HKSAR v. LAU KA TUNG

[English Translation – 英譯本]

HCMA 137/2020

[2021] HKCFI 225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 137 OF 2020

(ON APPEAL FROM FLCC 3419 OF 2019)

_______________

_______________

_________________

J U D G M E N T

_________________

1.  The appellant was charged with one count of obstructing a police officer in the due execution of his duty[1], to which he pleaded not guilty.  The Principal Magistrate[2] convicted him after trial and sentenced him to a term of imprisonment of 1 year. He appeals against the conviction and the sentence.

The prosecution case

2.  On the night in question, there was a protest on a thoroughfare in Yuen Long. The crowd had been assembling for quite some time, and the police took action to disperse them. The prosecution alleged that the defendant obstructed a police officer in a formation with his body purposefully so that the officer was unable to advance smoothly with his team to pressurize the demonstrators in the front to disperse them.

3.  That night, an intelligence officer (PW1) received information that there would be a large-scale unlawful assembly in Yuen Long. Therefore the police arranged a Commander (PW2) leading a second-in-charge Commander(PW4) and approximately 40 officers to organize a defence on Ma Wang Road / On Lok Road, which was beside Long Ping Station of the West Rail.  After arrival, the 40 officers were deployed into ranks of 8. The officers in the front row included PW3, who was holding shield no.5. He was the officer alleged to have been obstructed in the charge.

4.  The prosecution called the above 4 police officers as witnesses, and produced 4 audio-visual footage taken from different angles at the scene.

The defence case

5.  At the trial[3], the appellant did not testify or call witnesses, but produced 2 audio-visual footage and his medical examination report in evidence.

6.  From the footages the course of the event could be clearly observed.  The witnesses’ testimonies were, on the contrary, of secondary importance. Therefore, the Principal Magistrate did not set out the witnesses’ testimonies in his Statement of Findings, but did give a detailed description of what he saw on the footage, which was as follows[4]:

“8. The 6 pieces of footage clearly showed that in fact, at some time after 7 pm that evening, the officers advanced eastward on the three-carriageway On Lok Road, pressurizing the hundreds of protestors in front, in an attempt to force them into dispersal. During that time, a large crowd of reporter-like people kept milling about the police formation.

9. During the whole twenty-odd-minute advance of a few hundred metres, the officers did halt on a number of occasions, raise banners, warn protestors through loudspeakers that they needed to disperse and end the unlawful assembly. Most of the protestors, however, paid no heed to the police warnings and put up a confrontation. During that time there were people who threw bricks and miscellaneous objects at the police, there were also those who shone strong light and laser beams at them. Among the protestors there were those who were holding metal rods and shields. But, when the police formation managed to close in on the protestors, they did turn round and retreat slowly along On Lok Road.

10. When it was about 7:23 p.m., the officers stepped up with their pace and dashed towards the crowd of protestors, pushing them on their bodies, waving batons and banging on the protestors’ shields. This move caused the crowd to disperse. Some protestors were forced to run into Tung Tai Street—a side street, whereas 2 persons were left behind lying on the carriageways of On Lok Road—a thoroughfare (including one person holding the shield of Captain America, a comic book character). Having stopped to deal with the two persons, the police regrouped and continued to march towards the crowd, who was slowly retreating along On Lok Road, to pressurize them.

11. The defendant appeared on screen at 7:25:05. He was standing between the crowd and the police facing the latter, with both his hands raised [above his head], and his right hand holding a Social Workers Registration Card and waving both his hands to the front, obviously indicating to the police to slow down. In fact, the defendant was not the only one performing a similar act. There were a male next to the defendant, who will be referred to as ‘the male’, and a female who was also holding in her hand or hanging a similar Social Workers Registration Card on her chest, and they were performing a similar act of dissuading the police. The three will be referred to as ‘the social workers’ in the following.

12. In a loud voice the police warned the social workers to disperse and not to obstruct police work, but the social workers stayed on and retreated at a pace slower than that of the police. The police marched and stopped at a distance of ten odd feet from the social workers, and the latter also stopped.

13. The male spoke to the police in a loud voice:

‘We’re falling back, we’re falling back. Give us some space to fall back, will you? Thank you ah sir, thank you ah sir. Give the protestors some place to fall back, will you?’

14. Afterwards, through a loudspeaker the police spoke loudly that:

‘Those in the front listen up. This is a police warning. You are taking part in an unlawful assembly…or we will disperse and arrest you…Leave…Now I order you to leave’

15. Having spoken, the police picked up their feet and moved toward the junction between On Lok Road and Tai Cheung Street. The social workers also fell back along On Lok Road but at a slower pace. As a result, the two parties became closer and closer, and were finally close at hand. At that time, the defendant and the male were still holding up their hands with their Social Workers Registration Cards in their right hands and facing the police formation. The defendant kept shouting out to the police, ‘(We’re) falling back, (we’re) falling back’; the male was also shouting, repeating words similar to what he had said in paragraph 13 above.

16. Finally, as what the defence counsel said, the defendant’s right hand came into contact with the shield of PW3, who was in the front row.  PW3 walked to the left and reached the defendant’s right side.  The defendant was in the police formation. There were officers holding round shields and they jostled the defendant on his left, and because of that the defendant lost his balance and slowly fell onto his right.  It was very chaotic at the scene.  The defendant was eventually pinned onto the ground by PW4 and was unable to move about.  The police dealt with and arrested the defendant.  The ambulance also arrived at the scene.  After a few minutes, the police regrouped and moved forward with the operation.  The was the end of the footage.”

The Principal Magistrate’s findings

7.  The Principal Magistrate found that the appellant purposefully and successfully obstructed PW3, who was in the due execution of his duty, from advancing with his team. He also found that the prosecution had made out each of the elements in the charge. The appellant was therefore guilty of the charge, and the reasons are given below:

“17. Those present at the scene assembled unlawfully. They did not have the right to occupy the carriageways. I am of the view that in these circumstances, the police had to discharge their duty. They could employ reasonable force immediately to disperse the crowd and to restore traffic.

18. In fact, the police kept issuing warnings, but the crowd still chose to remain at the scene and confront the police at first. Among them, some shone strong light and laser beams at the police. Besides provoking the police, some even threw bricks and miscellaneous objects at them. Meanwhile, there were reporter-like people milling about the police formation. Apart from being busy taking care of the overall situation, the police also had to beware of sudden attacks at a close distance from these people.

