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DCCC 535/2020
C [2021] HKDC 1100 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 535 OF 2020
F F
G ---------------------------- G
HKSAR
H H
v
I CHAN HO WUN (D1) I
LEUNG KWOK HUNG (D2)
J J
HO SAU LAN CYD (D3)
K HO CHUN YAN (D4) K
WONG HO MING RAPHAEL (D5)
L L
YEUNG SUM (D6)
M NG MAN YUEN AVERY (D7) M
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O Before: Her Honour Judge Amanda J Woodcock in Court O
Date: 1 September 2021
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Present: Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward
Q Lau, Public Prosecutor, for HKSAR/Director of Public Q
Prosecutions
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S Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, S
instructed by Kenneth Lam Solicitors, assigned by the
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Director of Legal Aid, for the 1 and 2 defendants
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Mr Chris Ng, instructed by JCC Cheung & Co, for the 3rd
C defendant C
Ms Wong Kam Kuen Catherine and Mr Ernest Wong,
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instructed by Ho Tse Wai & Partners, for the 4th defendant
E The 5th and 6th defendants appeared in person E
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by
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JCC Cheung & Co, assigned by the Director of Legal Aid, for
G the 7th defendant G
Offences: [1] Incitement to knowingly take part in an unauthorized
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assembly（煽惑他人明知而參與未經批准集結） - D1-D4
I [2] Making an announcement of an unauthorized public I
procession (alternative to the 1st Charge)（公告一個未經批
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准的公眾遊行）(第一項控罪的交替控罪) - D1-D4
K K
[3] Organizing an unauthorized assembly（組織一個未經批
L 准集結） - D1-D3, D5-D7 L
[4] Knowingly taking part in an unauthorized assembly（明
M M
知而參與未經批准集結） - D1-D3, D5-D7
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O REASONS FOR SENTENCE O
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Q 1. The 1st to 4th defendants pleaded guilty to Charge 1, on 19 Q
October 2019 they unlawfully incited other persons unknown to, without
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lawful authority or reasonable excuse, knowingly take part in a public
S procession, contrary to Common Law and section 17A(3)(a) of the Public S
Order Ordinance, Cap 245 and punishable under section 101I of the
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Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to
C Charge 1. C
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2. The 1st to 3rd, 5th to 7th defendants pleaded guilty to Charge 3,
E organising an unauthorised assembly on 20 October 2019, contrary to E
section 17A(3)(b)(i) of the Public Order Ordinance.
F F
G 3. Charge 4, knowingly taking part in an unauthorised assembly G
for the same defendants was ordered to be kept on the court file and not to
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be dealt with unless there is leave of this Court or the Court of Appeal.
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The Facts
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K 4. The defendants agreed the Amended Summary of Facts. On K
14 October 2019 the 1st defendant, the then vice convenor of the now
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disbanded Civil Human Rights Front (“CHRF”) submitted a “notification
M of the intention to hold a public meeting and procession” which set out the M
intention of the CHRF to hold a public meeting and then a public
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procession at and from Salisbury Garden in Tsim Sha Tsui on 20 October
O 2019. O
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5. On 15 October 2019 there was a liaison meeting between the
Q Police, the 1st defendant and others. The application was then amended to Q
only intend to hold a public procession and not a public meeting. 3 days
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later, the Police issued a letter of objection opposing the public procession
S in the interests of public safety, public order, and the protection of others’ S
rights and freedoms.
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6. On 18 October 2019 the Police held their daily press
C conference. The Police publically explained why they did not authorise this C
procession. They reiterated the known and obvious risk that there would
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be others amongst and near the procession who would be violent and create
E disturbances. The Police believed that the risk was high because of E
intelligence received. Hence, a letter of objection was issued.
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G 7. They warned the organisers and the public not to proceed with G
this unauthorised assembly along the proposed route. The Police said they
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took into account that violence was escalating and had become more
I intense since June 2019. They highlighted the fact that peaceful I
processions had been hijacked by rioters and turned into radical violent
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situations since June 2019.
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8. The Police highlighted the damage to Police stations,
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government buildings, Legislator’s offices, targeted shops and banks as
M well as territory wide destruction of MTR property. This warning of similar M
violence being repeated on 20 October 2019 was ignored by the defendants,
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the organisation of the unauthorised procession went ahead and we saw on
O that route and around that route, during and after, many incidents of O
vandalism, criminal damage and violence as predicted.
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Q 9. CHRF appealed against this objection and on 19 October 2019 Q
after an Appeal Board hearing, that appeal was dismissed. On that same
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day, immediately after the appeal hearing the 1 defendant held a press
S conference announcing a formal press conference for later that day at 4pm S
which was set up outside the Court of Final Appeal.
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10. The particulars of Charge 1 refer to that press conference held
C by the 1st to 4th defendants where they admit unlawfully inciting other C
persons unknown to, without lawful authority or reasonable excuse,
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knowingly take part in a public procession which was an unauthorised
E assembly. E
F F
11. The Summary of Facts covered some of what the 1st to 4th
G defendants said during that press conference. They all stood holding a G
banner with the words “Five demands, not one less. No fear for civil
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disobedience”. The facts repeated some of what each defendant said during
I the press conference individually to unlawfully incite others to knowingly I
take part in a public procession the following day which they knew and
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reiterated was an unauthorised assembly.
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12. The press conference lasted around 30 minutes and was
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reported and broadcasted by various news media; see Tabs in the
M Prosecution’s Documentary Bundle 1. M
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Unauthorised assembly on 20 October 2019
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13. On 20 October 2019 all the defendants bar the 4th defendant
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gathered together with a large crowd at Salisbury Garden. They all stood
Q behind a different banner with the words “Five demands not one less”. Q
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14. The 1 and 2 defendant took turns to speak through a
S loudhailer and shout various slogans such as but not limited to “no fear for S
civil disobedience”, “shatter the anti-mask law” and “I have the right to
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assembly, no permission from the Communist Party is required”. The
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crowds around them chanted and repeated the slogans in unison. The
C scenario was filmed, captured and broadcasted by various news media C
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outlets and through the 1 and 2 defendants Facebook pages.
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E 15. The 1st defendant reiterated over the loudhailer that the E
procession from Salisbury Garden to West Kowloon Station was an
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unauthorised assembly and that there was a risk of criminal liability. He
G gave out phone numbers for people to utilise if they were arrested. G
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16. At about 1:25pm, the 1st to 3rd defendants stepped forward to
I give a press interview. The 1st defendant told the reporters that he and the I
others present were exercising their rights under Article 27 of the Basic
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Law to participate in a procession and they did not need the approval of the
K Police or the government. He encouraged more who were watching this K
press conference to come out and join their procession. He said that despite
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the risk, he was not afraid of being arrested or going to prison.
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17. After that press conference those 3 defendants rejoined the 5th
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to 7th defendant. They then all held the banner together and started the
O procession. A second even bigger banner followed directly behind them O
accusing the Police of “deliberate murder”. Thousands of protesters
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followed this banner party and participated in this procession.
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18. When the banner party set off from Salisbury Garden many
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protesters left the procession route when they spilled over or diverted
S instead down Nathan Road adjacent to Kowloon Park Drive and Canton S
Road. This can be seen from aerial footage of the procession path; a large
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number of the procession left from Salisbury Garden but proceeded down
C Nathan Road instead. C
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19. The Tsim Sha Tsui Police Station was on the corner of
E Nathan Road and Austin Road. The procession was later declared at an end E
at the corner of Austin Road and Canton Road. The Tsim Sha Tsui Police
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Station, not far away from the changed destination of the procession, was
G the scene of much violence. G
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20. All 7 defendants led the crowd and at various times the 1st, 2nd
I and 5th defendants used the loudhailer to shout slogans including but not I
limited to, “Five demands not one less”, “Liberate Hong Kong, the
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revolution of our times”, “No fear for civil disobedience” and “No rioters,
K only tyranny”. Those protesters behind the defendants repeated those K
chants.
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M 21. This unauthorised assembly was meant to proceed to the West M
Kowloon Station but was cut short by the defendants. When the defendants
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arrived at the junction of Austin Road and Canton Road, the 1st defendant
O announced that the procession had come to an end. He told the crowds O
using a loudhailer that he himself, the 2nd and 3rd defendant held this
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procession. He thanked “comrades” for closing the Roads to allow this
Q procession to proceed. Q
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22. In fact, in video footage they had stopped at this junction and
S spoke to the crowds and the press whilst stood in front of a group of black S
clad protesters who were in the process of destroying water barriers and
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railings and tying them all together in order to seal off the 4 vehicular lanes
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of Austin Road. Cars were unable to proceed. They were the backdrop of
C the last press conference. C
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23. The 1st defendant said the road up ahead was blocked by
E “comrades” so the procession would disperse here. The 1st, 2nd and 3rd E
defendants then held another press conference at that road junction which
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was widely broadcast. They may have declared the public procession over
G but obviously, the procession stretched back a significant distance and it G
was announced that there were participants who had not even left the
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starting point, Salisbury Garden. This unauthorised procession did not start
I and end with the defendants; the procession had a head, body and tail. In I
this case the body had spread and spilled onto other Roads.
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K 24. In fact, at least an hour later, the 1st, 2nd and 3rd defendants K
were still at the junction and filmed using a loudhailer to continue the
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chanting. The 1st defendant also repeated the mobile phone number in case
M of arrest and the participants were told to walk towards the Yau Ma Tei as M
it was still safe in that direction.
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O 25. After the unauthorised procession began the roads from O
Salisbury Road, Kowloon Park Drive, Canton Road and Austin Road were
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blocked and obstructed as were those near or adjacent such as Nathan Road.
Q Several MTR stations in Kowloon were closed even before the procession Q
due to safety concerns.
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S 26. The prosecution relies on the evidence from footage from S
about the time the unauthorised procession started to show that there was
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violence and reprehensible conduct en route and on adjacent or parallel
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roads where the procession had spilled over. The prosecution relied on
C video footage of unlawful behaviour, criminal damage, arson and violence C
filmed to show that the anticipated risks had materialised.
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E 27. Incidents or acts highlighted by the prosecution were gleaned E
from hours of footage from several media outlets and a sample was played
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in open court; MFI-1 is a playlist of video footage relied on by the
G prosecution. It contained remarks to explain the relevance of footage as G
well as a reference to the 3 prosecution bundles and tabs with transcripts
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and translations.
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28. At that time in 2019, this was becoming a now familiar pattern
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where there was incitement to participate in an unauthorized public
K assembly and then actual organisation of an unauthorised assembly K
accompanied by sporadic unrest and trouble which spiraled into chaos and
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violence.
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29. Essentially, undeterred by a Police ban and in direct defiance
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of law and order, thousands of people followed the banner party and
O marched in Kowloon that day. The route of the procession and adjacent O
roads was marred by familiar but ever more violent scenes of unrest where
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protesters threw petrol bombs at the Police and Police stations, set fires,
Q vandalised specific shops, MTR stations, MTR property and Chinese banks Q
as well as built makeshift barricades and blocked major roads.
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S 30. The Police eventually deployed teargas as well as its water S
cannon vehicle. The trouble in that area went on into the night.
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Mitigation
C C
31. I have heard mitigation in full and been told of personal and
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professional backgrounds. I have either received written mitigation and
E supporting authorities in bundles in advance or received a letter of E
mitigation from the 5th defendant acting in person. All Counsel have said
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all they can say on behalf of the defendants. I don’t intend to repeat here
G all the mitigation and submissions put forward but I have taken it all into G
account.
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I 32. Counsel for the defence submit that these charges and facts do I
not call for a custodial sentence. They submit that the procession itself as
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led by the defendants forming a banner party was in itself peaceful with no
K immediate violent incidents or conflicts arising during it. The conflicts K
seen on CCTV or film footage were not related to the peaceful assembly
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nor can be attributed to the defendants. Those that incited others to
M participate the day before had only advocated a peaceful, non-violent and M
rational assembly.
