HCCC408/2016 HKSAR v. LEUNG TIN KEI AND OTHERS - LawHero
HCCC408/2016
高等法院（刑事）Anthea Pang J10/6/2018[2018] HKCFI 1329
HCCC408/2016
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[English Translation – 英譯本]
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HCCC 408/2016
[2018] HKCFI 1329
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E IN THE HIGH COURT OF THE E
F
HONG KONG SPECIAL ADMINISTRATIVE REGION F
COURT OF FIRST INSTANCE
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CRIMINAL CASE NO 408 OF 2016
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I I
BETWEEN
HKSAR
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and
K K
LEUNG Tin-kei (D1)
L LO Kin-man (D3) L
WONG Ka-kui (Formerly D5)
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____________
N Before: Hon Anthea Pang J N
Date: 11 June 2018 at 9:45am
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Present: Mr Francis M.B. Cheng, Counsel on fiat, for HKSAR
P Mr Edwin W. B. Choy, SC, instructed by Ho, Tse, Wai & Partners, P
assigned by D.L.A., for the 1st Defendant
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Mr Lawrence W. C. Lau instructed by Bond Ng Solicitors,
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assigned by D.L.A., for the 3rd Defendant
S Mr Thomas P. S. Iu, instructed by Fan Wong & Tso, assigned by S
D.L.A., for the former 5th Defendant
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Offences: Riot and others
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REASO N S F OR SE NT E NCE
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Background E
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1. The 1st defendant (D1) and the 3rd defendant (D3) in this case
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were, after trial, convicted by the jury unanimously of one count of riot,
G contrary to Section 19(1) and (2) of the Public Order Ordinance, Cap 245. G
D1 was involved in the 4th count of the indictment, which was the riot that
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took place on Argyle Street, Mongkok, on 9 February 2016. D3 was
I involved in the 3rd count of the indictment, which was the riot that took I
place on Portland Street between 8 February 2016 and 9 February 2016.
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K 2. Further, D1 pleaded guilty to one count of assaulting a police K
officer in the due execution of duty, contrary to Section 36(b) of the
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Offences against the Person Ordinance, Cap 212. Insofar as the former
M 5th defendant (D5) is concerned, he, before the trial commenced, pleaded M
guilty to the 4th count, which was about his involvement in the riot on
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Argyle Street, Mongkok, on 9 February 2016.
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P Relevant Facts of the Case P
Q The Riot on Portland Street Q
3. During the trial, the defence did not take much issue with this R
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part of the evidence adduced by the prosecution.
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4. Briefly, at about 9:30 pm on Lunar New Year’s Day on 8 T
February 2016, officers of the Food and Environmental Hygiene
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Department (FEHD) witnessed 8 to 10 people who were wearing Hong
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Kong Indigenous (HKI) tracksuits assisting hawkers by wheeling their
C hawker trolleys from the back lane at Shui Hing Mahjong School to the C
pavement of Portland Street and Nelson Street. The hawkers then began
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trading on the pavement and the roadway. Almost at the same time, FEHD
E officers standing guard outside Sa Store were being surrounded and scolded E
with foul language by about 100 people. Some of these people also
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assaulted one of the FEHD officers with hands and feet. The officer
G managed to leave the scene only when the police provided assistance. G
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5. In addition, a hawker kept chasing and trying to push his cart
I containing boiling oil towards an FEHD officer who was filming at the I
scene. The FEHD officer eventually had to position himself between the
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poles of a road sign to avoid being chased any further.
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6. Given the situation at the scene, the FEHD officers left some
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time before 10 o’clock that night. When they were there, the officers had
M never tried to disperse, warn or ticket the hawkers. M
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7. During the trial, that was referred to as the hawkers’ incident.
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8. Later that night, a taxi travelling along Portland Street, which
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was said to have hit a pedestrian, was stopped and surrounded by a crowd.
Q According to witnesses, the size of the crowd surrounding the taxi was Q
about 70 to 80 people with 10 of them wearing HKI outfits. The taxi driver
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said he pulled over because someone suddenly lay on the bonnet. What
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happened next was his taxi was surrounded by dozens to a hundred people
in the roadway. The police came and tried to handle the traffic incident after T
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a report was made, but the crowd refused to let the police approach the taxi.
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The police had tried to use a loudspeaker to offer their explanation and
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advice to the crowd, hoping that the crowd would give way. However,
C WONG Toi-yeung spoke through a loud hailer, basically asking the police C
to leave the scene. Eventually, WONG Toi-yeung urged the crowd to make
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room for the taxi to reverse and leave Portland Street, but he also told the
E crowd to continue surrounding the police. The relevant video footage E
showed that the crowd followed his command and acted accordingly. That
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was referred to in the trial as the taxi incident.
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9. After the taxi incident, a lot of people gathered on the roadway
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of Portland Street. Because of that, the police brought an elevated platform
I to Portland Street so that they could stand on top and make broadcasts, I
asking the crowd to return to the pavement. However, the crowd became
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very agitated upon seeing the elevated platform. They shouted at the police
K and threw at the police line various articles, including glass bottles, plastic K
bottles and flower pots. That was referred to in the trial as the elevated
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platform incident.
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10. An expatriate superintendent testified that a man near him was
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struck by a large concrete slab usually used for construction. Moreover, a
O sergeant who was one of the officers in the police line but who did not have O
any contact with the crowd was struck on the neck by a brick, which
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resulted in injuries and bleeding. Other police officers testified that they
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were surrounded and hit by the crowd and once they fell, people kept
kicking their heads. Further, there were witnesses saying that when the R
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police line was advancing on Portland Street, many people in the crowd
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were carrying weapons such as wooden sticks, stones, glass bottles and
other objects. The video footage produced revealed that most of the people T
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in the front row were carrying home-made shields while some of them were
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wearing helmets. One could also see from the video footage that some of
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them were wearing armour and there was one holding a long pole. Liquid
C was splashed in front of the police line. Most of the people in the crowd C
were wearing face masks.
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E 11. During the stand-off, the police had raised warning banners at E
different stages and used a loudspeaker to advise people to leave. However,
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while the police did not take any action after giving 334 warnings, the
G crowd charged forward towards the police line under the command of G
WONG Toi-yeung. It was then about 1:45am.
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I 12. According to witnesses, about 500 people gathered on Portland I
Street that night. There were, however, just about a dozen police officers
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initially and based on what witnesses said, eventually the manpower the
K police could deploy that night was only about 300. During the stand-off, K
about 70 to 100 people also gathered at the rear of the police line at the
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junction of Shantung Street that joined Portland Street. The photographs
M produced showed that various objects were used to block the junction at M
Shantung Street in an attempt to stop traffic going to Portland Street and to
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contain the police there. Therefore, as pointed out by the expatriate
O superintendent in his evidence, in order to ensure that nothing would O
happen behind the police line, what the police did first was to disperse the
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crowd at Shantung Street.
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R The Riot on Argyle Street R
13. Apart from denying having assaulted a police officer a second S
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time on Argyle Street, at trial, most of the events relating to that count were
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not disputed by D1. As such, the relevant circumstances could be extracted
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from the summary of facts admitted by D5 in connection with the Argyle
C Street riot. C
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14. To put it simply, people gathering on Portland Street on the
E night of 8 February and the early morning of 9 February 2016 were herded E
into Argyle Street when the police line advanced towards Argyle Street.
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G 15. At about 2am that day, at least dozens of people were gathering G
on Argyle Street near the intersection with Portland Street and Shanghai
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Street. Various objects such as rubbish bins, pallets and traffic cones were
I put on the roadway to make barricades. People also blocked traffic by I
walking in the middle of the road, thus causing vehicles to reverse and leave.
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Many people in the crowd were wearing face masks. Some of them were
K wearing HKI tops and holding shields. The number of people assembling K
there later increased to over 200. They mainly gathered near the barricades
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and along both sides of the road.
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16. At that time, about 10 traffic police officers were trying to clear
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away the barricades and advising people there to leave, so that the road
O could be reopened. O
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17. Suddenly, dozens of people dashed to the roadway and attacked
Q a traffic police officer from behind. They also threw things at him. WONG Q
Ka-kui, formerly D5 in this case, threw a styrofoam box at the officer but
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missed. Another man went forward and put his arms around the officer
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from behind, causing him to fall. At the same time, when a man was
throwing articles at the officer, his hand touched D5, causing D5 to fall and T
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land on the officer who was already on the ground. Other people nearby,
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who were also part of the crowd, then attacked that officer with sticks and
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threw things at him. Eventually, that officer subdued D5 with the assistance
C of colleagues. C
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18. According to the summary of facts agreed by D5, he admitted
E that upon arrest and under caution, he said to the arresting officer, “People E
came out, and I came out, too. It was so chaotic, so many people were there.
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And then I got arrested by you.”
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19. When D5 was subdued on the ground, the crowd had once
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withdrawn towards the direction of Portland Street, but before long, they
I again pushed towards the traffic police officers and hurled things like glass I
bottles and rubbish bins at the officers. As a result, the traffic police officers
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retreated towards Shanghai Street. When doing so, police officers tried to
K move forward to disperse the crowd but in vain. They were then attacked by K
the people assembling there who threw objects at the officers and chased
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them. As a result, police officers continued to retreat towards Shanghai
M Street. In the course of the retreat, a police officer tripped and fell onto the M
ground. People then continuously assaulted him by throwing various
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objects such as pallets, rubbish bins and barriers at him. Other police
O officers tried to rescue their colleague but failed. Finally, in order to control O
the situation and to protect the police officer from being seriously injured,
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an officer fired two shots in the air after giving a warning. At that point, the
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crowd then began to move back.
