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DCCC 857-875, 877-884, 886-889, 891 & 893/2020 (Consolidated)
C [2021] HKDC 1160 C
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IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NOS 857-875,877-884, 886-889, 891 & 893 OF 2020
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HKSAR
H H
v
I HO CHUN YAN (D2) I
CHAN HO WUN (D5)
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WAN SIU KIN ANDREW (D6)
K CHEUNG MAN KWONG (D8) K
KWOK WING KIN (D9)
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CHIU YAN LOY (D11)
M MAK HOI WAH (D12) M
LEUNG KWOK WAH (D14)
N N
HO SAU LAN CYD (D15)
O LEUNG KWOK HUNG (D16) O
CHU HOI DICK EDDIE (D18)
P P
YEUNG SUM (D20)
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Before: Her Honour Judge Amanda J Woodcock in Court
S Date: 15 September 2021 S
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Present: Mr William SIU, Senior Assistant Director of Public
C Prosecutions (Ag) and Mr Edward Lau, Public Prosecutor, for C
HKSAR/Director of Public Prosecutions
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E The 2nd and 20th defendants appeared in person E
Mr Anson Wong Yu Yat, instructed by Chan & Chan,
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assigned by the Director of Legal Aid, for the 5th and 16th
G defendants G
Ms Yasmine Zahir, instructed by Ho Tse Wai & Partners, for
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the 6th and 12th defendants
I Mr Ma Hon Cheung Andrew, instructed by Ho Tse Wai & I
Partners, for the 8th defendant
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Mr Schweitzer Wong, instructed by Ho Tse Wai & Partners,
K for the 9th, 11th and 14th defendants K
Mr Chris Ng, instructed by JCC Cheung & Co, for the 15 th
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defendant
M Miss Kristine Chan of Ho Tse Wai & Partners, for the 18 th M
defendant
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Offences: [1] Incitement to knowingly take part in an unauthorized
O assembly（煽惑他人明知而參與未經批准集結） - D1-D13 O
P
[3] Knowingly taking part in an unauthorized assembly（明 P
知而參與未經批准集結） - D1-D3, D5-D20
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REASONS FOR SENTENCE
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1. There were 37 cases arising from the same incident of which
C 4 were dealt with earlier and the remaining 33 were consolidated. In this C
consolidated case, there are 20 defendants. 8 defendants have pleaded not
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guilty and a trial has been set down for 10 days in November 2021.
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2. The remaining 12 defendants pleaded guilty to their
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respective charges before me and agreed the Amended Summary of Facts.
G I heard mitigation on behalf of the 12 defendants on 9 September 2021 and G
adjourned sentence to today.
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I 3. The 2nd, 5th, 6th, 8th, 9th, 11th and 12th defendants pleaded guilty I
to Charge 1, incitement to knowingly take part in an unauthorised assembly,
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contrary to Common Law and section 17A(3)(a) of the Public Order
K Ordinance, Cap 245 and punishable under section 101I of the Criminal K
Procedure Ordinance, Cap 221.
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M 4. On 4 June 2020 at Water Fountain Plaza, Victoria Park, M
Causeway Bay, in Hong Kong they together with other defendants
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unlawfully incited other persons unknown to, without lawful authority or
O reasonable excuse, knowingly take part in a public meeting which took O
place in contravention of section 7 of the Public Order Ordinance, which
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was an unauthorised assembly by virtue of section 17A(2)(a) of the same
Q Ordinance. Q
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nd th th th th th th th th th th th
5. The 2 , 5 , 6 , 8 , 9 , 11 , 12 , 14 , 15 , 16 , 18 and 20
S defendants pleaded guilty to Charge 3, knowingly taking part in an S
unauthorised assembly, contrary to section 17A(3)(a) of the Public Order
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Ordinance.
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C 6. On the same day, 4 June 2020, at Victoria Park, Causeway C
Bay, they together with the defendants named and others unknown, without
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lawful authority or reasonable excuse, knowingly took part in a public
E meeting which took place in contravention of section 7 of the Public Order E
Ordinance, which was an unauthorised assembly by virtue of section
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17A(2)(a) of the same Ordinance.
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7. The 4 defendants sentenced earlier by HHJ Stanley Chan
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pleaded guilty to a charge arising from the same incident in a consolidated
I case, DCCC 876, 885, 890 & 892/2020. Wong Chi Fung, Lester Shum, I
Tiffany Yuen Ka Wai and Rosalynne Jannelle Leung admitted they
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knowingly took part in that same unauthorised assembly. They were
K sentenced on 6 May 2021 to sentences ranging from between 4 to 10 K
months’ imprisonment.
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M The Facts M
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8. On 23 April 2020 Tsoi Yiu-Cheong Richard (the 3rd defendant)
O on behalf of the Hong Kong Alliance in Support of Patriotic Democratic O
Movements of China, “Hong Kong Alliance” submitted a notification to
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the Police applying to hold a public meeting in Victoria Park between 9am
Q and 10pm on 4 June 2020. Q
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9. The purpose of the public meeting was to “mourn the 31 st
S anniversary of the June 4th Incident” with an estimated number of S
participants between 50,000 and 100,000.
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10. The Police held a liaison meeting with the applicant’s
C representatives and several defendants. The organisers could not C
implement any social distancing measures. All they could do was tell
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participants to congregate in small groups.
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11. The Department of Health were consulted and advised against
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holding any mass gatherings at that time in view of the coronavirus
G pandemic. The Department of Health took into account the number of G
COVID-19 cases by the end of May 2020, the upsurge between March and
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early April 2020 as well as several local clusters mid May 2020 with no
I apparent primary source identifiable. The risk of major community I
outbreak existed at that time.
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K 12. In a memo to the Police stated 28 May 2020, the Department K
of Health set out its concerns and reasons for its recommendation. This
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included the risk that existed, the inability of participants at a public
M meeting to maintain social distancing measures and small groups as well M
as the difficulty in contact tracing and imposing disease control measures
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if there was any subsequent confirmed case of COVID-19 identified and
O linked to the mass gathering. O
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13. On 1 June 2020, the Commissioner of Police issued a notice
Q to Hong Kong Alliance as required prohibiting the holding of the proposed Q
public meeting in the interests of public order, public safety, and the
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protection of the rights and freedoms of others. Hong Kong Alliance did
S not appeal that decision nor apply to Judicial Review it. S
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14. On the same day, Lee Cheuk Yan (1st defendant) and the 2nd
C defendant on behalf of Hong Kong Alliance held a press conference at the C
Water Fountain Plaza at Victoria Park and declared that the public meeting
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on 4 June 2020 would proceed in spite of the decision to prohibit it. Lee
E accused the Police of using the pandemic as an excuse to suppress the E
public meeting.
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G 15. They said Hong Kong Alliance would still go to Victoria Park G
in groups of 8 to mourn the “June 4th Incident”. Candles would be
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distributed outside Victoria Park all afternoon. They appealed to the public
I to join them. Annex I of the Amended Summary of Facts contains the press I
conference footage and transcripts with translations.
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K 16. On 4 June 2020 the Police set up 9 loudspeakers near or inside K
Victoria Park to continuously broadcast public announcements. The
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messages included informing the public that the holding of a public
M meeting was prohibited and participants could be legally liable. They M
warned the public not to participate in any unauthorised assembly and that
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group gatherings were prohibited. It included a warning about the
O transmission of COVID-19 in the community. O
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17. The Leisure and Cultural Services Department, “LCSD” also
Q broadcasted announcements to declare the football pitches in Victoria Park Q
closed with entry prohibited and that groups of no more than 8 were
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allowed to gather in the park.
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Charge 1 – Incitement to knowingly take part in an unauthorised assembly
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18. The prosecution relied on video footage of media outlets
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broadcasting the event and press interviews by various defendants. MFI-1
E is a playlist of video footage relied on by the prosecution. It contains E
remarks to explain the relevance of individual footage. Examples of
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footage from several media outlets was played in open court before
G mitigation. G
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19. There is news footage of the 6th defendant’s afternoon press
I interview on 4 June 2020 where he criticises the LCSD for barricading I
Victoria Park to oppress members of the public who intended to attend the
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June 4th Vigil that night. His speech and the transcript with translations is
K set out in Annex II of the Amended Summary of Facts. K
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20. The 6th defendant was speaking to the press inside the
M Legislative Council Complex. He was speaking in his capacity as a Hong M
Kong Alliance’s Standing Committee member. He too accused the
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Government of using the pandemic as an excuse. He appealed to the public
O to fight to the end against suppression. O
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21. After about 5:30pm on 4 June 2020 there is footage of candles
Q and leaflets being handed out to members of the public by many defendants Q
near Victoria Park with appeals to the public to light their candles at 8pm
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and mourn for 1 minute at 8:09pm that night. Those that made this appeal
S includes the 2nd, 5th and 16th defendants. S
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22. Lee Cheuk Yan held a press interview at the Water Fountain
C Plaza at about 5:30pm where he said Hong Kong Alliance would light C
candles in Victoria Park at 6:30pm and enter Victoria Park to
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commemorate the 31st year of the “June 4th Candlelight Vigil”. He urged
E the Police to disappear that night. He appealed to the public to join them in E
Victoria Park because they had a right to light a candle inside the park.
F F
G 23. After that press interview, defendants including the 6 th, 11th, G
12th and 14th defendants distributed candles and leaflets between 5:41pm
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and 6:22pm at the entrance of Victoria Park near the junction of Great
I George Street and Gloucester Road. I
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24. At 6:25pm, Lee Cheuk Yan and the 2nd, 5th, 6th, 8th, 9th, 11th,
K and 12th defendants together with other defendants gathered together as a K
group at the Water Fountain Plaza. Lee Cheuk Yan gave a speech via a
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loudhailer and then invited all the defendants gathered together to light
M their candles at the same time. Each lit and held a candle facing the press. M
He is heard telling the public to join them in meeting in Victoria Park and
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to light candles even though the public meeting was prohibited. He also
O shouted various political slogans repeated by those defendants stood with O
him in support and encouragement.
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Q 25. Lee Cheuk Yan, the 1st defendant has pleaded not guilty to Q
Charges 1 and 3 as well as Charge 2. He alone faces Charge 2, holding an
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unauthorised assembly.
