DCCC842/2021 HKSAR v. CHUNG KIN PING ALLAN - LawHero
DCCC842/2021
區域法院（刑事）HH Judge A. J. Woodcock12/4/2022[2022] HKDC 320
DCCC842/2021
A A
DCCC 842/2021
[2022] HKDC 320
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 842 OF 2021 C
D
---------------------- D
HKSAR
E E
v
F Chung Kin-Ping Allan F
G ---------------------- G
Before: HH Judge A. J. Woodcock
H Date: 13 April 2022 at 2.34 pm H
Present: Mr Wilson Lam, PP of the Department of Justice, for HKSAR
Ms Tina Y T Mok, instructed by Bong Ng Solicitors, for
I the defendant I
Offence: (1) Organizing an unauthorized assembly (組織一個未經批准
J 集結) J
(2) Knowingly taking part in an unauthorized assembly
(明知而參與未經批准集結)
K K
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L L
Reasons for Sentence
M M
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N N
1. The defendant has pleaded guilty to Charge 1,
organising an unauthorised assembly, contrary to section
O O
17A(3)(b)(i) of the Public Order Ordinance, Cap 245. Charge 2,
P knowingly taking part in an unauthorised assembly was not dealt P
with and left on the court file; only to be dealt with in the
Q future with leave of this Court or the Court of Appeal. Q
R R
2. The particulars of Charge 1 states the defendant
between 26 and 27 July 2019 organised a public procession which
S S
took place in contravention of section 13 of the Public Order
T Ordinance which was an unauthorised assembly by virtue of T
section 17A(2)(a) of the same Ordinance.
U U
CRT25/13.4.2022/JC 1 DCCC 842/2021(1)/Sentence
V V
A A
Summary of Facts
3. The Commissioner of Police prohibited the holding of a
B B
public meeting and procession on 27 July 2019 by the defendant.
C He gave the police a notice of intention on 23 July 2019 C
proposing meetings and a procession between Shui Pin Tsuen
D Playground and Yuen Long MTR Station in Yuen Long. The purpose D
of the meeting and procession was to condemn a terrorist attack
E E
on people in Yuen Long MTR Station on 21 July 2019. The subject
matter was stated in the notice as anti-terrorism.
F F
G 4. The full particulars of the offence are set out in the G
Amended Summary of Facts and admitted by the defendant,
H Mr Chung, on 11 April 2022. He agreed and it is common knowledge H
that from June 2019, violence erupted during certain protest
I I
events all over the territory. On the night of 21 July 2019,
violence erupted in Yuen Long MTR Station.
J J
K
5. On 25 July 2019, the Commissioner of Police prohibited K
the holding of the said procession in the interest of public
L order, public safety and the protection of the rights and L
freedoms of others. Taking into account certain widely reported
M incidents of violence and vandalism arising from and after the M
incident of 21 July 2019, the Police reasonably believed that
N N
any procession would escalate into violent confrontation,
serious traffic disruption and the residents of Yuen Long being
O O
significantly affected.
P P
6. The Police had suggested to the defendant that he
Q consider submitting an altered processional route and increasing Q
the number of marshals proposed to maintain the safety and order
R R
of the procession but that was ignored. This was especially
pertinent because his proposed route covered Castle Peak Road,
S S
which is a major thoroughfare and includes the Light Rail track
T as well as its overhead high voltage cables. This presented T
another imminent danger to participants.
U U
CRT25/13.4.2022/JC 2 DCCC 842/2021(1)/Sentence
V V
A A
7. The Police took into consideration the social
atmosphere and recent processions descending into chaos at that
B B
time which meant there was a likelihood that the defendant’s
C procession and meeting could get out of control and that the C
likely risks of violence escalating could not be tempered even
D if the Police had imposed more conditions. D
E E
8. The defendant did appeal the decision of the
Commissioner of Police to the Appeals Board, which after a
F F
hearing confirmed it on 26 July 2019. The Appeal Board was of
G the opinion that the proposed procession could pose a serious G
threat to the public, the participants of the procession as well
H as affect public order and public safety. The appeal was H
dismissed. The defendant did not judicial review those
I I
decisions.
J J
9. Immediately after that appeal was dismissed, the
K
defendant held a press interview. His interview was broadcasted K
by various media outlets and he said that despite the
L prohibition of the procession, he would himself at around the L
same time walk the same proposed route to Yuen Long MTR Station.
M He specifically denied organising an unauthorised assembly but M
would, as a resident, welcome anyone who wanted to visit Yuen
N N
Long on that same day.
O O
10. On 27 July 2019 at the proposed starting point, the
P playground, the defendant was interviewed by the press again P
which was widely broadcasted by various media outlets. Even
Q before this press interview, there were hundreds of protesters Q
gathered in or around this playground, which was situated next
R R
to Yuen Long Police Station. The number of protesters gathered
there increased as time went by.
S S
T 11. In that press conference, the defendant condemned the T
violence at the MTR station on 21 July 2019 as a terrorist
U attack organised by the “Peking Liaison Office”. He said those U
CRT25/13.4.2022/JC 3 DCCC 842/2021(1)/Sentence
V V
A A
present in Yuen Long that day should shout for help if they were
attacked by either terrorists controlled by the Liaison Office
B B
of the Central People’s Government or the Police Force.
C C
12. The prosecution relied on and played numerous video
D recordings of the events of that day in Yuen Long, either D
incidents that occurred on the defendant’s proposed route or
E E
those outside of the proposed route but adjacent and close by.
It was footage of reprehensible conduct. Many were described in
F F
detail in the Amended Summary of Facts.
G G
13. Thousands of protesters gathered and occupied the
H carriageways of the proposed route, which meant traffic was H
seriously disrupted. The police station was targeted and forced
I I
to close its vehicular gate for safety reasons. Thousands walked
along the defendant’s route and occupied all the vehicular lanes
J J
of Castle Peak Road. They obstructed the Light Rail service,
K
which had to be suspended because protesters walked within the K
railway area.
