HKSAR v. LEE CHEUK YAN AND OTHERS

DCCC 857-875,
877-884, 886-889,
891 & 893/2020
(Consolidated)

[2021] HKDC 1572

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 857-875, 877-884,

886-889, 891 & 893 OF 2020

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Reasons for Sentence

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1.  There were 37 cases arising from the same incident of which 4 were dealt with earlier and the remaining 33 were consolidated.  In this consolidated case, there were 20 defendants.

2.  12 of the 20 defendants pleaded guilty to their respective charges before me and were sentenced on 15 September 2021.  They were the 2nd, 5th, 6th, 8th, 9th, 11th, 12th, 14th, 15th, 16th, 18th and 20th defendants.  The remaining 8 pleaded not guilty and a trial was set down for 10 days from 1 November 2021.

3.  Those remaining 8 defendants appeared before me at a pre-trial review on 15 October 2021. Between that date and the first day of trial, 5 of the remaining defendants indicated a change of plea.  They pleaded guilty to their respective charges on the first day of trial.  They were the 1st, 3rd, 7th, 10th and 17th defendants.  I will sentence them today.

4.  3 defendants maintained their pleas of not guilty and were convicted after trial of their respective charges on 9 December 2021.  I have heard mitigation earlier today on behalf of, or from those 3 defendants; the 4th, 13th and 19th defendants. 

5.  The 4 defendants dealt with and sentenced earlier by His Honour Judge Stanley Chan, pleaded guilty to a charge arising from the same incident on 4 June 2020 in Victoria Park.  In a consolidated case DCCC 876, 885, 890 and 892/2020, Wong Chi-fung, Lester Shum, Tiffany Yuen Ka-wai and Rosalynne Jannelle Leung admitted they knowingly took part in that same unauthorised assembly.  They were sentenced on 6 May 2021 to sentences ranging from between 4 to 10 months’ imprisonment.

Charge 1

6.  The 1st, 3rd, 7th and 10th defendants pleaded guilty to Charge 1, incitement to knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221.

7.  The particulars are that on 4 June 2020 at the Water Fountain Plaza, Victoria Park, Causeway Bay, in Hong Kong, they, together with other defendants unlawfully incited other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public meeting which took place in contravention of section 7 of the Public Order Ordinance which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.

8.  The 4th and 13th defendants were convicted after trial of Charge 1.

Charge 2

9.  The 1st defendant pleaded guilty to Charge 2, holding an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.

10.  The particulars are that on the same day, 4 June 2020 at Victoria Park, the 1st defendant held a public meeting which took place in contravention of section 7 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the Public Order Ordinance.

Charge 3

11.  The 1st, 3rd, 7th, 10th and 17th defendants pleaded guilty to Charge 3, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the Public Order Ordinance.

12.  The particulars are that on the same day, 4 June 2020 at Victoria Park, they together with the defendants named and other persons unknown, without lawful authority or reasonable excuse, knowingly took part in a public meeting which took place in contravention of section 7 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.

13.  The 13th and 19th defendants were convicted after trial of Charge 3.

The Facts

14.  When I sentenced 12 of these 20 defendants on 15 September 2021, I set out in full the facts agreed by the defendants and pertinent to sentence.  For the sake of brevity, there is no need to repeat them here in full.

15.  In convicting the 4th, 13th and 19th defendants after trial, on 9 December 2021, in my verdict, I set out the evidence against each defendant that I found proved beyond reasonable doubt that they were guilty as charged.  There is no need for me to repeat it here.  I also set out why I rejected the evidence of the 13th and 19th defendants.

16.  Suffice to say, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (“Hong Kong Alliance”) submitted a notification to the Police applying to hold a public meeting in Victoria Park between 9 am and 10 pm on 4 June 2020. The purpose of the meeting was to mourn the 31st anniversary of the June 4 incident, with an estimated number of participants between 50,000 and 100,000.

