區域法院（刑事）District Judge D Yau15/10/2021[2021] HKDC 1324
DCCC107/2021
A A
B B
DCCC 107/2021
C [2021] HKDC 1324 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 107 OF 2021
F F
G ----------------------------- G
HKSAR
H H
v
I CHAN HO WUN (D1) I
TSANG KIN SHING (D2)
J J
CHUI CHI KIN (D3)
K WU CHI WAI (D4) K
CHU HOI DICK, EDDIE (D6)
L L
LEUNG KWOK HUNG (D7)
M TANG SAI LAI (D8) M
-----------------------------
N N
O Before: District Judge D Yau O
Date: 16 October 2021
P P
Present: Ms Crystal Chan, Senior Public Prosecutor and Mr Wayne
Q Lee, Public Prosecutor, for HKSAR Q
(The 1st defendant was not represented and was acting in
R R
person)
S Mr Ng Chung Luen, Chris, instructed by JCC Cheung & Co, S
for the 2nd and 8th defendants
T T
U U
V V
-2-
A A
B B
Miss Wong Kam Hing, Fanny, instructed by Keith Lam Lau
C & Chan, assigned by the Director of Legal Aid, for the 3rd C
defendant
D D
Mr Grounds Christopher and Mr Lee Hung Mo, Geoffrey,
E instructed by Ho, Tse, Wai & Partners, for the 4th defendant E
Mr Chan King Yan, Kristin, Solicitor of Ho, Tse, Wai &
F F
Partners, for the 6th defendant
G Mr Wong Yu Yat, Anson, instructed by Chan & Chan, G
assigned by the Director of Legal Aid, for the 7th defendant
H H
Offence: [1] Incitement to knowingly take part in an unauthorized
I assembly（煽惑他人明知而參與未經批准集結） - D1-D5 I
[2] Holding or organizing an unauthorized assembly（舉行或
J J
組織一個未經批准集結）- D1, D3, D4, D6-D8
K K
[3] Knowingly taking part in an unauthorized assembly（明
L 知而參與未經批准集結） – D1, D3, D4, D6 to D8 L
M M
-----------------------------------------
N N
REASONS FOR SENTENCE
O
----------------------------------------- O
P P
1. There are 8 defendants and 3 charges in this case.
Q Q
2. Charge 1 is a joint charge of “Incitement to knowingly take
R R
part in an unauthorized assembly 1 ” against D1 to D5. All except D5
S pleaded guilty. S
T T
1
Contrary to Common Law and s 17A(3)(a) of the Public Order Ordinance, Cap.245 and punishable
under s 101I of the Criminal Procedure Ordinance, Cap 221.
U U
V V
-3-
A A
B B
C 3. Charge 2 is a joint charge of “Holding or organizing an C
unauthorized assembly ” against D1, D3, D4, D6, D7, D8 who all pleaded
2
D D
guilty.
E E
4. Charge 3 is a joint charge of “Knowingly taking part in an
F F
unauthorized assembly3” against the same 6 defendants as in charge 2, but
G only D1 and D7 pleaded guilty to this charge. G
H H
5. All the defendants who pleaded guilty to their respective
I charges were duly convicted upon their admission to the Amended I
Summary of Facts.
J J
K 6. On the application of the prosecution, charge 3 was ordered K
to be kept on file, not to be proceeded with against D3, D4, D6 and D8
L L
without the leave of court.
M M
SUMMARY OF FACTS
N N
O Charge 1: “Incitement to knowingly take part in an unauthorized assembly” O
P P
7. The facts in relation to charge 1 concern a press conference
Q held on 30 June 2020, where the defendants incited the general public to Q
join them in a procession to take place the following day to voice their
R R
opposition to the soon to be promulgated National Security Law.
S S
T T
2
Contrary to s 17A(3)(b)(i) of the Public Order Ordinance.
3
Contrary to s 17A(3)(a) of the Public Order Ordinance.
U U
V V
-4-
A A
B B
8. The holding of the procession was objected to by the Police
C by way of their refusal to issue a certificate of no objection. Their decision C
was upheld on appeal to the Appeal Board on Public Meetings and
D D
Processions. The assembly, which in fact did take place, was, therefore,
E an unauthorized assembly. E
F F
9. At around 2:15 pm on 30th June, the 5 defendants stood
G outside the Court of Final Appeal building and held a press conference, G
with at least 12 attending media outlets.
H H
I 10. At the beginning of the conference, and at various times later I
on, the defendants held banners that read “反對國安法 七一齊上街”,
J J
which translates into “Opposing National Security Law. Let’s march on 1
K July”. They also chanted slogans including “七一街頭見”, or “see you in K
L
the street on 1 July”, thereby inciting others to join them in the L
unauthorized procession.
M M
N 11. D1 was the first to speak and announced, among other things, N
that regardless of whether permission was given, he and those with him
O O
will insist on initiating a public procession from East Point Road to Chater
P Road on 1st July to oppose the soon to be promulgated National Security P
Law, to express the views of all the participants peacefully. He urged all
Q Q
Hong Kong citizen to join the procession, to be united in the voicing of
R their views against that law. R
S S
12. D2, D4 and D5 took turn to speak and they each appealed to
T the public to join the procession. D4 said that he understood that the T
U U
V V
-5-
A A
B B
convening of public processions was regulated by law but that he was
C prepared to be arrested and insisted on taking part in the procession. C
D D
13. D1 clarified that he was taking part in the press conference in
E his personal capacity, that this will be the fourth time he committed an act E
of civil disobedience, and urged those of his generation to persist in the
F F
expression of their views by way of taking part in the procession.
G G
14. D3 stood behind D2, D4 and D5 while the others spoke,
H H
holding up a poster that read “反對國安法 七一齊上街”。
I I
15. At the end of the press conference, the 5 defendants stood side
J J
by side and held up a similar poster for the press to take photos while they
K chanted various slogans including “七一上街”. K
L L
16. The said press conference was widely reported in Hong Kong
M M
by different media outlets. D2 also shared a live broadcast of the
N conference on his Facebook page with the message “七月一日 一息尚存 N
抗爭到底”，or “1 July Fight until the last breath”.
O O
P 17. Based on the facts summarized above, the defendants had P
jointly incited the public to knowingly take part in the unauthorized
Q Q
assembly to be held on 1 July 2020, and the defendants so incited without
R lawful authority or reasonable excuse. R
S S
T T
U U
V V
-6-
A A
B B
Charge 2: “Holding or organizing an unauthorized assembly” and Charge
C 3: “Knowingly taking part in an unauthorized assembly” C
D D
18. Subsequent to the said press conference and still on the 30 th
E June, D1 appealed to the general public on his Facebook page to join the E
unauthorized procession on 1st July. D1 stated that himself and D2 to D5
F F
were the initiators of the procession and urged the public not to fear the
G prohibition and to stand fast on the street, “無懼禁令 堅守街頭”. G
H H
19. Also on 30th June, D6 posted the messages “反對國安法 七
I 一齊上街” (Opposing National Security Law March on 1 July), and “繼續 I
J 做 一 直 做 的 事 繼 續 嗌 一 直 嗌 的 口 號 反 對 國 安 法 71 街 頭 見 ” J
(“Continue to do what we have been doing, continue to chant the slogans
K K
we have been chanting, oppose National Security Law, see you on the
L street on July 1”) on his Facebook page. L
M M
20. At 11 pm on 30 June 2020, the law of the People’s Republic
N of China on Safeguarding National Security in HKSAR was promulgated N
in Hong Kong.
O O
P 21. At around 11:55 pm, D4 posted on his Facebook page urging P
the public to join the procession the following day.
Q Q
R 22. At around 11:58 pm, D7 published a video of himself urging R
the public to join the procession the following day.
S S
T T
U U
V V
-7-
A A
B B
23. On 1st July, at 00:42 am and 12:57 pm, D1 appealed to the
C public on his Facebook page to gather at 2 pm that day and to take part in C
the procession at 3 pm.
D D
E 24. At around 1 pm on 1st July, a large crowd of protestors started E
to assemble on East Point Road, Great George Street and Paterson Street
F F
in Causeway Bay. They chanted slogans and refused to leave despite the
G Police warning them that they were taking part in an unauthorized G
assembly and appealing for them to disperse.
H H
I 25. At around 2:18 pm, D3 publicized his presence in Causeway I
Bay and asked members of the public to be careful.
J J
K 26. At around 2:34 pm, D7 posted a photo of himself together K
with D1 and D6 at Tin Lok Lane, Causeway Bay. This post was shared by
L L
D2 via his Facebook page at around 2:47pm.
M M
27. At around 2:50 pm, D1, D6 and D7 together held a banner that
N N
read “ 反 對 國 安 惡 法 堅 持 五 大 訴 求 ” (“Opposing the evil national
O
security law, insisting on the five demands”), while D8 walked alongside. O
P
D3 also marched closely behind them. P
Q Q
28. D1, D3, D6 and D7 all gestured in support of the five demands.
R
D1 shouted slogans echoed by D6, D7 and the other participants. R
S S
29. At around 2:55 pm, D1 directed and led the procession to turn
T from Hennessy Road into Tonnochy Road, where D4 joined and was T
U U
V V
-8-
A A
B B
invited by D7 to hold the above mentioned banner together with D1 and
C D6, while D3 and D8 followed closely behind. C
D D
30. D1, D3, D6 and D7 each gestured in support of the five
E demands. D7 led the procession while chanting slogans that were echoed E
by D1, D4, D6 and the other participants.
F F
G 31. D3, D7 and some of the participants gestured to people G
standing on a nearby footbridge to go down to join in the procession.
H H
I 32. At this time, on Tonnochy Road, there were at least 100 I
people immediately behind D1, D3, D4, D6, D7 and D8, all participating
J J
in the procession held or organized by the six defendants.
K K
33. At around 3:04 pm, the procession reached the junction of
L L
Tonnochy Road and Gloucester Road. The participants dispersed when
M Police vehicles entered the area. As soon as the vehicles had left, the six M
defendants attempted to re-group the procession and march on towards
N N
Gloucester Road.
O O
34. D1 asked the people to get back to Tonnochy Road; D8 passed
P P
the banner to D6 who tried to unfold it and to hold it in front of the
Q procession; D1, D3 and D7 gestured for the five demands while walking to Q
the front of the procession; and D4 returned to the procession on Tonnochy
R R
Road.
S S
35. As a result of Police action, they were not successful in their
T T
re-grouping of the procession.
U U
V V
-9-
A A
B B
C 36. At around 3:26 pm, D1, D7 and D8 went to Wan Shing Street C
near the cross-harbour tunnel where D1 held a press conference with D7
D D
next to him.