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20. In the Argyle Street riot, several police officers sustained
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injuries. The Medical Assessment Board was of the view that the assault on
that day had caused two of them a 2% permanent disability and one of them T
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a 1% permanent disability.
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21. Insofar as the prosecution’s case against D1 regarding the riot
C on Argyle Street was concerned, apart from relying on the summary of facts C
admitted by D1 in relation to the offence of assaulting a police officer, the
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prosecution also called witnesses to testify at the trial. The witnesses
E testified that later that day, D1 punched a plainclothes police officer. E
Another officer then went over to D1 and warned him, but D1 ignored him.
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Subsequently, with the assistance of his colleagues, the officer used his
G baton to subdue D1 and arrested him. Although D1 denied having assaulted G
the police a second time, the evidence on this second assault paled into
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insignificance as the jury unanimously found that D1 did take part in the
I riot on Argyle Street after hearing the evidence given by the witnesses as to I
what happened on Argyle Street that night. Thus, the second assault would
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not materially affect the sentence.
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The Offence of Assaulting a Police Officer Admitted by D1 L
22. According to the summary of facts admitted by D1, when the
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crowd advanced towards the traffic police officers on Argyle Street and
N threw objects like glass bottles and rubbish bins, D1 first threw the lid of a N
rubbish bin at the police. Then, in the course of the police’s retreat to
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Shanghai Street, Sergeant 10985 drew his baton and, together with other
P police officers, issued warnings to the crowd and tried to disperse the crowd. P
However, the crowd ignored the warnings. They continued to dash forward Q
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and threw objects at the police. When Sergeant 10985 tried to stop a person
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who was holding a brick in his hand, the sergeant suddenly felt great pain in
his left ear and he fell down. While on the ground, Sergeant 10985 was S
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continuously assaulted by the crowd. D1 was the one who threw a plastic
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bucket at the sergeant and kicked the sergeant with his right foot. D1 further
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struck the back of the sergeant with a wooden pallet and he then ran away. U
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The Medical Assessment Board assessed that the assault had caused a 2%
C permanent disability to the sergeant. C
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23. The summary of facts admitted by D1 also revealed that after
E D1 had assaulted Sergeant 10985, he still stayed on Argyle Street near E
Portland Street and Shanghai Street.
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G Defendants’ Background and Mitigation G
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D1
I 24. D1 is single, now 27 years old. He was born in Mainland I
China and came to settle in Hong Kong in 1992. He was educated in Hong
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Kong. At the material time, he was a student of the University of Hong
K Kong and had a clear record. Subsequently, as mentioned above, he K
admitted the offence of assaulting a police office before the trial
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commenced.
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25. During mitigation, Mr Choy for D1 submitted to the court
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letters written by D1’s family members, schoolmates, friends, former
O members of the Hong Kong Legislative Council, religious figures, foreign O
scholars and members of the UK House of Lords. All of them have nothing
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but praise for D1, describing him as a young man who is kind, intelligent,
Q insightful, caring and responsible. Regarding the events in this case, they Q
essentially stated that he acted out of character due to provocation.
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References were made in some of the letters to D1 being forced to commit
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the offences in this case in order to rescue a young woman from being
treated violently by the police. However, this account of rescuing an T
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innocent woman is obviously inconsistent in a material way with the
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evidence examined by the jury, their verdict, and the undisputed video
C footage produced. C
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26. Mr Choy, in mitigation for D1, submitted that D1 was a
E responsible and passionate young man, not an ordinary criminal. His E
transgression had nothing to do with personal gain but was driven by his
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ideological convictions.
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27. Further, since the jury could not reach a valid verdict in relation
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to the count of riot on Portland Street against D1 and they also acquitted
I him of the count of incitement to riot on Portland Street; and since the I
relevant police officers testified that at that time they did not know there
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were traffic officers removing obstacles from Argyle Street, Mr Choy
K submitted that there was no basis for the court to find that D1 participated in K
the riot on Argyle Street with premeditation.
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M 28. Regarding the offence of assaulting a police officer to which M
D1 pleaded guilty, Mr Choy submitted that the sentence should run
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concurrently with that of the offence of riot.
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P D3 P
29. D3 was born on the Mainland and later moved to Hong Kong.
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He grew up in Hong Kong and was educated up to secondary school. He
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used to work as a clerk in a law firm and as a waiter in a restaurant. He is
single, now 31 years old. At the material time, he had a clear record. S
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T 30. In mitigation, Mr Lau for D3 submitted letters written by D3’s
family members, friends, ex-employer and members of the Legislative U
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Council. They all described D3 as a kind and extremely caring person
C although he was rather rude in his manner and language. They also said that C
D3 was dedicated to protecting the environment, that he cared about society
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and the poor, and that this transgression was only committed on the spur of
E the moment. Further, upon realizing that his father unfortunately has cancer, E
D3 could not stop blaming himself.
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G 31. During mitigation, Mr Lau added that D3’s behaviour at the G
material time was caused by cumulative prejudice and anger towards the
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police, but he had since realized that police officers were also ordinary
I citizens performing their duties. Therefore, he is very remorseful for what I
he did that day.
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K 32. Mr Lau also pointed out that, at the time, D3 only threw K
various water bottles, mud and sand. He did not participate in any arson or
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brick throwing. Mr Lau therefore submitted that D3’s involvement in the
M offence was less serious, and asked the court to impose a lenient sentence as M
far as possible.
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O O
WONG Ka-kui, Formerly D5
P 33. D5 was born in Hong Kong and was educated up to secondary P
school. He is single, now 27 years old. He used to work as an electrical
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technician and had a clear record at the material time.
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34. In mitigation, Mr Iu for D5 submitted to the court letters S
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written by D5 himself, his family members, girlfriend and ex-employer.
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They all described D5 as a man who cared about his family and was
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caring and responsible. His ex-employer also said that he was willing to
C employ D5 again upon his release from prison. C
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35. Mr Iu submitted that D5 had already pleaded guilty before trial,
E that he was only passing by Argyle Street that night and committed the E
transgression on the spur of the moment, and what he did was merely
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throwing a styrofoam box. Most importantly, Mr Iu said, D5 knew nothing
G at all about the subsequent turn of events since he was arrested at a very G
early stage. Mr Iu therefore submitted that D5’s circumstances were special
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and asked the court to impose a lenient sentence as far as possible.
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J
Sentencing Considerations J
36. First of all, although defence counsel submitted in mitigation
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that this case took place against a particular social and political background
L and that the defendants in this case were different from ordinary criminals, L
in R v Caird & Others [1970] Cr App R 499, a riot case in the UK, LJ Sachs
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of the UK Court of Appeal made the following observation:
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“Before now turning to individual sentences, it is
appropriate first to mention certain general points which have
O been much canvassed. First, it should be observed that a plea in O
mitigation of “provocation” made at one stage by Mr Myers was
very properly withdrawn shortly after having been put forward.
P This Court could not entertain a political plea of that sort in the P
circumstances of this case as constituting mitigation, whatever
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other views it may have on it. Any suggestion that a section of Q
the community strongly holding one set of views is justified in
banding together to disrupt the lawful activities of a section that
R does not hold the same views so strongly or which holds R
different views cannot be tolerated and must unhesitatingly be
rejected by the courts. When there is wanton and vicious S
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violence of gross degree the Court is not concerned with whether
it originates from gang rivalry or from political motives. It is the
T degree of mob violence that matters and the extent to which the T
public peace is being broken.”
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37. Further, in dealing with an appeal against sentence in R v
C Pilgrim [1983] 5 Cr App R(S) 140, another riot case in the UK, CJ Lord C
Lane pointed out at page 145 that “One of the principal objects of the
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criminal law in any civilised society is to prevent people taking the law into
E their own hands.” In other words, the law only distinguishes between those E
who abide by it and those who break it.
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G 38. If anyone breaks the law, the court has a duty to sentence him G
according to the criminal act committed by him. The court will not allow
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anyone to resort to violence to deal with disputes regarding people’s
I livelihood, politics, etc. As pointed out by Poon JA in Secretary for Justice v. I
Wong Chi Fung and Others [2017] 5 HKC 116, "The participants of an
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assembly will lose the protection of the law on exercising their right to
K assembly once they overstep the bounds laid down by the law, and they K
shall have to bear the consequences and be sanctioned by the law. The
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offenders cannot say that the law deprives them of or suppress their
M freedom of assembly and expression by sanctioning them. The reason is M
that the law has never allowed them to exercise these freedoms through
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unlawful means or ways."
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39. From the above HK and UK cases, it is clear that violence, by
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its nature, goes contrary to the principles of rational discussion and mutual
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respect espoused by a civilized and diversified society.
