existed, is another matter. Q What is in dispute is if such conspiracy ever existed, and if so, when did it Q come into existence and when did it cease to exist. R R S 201. I accept the evidence of D2 as to stance taken by the Trio as S regard the dialogue between the Government and the students. D1 to D3 T T wanted the students to continue with the negotiation so that the occupation U U V V  - 62 - A A B B could come to an end after some result was achieved. D1 to D3 also took C the view that if the students were of the view that negotiation would not C come to any result, the occupiers should leave the scene. The Trio D D suggested a de facto referendum could be triggered by the resignation of E Legislative Councillor Albert Ho. The voters, through the election held as E a result, could reflect their opposition to the Decision on 31st August. The F F Occupy Movement could then be transformed into a community G movement. The students disagreed to withdraw by the way the Trio G suggested. In my judgment, despite the suggestion made to the students, H H D1 to D3 did not openly split with the students until 2nd December 2014. I I 202. I accept D2’s evidence that D1 and D2 stayed at the occupied J J area between 27th September and 27th October 2014. As for D3, he returned K home due to his health conditions. D2 said in his evidence that on 28 th K October 2014, D1 and D2 decided to resume teaching and fade out from L L the movement. I accept that D1 and D2 decided to resume teaching on 28th M October 2014. D2’s evidence in that regard is consistent with what D1 said M in a press interview on 28th October 2014.41 D2 said that the Trio decided N N to withdraw because they could no longer influence the students, who took O the stance that they would not negotiate with the Government or withdraw O from the occupied area. D2 said the Trio did not openly split with the P P students until a press conference held in early December 2014. It is Q obvious that the press conference in early December 2014 that D2 Q mentioned was the one held on 2nd December 2014.42 R R S S T T 41 Exhibit P130 and P131 42 Exhibit P134 U U V V  - 63 - A A B B 203. The evidence of D2 that D1 to D3 decided to fade out from C the movement should be read in the light of the undisputed evidence that:- C D D (1) On 3rd October 2014, D1 urged the protestors who had E been protesting in Mongkok to join the occupy E movement in Central;43 F F G (2) On 8th October 2014, in a press interview, D2 stated that G the OCLP had provided support on the basic operation H H of the occupied area in Admiralty, and the OCLP would I give advice to the student protestors at appropriate I times. D2 also stated that OCLP hoped that the J J protestors would stay as far as possible until the K dialogue with the Government yielded a result.44 K L L (3) On 10th October 2014, in a speech given at Harcourt M Road, D1 stated that he would continue to stay in the M occupied area together with other protestors.45 N N O (4) In the press interview on 28th October 2014,46 D1 also O stated that the workers of OCLP would still stay in the P P occupied area. He stated also that with some adaptation, Q they could have the capability to stay for a longer Q period of time. R R S S 43 Exhibit P120 T 44 T Exhibit P110, P112 and P126 45 Exhibit P128 46 Exhibit P130 and P131 U U V V  - 64 - A A B B 204. In my judgement, the totality of the evidence shows that D1 C to D3 did not withdraw from the movement until they announced their C nd intention to withdraw from the movement on 2 December 2014. D D E DW1 Mr. Wu Chun Him E F F 205. Mr. Wu was a demonstrator present at Tim Mei Avenue on G 26th September 2014. He left the site before some students climbed into G the Civic Square in the evening. Upon learning that some student leaders H H had been arrested, Mr. Wu returned to Tim Mei Avenue and stayed until I the morning on 27th September 2014. He returned to Tim Mei Avenue until I the morning on 28th September 2014. J J K 206. At about 1:30 am on 28th September 2014, Mr. Wu was at the K roundabout near CITIC Tower at the junction of Tim Mei Avenue and L L Lung Wui Road, Mr. Wu was shocked upon learning from other that D1 M had announced the launching of the OCLP. He considered this as a change M of events because the OCLP was not supposed to be launched at Tim Mei N N Avenue there and then. He described the reaction of the people at Tim Mei O Avenue after D1’s announcement, some 70% people left within 1 or 2 O hours. Mr. Wu left the site later. P P Q 207. Mr. Wu was at Harcourt Road outside Admiralty Centre in the Q evening on 28 September 2014. There he saw the carriageway was R R completely blocked by protestors. Mr. Wu stayed there until after the firing S of tear gas. He then went into the Academy for Performing Arts and stayed S there until the small hours of 29th September 2014. T T U U V V  - 65 - A A B B 208. Mr. Wu gave evidence that during the period from 29th C September to mid-December 2014, he would occasionally return to C Harcourt Road and spent the night there. He saw himself one of the D D occupiers on Harcourt Road but he considered his decision to participate E in the occupy movement had not been affected by D1 to D3. E F F 209. I find Mr. Wu an honest and reliable witness. I accept his G evidence as to what he did and witnessed. For the evidence as to why G Mr. Wu attended the public meeting at Tim Mei Avenue and took part in H H the occupation of Harcourt Road, Mr. Wu can speak for himself only, the I evidence of Mr. Wu on this issue does not shed light on why others I attended the public meeting at Tim Mei Avenue and took part in the J J occupation of Harcourt Road. K K DW2 Mr. Leong Sze Chung James L L M 210. Mr. Leong’s evidence concerns the documentary entitled M “Umbrella Diaries: The First Umbrella” produced as Exhibit D2-2. N N O 211. Mr. Leong was one of the 4 executive directors of D2-2, most O of the footages were shot by Mr. Leong. P P Q 212. Of the 64 minutes of D2-2 played in court, only about Q 4 minutes were filmed by others, i.e. the contributors whose names appear R R in the “Credit” section of D2-2. 47 The 64 minutes of D2-2 played in court S came from an original footage of around 40 hours in length, excluding S footages filmed by others. Background music was added to the footages. T T 47 Exhibit P158 is the relevant screen capture U U V V  - 66 - A A B B C 213. When Mr. Leong did the editing of the original footage, he C extracted parts that he considered sufficient to tell the story and to show D D the incident that was Mr. Leong considered interesting. E E 214. The final product, i.e. D2-2, is “almost all chronological”, F F except for 1 to 2 minutes for the events on 28 September 2014. G G 215. I accept the evidence of Mr. Leong as true and reliable. I H H accept that D2-2 was shot and produced in the way Mr. Leong told us. In I considering D2-2, I shall exclude from my consideration any effect created I by the background music. J J K DW3 Ms. Tsang Wai Kwan K L L 216. Ms. Tsang gave evidence as to why she took part in the M occupation movement in question. M N N 217. Ms. Tsang was aware of the civic movement of D1 to D3 but O she had not decided to join the movement and had not signed the Letter of O Intent. P P Q 218. Between 22nd and 25th September 2014, Ms. Tsang took part Q in the class boycott organised by students as she wanted to fight for genuine R R universal suffrage and to show her care for the students. S S 219. On 26th September 2014, upon learning that students were T T climbing into the Civic Square, Ms. Tsang went to and stayed at Tim Mei U U V V  - 67 - A A B B Avenue between around midnight and 10 a.m. on 27th September 2014. C She went to Tim Mei Avenue to show her support for the students inside C Civic Square who had not yet been released. D D E 220. Ms. Tsang returned to Tim Mei Avenue at around midnight E on 28th September 2014 and witnessed D1 announcing the commencement F F of the Occupy Central Movement at 1:30 a.m. The people present reacted G differently to the announcement. Some were thrilled but some were angry. G One student pointed at and accused D1 for his lateness in starting the H H movement. I I 221. Ms. Tsang did not consider herself a participant of OCLP J J because all along her understanding of OCLP was that the participants K would “attend a banquet” on 1st October 2014 in Central. She felt the K public meeting at she attended at Tim Mei Avenue was an extension of the L L student’s class boycott. M M 222. Ms. Tsang occasionally returned to the occupied area from N N 28th and 29th September 2014 and spent most of the nights there. She did O not, however, consider herself taking part in OCLP for the same reasons O stated in the preceding Para. P P Q 223. Ms. Tsang impressed me as an honest and reliable. However, Q I do not see how Ms. Tsang’s view of the effect of D1’s announcement and R R her reasons for taking part in the public meeting at Tim Mei Avenue on S 27th and 28th September 2014 and her participation in the subsequent S occupied movement can shed light on the important issues whether a T T U U V V  - 68 - A A B B conspiracy to cause a public nuisance among D1 to D3 existed at the time C and whether there were incitements from the relevant defendants. C D D DW4 Mr. Lo Wai Ming E E 224. Mr. Lo was the Deputy Chief Executive of the Hong Kong F F Professional Teachers’ Union at the material time in 2014. He had been G assisting D3 in his work relating to OCLP since March 2013. D3 was the G Chairman of the HKDDN and the registered address of HKDDN was at H H 8th Floor, Good Hope Building, No 168 Nathan Road. I I 225. I accept Mr. Lo’s evidence that, with the instructions given by J J D3, he helped D3 to prepare the Notification for Intention to Hold a Public K Meeting on 1 to 3 October 201448 and submitted the same to Mongkok K Police Station on 18th September 2014. L L M 226. I accept also Mr. Lo’s evidence he arranged for a public M liability insurance on behalf of HKDDN which covered 2 places in Central N N for the period from 1st to 3rd October 2014.49 O O 227. Mr. Lo gave evidence that he told the police at the meeting on P P th 24 September 2014 that he intended to pack up and leave Chater Garden Q and Statute Square by 11:59 p.m. on 3rd October 2014. At one point I was Q puzzled by Mr. Lo’s evidence on this issue given that he had been assisting R R D3 in his work relating the OCLP since 2013, but then the aforesaid S evidence of Mr. Lo made more sense to me when understood in the light S T T 48 Exhibit D3-1 49 Exhibit D2-13 U U V V  - 69 - A A B B of his evidence that he was responsible for the lawful aspect of the OCLP, C i.e. he was not to be involved in the part of OCLP that would involve C breaking the law for the purpose of civil disobedience. D D E 228. I accept Mr. Lo’s evidence that Mr. Chan Hung was an E executive committee member if the Hong Kong Professional Teachers’ F F Union. It is Mr. Lo’s evidence that Mr. Chan Hung had never informed G him of the Letter of Prohibition.50 In my judgment, whether Mr. Lo was G aware of the existence of Exhibit P153 is not crucial to the determination H H of the disputed issues in this case. As the events unfolded, the proposed I public meeting on 1st to 3rd October 2014 did not take place. In my I judgment the proof of the element “not warranted by law” required for the J J offence of public nuisance does not depends on the existence of Exhibit K P153. K L L 229. Given the fact that Mr. Lo had been assisting D3 in his work M relating to the OCLP since 2013 and was aware of the OCLP advocated by M D1 to D3, notwithstanding the fact that Mr. Lo was only responsible for N N the lawful aspect of the OCLP, e.g. the taking out of the insurance policy O and attending meeting with the Police, I reject the evidence of Mr. Lo that O he did not know D1 to D3 had the intention to stay beyond the notified P P period. The duration of the public meeting as stated in Exhibit D3-1 could Q not have been the duration of the meeting in Mr. Lo’s mind, Exhibit D3-1 Q only states the duration of the notified public meeting, clearly Mr. Lo knew R R that it was the intention of D1 to D3 to stay beyond the notified period. S S T T 50 Exhibit P153 U U V V  - 70 - A A B B DW5 Cardinal Joseph Zen Ze Kiun C C 230. The evidence of Cardinal Joseph Zen was not challenged by D D the Prosecution and D4 to D9. E E 231. I accept as true and reliable Cardinal Zen’s evidence as to his F F participation in the OCLP movement and how he took part in the G organization of a civil referendum, the putting forward of a “veto G proposal”, the walkathon and his support for the class boycott organised by H H students in September 2014. I I 232. I accept as true and reliable what he testified he did and J J witnessed at Tim Mei Avenue between 27th and 29th September 2014. After K D1 to D3 (“the Trio”) announced the commencement of the Occupy K Central Movement at 1:33 a.m., Cardinal Zen saw students disagreeing L L with the announcement and accusing the Trio had hijacked the student M movement. M N N 233. I accept as true and reliable Cardinal Zen’s evidence as to his O subsequent visits to the site after 29th September 2014 and his view of the O development of the movement. Cardinal Zen was worried that no one was P P leading and no one was in control. Q Q 234. There is nothing to cause me to doubt the evidence of Cardinal R R Zen that the Trio impressed him as very devoted persons. S S T T U U V V  - 71 - A A B B DW6 Professor Lee Lap Fung Francis C C 235. Professor Lee gave evidence as an expert witness on matters D D relating to public survey. His professional qualifications are set out in E detail in Exhibit D2-14. E F F 236. Professor Lee, with the help of some student helpers, G conducted two surveys during the occupation movement in October and G November 2014. H H I 237. The survey in October 2014 was conducted on 4th and 5th I October 2014 and the one in November 2014 was conducted on 2nd J J November 2014. The survey methodology is set out in Exhibit D2-15. K Exhibit D2-17 is the survey result of the October survey and Exhibit D2- K 19 is the survey result of the November survey, both titled “Basic L L Information about the Studies”. M M 238. In the questionnaires used in the two surveys enclosed in the N N section 65DA statement, 51 various reasons for participation in the O occupation movement were provided and an interviewee was asked to O weigh the importance of each of the reasons. Six options were given for P P each reason: “Very Important”, “Important”, “Average”, “Not Important”, Q “Very Unimportant” and “Don’t Know”. Q R R 239. For the October survey, a total of 969 interviewees were S interviewed; for the November survey, 273 interviewees. The results of S the two surveys show that 6.2% and 7.7% of the interviewees gave “Call T T 51 Exhibit D2-16 U U V V  - 72 - A A B B from OC Trio” (D1 to D3) as a reason for their participation in the C occupation movement in October and November 2014 respectively. In the C survey questionnaires, these 6.2% and 7.7% indicated that they turned up D D in Admiralty because they considered the “Call from OC Trio” Very E Important. E F F 240. At the request of the Prosecution, Professor Lee also complied G Exhibit D2-19. The first two Pg. of D2-19 are the same as Exhibit D2-17. G Professor Lee stated that he would not consider an answer of “Don’t H H Know” to a question asked a valid answer for the reason that there might I have been many reasons why people chose an answer of “Don’t Know”. I Professor Lee also stated that if an interviewee chose “Average” as an J J answer to a relevant question, he would not see it as a reason for K participation as the interviewee did not recognise it as important. K L L 241. Professor Lee agreed that it is possible to include in his results M interviewees who chose “Important” and “Very Important” for an item. M N N 242. Professor Lee also agreed that if one were to gauge the O ineffectiveness of a particular reason, one could look at the percentage of O people choosing “Very Unimportant” for it, it would be another way to P P look at the data. Q Q 243. I find Professor Lee’s evidence as to how the two surveys R R were conducted in October and November 2014 honest and reliable. The S only issue is what weight that the survey results should carry. S T T U U V V  - 73 - A A B B 244. Given Professor Lee’s evidence that it is possible to include C in his results interviewees who chose “Important” and “Very Important” C for an item, the use of the answers “Very Important” but the answers D D “Important”, in my judgment, would give a very incomplete picture. The E absence of the data of the interviewees who chose “Not Important” and E “Very Unimportant” adds to the incompleteness of the picture. F F G 245. Some of the reasons listed out in the questionnaires were also G expressly or implicitly advocated by D1 to D3 in their speeches or the H H literature in relation to the OCLP placed before the court, e.g. “Fight for I election”, “Fight for civil nomination”, “Protect Hong Kong’s liberty”, I “Support and protect students” and “Empower the Movement”. In all the J J speeches made by D1 to D3 and the literature in relation to the OCLP, D1 K to D3 never asked the public to take part in the OCLP or any occupation K movement because of the call from the Trio. In my judgment, it cannot be L L reasonably argued that because the percentage of those who considered M “Call from OC Trio” as a very important reason for their participation in M the occupation movement was low, therefore at the material times, D1 to N N D3 did not have the intention or could not have the intention to conspire to O cause a public nuisance. O P P 246. Of the 14 reasons given in the questionnaires, they can be Q divided into two group. Q R R 247. The first 8 reasons, ie “Fight for election without filter”, S “Fight for civil nomination”, “Protect Hong Kong’s liberty”, “The use of S tear gas”, “Police’s handling of the protest”, “Support and protect T T students”, “Empower the movement” and “Experience mass protests”, U U V V  - 74 - A A B B concern the reasons that motivated an interviewee to participate in the C movement. C D D 248. The remaining 6 reasons, i.e. “Mobilized by friends”, E “Mobilized by family members”, “Call from HKFS”, “Call from OC Trio” E and “Call from other organizations” concern by whom/organization an F F interviewee was motivated to participate in the movement. G G 249. In my judgment, these two group of reasons cannot be H H compared like-for-like. The amalgamation of these 2 groups of I conceptually different reasons yields an unintended result which, at best, I cannot not reflect the true picture, and at worst, is a contortion of the truth. J J K 250. The same analysis applies to the incitement charges and other K defendants in as much as reliance is placed on the survey results. It should L L be noted that two of the 14 reasons, i.e. “Mobilized by friends” and M “Mobilized by family relatives” are consistent with the case of Prosecution M that there were incitements to cause public nuisance and incitements to N N incite public nuisance by the defendants. O O 251. In any event, when D1 to D3 announced the launch of the P P Occupy Central movement at 1:36 a.m. on 28th September 2014, they did Q not have the benefit of seeing the survey results of Professor Lee. What Q they intended to achieve and what they thought they could achieve was not R R based on the survey results. S S 252. For the above reasons, I attach no weight to the survey results. T T U U V V  - 75 - A A B B DW7 Mr. Au Kwok Kuen C C 253. Mr. Au was a full-time committee member of the Land Justice D D League, a local non-governmental organization. He was responsible for E assisting Scholarism and HKFS to arrange for audio systems and stages E used for the public meeting at Tim Mei Avenue on 26th September 2014. F F He also assisted in arranging civil classes at Tim Mei Avenue on that day. G He walked around the vicinity of Tim Mei Avenue to see to it that the G classes were run smoothly. H H I 254. I accept Mr. Au’s evidence that the video footage in Exhibit I D6-1 and the photographs in Exhibits D6-2A and D6-2B show the events J J that took place in the afternoon or evening of 26th September 2014. K K 255. I accept Mr. Au’s evidence that the northbound lane and L L southbound lane of Tim Mei Avenue were closed by the Police in the M afternoon and in the evening of 26th September 2014. Mr. Au’s evidence M about the closing of the northbound carriageway is consistent with the N N evidence of PW2, who ordered the closure of the northbound lane at 5:30 O p.m. on 26th September 2014. It is not clear whether the Police closed the O carriageways because of Mr. Au’s requests to Station Sergeant Ma but P P from the evidence of PW2 and Mr. Au, it is clear that the closure of the Q northbound and southbound lane of Tim Mei Road was due to safety Q reasons as many protestors had walked onto the carriageway of Tim Mei R R Avenue. S S T T U U V V  - 76 - A A B B CONSIDERATION C C CIVIL DISOBEDIENCE D D E 256. It is the case of D1 to D3 that the OCLP that they planned was E a civil disobedience movement. It is the case of all 9 defendants that the F F occupy movement that happened on 27th and 28th September 2014 and G thereafter at and in the neighbourhood of Tim Mei Avenue was a civil G disobedience movement. H H I 257. My attention is drawn to the judgment of the Court of Final I Appeal in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 34. J J At Para. 70 of the judgment, the Court of Final Appeal endorsed the K definition of civil disobedience put forward by John Rawls in A Theory of K Justice (Revised Edition 1999) at Pg. 320:- L L M Civil disobedience is “a public, nonviolent, conscientious yet M political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.” N N 258. My attention is also drawn to a passage of Lord Hoffmann’s O O judgment in R v Jones (Margaret) [2007] 1 AC 136. At Para. 89 of the P judgment, Lord Hoffmann said:- P Q Q “civil disobedience on conscientious grounds has a long and honourable history in this country.” R R S In Wong Chi Fung, the Court of Final Appeal with Lord Hoffmann as the S non-permanent judge accepted the concept of civil disobedience is equally T T recognized in Hong Kong. U U V V  - 77 - A A B B C 259. D2 stressed in his evidence that the Trio had borne in mind C the concept of proportionality throughout their civil disobedience D D movement, be it at the time they planned to launch at Chater Road in E October 2014 or when they announced to launch Occupy Central at Tim E Mei Avenue on 28th September 2014. F F G 260. On the issue of proportionality, it should be noted that in G Wong Chi Fung, the Court of Final Appeal further cited a passage of Lord H H Hoffmann’s judgment in R v Jones (Margaret), “[T]here are conventions I which are generally accepted by the law-breakers on one side and the law I enforcers on the other. The protestors behave with a sense of proportion J J and do not cause excessive damage or inconvenience. And they vouch the K sincerity of their beliefs by accepting the penalties imposed by law.” K L L 261. It should be noted that, much as the defendants rely on the M concept of civil disobedience, civil disobedience does not constitute any M defence to a criminal charge brought against a defendant. Even if a N N defendant is prosecuted for an offence committed in the course of civil O disobedience, civil disobedience is not a defence in law. It is no function O of the court to adjudicate the merits of the political cause behind the civil P P disobedience in the trial. The court should focus on the ingredients of the Q offence and the issues in dispute. Q R R 262. Dr McCoy SC submitted that the Trio’s purpose of “civil S disobedience” was to cause a “civic awakening” and not to “paralyse” the S city, as D2 stated in 2 articles published in Ming Pao52 published on 4th T T 52 Exhibit D2-3 and D2-5 U U V V  - 78 - A A B B March 2013 and 23rd August 2013 respectively. In both articles, D2 C emphasized that it was not the objective of the movement to paralyze C Central or the financial hub of the city. D D E 263. In the press conference of 27th March 2013, when answering E questions from the press, D2 said amongst other things:- F F “…many people feel that we want to paralyze Central….So, G actually, if he/she is not going to let Central be paralyzed, it is G actually very easy (to do so)/He/She just arrests us and that’ll do.”53 H H I 264. As Lord Hoffmann pointed out in R v Jones (Margaret) I proportionality in the context of civil disobedience requires the protestors J J to behave with a sense of proportion and not to cause excessive damage or K inconvenience. There is a big difference between (i) calling for restraint K on the part of protestors that they should behave with a sense of proportion L L and not to cause excessive damage or inconvenience and (ii) that the M obstruction caused should not lead to paralysis of a district or financial hub. M For the offence of public nuisance, the obstruction caused does not have to N N be severe enough to paralyze a district or a financial hub, the test is a much O lower threshold of reasonableness. O P P 265. What D2 wrote in Exhibits D2-3, D2-5 and what he said in Q Exhibit P100 show that at the times he wrote the articles and spoke on the Q subject, he was harbouring the thought that any obstruction that the OCLP R R would cause would be proportionate as long as Central would not be S paralyzed as a result. S T T 53 Exhibit P100, page 603 U U V V  - 79 - A A B B 266. In another article published in Ming Pao, D2 wrote:- C C “The interference caused by civil disobedience may be greater D than regular demonstrations, and participants must think about D the balance between that and the damage of other people’s rights. In this regard, in addition to adhering to the principle of E non-violence (not subjecting law enforcers and opponents to E physical and verbal attacks) and being willing to bear legal consequences to avoid harming the rule of law, civil F F disobedience must prove that its appeal is in accordance with the principle of justice, and that its influence on others must be G ‘proportionate’ so as to avoid excessive interference.”54 G H 267. What D2 wrote in mid-November 2014 about proportionality H in civil disobedience was in line with what Lord Hoffmann said in R v I I Jones (Margaret). It should be noted, however, that Exhibit D2-12 was J published on 18th November 2014, when in a fortnight’s time, the Trio were J to announce the cessation of Occupy Central movement. K K L L 268. Under cross-examination, D2 said:- M M “To arouse public attention. But causing disruption was not the N core of civil disobedience. The most important part was self- N sacrifice. Because if you are merely causing disruption, you did not have to do it using civil disobedience. So it already implied O that the disruption we caused had to be proportionate. By O achieving the goal of arousing public attention, that would be very enough.” P P Q 269. D2 did not, however, explained what he meant by Q ‘proportionate’. He shed some light on what he meant by proportionate R R disruption when he admitted that once occupation of public road started, S there must be inconvenience. He also accepted that Chater Road, as a S major thoroughfare, was more busy than Tim Mei Avenue. D2 said the T T 54 Exhibit D2-12 U U V V  - 80 - A A B B plan of the Trio was to occupy the designated pedestrian zone and hence C the redirection of traffic would not be too serious. D2 further said that they, C i.e. the Trio anticipated disruption but not the entire area being D D paralyzed. In my judgment, the articles written by D2 in relation to the E OCLP, 55 what D2 said in Exhibit P100 and his evidence under cross- E examination show that at the time when the Trio were considering the F F impact of the occupation would have on the traffic, even if they had in mind G the concept of proportionality, the test/yardstick they used was whether the G area would be paralyzed by the occupation. The test/yardstick they used H H was totally wrong. They planned to launch the Occupy Central movement I at Chater Road and they considered the impact of the occupation would be I acceptable as long as Central/the financial hub would not be paralyzed. In J J my judgment, that was not what Lord Hoffmann meant by the protestors K should act with restraint and they should behave with a sense of proportion K and not to cause excessive damage or inconvenience. It was only until L L 18 November 2014 that D2 spoke of proportionality in a way that was in M line with Lord Hoffmann’s statement in R v Jones (Margaret) i.e. the M influence on others must be proportionate, so as to avoid excessive N N inconvenience to others. In my judgment, the awakening came much too O late. O P P 270. It should be noted that whilst Wong Chi Fung was decided in Q 2018, i.e. after the occurrence of all the relevant events in the present case, Q R v Jones (Margaret) was decided in 2007. R R S 271. On 27th and 28th September 2014, when D1 to D3 called for S the over-cramming of Admiralty and Central and announced to launch the T T 55 Exhibits D2-2 and D2-3 U U V V  - 81 - A A B B Occupy Central movement at Tim Mei Avenue, though the Trio C emphasized that the purpose of the movement was fight for universal C suffrage for the election of the Chief Executive of the HKSAR and the D D movement was a non-violent one, there was no sense of proportion in the E scale of occupation in the plea to occupy CGO, Admiralty and Central. I E am sure the Trio knew that excessive inconvenience would necessarily be F F caused to the general public as a result of the large scale occupation. G G 272. After 28th September 2014, the occupation movement H H continued until 11th December 2014. The Trio did not severe their I participation in the movement until 2nd December 2014. As the movement I continued, D1 to D3 were able to see the excessive obstruction and J J inconvenience caused by the occupation of public places and roads in and K in the neighbourhood of Central. K L L 273. As said, civil disobedience is not a defence to a criminal M charge. M N N 274. D2 and D3 submitted that it was all along the emphasis of the O OCLP to take legal responsibility and allow oneself to be arrested. It was O also submitted that at no stage was there ever an intention to prolong P P conflict with arresting authorities by engaging in confrontation or Q resistance (Para. 63 of D2 and D3’s Closing Submissions). Q R R 275. In my judgment, the way a participant should allow oneself to S be arrested as advocated by the OCLP means that it would require several S officers to lift one protestor and move him/her to a police vehicle to effect T T an arrest. Given the estimated number of participants for the movement at U U V V  - 82 - A A B B Chater Road and the number of people at Tim Mei Avenue on 27th and 28th C September 2014, it would be wholly unrealistic to suggest that the Police C would be able to arrest all the protestors within one or two days. Whilst D D the Trio did not have an intention to prolong conflict with arresting E authorities by engaging in confrontation or resistance, they certainly E intended to prolong the time required for the arrest action. The evidence F F of PW6 shows that it had taken the police almost 5 hours to arrest 242 G people on 11th December 2014. G H H 276. It is also unrealistic to suggest that “should tens of thousands I turn out to Occupy Central, the primary concern of the authorities would I not be a matter of arresting or dispersing the protestors. It would be a J J matter of moving towards introducing genuine universal suffrage and K therefore removing any further need to cause disruption in accordance with K the proportionality principle”. It is naïve to suggest that a concession to L L introduce the form of universal suffrage advocated by the Trio could be M made by the government overnight with a click of fingers, it is equally M naïve to suggest a mass protest of tens of thousands of people could be N N dispersed overnight even if a positive response were to come from the O authorities. There is no basis to suggest that should tens of thousands turn O out to Occupy Central, “that mass expression of resolve was anticipated to P P have been sufficient to achieve the desired result and therefore removing Q any further need to cause further disruption in accordance with the Q proportionality principle”. R R S 277. D2 drew reference from the Anti-National Education protests S and said the only foreseeable outcome of a tens of thousands turnout was T T that the government would accede to the wishes of the people. In my U U V V  - 83 - A A B B judgment, the reference to Anti-National Education protests is not an apt C one. The subject matters of protests were entirely different. D2 had no C basis to assume that the government’s reactions to the large turnout in the D D Anti-National Education protests and an equally large or even larger E turnout in the protest in relation to the election of the Chief Executive of E the HKSAR would be the same. F F G 278. In considering the offences that concern this case, i.e. G “Conspiracy to cause public nuisance”, “Incitement to cause a public H H nuisance” and “Incitement to incite a public nuisance”, which all concern I the common law offence of public nuisance, I have to consider the I application of the reasonableness test expounded in Yeung May Wan and J J in the context of obstruction caused as a result of a peaceful demonstration, K I have to bear in the forefront of my mind the protection given by the Basic K Law to the right to peaceful demonstration and give it substantial weight L L in the balancing exercise. M M APPROPRIATENESS AND CONSTITUTIONALITY OF THE CHARGES N N O The Use of the Common Law offence of Public Nuisance Instead of O Appropriate Statutory Offences P P Q 279. It is contended that the Prosecution should not bring charges Q of public nuisance when there are appropriate statutory offences that can R R be used against the defendants. D1 cited the judgment of Lord Hoffmann S in R v Jones (Margaret) and submitted that prosecutors have conventions S to follow in a case of civil disobedience and should behave with restraint. T T D1 also cited a passage of “Public Nuisance – A Critical Examination,” U U V V  - 84 - A A B B Cambridge Law Journal 48(1), March 1989, pp 55-84, at p 77 by J R C Spencer. The learned author observed in the article that:- C D D “…almost all the prosecutions for public nuisance in recent years seem to have taken place in one or two situations: first, E where the defendant’s behaviour amounted to a statutory offence, E typically punishable with a small penalty, and the prosecutor wanted a bigger or extra stick to beat him with, and secondly, F where the defendant’s behaviour was not obviously criminal at F all and the prosecutor think of nothing else to charge him with.” G G 280. The above criticisms of J R Spencer were endorsed by Lord H H Bingham in Rimmington at Para. 37 of the judgment. I I 281. It is trite law that the preferring of charges is the sole J J prerogative of the Prosecution. K K 282. The common law offence of public nuisance covers a diverse L L range of activities, including obstructing public highways. Other examples M of public nuisance include carrying on an offensive trade, keeping a M disorderly house, selling food unfit for human consumption and throwing N N fireworks about in the street. It is true that in many cases such conduct will O now be covered by a specific statutory offence and where this is so a O criminal prosecution should normally be brought for that rather than at P P common law. Having said that, one can easily contemplate a scenario Q where a charge of statutory offence cannot adequately reflect the serious Q consequences of the conduct under complaint, take the example of R R throwing of fireworks about in the street, if the act had led to catastrophic S result to the public, a charge of public nuisance cannot be said to be S inappropriate. Dr. McCoy SC, with his usual fairness, drew my attention T T to the recent decision in R v Stockli [2018] 1WLR 5609 (CA) the England U U V V  - 85 - A A B B Court of Appeal examined the statement in Rimmington that a charge of C public nuisance should not be brought when other lesser crimes were C available, but held that in the case before it, it was appropriate to bring the D D charge of public nuisance. E E 283. In my judgment, whether the prosecutor can “beat a convicted F F defendant with a bigger or extra stick” in the event of conviction depends G on the findings of the court on the culpability of a convicted defendant. It G cannot be said just because a charge of public nuisance is used, a prosecutor H H can use a bigger or extra stick to beat the defendant in the event of a I conviction. I J J 284. In my judgment, if the Prosecution takes the view that the case K it seeks to prove reveals a level of culpability so high that calls for a K punishment that no appropriate statutory offence can meet, the Prosecution L L is entitled to use the common law offence of public nuisance. Whether M there is sufficient evidence to prove the charge and whether the facts M proved revel the level of culpability that the Prosecution contends are of N N course different matters. O O Conspiracy to Cause a Public Nuisance P P Q 285. It is contended that the common law offence of public Q nuisance, when used in amalgamation with the concept of criminal R R conspiracy in cases concerning freedom of expression, freedom of speech, S freedom of procession and freedom of demonstration, could have the effect S of curtailing a free exercise of these rights. T T U U V V  - 86 - A A B B 286. In Rimmington, the House of Lords decided that the common C law offence of public nuisance meets the requirement of certainty C prescribed by the European Convention on Human Rights. D D E 287. The offence of public nuisance requires proof that the E obstruction under complaint is “not warranted by law”. In the context of F F the offence of public nuisance, applying the reasonableness test of Yeung G May Wan, an obstruction could not be said to be “unwarranted by law” if G it is a reasonable use of the highway or public places. H H I 288. In Yeung May Wan, the Court of Final Appeal held that the I application of the reasonableness test in any case of obstruction is J J essentially a question of fact and degree depending on all the K circumstances, including the extent and duration of the obstruction, the K time and place where the obstruction occurs, as well as the purpose for L L which the obstruction is done. M M 289. Relevant to the constitutional challenge in the present case is N N that in Yeung May Wan, the Court of Final Appeal held that, where the O obstruction in question results from a peaceful demonstration, in applying O the reasonableness test, the court should recognize the protection given by P P the Basic Law to the right to peaceful demonstration and give it substantial Q weight in the balancing exercise. In Para. 44 of the judgment, the Court of Q Final Appeal reckoned that in assessing the reasonableness of the R R obstruction, while the interests of those exercising their right of free S passage along the highway obviously remain important, and while exercise S of the right to demonstrate must not cause an obstruction exceeding the T T bounds of what is reasonable in the circumstances, such bounds must not U U V V  - 87 - A A B B be so narrowly defined as to devalue, or unduly impair the ability to C exercise, the constitutional right. C D D 290. In order words, if the obstruction in question is the result of a E peaceful demonstration, the “not warranted by law” element requires the E court to consider and recognise the protection given by the Basic Law to F F the right to peaceful demonstration and give it substantial weight in the G balancing exercise. On the other hand, if the demonstration is not a G peaceful one, then it would not have the protection given by the Basic Law. H H 291. In applying the reasonableness test to the facts of this case, I I I have borne in mind the protections given by the Basic Law to civil liberties. J Article 27 of the Basic Law provides that: “Hong Kong residents shall have J freedom of speech, of the press and of publication; freedom of association, K K of assembly, of procession and of demonstration; and the right and L freedom to form and join trade unions, and to strike”. L M M 292. I do not see how the offence of conspiracy to cause a public N N nuisance could have the undesirable effect of curtailing or suppressing civil O disobedience at its formation stage or suppressing human rights as the O defendants allege. If the agreement under complaint is one to occupy P P public roads by way of peaceful demonstration which would result in Q obstruction, if the Prosecution fails to prove the element of “not warranted Q by law”, the offence of conspiracy to cause a public nuisance cannot be R R made out. If the Prosecution is able to prove that if the agreement under S complaint is carried out in accordance with the intentions of the defendants, S the demonstration in question would result in obstruction which is T T unreasonable according to the reasonableness test, and hence not warranted U U V V  - 88 - A A B B by law, those who are in the agreement cannot complain if a charge of C conspiracy to cause public nuisance is brought against them. The court in C determining whether the obstruction is unreasonable, is required to have D D the protection given to peaceful demonstration given by the Basic Law in E the forefront of its consideration. It cannot be reasonably argued that a E charge of conspiracy to cause public nuisance would generate a chilling F F effect in society, and many legitimate speeches will be silenced. G G Incitement to Commit a Public Nuisance and Incitement to Incite a Public H H Nuisance I I 293. Mr. Pang SC for D5 argued that the offences of “Incitement J J to commit public nuisance” and “Incitement to incite public nuisance” are K unconstitutional. Mr. Pang SC’s complaints are:- K L L (1) The offences are not sufficiently certain