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O 33. This is the 4th trial arising from same or similar charges O
involving some repeat defendants concerning unauthorised assemblies on
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4 different offence dates. It involved a total of 15 defendants arrested at the
Q same time. Not all were charged in relation to all 4 offence dates. In this Q
case, for example, the 2nd, 3rd, 4th and 6th defendants were involved in 3 of
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st th
the 4 cases and the 1 and 7 defendants in 2 of the 4 cases.
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34. The Prosecution had wanted all 15 defendants to be tried
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together. The defence suggested splitting it into 4 separate trial hearings
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relating to the 4 offence dates and the first trial of 9 defendants would
C involve constitutional challenges. It was agreed to deal with the 4 offence C
dates in that manner.
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E 35. In what can be described as the first trial DCCC 536/2020, 7 E
of the 9 defendants were convicted after trial of unauthorized assembly
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offences committed on 18 August 2019 and sentenced on 16 April 2021. 2
G of the 9 defendants pleaded guilty before trial. G
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36. In the 2nd trial, all the 3 defendants in DCCC 537/2020
I pleaded guilty to knowingly taking part in an unauthorized assembly on 31 I
August 2019 after a plea bargain with the Prosecution and were also
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sentenced on the 16 April 2021.
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37. In the 3rd trial, DCCC 534/2020 all 10 defendants pleaded
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guilty according to a plea bargain to similar charges of inciting, organizing
M and knowingly taking part an unauthorised assembly on 30 September and M
1 October 2019 and were sentenced on 28 May 2021.
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O The 1st defendant O
38. The defendant was the vice convenor of the CHRF at the time
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of these offences. He is now 25 years old. Mr Pun SC has emphasized his
Q previous clear record at the time of these offences and his youth being Q
relevant to mitigation. The defence bundle MFI-2 relates to mitigation put
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forward on behalf of both the 1 and 2 defendants together.
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39. The 1st defendant is now serving an 18-month term of
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imprisonment imposed on 28 May 2021 after a plea in DCCC 534/2020 to
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one count of incitement to knowingly take part in an unauthorised
C assembly and one count of organising an unauthorised assembly. Identical C
charges to this case, the date of those offences being 30 September and 1
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October 2019 respectively.
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The 2nd defendant
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40. In DCCC 536/2020 and DCCC 534/2020, I heard full
G mitigation on behalf of the 2nd defendant. He has many similar convictions G
almost all offences arising from the Public Order Ordinance. I had
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mitigation letters from all walks of life who admire him, are indebted to
I him and support him. I heard details of his health condition then and now, I
it would appear this is being addressed and will be treated if necessary.
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K 41. I take into account again his long-term commitment to social K
injustices and the need to raise public awareness of it. He is well-known
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for his concern for the welfare of migrant workers, refugees, the homeless,
M the elderly and other underprivileged groups. M
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42. I was furnished with a list of judicial review applications
O made by this defendant over the years. It has been highlighted that the 2 nd O
defendant was motivated by a desire to help others or improve the
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legislative process.
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43. In mitigation for both the 1st and 2nd defendants, Mr Pun has
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said all he can say on their behalf and referred me to Director of Public
S Prosecutions v Ziegler (2021) 3 WLR 179. It was submitted that this S
decision is applicable to sentencing; I should consider the proportionality
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of the sentence in the context of whether such sentence was necessary.
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C 44. It has been submitted I should according to that authority in C
particular paragraphs 71 – 78 take into account certain factors relevant to
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assessment of proportionality, for example, the duration of the protest and
E the extent of the actual interference on the rights of others. E
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45. I have taken into account mitigation heard for these offences
G and previous mitigation from the most recent similar cases. I have taken G
into account the sentences I imposed in those cases.
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I 46. The 2nd defendant was sentenced to 18 months’ imprisonment I
in DCCC 536/2020 after trial and the same in DCCC 534/2020 after he
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pleaded guilty. 4 months of that last sentence was ordered to run
K consecutively to DCCC 536/2020. K
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The 3rd defendant
M 47. Similarly, for the 3rd defendant I heard mitigation and received M
letters written on her behalf in DCCC 536/2020 and DCCC 534/2020. I
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took into account then, as I do today, her family background, career and
O her public service as a Legislator for many years. I was told of her work O
ethic and dedication to over 150 bills committees during her time in that
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role.
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48. I have read and taken on board a letter written by the 3rd
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Defendant herself and it demonstrates her commitment and dedication to
S those less fortunate and in genuine need of help and support. S
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49. The 3rd defendant was sentenced to 8 months’ imprisonment
C in DCCC 536/2020 on 16 April 2021 after trial and 14 months’ C
imprisonment in DCCC 534/2020 on 28 May 2021 after she pleaded guilty.
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I ordered the sentences to be served concurrently.
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50. Defence counsel has asked me to take into account the fact
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that the concurrent sentence order meant that the 14 months ran from the
G date it was imposed. He does make an erroneous submission in his written G
mitigation Bundle MFI-3 that what I had intended was for that 14 months
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to run from the 16th April 2021 and not from the date it was imposed. There
I was no such intention voiced nor is that possible. A concurrent order means I
that they are served at the same time, not that the latter sentence is
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backdated to the same starting date of the earlier sentence.
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51. If a court finds it appropriate, a sentence imposed can run
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concurrently to any other sentence presently being served; it means that it
M will run at the same time regardless of the dates they are imposed or the M
dates when the sentences come to an end. Sentences run from the day they
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are imposed. When and on what date an offender is released after serving
O any sentence will of course be decided and calculated by the Correctional O
Services Department and take into account matters such as time served on
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remand before sentence and good behaviour.
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The 4th defendant
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th
52. I heard mitigation put forward on behalf of the 4 defendant
S in both DCCC 536/2020 and DCCC 534/2020. I have considered the S
submissions made then and now, a biography and list of authorities; here
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in MFI-4. Miss Wong has said all she can say on behalf of the 4 defendant.
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It has been urged upon me to give weight to the fact that the 4 th defendant
C only incited others to take part in a peaceful procession. At no time did he C
advocate or incite any violence or reprehensible conduct therefore, none of
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it should be attributed to him or the other defendants.
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53. The 4th defendant committed this offence as an act of civil
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disobedience against the prohibitions imposed by the Public Order
G Ordinance he perceived to be unconstitutional. He openly acknowledged G
when speaking to the press that there would be non-peaceful protesters
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participating and present, describing them as “valiant”, he expressed his
I hope that the peaceful and non-peaceful would join hands to create a large I
crowd who didn’t need to cause injury in order to continue a movement of
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civil disobedience. Although he was acknowledging the predicted risk of
K violence erupting, it was suggested he was distinguishing the peaceful from K
the violent and advocating peaceful, rational and non-violent behaviour.
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M 54. It was submitted that the motive and intention of all the M
defendants for inciting a peaceful assembly as an act of civil disobedience
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is weighty mitigation. It was also stressed that a peaceful demonstration
O does not lose its character as such simply because of an outbreak of isolated O
violence; para 118 of Kwok Wing Hang v Chief Executive in Council (2020)
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23 HKCFAR 518.
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55. Moreover, it was stressed that the 4th defendant should only
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be sentenced on the basis of the facts relevant to his culpability as reflected
S in the charge of which he is convicted. I should also take into account the S
significant public service performed by the 4th defendant in the past and his
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clear record at the time of this offence.
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C 56. Lastly I was urged to consider a suspended sentence but if I C
found it necessary to impose a custodial sentence then I should consider
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any sentence to run concurrently to those presently served.
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57. The 4th defendant was sentenced to 12 months’ imprisonment
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suspended for 24 months on 16 April 2021 for organising and also taking
G part in an unauthorised assembly in DCCC 536/2020. He then pleaded G
guilty to incitement to knowingly take part in an unauthorised assembly
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and organising it. He was sentenced to a total of 18 months’ imprisonment
I in DCCC 534/2020 on 28 May 2021. I
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The 5th defendant
K 58. The 5th defendant is 32 years old. He is not a man with a clear K
record. He has 9 previous convictions that in the main, relate to Public
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Order offences. None of his previous convictions were offences motivated
M by greed, anger, corruption or dishonesty. His last conviction before this M
offence was on 24 April 2019, incitement to incite public nuisance and he
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was sentenced to a total of 8 months’ imprisonment for 2 charges. He was
O only released from that term of imprisonment on 3 October 2019; 18 days O
for the commission of this offence.
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Q 59. He did not want to put forward any mitigation in relation to Q
his background, career or personal life. It is a known fact that he was a
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social activist and former Chairman of the League of Social Democrats.
S However, he did read out a letter in mitigation entitled “Lest we forget the S
5 demands; civil disobedience is morally justified”. His letter is marked
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MFI-6 and has a translation.
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C 60. I don’t intend to repeat its contents but he explained his C
actions and motive. He is not ashamed of his actions nor remorseful. He
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continues to believe in civil disobedience.
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The 6th defendant
F F
61. The 6th defendant acted in person when it came to mitigation.
G I have also considered his previous mitigation, submissions from his then G
Counsel and his biography submitted in DCCC 537/2020 and DCCC
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534/2020. His biography is also submitted again here as MFI-7 and filed
I in MFI-4. I
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62. He too explained why he committed the same offence in this
K case and in those 2 other earlier cases in 2019. He went back in time to K
explain how he saw Hong Kong change after the handover in 1997. He had
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assisted in drafting the Basic Law prior to the handover. He explained why
M he has lost his confidence in the Hong Kong Government and lamented the M
loss of freedom of press and assembly.
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O 63. He reiterated how much he loved Hong Kong but would keep O
fighting for what he believed. He wanted the “One Country, Two Systems”
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constitutional principle to work. He did not believe in violence and only
Q advocated peaceful social movement. He committed the offence of Q
organising this unauthorised procession as an act of civil disobedience.
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S 64. The 6th defendant was sentenced to 8 months’ imprisonment S
suspended for 12 months for knowingly taking part in an unauthorised
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assembly in DCCC 537/2020 on 16 April 2021. He then pleaded guilty to
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organising an unauthorised assembly and was sentenced to a total of 14
C months’ imprisonment in DCCC 534/2020 on 28 May 2021. C
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The 7th defendant
E 65. Mr. Paul Harris SC has said all he can say on behalf of the 7th E
defendant as he did in DCCC 534/2020 when the 7th defendant pleaded
F F
guilty to organising an unauthorised assembly on 1 October 2019 and was
G sentenced to 14 months’ imprisonment. I have taken into account written G
mitigation from that past case as well as what Mr Harris has added to or
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reiterated in mitigation for this present case.
I I
66. In particular, I have read about his change in career path to
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follow his conscience to help the disadvantaged sector in Hong Kong. He
K is not a man with a clear record; he has 6 previous convictions but like D5, K
they relate mainly to Public Order offences and he was not motivated by
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greed, dishonest or corruption.
M M
67. I have read the previous letters written by family, friends and
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those who have known him through or benefited from his support and
O commitment to the underprivileged in Hong Kong. O
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68. I have an up-to-date medical report relating to the 7th
Q defendant’s 96-year-old great grand aunt who before sentencing DCCC Q
534/2020 had moved in with and was under the care of the 7th defendant.
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Her mental state appears to have deteriorated since May 2021 as has her
S gait and she is now confined to a wheelchair. Her health is deteriorating S
and the doctor opined that his remand since May 2021 “has created a great
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negative impact on the quality of life of this old lady”.
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C 69. I have been urged to take her into account especially as he, the C
th
7 defendant is the only family and support she has in Hong Kong. I also
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have an up-to-date letter from the 7th defendant’s brother. He confirms that
E their great grand aunt has become more anxious and is unsettled due to the E
7th defendant’s absence.