E E
37. D1 said in the interview that he wanted people to persist with
F F
marching on the street despite Police action against that. He acknowledged
G the courage of those who were taking part in the procession despite the risk G
of being held criminally liable. He stated that the key to counter Police
H H
dispersal was to have a large number of people, and that with sufficient
I numbers, they could achieve whatever they wanted. I
J J
38. Based on the above summarized facts, the 6 defendants in
K charge 2 had held or organized an unauthorized assembly on that day. K
L L
39. Also based on the above summarized facts, D1 and D7 had
M knowingly taken part in an unauthorized assembly on that day. M
N N
OTHER INCIDENTS THAT TOOK PLACE ALONG THE ROUTE OF
O THE UNAUTHORIZED ASSEMBLY, THE PROCESSION AND NEARBY O
ROAD ON 1 JULY 2020
P P
Q 40. Between 3:07 pm and 7:02 pm on 1st July, along the route of Q
the unauthorized assembly from East Point Road to Chater Road and the
R R
route of the procession and the nearby roads, roads were blocked and
S obstructed by those taking part with railings, traffic cones, bricks, mills S
barriers and bus stop signs etc. Small fires were started on the roads and
T T
Police officers were confronted and assaulted by protestors who tried to
U U
V V
- 10 -
A A
B B
prevent them from subduing a protestor. Bricks were dug up and threw
C onto the carriageway. Some of the shops along the routes were forced to C
close.
D D
E TRAFFIC DISRUPTION E
F F
41. As a result of the gathering of people in the vicinity of
G Causeway Bay to attend the procession, traffic in the area was seriously G
disrupted on 1st July and traffic along the route of the procession was
H H
seriously affected between 2:22 pm and 9:15 pm.
I I
42. During the procession, 75 bus routes were suspended,
J J
truncated or diverted and 5 minibus routes were suspended.
K K
43. At the height of the traffic disruption at around 5:20 pm, 94
L L
bus routes and 9 minibus routes had to be diverted or suspended.
M M
44. 45 trams services between North Point Terminus and Western
N N
Market Terminus were suspended between 1 pm and 8:35 pm. Only
O limited tram routes were able to be maintained during that time. O
P P
45. The defendants were all arrested on 8 December 2020.
Q Q
PREVIOUS CONVICTIONS
R R
S 46. D1 Mr Chan was of clear record at the time of his commission S
of the present offences. He has since been convicted of various similar
T T
offences that will be referred to later on.
U U
V V
- 11 -
A A
B B
C 47. D2 Mr Tsang has two previous convictions. He was fined C
$3,000 for one charge of Disorderly conduct in a public place in 1999, and
D D
sentenced to 14 days’ imprisonment, suspended for 18 months for an
E offence of Participating in a prohibited group gathering in March 2021. E
This latter conviction is dated after the commission of the present offences
F F
and will not be taken as adding to his culpability. His sentence will not be
G enhanced based on those records given the lapse of time. G
H H
48. D3 Mr Chui and D4 Mr Wu are both of previously clear record.
I I
49. D6 Mr Chu has 3 previous convictions dated October 2012,
J J
all relating to civil disobedience matters as at the time of his commission
K of the offence in charge 2. Given the lapse of time, I will not enhance his K
sentence based on those convictions.
L L
M 50. He was convicted recently on 15 September 2021 for one M
charge of Taking part in an unauthorized assembly in the District Court
N N
and was sentenced to 6 months’ imprisonment4. The assembly in that case
O took part on 4 June 2020. O
P P
51. D7 Mr Leung has attended court on 22 previous occasions.
Q His latest set of convictions started in March this year and ended on 15 Q
September 2021, being all related to unauthorized assemblies.
R R
S S
T T
4
HKSAR v Ho Chun Yan & Others [2021] HKDC 1160.
U U
V V
- 12 -
A A
B B
52. As at the time of his commission of the present 3 offences, his
C last convictions were in 2016. Given the lapse of time, I will not enhance C
his sentence on the basis of those convictions.
D D
E 53. D8 Mr Tang is of previously clear record. E
F F
MITIGATION
G G
54. Each of the 7 defendants have provided the court with written
H H
submissions. Apart from D1 Mr Chan, all the other defendants also
I produced letters written by their friends or relatives in support of their I
mitigation. I have considered them all and will not set them out here.
J J
K D1 K
L L
55. Mr Chan appeared in person. In his short but eloquent
M handwritten submissions, he states that he has no regrets in committing the M
offences, stressing that he was just holding fast to his belief in civil
N N
disobedience.
O O
D2
P P
Q 56. Mr Tsang also wrote, setting out his life story, of how he Q
started from humble beginnings and worked hard to create a lovely family.
R R
S 57. Mr Tsang understands that he is very likely to be incarcerated S
but he will not hold a grudge against the court. For over 32 years, he never
T T
U U
V V
- 13 -
A A
B B
stopped speaking up when he sees injustice and he will continue to do so,
C acting in accordance with his conscience without regrets. C
D D
58. Mr Ng on behalf of Mr Tsang referred to the District Court
E case of HKSAR v Lai Chee Ying and Others 5 and asked the court to E
consider the following matters when setting the appropriate sentences.
F F
G 59. They include the defendant’s attitude, the scale of the G
procession, the age of the defendant and the defendant’s positive
H H
contribution to society.
I I
60. Mr Ng also referred to the case of HKSAR v Chow Ting 6 ,
J J
where the applicant Ms Chow was sentenced to 10 months’ imprisonment
K after plea for one count of incitement of an unauthorized assembly and one K
of knowingly taking part in an unauthorized assembly. Mr Ng pointed to
L L
the lesser role of Ms Chow there and suggested that, despite the need for
M general deterrence, the court should adopt a lower starting point for both M
D2 and D8 according to their lesser roles and the small scale of the
N N
procession, as well as the lack of violence in the present case.
O O
D3
P P
Q 61. Mr Chui is 54 years old and is going through divorce Q
proceedings. He was a proprietor of a trading company for most of his
R R
S S
5
[2021] HKDC 457; DCCC 536/2020.
T T
6
[2020] HKCFI 3089.
U U
V V
- 14 -
A A
B B
working life until 2015 when he ran successfully to be the District
C Councillor for Yue Wan Constituency. He was re-elected in 2019. C
D D
62. The letters filed in support of Mr Chui allow the court to see
E that he has been exceptional in his dedication to his job as District E
Councillor.
F F
G 63. Unfortunately, Mr Chui’s health condition has not been good G
and requires daily insulin injection as well as regular pain medication.
H H
I 64. Ms Wong for D3 reminded the court of Mr Chui’s clear record I
at the time of his commission of the present offences.
J J
K 65. Ms Wong also pointed out that, in relation to the incitement K
charge, D3 did not speak at the press conference, and merely held a poster
L L
in the background. As for the holding and organizing charge, Ms Wong
M pointed out that the defendant was not walking in the front of the M
procession, not leading the crowd nor holding a banner. His was not the
N N
most active role as a holder or organizer of the unauthorized assembly.
O O
66. Ms Wong echoed what Mr Ng said on behalf of D2 and D8,
P P
and asked the court to bear in mind that social unrest had significantly
Q receded by June 2020, and that the scale of the procession was relatively Q
small and short-lived. Furthermore, D3 never intended any violence at the
R R
assembly, although he now recognizes that there was always an inherent
S risk of violence breaking out in events of such a nature. S
T T
U U
V V
- 15 -
A A
B B
67. Ms Wong referred to the case of Secretary for Justice v Wong
C Chi Fung7 and accepted that the sentencing principles there are applicable C
to unauthorized assembly as well, as summarized in paragraphs 151 to 153
D D
of the judgment:-
E E
“151. Drawing the above discussions together, the sentencing
F principles which the courts should adopt in cases of unlawful F
assembly involving violence can be summarized as follows:
G (1) In accordance with general sentencing principles, G
the court will have regard to all the actual
H
circumstances of the case and the seriousness of H
the facts pertaining to the commission of the
offence. Appropriate weight will then be
I accorded to each applicable sentencing factor, I
and a sentence that is commensurate with the
offence will then be imposed. The same
J J
principles apply to cases of unlawful assembly
involving violence.
K K
(2) Although the definition of unlawful assembly in
section 18 of the Public Order Ordinance is
L relatively simple, the range of factual situations L
covered is wide. The seriousness of the facts
M involved varies from case to case and may, M
depending on the actual circumstances, run from
the extremely trivial to the extremely serious.
N Incidents involving violence are certainly much N
closer to the serious end of cases, but the facts of
different cases still vary. So even for the more
O O
serious cases there will still be a spectrum of
seriousness. Within the spectrum, the court will
P accord appropriate weight to the applicable P
sentencing factors based on the actual
circumstances of the case and the seriousness of
Q the facts pertaining to the commission of the Q
offence.
R R
(3) On the basic premise that the public order must
be maintained, and taking into account the
S gravamen of the offence of unlawful assembly, S
the court has to consider the factor of deterrence
T T
7
CAAR 4/2016.
U U
V V
- 16 -
A A
B in sentencing. As to how much weight it should B
accord to this factor, the court has to have regard
C of the actual circumstances of the case. C
(4) If the case is of a relatively minor nature, such as
D when the unlawful assembly was unpremeditated, D
small in scale, involving very little violence, and
not causing any bodily harm or damage to
E E
property, the court may give proportionally more
weight[85] to such factors as the personal
F circumstances of the offender, his motives or F
reasons for committing the offence and the
sentencing factor of rehabilitation while
G G
proportionally less weight to the sentencing
factor of deterrence.
H H
(5) If the case is a serious one, such as when the
unlawful assembly involving violence is large-
I scale or it involves serious violence, the court I
would give the two sentencing factors, namely
J punishment and deterrence, great weight and J
give very little weight or, in an extreme case, no
weight to factors such as the personal
K circumstances of the offender, his motives or K
reasons of committing the offence and the
sentencing factor of rehabilitation.
L L
(6) After the appropriate weight has been accorded
M to all the applicable sentencing factors, the court M
would then impose a sentence on the offender
that is commensurate with the case.
N N
152. Generally speaking, although the facts of minor cases are
O not that serious, the court is still required to ensure that the public O
order is effectively maintained. So there remains a need for
sentences to be suitably deterrent. If all the six factors set out in
P Brown are present, or the facts of the case are suitable, a P
community service order can be an appropriate sentencing
Q
option. It is because the punitive factor in a community service Q
order can be regarded as having a sufficient deterrent effect
while its rehabilitative factor can help offenders, especially
R young offenders, turn over a new leaf. R
153. For serious cases, the main purpose of the sentence is to
S S
punish and deter. So the overall consideration of the court
should be inclined towards imposing an immediate custodial
T sentence. Unless there are very exceptional circumstances, and T
these circumstances should by definition be rare, sentences other
U U
V V
- 17 -
A A
B than an immediate custodial sentence, including suspended B
sentences and community service orders, are not appropriate.”
C C
D4
D D
E 68. Mr Wu also wrote in mitigation, together with a number of E
distinguished individuals, as well as those who had benefitted firsthand the
F F
kindness and generosity of Mr Wu.
G G
69. Mr Grounds reminded the court that Mr Wu has devoted his
H H
life to the Hong Kong community and set out as best he could in a few
I paragraphs the various achievements of Mr Wu, as well as examples of the I
dedication he has shown over the years to the service of others.