as to be M “prescribed law” (Para. 89 to 106 of D5’s Closing M Submissions) in that the offence of incitement is N N complete at the time of the incitement regardless of its O actual effect and consequence whereas the offence of O public nuisance is a result-based offence, whether an P P act under complaint amounts to a public nuisance is a Q question of fact contingent on all the known Q circumstances surrounding the act under complaint. It R R is impossible for an inciter to know or foresee at the S time of the incitement that public nuisance was the S subject of his communication with the incitee, thus both T T offences of “Incitement to commit public nuisance” U U V V  - 89 - A A B B and “Incitement to incite public nuisance” would C offend the requirement for legal certainty as the inciter C could not have regulated his conduct in advance to D D prevent criminal liability. E E (2) The offences violate the “principle of non-retroactivity” F F of criminal law (Para. 107 to 111 of D5’s Closing G Submissions). It is submitted that in any case of the G prosecution charging an incitement to commit public H H nuisance, the judge is required to look beyond the I words uttered by the defendant and take into I consideration what had actually occurred after the J J alleged incitement. In the present case, the Prosecution K is asking the court to take into consideration the actual K circumstances of the protests/demonstrations up until L L 11th December 2014, which is after the relevant period M of the alleged incitement of D5, i.e. the period between M 27th and 28th of September 2014, to determine the N N content and the scope of the incitement under complaint. O Mr. Pang SC submitted that the offences of “Incitement O to commit public nuisance” and “Incitement to incite P P public nuisance” together with the use of the Q application of the evidence of what happened after the Q alleged incitement necessarily lead to the extension of R R criminal liability to cover conduct which is not criminal, S contrary to the principle of non-retroactivity under S Art 12 of the BOR. T T U U V V  - 90 - A A B B (3) As a result of (1) and (2), there would be a Draconian C “chilling effect” on the exercise of the fundamental C rights to freedom of speech and freedom of free D D expression (Para. 112 of D5’s Closing Submissions). E “Incitement to commit public nuisance” and E “Incitement to incite public nuisance.” F F G G 294. Mr. Dykes SC adopted Mr. Pang SC’s submissions and H H further submitted that the present case is the first time in Hong Kong that I the offence of incitement to commit public nuisance and incitement to I incite public nuisance had been used against factual situations concerning J J the exercise of a constitutional right to peaceful assembly. Courts should K therefore be very slow to find that such a hybrid of a common law offence K and inchoate offences would be precise enough to cover the new factual L L situation. M 295. Mr. Choy SC for D9 took issue with the legality of the M offences of causing public nuisance and incitement to commit public N N nuisance in Para. in 52 to 57 of D9’s Closing Submissions. O O 296. Mr. Choy SC submitted that to charge a defendant with the P P offence of causing public nuisance for the disruption caused in a mass Q demonstration when, in particular, the defendant is not a position to know Q all the circumstances, curtails citizens’ right to demonstrate and assembly R R in a vague and uncertain manner and fall foul of the “prescribed by law” S requirement for not being formulated with any precision or clarity as S regarded to the individual defendant’s conduct or knowledge. T T U U V V  - 91 - A A B B 297. Mr. Choy SC further submitted that the problem is C compounded when the offence of public nuisance is used together with the C inchoate offence of incitement. Mr. Choy SC questioned when the line be D D crossed between “inciting demonstration”, which is perfectly legal, as E opposed to “inciting public nuisance.” A vaguely defined charge of E incitement to commit public nuisance risks imposing a burden on F F organisers and participants of demonstration. G G 298. As said, the House of Lords held in Rimmington that the H H common law offence of public nuisance meets the requirement of certainty I prescribed by the European Convention on Human Rights. The House of I Lords held that the definition of the offence was clear, precise, adequate J J and based on a rational discernible principle so that it had the certainty and K predictability to meet the requirement of legal certainty. It should be noted K that the ruling in Rimmington was applied by the Court of Final Appeal in L L Leung Tsang Hung v Incorporated Owners of Kwok Wing House (2007) M 10 HKCFAR 480, albeit in civil context. M N N 299. In my judgment, there is no basis for the submission that the O offence of public nuisance in the context of disruption caused in a mass O demonstration would fall foul of the “prescribed by law” requirement. As P P stated before, whether an obstruction under complaint goes beyond what is Q reasonable and amounts to a public nuisance that involves a common Q injury, the reasonableness test as laid down in Yeung May Wan requires R R that all the circumstances of the obstruction, including the extent, duration, S time, place and purpose of the obstruction should be taken into S consideration. Hence, for the common law offence of public nuisance, if T T the obstruction under complaint was the result of a peaceful demonstration, U U V V  - 92 - A A B B in determining whether the obstruction under complaint was unreasonable, C the entire circumstances of the obstruction, including the extent, duration, C time, place and purpose of the obstruction should be taken into D D consideration. E E 300. It was held in Rimmington that the actus reus of the offence of F F public nuisance requires proof that:- G G (a) Doing an act not warranted by law, or omitting to H H discharge a legal duty; and I I (b) The effect of such act or omission was to endanger the J J life, health, property or comfort of the public, or to K obstruct the public in the exercise of rights common to K everyone L L M 301. The actus reus required is the same whether the act under M complaint is one of carrying on an offensive trade, keeping a disorderly N N house, selling food unfit for human consumption and throwing fireworks O about in the street or obstructing public highway as result of demonstration. O P P 302. It was held in Rimmington that the mens rea required for the Q offence of public nuisance requires proof that the accused knew, or ought Q to have known (because the means of knowledge were available to him) R R the consequence of what he did or omitted to do. In my judgment, there is S nothing imprecise or unclear about the mens rea required for the offence of S public nuisance in the context of obstruction resulted from a mass T T demonstration. U U V V  - 93 - A A B B C 303. For the requirement that “the suffering must be the suffering C of common injury by members of the public by interference with rights D D enjoyed by them as such”, the principle is trite and well settled. As Lord E Bingham pointed out in Para. 6 of the judgment in Rimmington, E interference with the use by members of the public of a public highway is F F the most typical example of common injury. In my judgment, there is G nothing in the complaint that the use of the common law offence of public G nuisance in for disruption or obstruction resulted from mass demonstration H H falls foul of “prescribed by law” requirement. I I 304. Mr. Leung SC is right to point out that for the offences of J J “Incitement to commit public nuisance” and “Incitement to incite public K nuisance”, the respective mental requirements do not depend on the K circumstances of any subsequent obstruction actually caused by the incitee. L L The Prosecution made it clear that the evidence of PW6 as to what M happened after 28th September 2014 was adduced to show the M consequences of the offences which are relevant to the culpability of the N N accused. For the respective mental requirements for the offences of O “Incitement to commit public nuisance” and “Incitement to incite public O nuisance”, I agree with Mr. Leung SC that the focus should be on the P P intention on the part of the incitor at the time when the incitement is made. Q It was held in HKSAR v Jariabka Juraj [2017] 2 HKLRD 266, the actual Q intention on the part of the incitee is entirely irrelevant. In my judgment, R R there is nothing in the complaint that the offences of “Incitement to commit S public nuisance” and “Incitement to incite public nuisance” offend the S principle against retroactivity. T T U U V V  - 94 - A A B B 305. The actus reus and mens rea required for the offence of C “Incitement to commit public nuisance” are that of the person charge, C i.e. the incitor; so is the offence of “Incitement to incite public nuisance”. D D There is nothing uncertain about the elements of the offences. The legal E principles on inchoate offence of incitement and the common law offence E of public nuisance are well settled. The consideration of the offences of F F the offences of “Incitement to commit public nuisance” and “Incitement to G incite public nuisance” involves an application of some well settled legal G principles. H H I 306. I agree with the analysis of the Prosecution that, once the I elements for the offences of “Incitement to commit public nuisance” and J J “Incitement to incite public nuisance” are properly understood, the issue K for the offence of “Incitement to commit public nuisance” is whether, at K the time the incitement is made, the defendant (the incitor) intends or L L believes that if the incitee (B) does the act incited under the circumstances M that are known or believed by the defendant (the incitor), the incitee (B) M would commit the offence of public nuisance with the requisite mens rea. N N For the offence of “Incitement to incite public nuisance”, the issue is O whether, at the time of the incitement, the defendant (the incitor) intends O or believes that if the incitee (B) does the act incited under the P P circumstances that are known or believed by the defendant (the incitor), Q the incitee (B) would commit the offence of incitement with the requisite Q mens rea, namely, that the incitee (B) intended to incite another person or R R persons (C and so on), knowing that those other person(s), if they acted S upon the incitee’s (B) incitement, would commit the offence of public S nuisance. T T U U V V  - 95 - A A B B 307. Both arguments (1) and (2) of Mr. Pang SC fail for the reasons C given, it follows that argument (3) also fails, the offences do not give rise C to any “chilling effect” on the exercise of the fundamental rights to freedom D D of speech and freedom of peaceful assembly. E E 308. The constitutional challenge to the offences of “Incitement to F F commit public nuisance” and “Incitement to incite public nuisance” thus G fail for the above reasons. G H H PROPORTIONALITY I I 309. Mr. Choy SC submitted that “a blanket criminalization of J J demonstrators who have participated in a demonstration that caused K unreasonable obstruction is a disproportionate means to attempt to deal K with the disruptive impact of a demonstration” (Para. 65 of D9’s Closing L L Submissions). D9 contends that a very onerous burden would be placed M on individual demonstrators if a demonstration can cause no more than M “reasonable” obstruction. N N O 310. The Court of Final Appeal held in HKSAR v Chow Nok Hang O (2013) 16 HKAFAR 837 that P P Q “38. Article 17 allows a line to be drawn between peaceful Q demonstrations (where, as noted above, full rein is given to freedom of expression) and conduct which disrupts or threatens R R to disrupt public order, as well as conduct which infringes the rights and freedoms of others… S S 39. Once a demonstrator becomes involved in violence or the threat of violence – somewhat artificially referred to as a “breach T of the peace” – that demonstrator crosses the line separating T constitutionally protected peaceful demonstration from unlawful U U V V  - 96 - A A B activity which is subject to legal sanctions and constraints. The B same applies where the demonstrator crosses the line by C unlawfully interfering with the rights and freedom of others. C ….. D D 42. Lines also have to be drawn where a demonstrator’s conduct E impinges unacceptably upon rights of others (which may or may E not be constitutionally protected rights) Such a line had to be drawn, for instance, in Yeung May Wan v HKSAR, where the F Court had to decide whether the offence of obstructing a public F place was properly applied so as to curtail a static, peaceful demonstration by a small group of Falun Gong protestors which G G obstructed only part of the pavement, on the basis that they were interfering with the rights of other users of the public highway…” H H 311. It is clear from the judgment of the Court of Final Appeal in I I Yeung May Wan and Chow Nok Hang that when the obstruction under J complaint is the result of a demonstration, the “reasonableness” test only J applies if the demonstration is a peaceful one which does not involve K K violence or threat of violence (“breach of the peace”). In the presence case, L the Prosecution does not contest the demonstration that took place was a L peaceful one. In fact it is because the demonstration in the present case M M was a peaceful one that necessitates the consideration and application of N the reasonableness test. N O O 312. In my judgment, the reasonableness test in Yeung May Wan P has subsumed into it the consideration of proportionality. As said, it was P held in Yeung May Wan that a person who creates an obstruction could not Q Q be said to be acting “without lawful excuse” if his conduct involves a R R reasonable use of the highway or public places. S S 313. As stated above, the Court of Final Appeal held that the T T application of the reasonableness test in any case of obstruction is U U V V  - 97 - A A B B essentially a question of fact and degree depending on all the C circumstances, including the extent and duration of the obstruction, the C time and place where the obstruction occurs, as well as the purpose for D D which the obstruction is done. E E 314. In Yeung May Wan, the Court of Final Appeal had not F F overlooked the impact that the “reasonableness” test might have on mass G demonstrations. It was held that, where the obstruction under complaint G resulted from a peaceful demonstration, in applying the reasonableness H H test, the court should recognize the protection given by the Basic Law to I the right to peaceful demonstration and give it substantial weight in the I balancing exercise. The Court of Final Appeal further held that in J J assessing the reasonableness of the obstruction, while the interests of those K exercising their right of free passage along the highway obviously remain K important, and while exercise of the right to demonstrate must not cause an L L obstruction exceeding the bounds of what is reasonable in the M circumstances, such bounds must not be so narrowly defined as to devalue, M or unduly impair the ability to exercise, the constitutional right. N N O 315. I agree with the Prosecution’s submission in reply that the O application of the reasonableness test for the offence of public nuisance in P P respect of obstruction of public roads is a proportionate response to protect Q the exercise of the constitutional right to peaceful demonstration by the Q protestors on one hand, and on the other hand, the rights and freedoms of R R other members of the public. The protection of these competing interests S should be approached with care taken to balance the competing rights of S the protestors and the rights of other members of the public, and when the T T obstruction under complaint is resulted from a peaceful demonstration, in U U V V  - 98 - A A B B applying the “reasonableness” test, the court should not define the bounds C of reasonableness so narrowly as to devalue or unduly impair the ability to C exercise the constitutional right. D D E 316. In my judgment, a proper application of the reasonableness E test allows the right balance be struck between the competing rights of the F F protestors in a peaceful demonstration and the rights of other members of G the public without infringing the exercise of the constitutionally protected G rights of the protestors. The offences of “Conspiracy to commit public H H nuisance”, “Incitement to commit public nuisance” and “Incitement to I incite public nuisance” require proof of not only that the obstruction under I complaint has exceeded the bounds of reasonableness such that it falls J J outside the ambit of constitutionally protected right, the offences also K require proof of “a common injury to the public”. The deployment of these K offences in a case of mass demonstration does not constitute any “blanket L L criminalization”. M M 317. In my judgement, the offences of “Conspiracy to commit N N public nuisance”, “Incitement to commit public nuisance” and “Incitement O to incite public nuisance” satisfy the proportionality requirement for the O restriction of the fundamental rights to freedom of speech and freedom of P P peaceful assembly. Q Q THE EFFECT OF CORDONING OFF TIM MEI AVENUE BY THE R R POLICE ON 26 SEPTEMBER 2014 S S 318. The evidence of PW 2 shows that the west side (northbound) T T th carriageway of Tim Mei Avenue was cordoned off at 5:30 p.m. on 26 U U V V  - 99 - A A B B September 2014. PW2 decided to cordon off the northbound carriageway C because at that time there were many people walking onto the carriageway. C PW2 gave evidence that he made the decision after he had considered the D D number of people, the public safety and public order. He considered that E there was a need to close Tim Mei Avenue so that the public meeting could E be conducted safely. F F G 319. The evidence of DW7 Mr. Au shows that at around 8:30 p.m. G on 26th September 2014, the southbound carriageway of Tim Mei Avenue H H was also cordoned off by the Police. I I 320. Submissions were made by the defence that, because of the J J cordoning off of Tim Mei Avenue by the Police:- K K (i) The relevant defendant(s) could not have incited public L L nuisance by obstructing the vehicular passage of the M carriageways of Tim Mei Avenue; M N N (ii) The occupation of the carriageways by the participants O in the public meetings at Tim Mei Avenue was lawful; O P P (iii) The relevant defendant(s) who allegedly incited the Q crowds at Tim Mei Avenue to (i) commit public Q nuisance and (ii) incite others to commit public R R nuisance could not have the requisite mens rea to cause S unreasonable obstruction “not warranted by law”; S T T U U V V  - 100 - A A B B (iv) As the alleged incitements in respect of Charge 2 and C Charge 3 were made between 27th and 28th September C 2014, i.e. at a time when Tim Mei Avenue had already D D been cordoned off by the Police, it was impossible that E the offences of “Incitement to commit public nuisance” E and “Incitement to incite public nuisance” could have F F been committed by the relevant defendant(s). G G 321. The Prosecution submitted that the closure of the H H carriageways of Tim Mei Avenue has no bearing on the important issues I in this case. Mr. Leung SC submitted that the evidence shows that the I defendants were asking the people to go to Tim Mei Avenue through the J J alternative route from the Academy for Performing Arts, Wanchai. The K fact that the Police decided to block the passages from Admiralty to Tim K Mei Avenue was no reason or excuse for any member of the public to go L L through the relevant carriageways of Harcourt Road to Tim Mei Avenue M and stay thereon. M N N 322. In my judgment, the fact that the Police cordoned off the O carriageways of Tim Mei Avenue on 26th September 2014 should give no O reason or excuse for any member of the public to stay on the carriageways P P indefinitely. The closure of the carriageways of Tim Mei Avenue should Q not be taken as a carte blanche for the protestors to occupy the carriageways Q indefinitely. PW2 cordoned off the carriageways to enable the public R R meeting to carry on safely, not indefinitely. It should be noted that, on the S issue of the intended duration of the public meeting under complaint, Mr. S Pang SC submitted that as the Prosecution had clarified, upon the request T T of D5, the words “prolonged or indefinite period of time” referred to in the U U V V  - 101 - A A B B Opening mean an “undetermined period of time in the future”, the C Prosecution’s Closing Submissions are an unexplained departure from the C further particulars provided as the Prosecution continually referred to a D D prolonged period (e.g. Para. 262, 277, 301). He submitted that the E Prosecution should be held to the particulars supplied on the basis of which E the evidence was heard. My record shows that at the hearing on 19th F F November 2018, Mr. Bruce SC accepted what Mr. Pang said on the issue, G Mr. Bruce SC took the view that the difference between prolonged and G indefinite carry with it the same meaning, an undetermined time in the H H future. I 323. However, with the closure of the carriageways of Tim Mei I Avenue, those who incited the people at Tim Mei Avenue to walk onto and J J stay on the roads after the closure might think that they were not inciting K people to cause unreasonable obstruction to the road as long as it remained K cordoned off by the Police. For the same reasons, those who incited the L L people present at Tim Mei Avenue to incite other people to come and M occupy Tim Mei Avenue might think that they were not inciting the people M at Tim Mei Avenue to incite others to cause unreasonable obstruction as N N long as Tim Mei Avenue remained cordoned off by the Police. O O 324. In short, the relevant defendant(s) who incited the people at P P th th Tim Mei Avenue on 27 and 28 September 2014 to (i) occupy the Q carriageways of Tim Mei Avenue and/or (ii) to incite other people to Q occupy the carriageways of Tim Mei Avenue might think that they were R R not inciting anyone present to cause any unreasonable obstruction to the S road or inciting those present at Tim Mei Avenue to incite others to cause S any unreasonable obstruction to the road. T T U U V V  - 102 - A A B B 325. In the circumstances, the closure of the carriageways of Tim C Mei Avenue by the Police has a bearing on the issue whether the relevant C defendant(s) knew or believed that the incitement(s) under complaint D D would result in a public nuisance, i.e. unreasonable obstruction of the E carriageways of Tim Mei Avenue amounting to a suffering of common E injury by members of the public. F F G 326. It follows from the above analysis that D1 to D7 should have G the benefit of doubt in so far as the pleas made by them to the people at H H Tim Mei Avenue to (i) occupy the carriageways of Tim Mei Avenue and I (ii) incite other people to occupy the carriageways of Tim Mei Avenue are I concerned. J J K 327. Despite my findings of the effect that the closure of Tim Mei K Avenue by the Police on 27th and 28th September 2014 had on Charge 2 L L and Charge 3, in my judgment, Charge 2 and Charge 3 do not fail. M M 328. It is useful to recapitulate the particulars of Charge 2 and N N Charge 3:- O O The particulars of Charge 2 “Incitement to commit public nuisance” allege P P that D1 to D7, “between the 27 and 28 of September, 2014, in Hong th th Q Kong, unlawfully incited persons present at Tim Mei Avenue, Admiralty Q to cause a public nuisance to the public by unlawfully obstructing public R R places and roads at and in the neighbourhood of Tim Mei Avenue.” S (Emphasis added) S T T U U V V  - 103 - A A B B The particulars of Charge 3 “Incitement to incite public nuisance” allege C that D1 to D7, “between the 27th and 28th of September, 2014, at Tim Mei C Avenue, Admiralty, in Hong Kong, unlawfully incited persons at Tim Mei D D Avenue, Admiralty, to incite other persons to cause a public nuisance to E the public by unlawfully obstructing public places and roads at and in E the neighbourhood of Tim Mei Avenue.” (Emphasis added) F F G 329. It is immediately clear from the reading of the particulars of G Charge 2 and Charge 3 that the complaints of the charges are that the H H relevant defendants incited persons present at Tim Mei Avenue to (i) cause I a public puissance to the public (Charge 2); (ii) incite other persons to cause I a public puissance to the public (Charge 3), by unlawfully obstructing J J public places and roads at and in the neighbourhood of Tim Mei K Avenue (Charge 2 and Charge 3). K L L 330. The evidence shows that amongst the pleas made by D1 to D7 M between the 27th and 28th of September 2014, apart from pleas to occupy M Tim Mei Avenue and pleas to ask/invite others to do the same, there were N N also pleas to occupy Admiralty, Central and Wanchai and pleas to O ask/invite others to occupy Admiralty, Central and Wanchai. The O following pleas to occupy Admiralty, Central and Wanchai clearly went P P beyond the scope of occupying Tim Mei Avenue which had been cordoned Q off since 26th September 2014:- Q R R th (1) In the afternoon on 27 September 2014, when D6 S addressed the people at Tim Mei Avenue, he said: S T T “now we hope that everybody, yes, can really ask more people to come out and over-cram Tim Mei Avenue, also, U U V V  - 104 - A A B it is hoped that the nearby carriageways will also be B over-crammed, and (we) continued to extend the area C of our civil disobedience.” (Emphasis added)56 C D (2) On 27th September 2014, when D1 addressed the crowd D in the presence of D2, D4 and D6 at Tim Mei Square, E E he said, amongst other things, F F “…..Let’s over-cram Admiralty first. Where shall (we) G over-cram next? Central! We must be able to see the G arrival of genuine universal suffrage in Hong Kong!” H (Emphasis added)57 H I (3) On the same occasion, immediately after D1’s address, I D4 echoed D1 (“Benny”) and said in the presence of J J D1, D2 and D6: K K “Hey, let’s go to occupy Admiralty now. Thank you, L Benny. ‘Chung’ (transliteration), now it is the ‘Chung’ L (transliteration) of ‘Kam Chung’ (transliteration) (the name of Admiralty in Chinese). Later, it will be the M M ‘Chung” (transliteration) of ‘Chung Wan’ (the name of Central in Chinese)…..” and “We hope to over- N cramming Tim Mei Avenue, right? Over-cram Tim Mei N Avenue! Over-cram Tim Mei Avenue! Over-cram Tim Mei Avenue! Over-cram Admiralty! Over-cram O Admiralty! Over-cram Admiralty! Good! ….” O (Emphasis added)58 P P (4) In the evening on 27th September 2014, in the presence Q Q of D4 and D7, D6 addressed the people at Tim Mei R Avenue and said: R S S T 56 T Exhibit P17, page 1102 57 Exhibit P20, page 1107 and Appendix I of the Prosecution’s Closing Submission 58 Exhibit P20, page 1107 and Page 1111 and Appendix I of the Prosecution’s Closing Submissions U U V V  - 105 - A A B “Right, well, let me tell you a piece of good news rather B than always listening to those things that (make you feel) C heavy (-hearted). Well, we, now on the bridge outside C Admiralty, it is still full of people all over the footbridge (there). They are in the direction of our side, coming D towards us here, right. Our (activity) today, should be D the largest Civil Disobedience (activity) over the years, E certainly, the number of people, we have not yet got the E largest of people, but (we) hope that the members of the public would not remain at our current achievements F (attained), let us keep asking more people to come, over- F cramming Admiralty.” G G “Well! As what we have seen, actually, there are huge crowds of people everywhere. Well! We, starting from H Harcourt Road to the entire Tim Mei Avenue, all were H (packed with) people, the open space of the Legislative Council is also full of people, so everybody keeps asking I people to come!” (Emphasis added)59 I J J (5) In the afternoon on 28th September 2014, when D7 K spoke on the main stage at Tim Mei Avenue in the K presence of D1, D2 and D5 (on stage) and D3 (below L L stage), he said, amongst other things, M M “….However, we know that roughly more than ten N thousand citizens have blocked the road (from) the N Admiralty Centre, the whole of KFC to Rodney Street. At the same time, at the Hong Kong Academy ‘Centre’ O (sic) of Performing Arts, Wanchai, there are ten O thousand people. Adding (them) up, (we’ve) got a total P of about thirty thousand people here. Here, I am P appealing to all the citizens in Hong Kong to come together – no matter whether (you) can enter the area or Q not, go to Admiralty, go to Wan Chai. Let us fill up the Q whole of Admiralty (and) Wan Chai. Together, (we) can besiege the whole of Central Government Offices from R R the side of Rodney Street, from the side of the Hong Kong Academy ‘Centre” (sic) of Performing Arts. We S demand --……Let us fill up Admiralty and Wan Chai S together….” (Emphasis added) 60 T T 59 Exhibit P40, page 1244-1245, and Appendix I of the Prosecution’s Closing Submissions 60 Exhibit P69, pages 1545-1546 and Appendix I of the prosecution’s Closing Submissions U U V V  - 106 - A A B B C It should be noted that the locations mentioned by D7 C in the said address, i.e. Admiralty Centre, the Central D D Government Offices, Rodney Street, the Academy for E Performing Arts are all located in the neighbourhood of E Tim Mei Avenue. F F G (6) In the afternoon on 28th September 2014, when D5 and G D7 addressed the people at Tim Mei Avenue in the H H presence of D1 and D3, D5 and D7 said amongst other I things: I J J “D5: ……Our –our friends who gather round here to watch have already over-crammed two more K roads. K D7: Hurray! D5: (The crowd) has already over-crammed two L L roads (outside) the Hong Kong Academy for Performing Arts. M D7: And more citizens are coming successively. M (Let’s) continue to occupy the roads together. D5: We are asking more friends to come here, (we are N asking) more friends to come here. Let’s over- N cram Admiralty. (Let’s) over-cram Wan Chai. O (Let’s) over-cram Central. O D7: Friends on that side, keep it up. We know that some friends there have already prepared to dash P out to occupy the road(s). Let’s cheer them on, P shall we? Q D5: Comrades, let’s over-cram Wan Chai together. Q (Let’s) over-cram Admiralty. (Let’s) over-cram Central.…..” (Emphasis added)61 R R S S T T 61 Exhibit P74, pages 1588-1589 and Appendix 1 of the Prosecution’s Closing Submissions U U V V  - 107 - A A B B (7) Not long afterwards, D5 and D7 spoke on the main C stage at Tim Mei Avenue in the presence of D1 and D2 C (on stage) and D3 (below stage) and said: D D E “D7: We have got news that…. On the side of Harcourt E Road.. many friends have already gone out onto the road! (They) have already occupied the road! F Hurray! F D5: Occupy the road! D7: Occupy the road! G G D5: Occupy the road! D7: Occupy the road! H D5: Occupy the road! H D7: Occupy the road! D5: Hurray! I D7: Hurray! I D5: Hurray! J D7: Hurray!” J (Emphasis added)62 K K (8) Shortly afterwards, D5 and D7 spoke on the main stage L at Tim Mei Avenue in the presence of D3 (below stage) L and said: M M N “D5: Our picket has just made a report that the 6 N carriageways of H-Harcourt Road bound for Central as well as Causeway Bay, the 6 O O carriageways have already been over-crammed (with people) sitting (there)! We have already P over-crammed 6 carriageways (with people) P sitting (there). Keep coming! Keep coming! Keep coming! Q D7: Keep coming” (Emphasis added)63 Q R R S S T T 62 Exhibit P74, pages 1591-1592 and Appendix 1 of the Prosecution’s Closing Submissions 63 Exhibit P74, page 1593 and Appendix 1 of the Prosecution’s Closing Submissions U U V V  - 108 - A A B B (9) Later in the same afternoon, when D7 spoke on the C main stage at Tim Mei Avenue in the presence of D5 C (on stage) and D3 (below stage), he said: D D E “We are here to call for more people to come out to over- E cram Admiralty (and) to over-cram Wan Chai with us. (Let’s) carry on with the Occupy (movement).” F (Emphasis added)64 F G (10) Later in the same afternoon, when D7 spoke on the G main stage at Tim Mei Avenue in the presence of D2 H H (on stage), he said: I I “We are here to appeal to our friends who have not yet J J come to join us, come quickly to over-cram Admiralty and Wan Chai, and to occupy this Hong Kong that K belongs to us.” (Emphasis added)65 K L 331. It is clear that D1, D4, D5, D6 and D7 each had called for L occupation or over-cramming of places “at and in the neighbourhood of M M Tim Mei Avenue”. N N 332. In my judgment, the closure of Tim Mei Avenue by the Police O O on 26th September 2014 could not have made the relevant defendant(s) P think that “over-cramming” of the public places and roads “in the P neighbourhood of Tim Mei Avenue Admiralty, Central and Wanchai” was Q Q not “unwarranted by law”. The relevant defendant(s) could not have R R thought that any obstruction caused by over-cramming of Admiralty and S Central was not unreasonable. The relevant defendant(s) could not have S T T 64 Exhibit P74, page 1594 and Appendix 1 of the Prosecution’s Closing Submissions 65 Exhibit P74, page 1598 and Appendix 1 of the Prosecution’s Closing Submissions U U V V  - 109 - A A B B thought that as the Police had cordoned off Tim Mei Avenue, no additional C obstruction would be caused by over-cramming those parts of Admiralty, C Central and Wanchai not at, but within the neighbourhood of Tim Mei D D Avenue. E E THE APPLICATION OF THE CO-CONSPIRATORS RULE F F G 333. The Prosecution invokes and relies on the co-conspirators rule G under Charge 1 against D1 to D3. In order to understand the evidence that H H the Prosecution relies on to invoke the co-conspirators rule and the extent I that Prosecution seeks to rely on the rule. It is necessary to set out the I relevant parts of the Prosecution’s Opening in full:- J J K “2. In a press conference held at what appeared to be a K church on 27th March 2013 (the “March 27 Press Conference”, as captured on Exhibits P-96, P-98, P-99 and P100), D1, D2 L and D3 together announced the commencement of the OCLP. L The Prosecution case is that D1, on behalf of the three, read out M what they described as their Manifesto (信念書 ) setting out the M aim of the campaign, namely, to strive for the form of universal suffrage they advocated in the election of the Chief Executive of N the HKSAR in 2017. D1 stated, amongst other things, that:- N (1) “The campaign consists of four steps: signing the O covenant; the deliberation day; citizen authorization O process, and finally, the act of civil disobedience”; (2) “After the deliberation day and authorization by citizens, P the campaign will put forward a concrete proposal on P the election of the Chief Executive in 2017. If the authorities concerned show no regard for the Q Q democratic demands of the citizens, and bring up some election methods which do not meet the international R standards of universal suffrage, we shall, at a suitable R time, carry out civil disobedience in terms of Occupy Central”, [Emphasis by the undersigned] and S (3) “There are three ways for citizens to participate in the S Occupy action: to provide support to those who carry out T the acts of civil disobedience without breaking any law T themselves, to carry out the act of civil disobedience without giving up to the authorities, but we hope that U U V V  - 110 - A A B there would still be substantial number of citizens may B choose to carry out the act of civil disobedience, gives C themselves up to the authorities, and file no defence in C the trial. We expect there will be at least 10,000 people who follow the conscience and participate in different D aspects of this campaign: let love and peace occupy D Central.” E E 3. In the same press conference, D3 stated, amongst other things, that:- F “So, by way if violating the law and civil disobedience, we’ve F revealed that justice failed to be served. By defying the law ourselves, we’ve also highlighted the injustice of the system G G inside the underlying framework that is thought to be legal.” H 4. D2, when answering a question from the press, stated:- H “If, by then, we sit on the road surface in Central, if he/she comes to arrest us, we won’t put up resistance; we’ll let (him/her) I carry us on board a police vehicle, and then go to the police I station. So, actually, if he/she is not going to let Central be J paralyzed, it is actually very easy (to do so).” J 5. The March 27 Press Conference is the public K manifestation of a meeting of minds amongst D1, D2 and D3 in K forming a conspiracy to commit public nuisance through the unlawful obstruction of public places and roads in or in the L L neighbourhood of Central. M 6. Thereafter, D1, D2 and D3 continued to publicly M introduce the campaign of the OCLP on various occasions:-_ (1) On 30 April 2013, D1, D2 and D3together appeared on a N radio programme named “On a Clear Day” (as captured on N Exhibit P-104) in which they discussed about the campaign of O the OCLP. During the programme:- O (a) When asked by the programme host if the people participating in Occupy Central would be guilty of the offence P of unlawful assembly, D1 said they would “only sit on the P carriageway” and would not charge at anything to break the Q order; Q (b) D1 stated that they would be holding the “first deliberation day” (“D-Day1”) of the OCLP at the University of R Hong Kong on 9 June 2013, to get the people engage in R discussions on what methods to be used in carrying out civil disobedience through Occupy Central. D1 further stated that S S they would be holding further deliberation days in future, and they had been preparing for a deliberation day with an estimated T number of participants of 10,000 people, and T (c) D2 stated that the OCLP would have a street booth during the protest on 1 July 2013 when they would provide information U U V V  - 111 - A A B to citizens who had questions about the campaign of OCLP and B would also be holding a fund raising for the campaign. D3 also C stated that there would be a bank account for the volunteers to C make donations for the campaign. (2) On 9 June 2013, D1, D2 D3 held the first deliberation D day of the OCLP (i.e. “D-Day 1, as captured on Exhibits P-116 D and P-117) at the University of Hong Kong. During the said E event, which appear to be a public event to the audience at that E event:- (a) D1 reiterated the goal of the OCLP to strive for their F advocated form of universal suffrage in the election of the Chief F Executive by way of civil disobedience, and stated that the campaign had now proceeded from “gestation period” (醞釀期 ) G G to “organizational preparation period” ( 組織装備期 ). The aim of the deliberation day was to set the agenda and identify H the major issues that might be encountered in the campaign (for H example, when Occupy Central happened, how the participants would respond to the police’s deployment) in order to enable the I I OCLP to achieve the goal successfully. D1 summarized the campaign of OCLP in the following words: “democratic J deliberation, civic authorization, proposal formulation, civil J disobedience, occupy Central, fight for universal suffrage”( 民 主商討、公民授權、確立方案、公民抗命、佔領中環、爭取 K K 普選 ); (b) D2 explained the concept of civil disobedience, which he L said was an “active refusal by the citizens to abide by L unreasonable laws, demands or commands without turning to violent means”. D2 stated that the existing electoral system of M M Hong Kong was unjust, and they would fight for a just political system by means of civil disobedience; and N (c) D3 stated that the gathering on the day was for the N participants to make determinations together to enable them to strive for their advocated form of universal suffrage in the O O election of the Chief Executive in 2017. D3 stated that he was willing to stay with the participants to achieve the goal even up P to the stage of civil disobedience. P (3) On 1 July 2013, D1, D2 and D3 together attended a public gathering at Chater Garden at which they gave speeches Q on a stage (as captured on Exhibits P-106 and P-122). During Q the event:- R (a) D1 stated, amongst other things, that he wrote an article R in the beginning of the year suggesting one to strive for universal suffrage by way of civil disobedience by occupying Central. D1 S then decided that he would take part in the civil disobedience S himself, and asked D2 and D3 to join him for the campaign; (b) D3 stated, to the persons gathered at the meeting, T T amongst other things, that when D1 asked him to take part in the civil disobedience to occupy Central, he phoned D2 and asked U U V V  - 112 - A A B if D2 would join. D2 then told D3 that he would take part in the B campaign; and C (c) D2 also acknowledged to the persons gathered at the C meeting that he had participated in the campaign of OCLP. (4) On a day between June and October 2013, D3 gave a D speech at a street forum (as captured in Exhibit P-108). D3 D stated, amongst other things, that:- E (a) The crux of OCLP was a civic awakening movement, to E encourage everyone “to step forward, to speak out your mind”; (b) The “three of us” [the Prosecution case is that he was F referring to himself and D1 and D2] had attended events in F various districts explaining the campaign of the OCLP and collecting citizens’ opinions on the campaign; and G G (c) The OCLP held the first deliberation day on 9 June 2013, and held the second deliberation day in November 2013. The H OCLP hoped to hold a meeting in December 2013 gathering the H participants in the first and the second deliberation days together. I I 7. The Prosecution relies on the co-conspirators rule J whereby evidence of the acts and declarations of one or more J conspirators in furtherance of a conspiracy may be adduced to prove the extent and degree of participation if others in the K conspiracy and the nature and extent of the conspiracy. The K reasonable evidence for invoking the co-conspirators rule in the 1st Charge against D1, D2 and D3 are the relevant speeches L L made by D1, D2 and D3 respectively as captured in the above videos. Pursuant to the co-conspirators rule, the speeches made M by each of D1, D2 and D3 in the