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Charge 3 – Knowingly taking part in an unauthorised assembly
C C
26. After Lee Cheuk Yan finished giving a speech, he led a group
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of around 100 people including the defendants stood together with him to
E walk with a lit candle from the Water Fountain Plaza into the football E
pitches of Victoria Park. The 15th defendant joined the group with the 16th
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and 18th defendants entering Victoria Park with others a few minutes later.
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27. At that time because of the COVID-19 pandemic the football
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pitches were closed and surrounded by mill barriers. Entrance was
I prohibited. When Lee Cheuk Yan and the 2nd, 5th, 6th, 8th, 9th, 11th, 12th, 14th I
to 16th defendants arrived near football pitches number 3 and 4, the 5 th
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defendant can be seen pulling away the mill barriers in order for the group
K and members of the public to follow him in to occupy the football pitches. K
He ignored a security guard who can be heard telling him the pitches were
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closed.
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28. Initially, about 400 people gathered at number 6 pitch with the
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numbers increasing with time to 20,000 by about 8pm. In the video footage
O from various media outlets one can see little social distancing. Those O
defendants I have referred to sat down on the ground on pitch number 6.
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th th
The 18 and 20 defendants entered the football pitch and sat down in
Q groups with others. All sat on the ground holding a candle. The 5th Q
defendant is heard shouting slogans which were repeated by others present.
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S 29. Lee Cheuk Yan, before 8pm, announced the start of the S
meeting at that time and shouted many slogans. He gave a speech relating
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to the June 4th Incident. He played a video relating to the “June 4th Incident”
C which also included footage of the social unrest in Hong Kong in 2019. C
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30. The 18th defendant gave white flowers to some of the
E defendants. There was some kind of wreath laying ceremony. A minute of E
silence was observed followed by more speeches and songs. The meeting
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was announced to be finished at 8:45pm after some of the defendants burnt
G some books to commemorate the date on the football pitch. G
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31. Chants unrelated to the June 4th Vigil were also heard such as
I “Fight for freedom”, “Stand with Hong Kong” and “5 demands not one I
less”. Later, certain words and phrases were found to have been posted or
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written on the ground and on some of the facilities inside Victoria Park. As
K large crowds gathered, the police had to implement road closure and traffic K
diversions around Victoria Park. The crowds obstructed the roads in the
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vicinity.
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32. The public meeting was captured on police as well as news
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media videos. Those videos, screen captures identifying the defendants as
O well as the transcripts of the speeches and slogans chanted are set out in O
Annexes III and IV of the Amended Summary of Facts.
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Q 33. Essentially, undeterred by a Police ban and in direct defiance Q
of law and order, thousands of people converged on Victoria Park and onto
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the football pitches. The unauthorised assembly caused traffic chaos all
S around Victoria Park. S
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34. Thousands of people gathered despite the risk of the pandemic.
C This was a breach of the Regulation gazetted on 19 May 2020 under the C
Prevention and Control of Disease (Prohibition on Group Gathering)
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Regulation where no group gathering of more than 8 people may take place
E in any public place during that period including 4 June 2020 unless E
exempted or permitted because of the emergency response level.
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G 35. That response level which was the highest, implied there was G
a serious threat to the health of the local population and a high and
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imminent risk of sustained community level outbreaks with severe and
I extensive human infections. I
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Mitigation
K K
36. I have heard mitigation in full and have either received written
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mitigation, biographies, statements and supporting authorities in bundles
M in advance or received letters of mitigation from defendants unrepresented. M
I do not intend to repeat the mitigation provided but all that can be said on
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behalf of the defendants has been conveyed and considered. Their best
O mitigation is their pleas of guilty. O
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37. It was submitted that by then the turbulent and tumultuous
Q social unrest of 2019 had receded. The obstruction and inconvenience to Q
the public around Victoria Park was limited to the streets in Causeway Bay
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area only and natural with any assembly. There was no violence or
S imminent risk of violence at any time. The unauthorised meeting lasted S
only a few hours and was relatively short.
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38. It was submitted that those who pleaded guilty to Charge 1
C were that evening only showing support, remained largely silent, held a C
candle but played a passive role in inciting others to knowingly take part.
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Those who pleaded guilty to Charge 3, knowingly taking part in an
E unauthorised assembly, were peaceful and passive whilst inside Victoria E
Park. They all wore face masks and no outbreak of COVID cases arose
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from this gathering.
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39. I was urged to and will consider personal mitigation, motive,
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backgrounds and previous significant public service. Where applicable, I
I was urged to consider clear records at the time of the offences. I
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Principles of Sentencing
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40. I considered the authority of Secretary for Justice v Wong Chi
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Fung (2018) 2 HKLRD 699 notwithstanding it referred to offences of
M unlawful assembly. The Court of Final Appeal went on to endorse the M
Court of Appeal’s sentencing principles and the list of factors relevant to a
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decision on the appropriate sentence for an unlawful assembly.
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41. Notwithstanding the offences here relate to an unauthorised
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assembly, I am sure I can draw on sentencing factors set out in Wong Chi
Q Fung. Deterrence can be necessary to maintain public order and public Q
safety.
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S 42. In that authority, the Court of Appeal identified the inherent S
risk of large gatherings becoming emotional and breaking out into violence.
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Even if there is no actual violence, the Court should take into consideration
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the threat of violence. It all depends on the actual circumstances of the case
C concerned but a punitive and deterrent sentence can be considered C
appropriate even if there is no actual violence. There may be equally as
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serious a risk to public order and public safety such as a public health risk;
E a different type of threat. E
F F
43. As far as the incitement charges concerned, I have taken into
G account the recent authority of Secretary for Justice v Poon Yung Wai G
(2021) HKCA 510. The Court of Appeal found on those facts that an
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incitement to unlawful assembly involving violence called for a severe
I deterrent immediate custodial sentence. Here there was incitement to take I
part in an unauthorised assembly to commemorate an event but I have
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taken on board the discussion in that authority and drawn from it; the
K gravamen of this offence can, depending on certain factors, attract a K
punitive and deterrent sentence.
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M 44. I consider the culpability of the offenders individually. The M
context in which a crime is committed is of relevance to assessing its
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gravity and that culpability. It can be relevant to whether a punitive and
O deterrent sentence is appropriate. Since preserving public order and public O
safety is important, I have taken into account the prevailing circumstances
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at the time some defendants incited others to take part in an unauthorised
Q assembly and all defendants knowingly took part in it. Q
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45. The social unrest and violence we saw in 2019 had
S significantly receded by June 2020 but not disappeared entirely. What we S
did see from the beginning of 2020 was a different threat to public order,
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public safety, and the protection of the rights and freedoms of others in the
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form of a pandemic. This is not an epidemic confined to the Mainland and
C Hong Kong but an indiscriminate pandemic that by June 2020 had spread C
across the world.
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E 46. Whether or not it contributed to the social unrest of 2019 E
receding somewhat, the pandemic itself presents a different threat and risk.
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It was this threat behind the decision of the Commissioner of Police.
G G
47. All sentencing principles applied to determine what is an
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appropriate sentence should take into account the facts of the charges and
I in this case, also the prevailing public health crisis in Hong Kong at that I
time.
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K 48. In mitigation for both the 5th and 16th defendants, Mr Wong K
referred me to Director of Public Prosecutions v Ziegler (2021) 3 WLR
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179. It was submitted that this decision is applicable to sentencing; I should
M consider the proportionality of the sentence in the context of whether such M
sentence was necessary.
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O 49. As summarised by Pang JA in HKSAR v Au Nok Hin CACC O
84/2021 in his reasons for refusing bail pending appeal from a sentence
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imposed by myself in DCCC 536/2020, I quote paragraph 13,
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“In broad terms, what Ziegler requires in a case of this kind
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is for the court to recognise that, notwithstanding his law
S breaking, a defendant’s right to freedom of expression and S
right to freedom of assembly were engaged, and that his
T conviction and sentence are in themselves an interference T
with those rights. …”
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C 50. It has been submitted I should, according to that authority, C
take into account certain factors identified in paragraphs 71-78 as relevant
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to the assessment of proportionality, for example, the duration of the
E protest, whether the obstruction was targeted at the object of the protest, E
the importance of the precise location to the protesters and the extent of the
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actual interference on the rights of others.
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51. In Ziegler the obstruction was targeted at the object of the
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protest whereas here, the location of Victoria Park was important to Hong
I Kong Alliance because by convention they had held their vigil there for I
many years. The location was more symbolic to Hong Kong Alliance rather
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than relevant to the object of the vigil however, I nevertheless take that
K submission into account. K
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52. The obstruction to roads and transport links are also relevant
M but in particular, the risk to public safety during a pandemic serves to prove M
this unauthorised assembly was very serious. These are factors I have taken
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into account and reflected in sentence.
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Reasons for Sentence
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Q 53. The Basic Law and the Bill of Rights does guarantee the Q
freedom of assembly, procession and demonstration for Hong Kong
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residents. However, these rights are not absolute and are subject to
S restrictions ruled constitutional. Here, restrictions can be applied in the S
interests of public safety, public order, and the protection of others rights
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and freedoms. A public health crisis must come under the umbrella of
C public safety as well as the need to protect the rights of others. C
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54. When considering an appropriate sentence, I do not consider
E the common purpose of the assembly nor the politics, beliefs, stance and E
opinions of any of the defendants. I am aware that yearly there is an event
F F
in Victoria Park to mark June 4th but under the circumstances the organisers
G had other alternative and creative options to consider such as an interactive G
online vigil.
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I 55. The social distancing measures adopted to combat this I
pandemic were not designed to surreptitiously prevent people gathering for
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a common purpose or as a tool of suppression as suggested but to
K specifically stop people gathering in groups to prevent the transmission of K
COVID-19.
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M 56. The sole reason for social distancing measures is to protect M
the public and whole community; restrictions applied in the interests of
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public safety, public order, and the protection of others rights and freedoms.
O So to defy and incite others to defy those restrictions under such O
circumstances is serious.
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Q 57. Therefore, I consider a deterrent and punitive sentence Q
appropriate. Thankfully no violence erupted within the crowds but the
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defendants exhibited a blatant disregard of another serious risk to the entire
S community. The defendants ignored and belittled a genuine public health S
crisis. They showed no concern for the safety and health of fellow Hong
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Kongers. They wrongly and arrogantly believed their common purpose
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was more important than protecting the community or the public’s right to
C protection from a serious health risk; an invisible risk. C
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58. Some or most of those charged with incitement are well-
E known public or political figures and their frontline role in this E
unauthorised assembly is an aggravating factor. They have a public profile
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and what they said and did was widely broadcast by media outlets.