J J
K 70. Mr Grounds pointed out that the unauthorized assembly was K
in good order and without any threat to public safety, that the offence was
L L
committed out of a desire to effect positive change in society, and that the
M sentencing court may properly take the offender’s conscientious objections M
and genuine beliefs into account.
N N
O O
71. It is his submission that the lack of violence; the limited
P
number of participants in the procession; the short duration of the assembly P
all contribute to suggest that the starting point should be manifestly lower
Q Q
than the 24 months adopted in earlier cases8.
R R
S S
T 8
Such as HKSAR v Chan Ho Wun & Others (2020) 21 HKDC 645 (DCCC 534/2020); HKSAR v Chan T
Ho Wun & Others (2020) 21 HKDC 1100 (DCCC 535/2020).
U U
V V
- 18 -
A A
B B
72. Lastly, Mr Grounds asks the court to take into proper account
C the defendant’s clear record, his positive good character, and his C
contribution to society and suspend his sentence.
D D
E D6 E
F F
73. Mr Chu is 43. In the written submissions in mitigation
G prepared by his solicitors, the court is reminded of his dedication to public G
service and community work over the years.
H H
I 74. It is stated in the submissions that the assembly on 1 July 2020 I
lasted from 14:50 to 15:04 and was at all times peaceful. The participants
J J
assembled in an orderly and organized fashion. There is no evidence to
K suggest there will be violence or the threat of it. K
L L
75. D6’s role in the holding and organizing of the unauthorized
M assembly was merely to chant slogans, holding a banner, and keeping the M
procession in order.
N N
O 76. Mr Chu also relies on the small size of the procession as a O
mitigating factor, suggesting that the case falls in the lower end of the
P P
spectrum of seriousness.
Q Q
D7
R R
S 77. Mr Leung, D7, is 65 and got married recently. He has been S
having cardiovascular health issues.
T T
U U
V V
- 19 -
A A
B B
78. On behalf of the defendant, Mr Anson Wong submitted that
C the court should take into account the following matters when deciding on C
the proper sentence. These are factors distilled from local and overseas
D D
cases9 where a defendant’s right to freedom of expression and assembly
E were engaged and the court has to consider the appropriate sentence when E
those rights were interfered with.
F F
G 79. First, the defendant had always intended the 1st July public G
procession to be held in a peaceful and non-violent manner, and had
H H
conducted himself accordingly throughout his organization of the event.
I I
80. Secondly, the defendant was involved in the public procession
J J
for a relatively short period of time, and the procession was of a relatively
K small scale when compared to the ones that took place in August and K
October 201910.
L L
M 81. Mr Wong’s position is that the smaller scale would suggest a M
lower level of culpability and should be reflected in a lower starting point.
N N
O 82. Thirdly, the views that the defendant was trying to convey O
through organizing the procession related to very important issues, and are
P P
“views which many would see as being of considerable breadth, depth and
Q relevance”, and the defendant, together with those jointly charged, Q
“believed in the views they were expressing”.
R R
S S
9
Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35; R v Roberts (Richard) [2019] 1 WLR
T T
2577; DPP v Ziegler [2021] 3 WLR 179; HKSAR v Au Nok Hin [2021] HKCA 1137.
10
These unauthorized assemblies were dealt with in the District Court cases of DCCC 534, 535 and
536/2020.
U U
V V
- 20 -
A A
B B
83. Mr Wong submitted that the court should not attribute to the
C defendant any reprehensible conduct which he did not incite, cause or C
participate in, especially not for events that took place after his
D D
participation in the public procession, relying on a passage at paragraph
E 224 of the Guidelines on Freedom of Peaceful Assembly (3 rd edition, 15 E
July 2020) published by the European Commission for Democracy through
F F
Law for this proposition.
G G
84. In gist, it is Mr Wong’s submission that neither the defendant
H H
nor those jointly charged with him had incited any violent conduct, and his
I sentence should so reflect. I
J J
85. As for the disruption to traffic in the Wanchai, Causeway Bay
K and connected areas, Mr Wong pointed out that such disruption would have K
occurred regardless of whether the assembly was authorized or not. He
L L
also drew the court’s attention to two cases where the court opined that any
M meaningful assembly procession or demonstration would cause some M
measure of obstruction and that it is important for the public authorities to
N N
show a certain degree of tolerance11.
O O
D8
P P
Q 86. Mr Tang is 59 years old and a divorcée. He is currently Q
unemployed and suffers from medical conditions concerning his eyesight
R R
and blood pressure.
S S
T 11
HKSAR v Yeung May Wan (2005) 8 HKCFAR 137 at paragraph 135, and Kudrevičius v Lithuania T
(2016) 62 EHRR 34 at paragraph 155.
U U
V V
- 21 -
A A
B B
C 87. In his letter, Mr Tang says that with hindsight, he regrets his C
impulsiveness on the day of the offence. He wishes the court to give weight
D D
to his guilty plea, his genuine remorse, his clear record and limited
E involvement in the holding or organizing of the unauthorized assembly in E
charge 2.
F F
G 88. He also referred to the short duration and small size of the G
procession as factors to consider when this court decides on his sentence.
H H
I 89. On behalf of Mr Tang, counsel Mr Ng supplemented D8’s I
letter by pointing out that the defendant did not take part in the application
J J
for approval from the Police for the procession, nor in the press conference.
K His only involvement in relation to the holding or organizing of the K
procession only started on 1st July and his role was minor. D8 did not speak
L L
with a loudhailer nor led the crowd in chanting slogans. D8 only walked
M along with other defendants and demonstrators. He did hold up one corner M
of a large banner when he saw that no one was doing it, but he only did so
N N
for about 20 minutes before he handed it over to someone else.
O O
90. Mr Ng stressed that Mr Tang did not speak to the press, nor
P P
actively encourage anyone to join the procession. He is not a public figure
Q and unlikely that anyone would have been induced by his presence to take Q
part in the procession.
R R
S S
T T
U U
V V
- 22 -
A A
B B
SENTENCE
C C
91. The maximum sentence on conviction upon indictment for
D D
committing a s 17A(3) offence, or inciting others to so commit, is that of 5
E years’ imprisonment. E
F F
SENTENCING PRINCIPLES
G G
92. The sentencing principles applicable in offences related to
H H
unauthorized assembly are not in dispute.
I I
93. Each of the defendants, by way of their adoption of the
J J
relevant parts of the mitigation submissions of Mr Ng, Ms Wong, Mr
K Grounds, Mr Wong and solicitors for D6, is asking the court to consider K
the matters I have already set out above and I will not repeat them here.
L L
M Charge 1: incitement M
N N
94. In relation to the incitement charge, I note first of all that the
O incitement was directed at all of Hong Kong and that it was covered widely O
by different media. The intention of the defendants was clearly to incite as
P P
many as possible to join in the procession that they knew will in all
Q likelihood be an unauthorized assembly. Q
R R
95. D1 Mr Chan was the first person to speak, and he spoke more
S than once at the press conference on 30th June. He was clearly the S
spokesperson of the group.
T T
U U
V V
- 23 -
A A
B B
96. D2 Mr Tsang and D4 Mr Wu also spoke at the conference to
C incite others to join the procession. Given the social status of Mr Tsang C
and Mr Wu, their words would have carried considerable weight towards
D D
the intended audiences, amplifying the incitement to a certain extent.
E E
97. Having said that, the court can take notice that as at the time
F F
of the incitement, as a result of Police action, the general situation of Hong
G Kong had settled down considerably. This is evidenced by the clearly G
smaller number of participants in the procession the following day.
H H
I 98. Furthermore, out of all the video footages of the procession I
and the assemblies that took place in or around Causeway Bay and
J J
Wanchai, there were only 2 occasions of a small fire being lit in the middle
K of the road, away from buildings. There were assorted debris on the road K
but they would have been easily cleared away. There was one incident of
L L
an organized blockade of the road between Central Library and Victoria
M Park with umbrella holding protestors but it did not last long. There was, M
however, one incident where matter had turned violent when riot Police
N N
tried to subdue a protestor.
O O
99. It is clear from the line of sentencing cases and authorities
P P
now in place that, in relation to offences involving the incitement of others
Q to join in unauthorized assemblies, the need to punish and deter is Q
overwhelming and an immediate custodial sentence is the only appropriate
R R
option in serious cases involving violence unless there are very exceptional
S circumstances. S
T T
U U
V V
- 24 -
A A
B B
100. The incitement by the defendants was towards the general
C public. Regardless of the eventual turnout, the nature of the incitement was C
serious. There was always an inherent risk of matters taking a wrong turn
D D
given the volatile atmosphere after the passing of the National Security
E Law. I find that an immediate custodial sentence is the only appropriate E
sentencing option.
F F
G 101. As such, after careful consideration of all the circumstances, G
for their active and vocal role in charge 1, I will adopt a starting point of
H H
18 months’ imprisonment for D1, D2 and D4.
I I
102. As for D3, Ms Wong rightly pointed out that all Mr Chui did
J J
was to hold up a poster while the others spoke, as well as to join in the
K chanting of slogans from time to time. For his lesser role in the incitement, K
I adopt a starting point of 12 months’ imprisonment.
L L
M 103. All 4 defendants had entered timely pleas of guilty and they M
are given the full one-third discount on that basis. The respective sentences
N N
after plea are, therefore, for D1, D2 and D4, 12 months’ imprisonment and
O 8 months’ imprisonment for D3. O
P P
Further reduction in sentence
Q Q
104. In recognition of their past contribution to the Hong Kong
R R
community as disclosed in their mitigation materials, I will apply a further
S reduction of 2 months to sentences of D2 and D4. S
T T
U U
V V
- 25 -
A A
B B
105. Also recognizing his contribution to society through his
C dedication to help others, and taking into consideration Mr Chui’s health C
condition, I will also grant him a further 2 months’ reduction in sentence.
D D
E 106. The sentences after plea and reduction in relation to charge 1 E
is, therefore, 12 months’ imprisonment for D1, 10 months’ imprisonment
F F
for D2 and D4, and 6 months’ imprisonment for D3.
G G
Charge 2: holding and organizing
H H
I 107. In relation to charge 2, based on the summary of facts and the I
video footages, D1 was again the most vocal of the group and was clearly
J J
a leading figure.
K K
108. Much was said by all the defendants as to the short duration
L L
of the procession. On their different estimates, it lasted between 4 to 40
M minutes. While this may be true, one must not overlook the reason it did M
not last longer was because of swift and effective Police action. I find that
N N
it is an irresistible inference that had the Police not been there, the
O procession would have gone on for much longer. In fact, from the video O
footages, one can clearly hear D1 saying that he “will not give up so easily”
P P
after the Police appeared to have broken up the procession at the junction
Q of Tonnochy and Gloucester Road. Q
R R
109. For a charge of holding or organizing an authorized assembly,
S I find that the intention of the holder or organizer for the procession to S
continue must be one of the factors to be considered when deciding on the
T T
U U
V V
- 26 -
A A
B B
defendants’ culpability, alongside the fact that the scale of the procession
C was relatively small. C
D D
110. Different to the assemblies that took place in August and
E October 2019 which were dealt with in the earlier cases referred to in E
mitigations above, the social unrest situation had settled down slightly by
F F
the end of June 2020.