above videos will be adduced M to prove the extent and degree of their participation in the conspiracy of the two other Defendants who did not make those N speeches. N O 8. The case for the Prosecution is that the foregoing O speeches made by D1, D2 and D3 constitute evidence of the meeting of minds amongst D1, D2 and D3 in the conspiracy to P commit public nuisance through the unlawful obstruction of P places and roads in or in the neighbourhood of Central. The Q Prosecution alleges that the proposed action of “Occupy Q Central” by D1, D2 and D3 was an unlawful one, conducted by way of the occupation of public thoroughfares in unreasonable R way that would amount to a common injury to the public or a R significant section thereof, in an attempt to strive for their advocated form of universal suffrage. The choice of the location S S of Central was calculated to make an impact by creating an unreasonable obstruction in the centre of the city, thereby T forcing the authorities to respond to their demands. T ……….. U U V V  - 113 - A A B B 37. In addition, as regards the 1st Charge of conspiracy C against D1, D2 and D3, the Prosecution relies on the co- C conspirators rule as stated in Para. 7 above. Pursuant to the co- conspirators rule, the speeches made by each of D1, D2 and D3 D in the above videos during the gathering at Tim Mei Avenue on D 27 and 28 September 2014 will be adduced to prove the extent E and degree of participation in the conspiracy of the other two E Defendants who did not make those speeches.” F F 334. Exhibits P96, P98, P99 and P100 concerned the statements G made by the relevant defendants in the March 27 Press Conference held on G 27th March 2013, Exhibits P104 concerned a radio programme on which H H th D1 to D3 appeared on 30 April 2013, Exhibits P116 and P117 concerned I the statements made by the relevant defendants on D-Day 1 on 9th June I 2013, Exhibits P106 and P122 concerned the statements made by the J J st relevant defendants on 1 July 2013 when the Trio attended a public K gathering at Chater Garden on 1st July 2013, Exhibit P108 concerned a K speech made by D3 at a street forum on a day between June and October L L 2013. The videos referred to and relied on by the Prosecution in Para. 37 M of the Prosecution’s Opening pursuant to the co-conspirators rule are:- M N N (i) Exhibit P20 (Para. 21); O O (ii) Exhibit P44 (Para. 27); P (iii) Exhibit P124 (Para. 30 and 31(1)); P (iv) Exhibit P64 (Para. 32); Q Q (v) Exhibits P66 to P68 (Para. 33); and R (vi) Exhibits P74 and P75 (Para. 33). R S S 335. In other words, the statements and the Prosecution relies upon T under the co-conspirators rule were made between 27th March 2013 and T 28th September 2014. U U V V  - 114 - A A B B C 336. In my judgment, the evidence adduced does not support the C Prosecution case that a conspiracy to commit public nuisance was formed D D in or about March 2013 and the March 27th Press Conference was a public E manifestation of a meeting of minds amongst D1, D2 and D3 in forming a E conspiracy to commit public nuisance through the unlawful obstruction of F F public places and roads in or in the neighbourhood of Central” (Para. 5 of G the Prosecution’s Opening and Para. 256 of the Prosecution’s Closing G Submissions). H H I 337. It is true that what happened up to 27th March 2013 was an I agreement amongst D1 to D3 that the campaign of “Occupy Central” J J would be a “civil disobedience”, i.e. law would be violated in the course K of the campaign. But as discussed, on a charge of public nuisance which K involves obstruction of public places and/or highways, the “not warranted L L by law” element of offence is not to be judged by examining whether there M is any illegality in the act or obstruction under complaint, e.g. whether a M LONO had been issued for the public meeting concerned. As held by the N N Court of Final Appeal in Yeung May Wan, a person who creates an O obstruction could not be said to be acting “without lawful excuse” if his O conduct involves a reasonable use of the highway. In my judgment, in P P considering whether a defendant’s obstruction of the highway is “not Q warranted by law”, the same consideration applies. A defendant’s Q obstruction of the highway could not be said to be “not warranted by law” R R if his conduct involves a reasonable use of the highway. S S 338. In Yeung May Wan, the Court of Final Appeal held that the T T application of the reasonableness test in any given case of obstruction is U U V V  - 115 - A A B B essentially a question of fact and degree depending on all the C circumstances, including the extent and duration of the obstruction, the C time and place where the obstruction occurs, as well as the purpose for D D which the obstruction is done. E E 339. As discussed in the earlier part of this judgment, if the F F obstruction under complaint is the result of a peaceful demonstration, the G court, in applying the reasonableness test, should recognize the protection G given by the Basic Law to the right to peaceful demonstration and give it H H substantial weight in the balancing exercise. There is no dispute that the I OCLP agreed and planned by D1 to D3 did not involve use of violence or I threat of violence. J J K 340. The evidence relied upon by the Prosecution under the co- K conspirators rule shows that D1 to D3 had agreed to start the campaign of L L OCLP, they saw it as a movement of civil disobedience. Being a M movement of civil disobedience, the law would be violated, hence in the M March 27 Press Conference, D3 said, amongst other things, N N “…by way of violating the law and civil disobedience, we’ve O O revealed that justice failed to be served” P and D2 said, amongst other things, P Q “we sit on the road surface in Central…” Q R R and D1 said they expected there would be at least 10,000 people who would S participate in different aspects of the campaign of OCLP. S T T U U V V  - 116 - A A B B 341. On the evidence, it is not clear whether by the time of the C March 27th Press Conference D1 to D3 had agreed upon the location where C in Central the occupy movement would take place. There is no evidence D D by that time the 3 defendants had agreed on when to commence the occupy E movement. In applying the reasonableness test to the facts in this case, at E a time when the exact location and the time of the commencement of the F F occupy movement had yet to be decided, it is difficult to find that by 27 th G March 2013, the agreement reached by D1 to D3 must amount to a G conspiracy “to commit public nuisance through the unlawful obstruction H H of public places and roads in or in the neighbourhood of Central” In my I judgment, the obstruction that would be caused by an occupation of a road I or roads that takes place during a long public holidays would be different J J greatly in degree and extent from an occupation that takes place on some K usual business days that people have to work. Added to that uncertainty is K the exact road(s) where the occupy movement had not been decided by the L L time of the March 27th Press Conference. I cannot reach a conclusion that M in March 2013, the obstruction that D1 to D3 contemplated would M eventually be caused by the OCLP must be unreasonable and not warranted N N by law according to the principles in Yeung May Wan. O O 342. In my judgment, what had been agreed upon by D1 to D3 in P P March 2013 was an agreement to pursue a plan, which might develop into Q a conspiracy to commit public nuisance. In my judgment, by 27th March Q 2013, what had been agreed upon by D1 to D3 did not yet amount to a R R conspiracy to commit a public nuisance. S S T T U U V V  - 117 - A A B B 343. It is the Prosecution case that the speeches made by D1, D2 C and D3 on 30th April 201366, 9th June 201367 and a day between June and C 68 October 2013 constitute evidence of meeting of minds amongst D1, D2 D D and D3 in the conspiracy to commit public nuisance through the unlawful E obstruction of public places and roads in or in the neighbourhood of E Central. For the same reasons given in the preceding Para., there is F F insufficient evidence to support a finding that during the period of time G from 30th April 2013 to the end of October 2013 when the speeches in G Exhibits P-104, P-116, P-117 and P-108 were made by the relevant H H defendants, the obstruction that D1 to D3 contemplated would eventually I be caused by the OCLP must be unreasonable and not warranted by law I according to the principles in Yeung May Wan. J J K 344. Likewise, in my judgment, the agreement that D1 to D3 had K agreed in March 2013 had developed during the period from 30th April L L 2013 to the end of October 2013, i.e. during the time the aforementioned M speeches relied on by the Prosecution were made, what had been agreed M upon by D1 to D3 during the said period was an agreement to continue N N pursue the OCLP, hence D-Day 1 was held, and the appearance of the Trio O on the radio programme, which might develop into a conspiracy to commit O public nuisance. In my judgment, by the end of October 2013, what had P P been agreed upon by D1 to D3 in March 2013 did not still yet amount to a Q conspiracy to commit a public nuisance. Q R R 345. In my judgment, the use of the co-conspirators rule is the S present case is limited. S T 66 T Exhibit P-104 67 Exhibits P-116-117 68 Exhibit P-108 U U V V  - 118 - A A B B C 346. The evidence shows that the location of where the occupy C movement would be carried out, i.e. Chater Road and the time to D D commence the OCLP, i.e. 1st October 2014 were decided by D1 to D3 in E September 2014, i.e. after the Decision on 31st August. I shall consider E whether what D1 to D3 had agreed upon in September 2014 amounted to F F a conspiracy to commit public nuisance through the unlawful obstruction G of public places and roads in or in the neighbourhood of Central. G H H INDIVIDUAL CHARGES I I Charge 1: Conspiracy to Commit Public Nuisance (against D1 to D3) J J K 347. I accept the evidence of D2 that D1 to D3 agreed to implement K Stage 4 of the OCLP, i.e. occupation, after the Decision on 31st August. L L The Trio held meetings and jointly took the view that there was no room M for discussion any more. The Trio reached an agreement that the Occupy M Central Movement would be commenced on 1st October 2014. As a result, N N on 18th September 2014, the Trio gave the Police a Notification to Hold a O Public Meeting. 69 It was agreed by D1 to D3 that the notified public O meeting would take place (i) at the pedestrian area of Chater Garden from P P st 3 p.m. to 11:59 p.m. on 1 October 2014 and from 7 a.m. to 11:59 p.m. on Q 2nd October 2014, and (ii) at Chater Garden and Statute Square from 3:00 Q p.m. on 1st October 2014 to 11:59 p.m. on 3rd October 2014. R R S 348. D1 to D3 had also agreed that after the notified meeting was S over, they would start the civil disobedience part of the OCLP by the T T 69 Exhibit D3-1 U U V V  - 119 - A A B B occupation of the pedestrian precincts of Chater Road. D1 to D3 all agreed C that the occupation would end in a few days but they had slightly different C estimates as to the time of staying after the notified period. D2 thought the D D occupation might end on or around 5th October 2014, i.e. he planned to stay E on for 3 more days after the notified meeting was over. E F F 349. The Trio had discussed and agreed that in the event a Letter G of Prohibition was issued against the proposed meeting on 1 st October G 2014, the OCLP would go ahead at the planned location, the participants H H would sit and remain there after the public holidays and commence civil I disobedience there. I J J 350. I accept the evidence of D2 that D1 to D3 estimated that there K would be around several thousand to 10,000 people attending, with that K number of participants, D1 to D3 were confident that the participants could L L be kept within the pedestrian precincts of Chater Road. I agree with the M Prosecution submissions that a turnout of several thousand to 10,000 would M be more than enough to give rise to a substantial disruption to the public. N N O 351. On the question of the effect of the occupation, i.e. whether O obstruction would be caused as a result, and the extent and degree of the P P st obstruction. It is an admitted fact that 1 October was a Wednesday and Q public holiday, 2nd October was a Thursday and a public holiday. During Q 1st and 2nd October, the section of Chater Road between Pedder Street and R R rd Jackson Road would have been a Pedestrian Area. The 3 October 2014 S was not a public holiday, it was a normal working day and there would S have been no Pedestrian Area. T T U U V V  - 120 - A A B B 352. As discussed in the earlier part of the judgment, it is C unrealistic for D2 to suggest that with the estimated number of participants C to be in the region of several thousand to 10,000, if the Trio remained on D D Chater Road on 3rd October 2014, they would be arrested on 5th October, if E not on 3rd October 2014. I do not agree with Dr McCoy SC’s submissions E that “In the event that the Trio are not arrested on 3rd October 2014, it being F F a Friday and the single day between 2 public holidays and the weekend, G the disruption would not have been a disproportionate one”. G H H 353. For a mass demonstration and occupation movement with I several thousand to 10,000 people participating, it is unrealistic to suggest I that the Police would take arrest action as soon as the notified meeting is J J over and the movement enters into its civil disobedience stage, i.e. the K occupation of the road(s). Contact would be made with the organisers to K persuade the protestors to disperse, the protestors would be given time to L L retreat, warning(s) would be given by the Police; it is unrealistic to suggest M the Trio would be arrested by the Police on 5th October, if not on 3rd. M N N 354. D2 said the effect of the occupation was comparable to the O effect caused by a typhoon. Whilst a typhoon is an occurrence of nature O which citizens cannot avoid, measures can still be taken to minimize the P P damage and inconvenience caused by it. For the obstruction and Q inconvenience that would be caused by an occupy movement, a lot can be Q done by the organizers to keep the obstruction and inconvenience within R R bounds of reasonableness. S S 355. On the evidence before me, by the time Exhibit D3-1 was T T prepared in September 2014, D1 to D3 had agreed to pursue a course of U U V V  - 121 - A A B B conduct, i.e. the occupation of Chater Road, whether or not a LONO could C be obtained. C D D 356. I balance the rights of a citizen to exercise his/her right of free E speech, right of assembly and right of demonstration and the rights of E others. I recognize the protection given by the Basic Law to the right to F F peaceful demonstration and give it substantial weight in the balancing G exercise. G H H 357. I apply the application of the reasonableness test to the facts I in the present case. It was the plan of D1 to D3 to occupy the entire section I of the carriageway of Chater Road with or without a LONO after the public J J holidays on 1st and 2nd October 2014. In my judgment, if the Trio wanted K to achieve the civil disobedience aspect of the OCLP by breaking the law, K it was not necessary to occupy the entire section of the carriageway of L L Chater Road. They could have called for the occupation of part of, but not M the entire carriageway of Chater Road. The obstruction that would result M from the occupation of part of the carriageway would be much less severe, N N as traffic on the relevant section of Chater Road would not be blocked O completely. The obstruction that would be caused to the traffic would be O much more acceptable to the public if part of the relevant section of Chater P P Road would still be open to traffic. Q Q 358. For the duration of the occupation, it was the intention of the R R Trio that the occupation of the carriageway of Chater Road would last a S few days, the Trio and the participants would stay on the roads until police S officers lift them up and move them onto police vehicles. Given the Trio’s T T estimate that there would be 3,000 to 10,000 people participating in the U U V V  - 122 - A A B B occupy movement, it would be unrealistic to contemplate or suggest that C the clearance action could be completed within a short period of time. The C lifting up of the protestors and moving them onto police vehicles would be D D a drain on the manpower resources of the police. Given that it was the plan E of the Trio that they would start the legitimate part of the public gathering E on 1st October 2013, by the time of the commencement of the civil F F disobedience part of the movement, the public gathering at Chater Road G would have been going on for 2 days. In the circumstances, it would be G unreasonable for the Trio to plan and call for an occupation of the H H carriageway of Chater Road even for just a few days. The civil I disobedience aspect of the movement could be effectively signified by an I occupation of the carriageway for a much shorter time, that the occupation J J of the carriageway should cease, and demonstrators should disperse in the K early morning of 3rd October 2014. K L L 359. The location of the Occupy Movement, i.e. Chater Road, is in M the core centre of Central, I accept the evidence of D2 why the Trio chose M Chater Road as the location to launch the Occupy Central in October. N N O 360. I accept and take into consideration the importance of the O purpose of the OCLP, i.e. to fight for the form of universal suffrage in P P relation to the election of the Chief Executive advocated by D1 to D3. Q Q 361. I have given substantial weight to the protection given by the R R Basic Law to the right to peaceful demonstration in the balancing exercise. S I have reminded myself that the bounds of what was reasonable in the S circumstances in the present case must not be narrowly defined. T T U U V V  - 123 - A A B B 362. All matters taken into consideration, bearing in mind the C estimated number of people participating in the occupation, the extent and C the estimated time and duration of the occupation, I find the obstruction D D that D1 to D3 planned to carry out an unreasonable use of the carriageway E of Chater Road. E F F 363. Applying the reasonableness test in Yeung May Wan. In my G judgment, the obstruction in the planned occupation of Chater Road by G demonstrators after the public holidays on 1st and 2nd October 2014 that D1 H H to D3 agreed to pursue, if carried out, would impinge unreasonably upon I the rights of others. The unreasonableness of the obstruction was such that I the significant and protected right to demonstrate should be displaced. The J J act was one not warranted by law. K K 364. In my judgment, the number of persons that would be affected L L by the obstruction caused by the planned occupation of Chater Road after M the public holidays on 1st and 2nd October would be sufficient enough to M constitute a class of public. The obstruction that would be caused would N N amount to a suffering of common injury by members of the public by O interference with rights enjoyed by them as a class of the public. O P P 365. In my judgment, D1 to D3 each knew what the consequence Q of the occupation of Chater Road would have on the traffic if their plan Q was implemented. They could not have failed to appreciate what the effect R R of the occupation of the carriageway of Chater Road would have on the S traffic on 3rd October 2014 and the days after. The state of affairs that D1 S to D3 intended to bring about as a result of their agreement would T T U U V V  - 124 - A A B B necessarily amount to or involve the commission of the offence of public C nuisance. C D D 366. As said, the OCLP was started by D1 to D3 in March 2013, E by September 2014, i.e. by the time Exhibit D3-1 was prepared, D1 to D3 E had reached an agreement which, if carried out in accordance with their F F intentions, would necessarily amount to or involve the commission of the G offence of public nuisance by one or more of the parties to the agreement. G H H 367. By September 2014, D1, D2 and D3 intended to be parties to I the agreement, if carried out, would give rise to a common injury to the I public or a significant section of the public such as to constitute a public J J nuisance. K K 368. In my judgment, the OCLP which D1 to D3 started in March L L 2013, had developed into a conspiracy to commit public nuisance by M September 2014. D1 to D3 were parties to the said conspiracy. M N N 369. As the events developed, the planned public gathering at O Chater Road in October 2014 did not take place. O P P th 370. In the early hours on 28 September 2014, the Trio made an Q announcement to launch the movement at Tim Mei Avenue. Q R R 371. In the earlier part of the judgment, I have examined the S evidence of D2 as to what he considered to be the four major areas of S difference between the movement the Trio planned to commence on 1st T T October 2014 at Chater Road and the one they announced to commence at U U V V  - 125 - A A B B 1:36 a.m. on 28th September 2014. In my judgment, the movement that D1 C to D3 announced to commence at Tim Mei Avenue was a modified plan of C the original plan of OCLP, i.e. the one that the Trio planned to commence D D on 1st October 2014 at Chater Road. E E 372. I now turn to consider whether the agreement amongst D1 to F F D3 to cause public nuisance continued when they announced the launch of G Occupy Central in the early morning of 28th September 2014, i.e. whether G with the modifications, the agreement was still an agreement “to cause H H public nuisance to the public through the unlawful obstruction of public I places and roads in or in the neighbourhood of Central” (Particulars of I Charge 1). J J K 373. I agree with the analysis of Mr. Leung SC on this issue. D1 K said when he announced the launch of Occupy Central: L L “Occupy Central, will begin with occupying the Central M Government Offices”.70 M N In a press interview held shortly after the announcement, D1 was asked if N the launch of Occupy Central at Tim Mei Avenue involved any change in O O the plan, D1 said amongst other things: P P “Actually, the impact is not really that big, actually it concerns Q just some technical arrangement, for example, the management Q of manpower the management of the sites, this is because our R original plan was based on a certain point in Central, all the R planned sketches are ready. And now we are going to make the changes, but I think this concerns only technical issues”.71 S S T T 70 Exhibit P124, page 742 71 Exhibit P124, page 757 U U V V  - 126 - A A B B D1 further said their first step was to “fortify” the defence of the occupied C site at Tim Mei Avenue”.72 I agree with the Prosecution submissions that C the above remark of D1 shows that the plan of D1 to D3 was to take steps D D to ensure the continued occupation of Tim Mei Avenue for an indefinite E period. It should be noted that when the Trio announced the cessation of E the movement and their parting with the student protestors on 2 nd F F December 2014, D1 said, amongst other things, that the occupation took G place at Harcourt Road had: G H H “developed into something completely different from the Occupy Central Movement we planned after we actually, er, launched, I er it in the small hours of the morning on er, September 28. Well, I it was also quickly replaced by the Umbrella Movement as we now call it….”73 J J K The above statement of D1 shows that D1, from his own point of view, K considered the movement they launched on 28th September 2014 was the L L same movement they planned, it only developed into something M completely different afterwards. M N N 374. Dr McCoy SC’s submitted that the words said by D1 O O “Occupy Central, formally begins” P P at 1:36 a.m. on 28th September 2014 must be interpreted in their context. Q Q According to the evidence of D2, the students and their main leaders were R exhausted. The OCLP had the logistical and material resources to support R the existing student movement. It was through the abandonment of the S S original plan that the volunteers and other forms of help could be mobilised T T 72 Exhibit P124, page 754 73 Exhibit P134, page 850-851 U U V V  - 127 - A A B B to support the students. In my judgement, the announcement made by D1, C properly understood, was an announcement to launch the Occupy Central C at Tim Mei Avenue. If the Trio just wanted to support the students with D D their logistical and material support, they did not have to announce the E launch of Occupy Central. For the reasons given in the preceding Para., E the original plan was only modified, but not abandoned, by the Trio when F F they announced the launch of Occupy Central at 1:36 a.m. on 28th G September 2014. G H H 375. I have explained in the earlier part of the judgment the effect I of the closure of Tim Mei Avenue by the Police on 26th September 2014 I has on Charge 2 and Charge 3. As said, D1 to D7 should have the benefit J J of doubt for the incitements to occupy the carriageways of Tim Mei K Avenue and/or to incite others to occupy the carriageways of Tim Mei K Avenue. L L M 376. As I pointed out in the earlier part of the judgment that on 27th M September 2014, D1 had asked the crowd at Tim Mei Avenue “…Let’s N N over-cram Admiralty first. Where shall (we) over-cram next? Central!”.74 O O 377. The references to Admiralty and Central made by D1 on 27 th P P September 2014 must be understood in the context of what was happening Q at that time, D1 was then addressing the crowd at Tim Mei Avenue. Q Obviously D1 must be referring to the public places and roads in Admiralty R R and Central in the neighbourhood of Tim Mei Avenue. The references to S Admiralty and Central in Exhibit P20 fit in with the particulars of offence S for Charge 1, i.e. “public places and roads in or in the neighbourhood of T T 74 Exhibit P20, page 1107 U U V V  - 128 - A A B B Central” as well as the particulars of offence for Charge 2 and Charge 3, C i.e. “public places and roads at and in the neighbourhood of Tim Mei C Avenue”. Although there were changes made to the plan, i.e. the location D D was changed from Chater Road to Tim Mei Avenue, it was still the E agreement of D1 to D3 to occupy public places and roads in or in the E neighbourhood of Central. In my judgment, the fact that D1 announced at F F Tim Mei Avenue that Occupy Central would begin with ‘occupying the G CGO’ suggests that D1 to D3 were prepared to change the location of the G occupy movement to adapt to the development of events since the launch H H of class boycotts. I agree with the Prosecution submissions that, in any I event, Tim Mei Avenue and Harcourt Road in Admiralty were still public I places and roads “in the neighbourhood of Central”. J J K 378. Dr McCoy SC submitted that if the police had allowed the K participants to go to Tim Mei Avenue on 28th September 2014, public L L nuisance might or might not have resulted (Para. 18 of D2 and D3’s M Closing Submissions). It should be noted that when D1 announced the M launch of the movement at Tim Mei Avenue at around 1:36 a.m. on 28th N N September 2014, he said amongst other things “Occupy Central will begin O with occupying the CGO”. The action of the Police was a natural response O to the Trio’s plea to occupy the CGO. As stated by Chief Superintendent P P 75 Dover in his statement, he reported duty at 0600 hours on 28 September Q 2014 and was the commanding officer during the cordoning off of Tim Mei Q Avenue that day. The purpose of the exclusion plan was to ensure the R R integrity of the CGC by restricting access. In my judgment, given the S appeal made by D1 to the people at Tim Mei Avenue that Occupy Central S would begin with occupying CGO, the action taken by the police was a T T 75 Exhibit P156 U U V V  - 129 - A A B B natural and reasonable response. It would be absurd for the Trio to suggest C that with the plea and threat to occupy CGO, the Police action taken by C Chief Superintendent Dover came as a surprise to them. The exclusion D D plan was the natural and direct consequence of D1’s plea to begin Occupy E Central with occupying the CGO. E F F 379. I am satisfied so that I am sure that D1 to D3 knew that G occupation of public places and roads in or in the neighbourhood of Central G pursuant to the modified plan would result in obstruction of public places H H and roads. I I 380. In my judgment, when D1 called for the over-cramming of J J Admiralty and Central on 27th September 2014 and when he said in the K press interview after the announcement on 28th September 2014 that the K first step was to fortify the defence of the occupied site at Tim Mei Avenue, L L on both occasions, D1 was talking about the same occupy movement. It M was the intention of the Trio that the occupy movement at Tim Mei Avenue M and other parts of Admiralty and Central in the neighbourhood of Central N N would be a continued occupation for an indefinite period. Furthermore, O when D1 announced the launch of Occupy Central at Tim Mei Avenue on O 28th September 2014, a demand was made that the then Chief Executive P P Leung Chun Ying should re-submit a report on constitutional reform Q failing which the Occupy Central movement would be escalated. Q According to D1, failure or refusal to meet the demand would result in R R escalation of the Occupy Central movement, not cessation of it. D1 to D3 S must knew that it would take time for the Government to consider the S demand and it would certainly take time for a report on constitutional T T reform be prepared and re-submitted, should the Government be prepared U U V V  - 130 - A A B B to meet the demand. In my judgment, the aforesaid demand made by D1 C reinforces my conclusion that it was the intention of D1 to D3 to occupy C public places and roads for an indefinite period. D D E 381. The 3 Computer Certificates prepared respectively by E representatives of New World First Bus Services Limited, City Bus F F Limited and Kowloon Motor Bus Co (1933) Limited76 show the number of G public bus routes that had to be diverted or suspended from service during G the occupation period. These certificates also show the number of H H passengers who would be affected by the blockage of the roads obstructed. I I do not agree with Dr McCoy SC’s submissions that as there is no evidence I as the usual passengers who could not get to their destinations via different J J routes about as efficiently as before, there is no evidence that members of K public were inconvenienced. The fact that the passengers who took the bus K routes covered by Exhibits P145 to P147 in the past had to switch to other L L bus routes or means of public transport and were deprived of the use of the M roads affected was in itself an obstruction of the public in the exercise if M rights common to everyone. From Exhibits P145 to P147, one can see the N N number of passengers that took the relevant bus routes in the past, the fact O that they could not take the same bus routes they used to take amounted to O a suffering of common injury by members of the public by interference P P with rights enjoyed by them as such. Q Q 382. The submission of D2 and D3 that “On the contrary, for the R R period of occupation, never has Harcourt Road been so effectively used by S the public for “social and community purposes” (Para. 55 of D2 and D3’s S T T 76 Exhibits P145 to P147 U U V V  - 131 - A A B B Closing) shows a considerable amount of apathy to the inconvenience and C suffering caused to others by the blockage of the road. C D D 383. It is clear, from the evidence of D2, that in the afternoon on E 27th September 2014, D1 to D3 had considered whether the occupation E starting at Tim Mei Avenue could extend to Harcourt Road after some time. F F The statement made by D1 to “over-cram Admiralty first, and then G Central”77 reflects the decision reached by D1 to D3. D1 to D3 had agreed G to pursue a course of conduct, i.e. the occupation of public places and roads H H in or in the neighbourhood of Central which, if the agreement was carried I out in accordance with their intentions, would necessarily amount to or I involve the commission by them the offence of public nuisance. J J K 384. I balance the rights of a citizen to exercise his/her right of free K speech, right of assembly and right of demonstration and the rights of L L others. I recognize the protection given by the Basic Law to the right to M peaceful demonstration and give it substantial weight in the balancing M exercise. N N O 385. I apply the application of the reasonableness test to the facts O in the present case. P P Q 386. In my judgment, if the Trio wanted to achieve the civil Q disobedience aspect of the OCLP by breaking the law, it was not necessary R R to call for an extensive occupation of public places and roads in Admiralty S and Central in the way D1 advocated in Exhibit P20. They could have S called for the occupation of part of, but not the entire carriageway of a road T T 77 Exhibit P20 U U V V  - 132 - A A B B in or in the neighbourhood of Central. The obstruction that would have C resulted from the occupation of part of the carriageway would be much less C severe, as traffic on the relevant section of the road would not be blocked D D completely. The obstruction that would be caused to the traffic would be E much more acceptable to the public if part of the road occupied would still E be open to traffic. F F G 387. For the duration of the occupation, from the above discussion, G it was the intention of the Trio that the occupation of the public places and H H roads in or in the neighbourhood of Central would last for an indefinite I period. As I pointed out, the plea made on 27th September 2014 to “over- I cram Admiralty first, and then Central” was made by D1 after the Trio had J J a discussion in the afternoon. The plea to “over-cram Admiralty first, and K then Central” was clearly related to what D1 said immediately after the K plea, i.e. “We must be able to see the arrival of genuine universal suffrage L L in Hong Kong!” In the announcement on 28th September 2014. D1 M demanded that the then Chief Executive Leung Chun Ying should re- M submit a report on constitutional reform failing which the Occupy Central N N movement would be escalated.78 In my judgment, it is obvious that D1 O made the announcement and demand on behalf of D2 and D3. From the O evidence, I am sure that D1 to D3 intended that the occupy movement in P P or in the neighbourhood of Central would be for an indefinite period. Q Q 388. It should be noted the speech by D2 to the crowd at Tim Mei R R th Avenue shortly after the announcement on 28 September 2014 as to how S the protestors should face the Police arrest action was similar to what he S T T 78 Exhibit P124 U U V V  - 133 - A A B B had said back in March 2013. 79 What D2 said in relation to how the C participants should respond to Police arrest is also relevant to the C consideration of the intended duration of the occupation. The Trio, in D D announcing the launch of the Occupy Movement at Tim Mei Avenue, E obviously wanted to merge the supporters for the OCLP with those E participating in the public gathering at Tim Mei Avenue. With the putting F F in the resources by the OCLP into the movement at Tim Mei Avenue as G declared by D1,80 it was clearly the intention of the Trio that the population G of the people participating in the movement at Tim Mei Avenue would H H swell after the announcement. It is true that, to the disappointment of D2, I many participants left the site after the announcement. But it was never I the intention of the Trio to drive people away from the movement at Tim J J Mei Avenue by the announcement. In fact, as D2 said in his evidence, he K felt very touched when he saw many people on Harcourt Road at around K 4:00 p.m. on 28th September 2014. L L M 389. In my judgement, given the way that the OCLP had been M asking the participants how they should respond to Police arrest, given that N N D1 to D3 intended to merge the supporters for OCLP with the participants O in movement at Tim Mei Avenue, it must be clear to the Trio that a Police O clearance action could not be completed within a short period of time, P P hence D1 called for the participants to fortify the defence of the occupied Q site at Tim Mei Avenue, so that the occupy movement would last for an Q undetermined period of time in future. R R S S T T 79 Exhibit P44, page 1329 and Exhibit P100, page 603 80 Exhibit P444, page 1318 U U V V  - 134 - A A B B 390. Given that the notified public meetings at Tim Mei Avenue C started on 26th September 2014, even with the additional purposes to C support and protect the students, the civil disobedience aspect of the D D movement could be effectively signified by an occupation of the public E places and roads in or in the neighbourhood of Central for a much shorter E time. After the announcement was made in the early hours on 28th F F September 2014, D1 to D3 witnessed how the events developed, the firing G of tear gas cannisters and the extensive continued occupation of public G places and roads, e.g. Harcourt Road, by protestors. D1 to D3 witnessed H H the effect of the blockage of the roads had on the traffic. Yet they did not I withdraw from the Occupy Central movement that was causing obstruction I to the public until the announcement to withdraw on 2 nd December 2014. J J In my judgment, if D1 to D3 wanted to keep the obstruction caused by the K occupy movement within the bounds of reasonableness and if D1 to D3 K really had in mind the concept of proportionality in their advocated civil L L disobedience movement, they should have agreed on a movement of a M much smaller scale and duration. M N N 391. Dr McCoy SC submitted that the use of the tear gas by the O Police on the protestors which prompted more people to occupy public O roads could not have been in the contemplation of D1 to D3 at the time P P when the agreement was initially reached in 2013 and the use of tear gas Q on 28th September 2014 was an intervening event (Para. 22 and 23 of D2 Q and D3’s Closing Submissions). R R S 392. In the early hours on 28th September 2014, when D2 addressed S the people at Tim Mei Avenue, he said, amongst other things: T T U U V V  - 135 - A A B “If the police disperse us with tear gas, we, the rally, will make B an announcement about the location where everyone, citizens C who got scattered, can gather afterwards. We will tell everyone C about these measures very soon”.81 D D In my judgment, the use of tear gas by the Police was something that the E Trio clearly had in mind when they decided to make the announcement at E Tim Mei Avenue on 28th September 2014. It is possible that when the F F agreement was initially reached in March 2013, the use of tear gas by the G Police was not in the contemplation of the Trio, but as I said, the agreement G that D1 to D3 had reached in 2013, as the OCLP had developed through H H the 4 stage-process, only became a conspiracy to commit public nuisance I I in September 2014 when the Trio decided to launch the Occupy Central J movement at Chater Road in October 2014. J K K 393. I disagree with Dr McCoy SC’s submissions that the use of L tear gas prompted more people to occupy public roads and it was L something which could not have been in the contemplation of D1 to D3. M M When D1 called for the over-cramming of Admiralty first, and then over- N cramming of Central on 27th September 2017, he must had in mind a N number of turnout which would be enough to over-cram Admiralty and O O Central. A turnout which could over-cram Admiralty and Central was P something the Trio were looking for. In fact, as the events unfolded and P as the occupy movement continued, with more people occupied public Q Q roads in or in the neighbourhood of Central after the use of tear gas, D1 to R D3 did not call for the cessation of the movement. In my judgement, the R Trio wanted to ride with the tide of events, i.e. with a large number coming S S out to occupy public roads, the Trio wanted to make the best use of the T T 81 Exhibit P44, page 1329 U U V V  - 136 - A A B B circumstances to the advantage of the movement. The speech made by D1 C on 10th October 2014 provides a good example of how the Trio saw the C th 82 development of the movement up to 10 October 2014. In my D D judgement, the use of tear gas by the Police did not break the chain of E causation. E F F 394. The location of the Occupy Central, i.e. Chater Road, is in the G core centre of Central, I accept the evidence of D2 why the Trio chose G Chater Road as the location to launch the Occupy Central in October. H H I 395. Dr McCoy SC submitted that the reason for the Trio being I present at Tim Mei Avenue from 27th September 2014 onwards was J J consistent all along: To support the students (Para. 75 of D2 and D3’s K Submissions). K L 396. In my judgment, whilst one of the reasons the Trio turned up L at Tim Mei Avenue from 27th September 2014 was to show their support M M for the students, it is clear from their evidence that the Trio wanted to make N N the best use of the developing situation at Tim Mei Avenue to fight for their O advocated form of universal suffrage for the election of the Chief Executive O of the HKSAR, thus in the announcement made at around 1:36 a.m., D1 P P made the demand, apart from words of support for the students, that the Q then Chief Executive Leung Chun Ying “must re-submit a report on Q constitutional reform which can reflect Hong Kong citizens’ true wish. If R R he fails to do so, the “Occupy Central” action will be escalated.” It is clear S from the evidence that it was one of the purposes of the Trio to fight for S the constitutional reform through the movement at Tim Mei Avenue. In T T 82 Exhibit P128, page 791-794 U U V V  - 137 - A A B B applying the reasonableness test, I accept and take into consideration the C importance of the purposes of the Trio to launch the Occupy Central C th movement at Tim Mei Avenue on 28 September 2014, i.e. to fight for the D D form of universal suffrage in relation to the election of the Chief Executive E advocated by D1 to D3 and to support and protect the students. E F F 397. I have