L L
14. Political slogans and verbal abuse were shouted at the
M Police incessantly. Those included “Black cops, Shameful”, M
“Hong Kong Police knowingly break the law”, “Liberate Hong Kong,
N N
revolution of our times” and “No rioters, only tyranny”.
O O
15. Roads were blocked by protesters setting up barricades
P facing police cordons. The Police walked behind the procession P
to try and disperse the crowd. Warnings were given by the Police
Q with warning flags displayed almost continuously. There were Q
standoffs between the protesters and police where not only was
R R
abuse and insults hurled but physical objects including bricks,
umbrellas and other hard objects. During the day, the Police had
S S
to use tear gas on several occasions to disperse the crowd. All
T warnings were ignored by the crowds. T
U U
CRT25/13.4.2022/JC 4 DCCC 842/2021(1)/Sentence
V V
A A
16. There were many specific incidents of note, for
example, a police emergency vehicle was surrounded with officers
B B
inside and vandalised. Other police officers had to go to rescue
C it. C
D 17. As I said, all these actions were caught on news D
footage and are part of the prosecution’s case to establish a
E E
context for the purposes of sentencing.
F F
18. By around 7 pm, hundreds of protesters finished the
G procession and remained in or around Yuen Long MTR Station in a G
standoff with the police. Eventually the crowds dispersed at
H about 11 pm. H
I I
19. There was specific footage of the defendant on several
occasions standing in front of a large crowd of black-clad
J J
protesters. He was stood between that crowd and the police
K
officers. He tried to speak to both the police and the K
protesters. He tried to calm the growing tension but essentially
L failed. These exchanges were caught on the camera, some included L
in the Summary of Facts.
M M
20. The defendant held another press conference at around
N N
9 pm inside Yuen Long MTR Station where he calculated about
288,000 people had participated and claimed the movement
O O
attracted that many participants. He expressed gratitude to all
P those who showed up and to all those who provided assistance and P
supplies.
Q Q
21. He reiterated that the Police and terrorists had
R R
attacked Hong Kong citizens as well as members of the press. He
said the Police used force which was unlawful and that they
S S
should not serve the Beijing regime any longer. He said the
T violence of 21 July 2019 was orchestrated by the Liaison Office T
of the Central People’s Government. All of this was said to the
U press and broadcasted widely by various media outlets. U
CRT25/13.4.2022/JC 5 DCCC 842/2021(1)/Sentence
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A A
22. The defendant admits knowingly organising an
B B
unauthorised public procession. Despite the decision by the
C Police to ban his procession, which was affirmed by the Appeal C
Board’s decision, he openly in a press conference appealed to
D members of the public to participate anyway in the name of D
“shopping” or “visiting” Yuen Long.
E E
23. Thousands did participate in this unauthorised assembly
F F
and the risks identified by the Police became a reality. There
G were real incidents of reprehensible conduct, serious violence G
and breaches of the peace as well as riots and incidents that
H arose in the course of that unauthorised procession and H
assembly. Public order, public safety was endangered as well as
I I
the rights and freedoms of others and their property affected.
J J
Mitigation
K
24. I have heard full mitigation and have had the benefit K
of submissions prepared by counsel. There is no need to repeat
L it or set it out here. The defendant is now 42 years old, born L
in Hong Kong, educated abroad and single. His father is a
M diabetic with other health issues that requires the care and M
attention of the defendant. His mother passed away some years
N N
ago.
O O
25. Prior to his arrest for this offence, he was working in
P public relations and earning up to HK$60,000 each month. He has P
2 previous convictions dealt within the same court appearance.
Q In 2015, he was convicted twice of taking part in an unlawful Q
assembly.
R R
26. I have been told in mitigation that he has dedicated
S S
himself to the welfare of animals, especially strays. In 2017,
T he worked for a year at the Non-Profit Making Veterinary T
Services Clinic. I have letters from colleagues from that clinic
U as well as friends who have known him for a long time or worked U
CRT25/13.4.2022/JC 6 DCCC 842/2021(1)/Sentence
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A A
with him. I have been appraised of his role as the chairperson
of the Localists’ Regiment of Animal Protection.
B B
C 27. The defendant lived in Yuen Long and after the 21 July C
2019 incident in the Yuen Long MTR Station, he wanted to hold a
D meeting and procession to raise awareness of that incident. That D
is why he submitted a notice of intention to hold a meeting and
E E
procession on 27 July 2019.
F F
28. His best mitigation is his plea of guilty. I am told
G he regrets his acts and is remorseful. He did not intend to G
benefit in any way from organising an unauthorised assembly. He
H was only hoping to promote a peaceful, loving and caring H
society. He was naïve in thinking there would be no breach of
I I
the peace that afternoon. He thought he would be embarking on “a
peaceful walk”.
J J
K
29. It was submitted that he was not the only one who K
wanted to organise a meeting and procession that day. 2 other
L organisers, a Mr Kwan and a Mr Au also tendered notices of L
intention to the Police. A local singer, Ms Denise Ho Wan-see
M made known on social media that she herself would be walking in M
Yuen Long that day and signing autographs as she walked. It was
N N
submitted that he was not alone in wanting to draw attention to
Yuen Long that particular week. The point of this submission is
O O
that this means not all protesters in Yuen Long who participated
P in the unauthorised assembly on that day were there because of P
the defendant, therefore not all the blame should be laid at his
Q doorstep. Q
R R
30. It was submitted that he tried to keep the crowd calm
by appealing to them, it was suggested that the police presence
S S
may have been the reason behind public emotion being provoked,
T which led to conflicts and violence. Much was made of the fact T
that the prosecution highlighted confrontations or acts of
U U
CRT25/13.4.2022/JC 7 DCCC 842/2021(1)/Sentence
V V
A A
violence which were beyond or adjacent to the defendant’s exact
proposed route.