G G
111. Furthermore, it is clear that the defendants had wanted the
H H
procession to be peaceful and non-violent. Although they must also have
I known from watching what had happened in the 2019 protests that the I
situation was still volatile and realized that there was always a risk of
J J
violence breaking out when they held or organized the unauthorized
K assembly. K
L L
112. Taking into consideration the general sentencing principles
M referred to above when dealing with charge 1, I find that for D3, D4, D6, M
D7 and D8, I will each adopt a starting point of 12 month’s imprisonment
N N
based on their apparently lesser role in the holding or organizing of the
O unauthorized assembly. O
P P
113. As for D1, for his leading role in the commission of the
Q offence, I will adopt a starting point of 18 months’ imprisonment. Q
R R
114. The defendants all entered timely pleas of guilty and are
S granted the full one-third discount, taking the sentences down to 12 months S
for D1, and 8 months for D3, D4, D6, D7 and D8.
T T
U U
V V
- 27 -
A A
B B
115. Apart from D1, in recognition of their past contribution to
C society, as well as their health condition in the cases of D3 and D7, I will C
further reduce the defendants’ sentences by 2 months. The resulting
D D
sentence for D3, D4, D6, D7 and D8 for charge 2 is, therefore, 6 months’
E imprisonment. E
F F
Charge 3: knowingly taking part in an unauthorized assembly
G G
116. Only D1 and D7 are being sentenced for this offence.
H H
I 117. Bearing in mind the relatively small scale of the assembly, the I
low level of violence involved, but being aware of the need to punish and
J J
deter, I find that an immediate custodial sentence is required and adopt a
K starting point of 15 months’ imprisonment for the two defendants. K
L L
118. They both pleaded guilty and is granted the full one-third
M discount, leading to a sentence of 10 months’ imprisonment after plea. M
N N
119. Just as before, in recognition of D7 Mr Leung’s past
O contribution to the community and taking into consideration his health O
condition, I will further reduce his sentence by 2 months, resulting in 8
P P
months’ imprisonment for D7, and 10 months’ imprisonment for D1 on
Q charge 3. Q
R R
TOTALITY
S S
120. The issue of totality of sentence arises in the case of D1, D3,
T T
D4, D6 and D7, either because of them having been convicted of more than
U U
V V
- 28 -
A A
B B
one charge in the present case, or because they are serving other sentences
C from earlier cases, or both. C
D D
121. First of all, I find that in the present case, all 3 offences arose
E out of the same factual matrix, and that the sentences for those who are E
being sentenced for more than one charge should be made concurrent, and
F F
I so order.
G G
122. The total sentence for D3 and D4 is, therefore, 6 and 10
H H
months’ imprisonment respectively.
I I
D1: charges 1, 2 and 3 and his serving sentence
J J
K 123. D1 was of clear record when he committed the offences in the K
present case.
L L
M 124. He was, however, sentenced on 28 May 2021 to 18 months’ M
imprisonment in the District Court case of HKSAR v Chan Ho Wun and
N N
others [2021] HKDC 645; DCCC 534/2020 for one charge of “Incitement
O to knowingly take part in an unauthorized assembly” and one charge of O
“Holding or organizing an unauthorized assembly”. The assembly in that
P P
case took place on 1 October 2019.
Q Q
125. He was next sentenced on 1 September 2021 to 16 months’
R R
imprisonment in HKSAR v Chan Ho Wun and others [2021] HKDC 1100;
S DCCC 535/2020 for two similar offences. The assembly took place on 20 S
October 2019. The sentences in this case was ordered to run concurrently
T T
to the sentence in the earlier case.
U U
V V
- 29 -
A A
B B
C 126. Mr Chan was last sentenced on 15 September 2021 in HKSAR C
12
v Ho Chun Yan and others [2021] HKDC 1160; DCCC 857/2020 to 10
D D
months’ imprisonment for Charge 1 (similar to our charge 1) and 6 months’
E imprisonment for Charge 3 (similar to our charge 3), to be served E
concurrently. This sentence was then ordered to run concurrently to the
F F
sentences he was then serving. The unauthorized assembly in that case
G took place on 4 June 2020. G
H H
127. HH Judge Woodcock gave the following reasons for her
I decision to make the sentences concurrent:- I
J J
“112. Several defendants are serving sentences for similar or
the same offences committed on several divers dates during the
K social turmoil in 2019 although the common purpose was not the K
same as in this case. The importance of the totality principle is
to ensure fairness to any defendant. Courts must achieve a just
L L
and balanced sentence that will not punish a defendant twice for
the same or similar conduct and crush him.
M M
113. Often, to achieve a fair and balanced sentence, the Court
can consider concurrent and consecutive sentences. If a person
N is convicted of more than one offence committed on different N
days or not arising out of a single transaction or the same set of
O facts, then the sentence ought in principle to run consecutively O
to the sentences on each of the other offences but subject to an
assessment of the appropriate totality. To achieve that,
P sentences can be imposed but are served in whole or in part P
concurrently rather than consecutively. This avoids excessive
Q
punishment yet still reflects multiple offences, overall Q
criminality and culpability.
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 mitigation of those relevant defendants. I have taken
S S
into account the sentences I imposed in those cases. Although
T T
12
Mr Chan was D5 in that case.
U U
V V
- 30 -
A A
B there was a time gap of months, I find it fair and appropriate to B
consider concurrent sentences here.”
C C
128. While I agree entirely in principle with HH Judge Woodcock,
D D
given the close proximity in time of the offences committed in the present
E case after the previous one, I find, however, that part of the sentence should E
be made consecutive in order to properly reflect the culpability on D1’s
F F
part in inciting, organizing and taking part in another unauthorized
G assembly in such a short time. G
H H
129. I will, therefore, order 3 months of the sentence in the present
I case to be served consecutively to the sentence that Mr Chan is presently I
serving, the balance to be served concurrently.
J J
K D7: charges 2 and 3 and his serving sentence K
L L
130. In relation to D7, Mr Leung was sentenced to a total of 18
M months’ imprisonment on 16 April 2021 for two identical charges arising M
out of an unauthorized assembly on 18 August 2019 in HKSAR v Lai Chee
N N
Ying and others [2021] HKDC 457; DCCC 536/2020.
O O
P
131. About 1 month later on 28 May 2021, Mr Leung was P
sentenced to a total of 18 months’ imprisonment for two identical charges
Q Q
for the unauthorized assembly held on 1 October 2019 in the case of
R HKSAR v Chan Ho Wun and others [2021] HKDC 645; DCCC 534/2020. R
HH Judge Woodcock ordered that 4 months of this sentence to be served
S S
consecutively to the earlier sentence, resulting in a total sentence of 22
T months’ imprisonment for the two cases. T
U U
V V
- 31 -
A A
B B
132. On 1 September 2021, Mr Leung was sentenced for two
C identical offences in relation to a third unauthorized assembly held on 20 C
October 2019 to 18 months’ imprisonment, but reduced by 2 months for
D D
time already served in the 18 August and 1 October 2019 assemblies,
E leading to a sentence of 16 months’ imprisonment. This 16 months E
sentence was then ordered to run concurrently to the sentences for the 18
F F
August and 1 October 2019 assemblies. That was the case of DCCC
G 535/2020. G
H H
133. 2 weeks after that 3rd sentencing exercise, Mr Leung was
I before HH Judge Woodcock again for one charge of “knowingly taking I
part in an unauthorized assembly” where he was sentenced to 6 months’
J J
imprisonment. That sentence was also ordered to be served concurrently
K to the rest of the sentences that Mr Leung was serving. This was DCCC K
857/2020.
L L
M 134. This is Mr Leung’s fourth conviction for organizing or taking M
part in unauthorized assemblies. Given that one of the key considerations
N N
in sentencing this kind of offences is deterrence, it would appear that the
O previous sentences have failed to achieve any such effect. This is, of course, O
entirely understandable and if Mr Leung is to hold true to his beliefs, it is
P P
likely that no amount of enhancement reasonably applied would stop him
Q from continuing to express his views as he sees fit. Q
R R
135. Bearing in mind the principle of totality, especially the
S circumstances of the defendant’s commission of the offences, both in S
relation to the present case and the previous 3 cases, but also the health
T T
condition of Mr Leung, I find that I must order that 1 month of the
U U
V V
- 32 -
A A
B B
sentences in the present case to be served consecutively to the rest of the
C sentences, the balance to be served concurrently. C
D D
D6: charge 2 and his serving sentence
E E
136. D6 was convicted recently on 15 September 2021 for one
F F
charge of “taking part in an unauthorized assembly” in the District Court
G and was sentenced to 6 months’ imprisonment13. The assembly in that case G
took part on 4 June 2020. This sentence gives rise to the issue of totality
H H
in sentencing the defendant in the present case.
I I
137. Mr Chu’s solicitors submit that the previous proceedings and
J J
the present one arose from the similar or same kind of offence, that is to
K say, a public procession. D6 had similar roles in both the 4th June and the K
1st July assembly. They ask that the final sentence should reflect the true
L L
and limited culpability of D6 and ask that the sentence in the present case
M be ordered to run concurrently to the sentence in the earlier case. M
N N
138. I find that I cannot agree entirely with Mr Chu’s solicitors’
O submissions. Just as in the case of D1 and D7, Mr Chu chose to commit O
the present offence just 27 days after he committed the offence in relation
P P
to the 4 June 2020 unauthorized assembly. In order to properly reflect his
Q culpability, I find that 2 months of Mr Chu’s sentence in the present case Q
should be served consecutively to the sentence he is presently serving.
R R
S S
T T
13
HKSAR v Ho Chun Yan & Others [2021] HKDC 1160.
U U
V V
- 33 -
A A
B B
FINAL SENTENCES
C C
139. For ease of reference, the final sentences after plea are
D D
tabulated as below:-
E E
Charge 1 Charge 2 Charge 3 After Totality
F in present case F
D1 12 12 10 12
G G
D2 10 - - 10
H D3 6 6 - 6 H
D4 10 6 - 10
I I
D6 - 6 - 6
J D7 - 6 8 8 J
D8 - 6 - 6
K K
L TOTALITY IN RELATION TO SENTENCES IN EARLIER CASES FOR D1, L
D6 AND D7
M M
N 140. In relation to D1, 3 months of the 12-month sentence in the N
present case to be served consecutively to the sentence he is now serving,
O O
the balance to be served concurrently.
P P
141. In relation to D6, 2 months of the 6-month sentence in the
Q Q
present case be served consecutively to the sentence he is now serving, the
R balance to be served concurrently. R
S S
T T
U U
V V
- 34 -
A A
B B
142. In relation to D7, 1 month of the 8-month sentence in the
C present case be served consecutively to the sentence he is now serving, the C
balance to be served concurrently.