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40. In any event, even if, as alleged by the defence, the violent
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incidents that night took place against a particular social and political
background, it was undisputed by the parties that at the material time, no T
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FEHD or police officers had driven away any hawkers, and initially the
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purpose of the police presence was merely to handle a reported traffic
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incident. The police subsequently sent reinforcements because more people
C were gathering and causing an obstruction. Yet, the police kept offering C
advice to the crowd and sent officers to contact WONG Toi-yeung, hoping
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that the matter could be settled peacefully. Nevertheless, as shown in the
E undisputed video footage, before the police advanced after the 334 E
warnings, the crowd, after hearing what WONG Toi-yeung said, had
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already taken the initiative to charge forward towards the police line on
G Portland Street, which then triggered the violent behaviour in other streets. G
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41. In this connection, I would like to point out that in Pilgrim, a
I case involving racial conflict, the trial judge said: I
“I accept also, it is very difficult for people like the rest of us to
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understand the prejudice and insults that you sometimes have to
bear because of your colour, but the revenge you took on that
K night of June 1 on totally innocent people is, in my judgment, out K
of all proportion to anything you could properly be said to have
suffered before and I entirely reject any suggestion that has been
L put forward to suggest that you are justified in any way in what L
you did.”
M M
42. Similarly, the facts in this case showed that the riot on Portland
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Street that night started with a crowd gathering on the road, refusing to let
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the police handle the traffic incident. The crowd then vented on police
officers with retaliatory violence. As admitted by Mr Lau for D3 during P
P
mitigation, D3’s behaviour that night was caused by cumulative prejudice
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and anger towards the police. Mr Choy also confirmed he was not saying
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that the violence involved in this case could be justified. Therefore, I am of R
the view that the background of the incidents in this case cannot be taken as
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a mitigating factor; otherwise, the community may get the wrong message
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that they can resort to violence when they are not satisfied with the T
government or the current situation.
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43. Further, in Caird mentioned above, Sachs LJ also pointed out
C that when considering the appropriate sentence, the court had to emphasize C
that an offender’s status as a student, when compared with an ordinary
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citizen, should not be a ground for preferential treatment. A defendant’s
E educational background could not be used as a basis for a reduction in E
sentence. LJ Sachs reiterated at pages 508 and 509:
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“ …He most certainly cannot by virtue of his education claim
preferential treatment – as, for instance, to receive lighter
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punishment than one less well educated.
H It is against that background that the individual sentences H
have to be considered by the Court with that deep anxiety which
accompanies the really painful duty of dealing with young men of
I previous good character and coming from the surroundings of I
which the Court has been informed. The Court is naturally
conscious of the particular consequences which may be suffered J
J
by each applicant and of the grief unfortunately caused to his
family. …
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…The Court has felt bound in each case to give proper
weight to the public interest and not simply to regard the welfare
L of the defendant as the paramount consideration. … L
…One thing is clear, however, that no one can claim to M
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escape a proper length of custodial sentence by virtue of social
background or of education.”
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O 44. In the present case, defence counsel also tried to suggest that O
the individual acts of the defendants, in contrast to all that took place that
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night, were relatively less serious. However, in Carid, LJ Sachs made the
Q observation at pages 507-508 as follows: Q
“Those who choose to take part in such unlawful occasions must
R do so at their peril. … Any participation whatever, irrespective of R
its precise form, in an unlawful or riotous assembly of this type
S
derives its gravity from becoming one of those who, by weight of S
numbers, pursued a common and unlawful purpose. The law of
this country has always leant heavily against those who, to attain
T such a purpose, use the threat that lies in the power of T
numbers. …Over and over again it was submitted on behalf of
the applicants that their individual acts should be regarded as if
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they had been committed in isolation. … In the view of this
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Court, it is a wholly wrong approach to take the acts of any
individual participator in isolation. They were not committed in
C isolation and, as already indicated, it is that very fact that C
constitutes the gravity of the offence.”
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45. Therefore, in deciding the starting points for the respective
E E
offences in this case, I would consider the extent of the overall violence
F involved, not the defendant’s individual acts in isolation. F
G G
46. As Yeung VP pointed out in HKSAR v YEUNG Ka Lun [2018]
H HKCA 146 citing Pilgrim, “What a court has to pay regard to is the level of H
violence used, the scale of the riot or affray as described by the witnesses,
I I
the extent to which it is premeditated, or, on the other hand, spontaneously
J arises, and finally the number of people engaged in its execution.” In that J
case, Yeung VP also pointed out that “a deterrent sentence is warranted for
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this type of offence.”
L L
47. In respect of the necessity of imposing a deterrent sentence in
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cases involving violence, the Court of Final Appeal in Secretary for Justice
N v. Wong Chi Fung [2018] HKCFA 4, which was a case concerning unlawful N
assembly, cited Starke J in R v Dixon-Jenkins (1985) 14 A Crim R 372 at
O O
page 379:
P P
“There are large groups in present-day society of sincere, earnest
but wrong-headed people who, because their convictions are so
Q strong, or because they pretend their convictions are so strong, Q
will stop at nothing in order to impose those views on the
community, and this, in my opinion, just like hijacking, is
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calculated to become contagious, and if at the first step, the
courts do not show that such conduct, however well intended,
S will not be tolerated in this community, then it is unlikely that S
such behaviour will be stopped in its tracks. I therefore am of
the opinion that this is just the case where general deterrence has
T an overriding effect on the resulting sentence.” T
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Starting Points
C 48. The Court of Appeal did not lay down any sentencing guideline C
for the offence of riot. However, in Yeung Ka Lun, the Court held that the
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starting point of 5 years adopted by the trial judge for the offence of riot
E was appropriate. The Court of Appeal pointed out that the applicant not E
only acted in concert with the people assembled at the scene to confront the
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police officers who attended the scene on instruction to carry out their
G G
duties, the crowd also took various measures, including throwing bricks dug
up from the ground and other objects at the police, in an attempt to harm the H
H
police officers who were carrying out their duties. Although there was no
I I
direct evidence showing that the applicant had thrown bricks at the police
J
officers, the behaviour of the applicant showed that he endorsed the offence J
and took part in it. The Court of Appeal also remarked that the case in hand
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undoubtedly involved an extremely serious contravention of the law and the
L
Court was determined to crack down on such criminal conduct which L
showed no respect for law and order or the safety of the law enforcement
M M
officers.
N N
Starting Point for the Offence of Riot on Portland Street (the 3rd count)
O O
49. In light of the aforesaid and taking into account the factors
P P
mentioned in Pilgrim by the Court of Appeal in Yeung Ka Lun, I take the
Q view that the violence involved in the 3rd count was large in scale and Q
extremely serious. According to witnesses, the number of people gathered
R R
at that time was as many as 500. The crowd not only confronted the police
S on Portland Street for almost four hours, they also disregarded the police’s S
repeated advice and announcements and kept throwing at the police line
T T
various objects, including stones, bricks, concrete slabs for construction use,
U glass bottles, plastic bottles, rubbish bins and flower pots etc. Some people U
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splashed liquid in front of the police line and held metal poles to put up
C resistance. A police officer also testified that after he had been pushed to the C
ground, people kept kicking his head.
D D
E 50. Further, this case happened on the night of Lunar New Year’s E
Day in a very crowded area of the city. The violence involved definitely
F F
endangered the safety of Hong Kong citizens. In fact, one witness testified
G that after he had been struck by a brick, he bled and was injured although he G
had no contact with the crowd. The expatriate superintendent also pointed
H H
out that someone immediately fell onto the ground and lost consciousness
I after being hit by a concrete slab. All this showed that the violent I
behaviour in this case was extremely injurious.
J J
K 51. In fact, two senior police officers who were in command at the K
scene testified that they had never before come across such a violent
L L
situation during their careers as police officers.
M M
52. Apart from the foregoing, the video footage also showed that
N N
many people scolded the police officers wantonly, thus stirring up the
O emotions of the people present at the scene and causing the situation to heat O
up.
P P
Q 53. As to the degree of premeditation mentioned in Pilgrim, the Q
video footage produced clearly showed that the majority of the people
R R
gathering at Portland Street wore face masks. That night was the night of
S
S Lunar New Year’s Day, there was no need for them to dress like that on
such a joyful day if they were not acting with premeditation in an attempt to T
T
cover up their identities. Besides, most of the people standing in the front
U U
row were holding home-made shields. Some were wearing goggles and
V V
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helmets. The video footage also showed that some people put on their
C armour in the meantime. Moreover, as mentioned before, at the initial stage, C
people already gathered and placed obstacles at the junction of Shantung
D D
Street and Portland Street in order to occupy the carriageway, block
E vehicles from entering, and encircle the police officers on Portland Street. E
F F
54. All this offending behaviour clearly showed that the riot on
G Portland Street that night was premediated. Even if that was not the case G
and even if the crowd only gathered spontaneously or they were only there
H H
to support the hawkers in response to HKI’s appeal on the Internet, I am
I sure that the behaviour of the crowd at the later stage clearly demonstrated I
that the riot was organized and planned. The situation was similar to what
J J
LJ Rose mentioned in R v Parvais Najeeb & Others [2003] 2 Cr App R (S)
K 69 at page 415： K
L “As the hours passed, we have no doubt that there were clear signs L
of organization among the rioters … In consequence, what had
initially, no doubt, been spontaneous became marked by
M premeditation: hence those rioters who covered their faces M
because of what they intended to do and those who left the scene
but later returned after changing clothing or having a meal.” N
N
O O
55. Given that the riot at Portland Street was of such a large scale
with much organisation and involved serious violence, the court has to P
P
impose a deterrent sentence. The evidence adduced at trial showed that D3
Q
Q appeared on Portland Street as early as 9 o’clock that night to assist the
hawkers in pushing hawker carts from the rear lane of Shui Hing Mahjong R
R
School to the pavement. Later, D3, together with other people, scolded
S S
FEHD officers. They also followed the instruction of WONG Toi-yeung
T
in the taxi incident. Then, on two occasions, D3 was witnessed by police T
officers to have disregarded the warnings given by the police and threw
U U
objects from the crowd to the police line. The video footages also showed
V V
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that D3 had, at a later stage, again thrown objects at the police line for a
C total of 11 times and picked up mud and sand from the ground to attack the C
police. D3 was all along at the scene during the riot on Portland Street. He
D D
ignored the advice and took part in the riot actively. Having considered all
E the relevant circumstances, I am of the view that the appropriate starting E
point for the offence of riot at Portland Street in respect of which D3 has
F F
been convicted is 7 years’ imprisonment.