17.  In light of the pandemic, the Department of Health were consulted by the Police and advised against holding any mass gatherings at that time, in view of the coronavirus pandemic.  The Department of Health took into account the number of COVID-19 cases by the end of May 2020, the upsurge between March and early April 2020 as well as several local clusters mid-May 2020 with no apparent primary source identifiable.  The risk of community outbreak existed at that time.  All the sporting facilities, including the football pitches of Victoria Park were closed, and had been since March 2020 because of the pandemic.

18.  After a liaison meeting between the Police and representatives of Hong Kong Alliance, the Commissioner of Police issued a notice as required, prohibiting the holding of the proposed public meeting in the interests of public order, public safety and the protection of the rights and freedoms of others.  The Letter of Objection was issued on 1 June 2020.

19.  Despite the Letter of Objection, these defendants defied the police ban and the law.  They either incited others to take part in an unauthorised assembly, and/or knowingly participated in one that night.  The 1st defendant admits he held it.

20.  The video footage of the press conference, inciting others and the actual footage of the unauthorised assembly has been played in court numerous times in relation to this consolidated case.  Those videos and screen captures identifying the defendants and their locations, as well as the transcripts of the speeches and slogans chanted are set out in the Amended Summary of Facts for these 5 defendants that pleaded.

21.  In the afternoon of 4 June 2020, there were crowds already around Causeway Bay entrance of Victoria Park obstructing traffic, and some roads had to be closed to traffic because of traffic chaos and safety concerns.

22.  By 8 pm, there were an estimated 20,000 people on the invaded football pitches of Victoria Park.  The pitches were a sea of candlelight.  The crowds disbursed by about 11 pm.  There was some graffiti on walls and on the ground relating to the June 4th Incident.

Mitigation

23.  I have heard mitigation in full from all except the 10th defendant, who had nothing to say, but did submit a biography.  This morning, the 13th defendant acted in person in mitigation and gave no personal particulars or background but made a lengthy statement. Similarly, the 19th defendant gave no personal particulars or background in mitigation but made a short statement in person.

24.  I have either received written mitigation, biographies, statements and supporting authorities in advance or received letters of mitigation. The 1st defendant also represented himself in mitigation.  I do not intend to repeat all the mitigation provided but all that can be said on behalf of the represented defendants has been conveyed and considered.

25.  For the 1st, 3rd, 7th, 10th and 17th defendants, their best mitigation is their pleas of guilty.  They did not indicate their pleas in a timely manner.  They all indicated their pleas between the date of the pre-trial review and the first day of trial.

26.  It was submitted that by then, the turbulent and tumultuous social unrest of 2019 had receded.  The obstruction and inconvenience to the public around Victoria Park was limited to the streets in the Causeway Bay area only and natural with any assembly.  There was no violence or imminent risk of violence at any time.  The unauthorised meeting lasted only a few hours and was relatively short.

27.  I was urged to, and will consider personal mitigation, clear records, motive, backgrounds and previous significant public service.

Principles of Sentencing

28.  I will adopt paragraphs 40 to 52 in my Reasons for Sentence dated 15 September 2021 relating to other co-defendants in this case.  I will consider the culpability of the offenders individually. The context in which a crime is committed is of relevance to assessing its gravity and that culpability.  It can be relevant to whether a punitive and deterrent sentence is appropriate. 

29.  Since preserving public order and public safety is important, I have taken into account the prevailing circumstances at the time, some defendants incited others to take part in an unauthorised assembly, and all the defendants knowingly took part in it, bar the 4th defendant.

30.  I have set out in the Reasons for Sentence of other co‑defendants, why I found a deterrent sentence appropriate.  The social unrest and violence we saw in 2019 had significantly receded by June 2020, but not disappeared entirely.  What we did see from the beginning of 2020 was a different threat to public order, public safety and the protection of the rights and freedoms of others in the form of the pandemic. This is not an epidemic, confined to the Mainland and Hong Kong, but an indiscriminate pandemic that by June 2020 had spread across the world and is a threat that is still affecting us today, 18 months later.