D D
E E
F F
G ( Douglas TH Yau ) G
District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
DCCC107/2021 HKSAR v. CHAN HO WUN AND OTHERS - LawHero
A A
B B
DCCC 107/2021
C [2021] HKDC 1324 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 107 OF 2021
F F
G ----------------------------- G
HKSAR
H H
v
I CHAN HO WUN (D1) I
TSANG KIN SHING (D2)
J J
CHUI CHI KIN (D3)
K WU CHI WAI (D4) K
CHU HOI DICK, EDDIE (D6)
L L
LEUNG KWOK HUNG (D7)
M TANG SAI LAI (D8) M
-----------------------------
N N
O Before: District Judge D Yau O
Date: 16 October 2021
P P
Present: Ms Crystal Chan, Senior Public Prosecutor and Mr Wayne
Q Lee, Public Prosecutor, for HKSAR Q
(The 1st defendant was not represented and was acting in
R R
person)
S Mr Ng Chung Luen, Chris, instructed by JCC Cheung & Co, S
for the 2nd and 8th defendants
T T
U U
V V
-2-
A A
B B
Miss Wong Kam Hing, Fanny, instructed by Keith Lam Lau
C & Chan, assigned by the Director of Legal Aid, for the 3rd C
defendant
D D
Mr Grounds Christopher and Mr Lee Hung Mo, Geoffrey,
E instructed by Ho, Tse, Wai & Partners, for the 4th defendant E
Mr Chan King Yan, Kristin, Solicitor of Ho, Tse, Wai &
F F
Partners, for the 6th defendant
G Mr Wong Yu Yat, Anson, instructed by Chan & Chan, G
assigned by the Director of Legal Aid, for the 7th defendant
H H
Offence: [1] Incitement to knowingly take part in an unauthorized
I assembly（煽惑他人明知而參與未經批准集結） - D1-D5 I
[2] Holding or organizing an unauthorized assembly（舉行或
J J
組織一個未經批准集結）- D1, D3, D4, D6-D8
K K
[3] Knowingly taking part in an unauthorized assembly（明
L 知而參與未經批准集結） – D1, D3, D4, D6 to D8 L
M M
-----------------------------------------
N N
REASONS FOR SENTENCE
O
----------------------------------------- O
P P
1. There are 8 defendants and 3 charges in this case.
Q Q
2. Charge 1 is a joint charge of “Incitement to knowingly take
R R
part in an unauthorized assembly 1 ” against D1 to D5. All except D5
S pleaded guilty. S
T T
1
Contrary to Common Law and s 17A(3)(a) of the Public Order Ordinance, Cap.245 and punishable
under s 101I of the Criminal Procedure Ordinance, Cap 221.
U U
V V
-3-
A A
B B
C 3. Charge 2 is a joint charge of “Holding or organizing an C
unauthorized assembly ” against D1, D3, D4, D6, D7, D8 who all pleaded
2
D D
guilty.
E E
4. Charge 3 is a joint charge of “Knowingly taking part in an
F F
unauthorized assembly3” against the same 6 defendants as in charge 2, but
G only D1 and D7 pleaded guilty to this charge. G
H H
5. All the defendants who pleaded guilty to their respective
I charges were duly convicted upon their admission to the Amended I
Summary of Facts.
J J
K 6. On the application of the prosecution, charge 3 was ordered K
to be kept on file, not to be proceeded with against D3, D4, D6 and D8
L L
without the leave of court.
M M
SUMMARY OF FACTS
N N
O Charge 1: “Incitement to knowingly take part in an unauthorized assembly” O
P P
7. The facts in relation to charge 1 concern a press conference
Q held on 30 June 2020, where the defendants incited the general public to Q
join them in a procession to take place the following day to voice their
R R
opposition to the soon to be promulgated National Security Law.
S S
T T
2
Contrary to s 17A(3)(b)(i) of the Public Order Ordinance.
3
Contrary to s 17A(3)(a) of the Public Order Ordinance.
U U
V V
-4-
A A
B B
8. The holding of the procession was objected to by the Police
C by way of their refusal to issue a certificate of no objection. Their decision C
was upheld on appeal to the Appeal Board on Public Meetings and
D D
Processions. The assembly, which in fact did take place, was, therefore,
E an unauthorized assembly. E
F F
9. At around 2:15 pm on 30th June, the 5 defendants stood
G outside the Court of Final Appeal building and held a press conference, G
with at least 12 attending media outlets.
H H
I 10. At the beginning of the conference, and at various times later I
on, the defendants held banners that read “反對國安法 七一齊上街”,
J J
which translates into “Opposing National Security Law. Let’s march on 1
K July”. They also chanted slogans including “七一街頭見”, or “see you in K
L
the street on 1 July”, thereby inciting others to join them in the L
unauthorized procession.
M M
N 11. D1 was the first to speak and announced, among other things, N
that regardless of whether permission was given, he and those with him
O O
will insist on initiating a public procession from East Point Road to Chater
P Road on 1st July to oppose the soon to be promulgated National Security P
Law, to express the views of all the participants peacefully. He urged all
Q Q
Hong Kong citizen to join the procession, to be united in the voicing of
R their views against that law. R
S S
12. D2, D4 and D5 took turn to speak and they each appealed to
T the public to join the procession. D4 said that he understood that the T
U U
V V
-5-
A A
B B
convening of public processions was regulated by law but that he was
C prepared to be arrested and insisted on taking part in the procession. C
D D
13. D1 clarified that he was taking part in the press conference in
E his personal capacity, that this will be the fourth time he committed an act E
of civil disobedience, and urged those of his generation to persist in the
F F
expression of their views by way of taking part in the procession.
G G
14. D3 stood behind D2, D4 and D5 while the others spoke,
H H
holding up a poster that read “反對國安法 七一齊上街”。
I I
15. At the end of the press conference, the 5 defendants stood side
J J
by side and held up a similar poster for the press to take photos while they
K chanted various slogans including “七一上街”. K
L L
16. The said press conference was widely reported in Hong Kong
M M
by different media outlets. D2 also shared a live broadcast of the
N conference on his Facebook page with the message “七月一日 一息尚存 N
抗爭到底”，or “1 July Fight until the last breath”.
O O
P 17. Based on the facts summarized above, the defendants had P
jointly incited the public to knowingly take part in the unauthorized
Q Q
assembly to be held on 1 July 2020, and the defendants so incited without
R lawful authority or reasonable excuse. R
S S
T T
U U
V V
-6-
A A
B B
Charge 2: “Holding or organizing an unauthorized assembly” and Charge
C 3: “Knowingly taking part in an unauthorized assembly” C
D D
18. Subsequent to the said press conference and still on the 30 th
E June, D1 appealed to the general public on his Facebook page to join the E
unauthorized procession on 1st July. D1 stated that himself and D2 to D5
F F
were the initiators of the procession and urged the public not to fear the
G prohibition and to stand fast on the street, “無懼禁令 堅守街頭”. G
H H
19. Also on 30th June, D6 posted the messages “反對國安法 七
I 一齊上街” (Opposing National Security Law March on 1 July), and “繼續 I
J 做 一 直 做 的 事 繼 續 嗌 一 直 嗌 的 口 號 反 對 國 安 法 71 街 頭 見 ” J
(“Continue to do what we have been doing, continue to chant the slogans
K K
we have been chanting, oppose National Security Law, see you on the
L street on July 1”) on his Facebook page. L
M M
20. At 11 pm on 30 June 2020, the law of the People’s Republic
N of China on Safeguarding National Security in HKSAR was promulgated N
in Hong Kong.
O O
P 21. At around 11:55 pm, D4 posted on his Facebook page urging P
the public to join the procession the following day.
Q Q
R 22. At around 11:58 pm, D7 published a video of himself urging R
the public to join the procession the following day.
S S
T T
U U
V V
-7-
A A
B B
23. On 1st July, at 00:42 am and 12:57 pm, D1 appealed to the
C public on his Facebook page to gather at 2 pm that day and to take part in C
the procession at 3 pm.
D D
E 24. At around 1 pm on 1st July, a large crowd of protestors started E
to assemble on East Point Road, Great George Street and Paterson Street
F F
in Causeway Bay. They chanted slogans and refused to leave despite the
G Police warning them that they were taking part in an unauthorized G
assembly and appealing for them to disperse.
H H
I 25. At around 2:18 pm, D3 publicized his presence in Causeway I
Bay and asked members of the public to be careful.
J J
K 26. At around 2:34 pm, D7 posted a photo of himself together K
with D1 and D6 at Tin Lok Lane, Causeway Bay. This post was shared by
L L
D2 via his Facebook page at around 2:47pm.
M M
27. At around 2:50 pm, D1, D6 and D7 together held a banner that
N N
read “ 反 對 國 安 惡 法 堅 持 五 大 訴 求 ” (“Opposing the evil national
O
security law, insisting on the five demands”), while D8 walked alongside. O
P
D3 also marched closely behind them. P
Q Q
28. D1, D3, D6 and D7 all gestured in support of the five demands.
R
D1 shouted slogans echoed by D6, D7 and the other participants. R
S S
29. At around 2:55 pm, D1 directed and led the procession to turn
T from Hennessy Road into Tonnochy Road, where D4 joined and was T
U U
V V
-8-
A A
B B
invited by D7 to hold the above mentioned banner together with D1 and
C D6, while D3 and D8 followed closely behind. C
D D
30. D1, D3, D6 and D7 each gestured in support of the five
E demands. D7 led the procession while chanting slogans that were echoed E
by D1, D4, D6 and the other participants.
F F
G 31. D3, D7 and some of the participants gestured to people G
standing on a nearby footbridge to go down to join in the procession.
H H
I 32. At this time, on Tonnochy Road, there were at least 100 I
people immediately behind D1, D3, D4, D6, D7 and D8, all participating
J J
in the procession held or organized by the six defendants.
K K
33. At around 3:04 pm, the procession reached the junction of
L L
Tonnochy Road and Gloucester Road. The participants dispersed when
M Police vehicles entered the area. As soon as the vehicles had left, the six M
defendants attempted to re-group the procession and march on towards
N N
Gloucester Road.
O O
34. D1 asked the people to get back to Tonnochy Road; D8 passed
P P
the banner to D6 who tried to unfold it and to hold it in front of the
Q procession; D1, D3 and D7 gestured for the five demands while walking to Q
the front of the procession; and D4 returned to the procession on Tonnochy
R R
Road.
S S
35. As a result of Police action, they were not successful in their
T T
re-grouping of the procession.
U U
V V
-9-
A A
B B
C 36. At around 3:26 pm, D1, D7 and D8 went to Wan Shing Street C
near the cross-harbour tunnel where D1 held a press conference with D7
D D
next to him.