G Moreover, they came together as a group for the press to reinforce each G
other and their message in order to be more visible to draw as many people
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as possible to Victoria Park.
I I
59. They were not to know whether the crowds they encouraged
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to participate in an unauthorised assembly would be peaceful and non-
K violent as well as diligently adhere to social distancing measures. On the K
day, the crowds did not adhere to such necessary measures. The fact that
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there did not appear to be an outbreak of either violence or COVID cases
M as a result of this assembly does not detract from their culpability. It was M
fortuitous.
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O 60. Accordingly, it is in this context and because of the prevailing O
circumstances at the time, I find an immediate custodial sentence
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appropriate.
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61. The defendants who incited others to congregate in large
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numbers and join them in an organised unauthorised assembly and on
S closed off football pitches created a public order and safety risk. They S
committed these offences despite the reasons given for the decision to
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prohibit the proposed meeting being completely credible and justifiable.
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C 62. In addition, in relation to Charge 1, I have taken into account C
the roles of the defendants as set out in the Amended Summary of Facts
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nd th th
and seen in the video footage. The 2 , 5 and 6 defendants, in my view,
E played a more active role when compared to the more passive roles of the E
others which would be appropriate to reflect in sentence.
F F
G G
63. I have taken into account mitigation put forward, submissions
H
made, the facts of the offences and the prevailing situation at the time H
behind the decision of the Commissioner of Police. I sentence the
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defendants as follows:-
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The 2nd defendant - Ho Chun Yan
K K
L 64. The 2nd defendant is presently serving a suspended sentence L
for organising and also taking part in an unauthorised assembly in DCCC
M M
536/2020 imposed on 16 April 2021. He was sentenced to 18 months’
N imprisonment in DCCC 534/2020 on 28 May 2021 for incitement to N
knowingly take part in an unauthorised assembly and organising it. He was
O O
also sentenced to 16 months’ imprisonment on 1 September 2021 in DCCC
P 535/2020 again for incitement to knowingly take part in an unauthorised P
assembly.
Q Q
R 65. At the time of this offence he had a clear record but he was on R
court bail for those 3 cases having been arrested in April 2020. The 2nd
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defendant represented himself in mitigation; his statement is MFI-3. I have
T previously considered his biography and made allowances for his age and T
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public service. I again take it all into consideration. On 4 June 2020, 2 nd
C defendant was the vice-chairman of the Hong Kong Alliance. C
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66. I find a starting point of 12 months’ imprisonment appropriate
E for Charge 1. However, I take into account the 2 nd defendant’s more active E
role and the fact he was on court bail at the time and increase that starting
F F
point by 3 months to 15 months’ imprisonment.
G G
67. I find a starting point of 6 months’ imprisonment appropriate
H H
for Charge 3 but for the same reasons, I increase this by 3 months to 9
I months’ imprisonment. I
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The 5th defendant – Chan Ho Wun
K K
68. The 5th defendant is now 25 years old and at the time of his
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offence had a clear record but like the 2 nd defendant, he too was on court
M bail for similar offences committed in 2019 having been arrested in April M
2020. I have heard mitigation in full in MFI-4.
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O 69. The 5th defendant is presently serving an 18-month term of O
imprisonment imposed on 28 May 2021 in DCCC 534/2020 after a plea to
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one count of incitement to knowingly take part in an unauthorised
Q assembly and one count of organising it. He pleaded to identical charges in Q
DCCC 535/2020 and was sentenced to 16 months’ imprisonment on 1
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September 2021 to run concurrently to that earlier sentence.
S S
70. I find a starting point of 12 months’ imprisonment appropriate
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for Charge 1. However, I take into account the 5 defendant’s more active
th
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role and the fact he was on court bail at the time and increase that starting
C point by 3 months to 15 months’ imprisonment. C
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71. I find a starting point of 6 months’ imprisonment appropriate
E for Charge 3 but for the same reasons, I increase this by 3 months to 9 E
months’ imprisonment.
F F
G The 6th defendant - Wan Siu Kin Andrew G
H H
72. The 6th defendant is 52 years old, married with 2 teenage
I children. He is the breadwinner of his family. At the time of the offences I
he had a clear record. He was a social worker until he became a District
J J
and then a Legislative Councillor. He served in those roles for a total of 17
K years. K
L L
73. I have a biography which lists his political career and public
M service to the community. I have heard full mitigation, MFI-5 and seen M
many mitigation letters which stress his dedication in helping the
N N
underprivileged and vulnerable in this society; from former government
O officials, colleagues, the clergy, peers and groups who have benefited from O
his help in the past.
P P
Q 74. The 6th defendant was on court bail at the time of these Q
offences for obstructing an officer of the Legislative Council in the
R R
execution of his duty in June 2018. I repeat, he was also at the time of these
S offences a Standing Committee member of the Hong Kong Alliance. S
T T
U U
V V
- 21 -
A A
B B
75. I find a starting point of 12 months’ imprisonment appropriate
C for Charge 1. However, I take into account the 6th defendant’s role and the C
fact he was on court bail at the time and increase that starting point by 3
D D
months to 15 months’ imprisonment.
E E
76. I find a starting point of 6 months’ imprisonment appropriate
F F
for Charge 3 but for the same reasons, I increase this by 3 months to 9
G months’ imprisonment. G
H H
The 8th defendant - Cheung Man Kwong
I I
77. I have a received a biography, mitigation as well as many
J J
letters from his wife, his former assistant when he was a Legislator,
K colleagues and friends. He is 66 years old, now a retired teacher and K
married with one daughter. He has years of public service as a Legislative
L L
Councillor, member of the Education Commission and past president of
M the now disbanded Hong Kong Professional Teachers Union. M
N N
78. I have been urged to consider his passive role in the events of
O that evening. He is a man with a clear record. He has spent his life devoted O
to political reform and education in Mainland and Hong Kong. In his many
P P
years as a Legislator he displayed utter dedication; he attended 99% of the
Q 772 Council meetings held in his 20-year tenure. Q
R R
79. Written mitigation highlights his achievements in the
S education sector. In recognition of his service and contributions to S
education for 3 decades, he has been bestowed honorary degrees of
T T
fellowship from both the Chinese University of Hong Kong and the
U U
V V
- 22 -
A A
B B
Education University of Hong Kong. At the time of the offence, he was a
C Standing Committee member of the Hong Kong Alliance. His mitigation C
is set out in MFI-6.
D D
E 80. I find a starting point of 12 months’ imprisonment appropriate E
for Charge 1 and a starting point of 6 months’ imprisonment appropriate
F F
for Charge 3.
G G
The 9th defendant - Kwok Wing Kin
H H
I 81. The 9th defendant is now 34 years old, married with a 5-year- I
old child. He is the breadwinner of his family and now working in the
J J
private sector. At the time of these offences he had a clear record.
K K
82. He was for many years working in community service until
L L
recently. He was an assistant to a Legislator for 8 years before serving on
M the Tai Po District Council and then becoming a Councillor himself. I have M
heard full mitigation as well as have his biography, MFI-7.
N N
O 83. I also have many mitigation letters from social workers, O
community groups who have benefited from his support and work, and
P P
peers. They highlight his work for, in particular, the elderly and disabled.
Q Q
84. I find a starting point of 12 months’ imprisonment appropriate
R R
for Charge 1 and a starting point of 6 months’ imprisonment appropriate
S for Charge 3. S
T T
U U
V V
- 23 -
A A
B B
The 11th defendant - Chiu Yan Loy
C C
th
85. The 11 defendant is 36 years old and single. He has a clear
D D
record. He is a university graduate who left the private sector to join the 1 st
E defendant, Lee Cheuk Yan’s office as a Community Officer in 2012. He E
then later himself became a District Councillor until this year. He too was
F F
a Standing Committee member of the Hong Kong Alliance at the time.
G G
86. His desire to better the community is genuine. He works hard
H H
for the community. I have received many mitigation letters written from
I his previous school principal, employer, colleagues and peers. I have heard I
full mitigation put forward on his behalf, MFI-7.
J J
K 87. I find a starting point of 12 months’ imprisonment appropriate K
for Charge 1 and a starting point of 6 months’ imprisonment appropriate
L L
for Charge 3.
M M
The 12th defendant - Mak Hoi Wah
N N
O 88. The 12th defendant is 70-year-old married and has a clear O
record. He is retired and now spends time with his children and
P P
grandchildren. Prior to retirement he was an academic, social worker and
Q heavily involved in public service through many advisory committees, Q
tribunal’s and councils. He has worked tirelessly for the elderly, the
R R
disabled, racial minorities and discriminated groups in Hong Kong.
S S
89. I have heard full mitigation put forward on his behalf, MFI-5.
T T
I have read the many mitigating letters from family, clergy, past academic
U U
V V
- 24 -
A A
B B
colleagues and students, all who have known him a very long time and
C speak of his dedication to many causes. At the time of the offence he was C
a Standing Committee member of the Hong Kong Alliance.
D D
E 90. I find a starting point of 12 months’ imprisonment appropriate E
for Charge 1 and a starting point of 6 months’ imprisonment appropriate
F F
for Charge 3.
G G
The 14th defendant - Leung Kwok Wah
H H
I 91. The 14th defendant is 62 years old and lives with his wife and I
96-year-old mother. He worked for 24 years in a bank before turning to
J J
serve the community full-time. Long before that he was volunteering
K regularly but in 2008 became a District Councillor serving for a total of 8 K
years before retiring this year. In total, he served his community for about
L L
17 years. He in particular worked tirelessly for labour rights, disadvantaged
M groups and ethnic minorities. M
N N
92. He has a clear record. He is not in great health, I have seen a
O biography which also sets out his health issues and conditions. He has O
difficulty walking and is reliant on much medication. I have a doctor’s
P P
diagnosis explaining why he has difficulty walking. I have letters from his
Q wife, some of his sisters, colleagues, friends and beneficiaries of his Q
support and help over the years, MFI-7. At the time of the offence he was
R R
a Standing Committee member of the Hong Kong Alliance.