19. The police advanced cautiously amid this predicament and the operation paid off gradually. The crowd fell back somewhat, but they did not disperse in accordance with the warnings after all. They only retreated by walking slowly on the three carriageways of On Lok Road.

20. It was not the duty of the police to proceed behind the protestors on the carriageways of On Lok Road in their unlawful procession. The police needed to disperse the protestors or drive them back to the side streets or slip roads, including Tung Tai Street and Tai Cheung Street, otherwise how would the protestors at the scene disperse and normal order be restored? I am of the view that in the circumstances, the police had the right to rush towards the crowd to jostle against the protestors, forcing them to turn into the side streets. The crowd would only gradually break up in these circumstances. In the process, some people would certainly fall or become injured after jostling against one another or having bodily contact with the police, but that would be an inevitable result, which was within everyone’s expectation (including the defendant, the protestors and the police). There was no need for reminders, nor was there room for clarification or discussion. One would need to bear the consequences.

21. At the material time, holding a shield, PW3 proceeded along On Lok Road towards the junction with Tai Cheung Street with his colleagues. Seeing the officers bearing down, the defendant still ignored the warnings, refused to stay away from the officers’ path, chose to stay in the front of the officers, fell back at a slower pace so that the two parties were drawing closer and closer and eventually there was contact. The defendant’s hand came into contact with PW3’s shield and managed to force PW3 to turn left and walk to the defendant’s right side. I am of the view that in the present case, no one was entitled to obstruct PW3’s path, just as no one was entitled to obstruct a police officer from pursuing a robber. The defendant should have taken heed of the warnings, walked away and gave way for the police to execute their duty at hand, let them pressurize the protestors, scatter the crowd, and drive them into Tai Cheung Street. The defendant’s insistence did not only bring about inconvenience to PW3, but rather a fundamental blow to PW3’s work at hand, so that PW3 could not hold on to his position in the police formation and drive straight ahead. I find that this insistence is tantamount to obstruction in the offence. No matter what, the incident was yet to finish, but there was a breach in the police formation.

22. I am of the view that because the police at the scene were outnumbered, the unity within the police and the intactness of their formation were of particular importance. The defendant was not only obstructing PW3 from advancing, but also compromised the police formation. After PW3 had been compelled to move away, the defendant successfully got into the police formation. That interrupted the police deployment and slowed down, obstructed the advance of the whole formation (including PW3). It also compelled the other officers to push away, jostle the defendant to the roadside. However, the defendant lost balance and fell onto the ground. PW4 seized the opportunity to subdue, arrest and deal with the defendant. The police were only able to regroup, re-organize the defence and move forward after a few minutes. I am of the view that the actions by and response from the officers were reasonable and lawful, and was the only way to deal with the predicament at the scene.

23. From what I saw, the decision of the police to advance was reasonable, and the actions, moves taken were also proportionate and within reason. The social workers requested the police to slow down, keep their distance from the protestors, not to come close and disperse the protestors, all these were tantamount to requesting the police to turn their backs on their duty, relinquish their dispersal operation and just to follow the protestors and accompany them in the demonstration. I am of the view that this request was totally unreasonable. The defendant was at the scene, was able to see how stirred up the crowd was, and obviously as a grown-up, he must have understood the duty of the police at the scene. I am sure that he knew himself it was a ridiculous decision to obstruct the officer from advancing. He should not have done that, not to mention it was unnecessary.

24. In the defence of criminal cases, the requirement of protecting others is the same as that of self-defence, that is, ‘…a person only acts in self-defense if in all the circumstances he honestly believes that it is necessary for him to defend himself and if the amount of force that he uses is reasonable…’; see paragraph 9 of R v. Rashford, [2005] EWCA Crim 3377, an English Court of Appeal case.

25. Since I am sure that deep down the defendant knew full well that it was not reasonable to obstruct a police officer from advancing, that he should absolutely not have done that, and that it was not necessary to do that, “protecting the others” which the defence has raised, that is, to protect the protestors so that they could fall back safely, is not established.”

Grounds for appeal against conviction

8.  Mr Robert Pang, SC and Mr Billy Li represented the appellant in the appeal. The grounds of appeal they put forward on behalf of the appellant are as follows:

(1)  In finding the appellant’s conduct constituted obstruction to PW3, the Principal Magistrate erred in not taking the following factors into consideration:

(a)  the appellant’s conduct merely brought about inconvenience to PW3, and the latter could have proceeded with only slight effort; and

(b)  the appellant was only trying to reason with PW3 in an attempt to persuade the police that the action they were about to take was wrong, and this act is not an illegal act that is contemplated by the Ordinance.

(2)  The Principal Magistrate erred in finding that the appellant’s conduct affected the whole police formation, and that such conduct constituted obstruction because:

(a)  the offence only states that the appellant obstructed PW3, therefore even if the police formation was affected, it could not become the basis of proof of obstruction;

(b)  the Principal Magistrate did not give sufficient consideration to the footage that showed that the appellant was dragged or pushed across the police check line by a police officer; and

(c)  the appellant did not cross the police check line on his own volition.

(3)  The Principal Magistrate erred in finding that it was an inevitable consequence and should be within the expectation of everyone at the scene that some of the people fell on the ground and even injured themselves after jostling one another or having bodily contacts with the police; and that they had to be responsible for the consequences themselves.

(4)  The Principal Magistrate erred in finding that the social workers’ request for the police to slow down and keep their distance from the protestors was tantamount to asking the police officers to turn their backs on their duty and relinquish their dispersal operation.  He also erred in finding that the appellant must have understood the duty of the police at the scene and that he knew himself it was ridiculous and unnecessary to have obstructed the police officers from advancing and he should not have done so.

(5)  The Principal Magistrate erred in finding that the prosecution had proved the element of “wilfulness”[5] in the charge, because by error he failed to consider:

(a)  that the appellant honestly believed that the protestors were in the process of falling back, but the police did not give them sufficient time to leave safely and in peace, which was unreasonable and wrong; therefore PW3 was believed to be not in the due execution of his duty; and

(b)  whether the appellant was aware of and intended his conduct to result in obstruction to PW3.

Discussion

9.  Before discussing each of the grounds above, let us first deal with the law concerning the charge in question.

10.  In HKSAR v Tam Lap Fai (談立徽)[6], the Court of Final Appeal ruled that the elements of this charge are as follows[7]:

(1)  a police officer has been obstructed;

(2)  the officer at that time has been performing his duty; and

(3)  the person obstructing the officer did so wilfully[8].

