HKSAR v. WONG YAM CHOI AND ANOTHER

DCCC 125/2020

[2020] HKDC 1131

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 125 OF 2020

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REASONS FOR SENTENCE

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1.  Both defendants pleaded guilty to Charge 1, a charge of Riot, contrary to section 19(1) and (2) of the Public Order Ordinance and Charge 2, Wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance.

2.  The particulars of Charge 1 are that both defendants on or about 9 November 2019, outside Block 1, Beverley Garden, No 1 Tong Ming Street, Tseung Kwan O, New Territories together with other persons unknown, took part in a riot.

3.  The particulars of Charge 2 are that both defendants on or about the same day at the same location, together with other persons unknown, unlawfully and maliciously wounded X with intent to do him grievous bodily harm.

Facts of the case

4.  A few days prior to the date of these offences a university student fell from a height in a car park nearby. He unfortunately passed away on 8 November 2019 from his injuries. His fall led to incidents of unlawful assembly and protests which escalated on the night of his death.

5.  Both defendants admit that just after midnight on 9 November 2019 protesters began to gather outside Block 1 of Beverley Garden and were shouting and chanting slogans loudly. The number of protesters grew which meant the noise they generated increased exponentially.

6.  X is a resident of Beverley Garden and was woken up at about 2:30am by the noise coming from downstairs. He was unable to go back to sleep and about 15 minutes later he went downstairs to find a group of more than 20 protesters shouting incessantly. X did make a noise complaint to the police and told the group that he had to work the next day therefore could they quieten down. He was then surrounded by a large group of protesters, some people wearing press vests and others who appeared to be there to watch and film the incident.

7.  The crowd surrounding X grew angry and aggressive. Men who appeared to be security guards did try and lead X away but it appears from the news footage that he was prevented from leaving. Both defendants admitted they were amongst the group of protesters, in fact, the 2^nd defendant is very visible and it appears was present from the start and one of the instigators of the incident. He is seen and heard scolding X.

8.  The 2^nd defendant grabbed X’s arm and prevented him from leaving just before he was pushed to the ground. The 2^nd defendant hit him with his bare hands. X was violently attacked by the defendants and others; he was punched, kicked and repeatedly hit with hard objects. He was trapped up against a wall. One can hear the objects hitting him in the news footage, the blows can actually be heard. The defendants admit this incident turned into a riot.

9.  The attack on X was prolonged and only broke up when police officers arrived at the scene minutes later. The rioters dispersed. Within 10 minutes the police swept the area and arrested both defendants.

10.  The 1^st defendant was carrying a bag containing a black mask, a white mask and 2 pairs of gloves. The 2^nd defendant had with him a black mask and gloves.

11.  X sustained multiple injuries which included lacerations over his scalp that required 13 stitches as did other wounds. All over his body he sustained cuts, bruises and swollen limbs. He was hospitalised for 3 days.

12.  The 1^st defendant can be seen in news footage kicking X on the ground with the heel of her shoe as hard as she can on three separate occasions. Blood stains found on one of her shoes contained X’s DNA. A broken metal umbrella shaft was seized from the scene and covered in X’s blood.

13.  Both defendants admit that at the material time they both together with other persons unknown took part in a riot and both together with other persons unknown unlawfully and maliciously wounded X with intent to cause him grievous bodily harm. The news footage from several sources clearly shows the commission of the offences; a riot that was senseless and violent leaving a man seriously injured. The riot and attack on X went on for nearly 10 minutes.

News camera footage

14.  I have 3 discs marked as MFI-1 containing news footage from RTHK News, Now TV and Stand News. From the Stand News footage recorded at 37:07 minutes the victim X is heard telling the crowd surrounding him to please be quiet because he just wants to sleep. He has made a noise complaint to the police. He is then verbally abused and scolded. The 2^nd defendant can be seen next to X and in the thick of it. The crowd including the 2^nd defendant questioned whether he was a real resident and threatened him. For example, there were shouts to watch where he went and take note where he lived. He was asked for his residence card to prove he lived there. Many of them were demanding answers from him or felt entitled to demand he answer. Clearly he felt threatened and started to film the crowd surrounding him with his own phone. This phone was knocked out of his hand when he was attacked and also stolen. It was a highly aggressive scene.

15.  2 men who may have been security guards from the estate tried to escort X away from the baying crowd. He was essentially prevented from leaving. At 47:10 minutes the 2^nd defendant was very aggressively shouting at X and held his wrist. Seconds later he pushed X with other people and X fell to the ground. Many people attacked him on the ground and he was backed up against a wall. At 49:02 minutes there is a shout of “can the press back up” because they, rioters and voyeurs were obstructing any possible way for X to escape. Despite this, no one backed away or moved away at all.