31.  Whether or not it contributed to the social unrest of 2019 receding somewhat, the pandemic itself presents a different threat and risk.  It was this threat and risk that was behind the decision of the Commissioner of Police.  Since June 2020, we have had a 3rd and 4th wave of COVID-19 infections in Hong Kong and there may be more to come.

32.  All sentencing principles are applied to determine what is an appropriate sentence to take into account the facts of the charges, and in this case, also the prevailing public health crisis in Hong Kong at that time.

33.  The obstruction to traffic and public transport as well as some road closures that day is a relevant consideration, but in these facts, the risk to public safety, because of this pandemic, serves to prove this unauthorised assembly was serious. These are factors I have taken into account and will reflect in sentence.

Reasons for Sentence

34.  Similarly, for the sake of brevity, I adopt paragraphs 53 to 63 in my Reasons for Sentence dated 15 September 2021, relating to the other co-defendants in this case.  I reiterate here that the Basic Law and the Bill of Rights does guarantee the freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional.

35.  Here, restrictions can be applied in the interests of public safety, public order and the protection of others’ rights and freedoms.  A consideration of public safety and the need to protect the rights of others must include a public health crisis. 

36.  When considering an appropriate sentence, I do not take into consideration the common purpose of the assembly, nor the politics, beliefs, stance and opinions of any of the defendants.  These sentences are not a reflection of, or related in any way to the politics, beliefs, stance and opinions of any defendant. 

37.  I am well aware that the Hong Kong Alliance organised an annual event in Victoria Park to mark June 4th, but under the exceptional circumstances, the organisers had other alternative and creative options to consider, such as an interactive online vigil which would have negated the risk of COVID-19.  Not a vigil in groups on the streets all over Hong Kong and in Victoria Park, in addition to an advertised online vigil, as announced by Hong Kong Alliance.

38.  The social distancing measures adopted to combat this pandemic, were not designed to surreptitiously prevent people gathering for a common purpose or as a tool of suppression, as wildly suggested, but to specifically stop people gathering in groups to prevent the transmission of COVID-19.

39.  The sole reason for social distancing measures is to protect the public and whole community. Restrictions applied in the interests of public safety, public order and the protection of others’ rights and freedoms. So to defy and incite others to defy those restrictions under such circumstances is serious.

40.  Therefore, I consider a deterrent and punitive sentence appropriate.  The defendants exhibited a blatant disregard of a serious risk to the entire community.  The defendants ignored and belittled a genuine public health crisis.  They showed no concern for the safety and health of fellow Hong Kongers.  They wrongly and arrogantly believed their common purpose and right to commemorate in Victoria Park was more important than protecting the community or the public’s right to protection from a serious health risk, an invisible risk.

41.  Some, or most of those charged with incitement are well‑known public or political figures and their frontline roles in this unauthorised assembly is an aggravating factor.  They have a public profile and what they said and did was widely broadcast by media outlets.  Moreover, they came together as a group for the press to reinforce each other and their message in order to be more visible to draw as many people as possible to Victoria Park.

42.  They were not to know whether the crowds they encouraged to participate in an unauthorised assembly would be peaceful and non-violent or would diligently adhere to social distancing measures.  On the day, the video footage clearly shows the crowds did not adhere to such necessary measures.  The fact that there did not appear to be an outbreak of either violence or COVID cases as a result of this assembly does not detract from their culpability.  It was fortuitous.

43.  Accordingly, it is in this context, and because of the prevailing circumstances at the time, I find an immediate custodial sentence appropriate.

44.  The defendants who incited others to congregate in large numbers and join them in an organised, unauthorised assembly on closed off football pitches created a public health and safety risk.  They committed these offences despite the reasons given for the decision to prohibit the proposed meeting, being undeniable and credible.

45.  I have taken into account mitigation put forward, submissions made, the facts of the offences and the prevailing situation at the time, behind the decision of the Commissioner of Police.  I have also considered the fact that at the material time, all the defendants before me today had clear records, except for the 3rd defendant. However, his one previous similar offence dates back to 1993.