11.  In Hinchliffe v Sheldon[9], Lord Goddard CJ stated what it meant by obstruction: if what one has done is making it more difficult for the police to carry out their duties[10], it is sufficient to constitute obstruction.

12.  In the case of Tam Lap Fai[11], Chan PJ pointed out that in the majority of the cases, the above threshold is sufficient for determining whether certain acts constitute wilful obstruction of a police officer in the execution of his duty, which is a matter of fact and degree. The court has to consider the facts, assess the degree of the obstruction from the overall circumstances, which include what the accused had done, how it was done, what the officer in question was doing, how the accused’s conduct affected what the officer was doing, etc., and to come up with a determination based on common sense. An act that may constitute obstruction in one case may not be in another, owing to differences in circumstances[12].

13.  Chan PJ pointed out that, the prosecution does not have to prove that the accused’s conduct makes the officer’s work substantially more difficult[13]. Such a threshold is too high. However, generally speaking, mere inconvenience[14] or trifling additional effort[15] do not constitute obstruction[16].

14.  Chan PJ also pointed out that a police officer’s duty is onerous, and to a certain extent private citizens have the obligation to assist them. However, the citizen also has the right to exercise silence, the right to seek clarification from the officer, the right to reason with the officer, the right to protect others or to attend to other more urgent matters[17]. The court needs to consider the overall related circumstances when making the assessment.

15.  In Wong Kui-ping v R[18], O’Connor J took the view that even when a citizen exercises his rights in the face of a police officer, if his behaviour or attitude is intemperate, unduly persistent, irrelevant or unreasonable in the circumstances, it can also be converted into the offence of obstruction to a police officer in the execution of his duty.

16.  Wilfulness is one of the elements in this charge.  In Chung Chi-keung v R[19], Wong J[20] cited and agreed with the decision in the English case of Lewis v Cox[21]. If a person performs an act intentionally, whether it is aimed at a particular police officer or is hostile to him, so long as this act prevents the officer from or makes it more difficult to carry out his duty, and when that person performs the act he knows and intends for his act to achieve the mentioned results, that converts into obstruction. The intention in question does not have to be the principal intention.

17.  Barnett J also agreed with this view in Lo Hon Hin v R[22].

18.  As to whether the officer in question was in the due execution of duty, one needs to look at the duties of the police force as set out in section 10 of the Police Force Ordinance[23].  Section 10 states that:

“The duties of the police force shall be to take lawful measures for—

(a) preserving the public peace;

(b) preventing and detecting crimes and offences;

(c) preventing injury to life and property;

(d) apprehending all persons whom it is lawful to apprehend and for whose apprehension sufficient grounds exists;

(e) regulating processions and assemblies in public places or places of public resort;

(f) controlling traffic upon public thoroughfares and removing obstructions therefrom;

(g) preserving order in public places and places of public resort, at public meetings and in assemblies for public amusements, for which purpose any police officer on duty shall have free admission to all such places and meetings and assemblies while open to any of the public;

…[24]”

19.  In the execution of the functions and duties under the Public Order Ordinance[25], a police officer is empowered to stop and arrest any person who has committed any offence under this Ordinance[26]. If circumstances so require, the police officer is empowered to use force, but the use of which cannot be greater than is reasonably necessary for that purpose.

20.  The above are, of course, the duties of the police force, but the actual circumstances of the case will still have to be examined to determine whether the individual officer is in the execution of his duty.

Grounds of Appeal (1) and (2)

21.  These two grounds focus on whether the appellant’s conduct constituted obstruction to PW3, and can be dealt with together.

22.  The charge only states that the appellant obstructed PW3. Mr Pang, SC criticized it was erroneous for the Principal Magistrate to find that the appellant’s conduct constituted obstruction, as he took into account that the appellant’s conduct affected the police formation. Mr Pang, SC also submitted that the appellant’s conduct merely brought about inconvenience to PW3, who could have simply bypassed the appellant by making a slight effort and then he could keep advancing. In fact, all he did was only taking a step to the left and, having reached the appellant’s right side, he kept on advancing. This only caused inconvenience or a trifling additional effort on the part of PW3, and did not constitute obstruction.

23.  According to the Particulars of Offence, the prosecution alleged that it was the appellant who obstructed PW3. There is room for discussion as to whether the allegation needed to be so confined. However, given the allegation as it was, this is the basis on which I give my considerations.

24.  The Principal Magistrate had considered whether PW3 was obstructed. His considerations and decision can be found in paras 21 and 22 under paragraph 7 above.

25.  I am of the view that in his consideration the Principal Magistrate was entitled to take into account the overall effect of the appellant’s conduct. Just as what Chan PJ pointed out in Tam Lap Fai[27], the court is obliged to consider the overall consequences of the case and apply common sense[28] to make the determination[29]. At that time PW3 was one of the officers advancing in the formation, and the suggestion that only he was obstructed is one that has not given sufficient consideration to reality.

26.  The court cannot, in its consideration, ignore the arduous reality then and the importance for the officers to maintain their formation but pay particular emphasis on the appellant’s only having made PW3 move sideward. The pace at which the appellant was falling back was obviously slower than that of the advancing officers. Given the overall circumstances at that time, obviously what he wanted was for the officers to slow down or even come to a halt. I concur with the Principal Magistrate’s view that it made no sense in doing this. Given the circumstances at that time, the officers had to deal with the appellant because of his appearance and the way he acted, and it was difficult to say that it was a response and move that did not comply with the law. Since there was a situation that the officers had to deal with, their operation to advance, disperse the crowd and restore the order of the road was affected. What was to be reckoned was that at that time, hundreds of people gathered, and comparatively speaking the police manpower was weak; it was important to maintain the formation and the number of officers during the operation.

27.  Mr Pang, SC also submitted that the appellant was only reasoning with PW3 in an attempt to persuade the police that their operation was wrong; therefore, this act was not the unlawful act contemplated by the Ordinance.

28.  Of course the citizen has the right to reason with a police officer in the execution of his duty, but it does not mean that he can do so without any constraint. Just as what the Court of Final Appeal pointed out in Tam Lap Fai[30], the court has to consider matters with common sense and in accordance with the actual circumstances of the case to determine whether a situation which started out to be reasoning would add difficulty to the duty a police officer who was in the due execution of his duty, even if that person thinks that he is only arguing on the basis of reason[31].