G G
Starting Point for the Offence of Riot at Argyle Street (the 4th count) H
H
56. Similarly, based on the sentencing considerations mentioned in
I I
Pilgrim, I take the view that the degree of violence in the riot on Argyle
J Street was also extremely serious. Although there was no confrontation J
between the crowd and the police on Argyle Street, the crowd did
K K
deliberately block the carriageway with various objects to obstruct traffic.
L Further, the riot on Argyle Street involved a sudden and unprovoked attack L
on a lone traffic police officer from behind. At the time, the officer was
M M
merely clearing the obstacles on the road. Moreover, he was not equipped
N with any riot gear, namely, helmet or shield. As could be seen from the N
video footage, since the officer was unexpectedly attacked by the crowd, he
O O
was not in a state of preparedness at that time. Further, the video footage
P showed that the number of people in the crowd was ten times more than that P
of the police officers at the scene. Yet, the crowd mercilessly and frantically Q
Q
kept attacking the police officer who had fallen to the ground. Apart from
R R
applying fists and kicks, they also threw objects like pallets at the police
officer, totally disregarding that the police officer had already lost the S
S
ability to defend himself. As described by the officer who eventually fired
T T
warning shots, the crowd had completely lost its mind, so worrying about
U
the safety of his colleague, he had to fire two warning shots. In fact, the U
V V
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video footage showed that after the officer had fired shots, some people
C paused just for a while and they then moved forward again, disregarding the C
warning and the potential danger.
D D
E 57. According to the facts admitted by D1 in respect of the offence E
of assaulting a police officer and also the evidence of the sergeant
F F
concerned, at the time of the attack, the sergeant was waving his baton in an
G attempt to stop someone who was holding a brick and charging at the police G
on Argyle Street. However, when the sergeant fell to the ground, he was
H H
attacked by the people assembled there. Amongst others, D1 threw a plastic
I bucket at the sergeant, kicked the sergeant and hit his back with a wooden I
pallet.
J J
K 58. The degree of the violence involved in the riot on Argyle Street K
was demonstrated not only by the fact that the officer mentioned above was
L L
attacked for no reason when he tried to reopen the road and that the police
M officers kept being chased and attacked when they were trying to leave the M
scene, but also by the fact that 3 police officers sustained 1% to 2%
N N
permanent disabilities as a result.
O O
59. Moreover, witnesses pointed out that at the junction of Portland
P P
Street and Fife Street near Argyle Street, people assembled had set fire to
Q burn various objects, saying that they would like to set up barricades to Q
obstruct the police. R
R
S S
60. It can be seen from the above that the violence on Argyle Street
was also large in scale, organized and serious. There were approximately T
T
200 people and most of them were wearing face masks and some were
U U
holding shields.
V V
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61. Having considered all the circumstances, including the great
C disparity in number between the people taking part in the riot on Argyle C
Street and only about 10 traffic police officers at the scene, the unprepared
D D
traffic police being attacked for no reason, the degree of violence used by
E the crowd and the scale of the riot etc., I am of the view that the appropriate E
starting point is 6 years’ imprisonment.
F F
G 62. However, regarding D5, I accept Mr Iu’s submission that his G
circumstances were special because he only took part in the riot on Argyle
H H
Street at a very early stage and his participation was very limited.
I Subsequent acts of rioting took place after his arrest. Therefore, having I
considered all the relevant circumstances, I am of the view that for the
J J
offence of riot on Argyle Street admitted by D5, the starting point could be
K reduced from the said 6 years to 4½years. K
L L
63. As for D1, I bear in mind that the jury did not reach a valid
M verdict concerning the offence of riot against him on Portland Street. M
However, he did not dispute that he was already present on Portland Street
N N
shortly after 9 o’clock that night, and he did not dispute that he had been
O present during the hawkers’ incident, the taxi incident and the elevated O
platform incident. As such, D1 witnessed throughout the escalation of the
P P
events and was aware that the crowd had charged the police line on
Q Q
Portland Street. Then, when the police pushed the police line forward, the
crowd went to Argyle Street. Yet, he continued to stay on Argyle Street and R
R
took part in the riot on Argyle Street. He also took the initiative to
S S
repeatedly attack the sergeant who fell to the ground when the sergeant was
attempting to stop a person who was holding a brick. At that time, there T
T
were other people who also attacked the sergeant. It is clear that D1
U U
actively took part in the riot on Argyle street. Having considered all the
V V
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relevant circumstances, I am of the view that the above starting point of 6
C years is appropriate for the offence of riot on Argyle Street in respect of C
which the jury found D1 guilty.
D D
E Starting Point for the Offence of Assaulting a Police Officer Admitted by D1 E
F 64. Although the Court of Appeal did not lay down any sentencing F
guideline for the offence of assaulting a police officer, the relevant
G G
authorities all indicate that assaulting a police officer in the due execution
H of his duty is a serious offence, which generally warrants an immediate H
custodial sentence. In HKSAR v Chan Pak Yeung [2018] 2 HKLRD 386,
I I
which was submitted to the court by Mr Choy, Barnes J considered that it
J was appropriate for the magistrate to adopt a starting point of 9 months as J
the appellant in that case had thrown plastic water bottles at a police officer
K K
twice. Barnes J also pointed out that “the court must send out a strong
L message: the court does not condone or tolerate assaults on police officers L
in the due execution of their duties; the sentence must be one of
M M
deterrence.”
N N
65. In HKSAR v L [2015] 3 HKLRD 721, the applicant and his
O O
co-accused brandished metal pipes at and assaulted a police officer by
P kicking him, the Court of Appeal considered a starting point of 18 months P
adopted by the trial judge was not inappropriate.
Q Q
R R
66. The facts of the offence of assaulting a police officer admitted
by D1 in the present case are clearly serious. Having considered all the S
S
relevant circumstances, I consider 18 months’ imprisonment an appropriate
T T
starting point for this offence.
U U
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Sentencing the Defendants
C 67. Although the letters submitted and the mitigation advanced by C
the defence counsel might have revealed to the court another side of the
D D
defendants, some of their words and deeds that night were also captured on
E camera. E
F F
D3
G G
68. The present case involved serious violent behaviour. As D3
H H
was convicted after trial, he is not entitled to the reduction in sentence given
for a guilty plea. The court has sympathy for the fact that his father has I
I
unfortunately fallen ill. However, as stated above, D3’s personal
J J
circumstance is not a mitigating factor in offences as serious as this.
K
Therefore, for the 3rd count in respect of which D3 was convicted, he is K
sentenced to 7 years’ imprisonment.
L L
M D1 M
N 69. Likewise, D1 was convicted of the 4th count of riot after trial. N
As such, he is not entitled to the reduction in sentence given for a guilty
O O
plea. As I pointed out above, according to the relevant sentencing principles,
P his personal circumstances and the background for his commission of the P
offence are not powerful mitigating factors. Therefore, for the 4th count in
Q Q
respect of which D1 was convicted, he is sentenced to 6 years’
R imprisonment. R
S S
70. For the offence of assaulting a police officer which D1
T admitted, the principles laid down in HKSAR v Ngo Van Nam [2016] 5 T
HKLRD 1 concerning the discount given on a guilty plea are applicable.
U U
As the prosecution only added this charge after the committal proceedings
V V
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and after the listing of this case, D1 did not have a chance to plead guilty at
C any earlier stage. As such, I would regard D1 as having pleaded guilty to C
this charge at the earliest opportunity and I am going to give him the full
D D
one-third discount. 18 months being the starting point, the sentence is
E 12 months’ imprisonment after a one-third reduction. E
F F
71. Since the offence of riot and the offence of assaulting a police
G officer arose from the same set of facts, and having considered the totality G
principle, I order the sentences of these two offences to run concurrently.
H H
D1 is therefore sentenced to imprisonment for 6 years in total for these two
I offences. I
J J
D5
K K
72. As for the offence of riot admitted by D5, Ngo Van Nam is also
L applicable. Since D5 only pleaded guilty after the listing of the case, he is L
not entitled to the full one-third discount. However, I would give him a
M M
discount of about 23%. Apart from this, his personal background does not
N constitute a mitigating factor in offences as serious as this. Therefore, I N
order that D5 be sentenced to imprisonment for 3½ years for the offence of
O O
riot at Argyle Street, which he admitted.