F F
G 70. In mitigation, I have been urged to consider the fact that this G
unauthorised assembly on 20 October 2019 was smaller in number than
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those in DCCC 534/2020 and DCCC 536/2020. The 7th defendant’s role as
I an organiser was limited; he did participate as a member of the banner party I
but did not chant slogans during the procession. He did not talk to the press
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or actively encourage participants to join them. I am urged to consider a
K suspended sentence in this case. Alternatively, if an immediate custodial K
sentence is imposed then consider a concurrent sentence.
L L
M Principles of sentencing M
N N
71. Public order offences have been established as an exception
O to the general principle that a deterrent sentence should not be passed on a O
person with a clear record and I have referred myself to page 13 of R v
P P
Nguyen Quang Thong & Ors. [1992] 2 HKCLR 10. At the time of these
Q offences all but the 2nd, 5th and 7th defendants had clear records. Q
R R
72. I adopt my principles of and reasons for sentencing from
S DCCC 536/2020, DCCC 537/2020 and DCCC 534/2020. Although I may S
be repeating what I said in the previous 3 connected cases, it is necessary
T T
as not all defendants in this case were involved in the others. I found there
U U
V V
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A A
B B
was a need in those cases for a deterrent and punitive approach in
C sentencing and that an immediate term of imprisonment was the only C
appropriate sentencing option.
D D
E 73. I took into account HKSAR v Chow Ting HCMA 374/2020 E
where Barnes J, in that bail application, agreed the magistrate in sentencing
F F
the applicant to a term of imprisonment for the offence of incitement to
G knowingly take part in an unauthorised assembly and knowingly taking G
part in an unauthorised assembly could draw on sentencing factors set out
H H
in the Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 699
I notwithstanding they were for offences of unlawful assembly. I
J J
74. Wong Chi Fung was an application for review for offences
K relating to unlawful assemblies. The Court of Appeal held that the use or K
threat to use violence was an aggravating factor and the sentence must
L L
provide for both punishment and deterrence. Deterrence is necessary to
M maintain public order. Sentencing principles for unlawful assemblies M
involving violence were set out in paragraph 108 of that authority by Poon
N N
JA, as he then was.
O O
75. Poon JA identified the inherent risk of large gatherings when
P P
he says that from experience, when large numbers of demonstrators gather
Q together, emotions will run high and the crowd may become agitated so Q
that these situations have the inherent risk of breaking out into
R R
violence. There will be those who seek to instigate violence from volatile
S situations, therein lies the risk that cannot be ignored. S
T T
U U
V V
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A A
B B
76. The Court of Appeal in the later judgement of Secretary for
C Justice v Chung Ka Ho [2020] HKCA 990 found the sentencing factors in C
Wong Chi Fung not only applicable to unlawful assembly involving
D D
violence. In paragraph 54 it is made clear that it is unreasonable to divide
E unlawful assemblies by violent ones and non-violent ones for the purposes E
of sentencing. Even if there is no actual violence, the court should take
F F
into consideration the threat and imminent risk of violence.
G G
77. The Court of Appeal said at paragraph 56 (quoted from the
H H
English translation),
I I
“In conclusion, it is unfounded to claim that the judgement in Wong
J J
Chi Fung is applicable only to unlawful assembly involving
violence. It is never the judgement in Wong Chi Fung that sentences
K K
with relatively more punitive and deterrent effect should not be
L imposed if no actual violent act is involved. It all depends on the L
actual circumstances of the case concerned”
M M
78. The actual circumstances of this case involves an
N N
unauthorised assembly but it does not mean I cannot take into account
O O
Wong Chi Fung and the inherent and expected risk which materialized as
P
was expected by the defendants. P
Q Q
79. As far as the incitement charge is concerned, I have taken into
R account the recent authority of Secretary for Justice v Poon Yung Wai R
(2021) HKCA 510. The Court of Appeal found on those facts that an
S S
incitement to unlawful assembly involving violence called for a severe and
T deterrent immediate custodial sentence. Here, there was incitement to take T
part in an unauthorised assembly with peace advocated but I have taken on
U U
V V
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A A
B B
board the discussion in that authority and drawn from it; the gravamen of
C this offence can, depending on certain factors, attract a punitive and C
deterrent sentence.
D D
E 80. Since preserving public order is important and deterrence a E
consideration, I have taken into account the prevailing circumstances at the
F F
time some defendants incited others to take part in and all but the 4 th
G defendant organised that unauthorised assembly. The context in which a G
crime is committed is of relevance to assessing its gravity and the
H H
culpability of offenders.
I I
81. The social unrest from June 2019 had escalated and became
J J
relentless, increasingly violent and disturbing. There was social unrest,
K protesting and violent eruptions almost every day by and during the months K
of September and October 2019. Some were riots or violent unlawful
L L
assemblies of a large-scale and of lengthy durations. All sentencing
M principles applied to determine an appropriate sentence should take into M
account the prevailing tumultuous situation in Hong Kong at that time.
N N
O 82. In mitigation I was referred to Director of Public Prosecutions O
v Ziegler (2021) 3 WLR 179 as being applicable to sentencing; I should
P P
consider the proportionality of the sentence in the context of whether such
Q sentence was necessary. Q
R R
83. As summarised by Pang JA in HKSAR v Au Nok Hin CACC
S 84/2021 in his reasons for refusing bail pending appeal from a sentence S
imposed by myself in DCCC 536/2020, I quote paragraph 13,
T T
U U
V V
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A A
B “In broad terms, what Ziegler requires in a case of this kind is for B
the court to recognise that, notwithstanding his law breaking, a
C C
defendant’s right to freedom of expression and right to freedom of
D assembly were engaged, and that his conviction and sentence are D
in themselves an interference with those rights. …”
E E
84. It has been submitted I should according to that authority take
F F
into account certain factors identified in paragraphs 71-78 as relevant to
G the assessment of proportionality, for example, the duration of the protest, G
whether the obstruction was targeted at the object of the protest, the
H H
importance of the precise location to the protesters and the extent of the
I I
actual interference on the rights of others.
J J
85. If Ziegler is applicable to sentencing, on the facts and the
K K
evidence before me, in my view, a deterrent sentence involving a term of
L imprisonment here would still be proportionate. The insignificance of the L
actual procession route to the protesters, the long duration, obstruction and
M M
reprehensible conduct including the extent of actual interference with the
N rights of others and property belonging to others serves to prove this N
unauthorised assembly was very serious.
O O
P Reasons for sentence P
Q Q
86. As I have said before, the Basic Law and the Bill of Rights
R guarantees freedom of assembly, procession and demonstration for Hong R
Kong residents. However, these rights are not absolute and are subject to
S S
restrictions ruled constitutional. Here, restrictions were applied in the
T interests of public safety, public order, and the protection of others’ rights T
and freedoms.
U U
V V
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A A
B B
C 87. I reiterate again, many other jurisdictions in the world have C
the same or very similar requirements. These freedoms are enjoyed subject
D D
to those restrictions and irrespective of a person’s politics. The common
E purpose of the procession on 20 October 2019 as well as the politics, beliefs, E
stance and opinions of any of the defendants are irrelevant to sentencing.
F F
G 88. In relation to charge 1, I have taken into account what each of G
the 1st to 4th defendants said in the press conference to incite members of
H H
the public to join them in defying the Police ban and flouting the law.
I I
89. In addition, the 1st and 2nd defendants published posts on their
J J
Facebook pages making the same appeal. They appealed to the public to
K not only join their procession but to jam pack Yau Ma Tei, Tsim Sha Tsui K
and Mong Kok; areas outside of the proposed route. There was no concern
L L
for causing the most serious and indiscriminate obstruction in one of the
M busiest areas of Hong Kong. M
N N
90. The call was for an unauthorised assembly in the name of civil
O disobedience and in the name of a number of causes ranging from O
disbanding the Police, making 5 demands of the Government and defying
P P
the facemask law.
Q Q
91. During the press conference outside the Court of Final Appeal
R R
th
the 4 defendant did call for peaceful procession. He also at the same time
S said that there would be violence by certain people he called “valiant S
protesters”. He said he hoped that those valiant protesters and peaceful
T T
U U
V V
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A A
B B
protesters could join forces together to continue the civil disobedience
C movement. C
D D
92. That is an acknowledgement that there would be trouble
E erupting in and around the procession the following day. In reality, by the E
end of October 2019 how could anyone have not seen the risk materializing.
F F
The latent risk I have previously considered relevant to sentencing in the
G other related cases was in this case essentially a certainty. G
H H
93. During the press conference there may have been an emphasis
I on maintaining peace in numbers despite or in spite of the presence of I
violent protesters but in my view, in such volatile times this was essentially
J J
paying lip service to the expression. They deliberately turned a blind eye
K to public order being jeopardised. K
L L
94. In mitigation it has been submitted that the defendants
M intended the procession to be peaceful and should not be held accountable M
for anything unlawful or illegal that happened out of sight or after they
N N
arrived at the final destination and declared the procession over.
O O
95. Those submissions carry little weight when one considers the
P P
tumultuous months and open acknowledgments during the press
Q conferences. Q
R R
96. The submission that the defendants as organisers cannot be
S blamed for the violence or other punishable acts on and around the route S
of the procession when they openly acknowledge that it was going to
T T
U U
V V
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A A
B B
happen and take place carries little weight. No defendant took any
C measures to avoid it erupting. C
D D
97. Not only was there acknowledgement of the violence to come
E on the 19th October 2019 but also on the day of the unauthorised assembly. E
The 1st defendant said from the outset he knew some friends would “take
F F
other actions” and hoped everyone would be safe. Clearly he meant actions
G that were other than peaceful and non-violent. What other explanation G
could there be for that comment.
H H
I 98. When the banner group arrived at the junction of Canton Road I
and Austin Road, more speeches were made before the defendants
J J
dispersed. Reference was made to “comrades” who could be seen behind
K the banner group still building blockades that blocked off roads causing K
huge obstruction to traffic.
L L
M 99. The 1st defendant at the end of the procession thanked his M
“comrades” for blocking roads so they could march and avoid vehicles. He
N N
asked the participants to thank the “comrades” for doing “something that
O they may not dare or were not willing to do and for protecting the peaceful, O
rational, and non-violent crowd”. He even had the participants clap to
P P
support the “comrades”.
Q Q
100. When I consider the obstruction affecting so many, the
R R
violence and destruction captured on film in and around the route of the
S procession that took place during and long after the banner party declared S
the procession at an end, I find it unnecessary to define what violent acts
T T
or breaches of the peace can be attributed to participants of the procession.
U U
V V
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A A
B B
I find it can be so attributed and the defendants as organisers are not
C blameless. C
D D
101. It was inevitable that when the procession spilled over the
E proposed route and covered the streets of Salisbury Road, Canton Road, E
Kowloon Park Drive, Nathan Road and Austin Road which essentially
F F
surround Kowloon Park and were jam packed full of protesters, the
G protesters spread further up Nathan Road towards Mong Kok Police G
Station with specific shops and banks on the way targeted for vandalism
H H
by some.
I I
102. In the Amended Summary of Facts, it was agreed that several
J MTR stations in the area were vandalised that day. The repair cost to Tsim J
Sha Tsui and East Tsim Sha Tsui stations was approximately
K K
HK$350,000.00. Damage and loss to 3 Best Mart 360 shops on Nathan
L Road and Chatham Road South cost $1,776,968.00. The cost to repair the L
damage to 4 branches of Bank of China totaled $5,057,862.00. The forced
M M
cancellation of activities to be held in the Hong Kong Cultural Centre that
N N
day meant a loss of revenue of $113,253.00. The total cost here is
O
$7,298,083.00. The cost of damage to Government property has not been O
included.