S S
93. I find a starting point of 6 months appropriate for Charge 3.
T T
U U
V V
- 25 -
A A
B B
The 15th defendant - Ho Sau Lan Cyd
C C
th
94. The 15 defendant is presently serving an 8-month sentence
D D
for organising and also knowingly taking part in an unauthorised assembly
E in DCCC 536/2020 imposed on 16 April 2021. She was sentenced to 14 E
months’ imprisonment in DCCC 534/2020 on 28 May 2021 for organising
F F
an unauthorised assembly with others. She was also sentenced to 14
G months’ imprisonment in DCCC 535/2020 on 1 September 2021 again for G
incitement to knowingly take part in and organising an unauthorised
H H
assembly. All sentences were ordered to be served concurrently.
I I
95. At the time of this offence she had a clear record but she was
J J
on court bail for those 3 cases having been arrested in April 2020. I have
K her biography, public service details and have heard mitigation in full, K
MFI-8. I have many letters that were submitted to me in her previous 3
L L
cases.
M M
96. I have another letter from the 15th defendant dated 2
N N
September 2021 recounting the history of the June 4th Vigil and her reasons
O for attending it on an annual basis, including on this occasion. I will take it O
all into consideration.
P P
Q 97. I find a starting point of 6 months’ imprisonment appropriate Q
for Charge 3. However, the 15th defendant was on court bail at the time of
R R
this offence and to reflect this, I increase that starting point by 3 months to
S 9 months’ imprisonment. S
T T
U U
V V
- 26 -
A A
B B
The 16th defendant - Leung Kwok Hung
C C
98. The 16 th
defendant was sentenced to 18 months’
D D
imprisonment in DCCC 536/2020 after trial and the same in DCCC
E 534/2020 after he pleaded guilty. 4 months of that last sentence was E
ordered to run consecutively to DCCC 536/2020. He was also sentenced to
F F
16 months’ imprisonment 1 September 2021 in DCCC 535/2020 again for
G incitement to knowingly take part in and organising an unauthorised G
assembly. That last sentence run concurrently to the other 2 sentences.
H H
I 99. In those previous 3 cases, I heard full mitigation on behalf of I
the 16th defendant. I have had mitigation letters from all walks of life who
J J
admire him, are indebted to him and support him. I have heard details of
K his health condition; it would appear this is being addressed and will be K
treated if necessary. His mitigation is set out in MFI-4.
L L
M 100. I take into account his long-term commitment to social M
injustices and the need to raise public awareness of it. The 16th defendant
N N
is well-known for his concern for the welfare of migrant workers, refugees,
O the homeless, the elderly and other underprivileged groups. O
P P
101. I find a starting point of 6 months’ imprisonment appropriate
Q for Charge 3. However, the 16th defendant is not a man with a clear record; Q
he has many similar convictions with almost all arising from the Public
R R
Order Ordinance. When he committed this offence he was on court bail
S and had only recently appeared in court. I increase that starting point by 3 S
months to 9 months’ imprisonment.
T T
U U
V V
- 27 -
A A
B B
The 18th defendant - Chu Hoi Dick Eddie
C C
102. I have received a biography relating to 18 defendant’s family
th
D D
background, education, employment and community work, MFI-9. He did
E not want to advance any mitigation other than that biography. The 18th E
defendant is 43 years old, married with one child. The majority of his
F F
working life he has been engaged in public service and community work.
G G
103. The 18th defendant is known as an environmentalist and has
H H
championed campaigns in many areas such as preservation of sites, waste
I recycling, town planning, redevelopment of agriculture as well as engaged I
in the fight against dumping.
J J
K 104. I find a starting point of 6 months’ imprisonment appropriate K
for Charge 3. However, the 18th defendant is not a man with a clear record;
L L
he has one previous conviction from 2012 related to a public order offence.
M When he committed this offence he was on court bail for assaulting, M
obstructing or molesting a member being within the precincts of the
N N
chamber of the Legislative Council. I increase that starting point by 3
O months to 9 months’ imprisonment. O
P P
The 20th defendant - Yeung Sum
Q Q
105. The 20th defendant was sentenced to 8 months’ imprisonment
R R
suspended for 12 months on 16 April 2021 for knowingly taking part in an
S unauthorised assembly in DCCC 537/2020. He then pleaded guilty to S
organising an unauthorised assembly and was sentenced to a total of 14
T T
months’ imprisonment in DCCC 534/2020 on 28 May 2021. On 1
U U
V V
- 28 -
A A
B B
September 2021 he was sentenced to 11 months’ imprisonment for
C organising an unauthorised assembly which I ordered to run concurrently C
to the term of imprisonment imposed in DCCC 534/2020.
D D
E 106. The 20th defendant acted in person when it came to mitigation E
and read out his statement, MFI-10. I have also considered his previous
F F
mitigation, submissions from his then Counsel and his biography submitted
G in DCCC 537/2020 and DCCC 534/2020. G
H H
107. He has explained why he committed this offence in this case
I as he did for the previous 3 cases. He did not believe in violence and only I
advocated peaceful social movement. He explained his commitment to
J J
commemorating the date of June 4 on this occasion and in the past.
K K
108. I find a starting point of 6 months’ imprisonment appropriate
L L
for Charge 3 however, when he committed this offence he was on court
M bail for similar offences and had only recently appeared in court. I increase M
that starting point by 3 months to 9 months’ imprisonment.
N N
O Discount after plea O
P P
109. Although not all defendants indicated their intention to plead
Q guilty at the same time, I have considered the chronology of the court Q
appearances and find all defendants are entitled to a full discount after plea.
R R
S 110. I also find a suspended sentence appropriate for the 8th, 12th S
and 14th defendants after considering their backgrounds, ages, clear records,
T T
health, public service and mitigation.
U U
V V
- 29 -
A A
B B
C Totality principle C
D D
111. I have taken into account the totality principle, the facts of the
E case and the charges here. I will order those who face both Charges 1 and E
3 to serve their sentences concurrently.
F F
G 112. Several defendants are serving sentences for similar or the G
same offences committed on several divers dates during the social turmoil
H H
in 2019 although the common purpose was not the same as in this case.
I The importance of the totality principle is to ensure fairness to any I
defendant. Courts must achieve a just and balanced sentence that will not
J J
punish a defendant twice for the same or similar conduct and crush him.
K K
113. Often, to achieve a fair and balanced sentence, the Court can
L consider concurrent and consecutive sentences. If a person is convicted of L
more than one offence committed on different days or not arising out of a
M 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 114. I have considered the facts of DCCC 536/2020, DCCC R
534/2020, DCCC 535/2020 and the similar or same offences, roles and
S S
mitigation of those relevant defendants. I have taken into account the
T sentences I imposed in those cases. Although there was a time gap of T
months, I find it fair and appropriate to consider concurrent sentences here.
U U
V V
- 30 -
A A
B B
C Conclusion C
D D
115. After a full discount is applied;
E E
(i) The 2nd defendant is sentenced to 10 months’
F F
imprisonment for Charge 1 and 6 months’
G imprisonment for Charge 3 to be served concurrently; G
a total of 10 months’ imprisonment. I order this
H H
sentence to run concurrently to the sentences he is
I presently serving. I
J J
(ii) The 5th defendant is sentenced to 10 months’
K imprisonment for Charge 1 and 6 months’ K
imprisonment for Charge 3 be served concurrently; a
L L
total of 10 months’ imprisonment. I order this sentence
M to run concurrently to the sentences he is presently M
serving.
N N
O (iii) The 6th defendant is sentenced to 10 months’ O
imprisonment for Charge 1 and 6 months’
P P
imprisonment for Charge 3 to be served concurrently;
Q a total of 10 months’ imprisonment. Q
R R
(iv) The 8 th
defendant is sentenced to 8 months’
S imprisonment for Charge 1 and 4 months’ S
imprisonment for Charge 3 to be served concurrently;
T T
both these sentences are suspended for 18 months. He
U U
V V
- 31 -
A A
B B
is sentenced to a total of 8 months’ imprisonment
C suspended for 18 months. C
D D
(v) The 9th defendant is sentenced to 8 months’
E imprisonment for Charge 1 and 4 months’ E
imprisonment for Charge 3 to be served concurrently;
F F
a total of 8 months’ imprisonment.
G G
(vi) The 11th defendant is sentenced to 8 months’
H H
imprisonment for Charge 1 and 4 months’
I imprisonment for Charge 3 to be served concurrently; I
a total of 8 months’ imprisonment.
J J
K (vii) The 12th defendant is sentenced to 8 months’ K
imprisonment for Charge 1 and 4 months’
L L
imprisonment for Charge 3 to be served concurrently;
M both these sentences are suspended for 18 months. He M
is sentenced to a total of 8 months’ imprisonment
N N
suspended for 18 months.
O O
(viii) The 14th defendant for Charge 3 is sentenced to 4
P P
months’ imprisonment suspended for 12 months.
Q Q
(ix) The 15th defendant is sentenced to 6 months’
R R
imprisonment for Charge 3. I order this sentence to run
S concurrently to the sentences she is presently serving. S
T T
U U
V V
- 32 -
A A
B B
(x) The 16th defendant is sentenced to 6 months’
C imprisonment for Charge 3. I order the sentence to run C
concurrently to the sentences he is presently serving.
D D
E (xi) The 18th defendant is sentenced to 6 months’ E
imprisonment for Charge 3.
F F
G (xii) The 20th defendant is sentenced to 6 months’ G
imprisonment for Charge 3. I order the sentence to run
H H
concurrently to the sentences he is presently serving.
I I
116. The 8th, 12th and 14th defendants are warned that if they
J J
commit an offence punishable by imprisonment during the period of
K suspension and are convicted then, they will most certainly be ordered to K
serve their respective terms of imprisonment imposed today.