P P
Q Q
(Anthea Pang)
R Judge of the Court of First Instance of R
the High Court
S S
T T
U U
V V
A A
B B
[English Translation – 英譯本]
C C
HCCC 408/2016
[2018] HKCFI 1329
D D
E IN THE HIGH COURT OF THE E
F
HONG KONG SPECIAL ADMINISTRATIVE REGION F
COURT OF FIRST INSTANCE
G G
CRIMINAL CASE NO 408 OF 2016
H H
____________
I I
BETWEEN
HKSAR
J J
and
K K
LEUNG Tin-kei (D1)
L LO Kin-man (D3) L
WONG Ka-kui (Formerly D5)
M M
____________
N Before: Hon Anthea Pang J N
Date: 11 June 2018 at 9:45am
O O
Present: Mr Francis M.B. Cheng, Counsel on fiat, for HKSAR
P Mr Edwin W. B. Choy, SC, instructed by Ho, Tse, Wai & Partners, P
assigned by D.L.A., for the 1st Defendant
Q Q
Mr Lawrence W. C. Lau instructed by Bond Ng Solicitors,
R R
assigned by D.L.A., for the 3rd Defendant
S Mr Thomas P. S. Iu, instructed by Fan Wong & Tso, assigned by S
D.L.A., for the former 5th Defendant
T T
Offences: Riot and others
U U
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C C
REASO N S F OR SE NT E NCE
D D
Background E
E
1. The 1st defendant (D1) and the 3rd defendant (D3) in this case
F F
were, after trial, convicted by the jury unanimously of one count of riot,
G contrary to Section 19(1) and (2) of the Public Order Ordinance, Cap 245. G
D1 was involved in the 4th count of the indictment, which was the riot that
H H
took place on Argyle Street, Mongkok, on 9 February 2016. D3 was
I involved in the 3rd count of the indictment, which was the riot that took I
place on Portland Street between 8 February 2016 and 9 February 2016.
J J
K 2. Further, D1 pleaded guilty to one count of assaulting a police K
officer in the due execution of duty, contrary to Section 36(b) of the
L L
Offences against the Person Ordinance, Cap 212. Insofar as the former
M 5th defendant (D5) is concerned, he, before the trial commenced, pleaded M
guilty to the 4th count, which was about his involvement in the riot on
N N
Argyle Street, Mongkok, on 9 February 2016.
O O
P Relevant Facts of the Case P
Q The Riot on Portland Street Q
3. During the trial, the defence did not take much issue with this R
R
part of the evidence adduced by the prosecution.
S S
T
4. Briefly, at about 9:30 pm on Lunar New Year’s Day on 8 T
February 2016, officers of the Food and Environmental Hygiene
U U
Department (FEHD) witnessed 8 to 10 people who were wearing Hong
V V
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B B
Kong Indigenous (HKI) tracksuits assisting hawkers by wheeling their
C hawker trolleys from the back lane at Shui Hing Mahjong School to the C
pavement of Portland Street and Nelson Street. The hawkers then began
D D
trading on the pavement and the roadway. Almost at the same time, FEHD
E officers standing guard outside Sa Store were being surrounded and scolded E
with foul language by about 100 people. Some of these people also
F F
assaulted one of the FEHD officers with hands and feet. The officer
G managed to leave the scene only when the police provided assistance. G
H H
5. In addition, a hawker kept chasing and trying to push his cart
I containing boiling oil towards an FEHD officer who was filming at the I
scene. The FEHD officer eventually had to position himself between the
J J
poles of a road sign to avoid being chased any further.
K K
6. Given the situation at the scene, the FEHD officers left some
L L
time before 10 o’clock that night. When they were there, the officers had
M never tried to disperse, warn or ticket the hawkers. M
N N
7. During the trial, that was referred to as the hawkers’ incident.
O O
8. Later that night, a taxi travelling along Portland Street, which
P P
was said to have hit a pedestrian, was stopped and surrounded by a crowd.
Q According to witnesses, the size of the crowd surrounding the taxi was Q
about 70 to 80 people with 10 of them wearing HKI outfits. The taxi driver
R R
said he pulled over because someone suddenly lay on the bonnet. What
S S
happened next was his taxi was surrounded by dozens to a hundred people
in the roadway. The police came and tried to handle the traffic incident after T
T
a report was made, but the crowd refused to let the police approach the taxi.
U U
The police had tried to use a loudspeaker to offer their explanation and
V V
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advice to the crowd, hoping that the crowd would give way. However,
C WONG Toi-yeung spoke through a loud hailer, basically asking the police C
to leave the scene. Eventually, WONG Toi-yeung urged the crowd to make
D D
room for the taxi to reverse and leave Portland Street, but he also told the
E crowd to continue surrounding the police. The relevant video footage E
showed that the crowd followed his command and acted accordingly. That
F F
was referred to in the trial as the taxi incident.
G G
9. After the taxi incident, a lot of people gathered on the roadway
H H
of Portland Street. Because of that, the police brought an elevated platform
I to Portland Street so that they could stand on top and make broadcasts, I
asking the crowd to return to the pavement. However, the crowd became
J J
very agitated upon seeing the elevated platform. They shouted at the police
K and threw at the police line various articles, including glass bottles, plastic K
bottles and flower pots. That was referred to in the trial as the elevated
L L
platform incident.
M M
10. An expatriate superintendent testified that a man near him was
N N
struck by a large concrete slab usually used for construction. Moreover, a
O sergeant who was one of the officers in the police line but who did not have O
any contact with the crowd was struck on the neck by a brick, which
P P
resulted in injuries and bleeding. Other police officers testified that they
Q Q
were surrounded and hit by the crowd and once they fell, people kept
kicking their heads. Further, there were witnesses saying that when the R
R
police line was advancing on Portland Street, many people in the crowd
S S
were carrying weapons such as wooden sticks, stones, glass bottles and
other objects. The video footage produced revealed that most of the people T
T
in the front row were carrying home-made shields while some of them were
U U
wearing helmets. One could also see from the video footage that some of
V V
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them were wearing armour and there was one holding a long pole. Liquid
C was splashed in front of the police line. Most of the people in the crowd C
were wearing face masks.
D D
E 11. During the stand-off, the police had raised warning banners at E
different stages and used a loudspeaker to advise people to leave. However,
F F
while the police did not take any action after giving 334 warnings, the
G crowd charged forward towards the police line under the command of G
WONG Toi-yeung. It was then about 1:45am.
H H
I 12. According to witnesses, about 500 people gathered on Portland I
Street that night. There were, however, just about a dozen police officers
J J
initially and based on what witnesses said, eventually the manpower the
K police could deploy that night was only about 300. During the stand-off, K
about 70 to 100 people also gathered at the rear of the police line at the
L L
junction of Shantung Street that joined Portland Street. The photographs
M produced showed that various objects were used to block the junction at M
Shantung Street in an attempt to stop traffic going to Portland Street and to
N N
contain the police there. Therefore, as pointed out by the expatriate
O superintendent in his evidence, in order to ensure that nothing would O
happen behind the police line, what the police did first was to disperse the
P P
crowd at Shantung Street.
Q Q
R The Riot on Argyle Street R
13. Apart from denying having assaulted a police officer a second S
S
time on Argyle Street, at trial, most of the events relating to that count were
T T
not disputed by D1. As such, the relevant circumstances could be extracted
U U
V V
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from the summary of facts admitted by D5 in connection with the Argyle
C Street riot. C
D D
14. To put it simply, people gathering on Portland Street on the
E night of 8 February and the early morning of 9 February 2016 were herded E
into Argyle Street when the police line advanced towards Argyle Street.
F F
G 15. At about 2am that day, at least dozens of people were gathering G
on Argyle Street near the intersection with Portland Street and Shanghai
H H
Street. Various objects such as rubbish bins, pallets and traffic cones were
I put on the roadway to make barricades. People also blocked traffic by I
walking in the middle of the road, thus causing vehicles to reverse and leave.
J J
Many people in the crowd were wearing face masks. Some of them were
K wearing HKI tops and holding shields. The number of people assembling K
there later increased to over 200. They mainly gathered near the barricades
L L
and along both sides of the road.
M M
16. At that time, about 10 traffic police officers were trying to clear
N N
away the barricades and advising people there to leave, so that the road
O could be reopened. O
P P
17. Suddenly, dozens of people dashed to the roadway and attacked
Q a traffic police officer from behind. They also threw things at him. WONG Q
Ka-kui, formerly D5 in this case, threw a styrofoam box at the officer but
R R
missed. Another man went forward and put his arms around the officer
S S
from behind, causing him to fall. At the same time, when a man was
throwing articles at the officer, his hand touched D5, causing D5 to fall and T
T
land on the officer who was already on the ground. Other people nearby,
U U
who were also part of the crowd, then attacked that officer with sticks and
V V
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threw things at him. Eventually, that officer subdued D5 with the assistance
C of colleagues. C
D D
18. According to the summary of facts agreed by D5, he admitted
E that upon arrest and under caution, he said to the arresting officer, “People E
came out, and I came out, too. It was so chaotic, so many people were there.
F F
And then I got arrested by you.”
G G
19. When D5 was subdued on the ground, the crowd had once
H H
withdrawn towards the direction of Portland Street, but before long, they
I again pushed towards the traffic police officers and hurled things like glass I
bottles and rubbish bins at the officers. As a result, the traffic police officers
J J
retreated towards Shanghai Street. When doing so, police officers tried to
K move forward to disperse the crowd but in vain. They were then attacked by K
the people assembling there who threw objects at the officers and chased
L L
them. As a result, police officers continued to retreat towards Shanghai
M Street. In the course of the retreat, a police officer tripped and fell onto the M
ground. People then continuously assaulted him by throwing various
N N
objects such as pallets, rubbish bins and barriers at him. Other police
O officers tried to rescue their colleague but failed. Finally, in order to control O
the situation and to protect the police officer from being seriously injured,
P P
an officer fired two shots in the air after giving a warning. At that point, the
Q Q
crowd then began to move back.