46.  The other relevant consideration I cannot ignore is that the 1st, 3rd, 4th and 7th defendants were on court bail for similar offences when they committed these offences.  I sentence the defendants as follows:

The 1st Defendant

47.  I have a biography and personal details of the 1st defendant.  In fact, I have considered in the last 3 recent cases of unauthorised assembly charges involving this defendant, many mitigating letters written on behalf of the defendant as well as his own. There is no dispute he has dedicated a very long time to public service, in particular the welfare of workers and labour rights.  In previous mitigation, his selfless dedication has already been highlighted.  Pertinent to this case, between 2011 and 2014, as well as 2019 and 2021, is the fact he was the chairman of the Hong Kong Alliance.

48.  The 1st defendant elected to represent himself in mitigation after his plea to Charges 1, 2 and 3.  He read out a statement explaining his experiences in Beijing in June 1989 when he was tasked with bringing donations to support protestors in Tiananmen Square.  His involvement and experience led to a lifelong need and intention to dedicate himself to the commemoration of the June 4th Incident.

49.  The depth of his emotion and dedication is palpable.  He writes of his steadfast belief in freedom, rule of law, human rights and democracy.  As I have said above, I do not take those beliefs and the common purpose here into account; that means the deterrent element is not because of his politics, beliefs, or grievances.  The defendant, I am sure, when he committed these offences, did so with his eyes wide open.  He knew that there would be consequences for his actions, as I am sure did all other defendants.

50.  I intend to take a starting point of 15 months’ imprisonment, to reflect his prominent role as a leader who drove the unauthorised assembly.  I will increase it by 3 months to take into account the aggravating factor of being on court bail at the time for 3 other public order‑related offences from 2019. Therefore, I take a starting point of 18 months’ imprisonment for Charges 1 and 2.

51.  I intend to take a starting point of 6 months’ imprisonment for Charge 3.  I also increase this by 3 months to reflect the fact he was on court bail at the time.  Therefore, I take a starting point of 9 months’ imprisonment for Charge 3.

The 3rd Defendant

52.  I sentenced the 3rd defendant to 14 months’ imprisonment, suspended for 24 months in DCCC 534/2020. He had pleaded guilty to 2 counts of public order offences.  I found a suspended sentence appropriate for his background, long public service and minor role in that offence.

53.  I heard full mitigation on that occasion and had many letters from many people from different walks of life such as friends, colleagues and those who had benefitted from his dedication to public service.  From his biography, I know he has been a District Councillor, a politician and former vice chairman of the Democratic Party.

54.  I have heard full mitigation put forward again on his behalf.  He is a family man with a long record of serving the public and the community.  One particular achievement was to successfully advocate for legislation against anti‑racial discrimination. It has been stressed that this unauthorised assembly in Victoria Park caused little disruption and inconvenience to the community.  It was peaceful and without violence.  It was of a different nature to the unauthorised assembly he helped organise in 2019.  This was an annual commemoration he felt had to be remembered despite the pandemic.

55.  I have considered the letters submitted on his behalf in mitigation.  There is a letter from an Associate Professor at the Chinese University of Hong Kong, the Reverend Dr Tobias Brandner, who speaks of his deep commitment and passion for the poor, underprivileged and prison inmates.  He is described as humble, with great concern for those at the margins of society.

56.  There is another letter from Professor Antony Cheung who describes the 3rd defendant as moderate in disposition and willing to reach out to all sides within the political spectrum.  He has firm political convictions, yet advocates a peaceful and rational approach, which caused conflict between himself and his own party.

57.  In March 2020, he resigned from his position and duties in the Democratic Party after a joint petition from his own colleagues.  This arose from his criticism of local restaurants for discriminating against Mainland Chinese customers during the pandemic.

58.  He currently works as a community organiser for the Society of Community Organisations (“SoCo”) and I have a letter from a director describing his dedication and work for the underprivileged and grass roots community.