E E
37. D1 said in the interview that he wanted people to persist with
F F
marching on the street despite Police action against that. He acknowledged
G the courage of those who were taking part in the procession despite the risk G
of being held criminally liable. He stated that the key to counter Police
H H
dispersal was to have a large number of people, and that with sufficient
I numbers, they could achieve whatever they wanted. I
J J
38. Based on the above summarized facts, the 6 defendants in
K charge 2 had held or organized an unauthorized assembly on that day. K
L L
39. Also based on the above summarized facts, D1 and D7 had
M knowingly taken part in an unauthorized assembly on that day. M
N N
OTHER INCIDENTS THAT TOOK PLACE ALONG THE ROUTE OF
O THE UNAUTHORIZED ASSEMBLY, THE PROCESSION AND NEARBY O
ROAD ON 1 JULY 2020
P P
Q 40. Between 3:07 pm and 7:02 pm on 1st July, along the route of Q
the unauthorized assembly from East Point Road to Chater Road and the
R R
route of the procession and the nearby roads, roads were blocked and
S obstructed by those taking part with railings, traffic cones, bricks, mills S
barriers and bus stop signs etc. Small fires were started on the roads and
T T
Police officers were confronted and assaulted by protestors who tried to
U U
V V
- 10 -
A A
B B
prevent them from subduing a protestor. Bricks were dug up and threw
C onto the carriageway. Some of the shops along the routes were forced to C
close.
D D
E TRAFFIC DISRUPTION E
F F
41. As a result of the gathering of people in the vicinity of
G Causeway Bay to attend the procession, traffic in the area was seriously G
disrupted on 1st July and traffic along the route of the procession was
H H
seriously affected between 2:22 pm and 9:15 pm.
I I
42. During the procession, 75 bus routes were suspended,
J J
truncated or diverted and 5 minibus routes were suspended.
K K
43. At the height of the traffic disruption at around 5:20 pm, 94
L L
bus routes and 9 minibus routes had to be diverted or suspended.
M M
44. 45 trams services between North Point Terminus and Western
N N
Market Terminus were suspended between 1 pm and 8:35 pm. Only
O limited tram routes were able to be maintained during that time. O
P P
45. The defendants were all arrested on 8 December 2020.
Q Q
PREVIOUS CONVICTIONS
R R
S 46. D1 Mr Chan was of clear record at the time of his commission S
of the present offences. He has since been convicted of various similar
T T
offences that will be referred to later on.
U U
V V
- 11 -
A A
B B
C 47. D2 Mr Tsang has two previous convictions. He was fined C
$3,000 for one charge of Disorderly conduct in a public place in 1999, and
D D
sentenced to 14 days’ imprisonment, suspended for 18 months for an
E offence of Participating in a prohibited group gathering in March 2021. E
This latter conviction is dated after the commission of the present offences
F F
and will not be taken as adding to his culpability. His sentence will not be
G enhanced based on those records given the lapse of time. G
H H
48. D3 Mr Chui and D4 Mr Wu are both of previously clear record.
I I
49. D6 Mr Chu has 3 previous convictions dated October 2012,
J J
all relating to civil disobedience matters as at the time of his commission
K of the offence in charge 2. Given the lapse of time, I will not enhance his K
sentence based on those convictions.
L L
M 50. He was convicted recently on 15 September 2021 for one M
charge of Taking part in an unauthorized assembly in the District Court
N N
and was sentenced to 6 months’ imprisonment4. The assembly in that case
O took part on 4 June 2020. O
P P
51. D7 Mr Leung has attended court on 22 previous occasions.
Q His latest set of convictions started in March this year and ended on 15 Q
September 2021, being all related to unauthorized assemblies.
R R
S S
T T
4
HKSAR v Ho Chun Yan & Others [2021] HKDC 1160.
U U
V V
- 12 -
A A
B B
52. As at the time of his commission of the present 3 offences, his
C last convictions were in 2016. Given the lapse of time, I will not enhance C
his sentence on the basis of those convictions.
D D
E 53. D8 Mr Tang is of previously clear record. E
F F
MITIGATION
G G
54. Each of the 7 defendants have provided the court with written
H H
submissions. Apart from D1 Mr Chan, all the other defendants also
I produced letters written by their friends or relatives in support of their I
mitigation. I have considered them all and will not set them out here.
J J
K D1 K
L L
55. Mr Chan appeared in person. In his short but eloquent
M handwritten submissions, he states that he has no regrets in committing the M
offences, stressing that he was just holding fast to his belief in civil
N N
disobedience.
O O
D2
P P
Q 56. Mr Tsang also wrote, setting out his life story, of how he Q
started from humble beginnings and worked hard to create a lovely family.
R R
S 57. Mr Tsang understands that he is very likely to be incarcerated S
but he will not hold a grudge against the court. For over 32 years, he never
T T
U U
V V
- 13 -
A A
B B
stopped speaking up when he sees injustice and he will continue to do so,
C acting in accordance with his conscience without regrets. C
D D
58. Mr Ng on behalf of Mr Tsang referred to the District Court
E case of HKSAR v Lai Chee Ying and Others 5 and asked the court to E
consider the following matters when setting the appropriate sentences.
F F
G 59. They include the defendant’s attitude, the scale of the G
procession, the age of the defendant and the defendant’s positive
H H
contribution to society.
I I
60. Mr Ng also referred to the case of HKSAR v Chow Ting 6 ,
J J
where the applicant Ms Chow was sentenced to 10 months’ imprisonment
K after plea for one count of incitement of an unauthorized assembly and one K
of knowingly taking part in an unauthorized assembly. Mr Ng pointed to
L L
the lesser role of Ms Chow there and suggested that, despite the need for
M general deterrence, the court should adopt a lower starting point for both M
D2 and D8 according to their lesser roles and the small scale of the
N N
procession, as well as the lack of violence in the present case.
O O
D3
P P
Q 61. Mr Chui is 54 years old and is going through divorce Q
proceedings. He was a proprietor of a trading company for most of his
R R
S S
5
[2021] HKDC 457; DCCC 536/2020.
T T
6
[2020] HKCFI 3089.
U U
V V
- 14 -
A A
B B
working life until 2015 when he ran successfully to be the District
C Councillor for Yue Wan Constituency. He was re-elected in 2019. C
D D
62. The letters filed in support of Mr Chui allow the court to see
E that he has been exceptional in his dedication to his job as District E
Councillor.
F F
G 63. Unfortunately, Mr Chui’s health condition has not been good G
and requires daily insulin injection as well as regular pain medication.
H H
I 64. Ms Wong for D3 reminded the court of Mr Chui’s clear record I
at the time of his commission of the present offences.
J J
K 65. Ms Wong also pointed out that, in relation to the incitement K
charge, D3 did not speak at the press conference, and merely held a poster
L L
in the background. As for the holding and organizing charge, Ms Wong
M pointed out that the defendant was not walking in the front of the M
procession, not leading the crowd nor holding a banner. His was not the
N N
most active role as a holder or organizer of the unauthorized assembly.
O O
66. Ms Wong echoed what Mr Ng said on behalf of D2 and D8,
P P
and asked the court to bear in mind that social unrest had significantly
Q receded by June 2020, and that the scale of the procession was relatively Q
small and short-lived. Furthermore, D3 never intended any violence at the
R R
assembly, although he now recognizes that there was always an inherent
S risk of violence breaking out in events of such a nature. S
T T
U U
V V
- 15 -
A A
B B
67. Ms Wong referred to the case of Secretary for Justice v Wong
C Chi Fung7 and accepted that the sentencing principles there are applicable C
to unauthorized assembly as well, as summarized in paragraphs 151 to 153
D D
of the judgment:-
E E
“151. Drawing the above discussions together, the sentencing
F principles which the courts should adopt in cases of unlawful F
assembly involving violence can be summarized as follows:
G (1) In accordance with general sentencing principles, G
the court will have regard to all the actual
H
circumstances of the case and the seriousness of H
the facts pertaining to the commission of the
offence. Appropriate weight will then be
I accorded to each applicable sentencing factor, I
and a sentence that is commensurate with the
offence will then be imposed. The same
J J
principles apply to cases of unlawful assembly
involving violence.
K K
(2) Although the definition of unlawful assembly in
section 18 of the Public Order Ordinance is
L relatively simple, the range of factual situations L
covered is wide. The seriousness of the facts
M involved varies from case to case and may, M
depending on the actual circumstances, run from
the extremely trivial to the extremely serious.
N Incidents involving violence are certainly much N
closer to the serious end of cases, but the facts of
different cases still vary. So even for the more
O O
serious cases there will still be a spectrum of
seriousness. Within the spectrum, the court will
P accord appropriate weight to the applicable P
sentencing factors based on the actual
circumstances of the case and the seriousness of
Q the facts pertaining to the commission of the Q
offence.
R R
(3) On the basic premise that the public order must
be maintained, and taking into account the
S gravamen of the offence of unlawful assembly, S
the court has to consider the factor of deterrence
T T
7
CAAR 4/2016.
U U
V V
- 16 -
A A
B in sentencing. As to how much weight it should B
accord to this factor, the court has to have regard
C of the actual circumstances of the case. C
(4) If the case is of a relatively minor nature, such as
D when the unlawful assembly was unpremeditated, D
small in scale, involving very little violence, and
not causing any bodily harm or damage to
E E
property, the court may give proportionally more
weight[85] to such factors as the personal
F circumstances of the offender, his motives or F
reasons for committing the offence and the
sentencing factor of rehabilitation while
G G
proportionally less weight to the sentencing
factor of deterrence.
H H
(5) If the case is a serious one, such as when the
unlawful assembly involving violence is large-
I scale or it involves serious violence, the court I
would give the two sentencing factors, namely
J punishment and deterrence, great weight and J
give very little weight or, in an extreme case, no
weight to factors such as the personal
K circumstances of the offender, his motives or K
reasons of committing the offence and the
sentencing factor of rehabilitation.
L L
(6) After the appropriate weight has been accorded
M to all the applicable sentencing factors, the court M
would then impose a sentence on the offender
that is commensurate with the case.
N N
152. Generally speaking, although the facts of minor cases are
O not that serious, the court is still required to ensure that the public O
order is effectively maintained. So there remains a need for
sentences to be suitably deterrent. If all the six factors set out in
P Brown are present, or the facts of the case are suitable, a P
community service order can be an appropriate sentencing
Q
option. It is because the punitive factor in a community service Q
order can be regarded as having a sufficient deterrent effect
while its rehabilitative factor can help offenders, especially
R young offenders, turn over a new leaf. R
153. For serious cases, the main purpose of the sentence is to
S S
punish and deter. So the overall consideration of the court
should be inclined towards imposing an immediate custodial
T sentence. Unless there are very exceptional circumstances, and T
these circumstances should by definition be rare, sentences other
U U
V V
- 17 -
A A
B than an immediate custodial sentence, including suspended B
sentences and community service orders, are not appropriate.”
C C
D4
D D
E 68. Mr Wu also wrote in mitigation, together with a number of E
distinguished individuals, as well as those who had benefitted firsthand the
F F
kindness and generosity of Mr Wu.
G G
69. Mr Grounds reminded the court that Mr Wu has devoted his
H H
life to the Hong Kong community and set out as best he could in a few
I paragraphs the various achievements of Mr Wu, as well as examples of the I
dedication he has shown over the years to the service of others.