R R
20. In the Argyle Street riot, several police officers sustained
S S
injuries. The Medical Assessment Board was of the view that the assault on
that day had caused two of them a 2% permanent disability and one of them T
T
a 1% permanent disability.
U U
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21. Insofar as the prosecution’s case against D1 regarding the riot
C on Argyle Street was concerned, apart from relying on the summary of facts C
admitted by D1 in relation to the offence of assaulting a police officer, the
D D
prosecution also called witnesses to testify at the trial. The witnesses
E testified that later that day, D1 punched a plainclothes police officer. E
Another officer then went over to D1 and warned him, but D1 ignored him.
F F
Subsequently, with the assistance of his colleagues, the officer used his
G baton to subdue D1 and arrested him. Although D1 denied having assaulted G
the police a second time, the evidence on this second assault paled into
H H
insignificance as the jury unanimously found that D1 did take part in the
I riot on Argyle Street after hearing the evidence given by the witnesses as to I
what happened on Argyle Street that night. Thus, the second assault would
J J
not materially affect the sentence.
K K
L
The Offence of Assaulting a Police Officer Admitted by D1 L
22. According to the summary of facts admitted by D1, when the
M M
crowd advanced towards the traffic police officers on Argyle Street and
N threw objects like glass bottles and rubbish bins, D1 first threw the lid of a N
rubbish bin at the police. Then, in the course of the police’s retreat to
O O
Shanghai Street, Sergeant 10985 drew his baton and, together with other
P police officers, issued warnings to the crowd and tried to disperse the crowd. P
However, the crowd ignored the warnings. They continued to dash forward Q
Q
and threw objects at the police. When Sergeant 10985 tried to stop a person
R R
who was holding a brick in his hand, the sergeant suddenly felt great pain in
his left ear and he fell down. While on the ground, Sergeant 10985 was S
S
continuously assaulted by the crowd. D1 was the one who threw a plastic
T T
bucket at the sergeant and kicked the sergeant with his right foot. D1 further
U
struck the back of the sergeant with a wooden pallet and he then ran away. U
V V
A
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B B
The Medical Assessment Board assessed that the assault had caused a 2%
C permanent disability to the sergeant. C
D D
23. The summary of facts admitted by D1 also revealed that after
E D1 had assaulted Sergeant 10985, he still stayed on Argyle Street near E
Portland Street and Shanghai Street.
F F
G Defendants’ Background and Mitigation G
H H
D1
I 24. D1 is single, now 27 years old. He was born in Mainland I
China and came to settle in Hong Kong in 1992. He was educated in Hong
J J
Kong. At the material time, he was a student of the University of Hong
K Kong and had a clear record. Subsequently, as mentioned above, he K
admitted the offence of assaulting a police office before the trial
L L
commenced.
M M
25. During mitigation, Mr Choy for D1 submitted to the court
N N
letters written by D1’s family members, schoolmates, friends, former
O members of the Hong Kong Legislative Council, religious figures, foreign O
scholars and members of the UK House of Lords. All of them have nothing
P P
but praise for D1, describing him as a young man who is kind, intelligent,
Q insightful, caring and responsible. Regarding the events in this case, they Q
essentially stated that he acted out of character due to provocation.
R R
References were made in some of the letters to D1 being forced to commit
S S
the offences in this case in order to rescue a young woman from being
treated violently by the police. However, this account of rescuing an T
T
innocent woman is obviously inconsistent in a material way with the
U U
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evidence examined by the jury, their verdict, and the undisputed video
C footage produced. C
D D
26. Mr Choy, in mitigation for D1, submitted that D1 was a
E responsible and passionate young man, not an ordinary criminal. His E
transgression had nothing to do with personal gain but was driven by his
F F
ideological convictions.
G G
27. Further, since the jury could not reach a valid verdict in relation
H H
to the count of riot on Portland Street against D1 and they also acquitted
I him of the count of incitement to riot on Portland Street; and since the I
relevant police officers testified that at that time they did not know there
J J
were traffic officers removing obstacles from Argyle Street, Mr Choy
K submitted that there was no basis for the court to find that D1 participated in K
the riot on Argyle Street with premeditation.
L L
M 28. Regarding the offence of assaulting a police officer to which M
D1 pleaded guilty, Mr Choy submitted that the sentence should run
N N
concurrently with that of the offence of riot.
O O
P D3 P
29. D3 was born on the Mainland and later moved to Hong Kong.
Q Q
He grew up in Hong Kong and was educated up to secondary school. He
R R
used to work as a clerk in a law firm and as a waiter in a restaurant. He is
single, now 31 years old. At the material time, he had a clear record. S
S
T
T 30. In mitigation, Mr Lau for D3 submitted letters written by D3’s
family members, friends, ex-employer and members of the Legislative U
U
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Council. They all described D3 as a kind and extremely caring person
C although he was rather rude in his manner and language. They also said that C
D3 was dedicated to protecting the environment, that he cared about society
D D
and the poor, and that this transgression was only committed on the spur of
E the moment. Further, upon realizing that his father unfortunately has cancer, E
D3 could not stop blaming himself.
F F
G 31. During mitigation, Mr Lau added that D3’s behaviour at the G
material time was caused by cumulative prejudice and anger towards the
H H
police, but he had since realized that police officers were also ordinary
I citizens performing their duties. Therefore, he is very remorseful for what I
he did that day.
J J
K 32. Mr Lau also pointed out that, at the time, D3 only threw K
various water bottles, mud and sand. He did not participate in any arson or
L L
brick throwing. Mr Lau therefore submitted that D3’s involvement in the
M offence was less serious, and asked the court to impose a lenient sentence as M
far as possible.
N N
O O
WONG Ka-kui, Formerly D5
P 33. D5 was born in Hong Kong and was educated up to secondary P
school. He is single, now 27 years old. He used to work as an electrical
Q Q
technician and had a clear record at the material time.
R R
34. In mitigation, Mr Iu for D5 submitted to the court letters S
S
written by D5 himself, his family members, girlfriend and ex-employer.
T T
They all described D5 as a man who cared about his family and was
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caring and responsible. His ex-employer also said that he was willing to
C employ D5 again upon his release from prison. C
D D
35. Mr Iu submitted that D5 had already pleaded guilty before trial,
E that he was only passing by Argyle Street that night and committed the E
transgression on the spur of the moment, and what he did was merely
F F
throwing a styrofoam box. Most importantly, Mr Iu said, D5 knew nothing
G at all about the subsequent turn of events since he was arrested at a very G
early stage. Mr Iu therefore submitted that D5’s circumstances were special
H H
and asked the court to impose a lenient sentence as far as possible.
I I
J
Sentencing Considerations J
36. First of all, although defence counsel submitted in mitigation
K K
that this case took place against a particular social and political background
L and that the defendants in this case were different from ordinary criminals, L
in R v Caird & Others [1970] Cr App R 499, a riot case in the UK, LJ Sachs
M M
of the UK Court of Appeal made the following observation:
N N
“Before now turning to individual sentences, it is
appropriate first to mention certain general points which have
O been much canvassed. First, it should be observed that a plea in O
mitigation of “provocation” made at one stage by Mr Myers was
very properly withdrawn shortly after having been put forward.
P This Court could not entertain a political plea of that sort in the P
circumstances of this case as constituting mitigation, whatever
Q
other views it may have on it. Any suggestion that a section of Q
the community strongly holding one set of views is justified in
banding together to disrupt the lawful activities of a section that
R does not hold the same views so strongly or which holds R
different views cannot be tolerated and must unhesitatingly be
rejected by the courts. When there is wanton and vicious S
S
violence of gross degree the Court is not concerned with whether
it originates from gang rivalry or from political motives. It is the
T degree of mob violence that matters and the extent to which the T
public peace is being broken.”
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37. Further, in dealing with an appeal against sentence in R v
C Pilgrim [1983] 5 Cr App R(S) 140, another riot case in the UK, CJ Lord C
Lane pointed out at page 145 that “One of the principal objects of the
D D
criminal law in any civilised society is to prevent people taking the law into
E their own hands.” In other words, the law only distinguishes between those E
who abide by it and those who break it.
F F
G 38. If anyone breaks the law, the court has a duty to sentence him G
according to the criminal act committed by him. The court will not allow
H H
anyone to resort to violence to deal with disputes regarding people’s
I livelihood, politics, etc. As pointed out by Poon JA in Secretary for Justice v. I
Wong Chi Fung and Others [2017] 5 HKC 116, "The participants of an
J J
assembly will lose the protection of the law on exercising their right to
K assembly once they overstep the bounds laid down by the law, and they K
shall have to bear the consequences and be sanctioned by the law. The
L L
offenders cannot say that the law deprives them of or suppress their
M freedom of assembly and expression by sanctioning them. The reason is M
that the law has never allowed them to exercise these freedoms through
N N
unlawful means or ways."
O O
39. From the above HK and UK cases, it is clear that violence, by
P P
its nature, goes contrary to the principles of rational discussion and mutual
Q Q
respect espoused by a civilized and diversified society.