L L
M M
N N
O O
(A J Woodcock)
P P
District Judge
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 857-875, 877-884, 886-889, 891 & 893/2020 (Consolidated)
C [2021] HKDC 1160 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NOS 857-875,877-884, 886-889, 891 & 893 OF 2020
F F
G ---------------------------- G
HKSAR
H H
v
I HO CHUN YAN (D2) I
CHAN HO WUN (D5)
J J
WAN SIU KIN ANDREW (D6)
K CHEUNG MAN KWONG (D8) K
KWOK WING KIN (D9)
L L
CHIU YAN LOY (D11)
M MAK HOI WAH (D12) M
LEUNG KWOK WAH (D14)
N N
HO SAU LAN CYD (D15)
O LEUNG KWOK HUNG (D16) O
CHU HOI DICK EDDIE (D18)
P P
YEUNG SUM (D20)
Q ---------------------------- Q
R R
Before: Her Honour Judge Amanda J Woodcock in Court
S Date: 15 September 2021 S
T T
U U
V V
-2-
A A
B B
Present: Mr William SIU, Senior Assistant Director of Public
C Prosecutions (Ag) and Mr Edward Lau, Public Prosecutor, for C
HKSAR/Director of Public Prosecutions
D D
E The 2nd and 20th defendants appeared in person E
Mr Anson Wong Yu Yat, instructed by Chan & Chan,
F F
assigned by the Director of Legal Aid, for the 5th and 16th
G defendants G
Ms Yasmine Zahir, instructed by Ho Tse Wai & Partners, for
H H
the 6th and 12th defendants
I Mr Ma Hon Cheung Andrew, instructed by Ho Tse Wai & I
Partners, for the 8th defendant
J J
Mr Schweitzer Wong, instructed by Ho Tse Wai & Partners,
K for the 9th, 11th and 14th defendants K
Mr Chris Ng, instructed by JCC Cheung & Co, for the 15 th
L L
defendant
M Miss Kristine Chan of Ho Tse Wai & Partners, for the 18 th M
defendant
N N
Offences: [1] Incitement to knowingly take part in an unauthorized
O assembly（煽惑他人明知而參與未經批准集結） - D1-D13 O
P
[3] Knowingly taking part in an unauthorized assembly（明 P
知而參與未經批准集結） - D1-D3, D5-D20
Q Q
R -------------------------------------- R
REASONS FOR SENTENCE
S S
--------------------------------------
T T
U U
V V
-3-
A A
B B
1. There were 37 cases arising from the same incident of which
C 4 were dealt with earlier and the remaining 33 were consolidated. In this C
consolidated case, there are 20 defendants. 8 defendants have pleaded not
D D
guilty and a trial has been set down for 10 days in November 2021.
E E
2. The remaining 12 defendants pleaded guilty to their
F F
respective charges before me and agreed the Amended Summary of Facts.
G I heard mitigation on behalf of the 12 defendants on 9 September 2021 and G
adjourned sentence to today.
H H
I 3. The 2nd, 5th, 6th, 8th, 9th, 11th and 12th defendants pleaded guilty I
to Charge 1, incitement to knowingly take part in an unauthorised assembly,
J J
contrary to Common Law and section 17A(3)(a) of the Public Order
K Ordinance, Cap 245 and punishable under section 101I of the Criminal K
Procedure Ordinance, Cap 221.
L L
M 4. On 4 June 2020 at Water Fountain Plaza, Victoria Park, M
Causeway Bay, in Hong Kong they together with other defendants
N N
unlawfully incited other persons unknown to, without lawful authority or
O reasonable excuse, knowingly take part in a public meeting which took O
place in contravention of section 7 of the Public Order Ordinance, which
P P
was an unauthorised assembly by virtue of section 17A(2)(a) of the same
Q Ordinance. Q
R R
nd th th th th th th th th th th th
5. The 2 , 5 , 6 , 8 , 9 , 11 , 12 , 14 , 15 , 16 , 18 and 20
S defendants pleaded guilty to Charge 3, knowingly taking part in an S
unauthorised assembly, contrary to section 17A(3)(a) of the Public Order
T T
Ordinance.
U U
V V
-4-
A A
B B
C 6. On the same day, 4 June 2020, at Victoria Park, Causeway C
Bay, they together with the defendants named and others unknown, without
D D
lawful authority or reasonable excuse, knowingly took part in a public
E meeting which took place in contravention of section 7 of the Public Order E
Ordinance, which was an unauthorised assembly by virtue of section
F F
17A(2)(a) of the same Ordinance.
G G
7. The 4 defendants sentenced earlier by HHJ Stanley Chan
H H
pleaded guilty to a charge arising from the same incident in a consolidated
I case, DCCC 876, 885, 890 & 892/2020. Wong Chi Fung, Lester Shum, I
Tiffany Yuen Ka Wai and Rosalynne Jannelle Leung admitted they
J J
knowingly took part in that same unauthorised assembly. They were
K sentenced on 6 May 2021 to sentences ranging from between 4 to 10 K
months’ imprisonment.
L L
M The Facts M
N N
8. On 23 April 2020 Tsoi Yiu-Cheong Richard (the 3rd defendant)
O on behalf of the Hong Kong Alliance in Support of Patriotic Democratic O
Movements of China, “Hong Kong Alliance” submitted a notification to
P P
the Police applying to hold a public meeting in Victoria Park between 9am
Q and 10pm on 4 June 2020. Q
R R
9. The purpose of the public meeting was to “mourn the 31 st
S anniversary of the June 4th Incident” with an estimated number of S
participants between 50,000 and 100,000.
T T
U U
V V
-5-
A A
B B
10. The Police held a liaison meeting with the applicant’s
C representatives and several defendants. The organisers could not C
implement any social distancing measures. All they could do was tell
D D
participants to congregate in small groups.
E E
11. The Department of Health were consulted and advised against
F F
holding any mass gatherings at that time in view of the coronavirus
G pandemic. The Department of Health took into account the number of G
COVID-19 cases by the end of May 2020, the upsurge between March and
H H
early April 2020 as well as several local clusters mid May 2020 with no
I apparent primary source identifiable. The risk of major community I
outbreak existed at that time.
J J
K 12. In a memo to the Police stated 28 May 2020, the Department K
of Health set out its concerns and reasons for its recommendation. This
L L
included the risk that existed, the inability of participants at a public
M meeting to maintain social distancing measures and small groups as well M
as the difficulty in contact tracing and imposing disease control measures
N N
if there was any subsequent confirmed case of COVID-19 identified and
O linked to the mass gathering. O
P P
13. On 1 June 2020, the Commissioner of Police issued a notice
Q to Hong Kong Alliance as required prohibiting the holding of the proposed Q
public meeting in the interests of public order, public safety, and the
R R
protection of the rights and freedoms of others. Hong Kong Alliance did
S not appeal that decision nor apply to Judicial Review it. S
T T
U U
V V
-6-
A A
B B
14. On the same day, Lee Cheuk Yan (1st defendant) and the 2nd
C defendant on behalf of Hong Kong Alliance held a press conference at the C
Water Fountain Plaza at Victoria Park and declared that the public meeting
D D
on 4 June 2020 would proceed in spite of the decision to prohibit it. Lee
E accused the Police of using the pandemic as an excuse to suppress the E
public meeting.
F F
G 15. They said Hong Kong Alliance would still go to Victoria Park G
in groups of 8 to mourn the “June 4th Incident”. Candles would be
H H
distributed outside Victoria Park all afternoon. They appealed to the public
I to join them. Annex I of the Amended Summary of Facts contains the press I
conference footage and transcripts with translations.
J J
K 16. On 4 June 2020 the Police set up 9 loudspeakers near or inside K
Victoria Park to continuously broadcast public announcements. The
L L
messages included informing the public that the holding of a public
M meeting was prohibited and participants could be legally liable. They M
warned the public not to participate in any unauthorised assembly and that
N N
group gatherings were prohibited. It included a warning about the
O transmission of COVID-19 in the community. O
P P
17. The Leisure and Cultural Services Department, “LCSD” also
Q broadcasted announcements to declare the football pitches in Victoria Park Q
closed with entry prohibited and that groups of no more than 8 were
R R
allowed to gather in the park.
S S
T T
U U
V V
-7-
A A
B B
Charge 1 – Incitement to knowingly take part in an unauthorised assembly
C C
18. The prosecution relied on video footage of media outlets
D D
broadcasting the event and press interviews by various defendants. MFI-1
E is a playlist of video footage relied on by the prosecution. It contains E
remarks to explain the relevance of individual footage. Examples of
F F
footage from several media outlets was played in open court before
G mitigation. G
H H
19. There is news footage of the 6th defendant’s afternoon press
I interview on 4 June 2020 where he criticises the LCSD for barricading I
Victoria Park to oppress members of the public who intended to attend the
J J
June 4th Vigil that night. His speech and the transcript with translations is
K set out in Annex II of the Amended Summary of Facts. K
L L
20. The 6th defendant was speaking to the press inside the
M Legislative Council Complex. He was speaking in his capacity as a Hong M
Kong Alliance’s Standing Committee member. He too accused the
N N
Government of using the pandemic as an excuse. He appealed to the public
O to fight to the end against suppression. O
P P
21. After about 5:30pm on 4 June 2020 there is footage of candles
Q and leaflets being handed out to members of the public by many defendants Q
near Victoria Park with appeals to the public to light their candles at 8pm
R R
and mourn for 1 minute at 8:09pm that night. Those that made this appeal
S includes the 2nd, 5th and 16th defendants. S
T T
U U
V V
-8-
A A
B B
22. Lee Cheuk Yan held a press interview at the Water Fountain
C Plaza at about 5:30pm where he said Hong Kong Alliance would light C
candles in Victoria Park at 6:30pm and enter Victoria Park to
D D
commemorate the 31st year of the “June 4th Candlelight Vigil”. He urged
E the Police to disappear that night. He appealed to the public to join them in E
Victoria Park because they had a right to light a candle inside the park.
F F
G 23. After that press interview, defendants including the 6 th, 11th, G
12th and 14th defendants distributed candles and leaflets between 5:41pm
H H
and 6:22pm at the entrance of Victoria Park near the junction of Great
I George Street and Gloucester Road. I
J J
24. At 6:25pm, Lee Cheuk Yan and the 2nd, 5th, 6th, 8th, 9th, 11th,
K and 12th defendants together with other defendants gathered together as a K
group at the Water Fountain Plaza. Lee Cheuk Yan gave a speech via a
L L
loudhailer and then invited all the defendants gathered together to light
M their candles at the same time. Each lit and held a candle facing the press. M
He is heard telling the public to join them in meeting in Victoria Park and
N N
to light candles even though the public meeting was prohibited. He also
O shouted various political slogans repeated by those defendants stood with O
him in support and encouragement.
P P
Q 25. Lee Cheuk Yan, the 1st defendant has pleaded not guilty to Q
Charges 1 and 3 as well as Charge 2. He alone faces Charge 2, holding an
R R
unauthorised assembly.
S S
T T
U U
V V
-9-
A A
B B
Charge 3 – Knowingly taking part in an unauthorised assembly
C C
26. After Lee Cheuk Yan finished giving a speech, he led a group
D D
of around 100 people including the defendants stood together with him to
E walk with a lit candle from the Water Fountain Plaza into the football E
pitches of Victoria Park. The 15th defendant joined the group with the 16th
F F
and 18th defendants entering Victoria Park with others a few minutes later.