B B
C 31. Much was also made of the fact that he was not charged C
until August 2021, which was 2 years after the event and his
D initial arrest. The defence submitted that this delay meant the D
defendant was unable to gather evidence of others organising an
E E
unauthorised assembly at the same time or gather evidence as to
why he himself deviated from his proposed route and went to the
F F
2 villages that the Police had to either defend or guard.
G G
Principles of Sentencing
H 32. I agree with the prosecution’s proposition that this H
public order offence, organising an unauthorised assembly, is a
I I
pre-emptive offence and its gravamen lies in the number of
participants involved which may cause disruption to public order
J J
and a breach of public peace. I was referred to HKSAR v Wong Chi
K
Fung and Another [2022] HKCA 239 at paragraph 28 where the Court K
of Appeal said:
L L
“…, it is clear that the gravamen of both offences lies
M in the number of participants involved which may cause M
disruption to public order. … It is trite that a
sentencing court is entitled to take account of the
N circumstances of the offence to assess its gravity, and N
the concept of “context” is not a new one. …”
O O
33. That last sentence defines the meaning of “context” as
P the date, time, location and occasion of the offence. The P
occasion here was to highlight and draw attention to the 21 July
Q 2019 incident in the MTR station. This is the background of the Q
event the defendant wanted to organise and went on to organise
R R
despite a police ban. There are aggravating factors, both the
deliberate flouting of the law and the particular background of
S S
this event.
T T
34. The background of that event on 21 July 2019 meant that
U the unauthorised assembly organised days later related directly U
CRT25/13.4.2022/JC 8 DCCC 842/2021(1)/Sentence
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A A
to a scenario which was a potential source of widespread
violence. It was a tinderbox scenario where it was not hard to
B B
see how the concerns of the Police would almost certainly come
C true. C
D 35. I have been referred to Secretary for Justice v Wong D
Chi Fung [2018] 2 HKLRD 699 and find I can draw on the
E E
sentencing principles set out in that Court of Appeal authority
but to keep in mind that this charge involves an unauthorised
F F
assembly whereas that authority involved an unlawful assembly.
G G
36. Even though the defendant faces a charge of organising
H an unauthorised assembly, if I take into account the overall H
circumstances and context behind this assembly as well as the
I I
social unrest witnessed from June 2019, that it was as
relentless as it was violent and disturbing, then I find I can
J J
and should consider those sentencing principles such as
K
protecting the public, meting out penalties, open condemnation K
and the principle of deterrence.
L L
37. The facts of this case affected members of the public
M who were not participating in this unauthorised assembly. There M
was widespread traffic and public transport disruption.
N N
38. By identifying as a principle “meting out penalties”,
O O
the Court of Appeal were reiterating the obvious and that is any
P sentence imposed ought to be commensurate with the offence P
committed. One that reflects the seriousness of the offence and
Q the culpability of the offender. The open condemnation factor is Q
self-explanatory, the sentence ought to reflect social
R R
disapproval of the offence and the criminal conduct of the
offender.
S S
T 39. The factor of deterrence serves as a warning to others T
and prevents the offender from reoffending. The need for
U deterrent sentences cannot be limited to unlawful assemblies or U
CRT25/13.4.2022/JC 9 DCCC 842/2021(1)/Sentence
V V
A A
more serious public order offences. The need to consider a
deterrent sentence will often depend on the prevailing
B B
circumstances at the time. In fact, all sentencing principles
C applied to determine an appropriate sentence should take into C
account the prevailing tumultuous situation of 2019 as well as
D the specific tinderbox situation of Yuen Long that week. D
E E
40. In Secretary for Justice v Wong Chi Fung [2018],
Poon JA, as he then was, identified the inherent risk of large
F F
gatherings when he says that from experience, when large numbers
G of demonstrators gather together, emotions run high in the crowd G
who may become agitated so that the situation has the inherent
H risk of breaking out into violence. There will be those who seek H
to instigate violence from volatile situations. Therein lies the
I I
risk that cannot be ignored. This was a risk that was brought to
this defendant’s attention by the Police. I cannot believe
J J
considering the background of that 21 July incident and recent
K
incidents from June 2019 that the defendant himself did not see K
the inherent risk.
L L
Reason for Sentence
M 41. The freedom of assembly, procession and demonstration M
are not absolute rights and are subject to restrictions that
N N
have been ruled constitutional. Those freedoms are enjoyed
subject to these restrictions, irrespective of a defendant’s
O O
politics or beliefs. This case involved a direct challenge to
P the authority of the Police, law, and order. The Police gave a P
detailed explanation as to why they banned the defendant’s
Q meeting and assembly. They gave reasons and considerations that Q
were entirely reasonable. The risks were outlined for the
R R
defendant. Yet despite them, the defendant went on to organise
it nonetheless.
S S
T 42. The fact that the defendant made a conscious decision T
to break the law and challenge public order during such volatile
U times was serious. I find that an aggravating factor or the U
CRT25/13.4.2022/JC 10 DCCC 842/2021(1)/Sentence
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A A
gravamen of these facts admitted. Actions have consequences for
everyone irrespective of who they are and what they hope to
B B
achieve.
C C
43. It is an aggravating factor that he gave a press
D conference immediately after the Appeal Board upheld the D
decision of the Commissioner of Police and several press
E E
conferences on the material day. These were broadcast widely by
various news outlets. Moreover, I have no doubt that the
F F
defendant was expressing the direct opposite when he said he
G would walk his intended procession alone despite the ban. He G
knew and expected others to join him and as can be seen from the
H video footage; Yuen Long was overrun by protesters. The Police H
were completely outnumbered throughout the day. The language
I I
that the defendant used during these press conferences can be
described as provocative and inflammatory.
J J
K
44. I will also take into account the violence that can be K
seen not only on the proposed route of the defendant’s
L procession but in adjacent streets and areas as well. I am sure L
the unauthorised procession moved beyond or overflowed from the
M proposed route to the MTR station to the 2 villages adjacent. M
N N
45. Assemblies can be fluid and move in response to the
size of the crowd, action by the Police or for other reasons.