R R
40. In any event, even if, as alleged by the defence, the violent
S S
incidents that night took place against a particular social and political
background, it was undisputed by the parties that at the material time, no T
T
FEHD or police officers had driven away any hawkers, and initially the
U U
purpose of the police presence was merely to handle a reported traffic
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incident. The police subsequently sent reinforcements because more people
C were gathering and causing an obstruction. Yet, the police kept offering C
advice to the crowd and sent officers to contact WONG Toi-yeung, hoping
D D
that the matter could be settled peacefully. Nevertheless, as shown in the
E undisputed video footage, before the police advanced after the 334 E
warnings, the crowd, after hearing what WONG Toi-yeung said, had
F F
already taken the initiative to charge forward towards the police line on
G Portland Street, which then triggered the violent behaviour in other streets. G
H H
41. In this connection, I would like to point out that in Pilgrim, a
I case involving racial conflict, the trial judge said: I
“I accept also, it is very difficult for people like the rest of us to
J J
understand the prejudice and insults that you sometimes have to
bear because of your colour, but the revenge you took on that
K night of June 1 on totally innocent people is, in my judgment, out K
of all proportion to anything you could properly be said to have
suffered before and I entirely reject any suggestion that has been
L put forward to suggest that you are justified in any way in what L
you did.”
M M
42. Similarly, the facts in this case showed that the riot on Portland
N N
Street that night started with a crowd gathering on the road, refusing to let
O O
the police handle the traffic incident. The crowd then vented on police
officers with retaliatory violence. As admitted by Mr Lau for D3 during P
P
mitigation, D3’s behaviour that night was caused by cumulative prejudice
Q Q
and anger towards the police. Mr Choy also confirmed he was not saying
R
that the violence involved in this case could be justified. Therefore, I am of R
the view that the background of the incidents in this case cannot be taken as
S S
a mitigating factor; otherwise, the community may get the wrong message
T
that they can resort to violence when they are not satisfied with the T
government or the current situation.
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43. Further, in Caird mentioned above, Sachs LJ also pointed out
C that when considering the appropriate sentence, the court had to emphasize C
that an offender’s status as a student, when compared with an ordinary
D D
citizen, should not be a ground for preferential treatment. A defendant’s
E educational background could not be used as a basis for a reduction in E
sentence. LJ Sachs reiterated at pages 508 and 509:
F F
“ …He most certainly cannot by virtue of his education claim
preferential treatment – as, for instance, to receive lighter
G G
punishment than one less well educated.
H It is against that background that the individual sentences H
have to be considered by the Court with that deep anxiety which
accompanies the really painful duty of dealing with young men of
I previous good character and coming from the surroundings of I
which the Court has been informed. The Court is naturally
conscious of the particular consequences which may be suffered J
J
by each applicant and of the grief unfortunately caused to his
family. …
K K
…The Court has felt bound in each case to give proper
weight to the public interest and not simply to regard the welfare
L of the defendant as the paramount consideration. … L
…One thing is clear, however, that no one can claim to M
M
escape a proper length of custodial sentence by virtue of social
background or of education.”
N N
O 44. In the present case, defence counsel also tried to suggest that O
the individual acts of the defendants, in contrast to all that took place that
P P
night, were relatively less serious. However, in Carid, LJ Sachs made the
Q observation at pages 507-508 as follows: Q
“Those who choose to take part in such unlawful occasions must
R do so at their peril. … Any participation whatever, irrespective of R
its precise form, in an unlawful or riotous assembly of this type
S
derives its gravity from becoming one of those who, by weight of S
numbers, pursued a common and unlawful purpose. The law of
this country has always leant heavily against those who, to attain
T such a purpose, use the threat that lies in the power of T
numbers. …Over and over again it was submitted on behalf of
the applicants that their individual acts should be regarded as if
U U
they had been committed in isolation. … In the view of this
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Court, it is a wholly wrong approach to take the acts of any
individual participator in isolation. They were not committed in
C isolation and, as already indicated, it is that very fact that C
constitutes the gravity of the offence.”
D D
45. Therefore, in deciding the starting points for the respective
E E
offences in this case, I would consider the extent of the overall violence
F involved, not the defendant’s individual acts in isolation. F
G G
46. As Yeung VP pointed out in HKSAR v YEUNG Ka Lun [2018]
H HKCA 146 citing Pilgrim, “What a court has to pay regard to is the level of H
violence used, the scale of the riot or affray as described by the witnesses,
I I
the extent to which it is premeditated, or, on the other hand, spontaneously
J arises, and finally the number of people engaged in its execution.” In that J
case, Yeung VP also pointed out that “a deterrent sentence is warranted for
K K
this type of offence.”
L L
47. In respect of the necessity of imposing a deterrent sentence in
M M
cases involving violence, the Court of Final Appeal in Secretary for Justice
N v. Wong Chi Fung [2018] HKCFA 4, which was a case concerning unlawful N
assembly, cited Starke J in R v Dixon-Jenkins (1985) 14 A Crim R 372 at
O O
page 379:
P P
“There are large groups in present-day society of sincere, earnest
but wrong-headed people who, because their convictions are so
Q strong, or because they pretend their convictions are so strong, Q
will stop at nothing in order to impose those views on the
community, and this, in my opinion, just like hijacking, is
R R
calculated to become contagious, and if at the first step, the
courts do not show that such conduct, however well intended,
S will not be tolerated in this community, then it is unlikely that S
such behaviour will be stopped in its tracks. I therefore am of
the opinion that this is just the case where general deterrence has
T an overriding effect on the resulting sentence.” T
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Starting Points
C 48. The Court of Appeal did not lay down any sentencing guideline C
for the offence of riot. However, in Yeung Ka Lun, the Court held that the
D D
starting point of 5 years adopted by the trial judge for the offence of riot
E was appropriate. The Court of Appeal pointed out that the applicant not E
only acted in concert with the people assembled at the scene to confront the
F F
police officers who attended the scene on instruction to carry out their
G G
duties, the crowd also took various measures, including throwing bricks dug
up from the ground and other objects at the police, in an attempt to harm the H
H
police officers who were carrying out their duties. Although there was no
I I
direct evidence showing that the applicant had thrown bricks at the police
J
officers, the behaviour of the applicant showed that he endorsed the offence J
and took part in it. The Court of Appeal also remarked that the case in hand
K K
undoubtedly involved an extremely serious contravention of the law and the
L
Court was determined to crack down on such criminal conduct which L
showed no respect for law and order or the safety of the law enforcement
M M
officers.
N N
Starting Point for the Offence of Riot on Portland Street (the 3rd count)
O O
49. In light of the aforesaid and taking into account the factors
P P
mentioned in Pilgrim by the Court of Appeal in Yeung Ka Lun, I take the
Q view that the violence involved in the 3rd count was large in scale and Q
extremely serious. According to witnesses, the number of people gathered
R R
at that time was as many as 500. The crowd not only confronted the police
S on Portland Street for almost four hours, they also disregarded the police’s S
repeated advice and announcements and kept throwing at the police line
T T
various objects, including stones, bricks, concrete slabs for construction use,
U glass bottles, plastic bottles, rubbish bins and flower pots etc. Some people U
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splashed liquid in front of the police line and held metal poles to put up
C resistance. A police officer also testified that after he had been pushed to the C
ground, people kept kicking his head.
D D
E 50. Further, this case happened on the night of Lunar New Year’s E
Day in a very crowded area of the city. The violence involved definitely
F F
endangered the safety of Hong Kong citizens. In fact, one witness testified
G that after he had been struck by a brick, he bled and was injured although he G
had no contact with the crowd. The expatriate superintendent also pointed
H H
out that someone immediately fell onto the ground and lost consciousness
I after being hit by a concrete slab. All this showed that the violent I
behaviour in this case was extremely injurious.
J J
K 51. In fact, two senior police officers who were in command at the K
scene testified that they had never before come across such a violent
L L
situation during their careers as police officers.
M M
52. Apart from the foregoing, the video footage also showed that
N N
many people scolded the police officers wantonly, thus stirring up the
O emotions of the people present at the scene and causing the situation to heat O
up.
P P
Q 53. As to the degree of premeditation mentioned in Pilgrim, the Q
video footage produced clearly showed that the majority of the people
R R
gathering at Portland Street wore face masks. That night was the night of
S
S Lunar New Year’s Day, there was no need for them to dress like that on
such a joyful day if they were not acting with premeditation in an attempt to T
T
cover up their identities. Besides, most of the people standing in the front
U U
row were holding home-made shields. Some were wearing goggles and
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helmets. The video footage also showed that some people put on their
C armour in the meantime. Moreover, as mentioned before, at the initial stage, C
people already gathered and placed obstacles at the junction of Shantung
D D
Street and Portland Street in order to occupy the carriageway, block
E vehicles from entering, and encircle the police officers on Portland Street. E
F F
54. All this offending behaviour clearly showed that the riot on
G Portland Street that night was premediated. Even if that was not the case G
and even if the crowd only gathered spontaneously or they were only there
H H
to support the hawkers in response to HKI’s appeal on the Internet, I am
I sure that the behaviour of the crowd at the later stage clearly demonstrated I
that the riot was organized and planned. The situation was similar to what
J J
LJ Rose mentioned in R v Parvais Najeeb & Others [2003] 2 Cr App R (S)
K 69 at page 415： K
L “As the hours passed, we have no doubt that there were clear signs L
of organization among the rioters … In consequence, what had
initially, no doubt, been spontaneous became marked by
M premeditation: hence those rioters who covered their faces M
because of what they intended to do and those who left the scene
but later returned after changing clothing or having a meal.” N
N
O O
55. Given that the riot at Portland Street was of such a large scale
with much organisation and involved serious violence, the court has to P
P
impose a deterrent sentence. The evidence adduced at trial showed that D3
Q
Q appeared on Portland Street as early as 9 o’clock that night to assist the
hawkers in pushing hawker carts from the rear lane of Shui Hing Mahjong R
R
School to the pavement. Later, D3, together with other people, scolded
S S
FEHD officers. They also followed the instruction of WONG Toi-yeung
T
in the taxi incident. Then, on two occasions, D3 was witnessed by police T
officers to have disregarded the warnings given by the police and threw
U U
objects from the crowd to the police line. The video footages also showed
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that D3 had, at a later stage, again thrown objects at the police line for a
C total of 11 times and picked up mud and sand from the ground to attack the C
police. D3 was all along at the scene during the riot on Portland Street. He
D D
ignored the advice and took part in the riot actively. Having considered all
E the relevant circumstances, I am of the view that the appropriate starting E
point for the offence of riot at Portland Street in respect of which D3 has
F F
been convicted is 7 years’ imprisonment.