given substantial weight to the protection given by the G Basic Law to the right to peaceful demonstration in the balancing exercise. G I have reminded myself that the bounds of what was reasonable in the H H circumstances in the present case must not be narrowly defined. I I 398. All matters taken into consideration, in my judgment, given J J the estimated number of people participating in the occupation and the fact K that there were a large number of participants at Tim Mei Avenue at the K time of the announcement, given the extent and the intended time and L L duration of the obstruction, the obstruction that would be caused by the M occupation that D1 to D3 announced to carry out on 28th September 2014 M made the obstruction an unreasonable use of the carriageway in or in the N N neighbourhood of Central. O O 399. Applying the reasonableness test in Yeung May Wan. In my P P judgment, the occupy movement that D1 to D3 had agreed to pursue and Q that they announced to launch at Tim Mei Avenue on 28th September 2014, Q if carried out, would necessarily cause obstruction. D1 to D3 knew at the R R time that the obstruction caused by the occupy movement would impinge S unreasonably upon the rights of others. The unreasonableness of the S obstruction was such that the significant and protected right to demonstrate T T U U V V  - 138 - A A B B should be displaced. The obstruction of carriageways in or in the C neighbourhood of Central was an act not warranted by law. C D D 400. In my judgment, the number of persons that would be affected E by the obstruction caused by the occupation of the public places and roads E in or in the neighbourhood of Central between the period 28th September F F 2014 and 2nd December 2014 was sufficient enough to constitute a class of G public. The obstruction caused amounted to a suffering of common injury G by members of the public by interference with rights enjoyed by them as a H H class of the public. I I 401. In my judgment, D1 to D3 each knew the implementation of J J their agreement, i.e. the occupation of the public places and roads in or in K the neighbourhood of Central between the period 28th September 2014 and K 2nd December 2014 would lead to blockage of roads and extensive L L obstruction to traffic. I am sure D1 to D3 each knew what the effect of the M occupation of the carriageways would have on the traffic in or in the M neighbourhood of Central before the announcement on 28th September N N 2014. After the announcement on 28th September 2014 and until the O cessation of the agreement on 2nd December 2014, the effect that the O obstruction of the roads had on the traffic was there for them to see as each P P day passed. I am sure the state of affairs that D1 to D3 intended to bring Q about as a result of their modified agreement to launch the Occupy Central Q movement at Tim Mei Avenue on 28th September 2014 would necessarily R R amount to or involve the commission of the offence of public nuisance. S S 402. As said, the OCLP was started by D1 to D3 in March 2013, T T by September 2014, i.e. by the time Exhibit D3-1 was prepared, D1 to D3 U U V V  - 139 - A A B B had reached an agreement which, if carried out in accordance with their C intentions, would necessarily amount to or involve the commission of the C offence of public nuisance by one or more of the parties to the agreement. D D By 28th September 2014, D1 to D3 had modified the agreement, but the E modified agreement was one which, if carried out in accordance with their E intentions, would still necessarily amount to or involve the commission of F F the offence of public nuisance by one or more of the parties to the G agreement. G H H 403. In my judgment, by the time Exhibit D3-1 was prepared, i.e. I on or around 18th September 2014 till the cessation of the Trio’s I participation in the Occupy Movement on 2nd December 2014, the J J agreement that D1 to D3 had reached, be it the original agreement to K occupy Chater Road or the modified agreement to launch the occupy K movement at Tim Mei Avenue, if carried out in accordance with their L L intentions, would necessarily amount to or involve the commission of the M offence of public nuisance by one or more of the parties to the agreement. M D1, D2 and D3 intended to be parties to an agreement which, if carried out, N N would give rise to a common injury to the public or a significant section of O the public such as to constitute a public nuisance. O P P 404. In my judgment, the OCLP which D1 to D3 started in March Q 2013, had been developed into a conspiracy to commit public nuisance on Q or around 18th September 2014. The conspiracy remained one of R R conspiracy to cause public nuisance and it continued to be so despite the S modifications made after the announcement made on 28th September 2014. S D1 to D3 were parties to the said conspiracy throughout the period from T T nd September 2014 till the cessation of the conspiracy on 2 December 2014. U U V V  - 140 - A A B B C 405. The evidence of adduced by the Prosecution and that of D2 C show that D1 to D3 had been acting as a group throughout, i.e. from the D D time the OCLP was formed in March 2013 till the cessation of the E movement on 2nd December 2014. As said, the agreement that D1 to D3 E had formed in March 2013 had developed into a conspiracy to commit F F public nuisance in that the state of affairs intended by D1 to D3 to be G brought out as a result of the unlawful obstruction of public places and G roads in the neighbourhood of Central would necessarily amount to or H H involve public nuisance. D1 to D3 each intended that public places and I roads would be obstructed by large crowd of people resulting in I unreasonable obstruction blockage of roads and traffic during the indefinite J J period of occupation. K K Conclusion on Charge 1 L L 406. I find all the elements of Charge 1 proved against D1 to D3. M M N Charge 2: “Incitement to commit public nuisance” and Charge 3: N “Incitement to incite public nuisance” (against D1 to D7) O O P 407. For the reasons given in the earlier part of the judgment, D1 P to D7 should be given the benefit of doubt for the incitements made to the Q Q persons present at Tim Mei Avenue to obstruct the pedestrian pavements R and carriageway of Tim Mei Avenue and the incitements made to the R persons present at Tim Mei Avenue to incite others to obstruct the S S pedestrian pavements and carriageway of Tim Mei Avenue. T T U U V V  - 141 - A A B B 408. As said, the ambit of the particulars of offence of Charge 2 C and 3 are wider than that, the particulars of offence for both Charge 2 and C Charge 3 refer to the “public places and roads at and in the neighbourhood D D of Tim Mei Avenue”, not just confined to the pedestrian pavements and E carriageway of Tim Mei Avenue. The condoning off of Tim Mei Avenue E since 26th September 2014 by the Police could not avail a defendant if what F F the defendant did was to incite the persons present at Tim Mei Avenue to G cause a nuisance to the public by unlawfully obstructing places and roads G at and in the neighbourhood of Tim Mei Avenue and not just Tim Mei H H Avenue (“Incitement to commit public nuisance”) or what the defendant I did was to incite the persons at Tim Mei Avenue to incite others to cause a I nuisance to the public by unlawfully obstructing places and roads at and in J J the neighbourhood of Tim Mei Avenue and not just Tim Mei Avenue K (“Incitement to commit public nuisance”). K L L 409. Amongst the addresses/speeches made by D1 to D7 on the M main stage at Tim Mei Avenue between 27th and 28th September 2014, the M defendants, apart from appealing to the people present to occupy Tim Mei N N Avenue and to ask/invite others to do the same, there were also pleas to O occupy Admiralty, Central and Wanchai, and pleas to ask/invite others to O occupy Admiralty, Central and Wanchai. The following pleas by the P P relevant defendant(s) to occupy Admiralty, Central and Wanchai clearly Q went beyond the scope of occupying Tim Mei Avenue, which had been Q cordoned off by the Police since 26th September 2014, i.e. before Charge 2 R R and Charge 3 allegedly took place:- S S (1) In the afternoon on 27th September 2014, when D6 T T addressed the people at Tim Mei Avenue, he said: U U V V  - 142 - A A B B “now we hope that everybody, yes, can really ask more C C people to come out and over-cram Tim Mei Avenue, also, it is hoped that the nearby carriageways will also be D over-crammed, and (we) continued to extend the area D of our civil disobedience.” (Emphasis added)83 E E In my judgment, the above statement of D6 amounted F F to an incitement to the persons present at Tim Mei G Avenue to over-cram the nearby carriageway. G H H (2) On 27th September 2014, when D1 addressed the I people at Tim Mei Avenue in the presence of D2, D4 I and D6, D1 said, amongst other things: J J K “….Let’s over-cram Admiralty first. Where shall (we) K over-cram next? Central! We must be able to see the arrival of genuine universal suffrage in Hong Kong!” L (Emphasis added)84 L M I agree with the Prosecution submissions that ““Incite”, M in its ordinary meaning, means “to rouse, to stimulate, N N to urge or spur on; to stir up; to animate”. An O incitement may involve the “suggestion”, “proposal” or O P “inducement” to commit an offence. It is a question of P fact in each case to decide whether the impugned acts Q Q or words amounted to an incitement to commit an R offence” (Para. 245 of the Prosecution’s Closing). The R authorities cited in support are Young V Cassells (1914) S S T T 83 Exhibit P17, page 1102 84 Exhibit P20, page 1107 and Appendix I of the Prosecution’s Closing Submission U U V V  - 143 - A A B B 33 NZLR 852 (CA), 854 and Invicta Plastics Ltd v C Clare [1976] RTR 251 (DC), 258. C D D In my judgment, the above statement of D1 amounted E to an incitement to the persons present at Tim Mei E Avenue to over-cram Admiralty first, and then Central. F F G (3) On the same occasion, immediately after D1’s address, G D4 echoed D1 (“Benny”) and said in the presence of H H D1, D2 and D6: I I “Hey, let’s go to occupy Admiralty now. Thank you, J Benny. ‘Chung’ (transliteration), now it is the ‘Chung’ J (transliteration) of ‘Kam Chung’ (transliteration) (the name of Admiralty in Chinese). Later, it will be the K ‘Chung” (transliteration) of ‘Chung Wan’ (the name of K Central in Chinese)…..” and “We hope to over- L cramming Tim Mei Avenue, right? Over-cram Tim Mei L Avenue! Over-cram Tim Mei Avenue! Over-cram Tim Mei Avenue! Over-cram Admiralty! Over-cram M Admiralty! Over-cram Admiralty! Good! ….” M (Emphasis added)85 N N In my judgment, the above statement of D4 amounted O O to an incitement to the persons present at Tim Mei P Avenue not only to over-cram Tim Mei Avenue, but P also to over-cram Admiralty and then Central. D4 was Q Q echoing the plea made by D1 to over-cram Admiralty, R and then Central. R S S T T 85 Exhibit P20, page 1107 and Page 1111 and Appendix I of the Prosecution’s Closing Submissions U U V V  - 144 - A A B B (4) In the evening on 27th September 2014, in the presence C of D4 and D7, D6 addressed the people at Tim Mei C Avenue and said: D D E “Right, well, let me tell you a piece of good news rather E than always listening to those things that (make you feel) heavy (-hearted). Well, we, now on the bridge outside F Admiralty, it is still full of people all over the footbridge F (there). They are in the direction of our side, coming towards us here, right. Our (activity) today, should be G G the largest Civil Disobedience (activity) over the years, certainly, the number of people, we have not yet got the H largest of people, but (we) hope that the members of the H public would not remain at our current achievements (attained), let us keep asking more people to come, I over-cramming Admiralty.” I “Well! As what we have seen, actually, there are huge J crowds of people everywhere. Well! We, starting from J Harcourt Road to the entire Tim Mei Avenue, all were (packed with) people, the open space of the Legislative K Council is also full of people, so everybody keeps asking K people to come!” (Emphasis added)86 L L In my judgment, the above statement of D6 amounted M M to an incitement to the persons present at Tim Mei N Avenue to incite others to over-cram Admiralty. N O O (5) In the afternoon on 28th September 2014, when D7 P spoke on the main stage at Tim Mei Avenue, in the P presence of D1, D2 and D5 (on stage) and D3 (below Q Q stage), he said, amongst other things: R R “….However, we know that roughly more than ten S thousand citizens have blocked the road (from) the S Admiralty Centre, the whole of KFC to Rodney Street. At the same time, at the Hong Kong Academy ‘Centre’ T T 86 Exhibit P40, page 1244-1245, and Appendix I of the Prosecution’s Closing Submissions U U V V  - 145 - A A B (sic) of Performing Arts, Wanchai, there are ten B thousand people. Adding (them) up, (we’ve) got a total C of about thirty thousand people here. Here, I am C appealing to all the citizens in Hong Kong to come together – no matter whether (you) can enter the area or D not, go to Admiralty, go to Wan Chai. Let us fill up the D whole of Admiralty (and) Wan Chai. Together, (we) E can besiege the whole of Central Government Offices E from the side of Rodney Street, from the side of the Hong Kong Academy ‘Centre” (sic) of Performing Arts. F We demand --……Let us fill up Admiralty and Wan F Chai together….” (Emphasis added)87 G G In my judgment, the above statement of D7 amounted H H to an incitement to fill up Admiralty and Wanchai. I I It should be noted that the locations mentioned by D7 J J in the said address, e.g. Admiralty Centre, the Central K Government Offices, Rodney Street, the Academy for K Performing Arts are all located in the neighbourhood of L L Tim Mei Avenue. M M (6) In the afternoon on 28th September 2014, when D5 and N N D7 addressed the people at Tim Mei Avenue in the O presence of D1 and D3, D5 and D7 said amongst other O things: P P Q “D5: ……Our –our friends who gather round here to Q watch have already over-crammed two more roads. D7: Hurray! R D5: (The crowd) has already over-crammed two roads R (outside) the Hong Kong Academy for Performing Arts. S D7: And more citizens are coming successively. (Let’s) S continue to occupy the roads together. D5: We are asking more friends to come here, (we are T asking) more friends to come here. Let’s over-cram T 87 Exhibit P69, pages 1545-1546 and Appendix I of the Prosecution’s Closing Submissions U U V V  - 146 - A A B Admiralty. (Let’s) over-cram Wan Chai. (Let’s) over- B cram Central. C D7: Friends on that side, keep it up. We know that some C friends there have already prepared to dash out to occupy the road(s). Let’s cheer them on, shall we? D D5: Comrades, let’s over-cram Wan Chai together. D (Let’s) over-cram Admiralty. (Let’s) over-cram E Central.…..” (Emphasis added)88 E F In my judgment, the above statements of D5 and D7 F amounted to (i) an incitement to the persons present at G G Tim Mei Avenue to over-cram Admiralty, Wanchai and H Central in the neighbourhood of Tim Mei Avenue; and H (ii) incitement to the persons present at Tim Mei I I Avenue to incite others to overcram Admiralty, J Wanchai and Central in the neighbourhood of Tim Mei J Avenue. K K L (7) Later on, D5 and D7 spoke on the main stage at Tim L Mei Avenue in the presence of D1 and D2 (on stage) M M and D3 (below stage) and said: N N “D7: We have got news that…. On the side of Harcourt O Road.. many friends have already gone out onto the road! O (They) have already occupied the road! Hurray! P D5: Occupy the road! P D7: Occupy the road! D5: Occupy the road! Q D7: Occupy the road! Q D5: Occupy the road! D7: Occupy the road! R R D5: Hurray! D7: Hurray! S D5: Hurray! S D7: Hurray!” T T 88 Exhibit P74, pages 1588-1589 and Appendix 1 of the Prosecution’s Closing Submissions U U V V  - 147 - A A B (Emphasis added)89 B C C In my judgment, the above statements of D5 and D7 D amounted to an incitement to the persons present at Tim D Mei Avenue to occupy the carriageways of Harcourt E E Road. It should be noted that Harcourt Road where the F occupation took place in Exhibit P74 is in the F neighbourhood of Tim Mei Avenue. G G H (8) Later on, D5 and D7 spoke on the main stage at Tim H Mei Avenue in the presence of D3 (below stage) and I I said: J J “D5: Our picket has just made a report that the 6 K carriageways of H-Harcourt Road bound for Central as K well as Causeway Bay, the 6 carriageways have already been over-crammed (with people) sitting (there)! We L L have already over-crammed 6 carriageways (with people) sitting (there). Keep coming! Keep coming! M Keep coming! M D7: Keep coming” (Emphasis added)90 N N In my judgment, the above statements of D5 and D7 O O amounted to an incitement to the persons present at Tim P Mei Avenue to occupy the carriageways of Harcourt P Road in the neighbourhood of Tim Mei Avenue. Q Q R (9) Later in the same afternoon, when D7 was on the main R stage at Tim Mei Avenue, he spoke in the presence of S S D5 (on stage) and D3 (below stage) and said: T T 89 Exhibit P74, pages 1591-1592 and Appendix 1 of the Prosecution’s Closing Submissions 90 Exhibit P74, page 1593 and Appendix 1 of the Prosecution’s Closing Submissions U U V V  - 148 - A A B B “We are here to call for more people to come out to over-cram C C Admiralty (and) to over-cram Wan Chai with us. (Let’s) carry on with the Occupy (movement).” (Emphasis added) 91 D D In my judgment, the above statement of D7 amounted E E to an incitement to overcram the public places and F roads in Admiralty and Wanchai in the neighbourhood F of Tim Mei Avenue. G G H (10) Later in the same afternoon, when D7 was on the main H stage at Tim Mei Avenue, he spoke in the presence of I I D2 (on stage) and said: J J “We are here to appeal to our friends who have not yet come to K join us, come quickly to over-cram Admiralty and Wan Chai, K and to occupy this Hong Kong that belongs to us.” (Emphasis L added)92 L M In my judgment, the above statement of D7 amounted M to an incitement to overcram the public places and N N roads in Admiralty and Wanchai in the neighbourhood O of Tim Mei Avenue. O P P 410. The above incitements must be understood in the context of Q the fact that they were made by the relevant defendants at Tim Mei Avenue Q on 27th and 28th September 2014 during a continuous gathering at Tim Mei R R Avenue. When the incitements were made, there were already many S participants at the scene. The districts/locations that the relevant S T T 91 Exhibit P74, page 1594 and Appendix 1 of the Prosecution’s Closing Submissions 92 Exhibit P74, page 1598 and Appendix 1 of the Prosecution’s Closing Submissions U U V V  - 149 - A A B B defendant(s) asked to be over-crammed or filled up must be understood in C context. The defendants were then participating in a public gathering at C Tim Mei Avenue. When a defendant referred to over-cramming or filling D D up of Admiralty/Central/Wanchai, he or she must be referring those parts E of Admiralty/Central/Wanchai in the neighbourhood of Tim Mei Avenue. E Take Wanchai for example, whilst it made sense for a defendant to ask F F supporters to over-cram the roads outside the Academy for Performing G Arts, it did not make sense if a defendant were to ask people to overcram G Wanchai Road or Morrison Hill Road in Wanchai. H H I 411. The incitements were made at a time when the pedestrian I pavements and carriageway of Tim Mei Avenue were occupied by J J protestors. When the defendants asked people to overcram or fill up K Admiralty/Central/Wanchai, he/she must be referring to occupation of K public places, e.g. pedestrian pavements and roads. L L M 412. From the evidence of PW1 and PW2, I am satisfied that no M notification had been made to the Police for the holding of public meeting N N on the carriageways of Harcourt Road (both Wanchai and Central section), O Fenwick Pier Street and Lung Wui Road for the period between 26 th O September 2014 and 11th December 2014. P P Q 413. For the effect of the absence of notification of intention to Q hold a public meeting, I do not agree with the Prosecution that on a charge R R of public nuisance or public nuisance related offence, “in the absence of S prior notification made to the Police, any demonstration or continued S demonstration on those carriageways (all being major thoroughfares T T linking Wanchai and Central District), which were to be open for traffic U U V V  - 150 - A A B B and public use, would be unreasonable in disrupting the traffic and the C passage of the public, and would give rise to a common injury to the public C or a significant section thereof.” (Para. 295 of the Prosecution’s Closing) D D E 414. In my judgment, the absence of notification is one of the E factors, but not the only factor, to be considered in determining whether F F the obstruction caused by an unnotified public meeting is unreasonable. In G considering the degree of reasonableness of an obstruction caused by an G unnotified public meeting, the absence of proper notification is relevant to H H the extent that the Police and the relevant government department(s), e.g. I the Transport Department, would not be able to devise any measures or I make proper arrangements to militate against any obstruction or J J inconvenience that might be caused by the public meeting in the absence K of proper notification. That said, in the context of the common law offence K of public nuisance, to hold that ‘just because a public meeting is an L L unnotified one, therefore any obstruction caused as a result must be M unreasonable’ would have the unwanted effect of inhibiting the exercise of M the citizens’ right to demonstrate. The application of the reasonableness N N test in Yeung May Wan requires the court to take into consideration all the O circumstances, including the extent and duration of the obstruction, the O time and place where the obstruction occurs, as well as the purpose for P P which the obstruction is done. For obstruction caused by a public meeting Q without proper notification, the absence of notification is a relevant factor, Q but not the only factor, to be considered. R R S 415. Likewise, in considering whether an obstruction caused by a S peaceful but unnotified demonstration on public highways is “not T T warranted by law”, the issue is not to be determined by the illegality arising U U V V  - 151 - A A B B from the absence of notification, but whether the conduct under complaint C involves a reasonable use of the highways or public places. C D D 416. For an obstruction caused by a peaceful demonstration, the E protection given by the Basic Law to the right to peaceful demonstration E kicks in, as the Court of Final Appeal held in Yeung May Wan. F F G 417. For the above reasons, the fact that the demonstration on the G carriageways was without any prior notification made to the Police would H H not by itself make the disruption or obstruction to the traffic unreasonable. I The entire circumstances should be considered before a finding on the issue I made. J J K 418. I have set out the statements made by the relevant defendants K which amounted to incitement to over-cram/fill up Admiralty, Central and L L Wanchai and incitement to incite others to do the same. It should be noted M that whilst D1 to D7 should be given the benefit of doubt for their appeal M to the persons at Tim Mei Avenue to occupy the carriageway of Tim Mei N N Avenue and their appeal to the persons at Tim Mei Avenue to incite others O to do the same, some of the speeches made by the relevant defendants O during the period between 27th and 28th September 2014 are also relevant P P to the consideration of their pleas to over-cram/fill up Admiralty, Central Q and Wanchai. As the House of Lords held in Rimmington, it is a requisite Q mens rea for the offence of public nuisance that the accused knew, or ought R R to have known (because of the means of knowledge were available to him) S the consequence of what he did or omitted to do. What a defendant had S said before or around the time the incitement(s) under complaint might T T reveal what that defendant knew or ought to have known. What was said U U V V  - 152 - A A B B by another defendant in the presence of a defendant might constitute means C of knowledge available to the latter. Thus, it is necessary to consider the C relevant defendants had said other than the incitements under complaint, D D i.e. the ones relating to over-cramming of the public places and roads in E the neighbourhood of Tim Mei Avenue. E F F D1 G G Exhibit P32 H H I 419. At around 8:04 p.m. on 27th September 2014, when D1 was I on the main stage with D2, D3 and D5, D1 addressed the people at Tim J J Mei Avenue and said they were going to have the largest scale of K implementation of civil disobedience. He asked the participants to bear in K mind safety, peace, trust, and hope.93 L L M 420. In my judgment, the above speech of D1 shows that D1 knew M that the public meeting which involved occupation of public places and the N N carriageway of Tim Mei Avenue was the largest in terms of scale, what D1 O said in Exhibit P32 sheds light on: (i) the intended scale of the occupation O of Admiralty and Central that he vowed for in the afternoon on 27 th P P 94 September 2014; and (ii) the occupy movement that he announced to Q launch at 1:36 a.m. on 28th September 2014.95 Q R R S S T 93 T Exhibit P32, page 1160-1161 94 Exhibit 20 95 Exhibit P44 U U V V  - 153 - A A B B Exhibit P59 C C th 421. Shortly before mid-day on 28 September 2014, when D1 was D D together with D2, D5 and D7 on the main stage (with D3 below stage) at E Tim Mei Avenue, D1 addressed the people present and said amongst other E things: (i) tens of thousands of citizens had participated in the Civil F F Disobedience Movement on 27th September 2014; (ii) the OCLP fully G supported the occupy movement of the students; and (iii) the G announcement of the launch of Occupy Central movement was not an act H H to highjack the movement of the students as the OCLP all along stood I behind the students.96 I J J 422. In my judgment, what D1 said in Exhibit P59 shows that he K was aware of the negative effect of the announcement he made had on the K occupy movement in progress at Tim Mei Avenue, people were leaving L L after the announcement. D1 thus wanted to reassure the participants of the M movement that the Trio were not hijacking the occupy movement in M progress. D1’s speech in Exhibit P59 also shows that he was aware at the N N time when he called for over-cramming of Admiralty first and then Central O on 27th September 2017, there were already tens of thousands of O participants in the occupy movement in progress. In my judgment, D1 P P intended the scale of occupy movement to escalate and the number of Q supporters to swell when he called for over-cramming of Admiralty first Q and then Central in Exhibit P20. R R S S T T 96 Exhibit P59, page 1457-1458 U U V V  - 154 - A A B B D2 C C Exhibit P64 D D E 423. At around noon time on 28th September 2014, when D2 was E on the main stage with D1, D5 and D7 and D3 below stage, D2 addressed F F the people at Tim Mei Avenue and said: G G “Every, er, voluntary picket (and) supporter of ‘Occupy Central H with Peace’, perhaps today is the first day that you people, the H citizens, come to support this movement. (I) hereby have to make an appeal to you all. This is because in the past few days, the I Police took some unreasonable measures, (used) excessive I violence to deal with the protestors. We suggest that each J voluntary picket, citizen should adopt the effective protest J approach used by the Hong Kong Federation of Students in these few days. If anyone sees that the main stage or the local K commanders needs your help, we are required to block certain K important accesses, strongholds, or similar to what had happened just now, we are required to block some vehicles L L which we think that ‘you’ may affect our entire movement. I hope that you all follow the instruction given by - - the pickets M and our commanders. If there is probably any conflict, we will M raise both hands because we definitely have no intention to harm the bodies of the law enforcers. This is still a non-violent N protest. However, it’s a more aggressive non-violent protest. N Well, therefore, today, we state clearly to our voluntary pickets O and the citizens who participate in it that we continue to adopt O an effective approach that was used in these several days. However, this approach of protest is definitely to remain P peaceful and non-violent. Thank you.” (Emphasis added)97 P Q Q 424. In my judgment, what D2 said in Exhibit P64 and the way he R said it show that the Trio considered that they were key players in the R Occupy Central movement they launched in the early hours on 28 th S S September 2014. The pickets of the OCLP were in action and the Trio T T 97 Exhibit P64, page 1482-1483 U U V V  - 155 - A A B B were able to influence them. The speech of D2 also shows the importance C of the main stage from the perspective of the Trio. What D2 said in Exhibit C P64 also shows that the Trio were prepared to adapt the original plan to the D D situation, hence they were willing to follow the “the effective approach” E that had been used by the students. E F F Exhibit P66 G G 425. Shortly after 1 p.m. on 28th September 2014, when D2 H H followed on D7’s plea to exhaust the manpower of the police to the greatest I extent, D2 addressed the people at Tim Mei Avenue on the main stage, he I said amongst other things: J J K “Civil disobedience means non-cooperation. Therefore, we’ll K not get up and board a police vehicle ourselves to get arrested directly……Just keep your body in a very relaxed state and then L your body would become very heavy indeed. …..We must stay L until the last moment. Stay for one more minute, and we will M triumph for one more minute, right?.....” The other defendants M present were: D7, D3 and D5 (on stage); D1 and D3 (below stage) (Emphasis added)98 N N 426. What D2 said in Exhibit P66 shows that it was the common O O intention of the Trio, D5 and D7 to drain the manpower of the Police so P that the protestors could stay, and the Occupy Central movement could last, P until the last moment. Q Q R R S S T T 98 Exhibit P66, page 1522-1523 U U V V  - 156 - A A B B D3 C C Exhibit P32 D D E 427. At around 8:04 p.m. on 27th September 2014, when D3 was E on the main stage with D1, D2 and D5, D3 addressed the people at Tim F F Mei Avenue after D1. D3 asked the participants not to be intimidated by G the threatening means used by the police at the road junctions. D3 said: G H H “We, just like our guidelines, are sitting arm in arm. We should not be afraid of this police authority…” (Emphasis I added)99 I J 428. What D3 said in Exhibit P30 shows that the Trio and D5 were J asking the participants to follow the guidelines, i.e. the planned action of K K the OCLP. D3’s plea that the participants should sit arm in arm is also L L similar to what D2 said in Exhibit P66 as discussed above. I my judgment, M the purpose of protestors sitting arm in arm at the time of arrest was to drain M the manpower of the Police so that the Occupy Central movement could N N last for an indefinite period of time. O O D4 P P Q Exhibit P7 Q R R 429. In the case of D4, in the morning on 27th September 2014, S when D4 addressed the people at Tim Mei Avenue, as recorded in Exhibit S P7 (Pg. 1015-1018), she called for more people to join the movement at T T 99 U U V V  - 157 - A A B B Tim Mei Avenue and more material supplies for the support of the C movement at Tim Mei Avenue. C D D Exhibit P9 E E 430. At around noon time on 27th September 2014, as recorded in F F Exhibit P9, D4 addressed the people at Tim Mei Avenue on the stage (in G the presence of D1 and D2, who were on and below the stage at various G points of time). In the said address: (i) D4 asked for more people to join H H the movement at Tim Mei Avenue; (ii) she asked for specific items in I support of the movement (iii) she appealed to the people at Tim Mei I Avenue to hold on to the defence lines; (iv) she stated that “All in all, as J J long as the police did not retreat we will insist on staying here”; (v) she K said the people at the main stage had been trying to collect information K from all parties all along; (vi) she instructed the people at Tim Mei Avenue L L how they should respond to Police arrest; (vii) amongst the demands made M by D4 was a demand for genuine universal suffrage and rejection of bad M proposal.100 N N O Exhibit P10 O P P th 431. In the afternoon of 27 September 2014, as recorded in Q Exhibit P10, D4 addressed the people at Tim Mei Avenue on the stage (in Q the presence of D2 and D3, who were on and below the stage at various R R points of time). In the said address: (i) D4 told the crowd how they should S guard the defence lines against the police officers; (ii) D4 asked the S protestors to pay attention to the side of Admiralty Centre and CITIC T T 100 Exhibit P9, page 1044-1050 U U V V  - 158 - A A B B Pacific; (iii) D4 asked the people at other defence lines to monitor the C movement of the police and report to the main stage through the picket C leaders (iv) D4 continued to ask for more people to join the movement at D D Tim Mei Avenue and bring with them appropriate supplies; (v) she E instructed the people at Tim Mei Avenue how they should respond to E Police arrest; (vi) D4 told the crowd that: F F G “(we) heard that more and more citizens are coming for G reinforcement, coming to support us”; H H (vii) D4 told the crowd that it was possible that the police officers were I going to carry the student protestors out from the Civic Square; (viii) D4 I warned the crowd that the police officers on the side of the entrance to Tim J J Mei Avenue might be ready to take action any time; (ix) D4 asked the K people at the front of Tim Mei Avenue to open umbrellas or put up their K hands and to cover their eyes with cling wrap; (x) D4 continued to ask for L L more supporters to come to Tim Mei Avenue with material supplies she M specifically asked; (xi) When D4 asked the crowd to leave a passage for an M ambulance so that it could attend to someone fallen sick, she said, among N N other things: O O “Disobedience – is not about one or two days, or one or two P minutes…”101 P Q Exhibit P11 Q R R th 432. In the afternoon of 27 September 2014, as recorded in S Exhibit P11, D4 addressed the people at Tim Mei Avenue on the stage in S the presence of D2. In the said address: (i) D4 asked everyone to T T 101 Exhibit P10, page 1051-1063 U U V V  - 159 - A A B B participate in civil disobedience; (ii) D4 asked everyone to ask more people C to come to Tim Mei Avenue; (iii) D4 asked the people at Admiralty Centre C and on the bridge to guard the post as the police might need the access at D D Admiralty Centre after the people in the Civic Square had been carried up E there; (iv) D4 asked the protestors to continue to guard various defence E lines against the police (v) D4 asked the people in the Civic Square to stay F F arm in arm and shout out their names upon arrest; (vi) D4 said: G G “…according to our understanding now, civic square has H already been cleared. Friends in the civic square have been H carried away. But, never mind, we will go on staying here. Also, there is a piece of news, …..As said just now, Wong Chi Fung I has been rejected bail and is charged with three offences, three I offences, therefore ……We – but we have to stay here. We have J to uphold our strong will to show our determination. Shall we J continue to stay here. Let’s us applause for ourselves, cheer ourselves up, okay?” 102 K K Exhibit P16 L L M 433. In the afternoon of 27th September 2014, as recorded in M Exhibit P16, D4 and D5 addressed the people at Tim Mei Avenue on the N N stage (in the presence of D1 and D2, who were on stage and below stage at O O different points of time, and D3, who was below stage). In the said address: P (i) D4 told the crowd that yellow flags had been held up but everyone P should get prepared and guard his/her post at various defence lines, e.g. the Q Q ones at CITIC Tower, Lung Wui Road near the roundabout; (ii) D4 told R the crowd how supporters could go to the venue via Tamar Park and the R footbridge at CITIC Tower; (iii) D4 said they were not alone as many S S supporters were going to the venue to support them; (iv) D4 said, because T T 102 Exhibit P11, page 1064-1068 U U V V  - 160 - A A B B of live TV broadcast, a lot of citizens were going to the venue with material C supplies to support the movement; (v) D4 specifically asked the supporters C going to the venue should equip themselves with umbrellas, bottled water, D D hats, sunglasses or goggles; (vi) D4 asked the crowd to sit in a way that a E male protestor should sit next to a female protestors and they should link E their arms for the purpose of increasing the cost of the police carrying them F F away; (v) D4 said she believed the era of disobedience battle had already G begun.103 G H H Exhibit P20 I I 434. In the afternoon of 27th September 2014, D4 addressed the J J people at Tim Mei Avenue, as recorded in Exhibit P20, in the said address, K apart from calling for the over-cramming of Admiralty and then Central, K also asked the people at Tim Mei Avenue to continue to ask more friends L L to go to the venue at Tim Mei Avenue, she said: M M “….Sometimes it is necessary (for us) to be divided into batches. N The policemen will work in shifts, well, it also applies to us. Not N everyone has to sleep here for two, three, four, five, six (or) seven days, right?... Well, if everyone (wants) to keep staying O O (here), well, (you) certainly can. Well, if you intend to go, er, prepare better supplies, (you) are also very welcome (to do P so).”104 P Q 435. It should be noted that Exhibits P7, P9-P11 and P16 were Q recorded between 7:10 a.m. and 4:01 p.m. on 27th September 2014 whereas R R Exhibits P20, in which D4 called for the over-cramming of Admiralty, S S T T 103 Exhibit P16, page 1083-1097 104 Exhibit P20, page 1108 U U V V  - 161 - A A B B followed by Central, was recorded between 4:08 p.m. and 5:57 p.m. on the C same day (Para. 4, 5, 8 and 9 of Admitted Facts II). C D D 436. The speeches made by D4 in Exhibits P7, P9-P11 and P16, E show amongst other things, that D4 intended the public assembly in E progress at Tim Mei Avenue to become a demonstration with mass F F participation and continuous material supplies from the public. D4 knew G that there were many supporters going to join the public assembly at Tim G Mei Avenue. She emphasized the importance of the main stage and H H specific instructions were given to the people present to defend various I defence lines. It was clear from D4’s speeches that constitutional reform I remained an important issue of the movement. The instructions given by J J D4 in respect of how a protestor should conduct himself/herself in an arrest K action shows that D4 intended to increase the cost of the police in any arrest K action so that the occupy movement could carry on for an indefinite [eriod L L of time. M M Exhibit P32 N N O 437. At around 8:34 p.m. on 27th September 2014, when D4 was O on the main stage with D2 and D5, she told the people at Tim Mei Avenue P P that at that moment, there were about thousands of people gathering on the Q footbridge of Admiralty Centre. She said supporters could enter the venue Q of Tim Mei Avenue via Tamar Park or the Academy for Performing Arts R R and the people at Tim Mei Avenue should tell their friends so if they were S asking their friends to go to the venue. D4 also called for material support S T T U U V V  - 162 - A A B B of items needed at the venue. D4 also called for release of the arrested C persons and over-cramming of Civic Square. 105 C D D Exhibit P33 E E 438. At around 9:00 p.m. on 27th September 2014, when D4 was F F on the main stage with D2 and D5, she told the people at Tim Mei Avenue G who did not have a post to go to defend the footbridge of Admiralty Centre. G D4 also asked the people who wanted to join the assembly at Tim Mei H H Avenue to bring with them enough food and water.106 I I 439. At around 9:20 p.m. on 27th September 2014, when D4 was J J on the main stage with D5, she told the people at Tim Mei Avenue to K support the defence lines at the footbridges at Tim Mei Avenue and K Admiralty Centre. D4 also asked the people at Tim Mei Avenue to swap L L the shifts with protestors who had been guarding at various defence lines M for a long time.107 M N N Exhibit P35 O O 440. Later at around 9:48 p.m. in the same evening, when D4 was P P on the main stage with D2, D5 to D7, D4 to D7 each addressed the people Q at Tim Mei Avenue, when D5 said that it was already filled with seated Q people over at the Legislative Council, D4 echoed what D5 said.108 R R S S 105 Exhibit P32, page 1164-1168 T 106 T Exhibit P33, page 1169-1170 107 Exhibit P33, page 1174-1175 108 Exhibit P35, page 1189 U U V V  - 163 - A A B B Exhibit P38 C C 441. At around 10:56 p.m. in the same evening, when D4 was on D D the main stage with D6 and D7, she addressed the people at Tim Mei E Avenue. D4 stressed the importance of the main stage and asked the crowd E to protect the main stage from the police. 