O O
The submission that I should only consider evidence of an
P unauthorised assembly on the defendant’s proposed route is over P
rigid. Clearly, the procession proceeded down the defendant’s
Q intended route but did spill over when it reached the MTR Q
station to the 2 adjacent villages. Even then, there is evidence
R R
that the defendant deviated from his own proposed route and went
to both villages to try to mediate with protesters, facing up to
S S
the Police guarding the entrances to those villages.
T T
46. There was wanton destruction of public, personal and
U government property. The Police were abused and pelted by U
CRT25/13.4.2022/JC 11 DCCC 842/2021(1)/Sentence
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A A
projectiles. Many of the black-clad protesters were well
prepared with weapons and homemade shields. At times, the Police
B B
were so outnumbered that the use of tear gas and pepper spray
C was entirely justified and necessary. The footage of a police C
cordon marching forward to rescue the police vehicle surrounded,
D trapped and damaged, showed how precarious and dangerous the D
situation was.
E E
47. The scale of the unauthorised assembly is relevant.
F F
The video footage shows that there were so many protesters that
G Castle Peak Road and other side roads were blocked for hours. G
The MTR and Light Rail trains were either suspended or seriously
H affected. There was no vehicular access possible in that area. H
I I
48. Taking into account the circumstances prevailing in
Hong Kong at the time, an assembly and procession of that size
J J
posed an inherent latent risk of possible violence that did
K
materialise. K
L 49. Defence counsel has made much of the fact that other L
people submitted notices to hold meetings and assemblies on the
M same day but were also rejected. They did not appeal. Other M
persons of note either said they would be in Yuen Long on that
N N
day or did turn up in Yuen Long with their own supporters. This
submission is that it would be unfair for the defendant to be
O O
held solely responsible.
P P
50. That submission that there were others at the same time
Q possibly committing the same offence is not a mitigating factor Q
of weight. The fact that others may have similarly applied to
R R
hold an assembly meeting on that same day in that area does not
negate or mitigate this defendant’s culpability.
S S
T 51. In any event, it was this defendant who publicly said T
via press conferences that he was going to defy the police ban
U and the Appeal Board’s decision. On the day, it was the U
CRT25/13.4.2022/JC 12 DCCC 842/2021(1)/Sentence
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A A
defendant who stood at the start of his proposed banned
procession route and spoke to the press again. It was he who
B B
placed himself between the Police and protesters. It was he who
C at times tried to mediate between the Police and the protesters. C
There was no evidence that other failed applicants gave press
D conferences which involved provocative and inflammatory language D
against the Police as well as covertly encouraged others to
E E
participate in an unauthorised assembly.
F F
52. In mitigation, it has been submitted that the defendant
G himself participated peacefully and should not be held G
accountable for anything unlawful or illegal that happened out
H of his sight or off the intended procession route. I find this H
submission carries little weight when one considers the
I I
tumultuous proceeding month and the raison d’être behind the
procession itself; a violent incident.
J J
K
53. It is hard to accept the submission that the defendant K
was naïve and thought his “walk” would be peaceful. No one could
L have realistically have said after witnessing the scenes of L
unrest and violence in June and July 2019 that they believed the
M protest to highlight the Yuen Long MTR Station incident on M
21 July 2019 would be peaceful.
N N
54. When I consider the number of participants in and
O O
around the proposed procession route, I find it unnecessary to
P define what violent acts or breaches of the peace can be P
attributed to participants of the unauthorised assembly as
Q organised by the defendant. I find it can be so attributed and Q
he as the organiser is not blameless. It is often inevitable
R R
that processions will spill over from an intended route when
roads are jam-packed. The evidence shows that the line between
S S
peaceful assembly and conduct which disrupts public order was
T crossed several times that long day. T
U U
CRT25/13.4.2022/JC 13 DCCC 842/2021(1)/Sentence
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A A
55. I do not find that his actions of standing between the
protesters and the Police and communicating with the Police any
B B
indication on his part of a serious attempt to avert violence
C successfully. In fact, he can be heard in one video challenging C
the Police by repeatedly asking what they were doing there. In
D any event, it did not appear that he had much influence over the D
protesters gathered in front of those particular police cordons.
E E
56. I also see no merit in the submission that there was a
F F
delay in prosecuting the defendant. 2 years is not a long time
G considering that the assembly was on a large scale. There was G
much evidence to consider with over 160 hours of video evidence
H alone. Legal advice would have been required and at that H
particular time, the workload for all relevant departments was
I I
very heavy. There was no intentional delay. But more
importantly, I see no prejudice or unfairness suffered by the
J J
defendant.
K K
57. He is not a man with a clear record. In fact, he has
L previous convictions of public order offences. He cannot say L
that he did not know of the consequences of his actions,
M especially when he mentions welcoming an arrest during one of M
his press conferences so that he could enjoy representing
N N
himself in court on the day.
O O
58. I have reminded myself that the starting point for this
P offence must be commensurate with the offence committed. P
Deterrent sentences must prevail here and therefore personal
Q individual mitigation does not carry much weight unless Q
exceptional. I do not find any mitigation submitted exceptional.
R R
59. After careful consideration of the above principles and
S S
factors as well as submissions in mitigation, an immediate term
T of imprisonment is the only appropriate sentencing option. To T
arrive at an appropriate starting point, I have taken into
U account the facts, mitigation put forward, the defendant’s plea U
CRT25/13.4.2022/JC 14 DCCC 842/2021(1)/Sentence
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A A
of guilty at the earliest opportunity and the sentencing
principles I have highlighted.
B B
C 60. I have also taken into account relevant and what I C
consider aggravating factors such as the context behind the
D unauthorised assembly on that day in that location which I D
described as a tinderbox situation. I have taken into account
E E
the number of protesters that day, the widespread obstruction
caused, the violence and damage seen all in the course of many
F F
hours.
G G
61. A particularly aggravating factor is the number of
H press conferences held by the defendant and the provocative and H
inflammatory language he used which was widely broadcasted.