29.  Mr Pang, SC pressed the point that the appellant’s purpose at that time was to buy time for the protestors to retreat safely.

30.  On this point, the evidence shows that before the police officers advanced they had advised, warned those present at the scene many times and had a confrontation with them for quite some time. The operation to advance proceeded as the crowd did not leave in accordance with the directions. In an incident like this one the police force was supposed to be able to determine whether action would be taken, how and when the action would be taken and the steps and the pace of the action according to the circumstances. During the operation, it was impossible for the police officers to ignore the appellant’s presence and conduct, and it was impossible for their deployment and operation not to be affected by the appellant’s conduct. Given the situation then, even though only the pace was slowed down, the impact was not slight.

31.  The appellant’s appearance was only a few minutes, which was not very long. However, one cannot overlook the overall situation at the scene. If one says that the police force should not have made good use of the time during that operation and acted at a time which they assessed to be opportune, it is a disregard of the reality.

32.  When the police formation advanced, the crowd did fall back; some might have left, but there were still a lot of people at the assembly. These people did not seem to be minded to leave, and looking at the geography of the scene, the controls at the scene were not the reason the crowd could not leave; only that they chose not to listen to the directions given and stayed on at the assembly. There is no evidence to show why they were unable to leave safely.

33.  There is no evidence in the case to show that the appellant was in any capacity or role so as to have influence over the crowd either. The suggestion that at that time he only wanted the police to slow down the operation a bit to allow the crowd to leave safely is unconvincing. Even if that was what he had in mind, objectively speaking it was only his own wishful thinking at most, and it would only obstruct the police operation. The was no concrete basis to the suggestion that the crowd would leave on their own accord.

34.  Just as what the Principal Magistrate observed, the police team could have adhered to their own deployment and advanced towards the crowd, but had to stop because they had to deal with the appellant, and to redeploy after that before they could proceed with the operation.

35.  Mr Pang, SC also criticized the Principal Magistrate for not giving adequate consideration to the point that the appellant did not go behind the police check line on his own volition; the footage shows that he was dragged or pushed across the police check line by an officer.

36.  A police officer has the authority to apprehend a person whom he reasonably suspects of being guilty [of any offence] for which he may be sentenced to imprisonment[32]. As stated above, the appellant was standing in front of an advancing police formation, and was retreating at a pace slower than that of the police formation. The purpose of the appellant’s act of standing before the police formation was obviously for the police not to proceed or to delay the operation that they intended to carry out. Moreover, he insisted despite numerous warnings and showed no sign of abandoning. Given the situation at that time, the action the police officer took against the appellant was lawful and on good grounds.

37.  It was a judgment of the police in accordance with the actual circumstances at the scene on whether action should be taken against the appellant. They could decide not to take action against the appellant based on their reasonable judgment, and they had grounds to choose to do so as well. I do not take the view that the decision by the police and their action to subdue the appellant could be criticized or deemed unreasonable given the circumstances at that time. Whether the appellant crossed the police check line on his own volition or on his own initiative was not an important consideration.

38.  At the appeal hearing I watched the video footage in question. I concur with the finding that police officers including PW3 were in fact obstructed by the appellant’s conduct. In my consideration, I have taken into account the situation described in paragraph 55 below.

39.  My consideration also extended to the issue of whether the officer was in the due execution of his duty. Just as Mr William Siu, Acting Assistant Director of Public Prosecutions (“Mr Siu”) submitted that there were over a hundred people at the assembly at that time, occupying the three carriageways of the road for quite some time. The police were under the obligation to discharge their duty by dispersing the crowd with reasonable force and restoring the traffic and the order in that place. Therefore, it was difficult to say they were not in the due execution of their duty. The evidence shows that during that time there were people who threw objects at the police and shone strong light beams at them. Despite numerous warnings from the police they remained and confronted them. They did fall back, but did not break up. The police were exercising restraint the whole time.

40.  While advancing, the police officers did have bodily contact with some of the people on the road, but I do not take the view that there is evidence to show that during that time there was any police officer who was not in the due execution of his duty, especially PW3.

41.  I agree that until the time when the appellant was overtaken and arrested by the officers, the police (including PW3) were in the due execution of their duty. During that time there were officers who used force, but considering the circumstances at that time and what had transpired, it would be difficult to say it exceeded what was reasonably required of the circumstances at that time.

42.  I am of the view that the grounds of appeal (1) and (2) are not established.

Ground of Appeal (3)

43.  Focussing on one paragraph in the Principal Magistrate’s Statement of Findings (see paragraph 20 excerpted under paragraph 7 above), Mr Pang, SC criticized the Principal Magistrate for his erroneous finding.

44.  I believe that it was the Principal Magistrate’s intention to respond to the argument that the appellant reasoned with the police to prevent somebody from getting hurt with that paragraph. As Mr Siu submitted in this regard, the police were dealing with an unlawful assembly of quite a scale, and the assembly already turned into one with people using unlawful force. The police were under the obligation to enforce the law and to restore order. The appellant’s appearance was already after the incident had developed for quite some time. Despite numerous warnings and knowing full well the police had already commenced a law enforcement operation, the crowd insisted on staying and confronting the police. Those at the assembly and the appellant had to face the consequences indeed, including that of being put under arrest and that if need be, police officers would employ reasonable force to accomplish the mission.

45.  Despite the fact that the appellant is a social worker and apart from his emergence from the crowd at the assembly, there is no evidence to show what relation he had with those at the assembly, what influence he had over them. From the evidence, one cannot see that the crowd had the intention to disperse and leave. Even if the appellant possessed good intention, it was excessive, unrealistic expectation in an objective sense. Moreover, the evidence shows that the appellant spoke to the police only and he was not seen to have spoken or done anything to those at the assembly. The police were entitled to make decisions in accordance with the circumstances, and there is no evidence in the case to show that their actions were unlawful or unreasonable. The key is, based on the overall situation at that time and common sense judgment, whether the appellant’s conduct constituted obstruction to the police officers, the answer is a definite “yes”.

46.  This ground of appeal is not established.

Ground of Appeal (4)

47.  Mr Pang, SC criticizes the Principal Magistrate in that his finding in another paragraph in his Statement of Findings (see paragraph 23 excerpted under paragraph 7 above) was erroneous.