G G
27. At that time because of the COVID-19 pandemic the football
H H
pitches were closed and surrounded by mill barriers. Entrance was
I prohibited. When Lee Cheuk Yan and the 2nd, 5th, 6th, 8th, 9th, 11th, 12th, 14th I
to 16th defendants arrived near football pitches number 3 and 4, the 5 th
J J
defendant can be seen pulling away the mill barriers in order for the group
K and members of the public to follow him in to occupy the football pitches. K
He ignored a security guard who can be heard telling him the pitches were
L L
closed.
M M
28. Initially, about 400 people gathered at number 6 pitch with the
N N
numbers increasing with time to 20,000 by about 8pm. In the video footage
O from various media outlets one can see little social distancing. Those O
defendants I have referred to sat down on the ground on pitch number 6.
P P
th th
The 18 and 20 defendants entered the football pitch and sat down in
Q groups with others. All sat on the ground holding a candle. The 5th Q
defendant is heard shouting slogans which were repeated by others present.
R R
S 29. Lee Cheuk Yan, before 8pm, announced the start of the S
meeting at that time and shouted many slogans. He gave a speech relating
T T
U U
V V
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A A
B B
to the June 4th Incident. He played a video relating to the “June 4th Incident”
C which also included footage of the social unrest in Hong Kong in 2019. C
D D
30. The 18th defendant gave white flowers to some of the
E defendants. There was some kind of wreath laying ceremony. A minute of E
silence was observed followed by more speeches and songs. The meeting
F F
was announced to be finished at 8:45pm after some of the defendants burnt
G some books to commemorate the date on the football pitch. G
H H
31. Chants unrelated to the June 4th Vigil were also heard such as
I “Fight for freedom”, “Stand with Hong Kong” and “5 demands not one I
less”. Later, certain words and phrases were found to have been posted or
J J
written on the ground and on some of the facilities inside Victoria Park. As
K large crowds gathered, the police had to implement road closure and traffic K
diversions around Victoria Park. The crowds obstructed the roads in the
L L
vicinity.
M M
32. The public meeting was captured on police as well as news
N N
media videos. Those videos, screen captures identifying the defendants as
O well as the transcripts of the speeches and slogans chanted are set out in O
Annexes III and IV of the Amended Summary of Facts.
P P
Q 33. Essentially, undeterred by a Police ban and in direct defiance Q
of law and order, thousands of people converged on Victoria Park and onto
R R
the football pitches. The unauthorised assembly caused traffic chaos all
S around Victoria Park. S
T T
U U
V V
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A A
B B
34. Thousands of people gathered despite the risk of the pandemic.
C This was a breach of the Regulation gazetted on 19 May 2020 under the C
Prevention and Control of Disease (Prohibition on Group Gathering)
D D
Regulation where no group gathering of more than 8 people may take place
E in any public place during that period including 4 June 2020 unless E
exempted or permitted because of the emergency response level.
F F
G 35. That response level which was the highest, implied there was G
a serious threat to the health of the local population and a high and
H H
imminent risk of sustained community level outbreaks with severe and
I extensive human infections. I
J J
Mitigation
K K
36. I have heard mitigation in full and have either received written
L L
mitigation, biographies, statements and supporting authorities in bundles
M in advance or received letters of mitigation from defendants unrepresented. M
I do not intend to repeat the mitigation provided but all that can be said on
N N
behalf of the defendants has been conveyed and considered. Their best
O mitigation is their pleas of guilty. O
P P
37. It was submitted that by then the turbulent and tumultuous
Q social unrest of 2019 had receded. The obstruction and inconvenience to Q
the public around Victoria Park was limited to the streets in Causeway Bay
R R
area only and natural with any assembly. There was no violence or
S imminent risk of violence at any time. The unauthorised meeting lasted S
only a few hours and was relatively short.
T T
U U
V V
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A A
B B
38. It was submitted that those who pleaded guilty to Charge 1
C were that evening only showing support, remained largely silent, held a C
candle but played a passive role in inciting others to knowingly take part.
D D
Those who pleaded guilty to Charge 3, knowingly taking part in an
E unauthorised assembly, were peaceful and passive whilst inside Victoria E
Park. They all wore face masks and no outbreak of COVID cases arose
F F
from this gathering.
G G
39. I was urged to and will consider personal mitigation, motive,
H H
backgrounds and previous significant public service. Where applicable, I
I was urged to consider clear records at the time of the offences. I
J J
Principles of Sentencing
K K
40. I considered the authority of Secretary for Justice v Wong Chi
L L
Fung (2018) 2 HKLRD 699 notwithstanding it referred to offences of
M unlawful assembly. The Court of Final Appeal went on to endorse the M
Court of Appeal’s sentencing principles and the list of factors relevant to a
N N
decision on the appropriate sentence for an unlawful assembly.
O O
41. Notwithstanding the offences here relate to an unauthorised
P P
assembly, I am sure I can draw on sentencing factors set out in Wong Chi
Q Fung. Deterrence can be necessary to maintain public order and public Q
safety.
R R
S 42. In that authority, the Court of Appeal identified the inherent S
risk of large gatherings becoming emotional and breaking out into violence.
T T
Even if there is no actual violence, the Court should take into consideration
U U
V V
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A A
B B
the threat of violence. It all depends on the actual circumstances of the case
C concerned but a punitive and deterrent sentence can be considered C
appropriate even if there is no actual violence. There may be equally as
D D
serious a risk to public order and public safety such as a public health risk;
E a different type of threat. E
F F
43. As far as the incitement charges concerned, I have taken into
G account the recent authority of Secretary for Justice v Poon Yung Wai G
(2021) HKCA 510. The Court of Appeal found on those facts that an
H H
incitement to unlawful assembly involving violence called for a severe
I deterrent immediate custodial sentence. Here there was incitement to take I
part in an unauthorised assembly to commemorate an event but I have
J J
taken on board the discussion in that authority and drawn from it; the
K gravamen of this offence can, depending on certain factors, attract a K
punitive and deterrent sentence.
L L
M 44. I consider the culpability of the offenders individually. The M
context in which a crime is committed is of relevance to assessing its
N N
gravity and that culpability. It can be relevant to whether a punitive and
O deterrent sentence is appropriate. Since preserving public order and public O
safety is important, I have taken into account the prevailing circumstances
P P
at the time some defendants incited others to take part in an unauthorised
Q assembly and all defendants knowingly took part in it. Q
R R
45. The social unrest and violence we saw in 2019 had
S significantly receded by June 2020 but not disappeared entirely. What we S
did see from the beginning of 2020 was a different threat to public order,
T T
public safety, and the protection of the rights and freedoms of others in the
U U
V V
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A A
B B
form of a pandemic. This is not an epidemic confined to the Mainland and
C Hong Kong but an indiscriminate pandemic that by June 2020 had spread C
across the world.
D D
E 46. Whether or not it contributed to the social unrest of 2019 E
receding somewhat, the pandemic itself presents a different threat and risk.
F F
It was this threat behind the decision of the Commissioner of Police.
G G
47. All sentencing principles applied to determine what is an
H H
appropriate sentence should take into account the facts of the charges and
I in this case, also the prevailing public health crisis in Hong Kong at that I
time.
J J
K 48. In mitigation for both the 5th and 16th defendants, Mr Wong K
referred me to Director of Public Prosecutions v Ziegler (2021) 3 WLR
L L
179. It was submitted that this decision is applicable to sentencing; I should
M consider the proportionality of the sentence in the context of whether such M
sentence was necessary.
N N
O 49. As summarised by Pang JA in HKSAR v Au Nok Hin CACC O
84/2021 in his reasons for refusing bail pending appeal from a sentence
P P
imposed by myself in DCCC 536/2020, I quote paragraph 13,
Q Q
“In broad terms, what Ziegler requires in a case of this kind
R R
is for the court to recognise that, notwithstanding his law
S breaking, a defendant’s right to freedom of expression and S
right to freedom of assembly were engaged, and that his
T conviction and sentence are in themselves an interference T
with those rights. …”
U U
V V
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A A
B B
C 50. It has been submitted I should, according to that authority, C
take into account certain factors identified in paragraphs 71-78 as relevant
D D
to the assessment of proportionality, for example, the duration of the
E protest, whether the obstruction was targeted at the object of the protest, E
the importance of the precise location to the protesters and the extent of the
F F
actual interference on the rights of others.
G G
51. In Ziegler the obstruction was targeted at the object of the
H H
protest whereas here, the location of Victoria Park was important to Hong
I Kong Alliance because by convention they had held their vigil there for I
many years. The location was more symbolic to Hong Kong Alliance rather
J J
than relevant to the object of the vigil however, I nevertheless take that
K submission into account. K
L L
52. The obstruction to roads and transport links are also relevant
M but in particular, the risk to public safety during a pandemic serves to prove M
this unauthorised assembly was very serious. These are factors I have taken
N N
into account and reflected in sentence.
O O
Reasons for Sentence
P P
Q 53. The Basic Law and the Bill of Rights does guarantee the Q
freedom of assembly, procession and demonstration for Hong Kong
R R
residents. However, these rights are not absolute and are subject to
S restrictions ruled constitutional. Here, restrictions can be applied in the S
interests of public safety, public order, and the protection of others rights
T T
U U
V V
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A A
B B
and freedoms. A public health crisis must come under the umbrella of
C public safety as well as the need to protect the rights of others. C
D D
54. When considering an appropriate sentence, I do not consider
E the common purpose of the assembly nor the politics, beliefs, stance and E
opinions of any of the defendants. I am aware that yearly there is an event
F F
in Victoria Park to mark June 4th but under the circumstances the organisers
G had other alternative and creative options to consider such as an interactive G
online vigil.
H H
I 55. The social distancing measures adopted to combat this I
pandemic were not designed to surreptitiously prevent people gathering for
J J
a common purpose or as a tool of suppression as suggested but to
K specifically stop people gathering in groups to prevent the transmission of K
COVID-19.
L L
M 56. The sole reason for social distancing measures is to protect M
the public and whole community; restrictions applied in the interests of
N N
public safety, public order, and the protection of others rights and freedoms.
O So to defy and incite others to defy those restrictions under such O
circumstances is serious.