P P
Q 103. These charges do involve an unauthorised assembly but it Q
does not mean I cannot take into account the criminal and violent acts
R R
committed by those who were with the unauthorised assembly and
S procession. The evidence shows that the line between peaceful assembly S
and conduct which disrupts public order was crossed.
T T
U U
V V
- 28 -
A A
B B
104. After a careful consideration of the above principles, factors
C and relevant evidence directly related to this unauthorised assembly as well C
as submissions in mitigation, an immediate term of imprisonment is the
D D
only appropriate sentencing option.
E E
105. The motive put forward by the defence, that they committed
F F
the offences as acts of civil disobedience to justify their breaches of the law
G does not carry significant weight. This concept is recognised in the Courts G
of Hong Kong. However, to conform to civil disobedience, the facts must
H H
show the acts were peaceful and non-violent.
I I
106. Despite the submissions that the defendants’ beliefs were
J J
genuine and they held conscientious objections, when I consider the facts
K of the offences, their consequences as well as the need for deterrence, the K
weight I would attach to their motive is not significant. Moreover, the act
L L
of civil disobedience here was not expressly directed towards section 17A
M of the Public Order Ordinance as an unjust law but was committed in the M
course of protesting against the Government and the Police over several
N N
issues.
O O
Starting point – Charge 1
P P
Q 107. After careful consideration of the above principles, factors Q
and relevant evidence directly related to this unauthorised assembly during
R R
that tumultuous period as well as submissions in mitigation, I repeat, an
S immediate term of imprisonment is the only appropriate sentencing option. S
T T
U U
V V
- 29 -
A A
B B
108. To arrive at an appropriate starting point for Charge 1, inciting
C others to knowingly take part in an unauthorised assembly, I have taken C
into account several factors. A premeditated press conference was
D D
organised by the 1st to 4th defendants outside the Court of Final Appeal to
E ensure maximum publicity in front of many media outlets. Then, the 1st and E
2nd defendants amplified the incitement in their Facebook posts.
F F
G 109. I have taken into account what each defendant said during the G
press conference. They made it clear they wanted large numbers to come
H H
out. What they proposed as a procession meant they knew the whole Tsim
I Sha Tsui area would be jam packed and paralysed. They acknowledged I
there would be others there who would be non-peaceful; trouble makers
J J
intent on violence.
K K
110. The 1st, 2nd and 3rd defendants went on to organise that
L L
unauthorised assembly the following day. The 4th defendant was not
M present. The culpability of these defendants is higher than the other M
defendants who jointly organised it.
N N
O 111. After all relevant factors are taken into consideration, in my O
judgement, a starting point of 24 months’ imprisonment is appropriate.
P P
Q Starting point - Charge 3 Q
R R
th th
112. I find the other defendants, that is the 5 to 7 defendants
S equally culpable in organising this unauthorised assembly. It is true that S
within this banner group leading the procession some chanted slogans,
T T
U U
V V
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A A
B B
some wore masks and some only replied to chants but I do not differentiate
C their roles for the purpose of sentencing. C
D D
113. After all relevant factors are taken into consideration, in my
E judgement, a starting point of 24 months’ imprisonment is appropriate for E
the 1st to 3rd defendants.
F F
G 114. A starting point of 18 months’ imprisonment is appropriate G
for the 5th to 7th defendants.
H H
I Discount after plea I
J J
115. All defendants indicated their pleas at most, a few weeks
K before this trial was due to commence. Certainly, long after sentences K
imposed in DCCC 536/2020, DCCC 537/2020 and DCCC 534/2020. I
L L
have taken into account the authority of HKSAR v Ngo Van Nam [2016] 5
M HKLRD 1. According to that authority, subject to the overriding discretion M
of the judge in sentencing, a defendant who gives the Court or the
N N
prosecution an indication of a plea of not guilty at the plea date, after which
O trial dates are fixed, who then indicates before the first day of trial that he O
or she wishes to plead guilty, is to be afforded a discount between 25 and
P P
20% of that taken as the starting point for sentence. Here, I apply a discount
Q of between 25 and 22% to the starting points. Q
R R
116. Accordingly, I reduce the starting point of 24 months for the
S 1st to 4th defendants facing Charge 1 to 18 months’ imprisonment. S
T T
U U
V V
- 31 -
A A
B B
117. I reduce the starting point of 24 months for the 1 st to 3rd
C defendants facing Charge 3 to 18 months’ imprisonment. C
D D
118. I reduce the starting point of 18 months for the 5 th to 7th
E defendants facing Charge 3 to 14 months’ imprisonment. E
F F
The totality principle/concurrent and consecutive sentencing
G G
119. The importance of the totality principle is to ensure fairness
H H
to any defendant. Courts must achieve a just and balanced sentence that
I will not punish a defendant twice for the same or similar conduct and crush I
him. I have to consider the overall criminality and culpability of each
J J
individual defendant to come to a fair sentence.
K K
120. Often, to achieve a fair and balanced sentence, the court can
L L
consider concurrent and consecutive sentences. If a person is convicted of
M more than one offence committed on different days or not arising out of a M
single transaction or the same set of facts, then the sentence ought in
N N
principle to run consecutively to the sentences on each of the other offences
O but subject to an assessment of the appropriate totality. To achieve that, O
sentences can be imposed but are served in whole or in part concurrently
P P
rather than consecutively. This avoids excessive punishment yet still
Q reflects multiple offences, overall criminality and culpability. Q
R R
121. Here, although there were 4 separate hearings for similar
S offences committed on 6 separate dates between 18 August and 20 October S
2019, many of the defendants were involved in more than one hearing. If
T T
they had all been heard together or closer together then I would have
U U
V V
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A A
B B
ensured proportionality of punishment in what would be a multi-charge
C case. As it is, sentence dates range between 16 April and today, 1 C
September 2021.
D D
E 122. The decision to set down 4 hearings was correct for many E
reasons but it is a shame that at least some of the defendants did not indicate
F F
their decisions to plead to the third and fourth trials after the conclusion of
G the first trial to bring their pleas up earlier because it means that over 4 G
months has passed since I imposed the sentences of the first and second
H H
trials that affects three of the defendants here. 3 months has passed since I
I imposed the sentences for the third that affects six of the defendants here. I
J J
123. I certainly did not nor could have sentenced in DCCC
K 536/2020, DCCC 537/2020 and DCCC 534/2020 on the basis that in the K
future related hearings I may again convict some of those defendants
L L
involved either after trial or on a plea. I could not take those other charges
M to be dealt with in the future into account. M
N N
124. Nevertheless, and despite it being somewhat difficult to
O calculate, the objective to ensure an appropriate proportionality between O
all the multiple offences committed over the summer of 2019 and the
P P
sentences imposed is very much alive.
Q Q
125. Where relevant to each defendant here, I will take into account
R R
what sentences I imposed, when and whether any were part consecutive or
S concurrent. I will also take into account the time already served in those 3 S
earlier sentences as they affect each defendant. I obviously take into
T T
account the mitigation of each individual defendant. Equally I take into
U U
V V
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A A
B B
account the charges they faced and face here in the 4 cases, for example,
C this is the 1st offence of inciting an unauthorised assembly for the 3rd C
nd
defendant but the 2 offence of inciting an unauthorised assembly for the
D D
1st, 2nd and 4th defendants on divers dates.
E E
126. If I had dealt with the sentences for the multiple offence dates
F F
together or close together, I am sure I would have considered it appropriate
G to make partly consecutive sentences to reflect multiplicity and culpability. G
I aim to achieve that in this sentencing exercise without being oppressive
H H
or unfair.
I I
Conclusion
J J
K The 1st defendant K
127. I sentence the 1st defendant to 18 months’ imprisonment for
L L
Charges 1 and 3. I find these appropriate sentences but I will reduce these
M sentences by 2 months, to 16 months to reflect and take into account time M
served already in DCCC 534/2020.
N N
O 128. Therefore, the 1st defendant is sentenced to 16 months’ O
imprisonment for Charges 1 and 3 to be served concurrently; a total of 16
P P
months’ imprisonment.
Q Q
129. I order this term of imprisonment to run concurrently to the
R R
term of imprisonment imposed in DCCC 534/2020.
S S
T T
U U
V V
- 34 -
A A
B B
The 2nd defendant
C 130. I sentence the 2nd defendant to 18 months’ imprisonment for C
Charges 1 and 3. I find these appropriate sentences but I will reduce these
D D
sentences by 2 months, to 16 months to reflect and take into account time
E served already in DCCC536 and 534/2020. E
F F
131. Therefore, the 2nd defendant is sentenced to 16 months’
G imprisonment for Charges 1 and 3 to be served concurrently; a total of 16 G
months’ imprisonment.
H H
I 132. I order this term of imprisonment to run concurrently to the I
term of imprisonment imposed in DCCC 536/2020 and DCCC 534/2020.
J J
K The 3rd defendant K
133. I sentence the 3rd defendant to 18 months’ imprisonment for
L L
Charges 1 and 3. I find these appropriate sentences but I will reduce these
M sentences by 4 months, to 14 months to reflect and take into account time M
served already in DCCC 536/2020 and DCCC 534/2020.
N N
O 134. Therefore, the 3rd defendant is sentenced to 14 months’ O
imprisonment for Charges 1 and 3 to be served concurrently; a total of 14
P P
months’ imprisonment.
Q Q
135. I order this term of imprisonment to run concurrently to the
R R
term of imprisonment imposed in DCCC 536/2020 and DCCC 534/2020.
S S
T T
U U
V V
- 35 -
A A
B B
The 4th defendant
C 136. I sentence the 4th defendant to 18 months’ imprisonment for C
Charge 1. I find this an appropriate sentence but I will reduce this sentence
D D
by 2 months, to 16 months to reflect and take into account time served
E already in DCCC 534/2020. E
F F
137. Therefore, the 4th defendant is sentenced to 16 months’
G imprisonment for Charge 1. I order this term of imprisonment to run G
concurrently to the term of imprisonment imposed in DCCC 534/2020.
H H
I The 5th defendant I
138. I sentence the 5th defendant to 14 months’ imprisonment for
J J
Charge 3.
K K
The 6th defendant
L L
139. I sentence the 6th defendant to 14 months’ imprisonment for
M Charge 3 but I will reduce this sentence by 3 months, to 11 months to M
reflect and take into account time served already in DCCC 534/2020.
N N
O 140. Therefore, the 6th defendant is sentenced to 11 months’ O
imprisonment for Charge 3. I order this term of imprisonment to run
P P
concurrently to the term of imprisonment imposed in DCCC 534/2020.
Q Q
The 7th defendant
R R
141. I sentence the 7 defendant to 14 months’ imprisonment for
th
S Charge 3 but I will reduce this sentence by 2 months, to 12 months to S
reflect and take into account time served already in DCCC 534/2020.
T T
U U
V V
- 36 -
A A
B B
142. Therefore, the 7th defendant is sentenced to 12 months’
C imprisonment for Charge 3. I order this term of imprisonment to run C
concurrently to the term of imprisonment imposed in DCCC 534/2020.