59.  What does differentiate the 3rd defendant on this 2nd occasion before me is that he committed these offences whilst on bail for similar offences.  I am sure he took the risk knowing that his actions could have serious consequences.  Despite his mitigation, it is inappropriate to consider a suspended sentence again.

60.  I intend to take a starting point of 12 months’ imprisonment and I increase it by 3 months to take into account the aggravating factor of being on court bail at the time. Therefore, I take a starting point of 15 months for Charge 1.

61.  I intend to take starting point of 6 months’ imprisonment for Charge 3 and I increase this by 3 months to reflect the fact he was on court bail at the time.  Therefore, I take a starting point of 9 months for Charge 3.

The 4th Defendant

62.  Mr Pang has said all he can say in written and oral mitigation in relation to the 4th defendant’s background, career, health issues as well as his culpability.  He has referred me to authorities he relies upon and submits that a non-custodial sentence would be appropriate and if not, and I find a term of imprisonment is appropriate, then to suspend it would be the correct approach on these facts.

63.  I have previously heard full mitigation in DCCC 536/2020, DCCC 537/2020 and DCCC 534/2020.  I sentenced the 4th defendant to public order related offences committed on those 3 separate occasions in 2019. 

64.  On this occasion, the 4th defendant submitted a letter of mitigation which explained his actions and reasons for going to Victoria Park just before 6.30 pm on 4 June 2020.  He ends with a prayer to remember those for whom he lit a candle that evening.

65.  I have taken into account the role played by the 4th defendant, his appearance for 15 minutes at the Water Fountain Plaza press conference and the fact he left immediately after it. 

66.  I intend to take starting point of 10 months’ imprisonment to reflect the fact he was there for the press conference only.  He said nothing but was there to lend support to Hong Kong Alliance.  I will increase that starting point by 3 months to take into account the aggravating factor of being on court bail at the time. Therefore, I take a starting point of 13 months for Charge 1.

The 7th Defendant

67.  I sentenced the 7th defendant to 8 months’ imprisonment, suspended for 12 months in DCCC 536/2020. He had pleaded guilty to one count of knowingly taking part in an unauthorised assembly.  I found a suspended sentence appropriate for his background, age, long and dedicated public service, as well as his very minor role in that offence.

68.  I heard full mitigation on that occasion, and again, have had many letters written by people from different walks of life, as well as many respectable members of Hong Kong society, such as friends, colleagues and those who have benefitted from his dedication to public service.  From his biography, I know he has been a teacher, District Board member and then a member of the Legislative Council. His campaigning for the underprivileged and minority groups are well-known.

69.  Mr Lau has highlighted actions taken by the 7th defendant that shows his huge respect for the rule of law, as well as his resolute opposition to violence.  This last quality was illustrated by news footage from 1 July 2019 where the 7th defendant puts himself between rioters and the glass doors of the Legislative Council building to stop them forcibly entering the building.  He tries to hold back the crowds on his own and is physically bundled aside by black clad rioters.  Annex 3 of his mitigation bundle are screenshots from that news footage.   

70.  From the news footage of this case, it is clear that the 7th defendant played a minor role in inciting others.  He was last to join the line-up and appeared to have been pushed into it by a volunteer helper of the Hong Kong Alliance.  He said nothing to the press himself.  When the members of Hong Kong Alliance and others walked into Victoria Park slowly, he can be seen at the back of the main group, and he remained at the back of this group throughout the programme and evening.

71.  I was told in mitigation that he went to Victoria Park in his personal capacity, but he is a member of the Standing Committee of Hong Kong Alliance.  He was aware of their actions and plans I am sure.  He participated knowing that he was on court bail at the time.  However, I agree he largely remained silent and played a passive, almost reluctant role.

72.  Although he was there at Victoria Park despite the Police ban, his Facebook posts suggested to people to download a digital candle and later meet in his Kwai Chung office.  He did not encourage anyone to join him in Victoria Park because of health risks.