I I
62. Lastly, he made a conscious decision to defy the police
J J
ban and flout the law knowing, I am sure, that the inherent risk
K
of social unrest was bound to be realised. K
L 63. I have been referred to recent sentences imposed by L
myself for this exact offence relating to unauthorised
M assemblies on various dates in 2019 during the social unrest. M
None of those sentences were for an unauthorised assembly to
N N
highlight or condemn the 21 July 2019 Yuen Long MTR incident.
O O
64. As I have already said and I stress again, the week
P after that incident in Yuen Long itself was tense and to fill P
the same area with emotional protesters was to ignite a
Q potential source of social discord. These facts are peculiar to Q
this case.
R R
65. Accordingly and after careful consideration, I find a
S S
starting point of 24 months’ imprisonment appropriate. The
T defendant indicated his plea at the earliest opportunity and is T
entitled to a full discount.
U U
CRT25/13.4.2022/JC 15 DCCC 842/2021(1)/Sentence
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A A
66. After that discount is applied, the defendant is
sentenced to 16 months’ imprisonment.
B B
C C
D D
(A J Woodcock)
District Judge
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT25/13.4.2022/JC 16 DCCC 842/2021(1)/Sentence
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A A
DCCC 842/2021
[2022] HKDC 320
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 842 OF 2021 C
D
---------------------- D
HKSAR
E E
v
F Chung Kin-Ping Allan F
G ---------------------- G
Before: HH Judge A. J. Woodcock
H Date: 13 April 2022 at 2.34 pm H
Present: Mr Wilson Lam, PP of the Department of Justice, for HKSAR
Ms Tina Y T Mok, instructed by Bong Ng Solicitors, for
I the defendant I
Offence: (1) Organizing an unauthorized assembly (組織一個未經批准
J 集結) J
(2) Knowingly taking part in an unauthorized assembly
(明知而參與未經批准集結)
K K
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L L
Reasons for Sentence
M M
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1. The defendant has pleaded guilty to Charge 1,
organising an unauthorised assembly, contrary to section
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17A(3)(b)(i) of the Public Order Ordinance, Cap 245. Charge 2,
P knowingly taking part in an unauthorised assembly was not dealt P
with and left on the court file; only to be dealt with in the
Q future with leave of this Court or the Court of Appeal. Q
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2. The particulars of Charge 1 states the defendant
between 26 and 27 July 2019 organised a public procession which
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took place in contravention of section 13 of the Public Order
T Ordinance which was an unauthorised assembly by virtue of T
section 17A(2)(a) of the same Ordinance.
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Summary of Facts
3. The Commissioner of Police prohibited the holding of a
B B
public meeting and procession on 27 July 2019 by the defendant.
C He gave the police a notice of intention on 23 July 2019 C
proposing meetings and a procession between Shui Pin Tsuen
D Playground and Yuen Long MTR Station in Yuen Long. The purpose D
of the meeting and procession was to condemn a terrorist attack
E E
on people in Yuen Long MTR Station on 21 July 2019. The subject
matter was stated in the notice as anti-terrorism.
F F
G 4. The full particulars of the offence are set out in the G
Amended Summary of Facts and admitted by the defendant,
H Mr Chung, on 11 April 2022. He agreed and it is common knowledge H
that from June 2019, violence erupted during certain protest
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events all over the territory. On the night of 21 July 2019,
violence erupted in Yuen Long MTR Station.
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K
5. On 25 July 2019, the Commissioner of Police prohibited K
the holding of the said procession in the interest of public
L order, public safety and the protection of the rights and L
freedoms of others. Taking into account certain widely reported
M incidents of violence and vandalism arising from and after the M
incident of 21 July 2019, the Police reasonably believed that
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any procession would escalate into violent confrontation,
serious traffic disruption and the residents of Yuen Long being
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significantly affected.
P P
6. The Police had suggested to the defendant that he
Q consider submitting an altered processional route and increasing Q
the number of marshals proposed to maintain the safety and order
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of the procession but that was ignored. This was especially
pertinent because his proposed route covered Castle Peak Road,
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which is a major thoroughfare and includes the Light Rail track
T as well as its overhead high voltage cables. This presented T
another imminent danger to participants.
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7. The Police took into consideration the social
atmosphere and recent processions descending into chaos at that
B B
time which meant there was a likelihood that the defendant’s
C procession and meeting could get out of control and that the C
likely risks of violence escalating could not be tempered even
D if the Police had imposed more conditions. D
E E
8. The defendant did appeal the decision of the
Commissioner of Police to the Appeals Board, which after a
F F
hearing confirmed it on 26 July 2019. The Appeal Board was of
G the opinion that the proposed procession could pose a serious G
threat to the public, the participants of the procession as well
H as affect public order and public safety. The appeal was H
dismissed. The defendant did not judicial review those
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decisions.
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9. Immediately after that appeal was dismissed, the
K
defendant held a press interview. His interview was broadcasted K
by various media outlets and he said that despite the
L prohibition of the procession, he would himself at around the L
same time walk the same proposed route to Yuen Long MTR Station.
M He specifically denied organising an unauthorised assembly but M
would, as a resident, welcome anyone who wanted to visit Yuen
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Long on that same day.
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10. On 27 July 2019 at the proposed starting point, the
P playground, the defendant was interviewed by the press again P
which was widely broadcasted by various media outlets. Even
Q before this press interview, there were hundreds of protesters Q
gathered in or around this playground, which was situated next
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to Yuen Long Police Station. The number of protesters gathered
there increased as time went by.
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T 11. In that press conference, the defendant condemned the T
violence at the MTR station on 21 July 2019 as a terrorist
U attack organised by the “Peking Liaison Office”. He said those U
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present in Yuen Long that day should shout for help if they were
attacked by either terrorists controlled by the Liaison Office
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of the Central People’s Government or the Police Force.
C C
12. The prosecution relied on and played numerous video
D recordings of the events of that day in Yuen Long, either D
incidents that occurred on the defendant’s proposed route or
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those outside of the proposed route but adjacent and close by.