48.  The Principal Magistrate took the view that the appellant’s request was totally unreasonable, that he should not have done what he had done and it was unnecessary. I concur with this, and the reasons have been stated above.

49.  The Principal Magistrate said that the appellant must have understood the duty of the police at the scene. This could hardly be a matter in contention. The argument only lies with whether the appellant honestly believed that the police were acting improperly, or even unlawfully (an analysis on the issue of honest belief can be found in the analysis and consideration on ground of appeal (5) below).

50.  The finding by the Principal Magistrate in that paragraph is a reasonable one, which is not beyond the support of the evidence. No matter what, after the appellant’s conduct had been proved to be actually obstructing a police officer in the due execution of his duty, the key issue would be whether the prosecution had proved the remaining elements of the offence beyond all reasonable doubt, i.e., was the appellant wilfully obstructing? This is the issue in ground of appeal (5), and ground of appeal (4) is by itself insufficient to be a successful ground.

Ground of Appeal (5)

51.  This ground of appeal has to do with the element of wilfulness.

52.  In the context of this offence, Lewis v Cox[33] is the authority on what it means by wilfulness.

53.  In that case, Kerr LJ finds that wilfully obstruct refers to[34]:

(1)  an act which makes it impossible or more difficult for the police to carry out their duty;

(2)  this act was deliberately[35] done;

(3)  the person who did that act knew or intended his act to have the effect of making it impossible or more difficult for the police officer to execute his duty;

(4)  there was no lawful excuse[36] when he did that;

(5)  in the absence of a lawful excuse, that person’s purpose and reason for doing the act was irrelevant, whether it was directly hostile to, or aimed at the police officer.

54.  Mr Pang, SC made the following criticisms of the Principal Magistrate:

(1)  the Principal Magistrate erred in not taking into account that the appellant honestly believed that the protestors were in the course of falling back, and it was unreasonable and wrong for the police not to give them sufficient time to leave safely and peacefully; so they were not in the due execution of duty; and

(2)  the Principal Magistrate erred in not considering whether the appellant knew and intended his act to have the effect of obstructing PW3.

55.  Take point (2) above first. Mr Pang, SC submitted that according to the footage, there is not only no evidence to suggest that the appellant possessed the necessary intent, there are, on the contrary, various bits of evidence that show that the appellant had no intention to obstruct the police operation at all, for example:

(1)  the appellant never used any force to stop any officer from advancing, did not threaten or hurl abuses at the officers, nor did he incite others to perform illegal acts;

(2)  he even took off his respirator, raised both his hands and his Social Workers Registration Card up high to show his identity;

(3)  the police kept advancing, and the appellant fell back accordingly, and he said “(We’re) falling back”, which obviously was an intention to keep a distance from the police to avoid obstructing the police from advancing;

(4)  the distance between the appellant and the police formation was drawing near, and finally the appellant’s hand came into contact with PW3’s long shield. At that time, however, the appellant’s right hand was holding his Social Workers Registration Card up high, and only the back of his right hand came into slight contact with the long shield for less than one second. Then the appellant lifted his hand immediately, which was a clear intention to avoid contact with the long shield;

(5)  after PW3 had bypassed the appellant, the appellant did not pester PW3;

(6)  later when the appellant was pushed into the police formation, although he put up effort to raise both his hands high, because he was constantly jostled by the officers, there was disarray in the police formation. The appellant was only moving about in the police formation without his own volition, and he could not be said to be knowing or intentional.

56.  He pressed the point that if the appellant intended to obstruct the police, why would he perform acts to show clearly that he was not hostile? Why did he not come forward and obstruct any police officer, but instead kept falling back? He said the evidence is compatible with the appellant’s intention to communicate and reason with the police, and is insufficient to support the suggestion that appellant’s intention must be to obstruct PW3 from advancing and that such a conclusion is the only irresistible inference.

57.  The appellant’s conduct was indeed as described by Mr Pang, SC, but obviously what the appellant wanted was for the police not to follow their own deployment and to postpone or slow down the operation. This was certainly his purpose. That his conduct might be futile was perhaps not something entirely out of his expectation, but it must have been, or even within, his expectation that it must have achieved some effect. The Principal Magistrate expounded his observations in paragraph 23[37] of his Statement of Findings, and I am of the view that his observations are on the whole reasonable.

58.  Even considering the suggestions from Mr Pang, SC, the appellant must have had the intention for the police to stop or postpone the operation they were executing too, and he also knew that there would be and expected this consequence. We cannot confuse the concepts of an intention and a motive. It is not the key whether the appellant’s conduct was carried out under a bad motive.

59.  The appellant intentionally performed an act which made it more difficult for the officer to execute his duty.  In my judgment, there is sufficient evidence in the case to support the inference that the appellant knew and intended his act to be obstructive to the police officer.

60.  Going back to the first point[38], Mr Pang, SC criticized the Principal Magistrate for analyzing whether the appellant’s request should have been made or was reasonable only objectively, but never subjectively as to whether the appellant honestly believed that PW3 was not in the due execution of duty.

61.  The issue of whether the accused was holding an honest belief that could exculpate him should indeed be considered subjectively.

62.  It is not the case that the Principal Magistrate did not have regard to the issue of the belief in question, only that he considered the situation as “protecting others” [39]. Honestly, protecting others and the honest belief in question are not the same concept.  However, in the context of the present case, the train of thought as described by the Principal Magistrate can be related to the consideration of the two concepts of protecting others and honest belief, and the Principal Magistrate’s finding is:

“25. Since I am sure that deep down the defendant knew full well that it was not reasonable to obstruct a police officer from advancing, that he should absolutely not have done that, and that it was not necessary to do that, ‘protecting the others’, which the defence has raised, that is, to protect the protestors so that they could fall back safely, is not established.” [40]

63.  What cannot be ignored in the consideration of this issue is that the appellant did not testify at the original trial, therefore there is no direct evidence on whether he held the honest belief in question. It then follows that it depends on whether the evidence supports the inference in question. The accused only had an evidential burden[41], and so long as this burden was satisfied, the prosecution would have to prove beyond all reasonable doubt that the accused did not act under the said honest belief.