G G
Starting Point for the Offence of Riot at Argyle Street (the 4th count) H
H
56. Similarly, based on the sentencing considerations mentioned in
I I
Pilgrim, I take the view that the degree of violence in the riot on Argyle
J Street was also extremely serious. Although there was no confrontation J
between the crowd and the police on Argyle Street, the crowd did
K K
deliberately block the carriageway with various objects to obstruct traffic.
L Further, the riot on Argyle Street involved a sudden and unprovoked attack L
on a lone traffic police officer from behind. At the time, the officer was
M M
merely clearing the obstacles on the road. Moreover, he was not equipped
N with any riot gear, namely, helmet or shield. As could be seen from the N
video footage, since the officer was unexpectedly attacked by the crowd, he
O O
was not in a state of preparedness at that time. Further, the video footage
P showed that the number of people in the crowd was ten times more than that P
of the police officers at the scene. Yet, the crowd mercilessly and frantically Q
Q
kept attacking the police officer who had fallen to the ground. Apart from
R R
applying fists and kicks, they also threw objects like pallets at the police
officer, totally disregarding that the police officer had already lost the S
S
ability to defend himself. As described by the officer who eventually fired
T T
warning shots, the crowd had completely lost its mind, so worrying about
U
the safety of his colleague, he had to fire two warning shots. In fact, the U
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video footage showed that after the officer had fired shots, some people
C paused just for a while and they then moved forward again, disregarding the C
warning and the potential danger.
D D
E 57. According to the facts admitted by D1 in respect of the offence E
of assaulting a police officer and also the evidence of the sergeant
F F
concerned, at the time of the attack, the sergeant was waving his baton in an
G attempt to stop someone who was holding a brick and charging at the police G
on Argyle Street. However, when the sergeant fell to the ground, he was
H H
attacked by the people assembled there. Amongst others, D1 threw a plastic
I bucket at the sergeant, kicked the sergeant and hit his back with a wooden I
pallet.
J J
K 58. The degree of the violence involved in the riot on Argyle Street K
was demonstrated not only by the fact that the officer mentioned above was
L L
attacked for no reason when he tried to reopen the road and that the police
M officers kept being chased and attacked when they were trying to leave the M
scene, but also by the fact that 3 police officers sustained 1% to 2%
N N
permanent disabilities as a result.
O O
59. Moreover, witnesses pointed out that at the junction of Portland
P P
Street and Fife Street near Argyle Street, people assembled had set fire to
Q burn various objects, saying that they would like to set up barricades to Q
obstruct the police. R
R
S S
60. It can be seen from the above that the violence on Argyle Street
was also large in scale, organized and serious. There were approximately T
T
200 people and most of them were wearing face masks and some were
U U
holding shields.
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61. Having considered all the circumstances, including the great
C disparity in number between the people taking part in the riot on Argyle C
Street and only about 10 traffic police officers at the scene, the unprepared
D D
traffic police being attacked for no reason, the degree of violence used by
E the crowd and the scale of the riot etc., I am of the view that the appropriate E
starting point is 6 years’ imprisonment.
F F
G 62. However, regarding D5, I accept Mr Iu’s submission that his G
circumstances were special because he only took part in the riot on Argyle
H H
Street at a very early stage and his participation was very limited.
I Subsequent acts of rioting took place after his arrest. Therefore, having I
considered all the relevant circumstances, I am of the view that for the
J J
offence of riot on Argyle Street admitted by D5, the starting point could be
K reduced from the said 6 years to 4½years. K
L L
63. As for D1, I bear in mind that the jury did not reach a valid
M verdict concerning the offence of riot against him on Portland Street. M
However, he did not dispute that he was already present on Portland Street
N N
shortly after 9 o’clock that night, and he did not dispute that he had been
O present during the hawkers’ incident, the taxi incident and the elevated O
platform incident. As such, D1 witnessed throughout the escalation of the
P P
events and was aware that the crowd had charged the police line on
Q Q
Portland Street. Then, when the police pushed the police line forward, the
crowd went to Argyle Street. Yet, he continued to stay on Argyle Street and R
R
took part in the riot on Argyle Street. He also took the initiative to
S S
repeatedly attack the sergeant who fell to the ground when the sergeant was
attempting to stop a person who was holding a brick. At that time, there T
T
were other people who also attacked the sergeant. It is clear that D1
U U
actively took part in the riot on Argyle street. Having considered all the
V V
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relevant circumstances, I am of the view that the above starting point of 6
C years is appropriate for the offence of riot on Argyle Street in respect of C
which the jury found D1 guilty.
D D
E Starting Point for the Offence of Assaulting a Police Officer Admitted by D1 E
F 64. Although the Court of Appeal did not lay down any sentencing F
guideline for the offence of assaulting a police officer, the relevant
G G
authorities all indicate that assaulting a police officer in the due execution
H of his duty is a serious offence, which generally warrants an immediate H
custodial sentence. In HKSAR v Chan Pak Yeung [2018] 2 HKLRD 386,
I I
which was submitted to the court by Mr Choy, Barnes J considered that it
J was appropriate for the magistrate to adopt a starting point of 9 months as J
the appellant in that case had thrown plastic water bottles at a police officer
K K
twice. Barnes J also pointed out that “the court must send out a strong
L message: the court does not condone or tolerate assaults on police officers L
in the due execution of their duties; the sentence must be one of
M M
deterrence.”
N N
65. In HKSAR v L [2015] 3 HKLRD 721, the applicant and his
O O
co-accused brandished metal pipes at and assaulted a police officer by
P kicking him, the Court of Appeal considered a starting point of 18 months P
adopted by the trial judge was not inappropriate.
Q Q
R R
66. The facts of the offence of assaulting a police officer admitted
by D1 in the present case are clearly serious. Having considered all the S
S
relevant circumstances, I consider 18 months’ imprisonment an appropriate
T T
starting point for this offence.
U U
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Sentencing the Defendants
C 67. Although the letters submitted and the mitigation advanced by C
the defence counsel might have revealed to the court another side of the
D D
defendants, some of their words and deeds that night were also captured on
E camera. E
F F
D3
G G
68. The present case involved serious violent behaviour. As D3
H H
was convicted after trial, he is not entitled to the reduction in sentence given
for a guilty plea. The court has sympathy for the fact that his father has I
I
unfortunately fallen ill. However, as stated above, D3’s personal
J J
circumstance is not a mitigating factor in offences as serious as this.
K
Therefore, for the 3rd count in respect of which D3 was convicted, he is K
sentenced to 7 years’ imprisonment.
L L
M D1 M
N 69. Likewise, D1 was convicted of the 4th count of riot after trial. N
As such, he is not entitled to the reduction in sentence given for a guilty
O O
plea. As I pointed out above, according to the relevant sentencing principles,
P his personal circumstances and the background for his commission of the P
offence are not powerful mitigating factors. Therefore, for the 4th count in
Q Q
respect of which D1 was convicted, he is sentenced to 6 years’
R imprisonment. R
S S
70. For the offence of assaulting a police officer which D1
T admitted, the principles laid down in HKSAR v Ngo Van Nam [2016] 5 T
HKLRD 1 concerning the discount given on a guilty plea are applicable.
U U
As the prosecution only added this charge after the committal proceedings
V V
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and after the listing of this case, D1 did not have a chance to plead guilty at
C any earlier stage. As such, I would regard D1 as having pleaded guilty to C
this charge at the earliest opportunity and I am going to give him the full
D D
one-third discount. 18 months being the starting point, the sentence is
E 12 months’ imprisonment after a one-third reduction. E
F F
71. Since the offence of riot and the offence of assaulting a police
G officer arose from the same set of facts, and having considered the totality G
principle, I order the sentences of these two offences to run concurrently.
H H
D1 is therefore sentenced to imprisonment for 6 years in total for these two
I offences. I
J J
D5
K K
72. As for the offence of riot admitted by D5, Ngo Van Nam is also
L applicable. Since D5 only pleaded guilty after the listing of the case, he is L
not entitled to the full one-third discount. However, I would give him a
M M
discount of about 23%. Apart from this, his personal background does not
N constitute a mitigating factor in offences as serious as this. Therefore, I N
order that D5 be sentenced to imprisonment for 3½ years for the offence of
O O
riot at Argyle Street, which he admitted.
P P
Q Q
(Anthea Pang)
R Judge of the Court of First Instance of R
the High Court
S S
T T
U U
V V