16.  From all of the news footage, there does not appear to have been any attempt by anyone to help X or give him room to escape. I use the word voyeur because there were clearly many who stood and filmed; the only sad explanation can be they enjoyed seeing the pain or distress of the victim.

17.  There are also shouts of “harder, harder” and shouts of “stop hitting”. There are shouts of “you will beat him to death”. At 53:00 minutes one can see he was beaten with something hard and one can hear the blows on his body. There are sickening cheers corresponding with these blows.

18.  At 53:26 minutes the 1^st defendant is seen pushing her way through the rioting crowd to kick X whilst he is on the ground. She kicks him until she is pulled away by somebody. At 53:36 minutes she comes again for the 2^nd time to kick him with what appears to be the heel of her shoe. She even holds onto the tree next to X for leverage to kick him harder. Once again, she is pushed away but comes back for a 3^rd time at 53:49 minutes. Once more she uses the tree as leverage when kicking him on the ground.

19.  The 1^st defendant is again seen very clearly in the Now TV footage at 3:04:33 kicking X for the 1^st time. Again at 3:04:41 kicking him for the 2^nd time and at 3:04:45 coming back for the last time, holding onto the tree for leverage to keep kicking. In the Now TV footage at 3:04:24 one can see X’s head being kicked and knocked against the wall behind him. There is blood on that wall.

20.  In all the camera footage provided by the prosecution from news agencies it is clear that prior to this incident in Beverley Gardens there was much unrest, violence and protesting in the surrounding area. When the police arrive at Beverley Gardens it takes them a few minutes to get the crowd and the press to move back to treat X. In several clips he can be seen covered in blood lying on the ground against the wall.

21.  The prosecution provided me with 3 albums, marked as MFI - 2 (1-3). In the 1^st album there are photographs of the injuries suffered by X taken in the hospital. He has had to have all his hair shaved off to treat and stitch his head wounds. He has suffered injuries all over his head, face, neck, lower limbs and upper limbs; many which required stitches. His lower arms and hands are so swollen from the beatings.

22.  The 2^nd album contains photographs of the clothes and shoes worn by both the defendants. Blood stains can be seen on the toecap of the 1^st defendant shoe.

23.  The 3^rd album contains screenshots taken from the news footage of the various news agencies capturing both defendants, the riot and the rioters attacking X.

Mitigation

24.  Everything that can be said on behalf of both defendants has been presented in mitigation. I thank counsel for written submissions. The best mitigation is their pleas of guilty at the earliest opportunity.

25.  The 1^st defendant is 30 years old and has 3 children with her long-term boyfriend. She previously lived with her boyfriend, children and his father but moved out about 2 years ago because of a poor relationship with her boyfriend’s family. She now lives alone in Sham Shui Po whilst they live in Tseung Kwan O. She visits them regularly and obviously is involved in their daily life and school life.

26.  The 1^st defendant has one previous record; in 2016 she was sentenced to probation for a forgery offence. She had been arrested for wounding and was on police bail at the time of her arrest for these offences. I have been told it was a family matter and as a result, in January this year she was ordered to be bound over to keep the peace by Kwun Tong Magistracy.

27.  I have seen mitigation letters from the 1^st defendant, her boyfriend a pastor of a church that provides support to her and her family, 2 kindergarten teachers of her son who requires special care at kindergarten and has been diagnosed with ADHD. Both sons in fact have a similar diagnosis. There is also a letter from a special education teacher who has assisted her son and come to know the 1^st defendant. All ask for leniency on her behalf and the defendant explains she was impulsive, reckless and now remorseful.

28.  I was informed that she suffered from mental illness for some years before her arrest therefore, I adjourned sentencing for a psychiatric report and a background report. I won’t repeat the contents of the reports but they give me details of the 1^st defendant’s background and history of her previous diagnosis of adjustment disorder and obsessive-compulsive disorder.

29.  She was admitted to hospital after her arrest for this offence and during that admission, she was diagnosed to have schizophrenia, with a background of obsessive-compulsive disorder. She was treated with medication and showed an improvement. She does not require compulsory inpatient psychiatric treatment. She told the psychiatrist that she went to Beverley Garden that night to join a gathering for the deceased university student. She saw X appear and scold the gathering. She claimed to hear a voice telling her to kick him at that time. Subsequently she kicked him in the head several times.

30.  Defence counsel has specific instructions that she knew what she was doing that morning and did not commit these offences because of any disease of the mind. Despite what is said in the background report and psychiatrist report, the 1^st defendant does not suggest any mental illness played any part in these offences. The 1^st defendant’s instructions are that her mental condition did not play any part in these offences. She knew what she was doing at the time and did it intentionally even though it was in the heat of the moment. What she meant when discussing the offences with the probation officer was that she did not premeditate any of these offences.