J J
K 70. Mr Grounds pointed out that the unauthorized assembly was K
in good order and without any threat to public safety, that the offence was
L L
committed out of a desire to effect positive change in society, and that the
M sentencing court may properly take the offender’s conscientious objections M
and genuine beliefs into account.
N N
O O
71. It is his submission that the lack of violence; the limited
P
number of participants in the procession; the short duration of the assembly P
all contribute to suggest that the starting point should be manifestly lower
Q Q
than the 24 months adopted in earlier cases8.
R R
S S
T 8
Such as HKSAR v Chan Ho Wun & Others (2020) 21 HKDC 645 (DCCC 534/2020); HKSAR v Chan T
Ho Wun & Others (2020) 21 HKDC 1100 (DCCC 535/2020).
U U
V V
- 18 -
A A
B B
72. Lastly, Mr Grounds asks the court to take into proper account
C the defendant’s clear record, his positive good character, and his C
contribution to society and suspend his sentence.
D D
E D6 E
F F
73. Mr Chu is 43. In the written submissions in mitigation
G prepared by his solicitors, the court is reminded of his dedication to public G
service and community work over the years.
H H
I 74. It is stated in the submissions that the assembly on 1 July 2020 I
lasted from 14:50 to 15:04 and was at all times peaceful. The participants
J J
assembled in an orderly and organized fashion. There is no evidence to
K suggest there will be violence or the threat of it. K
L L
75. D6’s role in the holding and organizing of the unauthorized
M assembly was merely to chant slogans, holding a banner, and keeping the M
procession in order.
N N
O 76. Mr Chu also relies on the small size of the procession as a O
mitigating factor, suggesting that the case falls in the lower end of the
P P
spectrum of seriousness.
Q Q
D7
R R
S 77. Mr Leung, D7, is 65 and got married recently. He has been S
having cardiovascular health issues.
T T
U U
V V
- 19 -
A A
B B
78. On behalf of the defendant, Mr Anson Wong submitted that
C the court should take into account the following matters when deciding on C
the proper sentence. These are factors distilled from local and overseas
D D
cases9 where a defendant’s right to freedom of expression and assembly
E were engaged and the court has to consider the appropriate sentence when E
those rights were interfered with.
F F
G 79. First, the defendant had always intended the 1st July public G
procession to be held in a peaceful and non-violent manner, and had
H H
conducted himself accordingly throughout his organization of the event.
I I
80. Secondly, the defendant was involved in the public procession
J J
for a relatively short period of time, and the procession was of a relatively
K small scale when compared to the ones that took place in August and K
October 201910.
L L
M 81. Mr Wong’s position is that the smaller scale would suggest a M
lower level of culpability and should be reflected in a lower starting point.
N N
O 82. Thirdly, the views that the defendant was trying to convey O
through organizing the procession related to very important issues, and are
P P
“views which many would see as being of considerable breadth, depth and
Q relevance”, and the defendant, together with those jointly charged, Q
“believed in the views they were expressing”.
R R
S S
9
Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35; R v Roberts (Richard) [2019] 1 WLR
T T
2577; DPP v Ziegler [2021] 3 WLR 179; HKSAR v Au Nok Hin [2021] HKCA 1137.
10
These unauthorized assemblies were dealt with in the District Court cases of DCCC 534, 535 and
536/2020.
U U
V V
- 20 -
A A
B B
83. Mr Wong submitted that the court should not attribute to the
C defendant any reprehensible conduct which he did not incite, cause or C
participate in, especially not for events that took place after his
D D
participation in the public procession, relying on a passage at paragraph
E 224 of the Guidelines on Freedom of Peaceful Assembly (3 rd edition, 15 E
July 2020) published by the European Commission for Democracy through
F F
Law for this proposition.
G G
84. In gist, it is Mr Wong’s submission that neither the defendant
H H
nor those jointly charged with him had incited any violent conduct, and his
I sentence should so reflect. I
J J
85. As for the disruption to traffic in the Wanchai, Causeway Bay
K and connected areas, Mr Wong pointed out that such disruption would have K
occurred regardless of whether the assembly was authorized or not. He
L L
also drew the court’s attention to two cases where the court opined that any
M meaningful assembly procession or demonstration would cause some M
measure of obstruction and that it is important for the public authorities to
N N
show a certain degree of tolerance11.
O O
D8
P P
Q 86. Mr Tang is 59 years old and a divorcée. He is currently Q
unemployed and suffers from medical conditions concerning his eyesight
R R
and blood pressure.
S S
T 11
HKSAR v Yeung May Wan (2005) 8 HKCFAR 137 at paragraph 135, and Kudrevičius v Lithuania T
(2016) 62 EHRR 34 at paragraph 155.
U U
V V
- 21 -
A A
B B
C 87. In his letter, Mr Tang says that with hindsight, he regrets his C
impulsiveness on the day of the offence. He wishes the court to give weight
D D
to his guilty plea, his genuine remorse, his clear record and limited
E involvement in the holding or organizing of the unauthorized assembly in E
charge 2.
F F
G 88. He also referred to the short duration and small size of the G
procession as factors to consider when this court decides on his sentence.
H H
I 89. On behalf of Mr Tang, counsel Mr Ng supplemented D8’s I
letter by pointing out that the defendant did not take part in the application
J J
for approval from the Police for the procession, nor in the press conference.
K His only involvement in relation to the holding or organizing of the K
procession only started on 1st July and his role was minor. D8 did not speak
L L
with a loudhailer nor led the crowd in chanting slogans. D8 only walked
M along with other defendants and demonstrators. He did hold up one corner M
of a large banner when he saw that no one was doing it, but he only did so
N N
for about 20 minutes before he handed it over to someone else.
O O
90. Mr Ng stressed that Mr Tang did not speak to the press, nor
P P
actively encourage anyone to join the procession. He is not a public figure
Q and unlikely that anyone would have been induced by his presence to take Q
part in the procession.
R R
S S
T T
U U
V V
- 22 -
A A
B B
SENTENCE
C C
91. The maximum sentence on conviction upon indictment for
D D
committing a s 17A(3) offence, or inciting others to so commit, is that of 5
E years’ imprisonment. E
F F
SENTENCING PRINCIPLES
G G
92. The sentencing principles applicable in offences related to
H H
unauthorized assembly are not in dispute.
I I
93. Each of the defendants, by way of their adoption of the
J J
relevant parts of the mitigation submissions of Mr Ng, Ms Wong, Mr
K Grounds, Mr Wong and solicitors for D6, is asking the court to consider K
the matters I have already set out above and I will not repeat them here.
L L
M Charge 1: incitement M
N N
94. In relation to the incitement charge, I note first of all that the
O incitement was directed at all of Hong Kong and that it was covered widely O
by different media. The intention of the defendants was clearly to incite as
P P
many as possible to join in the procession that they knew will in all
Q likelihood be an unauthorized assembly. Q
R R
95. D1 Mr Chan was the first person to speak, and he spoke more
S than once at the press conference on 30th June. He was clearly the S
spokesperson of the group.
T T
U U
V V
- 23 -
A A
B B
96. D2 Mr Tsang and D4 Mr Wu also spoke at the conference to
C incite others to join the procession. Given the social status of Mr Tsang C
and Mr Wu, their words would have carried considerable weight towards
D D
the intended audiences, amplifying the incitement to a certain extent.
E E
97. Having said that, the court can take notice that as at the time
F F
of the incitement, as a result of Police action, the general situation of Hong
G Kong had settled down considerably. This is evidenced by the clearly G
smaller number of participants in the procession the following day.
H H
I 98. Furthermore, out of all the video footages of the procession I
and the assemblies that took place in or around Causeway Bay and
J J
Wanchai, there were only 2 occasions of a small fire being lit in the middle
K of the road, away from buildings. There were assorted debris on the road K
but they would have been easily cleared away. There was one incident of
L L
an organized blockade of the road between Central Library and Victoria
M Park with umbrella holding protestors but it did not last long. There was, M
however, one incident where matter had turned violent when riot Police
N N
tried to subdue a protestor.
O O
99. It is clear from the line of sentencing cases and authorities
P P
now in place that, in relation to offences involving the incitement of others
Q to join in unauthorized assemblies, the need to punish and deter is Q
overwhelming and an immediate custodial sentence is the only appropriate
R R
option in serious cases involving violence unless there are very exceptional
S circumstances. S
T T
U U
V V
- 24 -
A A
B B
100. The incitement by the defendants was towards the general
C public. Regardless of the eventual turnout, the nature of the incitement was C
serious. There was always an inherent risk of matters taking a wrong turn
D D
given the volatile atmosphere after the passing of the National Security
E Law. I find that an immediate custodial sentence is the only appropriate E
sentencing option.
F F
G 101. As such, after careful consideration of all the circumstances, G
for their active and vocal role in charge 1, I will adopt a starting point of
H H
18 months’ imprisonment for D1, D2 and D4.
I I
102. As for D3, Ms Wong rightly pointed out that all Mr Chui did
J J
was to hold up a poster while the others spoke, as well as to join in the
K chanting of slogans from time to time. For his lesser role in the incitement, K
I adopt a starting point of 12 months’ imprisonment.
L L
M 103. All 4 defendants had entered timely pleas of guilty and they M
are given the full one-third discount on that basis. The respective sentences
N N
after plea are, therefore, for D1, D2 and D4, 12 months’ imprisonment and
O 8 months’ imprisonment for D3. O
P P
Further reduction in sentence
Q Q
104. In recognition of their past contribution to the Hong Kong
R R
community as disclosed in their mitigation materials, I will apply a further
S reduction of 2 months to sentences of D2 and D4. S
T T
U U
V V
- 25 -
A A
B B
105. Also recognizing his contribution to society through his
C dedication to help others, and taking into consideration Mr Chui’s health C
condition, I will also grant him a further 2 months’ reduction in sentence.
D D
E 106. The sentences after plea and reduction in relation to charge 1 E
is, therefore, 12 months’ imprisonment for D1, 10 months’ imprisonment
F F
for D2 and D4, and 6 months’ imprisonment for D3.
G G
Charge 2: holding and organizing
H H
I 107. In relation to charge 2, based on the summary of facts and the I
video footages, D1 was again the most vocal of the group and was clearly
J J
a leading figure.
K K
108. Much was said by all the defendants as to the short duration
L L
of the procession. On their different estimates, it lasted between 4 to 40
M minutes. While this may be true, one must not overlook the reason it did M
not last longer was because of swift and effective Police action. I find that
N N
it is an irresistible inference that had the Police not been there, the
O procession would have gone on for much longer. In fact, from the video O
footages, one can clearly hear D1 saying that he “will not give up so easily”
P P
after the Police appeared to have broken up the procession at the junction
Q of Tonnochy and Gloucester Road. Q
R R
109. For a charge of holding or organizing an authorized assembly,
S I find that the intention of the holder or organizer for the procession to S
continue must be one of the factors to be considered when deciding on the
T T
U U
V V
- 26 -
A A
B B
defendants’ culpability, alongside the fact that the scale of the procession
C was relatively small. C
D D
110. Different to the assemblies that took place in August and
E October 2019 which were dealt with in the earlier cases referred to in E
mitigations above, the social unrest situation had settled down slightly by
F F
the end of June 2020.