It was footage of reprehensible conduct. Many were described in
F F
detail in the Amended Summary of Facts.
G G
13. Thousands of protesters gathered and occupied the
H carriageways of the proposed route, which meant traffic was H
seriously disrupted. The police station was targeted and forced
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to close its vehicular gate for safety reasons. Thousands walked
along the defendant’s route and occupied all the vehicular lanes
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of Castle Peak Road. They obstructed the Light Rail service,
K
which had to be suspended because protesters walked within the K
railway area.
L L
14. Political slogans and verbal abuse were shouted at the
M Police incessantly. Those included “Black cops, Shameful”, M
“Hong Kong Police knowingly break the law”, “Liberate Hong Kong,
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revolution of our times” and “No rioters, only tyranny”.
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15. Roads were blocked by protesters setting up barricades
P facing police cordons. The Police walked behind the procession P
to try and disperse the crowd. Warnings were given by the Police
Q with warning flags displayed almost continuously. There were Q
standoffs between the protesters and police where not only was
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abuse and insults hurled but physical objects including bricks,
umbrellas and other hard objects. During the day, the Police had
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to use tear gas on several occasions to disperse the crowd. All
T warnings were ignored by the crowds. T
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16. There were many specific incidents of note, for
example, a police emergency vehicle was surrounded with officers
B B
inside and vandalised. Other police officers had to go to rescue
C it. C
D 17. As I said, all these actions were caught on news D
footage and are part of the prosecution’s case to establish a
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context for the purposes of sentencing.
F F
18. By around 7 pm, hundreds of protesters finished the
G procession and remained in or around Yuen Long MTR Station in a G
standoff with the police. Eventually the crowds dispersed at
H about 11 pm. H
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19. There was specific footage of the defendant on several
occasions standing in front of a large crowd of black-clad
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protesters. He was stood between that crowd and the police
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officers. He tried to speak to both the police and the K
protesters. He tried to calm the growing tension but essentially
L failed. These exchanges were caught on the camera, some included L
in the Summary of Facts.
M M
20. The defendant held another press conference at around
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9 pm inside Yuen Long MTR Station where he calculated about
288,000 people had participated and claimed the movement
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attracted that many participants. He expressed gratitude to all
P those who showed up and to all those who provided assistance and P
supplies.
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21. He reiterated that the Police and terrorists had
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attacked Hong Kong citizens as well as members of the press. He
said the Police used force which was unlawful and that they
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should not serve the Beijing regime any longer. He said the
T violence of 21 July 2019 was orchestrated by the Liaison Office T
of the Central People’s Government. All of this was said to the
U press and broadcasted widely by various media outlets. U
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22. The defendant admits knowingly organising an
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unauthorised public procession. Despite the decision by the
C Police to ban his procession, which was affirmed by the Appeal C
Board’s decision, he openly in a press conference appealed to
D members of the public to participate anyway in the name of D
“shopping” or “visiting” Yuen Long.
E E
23. Thousands did participate in this unauthorised assembly
F F
and the risks identified by the Police became a reality. There
G were real incidents of reprehensible conduct, serious violence G
and breaches of the peace as well as riots and incidents that
H arose in the course of that unauthorised procession and H
assembly. Public order, public safety was endangered as well as
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the rights and freedoms of others and their property affected.
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Mitigation
K
24. I have heard full mitigation and have had the benefit K
of submissions prepared by counsel. There is no need to repeat
L it or set it out here. The defendant is now 42 years old, born L
in Hong Kong, educated abroad and single. His father is a
M diabetic with other health issues that requires the care and M
attention of the defendant. His mother passed away some years
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ago.
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25. Prior to his arrest for this offence, he was working in
P public relations and earning up to HK$60,000 each month. He has P
2 previous convictions dealt within the same court appearance.
Q In 2015, he was convicted twice of taking part in an unlawful Q
assembly.
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26. I have been told in mitigation that he has dedicated
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himself to the welfare of animals, especially strays. In 2017,
T he worked for a year at the Non-Profit Making Veterinary T
Services Clinic. I have letters from colleagues from that clinic
U as well as friends who have known him for a long time or worked U
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with him. I have been appraised of his role as the chairperson
of the Localists’ Regiment of Animal Protection.
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C 27. The defendant lived in Yuen Long and after the 21 July C
2019 incident in the Yuen Long MTR Station, he wanted to hold a
D meeting and procession to raise awareness of that incident. That D
is why he submitted a notice of intention to hold a meeting and
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procession on 27 July 2019.
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28. His best mitigation is his plea of guilty. I am told
G he regrets his acts and is remorseful. He did not intend to G
benefit in any way from organising an unauthorised assembly. He
H was only hoping to promote a peaceful, loving and caring H
society. He was naïve in thinking there would be no breach of
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the peace that afternoon. He thought he would be embarking on “a
peaceful walk”.
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K
29. It was submitted that he was not the only one who K
wanted to organise a meeting and procession that day. 2 other
L organisers, a Mr Kwan and a Mr Au also tendered notices of L
intention to the Police. A local singer, Ms Denise Ho Wan-see
M made known on social media that she herself would be walking in M
Yuen Long that day and signing autographs as she walked. It was
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submitted that he was not alone in wanting to draw attention to
Yuen Long that particular week. The point of this submission is
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that this means not all protesters in Yuen Long who participated
P in the unauthorised assembly on that day were there because of P
the defendant, therefore not all the blame should be laid at his
Q doorstep. Q
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30. It was submitted that he tried to keep the crowd calm
by appealing to them, it was suggested that the police presence
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may have been the reason behind public emotion being provoked,
T which led to conflicts and violence. Much was made of the fact T
that the prosecution highlighted confrontations or acts of
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violence which were beyond or adjacent to the defendant’s exact
proposed route.
B B
C 31. Much was also made of the fact that he was not charged C
until August 2021, which was 2 years after the event and his
D initial arrest. The defence submitted that this delay meant the D
defendant was unable to gather evidence of others organising an
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unauthorised assembly at the same time or gather evidence as to
why he himself deviated from his proposed route and went to the
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2 villages that the Police had to either defend or guard.