D D
E E
F F
G G
H H
(A J Woodcock)
I I
District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 535/2020
C [2021] HKDC 1100 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 535 OF 2020
F F
G ---------------------------- G
HKSAR
H H
v
I CHAN HO WUN (D1) I
LEUNG KWOK HUNG (D2)
J J
HO SAU LAN CYD (D3)
K HO CHUN YAN (D4) K
WONG HO MING RAPHAEL (D5)
L L
YEUNG SUM (D6)
M NG MAN YUEN AVERY (D7) M
----------------------------
N N
O Before: Her Honour Judge Amanda J Woodcock in Court O
Date: 1 September 2021
P P
Present: Ms Karen Ng, Senior Public Prosecutor (Ag) and Mr Edward
Q Lau, Public Prosecutor, for HKSAR/Director of Public Q
Prosecutions
R R
S Mr Hectar Pun, SC, leading Mr Anson Wong Yu Yat, S
instructed by Kenneth Lam Solicitors, assigned by the
T T
st nd
Director of Legal Aid, for the 1 and 2 defendants
U U
V V
-2-
A A
B B
Mr Chris Ng, instructed by JCC Cheung & Co, for the 3rd
C defendant C
Ms Wong Kam Kuen Catherine and Mr Ernest Wong,
D D
instructed by Ho Tse Wai & Partners, for the 4th defendant
E The 5th and 6th defendants appeared in person E
Mr Paul Harris, SC, leading Mr Chan Ted Noel, instructed by
F F
JCC Cheung & Co, assigned by the Director of Legal Aid, for
G the 7th defendant G
Offences: [1] Incitement to knowingly take part in an unauthorized
H H
assembly（煽惑他人明知而參與未經批准集結） - D1-D4
I [2] Making an announcement of an unauthorized public I
procession (alternative to the 1st Charge)（公告一個未經批
J J
准的公眾遊行）(第一項控罪的交替控罪) - D1-D4
K K
[3] Organizing an unauthorized assembly（組織一個未經批
L 准集結） - D1-D3, D5-D7 L
[4] Knowingly taking part in an unauthorized assembly（明
M M
知而參與未經批准集結） - D1-D3, D5-D7
N N
--------------------------------------
O REASONS FOR SENTENCE O
--------------------------------------
P P
Q 1. The 1st to 4th defendants pleaded guilty to Charge 1, on 19 Q
October 2019 they unlawfully incited other persons unknown to, without
R R
lawful authority or reasonable excuse, knowingly take part in a public
S procession, contrary to Common Law and section 17A(3)(a) of the Public S
Order Ordinance, Cap 245 and punishable under section 101I of the
T T
U U
V V
-3-
A A
B B
Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to
C Charge 1. C
D D
2. The 1st to 3rd, 5th to 7th defendants pleaded guilty to Charge 3,
E organising an unauthorised assembly on 20 October 2019, contrary to E
section 17A(3)(b)(i) of the Public Order Ordinance.
F F
G 3. Charge 4, knowingly taking part in an unauthorised assembly G
for the same defendants was ordered to be kept on the court file and not to
H H
be dealt with unless there is leave of this Court or the Court of Appeal.
I I
The Facts
J J
K 4. The defendants agreed the Amended Summary of Facts. On K
14 October 2019 the 1st defendant, the then vice convenor of the now
L L
disbanded Civil Human Rights Front (“CHRF”) submitted a “notification
M of the intention to hold a public meeting and procession” which set out the M
intention of the CHRF to hold a public meeting and then a public
N N
procession at and from Salisbury Garden in Tsim Sha Tsui on 20 October
O 2019. O
P P
5. On 15 October 2019 there was a liaison meeting between the
Q Police, the 1st defendant and others. The application was then amended to Q
only intend to hold a public procession and not a public meeting. 3 days
R R
later, the Police issued a letter of objection opposing the public procession
S in the interests of public safety, public order, and the protection of others’ S
rights and freedoms.
T T
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6. On 18 October 2019 the Police held their daily press
C conference. The Police publically explained why they did not authorise this C
procession. They reiterated the known and obvious risk that there would
D D
be others amongst and near the procession who would be violent and create
E disturbances. The Police believed that the risk was high because of E
intelligence received. Hence, a letter of objection was issued.
F F
G 7. They warned the organisers and the public not to proceed with G
this unauthorised assembly along the proposed route. The Police said they
H H
took into account that violence was escalating and had become more
I intense since June 2019. They highlighted the fact that peaceful I
processions had been hijacked by rioters and turned into radical violent
J J
situations since June 2019.
K K
8. The Police highlighted the damage to Police stations,
L L
government buildings, Legislator’s offices, targeted shops and banks as
M well as territory wide destruction of MTR property. This warning of similar M
violence being repeated on 20 October 2019 was ignored by the defendants,
N N
the organisation of the unauthorised procession went ahead and we saw on
O that route and around that route, during and after, many incidents of O
vandalism, criminal damage and violence as predicted.
P P
Q 9. CHRF appealed against this objection and on 19 October 2019 Q
after an Appeal Board hearing, that appeal was dismissed. On that same
R R
st
day, immediately after the appeal hearing the 1 defendant held a press
S conference announcing a formal press conference for later that day at 4pm S
which was set up outside the Court of Final Appeal.
T T
U U
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B B
10. The particulars of Charge 1 refer to that press conference held
C by the 1st to 4th defendants where they admit unlawfully inciting other C
persons unknown to, without lawful authority or reasonable excuse,
D D
knowingly take part in a public procession which was an unauthorised
E assembly. E
F F
11. The Summary of Facts covered some of what the 1st to 4th
G defendants said during that press conference. They all stood holding a G
banner with the words “Five demands, not one less. No fear for civil
H H
disobedience”. The facts repeated some of what each defendant said during
I the press conference individually to unlawfully incite others to knowingly I
take part in a public procession the following day which they knew and
J J
reiterated was an unauthorised assembly.
K K
12. The press conference lasted around 30 minutes and was
L L
reported and broadcasted by various news media; see Tabs in the
M Prosecution’s Documentary Bundle 1. M
N N
Unauthorised assembly on 20 October 2019
O O
13. On 20 October 2019 all the defendants bar the 4th defendant
P P
gathered together with a large crowd at Salisbury Garden. They all stood
Q behind a different banner with the words “Five demands not one less”. Q
R R
st nd
14. The 1 and 2 defendant took turns to speak through a
S loudhailer and shout various slogans such as but not limited to “no fear for S
civil disobedience”, “shatter the anti-mask law” and “I have the right to
T T
assembly, no permission from the Communist Party is required”. The
U U
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B B
crowds around them chanted and repeated the slogans in unison. The
C scenario was filmed, captured and broadcasted by various news media C
st nd
outlets and through the 1 and 2 defendants Facebook pages.
D D
E 15. The 1st defendant reiterated over the loudhailer that the E
procession from Salisbury Garden to West Kowloon Station was an
F F
unauthorised assembly and that there was a risk of criminal liability. He
G gave out phone numbers for people to utilise if they were arrested. G
H H
16. At about 1:25pm, the 1st to 3rd defendants stepped forward to
I give a press interview. The 1st defendant told the reporters that he and the I
others present were exercising their rights under Article 27 of the Basic
J J
Law to participate in a procession and they did not need the approval of the
K Police or the government. He encouraged more who were watching this K
press conference to come out and join their procession. He said that despite
L L
the risk, he was not afraid of being arrested or going to prison.
M M
17. After that press conference those 3 defendants rejoined the 5th
N N
to 7th defendant. They then all held the banner together and started the
O procession. A second even bigger banner followed directly behind them O
accusing the Police of “deliberate murder”. Thousands of protesters
P P
followed this banner party and participated in this procession.
Q Q
18. When the banner party set off from Salisbury Garden many
R R
protesters left the procession route when they spilled over or diverted
S instead down Nathan Road adjacent to Kowloon Park Drive and Canton S
Road. This can be seen from aerial footage of the procession path; a large
T T
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B B
number of the procession left from Salisbury Garden but proceeded down
C Nathan Road instead. C
D D
19. The Tsim Sha Tsui Police Station was on the corner of
E Nathan Road and Austin Road. The procession was later declared at an end E
at the corner of Austin Road and Canton Road. The Tsim Sha Tsui Police
F F
Station, not far away from the changed destination of the procession, was
G the scene of much violence. G
H H
20. All 7 defendants led the crowd and at various times the 1st, 2nd
I and 5th defendants used the loudhailer to shout slogans including but not I
limited to, “Five demands not one less”, “Liberate Hong Kong, the
J J
revolution of our times”, “No fear for civil disobedience” and “No rioters,
K only tyranny”. Those protesters behind the defendants repeated those K
chants.
L L
M 21. This unauthorised assembly was meant to proceed to the West M
Kowloon Station but was cut short by the defendants. When the defendants
N N
arrived at the junction of Austin Road and Canton Road, the 1st defendant
O announced that the procession had come to an end. He told the crowds O
using a loudhailer that he himself, the 2nd and 3rd defendant held this
P P
procession. He thanked “comrades” for closing the Roads to allow this
Q procession to proceed. Q
R R
22. In fact, in video footage they had stopped at this junction and
S spoke to the crowds and the press whilst stood in front of a group of black S
clad protesters who were in the process of destroying water barriers and
T T
railings and tying them all together in order to seal off the 4 vehicular lanes
U U
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A A
B B
of Austin Road. Cars were unable to proceed. They were the backdrop of
C the last press conference. C
D D
23. The 1st defendant said the road up ahead was blocked by
E “comrades” so the procession would disperse here. The 1st, 2nd and 3rd E
defendants then held another press conference at that road junction which
F F
was widely broadcast. They may have declared the public procession over
G but obviously, the procession stretched back a significant distance and it G
was announced that there were participants who had not even left the
H H
starting point, Salisbury Garden. This unauthorised procession did not start
I and end with the defendants; the procession had a head, body and tail. In I
this case the body had spread and spilled onto other Roads.
J J
K 24. In fact, at least an hour later, the 1st, 2nd and 3rd defendants K
were still at the junction and filmed using a loudhailer to continue the
L L
chanting. The 1st defendant also repeated the mobile phone number in case
M of arrest and the participants were told to walk towards the Yau Ma Tei as M
it was still safe in that direction.
N N
O 25. After the unauthorised procession began the roads from O
Salisbury Road, Kowloon Park Drive, Canton Road and Austin Road were
P P
blocked and obstructed as were those near or adjacent such as Nathan Road.
Q Several MTR stations in Kowloon were closed even before the procession Q
due to safety concerns.
R R
S 26. The prosecution relies on the evidence from footage from S
about the time the unauthorised procession started to show that there was
T T
violence and reprehensible conduct en route and on adjacent or parallel
U U
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B B
roads where the procession had spilled over. The prosecution relied on
C video footage of unlawful behaviour, criminal damage, arson and violence C
filmed to show that the anticipated risks had materialised.
D D
E 27. Incidents or acts highlighted by the prosecution were gleaned E
from hours of footage from several media outlets and a sample was played
F F
in open court; MFI-1 is a playlist of video footage relied on by the
G prosecution. It contained remarks to explain the relevance of footage as G
well as a reference to the 3 prosecution bundles and tabs with transcripts
H H
and translations.
I I
28. At that time in 2019, this was becoming a now familiar pattern
J J
where there was incitement to participate in an unauthorized public
K assembly and then actual organisation of an unauthorised assembly K
accompanied by sporadic unrest and trouble which spiraled into chaos and
L L
violence.
M M
29. Essentially, undeterred by a Police ban and in direct defiance
N N
of law and order, thousands of people followed the banner party and
O marched in Kowloon that day. The route of the procession and adjacent O
roads was marred by familiar but ever more violent scenes of unrest where
P P
protesters threw petrol bombs at the Police and Police stations, set fires,
Q vandalised specific shops, MTR stations, MTR property and Chinese banks Q
as well as built makeshift barricades and blocked major roads.
R R
S 30. The Police eventually deployed teargas as well as its water S
cannon vehicle. The trouble in that area went on into the night.
T T
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Mitigation
C C
31. I have heard mitigation in full and been told of personal and
D D
professional backgrounds. I have either received written mitigation and
E supporting authorities in bundles in advance or received a letter of E
mitigation from the 5th defendant acting in person. All Counsel have said
F F
all they can say on behalf of the defendants. I don’t intend to repeat here
G all the mitigation and submissions put forward but I have taken it all into G
account.