P P
Q 57. Therefore, I consider a deterrent and punitive sentence Q
appropriate. Thankfully no violence erupted within the crowds but the
R R
defendants exhibited a blatant disregard of another serious risk to the entire
S community. The defendants ignored and belittled a genuine public health S
crisis. They showed no concern for the safety and health of fellow Hong
T T
Kongers. They wrongly and arrogantly believed their common purpose
U U
V V
- 17 -
A A
B B
was more important than protecting the community or the public’s right to
C protection from a serious health risk; an invisible risk. C
D D
58. Some or most of those charged with incitement are well-
E known public or political figures and their frontline role in this E
unauthorised assembly is an aggravating factor. They have a public profile
F F
and what they said and did was widely broadcast by media outlets.
G Moreover, they came together as a group for the press to reinforce each G
other and their message in order to be more visible to draw as many people
H H
as possible to Victoria Park.
I I
59. They were not to know whether the crowds they encouraged
J J
to participate in an unauthorised assembly would be peaceful and non-
K violent as well as diligently adhere to social distancing measures. On the K
day, the crowds did not adhere to such necessary measures. The fact that
L L
there did not appear to be an outbreak of either violence or COVID cases
M as a result of this assembly does not detract from their culpability. It was M
fortuitous.
N N
O 60. Accordingly, it is in this context and because of the prevailing O
circumstances at the time, I find an immediate custodial sentence
P P
appropriate.
Q Q
61. The defendants who incited others to congregate in large
R R
numbers and join them in an organised unauthorised assembly and on
S closed off football pitches created a public order and safety risk. They S
committed these offences despite the reasons given for the decision to
T T
prohibit the proposed meeting being completely credible and justifiable.
U U
V V
- 18 -
A A
B B
C 62. In addition, in relation to Charge 1, I have taken into account C
the roles of the defendants as set out in the Amended Summary of Facts
D D
nd th th
and seen in the video footage. The 2 , 5 and 6 defendants, in my view,
E played a more active role when compared to the more passive roles of the E
others which would be appropriate to reflect in sentence.
F F
G G
63. I have taken into account mitigation put forward, submissions
H
made, the facts of the offences and the prevailing situation at the time H
behind the decision of the Commissioner of Police. I sentence the
I I
defendants as follows:-
J J
The 2nd defendant - Ho Chun Yan
K K
L 64. The 2nd defendant is presently serving a suspended sentence L
for organising and also taking part in an unauthorised assembly in DCCC
M M
536/2020 imposed on 16 April 2021. He was sentenced to 18 months’
N imprisonment in DCCC 534/2020 on 28 May 2021 for incitement to N
knowingly take part in an unauthorised assembly and organising it. He was
O O
also sentenced to 16 months’ imprisonment on 1 September 2021 in DCCC
P 535/2020 again for incitement to knowingly take part in an unauthorised P
assembly.
Q Q
R 65. At the time of this offence he had a clear record but he was on R
court bail for those 3 cases having been arrested in April 2020. The 2nd
S S
defendant represented himself in mitigation; his statement is MFI-3. I have
T previously considered his biography and made allowances for his age and T
U U
V V
- 19 -
A A
B B
public service. I again take it all into consideration. On 4 June 2020, 2 nd
C defendant was the vice-chairman of the Hong Kong Alliance. C
D D
66. I find a starting point of 12 months’ imprisonment appropriate
E for Charge 1. However, I take into account the 2 nd defendant’s more active E
role and the fact he was on court bail at the time and increase that starting
F F
point by 3 months to 15 months’ imprisonment.
G G
67. I find a starting point of 6 months’ imprisonment appropriate
H H
for Charge 3 but for the same reasons, I increase this by 3 months to 9
I months’ imprisonment. I
J J
The 5th defendant – Chan Ho Wun
K K
68. The 5th defendant is now 25 years old and at the time of his
L L
offence had a clear record but like the 2 nd defendant, he too was on court
M bail for similar offences committed in 2019 having been arrested in April M
2020. I have heard mitigation in full in MFI-4.
N N
O 69. The 5th defendant is presently serving an 18-month term of O
imprisonment imposed on 28 May 2021 in DCCC 534/2020 after a plea to
P P
one count of incitement to knowingly take part in an unauthorised
Q assembly and one count of organising it. He pleaded to identical charges in Q
DCCC 535/2020 and was sentenced to 16 months’ imprisonment on 1
R R
September 2021 to run concurrently to that earlier sentence.
S S
70. I find a starting point of 12 months’ imprisonment appropriate
T T
for Charge 1. However, I take into account the 5 defendant’s more active
th
U U
V V
- 20 -
A A
B B
role and the fact he was on court bail at the time and increase that starting
C point by 3 months to 15 months’ imprisonment. C
D D
71. I find a starting point of 6 months’ imprisonment appropriate
E for Charge 3 but for the same reasons, I increase this by 3 months to 9 E
months’ imprisonment.
F F
G The 6th defendant - Wan Siu Kin Andrew G
H H
72. The 6th defendant is 52 years old, married with 2 teenage
I children. He is the breadwinner of his family. At the time of the offences I
he had a clear record. He was a social worker until he became a District
J J
and then a Legislative Councillor. He served in those roles for a total of 17
K years. K
L L
73. I have a biography which lists his political career and public
M service to the community. I have heard full mitigation, MFI-5 and seen M
many mitigation letters which stress his dedication in helping the
N N
underprivileged and vulnerable in this society; from former government
O officials, colleagues, the clergy, peers and groups who have benefited from O
his help in the past.
P P
Q 74. The 6th defendant was on court bail at the time of these Q
offences for obstructing an officer of the Legislative Council in the
R R
execution of his duty in June 2018. I repeat, he was also at the time of these
S offences a Standing Committee member of the Hong Kong Alliance. S
T T
U U
V V
- 21 -
A A
B B
75. I find a starting point of 12 months’ imprisonment appropriate
C for Charge 1. However, I take into account the 6th defendant’s role and the C
fact he was on court bail at the time and increase that starting point by 3
D D
months to 15 months’ imprisonment.
E E
76. I find a starting point of 6 months’ imprisonment appropriate
F F
for Charge 3 but for the same reasons, I increase this by 3 months to 9
G months’ imprisonment. G
H H
The 8th defendant - Cheung Man Kwong
I I
77. I have a received a biography, mitigation as well as many
J J
letters from his wife, his former assistant when he was a Legislator,
K colleagues and friends. He is 66 years old, now a retired teacher and K
married with one daughter. He has years of public service as a Legislative
L L
Councillor, member of the Education Commission and past president of
M the now disbanded Hong Kong Professional Teachers Union. M
N N
78. I have been urged to consider his passive role in the events of
O that evening. He is a man with a clear record. He has spent his life devoted O
to political reform and education in Mainland and Hong Kong. In his many
P P
years as a Legislator he displayed utter dedication; he attended 99% of the
Q 772 Council meetings held in his 20-year tenure. Q
R R
79. Written mitigation highlights his achievements in the
S education sector. In recognition of his service and contributions to S
education for 3 decades, he has been bestowed honorary degrees of
T T
fellowship from both the Chinese University of Hong Kong and the
U U
V V
- 22 -
A A
B B
Education University of Hong Kong. At the time of the offence, he was a
C Standing Committee member of the Hong Kong Alliance. His mitigation C
is set out in MFI-6.
D D
E 80. I find a starting point of 12 months’ imprisonment appropriate E
for Charge 1 and a starting point of 6 months’ imprisonment appropriate
F F
for Charge 3.
G G
The 9th defendant - Kwok Wing Kin
H H
I 81. The 9th defendant is now 34 years old, married with a 5-year- I
old child. He is the breadwinner of his family and now working in the
J J
private sector. At the time of these offences he had a clear record.
K K
82. He was for many years working in community service until
L L
recently. He was an assistant to a Legislator for 8 years before serving on
M the Tai Po District Council and then becoming a Councillor himself. I have M
heard full mitigation as well as have his biography, MFI-7.
N N
O 83. I also have many mitigation letters from social workers, O
community groups who have benefited from his support and work, and
P P
peers. They highlight his work for, in particular, the elderly and disabled.
Q Q
84. I find a starting point of 12 months’ imprisonment appropriate
R R
for Charge 1 and a starting point of 6 months’ imprisonment appropriate
S for Charge 3. S
T T
U U
V V
- 23 -
A A
B B
The 11th defendant - Chiu Yan Loy
C C
th
85. The 11 defendant is 36 years old and single. He has a clear
D D
record. He is a university graduate who left the private sector to join the 1 st
E defendant, Lee Cheuk Yan’s office as a Community Officer in 2012. He E
then later himself became a District Councillor until this year. He too was
F F
a Standing Committee member of the Hong Kong Alliance at the time.
G G
86. His desire to better the community is genuine. He works hard
H H
for the community. I have received many mitigation letters written from
I his previous school principal, employer, colleagues and peers. I have heard I
full mitigation put forward on his behalf, MFI-7.
J J
K 87. I find a starting point of 12 months’ imprisonment appropriate K
for Charge 1 and a starting point of 6 months’ imprisonment appropriate
L L
for Charge 3.
M M
The 12th defendant - Mak Hoi Wah
N N
O 88. The 12th defendant is 70-year-old married and has a clear O
record. He is retired and now spends time with his children and
P P
grandchildren. Prior to retirement he was an academic, social worker and
Q heavily involved in public service through many advisory committees, Q
tribunal’s and councils. He has worked tirelessly for the elderly, the
R R
disabled, racial minorities and discriminated groups in Hong Kong.
S S
89. I have heard full mitigation put forward on his behalf, MFI-5.
T T
I have read the many mitigating letters from family, clergy, past academic
U U
V V
- 24 -
A A
B B
colleagues and students, all who have known him a very long time and
C speak of his dedication to many causes. At the time of the offence he was C
a Standing Committee member of the Hong Kong Alliance.
D D
E 90. I find a starting point of 12 months’ imprisonment appropriate E
for Charge 1 and a starting point of 6 months’ imprisonment appropriate
F F
for Charge 3.