109 F F G Exhibit P41 G H H 442. Shortly after midnight on 28th September 2014, when D4 was I on the stage with D6, she told the people at Tim Mei Avenue that the police I had refused to issue a LONO for the public meeting at Tim Mei Avenue J J on Sunday (28th September), hence the assembly in progress was an K unauthorized assembly.110 K L L Exhibit P43 M M 443. Shortly before 1 a.m. on 28th September 2014, when D1 was N N with D1 to D3 on the main stage, D4 asked the people at Tim Mei Avenue O who did not have any post to go to reinforce the defence lines on the O footbridge of United Centre, Lung Wo Road and where Tim Mei P P Avenue connected with Gloucester Road. D4 also called for more people Q to go to provide reinforcement as “a relatively meaningful number of Q citizens present here, the Police will not take any action precipitately.” R R 111 (Emphasis added) S S T 109 T Exhibit P38, page 1224 110 Exhibit P41, page 1259 111 Exhibit P43, page 1306-1308 U U V V  - 164 - A A B B Exhibit P44 C C th 444. Shortly after 2 a.m. on 28 September 2014, when D4 was on D D the main stage with D2 and D7, she addressed the people at Tim Mei E Avenue. In her address, D4 spoke of the importance of the main stage: E F F “…, it is our long-term need that there are friends sitting right in front of the main stage”. (Emphasis added) 112 G G D5 H H I Exhibit P16 I J J 445. In the case of D5, when he addressed the crowd at Tim Mei K Avenue on the stage in the presence of D1, D2 and D4 (all on stage) in the K afternoon on 27th September 2014, he said he was there to support the L L student protestors with a group of teachers at different tertiary institutions, M they approved and applauded what the students had done.113 M N N Exhibit P27 O O P 446. In the evening of 27th September 2014, when D5 addressed P the crowd at Tim Mei Avenue on the stage in the presence of D2 and D6 Q Q (both on stage), D5 said: R R “It comes to an era of protest, everyone is a p…protestor, S everyone is an athlete, everyone is a picket, everyone is a S knifeman who fights for the maximum space…..”114 T 112 T Exhibit P44, page 1337 113 Exhibit P16, page 1082 114 Exhibit P27, page 1126 U U V V  - 165 - A A B B C 447. On the same occasion, when D5 addressed the crowd at Tim C Mei Avenue on the stage in the presence of D6 and D7 (both on stage), he D D said: E E “All along we have many friends, so nice – so nice – to tell us F the present progress. We know how the situation is in general. F Please co-operate with our main stage….” G G He said the HKFS demanded that: (i) all the people arrested should be H released; (ii) the Chief Executive Leung Chun Ying should respond to the H class boycotts and the demand for genuine universal suffrage; (iii) the I I police should apologize. D5 said it was a smart move lately on the part of J the protestors to counter surround the police. He asked the people at Tim J Mei Avenue to use their own way to try to ask their friends to go to the K K venue at 10 p.m. D5 said they would continue to stay behind at the venue L L and he called for the recapture of the Civic Square. Henceforth, they had M entered an era of universal struggle and people from all walks of life were M engaging in universal struggle. D5 also said there would be different N N programmes on the main stage after 8 p.m.115 O O 448. On the same occasion, in the presence of D2 and D6 (both on P P stage), D5 told the people at Tim Mei Avenue that the main stage would Q process and sort out the information supplied to it and would make Q the distribution afterwards. He asked everybody to pay attention to R R the arrangement made by the main stage. D5 asked the people present S to keep calm and continue to participate in the assembly rationally. He S T T 115 Exhibit P27, page1129-1132 U U V V  - 166 - A A B B asked the people present at the assembly to continue to ask more people to C come to the Civil Square. (Emphasis added)116 C D D 449. The above speeches of D5 show that he was not just a E supporter for the student protesters. He was in fact performing the role of E a Master of Ceremonies of the assembly in progress. D5’s speeches also F F show the importance of the main stage. The plea made by D5 to the people G that they should stay behind in the struggle for universal suffrage and the G demand that the then Chief Executive Leung Chun Ying should respond to H H the demand for genuine universal suffrage show that D5 intended the I movement in progress would be for an indefinite period. The fact that D5 I had such intention in the evening on 27th September 2014 is also relevant J J to the issue whether he intended the incitements under complaint for K Charge 2 and Charge 3 would result in obstruction of public places and K roads in the neighbourhood of Tim Mei Avenue for an indefinite period. L L The other defendants who were present were also aware of the situation. M M Exhibit P28 N N O 450. On the same occasion, D5 told the people present at Tim Mei O Avenue (also in the presence of D2 and D6) that according to the news P P round-up of RTHK, the Police had declared at around 7:08 p.m. that the Q assembly at Tim Mei Avenue was an unlawful assembly which would Q affect public safety and the Police appealed to the participants and the R R people on the footbridge to leave in a peaceful and orderly manner as soon S as possible.117 S T T 116 Exhibit P27, page 1135-1137 117 Exhibit P28, page 1140-1141 U U V V  - 167 - A A B B C 451. Later that evening, at around 8 p.m., when D5 addressed the C people at Tim Mei Avenue on the stage in the presence of D1, D2 and D6, D D he told the crowd that 27th September marked the beginning of an era. D5 E announced the evening meeting formally started at 8 p.m. D5, together E with D6 asked the people present to hang in to the end. D5 also asked the F F participants to put on all equipment for preventing pepper spray. 118 G G 452. The above speeches of D5 show that despite the fact the Police H H had declared that the public meeting in progress was an unlawful assembly, I in the evening on 27th September 2014, D2 still asked the participants to I hang in to the end even if use of pepper spray by the Police was by then J J imminent. K K Exhibit P32 L L M 453. At around 8:30 p.m. on 27th September 2014, when D5 was M on the main stage with D4, he asked the people present at Tim Mei Avenue N N to get more friends to join the assembly at Tim Mei Avenue as far as O possible.119 O P P th 454. At around 8:34 p.m. on 27 September 2014, when D5 was Q on the main stage with D2 and D4, D5 echoed D4 and called for release of Q all the arrested persons and demanded the Chief Executive Leung Chun R R Ying to give an explanation about his views in respect of the class boycotts S S T T 118 Exhibit P28, page 1143-1144 119 Exhibit P32, page 1163 U U V V  - 168 - A A B B and the arrests of protestors and genuine universal suffrage. D5 also said C the police should apologize.120 C D D 455. The address of D5 shows that constitutional reform in relation E to universal suffrage was an important issue in the mass demonstration in E progress. F F G Exhibit P33 G H H 456. At around 9:17 p.m. in the same evening, when D5 was on the I main stage with D2, D4 and D6, D5 made an announcement for the I organizers that a large amount of googles and raincoats were badly needed, J J and he asked the people present to ask their friends to bring these items to K the venue.121 K L L Exhibit P35 M M 457. Later at around 9:48 p.m. in the same evening, when D5 was N N on the main stage with D2, D4, D6 and D7, D4 to D7 each addressed the O people at Tim Mei Avenue, D5 said that: O P P “It’s already filled with seated people over at the Legislative Council…..It’s already filled with our seated people over at the Q Legislative Council. however, I still need to ask for more people Q to come, come again, come again after ten o’clock.” 122 R R S S T 120 T Exhibit P32, page 1165-1166 121 Exhibit P33, page 1173 122 Exhibit P35, page 1189 U U V V  - 169 - A A B B 458. Later at around 10:04 p.m. in the same evening, D5 and D6 C addressed the people at Tim Mei Avenue in the presence of D2 (on stage) C and D3 (below stage), D5 and D6 said amongst other things: D D E “Encirclement is strength”. E F D5 also said it was a conservative estimate that there were 50,000 people F participating at Tim Mei Avenue. D5 said amongst other things: G G “We have fifty thousand people here, fifty thousand people, fifty H thousand people. Let me see how you are to clear away fifty H thousand people? Let me see how you are to lock up fifty I thousand people?”123 I J 459. The speeches of D5 in Exhibit 35 show that when D5 later J asked for the over-cramming and occupation of the carriageways of K K Harcourt Road in Exhibit P74, not only did he know that the carriageways L were already full of protestors, he also knew that on the night before, i.e. L 27th September, there was a huge turnout of at least 50,000 people at Tim M M Mei Avenue. He also believed for a mass demonstration with a huge N turnout, it would be difficult for the Police to clear the site and carry out N arrest action. O O P Exhibit P57 P Q Q th 460. In the morning of 28 September 2014, when D5 was on the R main stage. He addressed the people at Tim Mei Avenue, apart from asking R the participants to contact their family members and them to join the S S assembly at Tim Mei Avenue, D5 also told said the Police refused to let T T 123 Exhibit P35, Page 1192-1193 U U V V  - 170 - A A B B some audio equipment be moved into the venue on the ground that the C public meeting in progress was an unlawful assembly. 124 C D D Exhibit P61 E E 461. In the same morning, when D5 was on the main stage with F F D2, D5 addressed the people at Tim Mei Avenue and said the fight they G were putting up in civil disobedience was a “fight in relays”. He asked G each participant leaving the venue should invite two friends to join the H H movement at the venue.125 I I 462. What D5 said in Exhibit P61 shows that he intended the mass J J demonstration in progress at Tim Mei Avenue to carry on for an indefinite K period. K L L Exhibit P59 M M 463. Shortly before mid-day on 28th September 2014, when D5 was N N together with D1, D2 and D7 on the main stage and D3 below stage, D5 O addressed the people at Tim Mei Avenue. He asked the participants to O intercept a police vehicle at Lung Wui Road as there were some legislative P P 126 councillors arrested and taken on board the police vehicle. Q Q 464. In my judgment, whatever the effect of cordoning off Tim Mei R R Avenue might have on the defendants, D5 had no reason to believe that the S S T 124 T Exhibit P57, page 1447 and 1450 125 Exhibit P61, page 1465-1466 126 Exhibit P59, page 1456 U U V V  - 171 - A A B B cordoning off provided a justification for the intercepting a police vehicle C at Lung Wui Road. C D D Exhibit P64 E E 465. Shortly after mid-day on 28th September 2014, when D5 F F addressed the people at Tim Mei Avenue, he asked the people present to G ask their friends to come out to counter-besiege the police defence. D1 to G D3 and D7 were below stage during the said address.127 H H I 466. At around 12:15 p.m., when D5 was on the main stage with I D2, he gave directions to the people present to reinforce the defence at Tim J J Mei Avenue at the direction of Admiralty. He thanked everybody for co- K operating with the main stage. D1 and D7 were below stage during the K address.128 L L M Exhibit P66 M N N 467. At around 12:36 p.m., when D5 was on the main stage with O D2 and D7, D5 asked the people at Tim Mei Avenue to fill up the spaces O for each other. He said amongst other things: P P Q “…., if we can mobilize (our) people further, we will make the Q mobilization.” 129 R R S S T 127 T Exhibit P64, page 1485 128 Exhibit P64, page 1486 129 Exhibit P66, page 1517 U U V V  - 172 - A A B B 468. What D5 said in Exhibits P64 and P66 shows that the main C stage was used as a command centre. D2 and D7 were present at the time. C D D D6 E E Exhibit P17 F F G 469. In the case of D6, when he addressed the crowd at Tim Mei G Avenue on the stage in the afternoon of 27th September 2014130, he asked H H the people at Tim Mei Avenue to call for more supporters to go to Tim Mei I Avenue even though Tim Mei Avenue was already all full. D6 also said I the purposes of the assembly at Tim Mei Avenue were: (i) to ask the then J J Chief Executive of the HKSAR Leung Chun Ying to give an explanation K on what was then happening and on the matter of supporting a K predetermined political reform; and (ii) to wait for the release of the L L protestors arrested inside the Civic Square. D6 criticized the Decision on M 31st August and asked for the breaking through of the gate of the Civil M Square as the first step to break through the framework of the Decision on N N 31st August. D6 said the civil disobedience which was taking place O required mass participation to make it a large-scale civil disobedience. He O said what was going on was probably civil disobedience in progress as road P P was already being occupied. D6 said the number of people was still not Q enough and he asked the people present to ask more friends to join. D6 Q said: R R S “now we hope that everybody, yes, can really ask more people S to come out and over-cram Tim Mei Avenue, also, it is hoped T that the nearby carriageways will also be over-crammed, and T 130 Exhibit P17 U U V V  - 173 - A A B (we) continued to extend the area of our civil disobedience.” B (Emphasis added)131 C C 470. The speech of D6 in Exhibit 17 shows that constitution reform D D was an important topic for the mass demonstration in progress at Tim Mei E Avenue. D6 also called for mass participation in the movement and the E plan to over-cram the nearby carriageways. What D6 said in Exhibit P17 F F reflects the scale and duration of the mass demonstration he had in mind G on 27th September 2014. The plea made by D6 in Exhibit P40 (Pg. 1244- G 1245) to the people at Tim Mei Avenue that they should keep asking people H H to come to over-cram Admiralty, properly understood, must mean the over- I cramming of the public places and roads in the neighbourhood of Tim Mei I Avenue. J J K Exhibit P27 K L L 471. Later in the evening, when D6 addressed the people at Tim M Mei Avenue on the stage in the presence of D2 and D5 (both on stage), he M said, amongst other things: (i) that according to the LONO received from N N the police, the assembly in progress would last until 11 p.m., therefore the O O police would be breaking its promise if they were to take action against the P assembly before that time. D6 said the assembly in progress was a lawful P one with a LONO issued. The police had the duty to assist the members Q Q of the public in exercising their civic rights and it was necessary to open R more areas for the assembly instead of dispersing the people. D6 asked the R people present to ask more friends to go to the venue at Tim Mei Avenue S S to express their support.132 T T 131 Exhibit 17, page 1198-1102 132 Exhibit 27, page 1138-1139 U U V V  - 174 - A A B B C Exhibit P28 C D D 472. Later at around 7:57 p.m. in the same evening, when D6 E addressed the people at Tim Mei Avenue on the main stage in the presence E of D1 and D2 (both on stage), D6 said that a red banner was raised at the F F “Chiu Mun” (transliteration) of United Centre. He asked the people G present to continue to appeal to their friends to keep going to the venue at G Tim Mei Avenue.133 H H I 473. Later at around 8 p.m. in the same evening, when D5 I announced the evening meeting started at 8 p.m., D5 and D6 asked the J J people present to hang in till the end.134 K K Exhibit P33 L L M 474. Later at around 9:16 p.m. in the same evening, when D6 M addressed the people at Tim Mei Avenue in the presence of D2, D4 and D5 N N (all on stage), D6 asked the people present to keep providing reinforcement O at the bridge of Admiralty Centre. D6 said: O P P “Well, everyone, please keep asking your friends on Facebook, asking your relatives (and) friends to keep, er, providing Q reinforcement?” 135 Q R R 475. The above speeches of D6 in Exhibits P28 and P33 show that S it was the intention of D6 that the mass demonstration in progress at Tim S T 133 T Exhibit 28, page 1142 134 Exhibit 28, page 1143-1144 135 Exhibit P33, page 1172 U U V V  - 175 - A A B B Mei Avenue should last for an indefinite period. In my judgment, it follows C that the intended duration of the over-cramming of “nearby carriageways” C and Admiralty in Exhibits P14 and P49 must also be indefinite. D D E Exhibit P32 E F F 476. Later at around 9:48 p.m. in the same evening, when D6 was G on the main stage with D2, D4, D5 and D7, D4 to D7 each addressed the G people at Tim Mei Avenue, D6 said amongst other things, that it was the H H main stage which drew most people’s attention. He asked the people I present to listen carefully to the information disseminated by the main I stage. He advised how new supporters could enter the venue at Tim Mei J J Avenue.136 K K 477. The above speech of D6, said in the presence of D2, D4, D5 L L and D7, shows the importance of the main stage. M M Exhibit P35 N N O 478. Later at around 10:04 p.m. in the same evening, D5 and D6 O addressed the people at Tim Mei Avenue in the presence of D2 (on stage) P P and D3 (below stage), D5 and D6 said amongst other things “Encirclement Q is strength”. D6 also said the number of participants at Tim Mei Avenue, Q estimated to be 50,000 people, marked a new record high for civil R R disobedience. He asked if the people present were afraid of being S arrested.137 S T T 136 Exhibit P32, page 1185-1186 137 Exhibit P35. Page 1192-1193 U U V V  - 176 - A A B B C 479. The speech of D6 in Exhibit P35 was made before D6’s plea C to over-cram Admiralty. In other words, when D6 asked the people at Tim D D Mei Avenue to keep asking more people to join the movement to over- E cram Admiralty, he knew that there were already 50,000 people at Tim Mei E Avenue. F F G Exhibit P37 G H H 480. Later at around 10:24 p.m. in the same evening, when D5, D6 I and D7 addressed the people at Tim Mei Avenue in the presence of D1, D2 I and D4 (all on stage), D6 said amongst other things: J J K “All right, and, er, the friends by the sides, please pay attention. K This’s because we are going to command the friends by the sides, probably some duties of causing obstruction. Regarding L the people at er, Lung Wui Road, near Lung Wui Road, and the L people near CITIC Tower, well, try - - (you) can try to make use M of the resources nearby to cause obstruction.” M N D6 said the protestors must defend the stage and would not leave until the N arrested student leaders were released.138 O O P Exhibit P38 P Q Q 481. At around 10:56 p.m. in the same evening, when D6 was on R the main stage with D4 and D7, D6 addressed the people at Tim Mei R Avenue. D6 told the people present that more people were needed at Lung S S T T 138 Exhibit P37, page 1212-1213 U U V V  - 177 - A A B B Wui Road near Legislative Council and he asked supporters who were C available to help to move over there.139 C D D 482. At around 11:06 p.m. in the same evening, when D6 was on E the main stage with D4 and D7, D6 told the people how they should E conduct themselves to slacken the speed of clearing the site by the F F police.140 G G 483. What D6 said in Exhibits P37 and P38 in the presence of D1, H H D2 and D7 were just a few of the many incidents the main stage was used I as a command centre in the movement. I J J Exhibit P44 K K 484. After the announcement to launch the Occupy Central L L movement made by D1 at around 1:36 a.m. on 28th September 2014, D6 M chanted slogans with D1 to D3 and D7 on the stage, amongst the slogans M chanted by D6 was “Occupy Central formally begins”, chanted twice by N N D6. D6 also addressed the people at Tim Mei Avenue, in the presence of O D2 and D4, and he said amongst other things: O P P “….Well, everyone just heard the official announcement. We move on a new chapter of democratic movement. Everyone, let Q us, ask more people to come out.” (Emphasis added)141 Q R R S S T 139 T Exhibit P38, page 1225-1126 140 Exhibit P38, page 1230 141 Exhibit P44, page 1332 U U V V  - 178 - A A B B Exhibit P45 C C th 485. In the early hours on 28 September 2014, when D6 was on D D the main stage with D2, D4 and D7, D6 addressed the people at Tim Mei E Avenue and said amongst other things “I think, here, the understanding E everyone has today about this movement, why I - - we- - our class boycott F F this time successfully made Occupy Central start earlier.” (Emphasis G added)142 G H H 486. The speeches made by D6 in Exhibits P44 and P45 show that I it was the intention of the HKFS and the Trio to announce the launch of I the Occupy Central at 1:36 a.m. on 28th September 2014. J J K Exhibit P48 K L L 487. On the issue whether the main stage was used as a command M centre, it should be noted that at around 3:42 a.m. on 28th September 2014, M when D6 was on the main stage with D1 to D3 and D7, D6 addressed the N N people at Tim Mei Avenue. In the said address, D6 said the main stage O would still be used as a command centre after the assembly was over. The O command centre, i.e. the main stage, would give directions to the people P P 143 present as to where they should keep guard. Q Q R R S S T T 142 Exhibit P45, page 1370 143 Exhibit P48, page 1399 U U V V  - 179 - A A B B D7 C C Exhibit P27 D D E 488. In the case of D7, when he addressed the crowd on the stage E in the presence of D2, D5 and D6 (all on stage) at Tim Mei Avenue in the F F afternoon of 27th September 2014, he said: (i) he was a representative of G the HKFS and he thanked all those who stayed at Tim Mei Avenue; (ii) he G condemned the police for the attack on the protestors the night before; (iii) H H that the then Chief Executive of the HKSAR Leung Chun Ying had not I responded to the demand made by HKFS earlier that morning, ie he should I give an explanation for his decision to attack the citizens and that all J J arrested persons should be released; (iv) D7 asked the participants at Tim K Mei Avenue to stay with the HKFS until the Government responded to K these two requests; (vi) D7 called for the people at Tim Mei Avenue to L L continue to appeal to their friends and relatives to go to the venue at Tim M Mei Avenue to support the movement; (vii) D7 called for material supplies M be brought to the venue; (viii) D7 asked the people at Tim Mei Avenue to N N ask others to counter-besiege the police: O O “even though (they) cannot enter the venue, (I) hope (you) would P ask your relatives and friends to come and counter- P besiege ,…”144 Q Q 489. The speech of D7 shows that the tactic of counter-besieging R R the Police he advocated in the presence of D2, D5 and D6 was to besiege S the police officers who were besieging the venue from outside. S T T 144 Exhibit P27, page 1127-1128 U U V V  - 180 - A A B B Exhibit P35 C C 490. At around 9:48 p.m. on 27 September 2014, when D7 was on D D the main stage with D2, D4, D5 and D6, D4 to D7 each addressed the E people at Tim Mei Avenue, D7 said amongst other things; (i) although the E police had stated that the assembly at Tim Mei Avenue was an illegal one, F F D7 believed the people at the venue were not frightened. The HKFS G appealed to the people at Tim Mei Avenue to consider whether they would G stay at the venue after considering and balancing the pros and cons; (ii) D7 H H appealed to the people present to ask their friends to go the venue via I Tamar Park; (iii) D7 also said:- I J J “Here, we want to appeal to everyone, to ask more friends to come, bringing over all the supplies and counter-circle the K Government. Would you all be frightened of the ruling power?” K (Emphasis added)145 L L 491. In Exhibit P35, D7 advocated once again the move of counter- M M besieging, this time in the presence of D2, D4, D5 and D6. By that time, N D7 knew that the Police had declared the assembly in progress was an N unlawful assembly. D2, D4, D5 and D6 who were present, were also O O aware of the situation. P P Exhibit P38 Q Q R 492. At around 10:55 p.m. on 27th September 2014, when D7 was R on the main stage with D4 and D6, D7 asked the people at Tim Mei Avenue S S to go to the end of Lung Wui Raod to counter-besiege the police. D7 said T T 145 Exhibit 35, page 1186-1187 U U V V  - 181 - A A B B it was necessary to build an effective defence line at Legislative Council C and Lung Wu Road.146 C D D 493. In Exhibit P38, D7 advocated once again the use of the tactic E of counter-besieging the police, this time he did it in the presence of D4 E and D6. F F G Exhibit P40 G H H 494. At around 11:24 p.m. in the same evening, when D7 was with I D4 and D6 on the main stage, he said to the people at Tim Mei Avenue:- I J J “Well! As what we have seen, actually, there are huge crowds of people everywhere. Well! We, starting from Harcourt Road K to the entire Tim Mei Avenue, all were (packed with) people, K the open space of the Legislative Council is also full of people, so everybody keeps asking people to come!” D7 echoed and L L said “But, let’s not be satisfied with the current situations because we got quite a lot of news that the police were trying to M make some attacks at different areas…….” (Emphasis added)147 M N 495. What D7 said in Exhibit P40 shows that as D7 urged the N supporters to counter-besiege the Police, he also continued to ask for more O O supporters to join the movement. Bearing in mind the essence of the tactic P of counter-besieging was that the supporters should counter-besiege the P Police from outside, an increase in the numbers of supporters at various Q Q places, e.g. Harcourt Road and the Academy for Performing Arts, meant R R that there would be more people gathering outside the venue at Tim Mei S S T T 146 Exhibit P38, page 1222 and 1125 147 Exhibit P40, page 1244-1245 U U V V  - 182 - A A B B Avenue. In my judgment, D7 was aware of the situation, so were D4 and C D6, who were present. C D D Exhibit P43 E E 496. At around 1:33 a.m. on 28th September 2014, when D7 was F F with D1 to D3 and D6 on the main stage, D7 addressed the people at Tim G Mei Avenue, in his speech, D7 explained how the constitutional reform G was related to the civil disobedience movement in progress, with 10,000 H H citizens participating. D7 also said:- I I “Here, we are making history. Today. We are going to - - we J are going to make an announcement a moment later.”148 J K Exhibit P44 K L L th 497. At around 1:36 a.m. on 28 September 2014, immediately M before the announcement by D1, D7, who was on the stage with D1 to D4 M and D6, addressed the people at Tim Mei Avenue and said:- N N O “The Occupy Central trio will put their resources into this O movement and promote this movement for democracy together P with us, with the students and with every citizens. Disobedience P or deliberation on our city’s future is not (something) that can be undertaken by one exclusive group, by the Occupy Central Q trio, by HKFS, or by Scholarism……..We, students, hereby Q make an announcement today: today will be our disobedience – it’s the day of community-wide civil disobedience. From R R here, together we will get ready to occupy Central. Without the support of everyone of you here, this movement would not have S been possible. Here, we appeal to the many of (you) that starting S from tomorrow, call upon all your friends and relatives to join T T 148 Exhibit P43, page 1316-1317 U U V V  - 183 - A A B us, to come out to overthrow this autocratic constitutional B system together, okay?” (Emphasis added)149 C C 498. In my judgement, the above speeches of D7 in Exhibits P43 D D and P44 show: (i) constitution reform remained an important theme of the E movement in progress at Tim Mei Avenue, together with other themes, e.g. E to support the arrested protestors. As said, it would take time for the F F Government to respond to the demand for constitutional reform on issue as G important as the universal suffrage for the election of the Chief Executive G of the HKSAR; and (ii) the announcement referred to by D7 in Exhibit P43 H H must be the announcement D7 made in Exhibit P44, i.e. I I “…We, students, hereby make an announcement today: today J will be our disobedience – it’s the day of community-wide civil J disobedience. From here, together we will get ready to occupy K Central.” K L 499. The above announcement of D7 shows that the HKFS was L prepared to launch the Occupy Central movement, which they saw as a M M civil disobedience movement, with the OCLP, that was why D7 said they N would get ready “to occupy Central”. If it was all along the understanding N of D7 that the HKFS only expected the OCLP to put in the resources of the O O OCLP in support of the movement in progress in Tim Mei Avenue without P announcing the launch of the Occupy Central movement, I do not think D7 P would say what he said in Exhibits P43 and P44. Q Q R 500. It should also be noted that immediately after the R announcement by D1, D6 and D7 chanted with D1 to D3, amongst the S S T T 149 Exhibit P44, page 1318-1319 U U V V  - 184 - A A B B slogans chanted was “Occupy Central formally begins” 150 , D7 then C addressed the people at Tim Mei Avenue and said:- C D “Here, I want to say (something) to everyone here(:) with the D many of (us) having come forward, everyone, do (you) still think the Police is able to continue to attack us, the citizens? Let us E go down this path of democracy together, okay? No civic E nomination…then (go for) civil disobedience. No civic F nomination…then (go for) civil disobedience.” F G D6 and D7 showed considerable comradeship with the Trio and the OCLP G at the time and immediately after the announcement of the launch of the H H Occupy Central movement. I I Exhibit P45 J J K 501. In the early hours on 28th September 2014, D7 addressed the K people at Tim Mei Avenue in the presence of D4, D5 and D6. D7 said L L amongst other things:- M M “… Are we able to safeguard every one of us again, (and) hold N this defence line today? (I) hope that (you), friends, will N continue to provide reinforcement to the key locations, I repeat O once again, including Harcourt Road, that is the stronghold at O Harcourt Road off Tim Mei Avenue, including the stronghold (from) the exit of the Legislative Council (Complex) car park to P this, CITIC Tower; including friends at the roundabout on Lung P Wui Road on that side, and also including the exit of the Legislative Council Demonstration Square…” and “It’s Q Q everyone in the crowds here who has enabled Occupy Central to start today. As long as we can persevere (with it), the next R step will be the road to universal suffrage….” (Emphasis R added)151 S S T T 150 Exhibit P44, page 1321-1326 151 Exhibit P45, page 1342 and 1347 U U V V  - 185 - A A B B 502. The above speech of D7, said in the presence of D4 to D7, C apart from showing a strong determination to carry on the occupy C movement after the announcement by the Trio at 1:36 a.m., it also shows D D that D7 of the HKFS saw they had launched the Occupy Central movement E with the Trio and they were fighting for their advocated form of universal E suffrage, not just for the protection of student leaders arrested. It should be F F noted that the part of Harcourt Road referred to by D7 was the part of G Harcourt Road off Tim Mei Avenue, the location where there was a flower G bed. H H I Exhibit P48 I J J 503. On the issue whether the main stage was used as a command K centre, it should be noted that at around 3:49 a.m. on 28th September 2014, K when D7 was on the main stage with D1 to D4, D7 said amongst other L L things:- M M “S-starting from this part… … our stage will turn into a N command centre from a spotlight one. We’ll keep releasing N information about the defense deployment of the police to you.” D7 also said “Well, you should do what I have just said when O O you expect that you may be arrested……..However, if, unfortunately, (you) are carried away; when you are being P carried away, remember to fold your arms and legs, only by P doing so could (you) obstruct the police power…” (Emphasis added)152 Q Q R R S S T T 152 Exhibit P48, page 1400-1401 U U V V  - 186 - A A B B Exhibit P53 C C th 504. In the morning of 28 September 2014, when D7 was on the D D main stage with D1 to D3 and D5, D7 addressed the people at Tim Mei E Avenue. He appealed to more people to participate in the movement. He E suggested that many spontaneous activities could be organized at the F F venue. He said:- G G “By the time we’ve got sufficient people to come out, we can go H on to fight for the constitutional future and the constitutional H democracy that belong to Hong Kong.” He said with reinforcement by supporters, “..we can put down roots I here…after we have occupied the place, how are we going to do I when it comes to giving this place its meaning?” (Emphasis J added)153 J K 505. In the above speech of D7, he showed once again K constitutional reform was an important purpose of the movement in L L progress. The suggestion by D7 that the participants could “put down M roots” at the venue shows that D7 intended the occupation movement at M Tim Mei Avenue to be an indefinite one. It follows that when D7 asked N N the people to fill up Admiralty and Wanchai and when he asked the people O to give encouragement to the people dashing out to occupy the road(s),154 O the intended duration of the over-cramming of Admiralty and Wanchai P P must also be for an indefinite period. D1 to D3 and D7, who were present, Q were aware of the content of D7’s speech and the situation. Q R R S S T T 153 Exhibit P53, page 1423-1425 and 1427-1428 154 Exhibit P69 (pages 1545-1546) and Exhibit P74 (pages 1588-1598) U U V V  - 187 - A A B B Exhibit P66 C C th 506. At around 12:32 p.m. on 28 September 2014, when D7 was D D on the main stage with D2 and D5, D7 addressed the people at Tim Mei E Avenue and asked them to keep on asking more friends to come to E counter-besiege the cordon line of the police.155 F F G 507. At around 12:55 p.m. on 28th September 2014, when D7 was G on the main stage with D2 and D5, D7 addressed the people present and H H asked them to call for more friends to go counter-besiege the police. D1 I was below stage during the said address.156 I J J 508. The plea made by D7 in Exhibit P66 was not to ask the new K supporters joining the movement to enter the venue at Tim Avenue, but to K counter-besiege the cordon line of the police. D1, D2, D5 and D7 were L L aware of the plea made by D7 and the situation. M M 509. Shortly after 1 p.m. on 28th September 2014, when D7 N N addressed the people at Tim Mei Avenue on the main stage, he said O amongst other things:- O P “However, if a comrade is being carried away from the site, we P should sprawl out (and) relax your body, it’s because this is the Q way to exhaust the manpower of the police to the greatest Q extent.” (Emphasis added)157 R R 510. In my judgment, it was the clear intention of D7 that the S occupy movement should last for an indefinite period of time, hence he S T 155 T Exhibit P66, page 1515 156 Exhibit P66, page 1520 157 Exhibit P66, page 1522 U U V V  - 188 - A A B B asked the people to conduct themselves in a way that would have the effect C of exhausting the manpower of the police to the greatest extent. C D D Exhibit P67 E E 511. At around 1:34 p.m. on 28th September 2014, when D7 was F F on the main stage with D1 to D3 and D5, D7 spoke in the presence of D1 G to D3 and D5, he said:- G H H “Here, we are appealing to all (our) friends, for those of (you) who are watching the live broadcast, if you want to come and I support (us), the bridge at Admiralty (Centre) has been closed I already, we appeal to all of you (our) friends to go to, go to Lung Wui Road from another bridge to do a counter besiege. Go to J J the Academy for Performing Arts from another bridge and then counter-besiege the police on Lung Wui Road.” K (Emphasis added)158 K L 512. At around 1:45 p.m. on 28th September 2014, when D7 was L on the main stage with D1, D2 and D5, D7 addressed the people at Tim M M Mei Avenue and said:- N N “Here, we are appealing to all of you (our) friends in Hong O Kong, friends who are seeking democracy in Hong Kong, no O matter if you are willing to bear the criminal responsibility or P not, I will also appeal to you, come here as soon as possible, to P this place to counter-besiege the police, it’s because counter- besieging the police does not amount to an act of disobedience, Q it is not necessary to bear such legal risk. Certainly, if the police Q can show (and) say that you have obstructed (them) in their duty, that will certainly be another story. However, we believe if R R sufficient people come out to counter-besiege the police, the police will have no way to clear the site.” (Emphasis added)159 S S T T 158 Exhibit P67, page 1529-1531 159 Exhibit P67, page 1533 U U V V  - 189 - A A B B Exhibit P68 C C th 513. At around 2:34 p.m. on 28 September 2014, when D7 was D D on the main stage, he addressed the people at Tim Mei Avenue that the E crowds supporting the movement at Lung Wui Road had already spread to E the Hong Kong Academy for Performing Arts. Other defendants present F F were: D1, D2 and D5 (on stage); D3 (below stage).160 G G 514. The above speech of D7 in Exhibit P68 shows that at around H H 2:34 pm, D7 knew that there were a lot of supporters at the Academy for I Performing Arts; the Trio were also aware of the situation at the time as I they were present. J J 515. When D7 addressed the people again at around 3:27 p.m., in K K the presence of D1, D2 and D5 (on stage) and D3 (below stage), D7 knew L there were roughly more than 10,000 people blocking “the road from L Admiralty Centre, the whole of KFC to Rodney Street” and there were M M another 10,000 people the Academy for Performing Arts, it was against N N this background that D7 spoke on the main stage at Tim Mei Avenue and O called for the filling up of the whole of Admiralty and Wan Chai, and the O besiege of the Central Government Offices from the side of Rodney Street P P and from the side of the Academy for Performing Arts.161 Q Q 516. From the video evidence and transcripts before me, I am R R aware that there were many instances where people at Tim Mei Avenue S were asked by the relevant defendants to fortify various defence lines at S T T 160 Exhibit P68, page 1539 161 Exhibit P69 and P74 U U V V  - 190 - A A B B Tim Mei Avenue, e.g. the junction of Harcourt Road and Tim Mei Avenue C and the roundabout at the junction of Tim Mei Avenue and Lung Wui C Road. D D E 517. Given my findings of the possible effect of the cordoning off E the carriageway of Tim Mei Avenue had on D1 to D7. I find that the F F Prosecution fails to prove that D1 to D7 had the mens rea (i) to incite the G people present at Tim Mei Avenue to cause public nuisance at Tim Mei G Avenue; (ii) to incite the people present at Tim Mei Avenue to incite H H others to cause public nuisance at Tim Mei Avenue. I I 518. However, the pleas by the relevant defendants to the people at J J Tim Mei Avenue to occupy the public places and carriageway of Tim Mai K Avenue is relevant to the consideration of the intended duration of the K occupation of the roads in Admiralty, Central and Wanchai in the L L neighbourhood of Tim Mei Avenue. In my judgment, if the relevant M defendants intended the occupation of Tim Mei Avenue should be for an M indefinite period, when they incited the incitees or incited the incitees to N N incite others to occupy public places or roads in Admiralty, Central and O Wanchai in the neighbourhood of Tim Mei Avenue, it must be the O intention of the relevant defendants that the occupation of these public P P places and roads should also be for an indefinite period of time, bearing in Q mind the importance of the tactic of “counter-besieging the police” Q emphasized in the speeches of the relevant defendants. R R S 519. I now turn to the incitements made by the relevant defendants S to obstruct public places and roads in the neighbourhood of Tim Mei T T Avenue. U U V V  - 191 - A A B B C The Words of Incitement by D1 in Exhibit P20 C D D 520. At around 4:10 p.m. on 27th September 2014, when D1 E addressed the people at Tim Mei Avenue in the presence of D2, D4 and E D6, D1 said, amongst other things:- F F G “….Let’s over-cram Admiralty first. Where shall (we) G over-cram next? Central! We must be able to see the arrival of genuine universal suffrage in Hong Kong!” H (Emphasis added)162 H I I 521. In my judgment, the above statement of D1, which amounted J to an incitement to the persons present at Tim Mei Avenue to over-cram J Admiralty first and then Central, was made to the people at Tim Mei K K Avenue and heard by those within the audibility range of the public address L system. L M M 522. It was all along the plan of the Trio that their Occupy Central N movement when implemented, would involve occupation of the public N roads by protestors. By calling for the over-cramming of Admiralty and O O Central, D1 clearly meant the occupation of the public places and roads in P Admiralty and Central. As discussed, the occupation D1 incited was not P an occupation of any public place or road in Admiralty and Central, but Q Q the occupation of “public places and roads in the neighbourhood of Tim R Mei Road”. It was through the occupation of the public places and roads R in the neighbourhood of Tim Mei Road that the student movement at Tim S S Mei Avenue would be supported. T T 162 Exhibit P20, page 1107 U U V V  - 192 - A A B B C 523. In my judgment, the reference to “the arrival of genuine C universal suffrage” in Hong Kong in the incitement shows that the D D occupation was intended to be for an indefinite period. As discussed, it E would take time for the Government to consider and respond to the demand E for constitutional reform. F F G 524. I have taken onto consideration all the circumstances leading G to the making of the incitement by D1 in Exhibit P20. In my judgement, H H the scale of the occupation was extensive, both Admiralty and Central were I important commercial districts and the roads in the district were important I thoroughfares, as they always have been. The intended occupation was for J J an indefinite period. On the other hand, I am aware that the occupation K advocated was a peaceful one and the purpose of the occupy movement K was to strive for universal suffrage. In my judgment, what D1 incited the L L people at Tim Mei Avenue in Exhibit P20 to do was not a reasonable use M of the roads in Admiralty and Central in the neighbourhood of Tim Mei M Square. The obstruction to the traffic and inconvenience caused to the N N public would be so serious that would exceed the bounds of reasonableness O and the protection given by the Basic Law to the right to peaceful O demonstration. I find that the obstruction that would be caused was not P P warranted by law. Q Q 525. From the computer certificates,163 I am satisfied that the over- R R cramming of the public places and roads in the neighbourhood of Tim Mei S Road would result in the suffering of common injury by common member S of the public. T T 163 Exhibits P145-147 U U V V  - 193 - A A B B C 526. From the evidence, I am sure that when D1 made the C incitement in Exhibit P20, he intended