64.  Mr Pang, SC has set out the following evidence in his submission to state that all this is sufficient to prove the appellant held the said honest belief:

(1)  there is evidence to show that the appellant wanted to protect the protestors for them to fall back safely, which the Principal Magistrate also accepted;

(2)  according to the findings of the Principal Magistrate, the appellant was at the scene himself and witnessed how stirred up the crowd was, so naturally the appellant also witnessed how the police dispersed the protestors with force. Two protestors even fell onto the ground and appearing to be injured after dispersal by the police. Naturally the appellant might take the view that the police had employed excessive force on seeing this;

(3)  in the face of dozens of anti-riot police officers in full gear, and that those officers had dispersed protestors with force, the appellant still came forth to reason with them defenceless[42]. If he did not think that the police actions were unreasonable, he would not have performed such an act.

(4)  one can see from what the appellant said such as “slowly”, “(We’re) falling back” that he was thinking that the protestors were falling back already, and it was unreasonable for the police not to slow down to allow the protestors to fall back safely at that time; and

(5)  during the whole time, even though the appellant kept trying to reason with the police, none of the officers tried to communicate with or respond to him or other social workers. It was all the more possible for the appellant to think that the police were riding roughshod over them and were not in the due execution of their duty.

65.  Mr Pang, SC submitted that the evidence is sufficient to show that the appellant honestly believed that the protestors were in the course of falling back, but the police did not allow sufficient time for them to leave safely and peacefully, and that was unreasonable and wrong. Therefore, the appellant honestly believed that PW3 was not in the due execution of his duty.

66.  Mr Pang, SC pointed out that whether the suggestion of the appellant having the belief in question is reasonable is only a factor for consideration when finding him whether it was possible for him to hold such a belief. Whether the belief itself was reasonable was not an issue for determination. I concur with his submission in this regard, which is also supported by authorities[43], but the key issue is whether the appellant held the belief in question. Whether the suggestion of the belief in question is reasonable is only a factor in the consideration of the key issue.

67.  The Principal Magistrate did reject the suggestion that the appellant was acting under the said honest belief. He pointed out that based on the conversations between the appellant and those around him as shown on the footage, the defence has already satisfied the evidential proof on the issue of allowing the protestors to fall back safely. However, he was of the view that this suggestion has already been refuted beyond all reasonable doubt[44].

68.  In my judgment, the Principal Magistrate’s finding and his reasons given are supported by evidence and reasonable.

69.  Undoubtedly, the appellant’s purpose was for the police advance to slow down and even come to a brief halt. Obviously his conduct was for this purpose. In this case there is no evidence as to his capacity and role in the crowd in question, and I will not conjecture. However, when he performed the act in question, there was no obvious sign of the crowd dispersing, nor is there evidence to show that the appellant had advised the crowd to disperse. On what basis would the appellant honestly believe that if the police put their operation on hold the crowd would disperse of their own accord, so that the possible scenario of dispersal by force could be avoided? With the evidence presently available, the suggestion that the appellant held that honest belief does not hold water. At most what he had was his own good intention of hoping that by doing so the crowd would leave peacefully, and that is totally different from an honest belief.

70.  I am also of the view that the overall evidence has negatived the possibility that the appellant honestly believed that the police were not in the due execution of their duty. The finding by the Principal Magistrate[45] is reasonable and well-founded.

71.  The video footage shows that there is a long distance between the path of the police advance and the crowd who last stayed on the street. Before the appellant appeared, the police officers had bodily contacts with some people, and then two persons[46] fell onto the ground. However, there is no evidence to show that there were officers that performed improper acts. Secondly, and more importantly, just as Mr Siu pointed out, at that time the appellant was not at the place in question; he only came forward from afar later when the police further advanced, and it is difficult to say that the said belief grew on him because he saw the situation.  Moreover, what the social workers said as shown on the footage does not touch upon this aspect at all. It only involves the hope for the police to slow down their advance and there is not any allegation of unlawful force. If the appellant had had the above belief, the situation would not have been like that.  In terms of evidence, it is difficult to support the finding that the appellant had that honest belief.

72.  The suggestion of honest belief does not hold water, given the evidence in this case. Firstly, there is not really any evidence in the case that can sufficiently prove that the appellant held the said belief.  Secondly, as described in paragraph 69 above, judging from the evidence the suggestion of the appellant holding the said belief should be refuted.  Thirdly, the situation had been developing for some time, and objectively speaking the crowd was not seen to be leaving or having the intention to leave.

73.  The issue of wilfulness involves the consideration of lawful excuses. From my understanding of the submissions by Mr Pang, SC, he pointed out that in the circumstances of the present case, the following three scenarios could constitute a lawful excuse:

(1)  the police were not in the due execution of their duty, even their operation was unlawful;

(2)  the appellant honestly believed that the above situation existed; and

(3)  as a social worker, the appellant’s conduct only intended for the police operation to slow down a bit to avoid anyone from getting hurt.

74.  Mr Siu, however, emphasized that the consideration must take into account the overall actual circumstances at the scene, especially when the crowd had already occupied the road for quite some time, and the police commenced their operation only after advice and warnings on numerous occasions. During the operation, there were people who threw objects at them. The police gave repeated warnings. Although the crowd did fall back, there was no sign of dispersing.  

75.  I concur that the above circumstances should be taken into consideration.

76.  Regarding (1), I have already decided that the police operation at that time was lawful, and each of the officers was in the due execution of his duty[47].

77.  Regarding (2), again I have already come to the decision that it was reasonable and well-founded for the Principal Magistrate to find that the suggestion of the appellant wanting to allow the protestors to fall back safely was overturned. I have also found that the suggestion that the appellant was acting under the honest belief in question was not established[48].

78.  Regarding (3), the Principal Magistrate had the following observation[49]:

“From what I saw, the decision of the police to advance was reasonable, and the actions, moves were also proportionate and within reason. The social workers requested the police to slow down, keep their distance from the protestors, not to come close and disperse the protestors, all this was tantamount to requesting the police to turn their backs on their duty, relinquish their dispersal operation and just to follow the protestors and accompany them in the demonstration. I am of the view that this request is totally unreasonable. The defendant was at the scene, was able to see how stirred up the crowd was, and obviously as a grown-up he must have understood the duty of the police at the scene. I am sure that he knew himself it was a ridiculous decision to obstruct the officer from advancing. He should not have made that decision, not to mention that it was unnecessary.”