H H
I 32. Counsel for the defence submit that these charges and facts do I
not call for a custodial sentence. They submit that the procession itself as
J J
led by the defendants forming a banner party was in itself peaceful with no
K immediate violent incidents or conflicts arising during it. The conflicts K
seen on CCTV or film footage were not related to the peaceful assembly
L L
nor can be attributed to the defendants. Those that incited others to
M participate the day before had only advocated a peaceful, non-violent and M
rational assembly.
N N
O 33. This is the 4th trial arising from same or similar charges O
involving some repeat defendants concerning unauthorised assemblies on
P P
4 different offence dates. It involved a total of 15 defendants arrested at the
Q same time. Not all were charged in relation to all 4 offence dates. In this Q
case, for example, the 2nd, 3rd, 4th and 6th defendants were involved in 3 of
R R
st th
the 4 cases and the 1 and 7 defendants in 2 of the 4 cases.
S S
34. The Prosecution had wanted all 15 defendants to be tried
T T
together. The defence suggested splitting it into 4 separate trial hearings
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relating to the 4 offence dates and the first trial of 9 defendants would
C involve constitutional challenges. It was agreed to deal with the 4 offence C
dates in that manner.
D D
E 35. In what can be described as the first trial DCCC 536/2020, 7 E
of the 9 defendants were convicted after trial of unauthorized assembly
F F
offences committed on 18 August 2019 and sentenced on 16 April 2021. 2
G of the 9 defendants pleaded guilty before trial. G
H H
36. In the 2nd trial, all the 3 defendants in DCCC 537/2020
I pleaded guilty to knowingly taking part in an unauthorized assembly on 31 I
August 2019 after a plea bargain with the Prosecution and were also
J J
sentenced on the 16 April 2021.
K K
37. In the 3rd trial, DCCC 534/2020 all 10 defendants pleaded
L L
guilty according to a plea bargain to similar charges of inciting, organizing
M and knowingly taking part an unauthorised assembly on 30 September and M
1 October 2019 and were sentenced on 28 May 2021.
N N
O The 1st defendant O
38. The defendant was the vice convenor of the CHRF at the time
P P
of these offences. He is now 25 years old. Mr Pun SC has emphasized his
Q previous clear record at the time of these offences and his youth being Q
relevant to mitigation. The defence bundle MFI-2 relates to mitigation put
R R
st nd
forward on behalf of both the 1 and 2 defendants together.
S S
39. The 1st defendant is now serving an 18-month term of
T T
imprisonment imposed on 28 May 2021 after a plea in DCCC 534/2020 to
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B B
one count of incitement to knowingly take part in an unauthorised
C assembly and one count of organising an unauthorised assembly. Identical C
charges to this case, the date of those offences being 30 September and 1
D D
October 2019 respectively.
E E
The 2nd defendant
F F
40. In DCCC 536/2020 and DCCC 534/2020, I heard full
G mitigation on behalf of the 2nd defendant. He has many similar convictions G
almost all offences arising from the Public Order Ordinance. I had
H H
mitigation letters from all walks of life who admire him, are indebted to
I him and support him. I heard details of his health condition then and now, I
it would appear this is being addressed and will be treated if necessary.
J J
K 41. I take into account again his long-term commitment to social K
injustices and the need to raise public awareness of it. He is well-known
L L
for his concern for the welfare of migrant workers, refugees, the homeless,
M the elderly and other underprivileged groups. M
N N
42. I was furnished with a list of judicial review applications
O made by this defendant over the years. It has been highlighted that the 2 nd O
defendant was motivated by a desire to help others or improve the
P P
legislative process.
Q Q
43. In mitigation for both the 1st and 2nd defendants, Mr Pun has
R R
said all he can say on their behalf and referred me to Director of Public
S Prosecutions v Ziegler (2021) 3 WLR 179. It was submitted that this S
decision is applicable to sentencing; I should consider the proportionality
T T
of the sentence in the context of whether such sentence was necessary.
U U
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B B
C 44. It has been submitted I should according to that authority in C
particular paragraphs 71 – 78 take into account certain factors relevant to
D D
assessment of proportionality, for example, the duration of the protest and
E the extent of the actual interference on the rights of others. E
F F
45. I have taken into account mitigation heard for these offences
G and previous mitigation from the most recent similar cases. I have taken G
into account the sentences I imposed in those cases.
H H
I 46. The 2nd defendant was sentenced to 18 months’ imprisonment I
in DCCC 536/2020 after trial and the same in DCCC 534/2020 after he
J J
pleaded guilty. 4 months of that last sentence was ordered to run
K consecutively to DCCC 536/2020. K
L L
The 3rd defendant
M 47. Similarly, for the 3rd defendant I heard mitigation and received M
letters written on her behalf in DCCC 536/2020 and DCCC 534/2020. I
N N
took into account then, as I do today, her family background, career and
O her public service as a Legislator for many years. I was told of her work O
ethic and dedication to over 150 bills committees during her time in that
P P
role.
Q Q
48. I have read and taken on board a letter written by the 3rd
R R
Defendant herself and it demonstrates her commitment and dedication to
S those less fortunate and in genuine need of help and support. S
T T
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B B
49. The 3rd defendant was sentenced to 8 months’ imprisonment
C in DCCC 536/2020 on 16 April 2021 after trial and 14 months’ C
imprisonment in DCCC 534/2020 on 28 May 2021 after she pleaded guilty.
D D
I ordered the sentences to be served concurrently.
E E
50. Defence counsel has asked me to take into account the fact
F F
that the concurrent sentence order meant that the 14 months ran from the
G date it was imposed. He does make an erroneous submission in his written G
mitigation Bundle MFI-3 that what I had intended was for that 14 months
H H
to run from the 16th April 2021 and not from the date it was imposed. There
I was no such intention voiced nor is that possible. A concurrent order means I
that they are served at the same time, not that the latter sentence is
J J
backdated to the same starting date of the earlier sentence.
K K
51. If a court finds it appropriate, a sentence imposed can run
L L
concurrently to any other sentence presently being served; it means that it
M will run at the same time regardless of the dates they are imposed or the M
dates when the sentences come to an end. Sentences run from the day they
N N
are imposed. When and on what date an offender is released after serving
O any sentence will of course be decided and calculated by the Correctional O
Services Department and take into account matters such as time served on
P P
remand before sentence and good behaviour.
Q Q
The 4th defendant
R R
th
52. I heard mitigation put forward on behalf of the 4 defendant
S in both DCCC 536/2020 and DCCC 534/2020. I have considered the S
submissions made then and now, a biography and list of authorities; here
T T
th
in MFI-4. Miss Wong has said all she can say on behalf of the 4 defendant.
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It has been urged upon me to give weight to the fact that the 4 th defendant
C only incited others to take part in a peaceful procession. At no time did he C
advocate or incite any violence or reprehensible conduct therefore, none of
D D
it should be attributed to him or the other defendants.
E E
53. The 4th defendant committed this offence as an act of civil
F F
disobedience against the prohibitions imposed by the Public Order
G Ordinance he perceived to be unconstitutional. He openly acknowledged G
when speaking to the press that there would be non-peaceful protesters
H H
participating and present, describing them as “valiant”, he expressed his
I hope that the peaceful and non-peaceful would join hands to create a large I
crowd who didn’t need to cause injury in order to continue a movement of
J J
civil disobedience. Although he was acknowledging the predicted risk of
K violence erupting, it was suggested he was distinguishing the peaceful from K
the violent and advocating peaceful, rational and non-violent behaviour.
L L
M 54. It was submitted that the motive and intention of all the M
defendants for inciting a peaceful assembly as an act of civil disobedience
N N
is weighty mitigation. It was also stressed that a peaceful demonstration
O does not lose its character as such simply because of an outbreak of isolated O
violence; para 118 of Kwok Wing Hang v Chief Executive in Council (2020)
P P
23 HKCFAR 518.
Q Q
55. Moreover, it was stressed that the 4th defendant should only
R R
be sentenced on the basis of the facts relevant to his culpability as reflected
S in the charge of which he is convicted. I should also take into account the S
significant public service performed by the 4th defendant in the past and his
T T
clear record at the time of this offence.
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C 56. Lastly I was urged to consider a suspended sentence but if I C
found it necessary to impose a custodial sentence then I should consider
D D
any sentence to run concurrently to those presently served.
E E
57. The 4th defendant was sentenced to 12 months’ imprisonment
F F
suspended for 24 months on 16 April 2021 for organising and also taking
G part in an unauthorised assembly in DCCC 536/2020. He then pleaded G
guilty to incitement to knowingly take part in an unauthorised assembly
H H
and organising it. He was sentenced to a total of 18 months’ imprisonment
I in DCCC 534/2020 on 28 May 2021. I
J J
The 5th defendant
K 58. The 5th defendant is 32 years old. He is not a man with a clear K
record. He has 9 previous convictions that in the main, relate to Public
L L
Order offences. None of his previous convictions were offences motivated
M by greed, anger, corruption or dishonesty. His last conviction before this M
offence was on 24 April 2019, incitement to incite public nuisance and he
N N
was sentenced to a total of 8 months’ imprisonment for 2 charges. He was
O only released from that term of imprisonment on 3 October 2019; 18 days O
for the commission of this offence.
P P
Q 59. He did not want to put forward any mitigation in relation to Q
his background, career or personal life. It is a known fact that he was a
R R
social activist and former Chairman of the League of Social Democrats.
S However, he did read out a letter in mitigation entitled “Lest we forget the S
5 demands; civil disobedience is morally justified”. His letter is marked
T T
MFI-6 and has a translation.
U U
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B B
C 60. I don’t intend to repeat its contents but he explained his C
actions and motive. He is not ashamed of his actions nor remorseful. He
D D
continues to believe in civil disobedience.
E E
The 6th defendant
F F
61. The 6th defendant acted in person when it came to mitigation.
G I have also considered his previous mitigation, submissions from his then G
Counsel and his biography submitted in DCCC 537/2020 and DCCC
H H
534/2020. His biography is also submitted again here as MFI-7 and filed
I in MFI-4. I
J J
62. He too explained why he committed the same offence in this
K case and in those 2 other earlier cases in 2019. He went back in time to K
explain how he saw Hong Kong change after the handover in 1997. He had
L L
assisted in drafting the Basic Law prior to the handover. He explained why
M he has lost his confidence in the Hong Kong Government and lamented the M
loss of freedom of press and assembly.
N N
O 63. He reiterated how much he loved Hong Kong but would keep O
fighting for what he believed. He wanted the “One Country, Two Systems”
P P
constitutional principle to work. He did not believe in violence and only
Q advocated peaceful social movement. He committed the offence of Q
organising this unauthorised procession as an act of civil disobedience.
R R
S 64. The 6th defendant was sentenced to 8 months’ imprisonment S
suspended for 12 months for knowingly taking part in an unauthorised
T T
assembly in DCCC 537/2020 on 16 April 2021. He then pleaded guilty to
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B B
organising an unauthorised assembly and was sentenced to a total of 14
C months’ imprisonment in DCCC 534/2020 on 28 May 2021. C
D D
The 7th defendant
E 65. Mr. Paul Harris SC has said all he can say on behalf of the 7th E
defendant as he did in DCCC 534/2020 when the 7th defendant pleaded
F F
guilty to organising an unauthorised assembly on 1 October 2019 and was
G sentenced to 14 months’ imprisonment. I have taken into account written G
mitigation from that past case as well as what Mr Harris has added to or
H H
reiterated in mitigation for this present case.
I I
66. In particular, I have read about his change in career path to
J J
follow his conscience to help the disadvantaged sector in Hong Kong. He
K is not a man with a clear record; he has 6 previous convictions but like D5, K
they relate mainly to Public Order offences and he was not motivated by
L L
greed, dishonest or corruption.