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Principles of Sentencing
H 32. I agree with the prosecution’s proposition that this H
public order offence, organising an unauthorised assembly, is a
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pre-emptive offence and its gravamen lies in the number of
participants involved which may cause disruption to public order
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and a breach of public peace. I was referred to HKSAR v Wong Chi
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Fung and Another [2022] HKCA 239 at paragraph 28 where the Court K
of Appeal said:
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“…, it is clear that the gravamen of both offences lies
M in the number of participants involved which may cause M
disruption to public order. … It is trite that a
sentencing court is entitled to take account of the
N circumstances of the offence to assess its gravity, and N
the concept of “context” is not a new one. …”
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33. That last sentence defines the meaning of “context” as
P the date, time, location and occasion of the offence. The P
occasion here was to highlight and draw attention to the 21 July
Q 2019 incident in the MTR station. This is the background of the Q
event the defendant wanted to organise and went on to organise
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despite a police ban. There are aggravating factors, both the
deliberate flouting of the law and the particular background of
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this event.
T T
34. The background of that event on 21 July 2019 meant that
U the unauthorised assembly organised days later related directly U
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to a scenario which was a potential source of widespread
violence. It was a tinderbox scenario where it was not hard to
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see how the concerns of the Police would almost certainly come
C true. C
D 35. I have been referred to Secretary for Justice v Wong D
Chi Fung [2018] 2 HKLRD 699 and find I can draw on the
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sentencing principles set out in that Court of Appeal authority
but to keep in mind that this charge involves an unauthorised
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assembly whereas that authority involved an unlawful assembly.
G G
36. Even though the defendant faces a charge of organising
H an unauthorised assembly, if I take into account the overall H
circumstances and context behind this assembly as well as the
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social unrest witnessed from June 2019, that it was as
relentless as it was violent and disturbing, then I find I can
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and should consider those sentencing principles such as
K
protecting the public, meting out penalties, open condemnation K
and the principle of deterrence.
L L
37. The facts of this case affected members of the public
M who were not participating in this unauthorised assembly. There M
was widespread traffic and public transport disruption.
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38. By identifying as a principle “meting out penalties”,
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the Court of Appeal were reiterating the obvious and that is any
P sentence imposed ought to be commensurate with the offence P
committed. One that reflects the seriousness of the offence and
Q the culpability of the offender. The open condemnation factor is Q
self-explanatory, the sentence ought to reflect social
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disapproval of the offence and the criminal conduct of the
offender.
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T 39. The factor of deterrence serves as a warning to others T
and prevents the offender from reoffending. The need for
U deterrent sentences cannot be limited to unlawful assemblies or U
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more serious public order offences. The need to consider a
deterrent sentence will often depend on the prevailing
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circumstances at the time. In fact, all sentencing principles
C applied to determine an appropriate sentence should take into C
account the prevailing tumultuous situation of 2019 as well as
D the specific tinderbox situation of Yuen Long that week. D
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40. In Secretary for Justice v Wong Chi Fung [2018],
Poon JA, as he then was, identified the inherent risk of large
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gatherings when he says that from experience, when large numbers
G of demonstrators gather together, emotions run high in the crowd G
who may become agitated so that the situation has the inherent
H risk of breaking out into violence. There will be those who seek H
to instigate violence from volatile situations. Therein lies the
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risk that cannot be ignored. This was a risk that was brought to
this defendant’s attention by the Police. I cannot believe
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considering the background of that 21 July incident and recent
K
incidents from June 2019 that the defendant himself did not see K
the inherent risk.
L L
Reason for Sentence
M 41. The freedom of assembly, procession and demonstration M
are not absolute rights and are subject to restrictions that
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have been ruled constitutional. Those freedoms are enjoyed
subject to these restrictions, irrespective of a defendant’s
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politics or beliefs. This case involved a direct challenge to
P the authority of the Police, law, and order. The Police gave a P
detailed explanation as to why they banned the defendant’s
Q meeting and assembly. They gave reasons and considerations that Q
were entirely reasonable. The risks were outlined for the
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defendant. Yet despite them, the defendant went on to organise
it nonetheless.
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T 42. The fact that the defendant made a conscious decision T
to break the law and challenge public order during such volatile
U times was serious. I find that an aggravating factor or the U
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gravamen of these facts admitted. Actions have consequences for
everyone irrespective of who they are and what they hope to
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achieve.
C C
43. It is an aggravating factor that he gave a press
D conference immediately after the Appeal Board upheld the D
decision of the Commissioner of Police and several press
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conferences on the material day. These were broadcast widely by
various news outlets. Moreover, I have no doubt that the
F F
defendant was expressing the direct opposite when he said he
G would walk his intended procession alone despite the ban. He G
knew and expected others to join him and as can be seen from the
H video footage; Yuen Long was overrun by protesters. The Police H
were completely outnumbered throughout the day. The language
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that the defendant used during these press conferences can be
described as provocative and inflammatory.
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K
44. I will also take into account the violence that can be K
seen not only on the proposed route of the defendant’s
L procession but in adjacent streets and areas as well. I am sure L
the unauthorised procession moved beyond or overflowed from the
M proposed route to the MTR station to the 2 villages adjacent. M
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45. Assemblies can be fluid and move in response to the
size of the crowd, action by the Police or for other reasons.
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The submission that I should only consider evidence of an
P unauthorised assembly on the defendant’s proposed route is over P
rigid. Clearly, the procession proceeded down the defendant’s
Q intended route but did spill over when it reached the MTR Q
station to the 2 adjacent villages. Even then, there is evidence
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that the defendant deviated from his own proposed route and went
to both villages to try to mediate with protesters, facing up to
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the Police guarding the entrances to those villages.