73.  I have also taken into account the 7th defendant’s personal letter in this case.  Initially, he may well have thought that he would still go to Victoria Park with a group of friends and not defy the police ban.  But clearly, by early afternoon, it was clear to anyone in or near Victoria Park that what was to transpire was an unauthorised assembly.  What transpired at 6.30 pm was an incitement to participate in an unauthorised assembly.

74.  I have noted the 7th defendant’s motto in life and in his work, as well as his utmost respect for the rule of law during his career and from his actions.  However, like the 3rd defendant, what does differentiate the 7th defendant in this case from the unauthorised assembly in DCCC 536/2020, when I imposed a suspended sentence, is that he committed these offences whilst on court bail for similar offences.Despite his exceptional mitigation, it is inappropriate to consider a suspended sentence again.

75.  I intend to take a starting point of 9 months’ imprisonment to reflect his passive, almost reluctant role, and increase it by 3 months to take into account the fact that he was on court bail at the time.  Therefore, I take a starting point of 12 months’ imprisonment for Charge 1.

76.  I intend to take a starting point of 4 months’ imprisonment for Charge 3, and I increase this by 2 months to reflect the fact he was on court bail.  Therefore, I take a starting point of 6 months’ imprisonment for Charge 3.

The 10th Defendant

77.  I was given a biography and informed that the 10th defendant was 36 years old, single and had a clear record.  He has served as a District Councillor since 2012 and chairman of his District Council since this year.  He is serving on many committees that cover many areas from housing to traffic to youth affairs.  I was told that he had nothing further to add in mitigation relating to his background, or the commission of these offences.

78.  I intend to take a starting point of 12 months’ imprisonment for Charge 1 and a starting point of 6 months’ imprisonment for Charge 3.

The 13th Defendant

79.  As I have said above, the 13th defendant represented herself in mitigation.  She gave no personal particulars for consideration.  She read out a lengthy statement. 

80.  The 13th defendant played a prominent role as the Vice Chair of Hong Kong Alliance.  I rejected her evidence that there was no incitement on her part, nor a candlelight vigil led by Hong Kong Alliance on 4 June 2020, but only individuals who entered Victoria Park and lit a candle for their own different personal reasons.  Therefore, there was no unauthorised assembly, as defined by the law.

81.  Despite her clear record, like the other defendants, I find a deterrent approach appropriate and intend to take a starting point of 12 months’ imprisonment for Charge 1 and 6 months’ imprisonment for Charge 3.

The 17th Defendant

82.  The 17th defendant is now 59 years old, married and a father of one.  He too has spent over 25 years of his career in public service, either as a District or a Legislative Councillor. He has devoted himself to many causes and projects to better the lives of Hong Kong people.

83.  In 2016, he was elected Chairman of the Democratic Party.  In mitigation, Mr Chan has given many examples of his achievements in public service.  I have had several letters of mitigation from fellow Legislative Councillors.  He is described as having a strong sense of social justice and pushed for more proactive government policies for the grassroots and underprivileged communities.  Despite his achievements, he has remained low key and kept a low profile, not needing recognition for his dedication.

84.  In his mitigation letter from Professor Antony Cheung, it was suggested that the 17th defendant was caught up in the turbulent times and vicious politics of 2019 and 2020.  He suggests the 17th defendant felt pressure to take part in actions and activities which led to him committing this offence and other similar offences, yet he was viewed as too conservative by other more radical party members.

85.  There is one particular letter that is from an 84‑year-old widow who had a very complicated and very sad family situation.  She turned to the 17th defendant for help, even though she had not lived in his district for some time.  Yet, he did not hesitate to help her by personally contacting the Social Welfare Department as well as the Housing Authority, to ensure that she is now happy and comfortable in her twilight years.  She asks for leniency for whom she describes as a good and kind man.

86.  Like so many defendants in this case, I do not doubt his strong sense of public servitude and commitment, helping those less fortunate or in need, but he knew the risk of participating in this unauthorised assembly.