79.  Mr Pang, SC submitted that although it was the duty of the police to disperse the crowd, pressing close and charging at the crowd was not the only way to execute their duty. There is no evidence to show that the police had to disperse the crowd within a specified time limit, nor is there evidence to show that the appellant requested the police to relinquish their dispersal operation.  He just requested the police to commence their dispersal operation in a reasonable manner.  Therefore, there is no basis for the Principal Magistrate to find that the appellant “must have understood the duty of the police at the scene” and “knew himself it was a ridiculous decision to obstruct the officer from advancing.  He should not have made that decision, [not] to mention that it was unnecessary.”

80.  In Hills v Ellis[50], the appellant’s contention in that case was that he wanted to let the police officer know that he had arrested the wrong person and so obstructed the police officer, and this was found to be no lawful excuse.  Griffiths LJ pointed out that a citizen has no lawful excuse to interfere with a lawful arrest by a police officer[51].

81.  Based on the analysis above, I find that there is no lawful excuse to the appellant’s conduct.

82.  Ground of appeal (5) is not established as well.

A summary

83.  None of the grounds of appeal against conviction holds.  I have examined the whole of the evidence, assessed the reasons for conviction by the Principal Magistrate, and take the view that the conviction is safe and well supported by evidence.  Therefore, the appeal is dismissed and the conviction is affirmed.

Reasons for sentence

84.  The appellant has put forward three grounds of appeal:

(1)  the Principal Magistrate erred in not considering that the appellant was not hostile toward the police, and that his conduct was only to avoid clashes between the police and the civilians;

(2)  the Principal Magistrate erred in not considering any mitigating factors, especially that it was the appellant’s first offence; and

(3)  a one-year immediate custodial sentence is obviously excessive.

85.  When giving his reasons for sentence, the Principal Magistrate said the following[52]:

“The offence which the defendant has committed is not one of assaulting a police officer, but rather obstructing him. The defendant was not using any tools but only his own body to obstruct an advancing officer. The offence is also preferred against the defendant only, with no accomplices, and there is only one officer that has been set out to have been obstructed. Be that as it may, after trial I discovered that the defendant’s conduct was not a small-scale obstruction, but on a scale and jointly with at least two others believed to be social workers at the scene, which was chaotic and dangerous with numerous protestors and their emotions difficult to anticipate, and he successfully obstructed the whole police formation from advancing for a few minutes, making the law-enforcement work of dispersing the crowd by the police even more difficult. Taking into account of the actual scale and effects of the offence, all the sentencing options and the two-year maximum sentence of this offence, I sentence the defendant to one-year immediate imprisonment.”

86.  Mr Pang, SC criticized the Principal Magistrate for his erroneous finding of fact that the appellant managed to obstruct the advance of the whole police formation for a few minutes, and therefore made an erroneous assessment of the scale of the offence and its effects.

87.  Moreover, he also submitted that the Principal Magistrate overlooked the following factors that were favourable to the appellant:

(1)  even in a case of an unlawful assembly, if there is only little violence involved, more weight can be given to the accused’s personal circumstances, motive and rehabilitation and less to deterrence[53];

(2)  the appellant was a first offender, a deterrent sentence should not be imposed;

(3)  a prison term should be the last option for a first offender;

(4)  the appellant had shown concern for society and taken part in voluntary services on a long-term basis, so he should be seen as a person of good character and therefore a reduction in sentence should be given.

88.  He also criticized the Principal Magistrate for not referring to any cases and the sentence passed was much heavier than those in other cases.  In the cases that he cited, the appellant in HKSAR v Lee Sin Chee[54] was a participant in an unlawful assembly.  She sat on the road paying no heed to the demands and warnings of the police, and order on the road was only restored at the direction of the police officers.  She was convicted after trial and was only fined $2,500.

89.  The sentences passed in HKSAR v Ng Kwok Cheung[55] (transliteration), HKSAR v Wong Wei Lung[56] (transliteration) and HKSAR v Chu Ka Yin[57] were Community Service Orders.

90.  The sentences passed in HKSAR v Tang Tak Chuen[58] (transliteration), HKSAR v Leung Chun Wai Sunny[59] and HKSAR v Chan Hoi Ying[60] (transliteration) were short-term imprisonments of not more than two months.

91.  Each case has its own peculiarities, and the use of references to the sentences in different cases is most of the time limited.

92.  When it comes to the consideration of sentence, the court has to have regard to the nature and facts of the case, take into account the personal circumstances of the accused and strike a proper balance among the various principles under consideration.  The Court of Appeal has pointed out in SJ v Wong Chi Fung[61]that:

“108. Generally speaking, the court will take into account the

following factors in sentencing:

(1) Protecting the public – protect the public from the adverse effects of the offence in question;

(2) Meting out penalties – the sentence imposed ought to be commensurate with the offence committed, ie one that reflects the seriousness of the offence and the culpability of the offender;

(3) Open condemnation – the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender;

(4) Deterrence – prevent the offender from reoffending and prevent other people from committing the offence;

(5) Compensation – the sentence may require the offender to give compensation to the victim of the offence as a form of remedy or recompense;

(6) Rehabilitation and reform – one of the objectives of sentencing is the rehabilitation and reform of the offender; it is hoped that after serving the sentence, the offender will be law-abiding.

When faced with different offences or different facts, the court will consider whether a particular sentencing factor is applicable and if so, how much weight it should be given.  In deciding how much weight to be attached to a particular sentencing factor, the court will, generally speaking, consider the nature and seriousness of the offence, the seriousness of the facts surrounding the commission of the offence, the consequences of the offence, the offender’s motive for committing the offence, and the personal circumstances of the offender, etc.  Even if it is for the same offence, if the facts and circumstances of the case are different, the weight given to the same sentencing factor by the court may be different.  It is necessary for the court to assess fully and comprehensively all the circumstances of the case, and the seriousness of the facts surrounding the commission of the offences, before giving proper weight to the applicable sentencing factors.  A sentence that is commensurate with the case is then to be imposed on the offender.”

93.  In relation to cases arising out of the social unrest, the Court of Final Appeal[62] and the Court of Appeal have recently put forward guidelines on matters for consideration when assessing the severity of the cases in sentencing.  These guidelines have to be taken into account whenever they are pertinent to the circumstances of the case.