M M
67. I have read the previous letters written by family, friends and
N N
those who have known him through or benefited from his support and
O commitment to the underprivileged in Hong Kong. O
P P
68. I have an up-to-date medical report relating to the 7th
Q defendant’s 96-year-old great grand aunt who before sentencing DCCC Q
534/2020 had moved in with and was under the care of the 7th defendant.
R R
Her mental state appears to have deteriorated since May 2021 as has her
S gait and she is now confined to a wheelchair. Her health is deteriorating S
and the doctor opined that his remand since May 2021 “has created a great
T T
negative impact on the quality of life of this old lady”.
U U
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B B
C 69. I have been urged to take her into account especially as he, the C
th
7 defendant is the only family and support she has in Hong Kong. I also
D D
have an up-to-date letter from the 7th defendant’s brother. He confirms that
E their great grand aunt has become more anxious and is unsettled due to the E
7th defendant’s absence.
F F
G 70. In mitigation, I have been urged to consider the fact that this G
unauthorised assembly on 20 October 2019 was smaller in number than
H H
those in DCCC 534/2020 and DCCC 536/2020. The 7th defendant’s role as
I an organiser was limited; he did participate as a member of the banner party I
but did not chant slogans during the procession. He did not talk to the press
J J
or actively encourage participants to join them. I am urged to consider a
K suspended sentence in this case. Alternatively, if an immediate custodial K
sentence is imposed then consider a concurrent sentence.
L L
M Principles of sentencing M
N N
71. Public order offences have been established as an exception
O to the general principle that a deterrent sentence should not be passed on a O
person with a clear record and I have referred myself to page 13 of R v
P P
Nguyen Quang Thong & Ors. [1992] 2 HKCLR 10. At the time of these
Q offences all but the 2nd, 5th and 7th defendants had clear records. Q
R R
72. I adopt my principles of and reasons for sentencing from
S DCCC 536/2020, DCCC 537/2020 and DCCC 534/2020. Although I may S
be repeating what I said in the previous 3 connected cases, it is necessary
T T
as not all defendants in this case were involved in the others. I found there
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B B
was a need in those cases for a deterrent and punitive approach in
C sentencing and that an immediate term of imprisonment was the only C
appropriate sentencing option.
D D
E 73. I took into account HKSAR v Chow Ting HCMA 374/2020 E
where Barnes J, in that bail application, agreed the magistrate in sentencing
F F
the applicant to a term of imprisonment for the offence of incitement to
G knowingly take part in an unauthorised assembly and knowingly taking G
part in an unauthorised assembly could draw on sentencing factors set out
H H
in the Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 699
I notwithstanding they were for offences of unlawful assembly. I
J J
74. Wong Chi Fung was an application for review for offences
K relating to unlawful assemblies. The Court of Appeal held that the use or K
threat to use violence was an aggravating factor and the sentence must
L L
provide for both punishment and deterrence. Deterrence is necessary to
M maintain public order. Sentencing principles for unlawful assemblies M
involving violence were set out in paragraph 108 of that authority by Poon
N N
JA, as he then was.
O O
75. Poon JA identified the inherent risk of large gatherings when
P P
he says that from experience, when large numbers of demonstrators gather
Q together, emotions will run high and the crowd may become agitated so Q
that these situations have the inherent risk of breaking out into
R R
violence. There will be those who seek to instigate violence from volatile
S situations, therein lies the risk that cannot be ignored. S
T T
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B B
76. The Court of Appeal in the later judgement of Secretary for
C Justice v Chung Ka Ho [2020] HKCA 990 found the sentencing factors in C
Wong Chi Fung not only applicable to unlawful assembly involving
D D
violence. In paragraph 54 it is made clear that it is unreasonable to divide
E unlawful assemblies by violent ones and non-violent ones for the purposes E
of sentencing. Even if there is no actual violence, the court should take
F F
into consideration the threat and imminent risk of violence.
G G
77. The Court of Appeal said at paragraph 56 (quoted from the
H H
English translation),
I I
“In conclusion, it is unfounded to claim that the judgement in Wong
J J
Chi Fung is applicable only to unlawful assembly involving
violence. It is never the judgement in Wong Chi Fung that sentences
K K
with relatively more punitive and deterrent effect should not be
L imposed if no actual violent act is involved. It all depends on the L
actual circumstances of the case concerned”
M M
78. The actual circumstances of this case involves an
N N
unauthorised assembly but it does not mean I cannot take into account
O O
Wong Chi Fung and the inherent and expected risk which materialized as
P
was expected by the defendants. P
Q Q
79. As far as the incitement charge is concerned, I have taken into
R account the recent authority of Secretary for Justice v Poon Yung Wai R
(2021) HKCA 510. The Court of Appeal found on those facts that an
S S
incitement to unlawful assembly involving violence called for a severe and
T deterrent immediate custodial sentence. Here, there was incitement to take T
part in an unauthorised assembly with peace advocated but I have taken on
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A A
B B
board the discussion in that authority and drawn from it; the gravamen of
C this offence can, depending on certain factors, attract a punitive and C
deterrent sentence.
D D
E 80. Since preserving public order is important and deterrence a E
consideration, I have taken into account the prevailing circumstances at the
F F
time some defendants incited others to take part in and all but the 4 th
G defendant organised that unauthorised assembly. The context in which a G
crime is committed is of relevance to assessing its gravity and the
H H
culpability of offenders.
I I
81. The social unrest from June 2019 had escalated and became
J J
relentless, increasingly violent and disturbing. There was social unrest,
K protesting and violent eruptions almost every day by and during the months K
of September and October 2019. Some were riots or violent unlawful
L L
assemblies of a large-scale and of lengthy durations. All sentencing
M principles applied to determine an appropriate sentence should take into M
account the prevailing tumultuous situation in Hong Kong at that time.
N N
O 82. In mitigation I was referred to Director of Public Prosecutions O
v Ziegler (2021) 3 WLR 179 as being applicable to sentencing; I should
P P
consider the proportionality of the sentence in the context of whether such
Q sentence was necessary. Q
R R
83. As summarised by Pang JA in HKSAR v Au Nok Hin CACC
S 84/2021 in his reasons for refusing bail pending appeal from a sentence S
imposed by myself in DCCC 536/2020, I quote paragraph 13,
T T
U U
V V
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A A
B “In broad terms, what Ziegler requires in a case of this kind is for B
the court to recognise that, notwithstanding his law breaking, a
C C
defendant’s right to freedom of expression and right to freedom of
D assembly were engaged, and that his conviction and sentence are D
in themselves an interference with those rights. …”
E E
84. It has been submitted I should according to that authority take
F F
into account certain factors identified in paragraphs 71-78 as relevant to
G the assessment of proportionality, for example, the duration of the protest, G
whether the obstruction was targeted at the object of the protest, the
H H
importance of the precise location to the protesters and the extent of the
I I
actual interference on the rights of others.
J J
85. If Ziegler is applicable to sentencing, on the facts and the
K K
evidence before me, in my view, a deterrent sentence involving a term of
L imprisonment here would still be proportionate. The insignificance of the L
actual procession route to the protesters, the long duration, obstruction and
M M
reprehensible conduct including the extent of actual interference with the
N rights of others and property belonging to others serves to prove this N
unauthorised assembly was very serious.
O O
P Reasons for sentence P
Q Q
86. As I have said before, the Basic Law and the Bill of Rights
R guarantees freedom of assembly, procession and demonstration for Hong R
Kong residents. However, these rights are not absolute and are subject to
S S
restrictions ruled constitutional. Here, restrictions were applied in the
T interests of public safety, public order, and the protection of others’ rights T
and freedoms.
U U
V V
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A A
B B
C 87. I reiterate again, many other jurisdictions in the world have C
the same or very similar requirements. These freedoms are enjoyed subject
D D
to those restrictions and irrespective of a person’s politics. The common
E purpose of the procession on 20 October 2019 as well as the politics, beliefs, E
stance and opinions of any of the defendants are irrelevant to sentencing.
F F
G 88. In relation to charge 1, I have taken into account what each of G
the 1st to 4th defendants said in the press conference to incite members of
H H
the public to join them in defying the Police ban and flouting the law.
I I
89. In addition, the 1st and 2nd defendants published posts on their
J J
Facebook pages making the same appeal. They appealed to the public to
K not only join their procession but to jam pack Yau Ma Tei, Tsim Sha Tsui K
and Mong Kok; areas outside of the proposed route. There was no concern
L L
for causing the most serious and indiscriminate obstruction in one of the
M busiest areas of Hong Kong. M
N N
90. The call was for an unauthorised assembly in the name of civil
O disobedience and in the name of a number of causes ranging from O
disbanding the Police, making 5 demands of the Government and defying
P P
the facemask law.
Q Q
91. During the press conference outside the Court of Final Appeal
R R
th
the 4 defendant did call for peaceful procession. He also at the same time
S said that there would be violence by certain people he called “valiant S
protesters”. He said he hoped that those valiant protesters and peaceful
T T
U U
V V
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A A
B B
protesters could join forces together to continue the civil disobedience
C movement. C
D D
92. That is an acknowledgement that there would be trouble
E erupting in and around the procession the following day. In reality, by the E
end of October 2019 how could anyone have not seen the risk materializing.
F F
The latent risk I have previously considered relevant to sentencing in the
G other related cases was in this case essentially a certainty. G
H H
93. During the press conference there may have been an emphasis
I on maintaining peace in numbers despite or in spite of the presence of I
violent protesters but in my view, in such volatile times this was essentially
J J
paying lip service to the expression. They deliberately turned a blind eye
K to public order being jeopardised. K
L L
94. In mitigation it has been submitted that the defendants
M intended the procession to be peaceful and should not be held accountable M
for anything unlawful or illegal that happened out of sight or after they
N N
arrived at the final destination and declared the procession over.
O O
95. Those submissions carry little weight when one considers the
P P
tumultuous months and open acknowledgments during the press
Q conferences. Q
R R
96. The submission that the defendants as organisers cannot be
S blamed for the violence or other punishable acts on and around the route S
of the procession when they openly acknowledge that it was going to
T T
U U
V V
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A A
B B
happen and take place carries little weight. No defendant took any
C measures to avoid it erupting. C
D D
97. Not only was there acknowledgement of the violence to come
E on the 19th October 2019 but also on the day of the unauthorised assembly. E
The 1st defendant said from the outset he knew some friends would “take
F F
other actions” and hoped everyone would be safe. Clearly he meant actions
G that were other than peaceful and non-violent. What other explanation G
could there be for that comment.
H H
I 98. When the banner group arrived at the junction of Canton Road I
and Austin Road, more speeches were made before the defendants
J J
dispersed. Reference was made to “comrades” who could be seen behind
K the banner group still building blockades that blocked off roads causing K
huge obstruction to traffic.
L L
M 99. The 1st defendant at the end of the procession thanked his M
“comrades” for blocking roads so they could march and avoid vehicles. He
N N
asked the participants to thank the “comrades” for doing “something that
O they may not dare or were not willing to do and for protecting the peaceful, O
rational, and non-violent crowd”. He even had the participants clap to
P P
support the “comrades”.
Q Q
100. When I consider the obstruction affecting so many, the
R R
violence and destruction captured on film in and around the route of the
S procession that took place during and long after the banner party declared S
the procession at an end, I find it unnecessary to define what violent acts
T T
or breaches of the peace can be attributed to participants of the procession.
U U
V V
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A A
B B
I find it can be so attributed and the defendants as organisers are not
C blameless. C
D D
101. It was inevitable that when the procession spilled over the
E proposed route and covered the streets of Salisbury Road, Canton Road, E
Kowloon Park Drive, Nathan Road and Austin Road which essentially
F F
surround Kowloon Park and were jam packed full of protesters, the
G protesters spread further up Nathan Road towards Mong Kok Police G
Station with specific shops and banks on the way targeted for vandalism
H H
by some.