that the incitees, i.e. the people at D D Tim Mei Avenue would do the act incited by him, i.e. obstructing public E places and roads in the neighbourhood of Tim Mei Avenue, with the mens E rea of public nuisance, i.e. the incitees knew, or ought to have known F F (because of the means of knowledge were available to him) the G consequence of what they did. In this case the incitees were the people G participating in the public assembly at Tim Mei Avenue, and hence, they H H must be aware of what was going on at the time of the incitement and what I the effect of an indefinite obstruction of the roads in the neighbourhood of I Tim Mei Avenue would be if they acted as incited. J J K 527. In my judgment, on the basis of what D1 said in Exhibit P20, K i.e.: L L “….Let’s over-cram Admiralty first. Where shall (we) over- M cram next? Central! We must be able to see the arrival of M genuine universal suffrage in Hong Kong!”, N N D1 had unlawfully incited persons at Tim Mei Avenue, Admiralty to cause O O a nuisance to the public by unlawfully obstructing public places and roads P in the neighbourhood of Tim Mei Avenue without need to resort to the P doctrine of joint enterprise as a basis for liability. Q Q R The Words of Incitement by D4 in Exhibit P20 R S S th 528. At around 4:10 p.m. on 27 September 2014, after the T incitement by D1, D4 addressed the people at Tim Mei Avenue in the T U U V V  - 194 - A A B B presence of D1, D2, and D6, D4 echoed D1 (“Benny”) and said, amongst C other things:- C D D “Hey, let’s go to occupy Admiralty now. Thank you, Benny. ‘Chung’ (transliteration), now it is the ‘Chung’ (transliteration) E of ‘Kam Chung’ (transliteration) (the name of Admiralty in E Chinese). Later, it will be the ‘Chung” (transliteration) of ‘Chung Wan’ (the name of Central in Chinese)…..” and “We F hope to over-cramming Tim Mei Avenue, right? Over-cram Tim F Mei Avenue! Over-cram Tim Mei Avenue! Over-cram Tim Mei G Avenue! Over-cram Admiralty! Over-cram Admiralty! Over- G cram Admiralty! Good! ….” (Emphasis added)164 H H 529. In my judgment, the above statement of D4 which amounted I to an incitement to the persons present at Tim Mei Avenue to over-cram I Admiralty first and then Central, was made to the people present at Tim J J Mei Avenue and heard by those within the audibility range of the public K K address system. L L 530. The use of the word “over-cram” shows the number of M M participants intended by D4 would be enough to over-cram Admiralty and N Central. The words used by D4, i.e. ‘Chung’ (transliteration), now it is N the ‘Chung’ (transliteration) of ‘Kam Chung’ (transliteration) (the name O O of Admiralty in Chinese). Later, it will be the ‘Chung” (transliteration) P of ‘Chung Wan’ (the name of Central in Chinese)…..” show that D4 P intended the occupation would last for a period of time. D4 was clearing Q Q echoing what D1 had said about “the arrival of genuine universal suffrage” R as a result of the occupy movement. What D4 said in Exhibit P20 was R consistent with what she had said earlier, i.e. the speeches in Exhibits P7, S S P9 to 11 and P16. For the reasons given in my foregoing analysis, it is T T 164 Exhibit P20, page 1107 and Page 1111 U U V V  - 195 - A A B B clear from the speeches made by D4 in these exhibits that she intended to C prolong the occupy movement as long as possible. In my judgment, D4 C was inciting the people at Tim Mei Avenue to occupy the public places and D D roads in the neighbourhood of Tim Mei Avenue for an indefinite period. E E 531. It should be noted that the incitement by D4 in Exhibit P20 F F was made at a time when the carriageway of Tim Mei Avenue was G occupied by protestors and the traffic of Tim Mei Avenue was completely G blocked. By calling for the over-cramming of Admiralty and Central, D4 H H clearly meant the occupation of the public places and roads in Admiralty I and Central. Given the use of the words ‘occupy’ and ‘over-cramming’ I and the fact that the protestors at Tim Mei Avenue were on both the J J pavements and the carriageway of Tim Mei Avenue, in my judgment, a K clear message was sent to the audience at Tim Mei Avenue that they were K asked to over-cram not just public places, but also roads of Admiralty and L L Central in the neighborhood of Tim Mei Avenue. M M 532. As discussed, the occupation that D4 incited was not an N N occupation of any public place or road in Admiralty and Central, but the O occupation of “public places and roads in the neighbourhood of Tim Mei O Road”. It was through the occupation of the public places and roads in the P P neighbourhood of Tim Mei Road that the student movement at Tim Mei Q Avenue would be supported. Q R 533. Mr. Ching Y Wong SC submitted at Para. 4.1.2 of D4’s R Closing Submissions “Thus to prove that ‘by remaining at and occupying S S TMA’ a nuisance would be caused, the Prosecution needs to prove that for T 27th and 28th, D4 knew when she incited, that there were no proper T U U V V  - 196 - A A B B notifications given for these days or if such notifications were given, that C they were properly prohibited by the COP.” (Commissioner of Police). C D 534. It is clear from the video evidence that D4 was aware that the D public meeting in progress at Tim Mei Avenue. In fact, shortly past E E th midnight on 28 September 2014, she warned the people present that the F public meeting at Tim Mei Avenue was an unauthorized one.165 It should F also be noted that in Exhibit P11, D4 asked everyone to participate in civil G G disobedience, which denoted the law would be violated. As said, the H “warranted by law” element required for the offence of public nuisance H cannot be proved by the absence of proper notification. I I J 535. More importantly, the incitement made by D4 in Exhibit P20 J concerns the plea to occupy Admiralty and Central, not just Tim Mei K K Avenue. Given the use of the word “over-cram’ and the plea to occupy L Admiralty and Central, I am sure D4 knew there was no notifications given L to the Police for a public gathering to occupy Admiralty and Central on M M 27th and 28th September 2014. N N 536. Mr. Ching Y Wong SC submitted that the Letter of O Prohibition (Exhibit P152) was ultra vires and was thus of no effect. I have O explained in the earlier part of the judgment why Exhibit P152 was valid. P P Given my findings on the effect of cordoning off Tim Mei Avenue by the Q Police on Charge 2 and Charge 3, the incitements that could form the Q subject matters of complaint of Charge 2 and Charge 3 are those related to R R obstruction of public places and roads in the neighbourhood of Tim Mei S Avenue, not the ones at Tim Mei Avenue. S T T 165 Exhibit P41, Pages 1259-1260 U U V V  - 197 - A A B B 537. I have taken onto consideration all the circumstances leading C to the making of the incitement by D4 in Exhibit P20. In my judgement, C the scale of the occupation that D4 incited was extensive; both Admiralty D D and Central were important commercial districts and the roads in the E district were important thoroughfares, as they always have been. The E intended occupation was for an indefinite period. On the other hand, I am F F aware that the occupation advocated was a peaceful one and the purpose of G the occupy movement was to strive for universal suffrage. In my judgment, G what D4 incited the people at Tim Mei Avenue in Exhibit P20 to do was H H not a reasonable use of the roads in the neighbourhood of Tim Mei Square. I The obstruction to the traffic and inconvenience caused to the public would I be so serious that would exceed the bounds of reasonableness and the J J protection given by the Basic Law to the right to peaceful demonstration. K I find that the obstruction that would be caused was not warranted by law. K L L 538. From the computer certificates,166 I am satisfied that the over- M cramming of the public places and roads in the neighbourhood of Tim Mei M Road would result in the suffering of common injury by common member N N of the public. O O 539. From the evidence, I am sure that when D4 made the P P incitement in Exhibit P20, she intended that the incitees, i.e. the people at Q Tim Mei Avenue would do the act incited by her, i.e. obstructing public Q places and roads in the neighbourhood of Tim Mei Avenue, with the mens R R rea of public nuisance, i.e. the incitees knew, or ought to have known S (because of the means of knowledge were available to him) the S consequence of what they did. In this case the incitees were the people T T 166 Exhibits P145-147 U U V V  - 198 - A A B B participating in the public assembly at Tim Mei Avenue and hence, they C must be aware of what was going on at the time of the incitement and what C the effect of an indefinite obstruction of the roads in the neighbourhood of D D Tim Mei Avenue would be if they acted as incited. E E 540. In my judgment, on the basis of what D4 said in Exhibit P20, F F i.e.: G G “Hey, let’s go to occupy Admiralty now. Thank you, Benny. ‘Chung’ (transliteration), now it is the ‘Chung’ H (transliteration) of ‘Kam Chung’ (transliteration) (the name of H Admiralty in Chinese). Later, it will be the ‘Chung” I (transliteration) of ‘Chung Wan’ (the name of Central in I Chinese)…..” and “We hope to over-cramming Tim Mei Avenue, right? Over-cram Tim Mei Avenue! Over-cram Tim J Mei Avenue! Over-cram Tim Mei Avenue! Over-cram J Admiralty! Over-cram Admiralty! Over-cram Admiralty! Good! ….” (Emphasis added)167 K K L D4 had unlawfully incited persons at Tim Mei Avenue, Admiralty to cause L a nuisance to the public by unlawfully obstructing public places and roads M M in the neighbourhood of Tim Mei Avenue without need to resort to the N doctrine of joint enterprise as a basis for liability. N O O The Incitements by D5 and D7 in Exhibit P74 (Pg. 1588-1589, 1591-1592 P and 1593) P Q Q 541. At around 3:35 p.m. on 28th September 2014, when D5 and R D7 addressed the people at Tim Mei Avenue in the presence of D1 and D3, R D5 and D7 said amongst other things:- S S T T 167 Exhibit P20, page 1107 and Page 1111 U U V V  - 199 - A A B “D5: ……Our –our friends who gather round here to watch B have already over-crammed two more roads. C D7: Hurray! C D5: (The crowd) has already over-crammed two roads (outside) the Hong Kong Academy for Performing Arts. D D7: And more citizens are coming successively. (Let’s) D continue to occupy the roads together. E D5: We are asking more friends to come here, (we are asking) E more friends to come here. Let’s over-cram Admiralty. (Let’s) over-cram Wan Chai. (Let’s) over-cram Central. F D7: Friends on that side, keep it up. We know that some friends F there have already prepared to dash out to occupy the road(s). Let’s cheer them on, shall we? G G D5: Comrades, let’s over-cram Wan Chai together. (Let’s) over-cram Admiralty. (Let’s) over-cram Central.…..” 168 H (Emphasis added) H I 542. In my judgment, the above statements of D5 and D7 in Exhibit I P74 at Pg. 1588-1589 amounted to (i) an incitement to the persons present J J at Tim Mei Avenue to over-cram Admiralty, Wanchai and Central in the K neighbourhood of Tim Mei Avenue; and (ii) incitement to the persons K present at Tim Mei Avenue to incite others to overcram Admiralty, L L Wanchai and Central in the neighbourhood of Tim Mei Avenue. M M 543. I am sure the above incitements were made to the people at N N Tim Mei Avenue and heard by those within the audibility range of the O O public address system. P P 544. Later on, at around 4:06 p.m. on 28th September 2014, D5 and Q Q D7 addressed the crowd at Tim Mei Avenue in the presence of D1 and D2 R (on stage) and D3 (below stage) and said:- R S S “D7: We have got news that…. On the side of Harcourt Road.. many friends have already gone out onto the road! (They) have T already occupied the road! Hurray! T 168 Exhibit P74, pages 1588-1589 U U V V  - 200 - A A B D5: Occupy the road! B D7: Occupy the road! C D5: Occupy the road! C D7: Occupy the road! D5: Occupy the road! D D7: Occupy the road! D D5: Hurray! E D7: Hurray! E D5: Hurray! D7: Hurray!” F (Emphasis added)169 F G 545. I am sure the above statements of D5 and D7, which amounted G to an incitement to occupy the carriageways of Harcourt Road, were heard H H by those who were within the audibility range of the public address system. I I It should be noted that Harcourt Road is in the neighbourhood of Tim Mei J Avenue. J K K 546. I am not sure, however, if the targeted audience of the L incitement in Exhibit P74 at Pg. 1591-1592 were the people at Tim Mei L Avenue. Looking at the contents of what D5 and D7 said at Pg. 1591-1592, M M D5 and D7 were telling the people at Tim Mei Avenue what was happening N at Harcourt Road. It seems to me D5 and D7, by their repeated utterances N of “Occupy the road” and “Hurray” at Pg. 1591-1592, were encouraging, O O hence inciting the persons at Harcourt Road who had already occupied the P road, i.e. people who were not at Tim Mei Avenue, to continue with their P occupation of the carriageways of Harcourt Road. Q Q R 547. For these reasons, the incitement in Exhibit P74 at Pg. 1591- R 1592 cannot be said to be an incitement made to “the persons present at S S Tim Mei Avenue” as particularized in Charge 2. T T 169 Exhibit P74, pages 1591-1592 U U V V  - 201 - A A B B C 548. Later on, at around 4:10 p.m. on 28th September 2014, D5 and C D7 addressed the people at Tim Mei Avenue in the presence of D3 (below D D stage) and said:- E E “D5: Our picket has just made a report that the 6 carriageways F of H-Harcourt Road bound for Central as well as Causeway F Bay, the 6 carriageways have already been over-crammed (with people) sitting (there)! We have already over-crammed 6 G carriageways (with people) sitting (there). Keep coming! Keep G coming! Keep coming! H D7: Keep coming” (Emphasis added) 170 H I 549. I am sure that the above statements of D5 and D7 in Exhibit I 74 at Pg. 1593 amounted to an incitement to occupy the carriageways of J J Harcourt Road in the neighbourhood of Tim Mei Avenue. I am sure that K the above statements were heard by those within the audibility range of the K public address system. L L M 550. Likewise, I am not sure, however, if the targeted audience of M the incitement were the people at Tim Mei Avenue. Looking at the N N contents of what D5 and D7 said at Pg. 1593, they were telling the people O at Tim Mei Avenue what was happening at Harcourt Road. In my O judgment, the repeated utterances of the words “Keep coming” show that P P the defendants were not inciting the persons who were already present at Q Tim Mei Avenue. It seems to me D5 and D7 were encouraging, hence Q inciting, people who were not at Tim Mei Avenue to come and sit on the R R carriageways of Harcourt Road to over-cram it. For these reasons, the S incitement at Pg. 1593 cannot be said to be an incitement made to “the S persons present at Tim Mei Avenue” as particularized in Charge 2. T T 170 Exhibit P74, page 1593 U U V V  - 202 - A A B B C 551. In my judgment, of the various incitements made by D5 and C D7 in Exhibit P74 (Pg. 1588-1589, 1591-1592 and 1593), only the D D incitements at Pg. 1588-1589 were made to “the persons present at Tim E Mei Avenue”, i.e. the incitees particularised in Charges 2 and 3. E F F 552. The incitements at Pg. 1588-1589 were made by D5 and D7 G at around 3:35 p.m. on 28th September 2014, when D5 and D7 addressed G the people at Tim Mei Avenue in the presence of D1 and D3. D5 and D7 H H said:- I I “D5: ……Our –our friends who gather round here to watch J have already over-crammed two more roads. J D7: Hurray! D5: (The crowd) has already over-crammed two roads (outside) K the Hong Kong Academy for Performing Arts. K D7: And more citizens are coming successively. (Let’s) continue L to occupy the roads together. L D5: We are asking more friends to come here, (we are asking) more friends to come here. Let’s over-cram Admiralty. (Let’s) M over-cram Wan Chai. (Let’s) over-cram Central. M D7: Friends on that side, keep it up. We know that some friends N there have already prepared to dash out to occupy the road(s). N Let’s cheer them on, shall we? D5: Comrades, let’s over-cram Wan Chai together. (Let’s) O over-cram Admiralty. (Let’s) over-cram Central.…..” O (Emphasis added)171 P P 553. In my judgment, what D5 and D7 said at Pg. 1588-1589 Q Q amounted to (i) incitement to commit public nuisance; and (ii) incitement R to incite public nuisance. R S S T T 171 Exhibit P74, pages 1588-1589 U U V V  - 203 - A A B B Incitement to Commit Public Nuisance (Charge 2) C C 554. In my judgment, at Pg. 1588-1589, D5 and D7 were not only D D encouraging the protestors who had prepared to dash out to occupy the E road(s), they were also inciting the people present to over-cram Admiralty, E Wanchai and Central. Given the intended duration of the occupy F F movement, protestors who were at a location (e.g. Tim Mei Avenue) at one G point of time might move to another location (e.g. Harcourt Road) at G another point of time. The words “Let’s” used by D5 and D7 show that the H H incitements were directed to the persons present at Tim Mei Avenue as I well as those at Harcourt Road. I J J 555. The use of the word “over-cram” by D5 at Pg. 1588-1589 K shows the numbers of participants intended by D5 would be sufficient to K over-cram the roads in Wanchai, Admiralty, Central and Harcourt Road. L L Although D7 did not use the word “over-cram”, he was obviously echoing M D5’s plea to over-cram the roads in Wanchai, Admiralty, Central in general M and Harcourt Road in particular. N N O 556. I am sure the “road(s)” referred to in D7’s utterance of “: O Friends on that side, keep it up. We know that some friends there have P P already prepared to dash out to occupy the road(s). Let’s cheer them on, Q shall we?” meant the road(s) in the neighbourhood of Tim Mei Avenue but Q not Tim Mei Avenue. It is clear from what D7 said the location he referred R R to was not far away from the main stage at Tim Mei Avenue. It is also S clear from what D7 said the location he referred to was not Tim Mei S Avenue. Tim Mei Avenue had been cordoned off by the police since 26 th T T September 2014, it was unnecessary for protestors to “dash out” to occupy U U V V  - 204 - A A B B Tim Mei Avenue at around 3:35 p.m. on 28th September 2014, by that time, C Tim Mei Avenue had already been an occupied area of the Occupy Central C movement for almost 2 days. D D E 557. In my judgment, the fact that the word “over-cram” was used E in the incitement at Pg. 1588-1589 shows that the number of participants F F intended by D5 and D7 in their pleas to over-cram Wanchai, Admiralty and G Central and Wanchai would be sufficient to over-cram the roads in the G districts they mentioned. Reading the statements of D5 and D7 in context, H H the roads in Wanchai, Admiralty and Central they referred to must be the I roads in the neighbourhood of Tim Mei Avenue, e.g. Harcourt Road. I J J 558. What D5 said at Pg. 1588-1589 was consistent with what he K had said in some of his speeches earlier, i.e. that they had entered an era of K universal struggle and people from all walks of life were engaging in L L universal struggle; 172 that more supporters were needed at Tim Mei M Avenue173 and that the demonstration in progress at Tim Mei Avenue was M one to last indefinitely, i.e. it was “a fight in relays”.174 N N O 559. Mr. Pang SC drew my attention to what D5 said in a pre- O st OCLP gathering on 1 July 2013 (Exhibit P122/Pg. 703). He said at the P P time: “We will be arrested. We will then make a second move. We will Q then submit to arrests peacefully. We will have surrendered ourselves, we Q will not defend. We (will) stretch out a pair of hands, (as if saying) make R R the arrests if you please. Let us chant together, (c) Occupy Central. Civil S Disobedience. Occupy Central. Civil Disobedience. Arrest me if you S T 172 T Exhibit P27 173 Exhibit P32 174 Exhibit P61 U U V V  - 205 - A A B B please. I myself will bear the consequence. I myself will bear the C consequence (.) Let’s keep this as a record. Thank you everybody, thank C you to the Trio.” (Emphasis added) D D 560. Mr. Pang SC also drew my attention to what D5 said at E E around 7:23 p.m. – 7:25 p.m. on 27 September 2014, as recorded in th F Exhibit P28 at Pg.1133-1134. D5 was telling people to send their personal F details to an arrest support team to prepare for their arrests. G G H 561. Mr. Pang SC submitted that what D5 said in Exhibits P122 H and P28 shows that the actual intention of the defendants was all along to I I get arrested by the police after a few days of arrest. J J 562. In my judgment, the fact that D5 asked for the over-cramming K of places beyond Tim Mei Avenue, i.e. the over-cramming of the public K places and roads in Wanchai, Admiralty and Central in the neighbourhood L L of Tim Mei Avenue, taken together with what D5 said in Exhibit P61, i.e. M that the demonstration at Tim Mei Avenue was “a fight in relays”, and what M he said in Exhibit P35, i.e. he challenge the Police to clear and lock up a N N turnout of 50,000 people. I am sure that D5 intended that the occupation O he incited would be a continued occupation for an indefinite period. I do O not see how Exhibit P122 can assist D5. The speech was made by D5 in P P July 2013, though he was talking about arrest for participation in the civil Q disobedience launched by D1 to D3. The details of the Occupy Central Q movement had yet to be decided. The fact that he anticipated he would be R R arrest for his participation in the civil disobedience movement launched by S D1 to D3 in no way shows that he thought at the time of Charge 2 and S Charge 3 he would be arrested after a few days of protest. If it was the T T intention of D5 at the time of Charge 2 and Charge 3 he would be arrested U U V V  - 206 - A A B B after a few days of protest, there was nothing to prevent D5 from C surrendering himself to the Police after a few days of protest, as he said he C would do in Exhibit P122. D D E 563. In my judgment, the fact that there was an arrest support team E to prepare for the arrest of protestors on 27th and 28th September 2014 is F F neither here nor there. A large scale occupy movement was in progress, G there were defence lines to defend at the venue (Exhibit P59, Pg. 1456), G participants were asked to ask their friends to come out to counter-besiege H H the police defence (Exhibit P64, Pg. 1485) and participants were asked to I intercept a police vehicle (Exhibit P59, Pg. 1456). I am not at all surprised I that there was an arrest support team to handle the arrests of protestors. J J The fact that there was an arrest support team does not, however, shows K that D5 anticipated that he would be arrested after a few days of protest. K L 564. Mr. Pang SC submitted that the fact that there was no tent, or L any permanent or semi-permanent set ups on the road in Tim Mei Avenue M M th and its vicinity before the discharge of tear gas on 28 September 2014 can N N show that the protestors were not intending to stay for a substantial period O of time before the firing of tear gas. For the offences of “Incitement to O commit public nuisance” and “Incitement to incite public nuisance”, the P P actual intention held by the incitee is irrelevant. What is relevant is the Q intention of the incitor, i.e. the defendant. Q R 565. For the offence of “Incitement to commit public nuisance”, R the requisite mens rea is that at the time of the incitement, the defendant S S (the incitor) intends or believes that if the incitee does the act incited under T the circumstances that are known or believed by the defendant (the incitor), T the incitee would commit the offence with the requisite mens rea of the U U V V  - 207 - A A B B offence of public nuisance. The mens rea required is that of the defendant C (the incitor). C D 566. For the offence of “Incitement to incite public nuisance”, the D requisite mens rea is that at the time of the incitement, the defendant (the E E incitor) intends or believes that if the incitee does the act incited under the F circumstances that are known or believed by the defendant (the incitor), F the incite would commit the offence of incitement with the requisite mens G G rea required for the offence of incitement. Again, the mens rea required is H that of the defendant. H I I 567. In other words, the firing of tear gas on 28th September 2014 J was not a circumstance that was known to or believed by the relevant J defendants when the incitements in respect of Charge 2 and Charge 3 were K K made. The relevant circumstances were those known to or believed by the L defendants at the time the incitements were made, not something that took L place afterwards. In assessing whether a defendant had the requisite mens M M rea for Charge 2 and Charge 3, I have not taken into account the events that N took place after the alleged incitements were made. N O O 568. In the case of D7, what he said at Pg. 1588-1589 was P consistent with what he had said in some of his speeches earlier, i.e. the P deployment of the tactic of counter-besieging the Police by supporters who Q Q could not enter the venue at Tim Mei Avenue175 and that D7 intended the R occupy movement in progress at Tim Mei Avenue to continue for an R indefinite period, hence he asked the participants to “put down roots” at S S the venue.176 T T 175 Exhibits P27, P35 and P38 176 Exhibit P53 U U V V  - 208 - A A B B C 569. For the reasons given in my foregoing analysis, it is clear from C the speeches made by D5 and D7 in these exhibits that each of D5 and D7 D D intended that the occupy movement should last as long as possible. In my E judgment, D5 and D7 were inciting the people at Tim Mei Avenue to E occupy the public places and roads in the neighbourhood of Tim Mei F F Avenue for an indefinite period. G G 570. The incitements by D5 and D7 at Pg. 1588 and 1589 were H H made at a time when the carriageway of Tim Mei Avenue was occupied by I protestors and the traffic of Tim Mei Avenue was completely blocked; the I 6 carriageways of Harcourt Road were also occupied by protestors and the J J traffic of Harcourt Road was blocked as a result. By calling for the over- K cramming of the roads in Wanchai, Admiralty and Central, D5 and D7 K clearly meant the occupation of the public places and roads in Wanchai, L L Admiralty and Central in the neighbourhood of Tim Mei Avenue. As M discussed, the obstruction that D5 and D7 incited was not an occupation of M any public place or road in Wanchai, Admiralty and Central, but the N N occupation of “public places and roads in the neighbourhood of Tim Mei O Road”. It was through the occupation of the public places and roads in the O neighbourhood of Tim Mei Road that the student movement at Tim Mei P P Avenue would be supported. Q Q 571. Given the fact that at the time the incitement at Pg. 1588-1598 R R was made, the number of protestors was swelling. The carriageway of Tim S Mei Avenue was occupied by protestors and the traffic of Tim Mei Avenue S was completely blocked; the 6 carriageways of Harcourt Road were also T T occupied by protestors and the traffic of Harcourt Road was blocked as a U U V V  - 209 - A A B B result. I am sure that the incitement by D5 and D7 at Pg. 1588-1589 was C made with a sense of certainty that the persons at Tim Mei Avenue would C carry out a public nuisance. D D 572. Mr. Dykes submitted that the existence of ‘checkline’ and E E ‘counter enclosing’ measures does not prove that a public nuisance existed F at the time. He submitted that if the police had been intending to clear Tim F Mei Avenue then and were being prevented from doing so, then the proper G G charge would have been obstruction by preventing performance of the H relevant duties under section 10 (e)-(g) Police Force Ordinance, Cap. 232. H Mr. Dykes SC further submitted that the fact that the Police did not clear I I the area until much later suggests that the assembly did not constitute a J public nuisance.177 J K K 573. In my judgment, whilst the existence of checklines does not L prove the existence of a public nuisance, a defendant’s exhortations to L defend various ‘checklines’ of the venue at Tim Mei Avenue shows that M M the defendant in question intended that the demonstration at Tim Mei N N Avenue would last for an indefinite period. O O 574. For the exhortations to ‘counter-enclose’ or ‘counter-besiege’ P P the police, it should be noted that by definition, an act of counter-enclosing Q or counter-besieging must take place outside cordon lines of the Police, i.e. Q outside the venue at Tim Mei Avenue, otherwise the act/move not amount R R to one of counter-enclosing or counter-besieging. When additional public S places and roads, e.g. Harcourt Road was obstructed for the sake of S counter-besieging the Police, the issue that I have to decide is whether the T T 177 Para. 96-98 of D7’s Closing Submissions U U V V  - 210 - A A B B obstruction of additional public place(s) or road(s) for the sake of counter- C besieging the Police was a proper use of the road. C D D 575. Mr. Dykes submitted that “Be that as it may, the court cannot E discount the fact that the failure of the police to disperse crowds after using E teargas resulted in the massive build-up of crowds in the Admiralty area F F that went on for 2 ½ months. The use of tear gas cannot be ruled out as an G intervening act which was responsible for the mass occupation of the roads G in Admiralty.”178 H H I 576. Given the undisputed fact that the use of tear gas took place I at around 6 p.m. on 28th September 2014, i.e. after all the alleged J J incitements for Charge 2 and Charge 3 had been made on 27 th and 28th K September 2014, I do not see how the use of tear gas could constitute an K intervening act as far as Charge 2 and Charge 3 are concerned. If all the L L elements of the offences of “Incitement to commit public nuisance” and M “Incitement to incite public nuisance’ can be proved, the offence were M complete upon the making of the incitement under complaint, whether a N N nuisance did occur as a result of the incitement is neither here nor there. O O 577. With respect to Mr. Dykes SC, I do not agree with his P P submissions that the fact the Police did not clear the area until much later Q suggests that the assembly did not constitute a public nuisance. the Police Q did not clear the area until much later suggests that the assembly did not R R constitute a public nuisance. Whether the assembly in question constituted S a public nuisance is determined by the application of the principles laid S T T 178 Para. 103 of D7’s Closing Submissions U U V V  - 211 - A A B B down in Rimmington to the facts proved, not by the degree of tolerance C shown by the Police. C D D 578. I have taken into consideration all the circumstances leading E to the making of the incitements by D5 and D7 at Pg. 1588-1589 of Exhibit E P74. In my judgement, the scale of the occupation that D5 and D7 incited F F was extensive; Wanchai, Admiralty and Central were all important G commercial districts and the roads in the district, e.g. Harcourt Road and G Fenwick Pier Street, were important thoroughfares, as they always have H H been. The intended occupation was for an indefinite period. On the other I hand, I am aware that the occupation advocated was a peaceful one and the I purpose of the occupy movement was to strive for universal suffrage. In J J my judgment, what D5 and D7 incited the people at Tim Mei Avenue in at K Pg. 1588-1589 to do was not a reasonable use of the roads in Admiralty K and Central in the neighbourhood of Tim Mei Square. The 6 carriageways L L of Harcourt Road had already been occupied by protestors yet D5 and D7 M still asked for more protestors to over-cram and occupy the roads in M Wanchai, Admiralty and Central in the neighbourhood of Tim Mei N N Avenue. The obstruction to the traffic and inconvenience caused to the O public would be so serious that would exceed the bounds of reasonableness O and the protection given by the Basic Law to the right to peaceful P P demonstration. I find that the obstruction that would be caused was not Q warranted by law. Q R R 179 579. From the computer certificates, I am satisfied that the over- S cramming of the public places and roads in the neighbourhood of Tim Mei S T T 179 Exhibits P145-147 U U V V  - 212 - A A B B Road would result in the suffering of common injury by common member C of the public. C D D 580. From the evidence, I am sure that when D5 and D7 incited the E people present at Tim Mei Avenue to over-cram Wanchai, Admiralty and E Central (words of incitement said by D5) and to occupy the roads together F F (words of incitement said by D7) at Pg. 1588-1589 of Exhibit P74, each of G D5 and D7 intended that the incitees, i.e. the people at Tim Mei Avenue G would do the act incited by them, i.e. obstructing public places and roads H H in the neighbourhood of Tim Mei Avenue, with the mens rea of public I nuisance, i.e. the incitees knew, or ought to have known (because of the I means of knowledge were available to him) the consequence of what they J J did. K K 581. In this case the incitees were the people participating in the L L public assembly at Tim Mei Avenue and hence, they must be aware of what M was going on at the time of the incitements and what the effect of an M indefinite obstruction of the roads in the neighbourhood of Tim Mei N N Avenue would be if they acted as incited. I am sure that D5 and D7 O intended or believed that the incitees, i.e. the people present at Tim Mei O Avenue, would know or had the means to know that if they acted as incited, P P they would commit a public nuisance. Q Q 582. In the present case, D5 and D7 expressly asked the people at R R Tim Mei Avenue (i) to over-cram Wanchai, Admiralty and Central; and S (ii) to ask more friends to come out to do so. I do not agree with Mr. Pang S SC’s submissions at Para. 80 of D5’s Closing Submissions that “At best, T T therefore, it could only be said that D5 had by his spoken words incited a U U V V  - 213 - A A B B state of affairs which may or may not become a public nuisance depending C on how the events will unfold”. C D 583. Mr. Dykes SC submitted that the use of pepper spray and tear D gas in the present case constituted the use of arms under s. 22(1)(d) of E E Firearms and Ammunition Ordinance, Cap. 238 and no evidence has been F led about the protocols about the use of both pepper spray and tear gas, F therefore it cannot be said that the use was lawful, i.e. the use of one or G G both was “no greater than was necessary required” to cause dispersal under H s. 46(1) Public Order Ordinance.180 H I I 584. The use of tear gas took place at around 6 p.m. on 28 th J September 2014, i.e. after the incitements under complaint were made by J the relevant defendants. I do not see the relevance of the legality or K K otherwise of the use of tear gas by the police have on the issues that concern L Charge 2 and Charge 3. L M 585. For the use of pepper spray, I see no reason why the M Prosecution, in order to prove its case against D7 and the other defendants N N facing Charge 2 and Charge 3, should lead evidence to prove the use of O pepper spray was lawful. In fact, what D5 and D7 said in Exhibit P74 at O Pg. 1588-1589 had nothing to do with the use of pepper spray by the police. P P Q 586. In my judgment, on the basis of the above incitements by D5 Q and D7 in Exhibit P74 at Pg. 1588-1589, D5 and D7 each had unlawfully R R incited persons at Tim Mei Avenue, Admiralty to cause a nuisance to the S public by unlawfully obstructing public places and roads in the S T T 180 Para. 100-102 of D7’s Closing Submissions U U V V  - 214 - A A B B neighbourhood of Tim Mei Avenue without need to resort to the doctrine C of joint enterprise as a basis for liability. C D D Incitement to Incite Public Nuisance (Charge 3) E E 587. In my judgment, what D5 said in Exhibit P74 at Pg. 1589:- F F G “D5: We are asking more friends to come here, (we are asking) G more friends to come here. Let’s over-cram Admiralty. (Let’s) over-cram Wan Chai. (Let’s) over-cram Central.” (Emphasis H added), H I I amounted to an incitement made to the people at Tim Mei Avenue to incite J more friends to join the movement by over-cramming Admiralty, Wanchai J and Central. The above statement was made to the people at Tim Mei K K Avenue and heard by those within the audibility range of the public address L system. L M M 588. My analysis and findings made in respect of the incitements N to commit public nuisance made by D5 in Exhibit 74 are also applicable N the analysis of the incitement made by D5 at Pg. 1589. O O P 589. The use of the word “over-cram” by D5 in the above statement P at Pg. 1589 shows the numbers of participants intended by D5 would be Q Q sufficient to over-cram the roads in Wanchai, Admiralty and Central. R R 590. Immediately before the incitement at Pg. 1589, D5 told the S S people at Tim Mei Avenue that “(The crowd) had already over-crammed T two roads (outside) the Hong Kong Academy for Performing Arts” (Pg. T 1588). Reading D5’s statement at Pg. 1589 in its proper context, D5 was U U V V  - 215 - A A B B asking for the over-cramming of the public places and roads in Wanchai, C Admiralty and Central in the neighbourhood of Tim Mei Avenue. C D D 591. What D5 said at Pg. 1589 should be read in the light of what E he had said in some of his speeches earlier, i.e. that they had entered an era E of universal struggle and people from all walks of life were engaging in F F universal struggle; 181 that more supporters were needed at Tim Mei G Avenue182 and that the demonstration in progress at Tim Mei Avenue was G one to last for an indefinite period, i.e. it was “a fight in relays”.183 H H I 592. For the reasons given in my foregoing analysis, it is clear from I the speeches made by D5 in these exhibits that D5 intended that the occupy J J movement should last as long as possible. In my judgment, D5 was inciting K the people at Tim Mei Avenue to incite other persons to occupy the public K places and roads in the neighbourhood of Tim Mei Avenue for an indefinite L L period. M M 593. The incitement by D5 at Pg. 1589 was made at a time when N N the carriageway of Tim Mei Avenue was occupied by protestors and the O traffic of Tim Mei Avenue was completely blocked; the 6 carriageways of O Harcourt Road were also occupied by protestors and the traffic of Harcourt P P Road was blocked as a result. By calling for the people at Tim Mei Avenue Q to incite other persons to over-cram the roads in Wanchai, Admiralty and Q Central, D5 clearly meant the occupation of the public places and roads in R R Wanchai, Admiralty and Central in the neighbourhood of Tim Mei S Avenue. It was through the occupation of the public places and roads in S T 181 T Exhibits P27 182 Exhibit P32 183 Exhibit P61 U U V V  - 216 - A A B B the neighbourhood of Tim Mei Road that the student movement at Tim C Mei Avenue would be supported. C D D 594. I have taken onto consideration all the circumstances leading E to the making of the incitement at Pg. 1589 by D5. In my judgement, the E scale of the occupation that D5 incited was extensive; Wanchai, Admiralty F F and Central were all important commercial districts and the roads in the G district, including Harcourt Road, were important thoroughfares, as they G always have been. The intended occupation was for an indefinite period. H H On the other hand, I am aware that the occupation advocated was a peaceful I one and the purpose of the occupy movement was to strive for universal I suffrage. In my judgment, what D5 incited the people at Tim Mei Avenue J J to do, i.e. to incite other persons to cause an obstruction to the public places K and roads in the neighbourhood of Tim Mei Avenue, was not a reasonable K use of the roads in Admiralty and Central in the neighbourhood of Tim Mei L L Square. The 6 carriageways of Harcourt Road had already been occupied M by protestors yet D5 still asked for more protestors to occupy the road. The M obstruction to the traffic and inconvenience caused to the public would be N N so serious that would exceed the bounds of reasonableness and the O protection given by the Basic Law to the right to peaceful demonstration. O I find that the obstruction that would be caused was not warranted by law. P P Q 595. From the computer certificates,184 I am satisfied that the over- Q cramming of the public places and roads in the neighbourhood of Tim Mei R R Road would result in the suffering of common injury by common member S of the public. S T T 184 Exhibits P145-147 U U V V  - 217 - A A B B 596. In my judgment, by the above utterance, D5 had incited the C incitees, i.e. the people present at the Tim Mei Avenue, to do an act which C would involve the commission of the offence of incitement, i.e. inciting a D D public nuisance to the public by unlawfully obstructing public places and E roads in the neighbourhood of Tim Mei Avenue, i.e. the actus reus for the E offence of “Incitement to incite public nuisance”. F F G 597. I am sure that when D5 made the above utterance, he intended G or believed that the incitees (the persons at Tim Mei Avenue) would incite H H other persons (the friends of the incitees) to do the act incited, i.e. to cause I a nuisance to the public by unlawfully obstructing public places and roads I in the neighbourhood of Tim Mei Avenue and that the incitees (the people J J at Tim Mei Avenue) would do the act with the mens rea requirement for K incitement, i.e. an intention to incite. K L L 598. In my judgment, on the basis of the above incitements made M by D5 in Exhibit P74 at Pg. 1589, D5 had unlawfully incited persons at M Tim Mei Avenue, Admiralty to incite other persons to cause a nuisance to N N the public by unlawfully obstructing public places and roads in the O neighbourhood of Tim Mei Avenue without need to resort to the doctrine O of joint enterprise as a basis for liability. P P Q 599. The utterances which amounted to an incitement to the Q persons at Tim Mei Avenue to incite others to commit public nuisance at R R Pg. 1589 was made by D5 in the presence of D7. I shall consider the S application of the doctrine of joint enterprise in the latter part of the S judgment. T T U U V V  - 218 - A A B B The Words of Incitement by D6 in Exhibits P17 and P40: Incitement to C Incite Public Nuisance (Charge 3) C D D 600. At around 3:38 