94.  In Secretary for Justice v Yu Ka Kui[63], the Court of Appeal summarized certain major factors[64] having perused a number of cases:

“(1) spontaneous or premeditated situation;

(2) the number of people involved in the violent acts;

(3) the degree of violence;

(4) the scale of violence;

(5) the duration of violence;

(6) the consequences;

(7) the imminence and gravity of the threat;

(8) role and degree of participation”

95.  Of course, the offence involved in that case was one of unlawful assembly, whereas the one involved in the present case is obstructing a police officer in the due execution of his duty. However, the appellant committed the offence in the scene of an unlawful assembly, and he was fully aware of the situation to be the case. This background to the commission of the offence has to be taken into account.

96.  Although there is no allegation from the prosecution that the appellant took part in the unlawful assembly at the scene, he was obviously not a “third party” there. From his clothing[65] and the overall circumstances, he was originally a participant of the assembly. More importantly, the objective consequences of the appellant’s conduct were that the police were delayed in dealing with the unlawful assembly, and the assembly was also able to sustain for a longer period of time. In other words, time for the restoration of order was prolonged.

97.  Even though the appellant did not directly support or encourage those who took part in the unlawful assembly to continue with their occupation of the road, objectively speaking this must necessarily have resulted.  If this situation persisted, there would be the risk of deterioration.

98.  In HKSAR v Tang Ho Yin[66], Macrae VP[67] points out that in a highly charged confrontation of this sort, in which there was already violence, if the offenders are not effectively contained or dispersed and the situation not effectively controlled, the risk of violence escalating will inevitably exist.  It will especially be the case when the law enforcement officers are heavily outnumbered.

99.  The present case is exactly one in which there was a great disparity in terms of the number of people.  Although it was seen from the footage that the participants in the assembly did not take more violent actions apart from hurling objects and shining strong light beams, there was still a distance of dozens of feet to up to a hundred feet between the police team and the crowd. But when the two parties drew nearer to each other, unless the crowd would disperse on its own initiative, it was within expectation that the situation would worsen.

100.  In Leung Kwok Hung (No 2)[68], the Court of Appeal pointed out that given the potential for rapid deterioration of the situation and the serious ramifications for the maintenance of law and order and safety of those at the scene, a person who refuses to disperse or leave a large assembly upon police orders perpetuates a state of affairs which disrupts public order and gives rise to a serious threat to the preservation of public peace.  By remaining at the assembly, even without the commission of any further act of violence or threat of violence, such person perpetuates the worsening situation which can potentially escalate to serious violent confrontations[69].

101.  In Secretary for Justice v Yuen Chi Shing[70] (transliteration), Pang JA raised some factors for consideration, which I am of the view that should be taken into account in the circumstances of the present case[71]:

(1)  the public hazard which the offence of unlawful assembly directs at, and the purpose of the creation of this offence is to nip the bud of the breach of the peace;

(2)  apart from considering the actual conduct of the accused himself, his role should also be taken into account; and

(3)  the number of people taking part in the unlawful assembly and whether they were ignoring police warnings.

102.  Having referred to Secretary for Justice v Wong Chi Fung[72], Pang JA pointed out in Secretary for Justice v Chung Ka Ho that:

‘A line had to be drawn between citizens’ right to have “peaceful meeting” and the conduct which “disrupts or threatens to disrupt public order” and “uses or threatens to use violence”. This line must not be crossed, lest public order could not be preserved and society would be prone to descend into anarchy which was the crux of the public hazard. Poon JA went on and used the entire sub-section H.3 to discuss the gravamen of the offence of taking part in an unlawful assembly[34] in order to explain the feature of the offence and how this feature would lead to and even aggravate the said public hazard. A full understanding can hardly be achieved merely by looking at the criminal acts on a superficial level.”[73]

103.  Put simply, one cannot overlook the social environment, the actual circumstances at the scene, and the potential effect of the appellant’s conduct at the time of the offence.

104.  I concur that the sentence has to have a deterrent effect.

105.  The maximum sentence for this offence is one of 2-year imprisonment.

106.  The appellant is a social worker, and those with him at that time were also social workers.  I do not deny that they had formed certain judgments in relation to the situation because of this capacity, that something needed to be done in accordance with this capacity. Even so, from the evidence one can only see that the object of their conduct was one-way, and it is difficult to say that it was a firm grasp of the role supposed to be assumed by a social worker.  The clothes he wore on that day had the words “Social Workers Rise in Rebellion, No Guilt in Disobedience”[74] printed on, and it is hardly consistent with the suggestion that the appellant was in a neutral capacity and was at the scene to perform the work of a social worker.

107.  It was impossible for the appellant not to know the circumstances he was in, that his conduct to a certain extent affected the execution of duty by the police officer in an arduous situation, and objectively speaking it brought about encouragement to those at the unlawful assembly at the scene. The risk brought about by delaying the police operation cannot be ignored. No matter what, it led to a tardy restoration of the public order. On the other hand, the appellant did not employ any force, his conduct was not radical and did not last long.  There is nothing to show he was hostile to the police. He did not put the police officer in immediate danger.

108.  Given the circumstances of the present case, it is only inevitable that an immediate custodial sentence should be passed. There are insufficient, and even no, grounds for an order of suspended sentence[75]. The appellant did not plead guilty, which makes it difficult to say that he had adequate remorse. Therefore, a Community Service Order is not suitable, and such an Order is entirely unable to reflect the nature and seriousness of this case.

109.  After careful consideration, balancing the factors for consideration of the parties and taking into account that this is the appellant’s first offence, I take the view that a starting point of 8 months is sufficient in reflecting the overall circumstances and the appellant’s criminality in the present case.

110.  Mr Pang, SC submitted that apart from the mission of a social worker, the appellant also actively took part in various voluntary social services[76]. He was injured because of the present case, and would also face disciplinary sanctions. I am of the view that in the present case these factors are not sufficient in supporting any discount.

111.  Mr Pang, SC submitted that the Principal Magistrate should have obtained a Background Report before sentence, no matter what.

112.  Whether this should be done depends on the needs of each case.  The appellant is an adult and was legally represented at the trial.  Up to the present moment nothing peculiar has been observed about his personal or family background.  It takes social resources to prepare the Report, and counsel for the defence should be able to expound the appellant’s background related to sentencing sufficiently to the court.  In these circumstances, it is difficult to blame the Principal Magistrate for not obtaining a Background Report.

Conclusion

113.  The appeal against conviction is dismissed.

114.  The appeal against sentence is allowed, and the 12-month sentence is reduced to one of 8 months.