I I
102. In the Amended Summary of Facts, it was agreed that several
J MTR stations in the area were vandalised that day. The repair cost to Tsim J
Sha Tsui and East Tsim Sha Tsui stations was approximately
K K
HK$350,000.00. Damage and loss to 3 Best Mart 360 shops on Nathan
L Road and Chatham Road South cost $1,776,968.00. The cost to repair the L
damage to 4 branches of Bank of China totaled $5,057,862.00. The forced
M M
cancellation of activities to be held in the Hong Kong Cultural Centre that
N N
day meant a loss of revenue of $113,253.00. The total cost here is
O
$7,298,083.00. The cost of damage to Government property has not been O
included.
P P
Q 103. These charges do involve an unauthorised assembly but it Q
does not mean I cannot take into account the criminal and violent acts
R R
committed by those who were with the unauthorised assembly and
S procession. The evidence shows that the line between peaceful assembly S
and conduct which disrupts public order was crossed.
T T
U U
V V
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A A
B B
104. After a careful consideration of the above principles, factors
C and relevant evidence directly related to this unauthorised assembly as well C
as submissions in mitigation, an immediate term of imprisonment is the
D D
only appropriate sentencing option.
E E
105. The motive put forward by the defence, that they committed
F F
the offences as acts of civil disobedience to justify their breaches of the law
G does not carry significant weight. This concept is recognised in the Courts G
of Hong Kong. However, to conform to civil disobedience, the facts must
H H
show the acts were peaceful and non-violent.
I I
106. Despite the submissions that the defendants’ beliefs were
J J
genuine and they held conscientious objections, when I consider the facts
K of the offences, their consequences as well as the need for deterrence, the K
weight I would attach to their motive is not significant. Moreover, the act
L L
of civil disobedience here was not expressly directed towards section 17A
M of the Public Order Ordinance as an unjust law but was committed in the M
course of protesting against the Government and the Police over several
N N
issues.
O O
Starting point – Charge 1
P P
Q 107. After careful consideration of the above principles, factors Q
and relevant evidence directly related to this unauthorised assembly during
R R
that tumultuous period as well as submissions in mitigation, I repeat, an
S immediate term of imprisonment is the only appropriate sentencing option. S
T T
U U
V V
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A A
B B
108. To arrive at an appropriate starting point for Charge 1, inciting
C others to knowingly take part in an unauthorised assembly, I have taken C
into account several factors. A premeditated press conference was
D D
organised by the 1st to 4th defendants outside the Court of Final Appeal to
E ensure maximum publicity in front of many media outlets. Then, the 1st and E
2nd defendants amplified the incitement in their Facebook posts.
F F
G 109. I have taken into account what each defendant said during the G
press conference. They made it clear they wanted large numbers to come
H H
out. What they proposed as a procession meant they knew the whole Tsim
I Sha Tsui area would be jam packed and paralysed. They acknowledged I
there would be others there who would be non-peaceful; trouble makers
J J
intent on violence.
K K
110. The 1st, 2nd and 3rd defendants went on to organise that
L L
unauthorised assembly the following day. The 4th defendant was not
M present. The culpability of these defendants is higher than the other M
defendants who jointly organised it.
N N
O 111. After all relevant factors are taken into consideration, in my O
judgement, a starting point of 24 months’ imprisonment is appropriate.
P P
Q Starting point - Charge 3 Q
R R
th th
112. I find the other defendants, that is the 5 to 7 defendants
S equally culpable in organising this unauthorised assembly. It is true that S
within this banner group leading the procession some chanted slogans,
T T
U U
V V
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A A
B B
some wore masks and some only replied to chants but I do not differentiate
C their roles for the purpose of sentencing. C
D D
113. After all relevant factors are taken into consideration, in my
E judgement, a starting point of 24 months’ imprisonment is appropriate for E
the 1st to 3rd defendants.
F F
G 114. A starting point of 18 months’ imprisonment is appropriate G
for the 5th to 7th defendants.
H H
I Discount after plea I
J J
115. All defendants indicated their pleas at most, a few weeks
K before this trial was due to commence. Certainly, long after sentences K
imposed in DCCC 536/2020, DCCC 537/2020 and DCCC 534/2020. I
L L
have taken into account the authority of HKSAR v Ngo Van Nam [2016] 5
M HKLRD 1. According to that authority, subject to the overriding discretion M
of the judge in sentencing, a defendant who gives the Court or the
N N
prosecution an indication of a plea of not guilty at the plea date, after which
O trial dates are fixed, who then indicates before the first day of trial that he O
or she wishes to plead guilty, is to be afforded a discount between 25 and
P P
20% of that taken as the starting point for sentence. Here, I apply a discount
Q of between 25 and 22% to the starting points. Q
R R
116. Accordingly, I reduce the starting point of 24 months for the
S 1st to 4th defendants facing Charge 1 to 18 months’ imprisonment. S
T T
U U
V V
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A A
B B
117. I reduce the starting point of 24 months for the 1 st to 3rd
C defendants facing Charge 3 to 18 months’ imprisonment. C
D D
118. I reduce the starting point of 18 months for the 5 th to 7th
E defendants facing Charge 3 to 14 months’ imprisonment. E
F F
The totality principle/concurrent and consecutive sentencing
G G
119. The importance of the totality principle is to ensure fairness
H H
to any defendant. Courts must achieve a just and balanced sentence that
I will not punish a defendant twice for the same or similar conduct and crush I
him. I have to consider the overall criminality and culpability of each
J J
individual defendant to come to a fair sentence.
K K
120. Often, to achieve a fair and balanced sentence, the court can
L L
consider concurrent and consecutive sentences. If a person is convicted of
M more than one offence committed on different days or not arising out of a M
single transaction or the same set of facts, then the sentence ought in
N N
principle to run consecutively to the sentences on each of the other offences
O but subject to an assessment of the appropriate totality. To achieve that, O
sentences can be imposed but are served in whole or in part concurrently
P P
rather than consecutively. This avoids excessive punishment yet still
Q reflects multiple offences, overall criminality and culpability. Q
R R
121. Here, although there were 4 separate hearings for similar
S offences committed on 6 separate dates between 18 August and 20 October S
2019, many of the defendants were involved in more than one hearing. If
T T
they had all been heard together or closer together then I would have
U U
V V
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A A
B B
ensured proportionality of punishment in what would be a multi-charge
C case. As it is, sentence dates range between 16 April and today, 1 C
September 2021.
D D
E 122. The decision to set down 4 hearings was correct for many E
reasons but it is a shame that at least some of the defendants did not indicate
F F
their decisions to plead to the third and fourth trials after the conclusion of
G the first trial to bring their pleas up earlier because it means that over 4 G
months has passed since I imposed the sentences of the first and second
H H
trials that affects three of the defendants here. 3 months has passed since I
I imposed the sentences for the third that affects six of the defendants here. I
J J
123. I certainly did not nor could have sentenced in DCCC
K 536/2020, DCCC 537/2020 and DCCC 534/2020 on the basis that in the K
future related hearings I may again convict some of those defendants
L L
involved either after trial or on a plea. I could not take those other charges
M to be dealt with in the future into account. M
N N
124. Nevertheless, and despite it being somewhat difficult to
O calculate, the objective to ensure an appropriate proportionality between O
all the multiple offences committed over the summer of 2019 and the
P P
sentences imposed is very much alive.
Q Q
125. Where relevant to each defendant here, I will take into account
R R
what sentences I imposed, when and whether any were part consecutive or
S concurrent. I will also take into account the time already served in those 3 S
earlier sentences as they affect each defendant. I obviously take into
T T
account the mitigation of each individual defendant. Equally I take into
U U
V V
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A A
B B
account the charges they faced and face here in the 4 cases, for example,
C this is the 1st offence of inciting an unauthorised assembly for the 3rd C
nd
defendant but the 2 offence of inciting an unauthorised assembly for the
D D
1st, 2nd and 4th defendants on divers dates.
E E
126. If I had dealt with the sentences for the multiple offence dates
F F
together or close together, I am sure I would have considered it appropriate
G to make partly consecutive sentences to reflect multiplicity and culpability. G
I aim to achieve that in this sentencing exercise without being oppressive
H H
or unfair.
I I
Conclusion
J J
K The 1st defendant K
127. I sentence the 1st defendant to 18 months’ imprisonment for
L L
Charges 1 and 3. I find these appropriate sentences but I will reduce these
M sentences by 2 months, to 16 months to reflect and take into account time M
served already in DCCC 534/2020.
N N
O 128. Therefore, the 1st defendant is sentenced to 16 months’ O
imprisonment for Charges 1 and 3 to be served concurrently; a total of 16
P P
months’ imprisonment.
Q Q
129. I order this term of imprisonment to run concurrently to the
R R
term of imprisonment imposed in DCCC 534/2020.
S S
T T
U U
V V
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A A
B B
The 2nd defendant
C 130. I sentence the 2nd defendant to 18 months’ imprisonment for C
Charges 1 and 3. I find these appropriate sentences but I will reduce these
D D
sentences by 2 months, to 16 months to reflect and take into account time
E served already in DCCC536 and 534/2020. E
F F
131. Therefore, the 2nd defendant is sentenced to 16 months’
G imprisonment for Charges 1 and 3 to be served concurrently; a total of 16 G
months’ imprisonment.
H H
I 132. I order this term of imprisonment to run concurrently to the I
term of imprisonment imposed in DCCC 536/2020 and DCCC 534/2020.
J J
K The 3rd defendant K
133. I sentence the 3rd defendant to 18 months’ imprisonment for
L L
Charges 1 and 3. I find these appropriate sentences but I will reduce these
M sentences by 4 months, to 14 months to reflect and take into account time M
served already in DCCC 536/2020 and DCCC 534/2020.
N N
O 134. Therefore, the 3rd defendant is sentenced to 14 months’ O
imprisonment for Charges 1 and 3 to be served concurrently; a total of 14
P P
months’ imprisonment.
Q Q
135. I order this term of imprisonment to run concurrently to the
R R
term of imprisonment imposed in DCCC 536/2020 and DCCC 534/2020.
S S
T T
U U
V V
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A A
B B
The 4th defendant
C 136. I sentence the 4th defendant to 18 months’ imprisonment for C
Charge 1. I find this an appropriate sentence but I will reduce this sentence
D D
by 2 months, to 16 months to reflect and take into account time served
E already in DCCC 534/2020. E
F F
137. Therefore, the 4th defendant is sentenced to 16 months’
G imprisonment for Charge 1. I order this term of imprisonment to run G
concurrently to the term of imprisonment imposed in DCCC 534/2020.
H H
I The 5th defendant I
138. I sentence the 5th defendant to 14 months’ imprisonment for
J J
Charge 3.
K K
The 6th defendant
L L
139. I sentence the 6th defendant to 14 months’ imprisonment for
M Charge 3 but I will reduce this sentence by 3 months, to 11 months to M
reflect and take into account time served already in DCCC 534/2020.
N N
O 140. Therefore, the 6th defendant is sentenced to 11 months’ O
imprisonment for Charge 3. I order this term of imprisonment to run
P P
concurrently to the term of imprisonment imposed in DCCC 534/2020.
Q Q
The 7th defendant
R R
141. I sentence the 7 defendant to 14 months’ imprisonment for
th
S Charge 3 but I will reduce this sentence by 2 months, to 12 months to S
reflect and take into account time served already in DCCC 534/2020.
T T
U U
V V
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A A
B B
142. Therefore, the 7th defendant is sentenced to 12 months’
C imprisonment for Charge 3. I order this term of imprisonment to run C
concurrently to the term of imprisonment imposed in DCCC 534/2020.
D D
E E
F F
G G
H H
(A J Woodcock)
I I
District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V