pm in the afternoon on 27 September 2014, E when D6 addressed the people at Tim Mei Avenue, he said amongst other E things:- F F G “now we hope that everybody, yes, can really ask more people G to come out and over-cram Tim Mei Avenue, also, it is hoped that the nearby carriageways will also be over-crammed, and H (we) continued to extend the area of our civil disobedience.”185 H I I 601. In my judgment, the above utterance by D6 in Exhibit P17 J amounted to an incitement to the people at Tim Mei Avenue to incite other J persons to come out and over-cram Tim Mei Avenue and the nearby K K carriageways. I am sure that the incitement was made to the people at Tim L Mei Avenue and heard by those within the audibility range of the public L address system. M M N 602. At about 11:24 p.m. in the evening on 27th September 2014, N in the presence of D4 and D7, D6 addressed the people at Tim Mei Avenue O O and said:- P P “Right, well, let me tell you a piece of good news rather than Q always listening to those things that (make you feel) heavy (- Q hearted). Well, we, now on the bridge outside Admiralty, it is still full of people all over the footbridge (there). They are in the R direction of our side, coming towards us here, right. Our R (activity) today, should be the largest Civil Disobedience S (activity) over the years, certainly, the number of people, we S have not yet got the largest of people, but (we) hope that the members of the public would not remain at our current T T 185 Exhibit P17, page 1102 U U V V  - 219 - A A B achievements (attained), let us keep asking more people to B come, over-cramming Admiralty.” C “Well! As what we have seen, actually, there are huge crowds C of people everywhere. Well! We, starting from Harcourt Road to the entire Tim Mei Avenue, all were (packed with) people, D the open space of the Legislative Council is also full of people, D so everybody keeps asking people to come!” (Emphasis E added)186 E F 603. In my judgment, the above utterances by D6 in Exhibit P40, F which amounted to incitement to the people at Tim Mei Avenue to incite G G other persons to over-cram Admiralty, was made to the people at Tim Mei H Avenue and heard by those within the audibility range of the public address H system. I I J 604. The repeated use of the word “over-cram” by D6 in Exhibits J P16 and P40 shows the number of participants intended by D6 would be K K sufficient to over-cram the roads in Admiralty. L L 605. It should be noted that immediately before the incitement at M M Pg. 1102, D6 told the people at Tim Mei Avenue that “…, even though N N Tim Mei Avenue is already all full, well, but everybody still has to keep O asking friends to come out…”.187 Reading D6’s statement at Pg. 1102 in O its proper context, D6 was asking for the over-cramming of the public P P places and roads in Admiralty in the neighbourhood of Tim Mei Avenue at Q a time when Tim Mei Avenue was already full of protestors. Q R R 606. What D6 said in Exhibit P40 should be read in the light of S what he had said in some of his other speeches made before Exhibit P40: S T T 186 Exhibit P40, page 1244-1245 187 Pg. 1098 U U V V  - 220 - A A B B (i) in Exhibit P28, D6, together with D5, asked the people at Tim Mei C Avenue “to hang in till the end”(ii) in Exhibits P27 and P33, D6 asked the C people at Tim Mei Avenue to ask for more friends to go the venue at Tim D D Mei Avenue to express their support (iii) in Exhibit P35, D6 spoke of the E importance of “counter-besieging” the Police (“Encirclement is strength”) E and the fact that there were already 50,000 protestors at Tim Mei Avenue. F F G 607. For the reasons given in my foregoing analysis, what D6 had G said in Exhibits P27, P28, P33 and P35 shows that at the time D6 intended H H that the occupy movement should last as long as possible. In my judgment, I D6 was inciting the people at Tim Mei Avenue to incite other persons to I occupy the public places and roads in the neighbourhood of Tim Mei J J Avenue for an indefinite period. K K 608. Mr. Pun SC submitted in Part F of D6’s Closing Submissions L that the persons present at Tim Mei Avenue, if acted as incited, would only L stay for a limited period of time to wait for the release of the student leaders M M arrested by the Police. It is immediately clear from the passage relied upon N N by Mr. Pun SC, i.e. Exhibit P17 at Pg. 1098-1099, that apart from calling O for the people present at Tim Mei Avenue to wait for the release of the O student leaders, D6 also made it clear that the purposes of the public P P assembly included a demand that the then Chief Executive of the HKSAR Q should give an explanation on the current situation and on the matter of Q supporting a predetermined political reform. D6 also criticized the R R Decision on 31st August and asked for the breaking through of the gate of S the Civil Square as the first step to break through the framework of the S Decision on 31st August. Properly understood, what D6 said in Exhibit T T U U V V  - 221 - A A B B P17 does not support Mr. Pun SC’s submissions that the incitees, if acted C as D6 incited, would only stay for a limited period of time. C D D 609. The incitements by D6 in Exhibit P17 were made at a time E when Tim Mei Avenue was already all full. In other words, the road was E occupied by protestors and the traffic of Tim Mei Avenue was completely F F blocked. By calling for the people at Tim Mei Avenue to incite other G persons to over-cram the “nearby carriageways”, D6 made it clear that it G was the plan of the occupy movement to extend the area for the civil H H disobedience D6 said was in progress. D6 had made it clear that it was the I plan of the occupy moment to expand beyond the occupied area of Tim I Mei Avenue. J J K 610. Bearing in mind what D6 had said in Exhibit P17, i.e. the K over-cramming of Tim Mei Avenue and the nearby carriageways, the L L location that D6 referred to in his incitement in Exhibit P40 was any public M place or road in Admiralty, but the occupation of “public places and roads M in the neighbourhood of Tim Mei Road”. It was through the occupation of N N the public places and roads in the neighbourhood of Tim Mei Road that the O student movement at Tim Mei Avenue would be supported. O P P 611. Mr. Pun SC submitted that in Section G of D6’s Closing Q Submissions that no public nuisance would be caused by the incitements Q made by D6 to the incitees to reclaim the Civic Square as Civic Square was R R a “private premises not open to the public” as confirmed by PW2 Senior S Superintendent Wong Kei Wai. It should be noted that Charge 2 and S Charge 3 concern obstruction of public places and roads at and in the T T neighbourhood of Tim Mei Avenue, not just the Civil Square at Tim Mei U U V V  - 222 - A A B B Avenue. Given my findings on the effect of the cordoning off by the Police C of Tim Mei Avenue, the relevant locations where public nuisance would C be caused were the public places and roads in the neighbourhood of Tim D D Mei Avenue, not the obstruction of the carriageway of Tim Mei Avenue. E In any event, unlike the obstruction of a public highway, the occupation of E Civic Square was not something which would result in “the suffering of F F common injury by members of the public”. In my judgment, the issue G whether the Civic Square was a private premises or a public place is G academic in the present case. H H 612. Mr. Pun SC’s submissions on the issue of whether the I I obstruction incited by D6 was warranted by law (Section E of D6’s Closing J Submissions) focused only on the issues whether the incitements by D6 J were made at a time when there was a Notification of Intention to Hold a K K Public Meeting and whether D6 was aware of the Notice of Prohibition L issued by the Police during the daytime on 28th September 2014. L M M 613. As I pointed out in the earlier part of this judgment, the “not N warranted by law” element for the common law offence of public nuisance N is not to be determined by a search for illegality in the demonstration which O O resulted in the obstruction, e.g. the absence of prior notification or the P issuance of a Notice of Prohibition. The absence of prior notification or P the presence of a Notice of Prohibition is one of the factors, but not the Q Q only factor to be considered. In determining whether a defendant’s R obstruction of the highway is “not warranted by law” , the important issue R to be resloved is whether the defendant’s conduct under complaint involves S S a reasonable use of the highway, as the Court of Final Appeal pointed out T in Yeung May Wan, a person who creates an obstruction could not be said T U U V V  - 223 - A A B B to be acting “without lawful excuse” if his conduct involves a reasonable C use of the highway. C D D 614. I take into consideration all the circumstances leading to the E making of the incitements in Exhibits P17 and P40 by D6. In my E judgement, the scale of the occupation that D6 incited was extensive; F F Admiralty was an important commercial district and the roads in the G district, including Harcourt Road, were important thoroughfares, as they G always have been. The intended occupation was for an indefinite period. H H On the other hand, I am aware that the occupation advocated was a peaceful I one and the purpose of the occupy movement was to strive for universal I suffrage. In my judgment, what D6 incited the people at Tim Mei Avenue J J to do, i.e. to incite other persons to cause an obstruction to the public places K and roads in the neighbourhood of Tim Mei Avenue, was not a reasonable K use of the roads in Admiralty in the neighbourhood of Tim Mei Square. L L The entire Tim Mei Avenue had already been occupied by protestors yet M D6 still asked for more protestors to occupy the nearby carriageways and M to extend the area for the occupy movement. The obstruction to the traffic N N and inconvenience caused to the public would be so serious that would O exceed the bounds of reasonableness and the protection given by the Basic O Law to the right to peaceful demonstration. I find that the obstruction that P P would be caused was not warranted by law. Q Q 615. From the computer certificates,188 I am satisfied that the over- R R cramming of the public places and roads in the neighbourhood of Tim Mei S Road would result in the suffering of common injury by common member S of the public. T T 188 Exhibits P145-147 U U V V  - 224 - A A B B C 616. In my judgment, by the above utterances in Exhibits P17 and C P40, D6 had incited the incitees, i.e. the people present at the Tim Mei D D Avenue, to do an act which would involve the commission of the offence E of incitement, i.e. inciting a public nuisance to the public by unlawfully E obstructing public places and roads in the neighbourhood of Tim Mei F F Avenue, i.e. the actus reus for the offence of “Incitement to incite public G nuisance”. G H H 617. D6, when he uttered the incitements in Exhibits P17 and P40, I intended that the incitees (the persons at Tim Mei Avenue) would incite I other persons (the friends of the incitees) to do the act incited, i.e. to cause J J a nuisance to the public by unlawfully obstructing public places and roads K in the neighbourhood of Tim Mei Avenue and that the incitees (the people K at Tim Mei Avenue) would do the act with the mens rea requirement for L L incitement, i.e. an intention to incite. M M 618. In my judgment, on the basis of the above incitements D6 in N N Exhibits P17 and P40, D6 had unlawfully incited persons at Tim Mei O Avenue, Admiralty to incite other persons to cause a nuisance to the public O by unlawfully obstructing public places and roads in the neighbourhood of P P Tim Mei Avenue without need to resort to the doctrine of joint enterprise Q as a basis for liability. Q R R S S T T U U V V  - 225 - A A B B C Words of Incitements by D7 in Exhibits P69 (Pg. 1545-1546) and P74 C (Pg. 1593 and 1598) D D E 619. In the afternoon on 28 September 2014, when D7 spoke on E the main stage at Tim Mei Avenue, in the presence of D1, D2 and D5 (on F F stage) and D3 (below stage), he said, amongst other things:- G G “….However, we know that roughly more than ten thousand H citizens have blocked the road (from) the Admiralty Centre, the H whole of KFC to Rodney Street. At the same time, at the Hong Kong Academy ‘Centre’ (sic) of Performing Arts, Wanchai, I there are ten thousand people. Adding (them) up, (we’ve) got a I total of about thirty thousand people here. Here, I am appealing J to all the citizens in Hong Kong to come together – no matter J whether (you) can enter the area or not, go to Admiralty, go to Wan Chai. Let us fill up the whole of Admiralty (and) Wan K Chai. Together, (we) can besiege the whole of Central K Government Offices from the side of Rodney Street, from the side of the Hong Kong Academy ‘Centre” (sic) of Performing L L Arts. We demand --……Let us fill up Admiralty and Wan Chai together….” (Emphasis added)189 M M 620. At Pg. 1545-1546, D7 was asking the people who were not at N N Tim Mei Avenue to join the movement by filling up Wanchai and O Admiralty. More will be said about the intended incitees of this incitement O in the later part of the discussion. P P Q 621. In my judgment, the above statement of D7 amounted to an Q incitement to fill up Admiralty and Wanchai. R R S 622. As I mentioned before, the locations mentioned by D7 in the S said address, e.g. Admiralty Centre, the Central Government Offices, T T 189 Exhibit P69, pages 1545-1546 U U V V  - 226 - A A B B Rodney Street, the Academy for Performing Arts are all located in the C neighbourhood of Tim Mei Avenue. C D D 623. Later in the same afternoon, when D7 was on the main stage E at Tim Mei Avenue, he spoke in the presence of D5 (on stage) and D3 E (below stage) and said:- F F G “We are here to call for more people to come out to over-cram G Admiralty (and) to over-cram Wan Chai with us. (Let’s) carry on with the Occupy (movement).” (Emphasis added)190 H H 624. At Pg. 1594, D7 was asking more people to come out to over- I I cram Admiralty and Wanchai with the protestors already at Tim Mei J Avenue. More will be said about the intended incitees in the above J incitement. K K L L 625. In my judgment, the above statement of D7 in Exhibit P74 at M Pg. 1594 amounted to an incitement to overcram the public places and M roads in Admiralty and Wanchai in the neighbourhood of Tim Mei Avenue. N N It was not an incitement to incite the people at Tim Mei Avenue to incite O other persons join the venue. O P P 626. Later in the same afternoon, when D7 was on the main stage Q at Tim Mei Avenue, he spoke in the presence of D2 (on stage) and said:- Q R R “We are here to appeal to our friends who have not yet come to join us, come quickly to over-cram Admiralty and Wan Chai, S and to occupy this Hong Kong that belongs to us.” (Emphasis S added)191 T T 190 Exhibit P74, page 1594 191 Exhibit P74, page 1598 U U V V  - 227 - A A B B C 627. In Exhibit P74 at Pg. 1598, D7 was appealing to the people C who had not yet join the venue at Tim Mei Avenue to come to over-cram D D Admiralty and Wanchai. More will be said about the intended incitees in E the above incitement. E F F 628. In my judgment, the above statement of D7 in Exhibit P74 at G Pg. 1598 amounted to an incitement to overcram the public places and G roads in Admiralty and Wanchai in the neighbourhood of Tim Mei Avenue. H H It was not an incitement to incite the people at Tim Mei Avenue to incite I other persons join the venue. I J J 629. As I have explained in the earlier part of the judgment, the K above incitements, i.e. the incitements in Exhibits P69 and P74192 must be K understood in the context of the fact that they were made by D7 at Tim Mei L L Avenue on 27th and 28th September 2014 during a continuous gathering at M Tim Mei Avenue. When the incitements were made, there were already M many participants at the scene. The districts/locations that the relevant N N defendant(s) asked to be over-crammed or filled up must be understood in O context. The defendants were then participating in a public gathering at O Tim Mei Avenue. When a defendant referred to over-cramming or filling P P up of Admiralty/Central/Wanchai, he or she must be referring those parts Q of Admiralty/Central/Wanchai which fall within the neighbourhood of Tim Q Mei Avenue. R R S S T T 192 Pg. 1594 and 1598 U U V V  - 228 - A A B B 630. I have considered both the contents of what D7 said in C Exhibits P69 and P74193 and the relevant video clips. Whilst it is possible C that the people at Tim Mei Avenue were amongst the targeted audience, D D i.e. the incitees, there is a real possibility that D7 was not addressing the E people present at the venue but those who were watching the live broadcast. E I am not sure that the people at Tim Mei Avenue were amongst the targeted F F audience of D7’s incitements in Exhibits P69 and P74.194 It should be G remembered that at around 1:34 p.m. on 28th September 2014, when D7 G spoke on the main stage, his targeted audience were the people watching H H the live broadcast (“Here, we are appealing to all (our) friends, for those I of (you) who are watching the live broadcast, if you want to come and I support (us)…”)195 J J K 631. A finding on the targeted audience of the incitements in K Exhibits P69 and P74196 is important as the particulars of Charge 2 and 3 L L clearly allege that the incitements under complaint were made to “persons M present at Tim Mei Avenue” and not any other persons, e.g. people who M were watching the incitements on live broadcast. N N O 632. In fairness to the Prosecution, of the many incitements made O by D7 in all the speeches he made, many of them were clearly made to the P P people present at Tim Mei Avenue and heard by those within the audibility Q range of the public address system, but the incitements targeting those Q present at Tim Mei Avenue were either incitements to commit public R R nuisance at Tim Mei Avenue or incitements to incite others to commit S S 193 Pg. 1594 and 1598 T 194 T Pg. 1594 and 1598 195 Exhibit P67, pages 1529-1531 196 Pg. 1594 and 1598 U U V V  - 229 - A A B B public nuisance at Tim Mei Avenue. Given my findings on the effect of C the cordoning off Tim Mei Avenue on Charge 2 and Charge 3, the relevant C defendants should be given the benefit of doubt for their incitements to D D commit public nuisance at Tim Mei Avenue or incitements to incite others E to commit public nuisance at Tim Mei Avenue. E F F 633. The locations referred to by D7 in the incitements he made in G Exhibits P69 and P74197 fit in with the particulars “in the neighbourhood G of Tim Mei Avenue”. However, given my findings that D7 might be H H addressing, and hence inciting, those who were watching the live broadcast I of the public assembly in progress, it cannot be proved beyond doubt that I D7, by the incitements in Exhibits P69 and P74,198 incited the “persons J J present at Tim Mei Avenue” as particularised in Charge 2. K K 634. The problem arising from the targeted audience cannot be L L cured by amending the particulars of offence by adding after “persons M present at Tim Mei Avenue” the words “and/or the persons watching the M live broadcast of the public assembly in progress” or words to that effect N N as there was no evidence that there were people watching the live broadcast O when D7 made the incitements in Exhibits P69 and P74,199 hence it cannot O be proved that the incitements had reached the targeted incitees. It does P P not help the Prosecution case that the people at Tim Mei Avenue heard the Q incitements in Exhibits P69 and P74200 if it cannot be proved that they must Q be the people D7 intended to incite and to whom the incitements were R R made. S S 197 Pg. 1594 and 1598 T 198 T Pg. 1594 and 1598 199 Pg. 1594 and 1598 200 Pg. 1594 and 1598 U U V V  - 230 - A A B B C 635. For the above reasons, the incitements in Exhibits P69 and C 201 P74 are not covered by the particulars of Charge 2. D D E 636. However, for the reasons given in the earlier part of the E judgment under the heading “The Incitements by D5 and D7 in Exhibit P74 F F (Pg. 1588-1589, 1591-1592 and 1593)”, on the basis of the incitements G made by D7 and the ones he made with D5 jointly in Exhibit P74 at Pg. G 1588-1589, D7 had unlawfully incited persons at Tim Mei Avenue, H H Admiralty, to cause a nuisance to the public by unlawfully obstructing I public places and roads in the neighbourhood of Tim Mei Avenue (Charge I 2); on the basis of the incitement made by D5 in Exhibit P74202 and the J J incitement by D6 in Exhibit P40203, by the application of the doctrine of K joint enterprise, D7 had unlawfully incited persons present at Tim Mei K Avenue to incite other persons to cause a nuisance to the public by L L unlawfully obstructing public places and roads in the neighbourhood of M Tim Mei Avenue (Charge 3). M N N Joint Enterprise O O 637. I am aware that D2 and D3 had not asked the people at Tim P P Mei Avenue to over-cram public places or roads of Admiralty, Central or Q Wanchai at or in the neighbourhood of Tim Mei Avenue, nor did they ask Q the people at Tim Mei Avenue to incite others to do so, the issue is whether R R by the application of the joint enterprise rule, the relevant speeches made S by D1 and D4 to D7 can be used against D2 and D3. S T 201 T Pg. 1594 and 1598 202 Pg. 1589 203 Pg. 1244 U U V V  - 231 - A A B B C 638. The Prosecution relies on the joint enterprise rule. The C reasonable evidence relied upon by the Prosecution for invoking the joint D D enterprise rule in Charge 2 and Charge 3 against D1 to D7 are the relevant E speeches made by D1 to D7 respectively as captured on the videos during E the gathering at Tim Mei Avenue on 27th and 28th September 2014. The F F Prosecution submits that, pursuant to the joint enterprise rule, the G Prosecution seeks to use the speeches made by each of the seven G defendants in the videos to prove the extent and degree of participation in H H the joint enterprise of the other defendant who did not make those I speeches.204 I J J 639. At the request of counsel for D4 to D7, Mr Bruce SC for the K Prosecution provided further written particulars for the direct liability and K liability on the basis of joint enterprise for D4 to D7. Mr Bruce submits, L L in respect of joint liability on the basis of joint enterprise, submits that in M various of the videos relied upon by the Prosecution, D4 to D7 were present M with each other and all of the other defendants (although not all at the same N N time) when one or more of those defendants uttered words which the O Prosecution contends were acts of incitement to persons to commit Charge O 2 and Charge 3. The Prosecution contends that D4 to D7 assented to what P P was said in his/her presence and, in the circumstances, justifies the Q conclusion that D4 to D6 were either individually or collectively with other Q defendants. The Prosecution contends not the least basis for this is that the R R utterances attributed to the defendant under consideration reveal a clear S resemblance to that said by other defendants in that locality and in those S T T 204 Para. 19 of the Prosecution’s Opening U U V V  - 232 - A A B B circumstances provide a basis for the conclusion that the defendant under C consideration was in a joint enterprise with those defendants. C D D 640. As no request for further particulars was made by D1 to D3, E the written particulars concerned only D4 to D7. I see no reason why the E Prosecution’s contention for liability on the basis of joint enterprise should F F be different for D1 to D3. G G 641. On 27th and 28th September 2014, D3 was not present when H H the other defendants made the incitements which amounted to an I incitement to commit public nuisance within the terms of Charge 2.205 I J J 642. On 27th and 28th September 2014, D1 to D3 were not present K when the other defendants made the incitements which amounted to an K incitement to incite public nuisance within the terms of Charge 3.206 L L M 643. As the Prosecution only seeks to attribute liability to a M defendant for words said in his/her presence by another defendant(s) which N N constitute words of incitement. There is no basis to attribute liability to D3 O on the basis of joint enterprise for incitement to commit public nuisance O (Charge 2) said by other defendants in his absence. P P Q 644. For the same reasons, there is no basis to attribute liability to Q D1, D2 and D3 on the basis of joint enterprise for incitement to incite R R public nuisance (Charge 3) said by other defendants in their absence. S S T T 205 Exhibits P20 and P74, Appendix I of the Prosecution’s Closing 206 Exhibits P17, P40 and P74 U U V V  - 233 - A A B B 645. I have explained why on the evidence before me, each of D1, C D4, D5 and D7 was criminally liable for the incitement to commit public C nuisance (Charge 2) they made without the need to resort to the doctrine of D D joint enterprise. E E 646. I have explained why on the evidence before me, each of D5, F F D6 and D7 was criminally liable for the incitement to incite public nuisance G (Charge 3) they made without the need to resort to the doctrine of joint G enterprise. H H I 647. I apply the doctrine of joint enterprise to the facts proved in I this case. J J K Joint Liability of D1, D2, D4 and D6 for the incitements in Exhibit P20 at K Pg. 1107 and 1111 (Charge 2) L L M 648. When D1 and D4 made the respective incitements in Exhibit M P20 at Pg. 1107 and 1111, D2 and D6 were also present on the main stage N N at Tim Mei Avenue incitements in Exhibit P20 at Pg. 1107 and 1111. O O 649. It should be noted that from the evidence of D2, the incitement P P made by D1 in Exhibit P20 was clearly made after the Trio’s discussion in Q the afternoon. D2 was present on the stage with D1 when the latter make Q the incitement in Exhibit P20, he did not take issue with what D1 had said R R in Exhibit P20 in any of his speeches afterwards. I am satisfied that the S speech of D1 in Exhibit P20 reflected the common intention of the Trio S and what the Trio had agreed in the discussion took place that afternoon, T T U U V V  - 234 - A A B B i.e. the Occupy Central should start with the over-cramming of Admiralty, C and then the over-cramming of Central. C D D 650. D2 was present on the main stage with D1 and D6 when D4 E made the incitement in Exhibit P20. The incitements made by D4 in E Exhibit P20 at Pg. 1107 and 1111 were similar and consistent with the F F incitement made by D1 in Exhibit P20 at Pg. 1107. G G 651. After the respective incitements made by D1 and D4 in H H Exhibit P20, D2 was present on the main stage when D1 announcement the I launch of the Occupy Central movement at around 1:36 a.m. on 28th I September 2014. J J K 652. The incitement by D4 at Pg. 1107 was made immediately after K the incitement made by D1 at Pg. 1107, the incitements made by D1 and L L D4 were similar in content. M M 653. The incitements made by D1 and D4 in Exhibit P20 were N N similar to the pleas made by D6 in Exhibit P17 at Pg. 1102 and P40 at Pg. O 1244-1245. O P P 654. I am sure that D1, D2, D4 and D6 had a common intention to Q incite the persons present to over-cram the public roads in the Q neighbourhood of Tim Mei Avenue. Each of them had the requisite mens R R rea required for the offence of incitement to commit public nuisance in S terms of the particulars pleaded in Charge 2. By the application of the S doctrine of joint enterprise, I find that D1, D2, D4 and D6 had acted in a T T U U V V  - 235 - A A B B joint enterprise with each other in making the incitements in Exhibit P20 C at Pg. 1107 and 1111 (Charge 2). C D D Joint Liability of D5 and D7 for the incitements in Exhibit P74 at Pg. E 1588-1589 (Charge 2 and Charge 3) E F F 655. The respective utterances which amounted to an incitement to G incite persons present at Tim Mei Avenue to cause a public nuisance in the G neighbourhood of Tim Mei Avenue (Charge 2) were made by D5 and D7 H H together when they were on the main stage at Tim Mei Avenue. It is clear I from the utterances in Exhibit P74 at Pg. 1588-1589 that what was said by I D5 or D7 reveals a clear resemblance to those said by the other defendant, J J i.e. D5 and D7 were in effect echoing each other. In my judgment, D5 and K D7 had acted in a joint enterprise with each other in making the incitements K alleged in Charge 2. L L M 656. The utterances by D5 at Pg. 1589 which amounted to an M incitement to the persons present at Tim Mei Avenue to incite others to N N commit public nuisance (Charge 3) was made in the presence of D7, both O D5 and D7 were addressing the people at Tim Mei Avenue at the time. In O my judgment, what they said in Exhibit P74 shows that they shared a P P common purpose, i.e. the over-cramming of the roads in the Q neighbourhood of Tim Mei Avenue. The respective utterances made by Q D5 and D7 in the foregoing analysis show that they were in effect echoing R R each other. As D5 called on the persons at Tim Mei Avenue to ask more S friends to join the movement in progress and over-cram Admiralty, S Wanchai and Central, D7 asked the people present at Tim Mei Avenue to T T cheer on the protestors who were prepared to dash out to occupy the roads. U U V V  - 236 - A A B B In my judgment, D5 and D7 had acted in a joint enterprise with each other C in making the incitement alleged in Charge 3. C D D 657. I am sure that D5 and D7 had a common intention to incite the E persons present to incite other people to cause a nuisance to the public by E unlawfully obstructing public places and roads in the neighbourhood of F F Tim Mei Avenue. Each of them had the requisite mens rea required for the G offence of incitement to incite public nuisance in terms of the particulars G pleaded in Charge 3. H H 658. By the doctrine of joint enterprise, I find that D5 and D7 had I I acted in a joint enterprise with each other in making the incitements in J Exhibit P74 at Pg. 1588-1589 (Charge 2 and Charge 3). J K K Joint Liability of D4, D6 and D7 for the incitements in Exhibit P40 at Pg. L 1244-1245 L M M 659. The utterances made by D6 at about 11:24 pm in the evening N N on 27th September 2014 amounted to an incitement to incite the persons O present at Tim Mei Avenue to incite others to commit public nuisance.207 O P P 660. D4 and D7 were present on the main stage when D6 made the Q incitement in Exhibit P40. What D6 said in Exhibit P40 bears a strong Q resemblance to what D4 and D7 said in their own speeches, i.e. D4’s plea R R to over-cram Admiralty and Central in Exhibit P20 208 and D7’s plea to S occupy the roads in Exhibit P74209. What D4 and D7 respectively said in S T 207 T Exhibit P40 at pages 1244-1245 208 Pg. 1107 and 1111 209 Pg. 1588-1589 U U V V  - 237 - A A B B Exhibits P20 and P74 show that they shared a common intention to incite C the persons present at Tim Mei Avenue to cause a public nuisance to the C public by unlawfully obstructing public places and roads in the D D neighbourhood of Tim Mei Avenue. Each of D4 and D7 had the requisite E mens rea required for the offence of incitement to commit public nuisance E in terms of the particulars pleaded in Charge 2. The other speeches made F F by D4, D6 and D7 also bear strong resemblances with each other, e.g. they G shared the common political objectives, they each called for more G supporters to join the occupy movement in progress at Tim Mei Avenue H H and each of them intended the occupy movement in progress at Tim Mei I Avenue to be for an indefinite period. When it comes to the words said I by D6 which amounted to an incitement to incite public nuisance210, I am J J sure that D4, D6 and D7 had acted in a joint enterprise with each other in K making the incitement in Exhibit P40 at Pg. 1244-1245. K L L 661. For the reasons given, by the application of the doctrine of M joint enterprise, D4, D6 and D7 had unlawfully incited persons at Tim Mei M Avenue, Admiralty to incite other persons to cause a nuisance to the public N N by unlawfully obstructing public places and roads in the neighbourhood of O Tim Mei Avenue (Charge 3). O P P Conclusions Reached on Charge 2 and Charge 3 Q Q 662. In my judgment, there is ample evidence to prove all the R R elements of Charge 2 beyond reasonable doubt against D1, D4, D5 and D7 S on the basis of the utterances made by each of them individually; there is S ample evidence to prove Charge 2 beyond reasonable doubt against D1, T T 210 Exhibit P40 at Pg. 1244-1245 U U V V  - 238 - A A B B D2, D4, D5, D6 and D7 by the application of the doctrine of joint C enterprise. C D 663. For the reasons given, I find D1, D2, D4, D5, D6 and D7 D guilty of Charge 2. E E 664. I find D3 not guilty of Charge 2. F F G G 665. In my judgment, there is ample evidence to prove all the H elements of Charge 3 beyond reasonable doubt against D5, D6 and D7 on H the basis of the utterances made by each of them individually; there is I I ample evidence to prove Charge 3 beyond reasonable doubt against D4, J D5, D6 and D7 by the application of the doctrine of joint enterprise. J K 666. For the reasons given, I find D4, D5, D6 and D7 guilty of K Charge 3. L L 667. I find D1, D2 and D3 not guilty of Charge 3. M M N N Charge 4: Incitement to Commit Public Nuisance and Charge 5: O Incitement to Incite Public Nuisance (against D8) O P P 668. Charge 4 and Charge 5 concern words said by D8 at Fenwick Q Pier Street, Admiralty on 28th September 2014. Q R R 669. The words that were said by D8 and relied upon the S Prosecution to prove the charges were captured on videos and produced as S evidence. T T U U V V  - 239 - A A B B 670. It should be noted that in Admitted Facts III reached by the C Prosecution and D8, video clips which captured speeches made by other C th th defendants at other locations on 27 and 28 September 2014 were also D D produced. Those speeches are not the subject matters of complaint of E Charge 4 and Charge 5, they were produced to show the background E against which the alleged incitements were made by D8 at Fenwick Pier F F Street on 28th September 2014. G G 671. At around 3:42 p.m. on 28th September 2014, D8 addressed H H the people gathering at Fenwick Pier Street. He said amongst other things:- I I “D8: Bail is still not granted. Actually, do you think it is J fair?....Protect the students. Everyone goes to the carriageway, J goes to the carriageway. Go to the carriageway. Go to the carriageway…... Counter-besiege. Go to the carriageway. K Counter-besiege. Well, we – why are we at this place today(?) K Why are we here at Lung King Street, Fenwick Pier (?) We have L to sit here, this is because…..Well, as he wants to clear our – L no, he has to clear the students, then (they) definitely have to pass by our place here first. Therefore, if we want to protect M the people inside, first of all, he has to clear our place here. M Therefore, in order to protect the people inside, we – we, at the N previous position, standing here, standing under the footbridge N is not able to protect the people inside, right? Well, as we, at this place. We defend here, well, we –alright, (we) all can move O a little forward. More people move a bit forward…. No need to O panic now, I am here, (you) all hurry up and ask more people to come over, please. Everybody, being here, being here, P P right…..Well, remember we are here, we now – now don’t act on our own initiative to have -- conflict with these frontline Q police officers, we don’t need to do so, sit down here—we have Q already defended (it), understand or not? We don’t need to come into conflict with him, (we) just have to defend R here……Thus, now, everybody, please send messages to tell R your friends (you) are here. Take photos to tell your friends S that we are here, ask him/her (to go to) Exit F, go past this S Harcourt Park, and then go past Police Headquarters, walk across the footbridge our place here, or come here by making T a detour around (the Hong Kong Academy for) Performing T Arts, we are at this place, okay? Tell your friends, okay? Ask more people to come, okay? Well, the people on the U U V V  - 240 - A A B pavement….I hope (we) all could come out together, could B come out together. Originally, as we said today, (those) who C came out, well, some of (them) might simply want to have an C assembly, but most of us here, once (we) all, one – as (we) have out here, we are ready for Civil disobedience, right. Right? D Civil disobedience…. Without fear. Civil disobedience…………. D Without fear. Well, on the night before last, …… Therefore, well, E friends, (I) hope if you support this campaign, support Hong E Kong, we need to have an equal political right, civil nomination. We have to abolish the functional constituencies. F We have to carry out civil disobedience. If, like what we did in F the past, everything’s over after the rally, do you want that? In fact we haven’t make any improvement, change. Today we hope G G everybody put one more step, hope everybody go onto the road. Of course, doing so, for sure, we would cause obstruction to a H certain extent. For that, (I) hope the passengers on board H Route 18 bus today would – understand us. Well, now the police are putting more reinforcement, but we need not feel I nervous. At his place, what’s most important for us is to stay I calm, be restraint. We need to be more courageous than her, J but not be agitated. Can you do that? Well, as you said, you J can. You promise. Therefore if she comes later, she comes to remove people – well, please move a bit forward, move a bit K forward, to confront (them),…..Er, people are sitting all over K on the whole Performing Arts Avenue. Well, I hope you may come out, come out to the road, to the road. Shall we give them L L some encouragement, shan’t we? (I) hope you come out. Well, if you don’t come out, never mind. If you don’t come out, never M mind. Get some resources to us, okay? Go and get some M resources, or ask others to come over, okay? Go over to help them. Ask more people under the footbridge to come over, ask N more people to come over, okay? Okay? Or help us bring some N resources, bring some water. We don’t have sufficient resources O here, ……..With more friends coming out, more friends O coming out, this place can be safeguarded. Well, if later she pushes us, she pushes us, we sit still, sit still, sit still, with our P arms in arms. Lie down here. There’s no other way. We let P her carry (us away)…..” Q (Emphasis added)211 Q R 672. At around 3:56 p.m. on 28th September 2014, D8 addressed R the people gathering at Fenwick Pier Street. He said amongst other things:- S S T T 211 Exhibit P86, pages 1661-1667 U U V V  - 241 - A A B “D8: Would (you) people stay away from him/her? I believe B that it still takes some time for the ambulance to arrive. If, when C the clearance (operation) is carried out, (you) all (should) sit C properly arm in arm instead of holding each other’s hands in this way……We (should be) arm in arm by holding our – that’s, D er, this part, okay, can be easily held (and) linked, okay, D okay?.....Hence, well, we will not walk ourselves. Just let E him/her move (us away). They, in a group of four, move away E one of us…..Well, we do not need to make resistance….Well, hence, (I) hope that we all hold fast to our posts…The greater F number of people sitting here, the more difficult for them to F carry out clearance…” (Emphasis added)212 G G H 673. At around 4:03 p.m. on 28th September 2014, D8 addressed H the people gathering at Fenwick Pier Street. He said amongst other things:- I I J “D8: …….However, we guard this place. More people J go to the carriageways, let’s applaud. Go to the carriageways. Go to the carriageways. Go to the K carriageways. Go to the carriageways. Civil K disobedience. No fear. Orr, bring those for giving to the cops. Does anyone want to send them the gifts? Well, L L someone does. Let me tell (you) what to do. Well, you people make the decision yourself. I am not interested. M Well, everybody, I heard that Harcourt Road was M blocked by us also. Therefore, you must guard here. Well, we don’t go everywhere. Let’s guard here. Let’s N have more people sitting here (and) see how (they) clear N out us. If he/she further clear out (us), (if) he/she O further besiege (us), I besiege him/her again, counter- O besiege, okay? Well, later on I may be arrested (and) taken away. Well, later on I may be arrested and taken P away, ….it’s not surprising, because he/she said I P would incite you people to do such-and-such. However Q I think that you were not incited by me. You people Q have your own will. Right?........Therefore, can everybody hold fast to the post? Well, you promise me. R Hold fast to the post. Hold fast to the post. Remain R restraint. However, we (remain) restraint while we stand firm, right? Very firm. Unswerving. Civil S S disobedience. Unswerving. Civil disobedience. No fear. Unswerving. Civil disobedience. No fear. I want civil T rights. Abolish the functional constituencies. T 212 Exhibit P86, pages 1668-1672 U U V V  - 242 - A A B Overthrow the (‘)Committee of Privilege(‘). Overthrow B the (‘)Committee of Privilege(‘). LEUNG Chun-ying C steps down.” C (Emphasis added)213 D D 674. At around 4:07 p.m. on 28th September 2014, D8 addressed E the people gathering at Fenwick Pier Street. He said amongst other things:- E F F “D8: Well, this is our demand, that is, civil disobedience without fear, (we) are not afraid of you at all, right?..... G G We are – I now briefly talk about some basic procedures, alright? The basic procedures, well, I hope everyone H listen carefully, if you are (participating) in civil H disobedience, alright? Well, if he/she wants to clear out (site) later, we defend here. When (he/she) comes to I clear our (site), we link arms, lie down with arms I interlinked. The closer, the better. More people sitting J close together will be better, okay? Brunch together, J well, well, sit here, link arms and lie down. No need to bump against him/her because we are unable to bump K against (them), okay? We just sit here to defend, right? K Well, then while we are defending, he/she will come to lift us slowly. ……Well, we are here, our duty is to stall L L his/her clearance (operation). We will try our best to increase -- increase our cost. ……… You lift (us), let’s M see how many you can lift. We, here – you can