G G
The 14th defendant - Leung Kwok Wah
H H
I 91. The 14th defendant is 62 years old and lives with his wife and I
96-year-old mother. He worked for 24 years in a bank before turning to
J J
serve the community full-time. Long before that he was volunteering
K regularly but in 2008 became a District Councillor serving for a total of 8 K
years before retiring this year. In total, he served his community for about
L L
17 years. He in particular worked tirelessly for labour rights, disadvantaged
M groups and ethnic minorities. M
N N
92. He has a clear record. He is not in great health, I have seen a
O biography which also sets out his health issues and conditions. He has O
difficulty walking and is reliant on much medication. I have a doctor’s
P P
diagnosis explaining why he has difficulty walking. I have letters from his
Q wife, some of his sisters, colleagues, friends and beneficiaries of his Q
support and help over the years, MFI-7. At the time of the offence he was
R R
a Standing Committee member of the Hong Kong Alliance.
S S
93. I find a starting point of 6 months appropriate for Charge 3.
T T
U U
V V
- 25 -
A A
B B
The 15th defendant - Ho Sau Lan Cyd
C C
th
94. The 15 defendant is presently serving an 8-month sentence
D D
for organising and also knowingly taking part in an unauthorised assembly
E in DCCC 536/2020 imposed on 16 April 2021. She was sentenced to 14 E
months’ imprisonment in DCCC 534/2020 on 28 May 2021 for organising
F F
an unauthorised assembly with others. She was also sentenced to 14
G months’ imprisonment in DCCC 535/2020 on 1 September 2021 again for G
incitement to knowingly take part in and organising an unauthorised
H H
assembly. All sentences were ordered to be served concurrently.
I I
95. At the time of this offence she had a clear record but she was
J J
on court bail for those 3 cases having been arrested in April 2020. I have
K her biography, public service details and have heard mitigation in full, K
MFI-8. I have many letters that were submitted to me in her previous 3
L L
cases.
M M
96. I have another letter from the 15th defendant dated 2
N N
September 2021 recounting the history of the June 4th Vigil and her reasons
O for attending it on an annual basis, including on this occasion. I will take it O
all into consideration.
P P
Q 97. I find a starting point of 6 months’ imprisonment appropriate Q
for Charge 3. However, the 15th defendant was on court bail at the time of
R R
this offence and to reflect this, I increase that starting point by 3 months to
S 9 months’ imprisonment. S
T T
U U
V V
- 26 -
A A
B B
The 16th defendant - Leung Kwok Hung
C C
98. The 16 th
defendant was sentenced to 18 months’
D D
imprisonment in DCCC 536/2020 after trial and the same in DCCC
E 534/2020 after he pleaded guilty. 4 months of that last sentence was E
ordered to run consecutively to DCCC 536/2020. He was also sentenced to
F F
16 months’ imprisonment 1 September 2021 in DCCC 535/2020 again for
G incitement to knowingly take part in and organising an unauthorised G
assembly. That last sentence run concurrently to the other 2 sentences.
H H
I 99. In those previous 3 cases, I heard full mitigation on behalf of I
the 16th defendant. I have had mitigation letters from all walks of life who
J J
admire him, are indebted to him and support him. I have heard details of
K his health condition; it would appear this is being addressed and will be K
treated if necessary. His mitigation is set out in MFI-4.
L L
M 100. I take into account his long-term commitment to social M
injustices and the need to raise public awareness of it. The 16th defendant
N N
is well-known for his concern for the welfare of migrant workers, refugees,
O the homeless, the elderly and other underprivileged groups. O
P P
101. I find a starting point of 6 months’ imprisonment appropriate
Q for Charge 3. However, the 16th defendant is not a man with a clear record; Q
he has many similar convictions with almost all arising from the Public
R R
Order Ordinance. When he committed this offence he was on court bail
S and had only recently appeared in court. I increase that starting point by 3 S
months to 9 months’ imprisonment.
T T
U U
V V
- 27 -
A A
B B
The 18th defendant - Chu Hoi Dick Eddie
C C
102. I have received a biography relating to 18 defendant’s family
th
D D
background, education, employment and community work, MFI-9. He did
E not want to advance any mitigation other than that biography. The 18th E
defendant is 43 years old, married with one child. The majority of his
F F
working life he has been engaged in public service and community work.
G G
103. The 18th defendant is known as an environmentalist and has
H H
championed campaigns in many areas such as preservation of sites, waste
I recycling, town planning, redevelopment of agriculture as well as engaged I
in the fight against dumping.
J J
K 104. I find a starting point of 6 months’ imprisonment appropriate K
for Charge 3. However, the 18th defendant is not a man with a clear record;
L L
he has one previous conviction from 2012 related to a public order offence.
M When he committed this offence he was on court bail for assaulting, M
obstructing or molesting a member being within the precincts of the
N N
chamber of the Legislative Council. I increase that starting point by 3
O months to 9 months’ imprisonment. O
P P
The 20th defendant - Yeung Sum
Q Q
105. The 20th defendant was sentenced to 8 months’ imprisonment
R R
suspended for 12 months on 16 April 2021 for knowingly taking part in an
S unauthorised assembly in DCCC 537/2020. He then pleaded guilty to S
organising an unauthorised assembly and was sentenced to a total of 14
T T
months’ imprisonment in DCCC 534/2020 on 28 May 2021. On 1
U U
V V
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A A
B B
September 2021 he was sentenced to 11 months’ imprisonment for
C organising an unauthorised assembly which I ordered to run concurrently C
to the term of imprisonment imposed in DCCC 534/2020.
D D
E 106. The 20th defendant acted in person when it came to mitigation E
and read out his statement, MFI-10. I have also considered his previous
F F
mitigation, submissions from his then Counsel and his biography submitted
G in DCCC 537/2020 and DCCC 534/2020. G
H H
107. He has explained why he committed this offence in this case
I as he did for the previous 3 cases. He did not believe in violence and only I
advocated peaceful social movement. He explained his commitment to
J J
commemorating the date of June 4 on this occasion and in the past.
K K
108. I find a starting point of 6 months’ imprisonment appropriate
L L
for Charge 3 however, when he committed this offence he was on court
M bail for similar offences and had only recently appeared in court. I increase M
that starting point by 3 months to 9 months’ imprisonment.
N N
O Discount after plea O
P P
109. Although not all defendants indicated their intention to plead
Q guilty at the same time, I have considered the chronology of the court Q
appearances and find all defendants are entitled to a full discount after plea.
R R
S 110. I also find a suspended sentence appropriate for the 8th, 12th S
and 14th defendants after considering their backgrounds, ages, clear records,
T T
health, public service and mitigation.
U U
V V
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A A
B B
C Totality principle C
D D
111. I have taken into account the totality principle, the facts of the
E case and the charges here. I will order those who face both Charges 1 and E
3 to serve their sentences concurrently.
F F
G 112. Several defendants are serving sentences for similar or the G
same offences committed on several divers dates during the social turmoil
H H
in 2019 although the common purpose was not the same as in this case.
I The importance of the totality principle is to ensure fairness to any I
defendant. Courts must achieve a just and balanced sentence that will not
J J
punish a defendant twice for the same or similar conduct and crush him.
K K
113. Often, to achieve a fair and balanced sentence, the Court can
L consider concurrent and consecutive sentences. If a person is convicted of L
more than one offence committed on different days or not arising out of a
M 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 114. I have considered the facts of DCCC 536/2020, DCCC R
534/2020, DCCC 535/2020 and the similar or same offences, roles and
S S
mitigation of those relevant defendants. I have taken into account the
T sentences I imposed in those cases. Although there was a time gap of T
months, I find it fair and appropriate to consider concurrent sentences here.
U U
V V
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A A
B B
C Conclusion C
D D
115. After a full discount is applied;
E E
(i) The 2nd defendant is sentenced to 10 months’
F F
imprisonment for Charge 1 and 6 months’
G imprisonment for Charge 3 to be served concurrently; G
a total of 10 months’ imprisonment. I order this
H H
sentence to run concurrently to the sentences he is
I presently serving. I
J J
(ii) The 5th defendant is sentenced to 10 months’
K imprisonment for Charge 1 and 6 months’ K
imprisonment for Charge 3 be served concurrently; a
L L
total of 10 months’ imprisonment. I order this sentence
M to run concurrently to the sentences he is presently M
serving.
N N
O (iii) The 6th defendant is sentenced to 10 months’ O
imprisonment for Charge 1 and 6 months’
P P
imprisonment for Charge 3 to be served concurrently;
Q a total of 10 months’ imprisonment. Q
R R
(iv) The 8 th
defendant is sentenced to 8 months’
S imprisonment for Charge 1 and 4 months’ S
imprisonment for Charge 3 to be served concurrently;
T T
both these sentences are suspended for 18 months. He
U U
V V
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A A
B B
is sentenced to a total of 8 months’ imprisonment
C suspended for 18 months. C
D D
(v) The 9th defendant is sentenced to 8 months’
E imprisonment for Charge 1 and 4 months’ E
imprisonment for Charge 3 to be served concurrently;
F F
a total of 8 months’ imprisonment.
G G
(vi) The 11th defendant is sentenced to 8 months’
H H
imprisonment for Charge 1 and 4 months’
I imprisonment for Charge 3 to be served concurrently; I
a total of 8 months’ imprisonment.
J J
K (vii) The 12th defendant is sentenced to 8 months’ K
imprisonment for Charge 1 and 4 months’
L L
imprisonment for Charge 3 to be served concurrently;
M both these sentences are suspended for 18 months. He M
is sentenced to a total of 8 months’ imprisonment
N N
suspended for 18 months.
O O
(viii) The 14th defendant for Charge 3 is sentenced to 4
P P
months’ imprisonment suspended for 12 months.
Q Q
(ix) The 15th defendant is sentenced to 6 months’
R R
imprisonment for Charge 3. I order this sentence to run
S concurrently to the sentences she is presently serving. S
T T
U U
V V
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A A
B B
(x) The 16th defendant is sentenced to 6 months’
C imprisonment for Charge 3. I order the sentence to run C
concurrently to the sentences he is presently serving.
D D
E (xi) The 18th defendant is sentenced to 6 months’ E
imprisonment for Charge 3.
F F
G (xii) The 20th defendant is sentenced to 6 months’ G
imprisonment for Charge 3. I order the sentence to run
H H
concurrently to the sentences he is presently serving.
I I
116. The 8th, 12th and 14th defendants are warned that if they
J J
commit an offence punishable by imprisonment during the period of
K suspension and are convicted then, they will most certainly be ordered to K
serve their respective terms of imprisonment imposed today.
L L
M M
N N
O O
(A J Woodcock)
P P
District Judge
Q Q
R R
S S
T T
U U
V V
DCCC888/2020 HKSAR v. HO CHUN YAN AND OTHERS - LawHero