87.  After taking all the mitigation into account, I intend to take a starting point of 6 months’ imprisonment for Charge 3.

The 19th Defendant

88.  As I have said above, the 19th defendant represented herself in mitigation.  She gave no personal particulars for consideration.  She read out a very short statement.  In short, she said any sentence I imposed on her today will be seen as a sentence I impose on every Hong Konger in Victoria Park that night. 

89.  I rejected the 19th defendant’s evidence that even if there was a candlelight vigil led by Hong Kong Alliance on 4 June 2020 and it constituted an unauthorised assembly, she was an individual who entered Victoria Park and lit a candle for her own different personal reasons.  Therefore, she did not knowingly participate in an unauthorised assembly.

90.  Despite her clear record, like the other defendants, I find a deterrent approach appropriate and intend to take a starting point of 6 months’ imprisonment for Charge 3.

Discount after Plea

91.  I have taken into account the authority of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 and will apply a discount of 20% or just above, to reflect rounding off sentences to the benefit of the 5 defendants who pleaded guilty at a very late stage.  These 5 defendants indicated their plea long after a trial date was set down.

92.  They knew the evidence against them from the very beginning, after the case was transferred to the District Court.  There was subsequently no change in that evidence that would have led them to reconsider their pleas.  They, for whatever their own reasons, waited until after the pre‑trial review and just before, or on the first day of the trial to change their pleas.

Totality Principle

93.  Once again, I adopt what I said in my Reasons for Sentence dated 15 September 2021 under the heading of “Totality Principle” from paragraphs 111 to 114.  The importance of the totality principle is to ensure fairness.  Courts aim to achieve a just and balanced sentence that will not punish a defendant twice for the same or similar conduct and crush him.

94.  The 1st and 4th defendants are serving sentences for similar, or the same offences committed on several diverse dates during the social turmoil in 2019, although the common purpose was clearly not the same as in this case.

95.  After considering the facts of those previous similar convictions relating to those defendants and the sentences I have imposed, I find it fair and appropriate to consider concurrent sentences here.

Conclusion

96.  For the 4th, 13th and 19th defendants found guilty after trial, I see no reason to apply any discount to the starting points I have found appropriate.  Therefore, I impose the following sentences:

97.  The 4th defendant is sentenced to 13 months’ imprisonment for Charge 1.  I order this sentence to run concurrently to the sentences he is presently serving.

98.  The 13th defendant is sentenced to 12 months’ imprisonment for Charge 1.  She is sentenced to 6 months’ imprisonment for charge 3.  I order these sentences to run concurrently; a total of 12 months’ imprisonment.

99.  The 19th defendant is sentenced to 6 months’ imprisonment for Charge 3. 

100.  For those defendants that pleaded guilty, and after a discount of 20% or thereabouts is applied, I impose the following sentences:

101.  The 1st defendant is sentenced to 14 months’ imprisonment for Charge 1.  He is sentenced to 14 months’ imprisonment for Charge 2.  Lastly, he is sentenced to 7 months’ imprisonment for Charge 3.  All to be served concurrently; a total of 14 months’ imprisonment.  I order this sentence to run concurrently to the sentences he is presently serving.

102.  The 3rd defendant is sentenced to 12 months’ imprisonment for Charge 1 and 7 months’ imprisonment for Charge 3, to be served concurrently; a total of 12 months’ imprisonment.

103.  The 7th defendant is sentenced to 9 months’ imprisonment for Charge 1 and 4 months and 2 weeks’ imprisonment for Charge 3, to be served concurrently; a total of 9 months’ imprisonment.

104.  The 10th defendant is sentenced to 9 months’ imprisonment for Charge 1 and 4 months and 2 weeks’ imprisonment for Charge 3, to be served concurrently; a total of 9 months’ imprisonment.

105.  The 17th defendant is sentenced to 4 months and 2 weeks’ imprisonment for Charge 3.