lift two M hundred (people) here, (but) there are still a thousand (people) inside, right? Is that right? Alright, let’s see N how you lift (the people). Y – You come quickly to lift N us…..Well, everybody, remember we don’t listen to them. O We relax our limbs…… We just lie down for them to lift O (us)… If you are large in size, you alone will be lifted by six to eight persons….Listen, I heard that…we got a P piece of information….Gloucester Road was also P blocked…….er, people who are not sitting, I hope (you) Q all can do one thing for me…….Okay, the present Q incumbent Convener YEUNG Ching-yin. Well, he --, er, --, er, bring everyone to take the mill barriers. We R will make some …., make some barricades, alright? R We have to help him. Well, we sit here and don’t move, don’t move. We sit here, well, and wait for him to speak. S S YEUNG Ching-yin: …… D8: Alright, let’s thank YEUNG Ching-yin,,,,,,,,, People T help him – people follow him to help in bringing the mill T 213 Exhibit P86, pages 1673-1675 U U V V  - 243 - A A B barriers here, ….Everyone takes a rest, well, everyone B takes a rest, (everyone) really needs to take a rest, C because if (you) don’t get some rest now, it’s really C toilsome. As we are having a long-term battle, so everyone really needs to take a rest now…” D (Emphasis added)214 D E E 675. I have considered the contents of the aforementioned speeches F made by D8 and viewed the video clips. I am satisfied that the intended F audience of D8 in all the speeches he made at Fenwick Pier Street were the G G persons present at Fenwick Pier Street. D8 used a loud speaker when he H addressed the people at Fenwick Pier Street, I am sure that the speeches of H D8 were heard by those within the audibility range of the loud speaker. I I J 676. In Exhibit P86, amongst other things, D8 asked the persons J present at Fenwick Pier Street to: (i) occupy the carriageways of Fenwick K K Pier Street; and (ii) to ask other people to go to Fenwick Pier Street to L occupy the carriageway. I am sure that the impugned words in Exhibit P86 L were said for the purpose of rousing, stimulating, urging and stirring up the M M persons present to do what they were asked to do. Suggestions and N proposals were clearly made to the persons present: (i) to occupy the N carriageway of Fenwick Pier Street; and (ii) to ask other persons to go to O O Fenwick Pier Street to do the same. In my judgment, the impugned words P said by D8 in Exhibit P86 amounted to incitement. P Q Q 677. In his speeches at Pg. 1661 to 1667, 1668 to 1672, 1673 to R 1675 and 1676 to 1682, D8 asked the persons present at Fenwick Pier R Street to go to the carriageway to counter-besiege the police. He made it S S T T 214 Exhibit P86, pages 1676-1685 U U V V  - 244 - A A B B clear that the purpose was to stop the police from clearing the students at C Tim Mei Avenue. C D D 678. In my judgment, what D8 said at Pg. 1661 to 1667 amounted E to an incitement made to the persons present at Fenwick Pier Street to E occupy the carriageway of Fenwick Pier Street. F F G 679. In D8’s speech at Pg. 1661 to 1667, D8 also asked the persons G present at Fenwick Pier Street to ask their friends to go to Fenwick Pier H H Street. D8 made it clear that he expected most of the people who came out I would take part in civil disobedience. In my judgment, there were two I types of participants anticipated by D8 in his speech, firstly those who J J would take part in a public assembly without civil disobedience, and K secondly, those who would take part in civil disobedience. D8 made it K clear that he expected most of the participants would take part in civil L L disobedience. Putting what D8 said in its proper context, I am sure what M he meant by taking part in civil disobedience was that the participants go M to the carriageway to counter-besiege the Police. In fact, D8 made it clear N N in his speech at Pg. 1673 to 1675 that the protestors should sit on the O carriageway. O P P 680. I am satisfied what D8 said in Exhibit P86 at Pg. 1661 to 1667 Q amounted to an incitement to the persons present at Fenwick Pier Street: Q (i) to occupy the carriageway of Fenwick Pier Street; and (ii) to incite other R R persons to go to Fenwick Pier Street to do the same. S S 681. D8 and his targeted incitees were both present at Fenwick Pier T T Street at the time, I am sure that they knew what effect of the obstruction U U V V  - 245 - A A B B would have on the traffic on Fenwick Pier Street if the carriageway was C fully occupied and obstructed. In fact, in his speech at Pg. 1661 to 1667, C D8 made it clear to the persons present that traffic would be obstructed and D D bus service on Fenwick Pier Street, i.e. route number 18 would be affected. E I am sure D8 understood and knew what the effect of the obstruction of the E carriageway of Fenwick Pier Street would have on the traffic, and the F F persons present at Fenwick Pier Street were also aware of the same. G G 682. It is clear that the purpose of the occupation of the pavement H H and carriageway of Fenwick Pier Street was to counter-besiege the Police I so that the Occupy Central movement in progress at Tim Mei Avenue could I last indefinitely. That being the case, it must also be the intention of D8 J J that the carriageway of Fenwick Pier Street would be occupied as long as K the Occupy Central movement at Tim Mei Avenue was in progress. In K order words, the occupation of the carriageway of Fenwick Pier Street L L would also be for an indefinite period. M M 683. Given the instructions given by D8 to the persons present as N N to how they should prolong the occupation in the event of a clearance O action, i.e. the protestors should relax their bodies, brunch together and link O their arms, it would be very difficult for the police to lift all the protestors P P away within a short period of time. As D8 said defiantly:- Q Q “…let’s see how many you can lift. We, here – you can R lift two hundred (people) here, (but) there are still a R thousand (people) inside, right? Is that right? Alright, S let’s see how you lift (the people)..” S T D8 also manifested his intention that the occupation of the carriageway T would be for an indefinite period when he asked the people present to make U U V V  - 246 - A A B B some barricades as defence work. By what D8 said to the people present, C D8 had made known his intention that he wanted the carriageway of C Fenwick Pier Street to be occupied for an indefinite period of time, and by D D what he said, he had made his intention known to his audience. E E 684. I accept the protest that took place at Fenwick Pier Street was F F a peaceful one. G G 685. The incitements made by D8 in Exhibit P86 were made at a H H time when he knew Harcourt Road was blocked by protestors and Fenwick I Pier Street was filled up with protestors. Fenwick Pier Street is a major I thoroughfare in Wanchai and Admiralty. J J K 686. The public assembly at Fenwick Pier Street on 28th September K 2014 took place without any notification made to the Police, hence no L L measures could be taken in advance to militate against the obstruction and M inconvenience that would be caused by the obstruction of the carriageway. M N N 687. I am aware that the purpose of the occupation was to protect O the Occupy Central movement in progress at Tim Mei Avenue. D8 called O for the occupation of the pavements and carriageway to counter-besiege P P the Police who were cordoning off the venue at Tim Mei Avenue. In my Q judgment, no matter how effective the tactic of counter-besieging the Q Police was in safeguarding the Occupy Central movement at Tim Mei R R Avenue, the tactic of counter-besieging the Police would inevitably lead to S obstruction of more public places and roads. As protestors counter- S besieged the Police who were besieging the venue at Tim Mei Avenue, T T U U V V  - 247 - A A B B Harcourt Road and Fenwick Pier Street would be occupied by protestors, C hence more obstruction and inconvenience would be caused to the public. C D D 688. D8 also made it clear in his speech his objectives were: E E “I want civil rights. Abolish the functional F constituencies. Overthrow the (‘)Committee of F Privilege(‘). Overthrow the (‘)Committee of Privilege(‘). LEUNG Chun-ying steps down.” G G 689. I have taken into consideration all the circumstances leading H H to the making of the incitements by D8 in Exhibit P86. In my judgment, I I the scale of the occupation D8 called for was extensive. Fenwick Pier J Street was an important thoroughfare linking Wanchai and Admiralty. The J intended occupation was for an indefinite period. K K L 690. I have borne in mind the protection given by the Basic Law to L the citizens to participate in peaceful demonstration and the demonstration M M at Fenwick Pier Street on 28th September 2014 was a peaceful one. I have N borne in mind the purpose of the demonstration at Fenwick Pier Street and N Tim Mei Avenue. O O 691. Mr. Lok SC submitted that PW5 Tong Wai Tung “gave P P evidence that the fire engine concerned could still reach the destination by Q detouring. The delay caused is a few minutes. Inference could be drawn Q that the traffic inconvenience caused by the people’s gathering at Fenwick R R Pier Street may not be very substantial”. 215 S S T T 215 Para. 24 of D8’s Closing Submission U U V V  - 248 - A A B B 692. It should be noted that PW5 also gave evidence that with the C detour the fire engine had taken, when the fire engine reached Queensway C westbound outside the High Court, it had to make a U-turn at Lippo Centre D D against the traffic in order to reach its destination at Admiralty Centre, in E other words, the fire engine had to travel on a carriageway exactly opposite E to the ordinary carriageway for one to travel on. The length of delay must F F be understood in the light of the fact that the fire engine had to make a U- G turn against the traffic. In my judgment, the severity of the obstruction and G inconvenience caused to the public cannot be reflected by the delay H H occasioned to PW5’s fire engine. I I 693. Mr. Lok submits that “it is not the prosecution case and there J is no evidence that when people gathered at the carriageway of Fenwick J Pier Street, the district in the vicinity would be blocked”. 216 In my K K judgement, given the severity and the intended duration of the obstruction L caused by the occupation of the carriageway of Fenwick Pier Street and L other factors identified in the judgment of Yeung May Wan, there is ample M M evidence to support a finding that the traffic inconvenience caused by the N N blockage of the carriageway was substantial. In my judgment, to cause O substantial traffic inconvenience, the district in the vicinity did not have to O be blocked. P P 694. Mr. Lok SC drew my attention to D8’s reaction to the Q Q appearance of PW5’s fire engine in Exhibit P86 at Pg. 1685 to 1686 and R submitted that D8’s speech upon seeing the fire engine shows that he never R told anyone to do anything to block fire engines from passing through S S Fenwick Pier Street. Instead D8 asked the pickets/marshals to understand T T 216 Para. 24 of D8’s Closing Submissions U U V V  - 249 - A A B B the matter and he warned people not to force their way over to the fire C engine. Mr. Lok SC submitted that what D8 did was consistent with what C he had previously told the people, i.e. they should only disallow police cars D D to go through and they must let ambulances to go through.217 E E 695. In my judgment, though D8 did not ask the crowd to block the F passage of PW5’s fire engine, D8 still asked the marshals to understand F and then tell him what the matter was at a time when the siren of the fire G G engine was on. He insisted to know the reason for the fire engine’s H appearance. Eventually, PW5’s fire engine left to take a detour. What D8 H asked the crowd and the marshals to do, i.e. that enquiry be made and D8 I I be told the reason for the fire engine’s appearance, would take time to J complete, it would be wholly unreasonable for D8 to require the firemen J on PW5’s fire engine on call to a ‘Multiple Casualties Incident” with its K K siren on to explain to the crowd/marshals why they had to travel pass L Fenwick Pier Street and seek permission from them to do so. D8 and the L crowd might not know PW5 and his colleagues were on call to a ‘Multiple M M Casualties Incident’, but they certainly knew that the fact that the siren was N N on signified the urgency of the matter. I am sure D8 was mature enough O to know, so were the people present at Fenwick Pier Street, as the siren of O the fire engine was on, every minute counted for the firemen on board the P P fire engine and the people awaiting the arrival of the fire engine at Q Admiralty Centre. Q R R 696. In my judgment, what D8 incited the people to do at Fenwick S Pier Street was not a reasonable use of the carriageway of Fenwick Pier S Street. The obstruction to the traffic and inconvenience caused to the T T 217 Para. 26 of D8’s Closing Submissions U U V V  - 250 - A A B B public would be so serious that would exceed the bounds of reasonableness C and the protection given by the Basic Law to the right to peaceful C demonstration. I find the obstruction that would be caused was not D D warranted by law. E E 697. From the computer certificates produced, I am satisfied that F F the obstruction of the carriageway of Fenwick Pier Street would result in G the suffering of common injury by common members of the public. G H H 698. From the evidence, I am satisfied that when D8 repeated urged I the people at Fenwick Pier Street to occupy the carriageway of Fenwick I Pier Street in Exhibit P68, he intended that the incitees, i.e. the persons J J present at Fenwick Pier Street who heard the incitements, would do the act K incited by him, that is to say, to cause obstruction to public places and the K carriageway of Fenwick Pier Street, with the mens rea of public nuisance, L L i.e. the incitees knew, or ought to have known (because of the means of M knowledge were available to them) the consequence of the obstruction of M the carriageway of Fenwick Pier Street. N N O 699. In this case, the incitees were present at Fenwick Pier Street O when the incitements were made, they must be aware of what was going P P on at the time of the incitements and what the effect of an indefinite Q obstruction of the carriageway of Fenwick Pier Street would have on the Q traffic if they acted as D8 incited. R R S 700. In my judgment, the utterances made by D8 in Exhibit P86 S urging the people present to occupy and sit on the carriageway of Fenwick T T Pier Street amounted to an unlawful incitement to cause a public nuisance U U V V  - 251 - A A B B to the public by unlawfully obstructed the carriageway of Fenwick Pier C Street. C D D 701. From the evidence, I am satisfied that when D8 urged the E people at Fenwick Pier Street to ask their friends to come to Fenwick Pier E Street and occupy the carriageway of it, he intended that the incitees, i.e. F F the persons present at Fenwick Pier Street who heard the incitement, would G do an act which would involve the commission of the offence of G incitement, i.e. inciting a public nuisance to the public by unlawfully H H obstructing the carriageway of Fenwick Pier Street, i.e. the actus reus for I the offence of “incitement to incite public nuisance”. I J J 702. I am sure that when D8 made the above incitement, he K intended or believed that the incitees (the persons present at Fenwick Pier K Street) would incite other persons (the friends of the incitees) to do the act L L incited, i.e. to cause a nuisance to the public by unlawfully obstructing the M carriageway of Fenwick Pier Street and that the incitees (the persons M present at Fenwick Pier Street) would do the act with the mens rea required N N for incitement, i.e. in this case, an intention to incite their friends. O O 703. In my judgment, on the basis of the incitement made by D8 in P P Exhibit P86, D8 had unlawfully incited the persons at Fenwick Pier Street Q to incite other persons by unlawfully obstructing the carriageway of Q Fenwick Pier Street. R R S S T T U U V V  - 252 - A A B B Conclusions on Charge 4 and Charge 5 C C 704. I find all the elements of Charge 4 and Charge 5 are proved D D against D8 beyond reasonable doubt. E E 705. I find D8 guilty of Charge 4 and Charge 5. F F G Charge 6: Incitement to Commit Public Nuisance (against D9) G H H 706. Charge 6 concerns words said by D9 at Harcourt Road near I Tim Mei Avenue on 28th September 2014. I J J 707. The words that were said by D9 and relied upon by the K Prosecution to prove the charge were captured on videos and produced as K evidence. L L M 708. It should be noted that in Admitted Facts IV reached by the M Prosecution and D9, video clips which captured speeches made by other N N defendants at other locations on 27th and 28th September 2014 were also O produced.218 Those speeches do not form the subject matters of complaint O of Charge 4 and Charge 5, they were produced to show the background P P against which the alleged incitements were made by D9 at Harcourt Road Q on 28th September 2014. Q R R 709. It should be noted that though D9 appeared in Exhibit P71 and S P72, he was then at Fenwick Pier Street, not Harcourt Road, hence D9 was S T T 218 Para. 4 to 27 of Admitted Facts IV U U V V  - 253 - A A B B not addressing the people at Harcourt Road when he spoke at around 3:09 C p.m. at Fenwick Pier Street.219 C D 710. The alleged incitements which form the subject matters of D Charge 6 are contained in the speeches made by D9 at Harcourt Road in E E th the afternoon on 28 September 2014. F F 711. At around 3:13 p.m. on 28th September 2014, D9 addressed G G the people gathering at Harcourt Road, he said:- H H “D9: Was (it) received at that position? The people, the I members of the public on that side, the right-hand side, please I move backwards for 50 steps as far as possible to occupy the J space at the back. This is because (it) starts to be crammed, J many people are coming. Good! All (people) here, everybody moves backwards slowly and orderly, occupy the entire K carriageway and the lawn at the back. Reserve an open area K here for the members of the public who are coming. Some (people) have started coming [indistinct] (You) all can take L L (your) time to come (here), don’t hurry. Move backwards slowly, move to the back, thank you very much.” M (Emphasis added)220 M N 712. A few minutes later, at around 3:15 p.m., D9 addressed the N people gathering at Harcourt Road and said:- O O P “D9: Well! (We) continue to appeal to the people on the right- P hand side here. (You) can move backward as far as possible because we still see many members of the public coming. We Q Q want to gather more people before we decide the next steps, okay(?) Everybody, (please) give a helping hand, move R backward (from) here as far as possible. Everybody, thank you R very much.”221 S S T 219 T Exhibit P71, Pg. 1557 to1558 220 Exhibit P71, page 1559 221 Exhibit P71, page 1560 U U V V  - 254 - A A B B 713. At around 3:32 p.m., D9 addressed the people gathering at C Harcourt Road and said:- C D D “D9: Well! Here, an access is maintained here for our people to walk over there! As far as possible, avoid moving backward. E Everybody, thank you very much!”222 E F 714. At around 3:35 p.m., D9 addressed the people gathering at F Harcourt Road and said:- G G H “D9: The headquarters of the organizer has notified us that the H police have cordoned off all the entrance and exit passages including Admiralty Centre and the …er…exit of Liberation I I Army (Building). However, [indistinct] part of the crowds of people have sat on Harcourt Road to block the road leading to J Central. Anyway, firstly [indistinct] now the (traffic) on (the J section) of Harcourt Road from Sai Wan towards Central (and) towards Admiralty has probably slowed down or even at a K standstill. Secondly, the crowds in Admiralty Centre haven’t K moved. Some people amongst them attempted to jump from a L bridge. (They) didn’t jump then. Well, fire engines have placed L four to five air mattresses (there). The (traffic) going from east to west on Harcourt Road was also closed. Long live the power M of people. Long live the power of people, long live the power of M people, long live the power of people, Everyone keeps it up.” N (Emphasis added)223 N O 715. At around 3:39 p.m., D9 addressed the people gathering at O Harcourt Road and said:- P P Q “D9: Well, (we) have just received a phone call from LAI Chee- Q ying. Ai, he seldom calls us. LAI Chee-ying said there were more than ten thousand people in the LegCo, they [indistinct] R sacrificed (themselves), and the morale amongst them was very R high. (I) said I would not get inside, I would live and die S together with these crowds, Okay? [Indistinct] (We have to) S think of some strategies. In a word, (we) have to (persist in our) T T 222 Exhibit P71, page 1561 223 Exhibit P71, page 1562 U U V V  - 255 - A A B protest until the end, everybody hangs on.” B (Emphasis added)224 C C 716. At around 3:46 p.m., D9 addressed the people gathering at D D Harcourt Road and said:- E E “D9: Listen, I remind (you), LEUNG Chun-ying just held a press F conference on that side at three o’clock. However, these things F were said again. Now, in the next stage, about three thousand G and two (hundred) people are assigned to nominate the Chief G Executive of Hong Kong Special Administrative Region. Do (you) agree? (We) don’t listen to (him) saying these things, that H is, saying this rubbish again. [Indistinct] LEUNG Chun-ying, H all besiege the entrance on Harcourt Road, wait for ‘Ho Ming’ (transliteration) to come back, then we will take action! Okay? I I Everybody waits for a moment!” (Emphasis added)225 J J 717. At around 3:51 p.m., D9 addressed the people gathering at K K Harcourt Road and said:- L L “Listen, everybody, can (you) hear me? Listen, we have a M suggested action for everybody’s consideration, everybody sees M that there are crowds of people standing by the side of the flower bed on Harcourt Road at the back. Well, er, as what we have N N said, at Admiralty Station, Harcourt Road, there are crowds sitting on a road suspending the traffic. I have a very bold O suggestion – listen, our people in the front now start walking O to the flower bed outside, and then sit on the road to carry out civil disobedience, Okay? Everybody follows me, well, I have P just said, I have just said, I have just said that those (people) P who don’t prepare for civil disobedience, don’t need to follow Q my action. You can continue to sit in the front road, okay? Q Those (people) who don’t prepare for being arrested by the police, please come forward first, because you can withstand R them here. Our people at the back go to the back, okay? Those R crowds stand up (here) first. Those crowds, who don’t move, S stand up first.” (Emphasis added)226 S T 224 T Exhibit P71, page 1563 225 Exhibit P71, page 1564 226 Exhibit P71, page 1565-1566 U U V V  - 256 - A A B B C 718. At around 3:57 p.m., D9 addressed the people gathering at C Harcourt Road and said:- D D E “D9: All people come over here! Come over! Come E over!..... [Indistinct]…..Come over! Come over! I haven’t {Indistinct}…… Come over! All come over! F Al come over! Come over! Come over!”227 F G 719. At around 3:59 p.m., D9 addressed the people gathering at G Harcourt Road. He said:- H H I “D9: All come over, come over…… All come over, all come over. I All come over, all come over here. All come over, all come over. J Come over, all come over, all come over…” J K D9 also asked everybody present to support the students.228 K L L 720. At around 3:59 p.m., D9 addressed the people gathering at M Harcourt Road and said:- M N N “D9: People opposite to Admiralty Centre, can you hear (me)? People opposite to Admiralty Centre, (if) you can hear (me), O leading by your leader, come over together, okay? Come over, O come over, come over, come over, come over………Our crowd P can walk over there to join them, okay? The crowd on our side, P walk across the road slowly, join (the people) on the opposite side, okay? Come over, come over, come over, come over. Q Those opposite to Admiralty (Centre), come over here slowly. Q Let’s meet together and have an assembly, okay? We have an assembly on – on the road, assembly on the road. The crowd R R on the opposite side of Admiralty (Centre), walk over here, walk over here slowly. Our crowd here, walk over there slowly, to S join them, okay?” (Emphasis added) 229 S T 227 T Exhibit P79, page 1621 228 Exhibit P79, page 1622-1623 229 Exhibit P79, page 1624-1625 U U V V  - 257 - A A B B C 721. At around 4:05 p.m., D9 chanted the slogan “Support the C students” with the people at Harcourt Road and said:- D D E “D9: People opposite to Admiralty Centre, can you hear?...... as E led by your leader, (let’s) come over together, okay? Come over, come over,………come over.” (Emphasis added)230 F F 722. At around 4:09 p.m., D9 addressed the people gathering at G G Harcourt Road and said:- H H “D9: Everybody at CGO, the road is open! It’s us, the crowd! I It’s us, members of public (who) opened the road! Long live I the power of people! Long Live the power of people! Long live J the students! Long live the students! Support the students! J Support the students!...........Keep it up! Keep it up!......Friends, if you are on the six lanes of Harcourt Road, I suggest that you K may sit down peacefully and have the assembly here. Sit down K peacefully, sit down peacefully, have the assembly here. Support the students. Sit down here……, show LEUNG Chun- L L ying that we have over 100,000 people in support of the students, sitting down here. Sit down, and then allow the crowd to come M in… inside, to the six lanes, and sit down. Support the students. M Don’t go away. Support the students. Don’t go away. Thank you, friends at the front. Gradually ask the people behind to take N their time to sit down. Sit all over the six lanes. Sit all over on N the six lanes, to support the students. Sit all over on the six O O lanes, sit all over the six lanes. Support the students. Okay.” P (Emphasis added)231 P Q Q 723. At around 4:12 p.m., D9 addressed the people gathering at R Harcourt Road and said:- R S S “D9: Open the road! Open the road! Open the road! Open the road!..........Look, I know that some people among us (come T T 230 Exhibit P80, page 1640-1641 231 Exhibit P79, page 1626-1627 U U V V  - 258 - A A B here to) support the students, (and) have brought materials B here. Now, please pass them on slowly, er, to the lawn where C the materials will be placed. Thank you everybody. Everybody, C please sit down or stand on these six lanes, don’t stand on these six lanes, don’t move, support the students, thank you D everybody.” (Emphasis added)232 D E E 724. At around 4:15 p.m., D9 addressed the people gathering at F Harcourt Road and called for the release of Wong Chi Fung and Chow F Yong Kang.233 G G H 725. At around 4:38 p.m. and 4:43 p.m., D9 addressed the people H gathering at Harcourt Road and demanded the Police to open the road.234 I I J 726. At around 4:49 p.m., D9 addressed the people gathering at J Harcourt Road and demanded the Police to remove the Mill barriers.235 K K L 727. At around 5.52 p.m., D9 addressed the people gathering at L Harcourt Road and shouted “Rush! Rush! Rush! Rush!....” with the people M M present.236 N N 728. I have considered the contents of the aforementioned speeches O O made by D9 and viewed the relevant video clips. I am satisfied that the P intended audience of D8 in all the speeches he made at Harcourt Road were P the persons present at Harcourt Road. D9 used a loudspeaker when he Q Q made his addresses. I am sure that the speeches of D9 were heard by those R R S S 232 Exhibit P79, page 1628 233 Exhibit P80, page 1629 T 234 T Exhibit P80, page 1630-1631 235 Exhibit P79, page 1644 236 Exhibit P84, page 1645 U U V V  - 259 - A A B B who were within the audibility range of the loud speaker. In fact, D9 was C careful to make sure that the loud hailer was working.237 C D D 729. In Exhibits P71, P79 and P80, amongst other things, D9 asked E the persons present on both sides of Harcourt Road to go out to the E carriageways, sit down and occupy all six carriageways of Harcourt Road. F F I find that the impugned words in Exhibits P71, P79 and P80 were said for G the purpose of rousing, stimulating, urging the people on both sides of G Harcourt Road to do what D9 asked them to do. Suggestions and proposals H H were clearly made to the people present (i) to walk out to the road and sit I on the road to carry out civil disobedience; (ii) to besiege the entrance on I Harcourt Road. In fact, D9 called what he was about to tell the people on J J both sides of Harcourt to do a “suggested action”.238 K K 730. I am satisfied that the incitements made by D9 in Exhibits L L P71, P79 and P80 amounted to incitements made to the persons present at M Harcourt Road to occupy the 6 carriageways of Harcourt Road. M N N 731. D9 and his targeted audience were both present at Harcourt O Road at the time, I am sure that they knew what obstruction would be O caused to the traffic on Harcourt Road if all 6 carriageways were occupied P P and obstructed. Q Q 732. Mr. Choy SC submitted that the Prosecution fails to prove that R R the assembly at Harcourt Road was held without a Notification of Intention S to Hold a Public Meeting. For the reasons given in my analysis of PW1 S T T 237 Exhibit P79, page 1622 238 Exhibit P71, page 1565 U U V V  - 260 - A A B B and PW2’s evidence, I find that the assembly at Harcourt Road on C 28 September 2014 was held without notification. In fact, what was said C by D9 in Exhibit P71 reveals that he knew for a fact the assembly he was D D asking the people to hold on the road was without any notification. E E 733. At the time, D9 said:- F F G “…listen, our people in the front now start walking to the G flower bed outside, and then sit on the road to carry out civil disobedience, Okay? Everybody follows me, well, I have just H said, I have just said, I have just said that those (people) who H don’t prepare for civil disobedience, don’t need to follow my I action. You can continue to sit in the front road, okay? Those I (people) who don’t prepare for being arrested by the police, please come forward first, because you can withstand them J here.” J K K 734. In the above address, D9 was conscious to ask only the L protestors who were prepared to take part in civil disobedience to sit on the L road. If D9 believed a Notification of Intention to Hold a Public Meeting M M had been served, he would not have thought that the assembly on the N carriageways of Harcourt Road would involve civil disobedience. N O O 735. Mr. Choy SC submitted “People arriving from every direction P tried to find all sorts of ways to get as close to Tim Mei Avenue as possible. P The closest spot they could get to was the junction between Tim Mei Avenue Q Q and Harcourt Road. Being blocked from proceeding any further, the R crowd gradually built up at the junction. As the crowd swelled, the R blocking of Harcourt Road became inevitable. The fact that the blocking S S started at the junction and not anywhere else shows that the protesters’ T T U U V V  - 261 - A A B B intention was not to stay on Harcourt Road, but were merely trying to find C a way into Tim Mei Avenue”.239 C D 736. It should be noted that amongst others things said by D9, he D asked the people present at Harcourt Road to besiege the entrance on E E Harcourt Road: “…, all besiege the entrance on Harcourt Road,…”. 240 He F also asked the people gathering on Harcourt Road to have an assembly on F the road: “Let’s meet together and have an assembly, okay? We have an G G assembly on – on the road, assembly on the road.” 241 D9 told the crowd H that he learnt that there were more than ten thousand people at the H Legislative Council but he would not go into the venue at Tim Mei Avenue I I and would “live and die together with these crowds…”, i.e. the people J gathering on Harcourt Road.242 J K K 737. On the other hand, in Exhibit P80 at Pg. 1931, D9 together L with the protestors demanded that the Police should open the road; in L Exhibit P84 at Pg. 1544, D9 demanded the Police to remove the mills M M barriers. N N 738. It is clear to me that whilst at one point D9 was looking for O the opportunity to merge the protestors and the occupied area at Harcourt O Road with the protestors and the venue at Tim Mei Avenue, hence the P P demand for the opening of the road and the removal of the mills barriers; Q on the other hand, D9 was also prepared to continue to occupy the 6 Q carriageways of Harcourt Road as a measure to counter-besiege the Police R R hence he vowed that he would not enter the venue. D9 made it clear in S S 239 Para. 72 of D9’s Closing Submissions T 240 T Exhibit P71, Pg. 1564 241 Exhibit P79, Pg. 1624 to 1625 242 Exhibit P71, Pg. 1563 U U V V  - 262 - A A B B many of his speeches he wanted to support the students. It is clear that the C purpose of the occupation of the carriageways of Harcourt Road was to C counter-besiege the Police whether or not D9 and the Protestors could enter D D and join force with the public assembly in progress at Tim Mei Avenue. It E must also be the intention of D9 that the carriageways of Harcourt Road E would be occupied as long as the Occupy Central movement at Tim Mei F F Avenue was in progress and required counter-besieging of the Police. I am G sure that the occupation of the carriageways of Harcourt Road would also G be for an indefinite period. H H I 739. In Exhibit P71 at Pg. 1563, D9 asked the people at Harcourt I Road to persist in their protest until the end; in Exhibit P79 at Pg. 1628, he J J made arrangement for the material supplies brought to Harcourt Road. K These utterances by D9 at the time reinforce my finding that D9 intended K the occupation of the carriageways of Harcourt Road would be for an L L indefinite period and he had made known his intention to the people present M at Harcourt Road. M N N 740. Mr. Choy SC submitted that the Police, instead of fulfilling O their positive duty to facilitate the demonstration which was likely to go on O for a longer period of time, decided to adopt a policy of prohibiting access P P to the CGC, i.e. the Exclusion Plan implemented by Senior Superintendent Q Dover. He submitted in Para. 71 of D9’s Closing Submissions that “The Q cordoning off of the CGC was unwarranted and is an unconstitutional R R interference of the protesters right to demonstrate. P has not produced any S credible evidence to show why such measure was necessary and S proportionate in the circumstances, nor why it was even legal. The T T U U V V  - 263 - A A B B Exclusion Plan thus fails both the requirement of legality and C proportionality.” C D 741. The Exclusion Plan of the Police must be understood in the D light of what D1 said when he announced the launch of Occupy Central at E E th around 1:36 a.m. on 28 September 2014. D1 said, amongst other things: F “Occupy Central will begin with occupying the Central Government F Offices”. 243 The Exclusion Plan that Senior Superintendent Dover G G th implemented on 28 September 2014 was a necessary and proportionate H measure to the threat to occupy the Central Government Offices. There H were a large number of protesters at Tim Mei Avenue, there were I I incitements made to call for more people to join the movement in progress J at Tim Mei Avenue. It would be most irresponsible if the Police were to J take the threat to occupy the CGC lightly. In my judgment, it was K K reasonable and lawful for the Police to prohibit protestors’ access to the L CGC in order to protect the integrity of the CGC, which had been expressly L made a target of occupation in the early hours on 28th September 2014. M M N 742. In my judgment, the decision to cordon off Tim Mei Avenue N made by PW2 on 26th September 2014 shows that the Police had fulfilled O O their positive duty to facilitate the holding of the demonstration in progress P at Tim Mei Avenue at a time when the number of demonstrators swelled P and demonstrators began to demonstrate on the carriageway of Tim Mei Q Q Avenue. After a threat was made to occupy the CGO and given the fact R that there was a large number of demonstrators appearing at Harcourt Road R near the CGO, it was unreasonable to expect and demand the Police to S S T T 243 Exhibit P44 at Pg. 1321, Para. 18 of Admitted Facts IV U U V V  - 264 - A A B B cordon off yet another road, i.e. Harcourt Road to facilitate the holding of C a demonstration there. C D 743. I accept the public assembly and protest that took place at D Harcourt Road was a peaceful one. E E F 744. Harcourt Road is a major thoroughfare linking Wanchai, F Admiralty and Central. The incitements of D9 in the afternoon of G G 28 September 2014 were made at a time when he knew part of the crowds H were people sitting on the carriageway of Harcourt Road to block the H westbound traffic of Harcourt Road, he also knew that the eastbound traffic I I 244 had probably slowed down or even at a standstill as a result and there J were over 10,000 protestors at Tim Mei Avenue.245 J K K 745. As said, I find that the public assembly at Harcourt Road on L 28th September 2014 took place without any prior notification made to the L Police, hence no measures could be taken in advance to militate against the M M obstruction and inconvenience that would be caused by the blockage of the N N 6 carriageways of Harcourt Road. O O 746. I am aware that the purpose of the occupation was to support P P the students and protect the Occupy Central movement in progress at Tim Q Mei Avenue. D9 called for the occupation of the six carriageways of Q Harcourt Road to counter-besiege the Police who were cordoning off the R R venue at Tim Mei Avenue. S S T T 244 Exhibit P71, page 1562 245 Exhibit P71, page 1563 U U V V  - 265 - A A B B 747. In my judgment, no matter how effective the tactic of counter- C besieging the Police was in safeguarding the Occupy Central movement at C Tim Mei Avenue, the tactic of counter-besieging the Police would D D inevitably lead to obstruction of more public places and roads. As E protestors occupied the carriageways of Harcourt Road to counter-besiege E the Police who were cordoning off the venue at Tim Mei Avenue, further F F obstruction and inconvenience caused would be caused to the public. G G 748. I have taken into consideration all the circumstances leading H H to the making of the incitements by D9 in Exhibits P71, P79 and P80. In I my judgment, the scale of the occupation D9 called for was extensive. He I called for the occupation of all six carriageways of Harcourt Road, a major J J thoroughfare linking Wanchai, Admiralty and Central. The intended K occupation was for an indefinite period. K L L 749. I have borne in mind the protection given by the Basic Law to M the citizens to participate in peaceful demonstration and the demonstration M at Harcourt Road on 28th September 2014 was a peaceful one. I have borne N N in mind the purpose of the demonstration at Harcourt Road and Tim Mei O Avenue. O P P 750. In my judgment, what D9 incited the persons to do at Harcourt Q Road was not a reasonable use of the carriageways of Harcourt Road. The Q obstruction to the traffic and inconvenience caused would be so serious R R that would exceed the bounds of reasonableness and the protection given S by the Basic Law to the right to peaceful demonstration. I find the S obstruction that would be caused was not warranted by the law. T T U U V V  - 266 - A A B B 751. From the computer certificates, 246 I am satisfied that the C occupation of the six carriageways of Harcourt Road would result in the C suffering of common injury by common members of the public. D D E 752. From the evidence, I am satisfied that when D9 repeatedly E urged the people on both sides of Harcourt Road to occupy the six F F carriageways of Harcourt Road, he intended that the incitees, i.e. the G persons present at Harcourt Road who heard the incitements, would do the G act incited by him, that is to say, to cause obstruction to the carriageways H H of Harcourt Road by going out to the carriageways from both sides, joining I together and sitting on the road to hold a public assembly, i.e. the incitees I knew, or ought to have known (because of the means of knowledge were J J available to them) the consequence of the obstruction of the carriageways K of Harcourt Road. K L L 753. In this case, the incitees were present at Harcourt Road, they M must be aware of what was going on at Harcourt Road at the time of the M incitements and what the effect of an indefinite obstruction of all the N N carriageways of Harcourt Road would be if they acted as D9 incited. O O 754. In my judgment, the utterances made by D9 to in Exhibits P P P71, P79 and P80 urging the people to occupy and sit on the six Q carriageways of Harcourt Road amounted to an unlawful incitement to Q cause a public nuisance to the public by unlawfully obstructed the R R carriageway of Fenwick Pier Street. S S T T 246 Exhibits P145-P147 U U V V  - 267 - A A B B Conclusion on Charge 6 C C 755. I am satisfied that all the elements of Charge 6 are proved D D against D9 beyond reasonable doubt. E E 756. I find D9 guilty of Charge 6. F F THE VERDICT G G H 757. On Charge 1 “Conspiracy to Commit a Public Nuisance” H (against D1 to D3), I find D1 to D3 guilty. I I J 758. On Charge 2 “Incitement to Commit Public Nuisance” J (against D1 to D7), I find D1, D2, D4, D5, D6 and D7 guilty of Charge 2. K K L 759. I find D3 not guilty of Charge 2. L M M 760. On Charge 3 “Incitement to Incite Public Nuisance” (against N D1 to D7), I find D4, D5, D6 and D7 guilty of Charge 3. N O O 761. I find D1 to D3 not guilty of Charge 3. P P 762. On Charge 4 “Incitement to Commit Public Nuisance” Q Q (against D8 only), I find D8 guilty of Charge 4. R R 763. On Charge 5 “Incitement to Incite Public Nuisance” (against S S D8 only), I find D8 guilty of Charge 5. T T U U V V  - 268 - A A B B 764. On Charge 6 “Incitement to Commit Public Nuisance” C (against D9 only), I find D9 guilty of Charge 6. C D D E ( Johnny Chan ) E District Judge F F G G H H I I J J K K L L M M N N O O P P Q Q R R S S T T U U V V