T T
46. There was wanton destruction of public, personal and
U government property. The Police were abused and pelted by U
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projectiles. Many of the black-clad protesters were well
prepared with weapons and homemade shields. At times, the Police
B B
were so outnumbered that the use of tear gas and pepper spray
C was entirely justified and necessary. The footage of a police C
cordon marching forward to rescue the police vehicle surrounded,
D trapped and damaged, showed how precarious and dangerous the D
situation was.
E E
47. The scale of the unauthorised assembly is relevant.
F F
The video footage shows that there were so many protesters that
G Castle Peak Road and other side roads were blocked for hours. G
The MTR and Light Rail trains were either suspended or seriously
H affected. There was no vehicular access possible in that area. H
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48. Taking into account the circumstances prevailing in
Hong Kong at the time, an assembly and procession of that size
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posed an inherent latent risk of possible violence that did
K
materialise. K
L 49. Defence counsel has made much of the fact that other L
people submitted notices to hold meetings and assemblies on the
M same day but were also rejected. They did not appeal. Other M
persons of note either said they would be in Yuen Long on that
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day or did turn up in Yuen Long with their own supporters. This
submission is that it would be unfair for the defendant to be
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held solely responsible.
P P
50. That submission that there were others at the same time
Q possibly committing the same offence is not a mitigating factor Q
of weight. The fact that others may have similarly applied to
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hold an assembly meeting on that same day in that area does not
negate or mitigate this defendant’s culpability.
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T 51. In any event, it was this defendant who publicly said T
via press conferences that he was going to defy the police ban
U and the Appeal Board’s decision. On the day, it was the U
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defendant who stood at the start of his proposed banned
procession route and spoke to the press again. It was he who
B B
placed himself between the Police and protesters. It was he who
C at times tried to mediate between the Police and the protesters. C
There was no evidence that other failed applicants gave press
D conferences which involved provocative and inflammatory language D
against the Police as well as covertly encouraged others to
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participate in an unauthorised assembly.
F F
52. In mitigation, it has been submitted that the defendant
G himself participated peacefully and should not be held G
accountable for anything unlawful or illegal that happened out
H of his sight or off the intended procession route. I find this H
submission carries little weight when one considers the
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tumultuous proceeding month and the raison d’être behind the
procession itself; a violent incident.
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K
53. It is hard to accept the submission that the defendant K
was naïve and thought his “walk” would be peaceful. No one could
L have realistically have said after witnessing the scenes of L
unrest and violence in June and July 2019 that they believed the
M protest to highlight the Yuen Long MTR Station incident on M
21 July 2019 would be peaceful.
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54. When I consider the number of participants in and
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around the proposed procession route, I find it unnecessary to
P define what violent acts or breaches of the peace can be P
attributed to participants of the unauthorised assembly as
Q organised by the defendant. I find it can be so attributed and Q
he as the organiser is not blameless. It is often inevitable
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that processions will spill over from an intended route when
roads are jam-packed. The evidence shows that the line between
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peaceful assembly and conduct which disrupts public order was
T crossed several times that long day. T
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55. I do not find that his actions of standing between the
protesters and the Police and communicating with the Police any
B B
indication on his part of a serious attempt to avert violence
C successfully. In fact, he can be heard in one video challenging C
the Police by repeatedly asking what they were doing there. In
D any event, it did not appear that he had much influence over the D
protesters gathered in front of those particular police cordons.
E E
56. I also see no merit in the submission that there was a
F F
delay in prosecuting the defendant. 2 years is not a long time
G considering that the assembly was on a large scale. There was G
much evidence to consider with over 160 hours of video evidence
H alone. Legal advice would have been required and at that H
particular time, the workload for all relevant departments was
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very heavy. There was no intentional delay. But more
importantly, I see no prejudice or unfairness suffered by the
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defendant.
K K
57. He is not a man with a clear record. In fact, he has
L previous convictions of public order offences. He cannot say L
that he did not know of the consequences of his actions,
M especially when he mentions welcoming an arrest during one of M
his press conferences so that he could enjoy representing
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himself in court on the day.
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58. I have reminded myself that the starting point for this
P offence must be commensurate with the offence committed. P
Deterrent sentences must prevail here and therefore personal
Q individual mitigation does not carry much weight unless Q
exceptional. I do not find any mitigation submitted exceptional.
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59. After careful consideration of the above principles and
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factors as well as submissions in mitigation, an immediate term
T of imprisonment is the only appropriate sentencing option. To T
arrive at an appropriate starting point, I have taken into
U account the facts, mitigation put forward, the defendant’s plea U
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of guilty at the earliest opportunity and the sentencing
principles I have highlighted.
B B
C 60. I have also taken into account relevant and what I C
consider aggravating factors such as the context behind the
D unauthorised assembly on that day in that location which I D
described as a tinderbox situation. I have taken into account
E E
the number of protesters that day, the widespread obstruction
caused, the violence and damage seen all in the course of many
F F
hours.
G G
61. A particularly aggravating factor is the number of
H press conferences held by the defendant and the provocative and H
inflammatory language he used which was widely broadcasted.
I I
62. Lastly, he made a conscious decision to defy the police
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ban and flout the law knowing, I am sure, that the inherent risk
K
of social unrest was bound to be realised. K
L 63. I have been referred to recent sentences imposed by L
myself for this exact offence relating to unauthorised
M assemblies on various dates in 2019 during the social unrest. M
None of those sentences were for an unauthorised assembly to
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highlight or condemn the 21 July 2019 Yuen Long MTR incident.
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64. As I have already said and I stress again, the week
P after that incident in Yuen Long itself was tense and to fill P
the same area with emotional protesters was to ignite a
Q potential source of social discord. These facts are peculiar to Q
this case.
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65. Accordingly and after careful consideration, I find a
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starting point of 24 months’ imprisonment appropriate. The
T defendant indicated his plea at the earliest opportunity and is T
entitled to a full discount.
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66. After that discount is applied, the defendant is
sentenced to 16 months’ imprisonment.
B B
C C
D D
(A J Woodcock)
District Judge
E E
F F
G G
H H
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K K
L L
M M
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P P
Q Q
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T T
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