G G
111. Furthermore, it is clear that the defendants had wanted the
H H
procession to be peaceful and non-violent. Although they must also have
I known from watching what had happened in the 2019 protests that the I
situation was still volatile and realized that there was always a risk of
J J
violence breaking out when they held or organized the unauthorized
K assembly. K
L L
112. Taking into consideration the general sentencing principles
M referred to above when dealing with charge 1, I find that for D3, D4, D6, M
D7 and D8, I will each adopt a starting point of 12 month’s imprisonment
N N
based on their apparently lesser role in the holding or organizing of the
O unauthorized assembly. O
P P
113. As for D1, for his leading role in the commission of the
Q offence, I will adopt a starting point of 18 months’ imprisonment. Q
R R
114. The defendants all entered timely pleas of guilty and are
S granted the full one-third discount, taking the sentences down to 12 months S
for D1, and 8 months for D3, D4, D6, D7 and D8.
T T
U U
V V
- 27 -
A A
B B
115. Apart from D1, in recognition of their past contribution to
C society, as well as their health condition in the cases of D3 and D7, I will C
further reduce the defendants’ sentences by 2 months. The resulting
D D
sentence for D3, D4, D6, D7 and D8 for charge 2 is, therefore, 6 months’
E imprisonment. E
F F
Charge 3: knowingly taking part in an unauthorized assembly
G G
116. Only D1 and D7 are being sentenced for this offence.
H H
I 117. Bearing in mind the relatively small scale of the assembly, the I
low level of violence involved, but being aware of the need to punish and
J J
deter, I find that an immediate custodial sentence is required and adopt a
K starting point of 15 months’ imprisonment for the two defendants. K
L L
118. They both pleaded guilty and is granted the full one-third
M discount, leading to a sentence of 10 months’ imprisonment after plea. M
N N
119. Just as before, in recognition of D7 Mr Leung’s past
O contribution to the community and taking into consideration his health O
condition, I will further reduce his sentence by 2 months, resulting in 8
P P
months’ imprisonment for D7, and 10 months’ imprisonment for D1 on
Q charge 3. Q
R R
TOTALITY
S S
120. The issue of totality of sentence arises in the case of D1, D3,
T T
D4, D6 and D7, either because of them having been convicted of more than
U U
V V
- 28 -
A A
B B
one charge in the present case, or because they are serving other sentences
C from earlier cases, or both. C
D D
121. First of all, I find that in the present case, all 3 offences arose
E out of the same factual matrix, and that the sentences for those who are E
being sentenced for more than one charge should be made concurrent, and
F F
I so order.
G G
122. The total sentence for D3 and D4 is, therefore, 6 and 10
H H
months’ imprisonment respectively.
I I
D1: charges 1, 2 and 3 and his serving sentence
J J
K 123. D1 was of clear record when he committed the offences in the K
present case.
L L
M 124. He was, however, sentenced on 28 May 2021 to 18 months’ M
imprisonment in the District Court case of HKSAR v Chan Ho Wun and
N N
others [2021] HKDC 645; DCCC 534/2020 for one charge of “Incitement
O to knowingly take part in an unauthorized assembly” and one charge of O
“Holding or organizing an unauthorized assembly”. The assembly in that
P P
case took place on 1 October 2019.
Q Q
125. He was next sentenced on 1 September 2021 to 16 months’
R R
imprisonment in HKSAR v Chan Ho Wun and others [2021] HKDC 1100;
S DCCC 535/2020 for two similar offences. The assembly took place on 20 S
October 2019. The sentences in this case was ordered to run concurrently
T T
to the sentence in the earlier case.
U U
V V
- 29 -
A A
B B
C 126. Mr Chan was last sentenced on 15 September 2021 in HKSAR C
12
v Ho Chun Yan and others [2021] HKDC 1160; DCCC 857/2020 to 10
D D
months’ imprisonment for Charge 1 (similar to our charge 1) and 6 months’
E imprisonment for Charge 3 (similar to our charge 3), to be served E
concurrently. This sentence was then ordered to run concurrently to the
F F
sentences he was then serving. The unauthorized assembly in that case
G took place on 4 June 2020. G
H H
127. HH Judge Woodcock gave the following reasons for her
I decision to make the sentences concurrent:- I
J J
“112. Several defendants are serving sentences for similar or
the same offences committed on several divers dates during the
K social turmoil in 2019 although the common purpose was not the K
same as in this case. The importance of the totality principle is
to ensure fairness to any defendant. Courts must achieve a just
L L
and balanced sentence that will not punish a defendant twice for
the same or similar conduct and crush him.
M M
113. Often, to achieve a fair and balanced sentence, the Court
can consider concurrent and consecutive sentences. If a person
N is convicted of more than one offence committed on different N
days or not arising out of a single transaction or the same set of
O facts, then the sentence ought in principle to run consecutively O
to the sentences on each of the other offences but subject to an
assessment of the appropriate totality. To achieve that,
P sentences can be imposed but are served in whole or in part P
concurrently rather than consecutively. This avoids excessive
Q
punishment yet still reflects multiple offences, overall Q
criminality and culpability.
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 mitigation of those relevant defendants. I have taken
S S
into account the sentences I imposed in those cases. Although
T T
12
Mr Chan was D5 in that case.
U U
V V
- 30 -
A A
B there was a time gap of months, I find it fair and appropriate to B
consider concurrent sentences here.”
C C
128. While I agree entirely in principle with HH Judge Woodcock,
D D
given the close proximity in time of the offences committed in the present
E case after the previous one, I find, however, that part of the sentence should E
be made consecutive in order to properly reflect the culpability on D1’s
F F
part in inciting, organizing and taking part in another unauthorized
G assembly in such a short time. G
H H
129. I will, therefore, order 3 months of the sentence in the present
I case to be served consecutively to the sentence that Mr Chan is presently I
serving, the balance to be served concurrently.
J J
K D7: charges 2 and 3 and his serving sentence K
L L
130. In relation to D7, Mr Leung was sentenced to a total of 18
M months’ imprisonment on 16 April 2021 for two identical charges arising M
out of an unauthorized assembly on 18 August 2019 in HKSAR v Lai Chee
N N
Ying and others [2021] HKDC 457; DCCC 536/2020.
O O
P
131. About 1 month later on 28 May 2021, Mr Leung was P
sentenced to a total of 18 months’ imprisonment for two identical charges
Q Q
for the unauthorized assembly held on 1 October 2019 in the case of
R HKSAR v Chan Ho Wun and others [2021] HKDC 645; DCCC 534/2020. R
HH Judge Woodcock ordered that 4 months of this sentence to be served
S S
consecutively to the earlier sentence, resulting in a total sentence of 22
T months’ imprisonment for the two cases. T
U U
V V
- 31 -
A A
B B
132. On 1 September 2021, Mr Leung was sentenced for two
C identical offences in relation to a third unauthorized assembly held on 20 C
October 2019 to 18 months’ imprisonment, but reduced by 2 months for
D D
time already served in the 18 August and 1 October 2019 assemblies,
E leading to a sentence of 16 months’ imprisonment. This 16 months E
sentence was then ordered to run concurrently to the sentences for the 18
F F
August and 1 October 2019 assemblies. That was the case of DCCC
G 535/2020. G
H H
133. 2 weeks after that 3rd sentencing exercise, Mr Leung was
I before HH Judge Woodcock again for one charge of “knowingly taking I
part in an unauthorized assembly” where he was sentenced to 6 months’
J J
imprisonment. That sentence was also ordered to be served concurrently
K to the rest of the sentences that Mr Leung was serving. This was DCCC K
857/2020.
L L
M 134. This is Mr Leung’s fourth conviction for organizing or taking M
part in unauthorized assemblies. Given that one of the key considerations
N N
in sentencing this kind of offences is deterrence, it would appear that the
O previous sentences have failed to achieve any such effect. This is, of course, O
entirely understandable and if Mr Leung is to hold true to his beliefs, it is
P P
likely that no amount of enhancement reasonably applied would stop him
Q from continuing to express his views as he sees fit. Q
R R
135. Bearing in mind the principle of totality, especially the
S circumstances of the defendant’s commission of the offences, both in S
relation to the present case and the previous 3 cases, but also the health
T T
condition of Mr Leung, I find that I must order that 1 month of the
U U
V V
- 32 -
A A
B B
sentences in the present case to be served consecutively to the rest of the
C sentences, the balance to be served concurrently. C
D D
D6: charge 2 and his serving sentence
E E
136. D6 was convicted recently on 15 September 2021 for one
F F
charge of “taking part in an unauthorized assembly” in the District Court
G and was sentenced to 6 months’ imprisonment13. The assembly in that case G
took part on 4 June 2020. This sentence gives rise to the issue of totality
H H
in sentencing the defendant in the present case.
I I
137. Mr Chu’s solicitors submit that the previous proceedings and
J J
the present one arose from the similar or same kind of offence, that is to
K say, a public procession. D6 had similar roles in both the 4th June and the K
1st July assembly. They ask that the final sentence should reflect the true
L L
and limited culpability of D6 and ask that the sentence in the present case
M be ordered to run concurrently to the sentence in the earlier case. M
N N
138. I find that I cannot agree entirely with Mr Chu’s solicitors’
O submissions. Just as in the case of D1 and D7, Mr Chu chose to commit O
the present offence just 27 days after he committed the offence in relation
P P
to the 4 June 2020 unauthorized assembly. In order to properly reflect his
Q culpability, I find that 2 months of Mr Chu’s sentence in the present case Q
should be served consecutively to the sentence he is presently serving.
R R
S S
T T
13
HKSAR v Ho Chun Yan & Others [2021] HKDC 1160.
U U
V V
- 33 -
A A
B B
FINAL SENTENCES
C C
139. For ease of reference, the final sentences after plea are
D D
tabulated as below:-
E E
Charge 1 Charge 2 Charge 3 After Totality
F in present case F
D1 12 12 10 12
G G
D2 10 - - 10
H D3 6 6 - 6 H
D4 10 6 - 10
I I
D6 - 6 - 6
J D7 - 6 8 8 J
D8 - 6 - 6
K K
L TOTALITY IN RELATION TO SENTENCES IN EARLIER CASES FOR D1, L
D6 AND D7
M M
N 140. In relation to D1, 3 months of the 12-month sentence in the N
present case to be served consecutively to the sentence he is now serving,
O O
the balance to be served concurrently.
P P
141. In relation to D6, 2 months of the 6-month sentence in the
Q Q
present case be served consecutively to the sentence he is now serving, the
R balance to be served concurrently. R
S S
T T
U U
V V
- 34 -
A A
B B
142. In relation to D7, 1 month of the 8-month sentence in the
C present case be served consecutively to the sentence he is now serving, the C
balance to be served concurrently.
D D
E E
F F
G ( Douglas TH Yau ) G
District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V