31.  Defence counsel have acknowledged there are no sentencing guidelines for either offences. They are very much fact specific. It has been submitted that I should take into account HKSAR v Tang Ho Yin CACC113/2018 and adopt a starting point of not more than 4 years and 6 months for Charge 1. It is submitted that a starting point of 3 years would be appropriate for Charge 2.

32.  The 2^nd defendant is now 59 years old and has 2 previous convictions for disorderly conduct and criminal damage but many years ago. He is married and lives with his wife and son near Beverley Gardens. His son is only 17 years old and still a student. Until his arrest, the 2^nd defendant was a pest control worker and driver earning $17,000 a month. He was the breadwinner of the family which has caused financial hardship.

33.  I have been told that on the night of the offence he was on his way to the MTR station when he came across protests and unrest against the police force suggesting they were responsible for the death of the university student who passed away that night. Out of curiosity he hung around and watched the protests. He then found himself unable to leave the area due to police blockades so he went to buy some food and beer. He made a mistake of not returning home but drinking for some time which meant by the time he came across X he was under the influence of alcohol.

34.  Under the influence of alcohol as well as the volatile and emotional crowd surrounding X he lost all self-control as seen in the news footage. Initially he was trying to mediate between X and the crowd but became agitated by the other aggressors. He then turned against X and rioted with others. One can hear what the 2^nd defendant says to X and what he does on the news footage. He certainly appears coherent.

35.  I was asked to bear in mind that he did not use any weapon against X and although he was carrying a mask he was not wearing one at the time of the offences. He did not try to hide his identity. At times he can be seen wearing a cap.

36.  I have considered the contents of mitigation letters written by the 2^nd defendant, his wife and son. There is also a letter from a leader of the church that the defendant attends. His previous employer has written to ask for leniency and for the defendant to have an opportunity to redeem himself.

37.  Defence counsel for the 2^nd defendant has said that although the incident was serious and X’s injuries were not minor, the circumstances and facts of the case do not warrant a 6 to 7 year starting point.

38.  The prosecution has submitted a statement from X dated October 2020. It is not in the form of a victim impact assessment report but a recount from the victim himself as to his injuries and suffering; the physical as well as psychological impact of the offences. Defence counsel have submitted that it is a bit subjective and could be inaccurate. It is submitted it is not helpful in terms of sentencing.

39.  The Summary of Facts and the photograph albums cover the physical injuries suffered as a result of the attack; there can be no dispute there. I note the victim states he still suffers intermittent pain which affects his performance at work and interrupts his sleep at times. He cannot yet do vigourous physical activities. He says that on occasions he has nightmares of being beaten. He explains how the attack has had a negative impact on his psychological well-being. In my view, these are all consequences one can imagine would reasonably result from an incident and attack of this nature.

Reasons for sentence

40.  The offence of rioting, contrary to section 19(1) and (2) of the Public Order Ordinance, will attract a maximum term of imprisonment on indictment of 10 years. The offence of wounding with intent will attract a maximum penalty of life imprisonment.

41.  Freedom of peaceful assembly is guaranteed by the Basic Law and the Hong Kong Bill of Rights Ordinance.  The freedom of assembly, like the freedom of speech is indispensable to the building of a civilised society and essential to social stability and progress. The freedom of peaceful assembly enables members of the public to voice their criticisms, air grievances and seek redress on views they hold. 

42.  However, the freedom of assembly is not absolute.  Once a protester becomes involved in violence or the threat of violence, a breach of peace, then that protester crosses the line between constitutionally protected peaceful assembly and demonstration to an unlawful activity which is subject to legal sanctions.  There is such a line to protect public order because society is prone to descend into anarchy if public order is not preserved.  The facts of this case is a demonstration of just that scenario.

43.  A riot has an immediate and serious impact on the rule of law.  The rule of law is a core value of Hong Kong and the cornerstone of its success.  The law ensures that public order and peace are preserved; not threatened by the use of violence.  If public order is not preserved, this affects the freedom and rights of citizens.

44.  Sentencing for the offence of riot involves the factor of deterrence.  Counsels submit the actions of the defendants were a momentary lapse of judgement and happened in the heat of the moment.  It is submitted their actions and participation were spontaneous and not premeditated.  They were caught up with the crowd when other rioters surrounded the victim when emotions were running high. They didn’t go out to organise a riot nor promote one. They had no intention to cause harm to members of the public or destroy property. 

45.  A sentence must not only seek to prevent the offender from reoffending, but also give a proper warning to deter others from violating the law by breaking and disrupting public order in a like manner.  Acts of violence or threats of violence will not and cannot be tolerated; such acts will attract a deterrent sentence to ensure that the public is protected. 

46.  The Court of Appeal in Leung Tin Kei and others
CACC 164/2018 reiterated that courts will impose a sentence that is punitive and sufficiently deterrent in accordance with principles established in applicable case law.  It therefore follows that the personal background and mitigation as well as the submissions of impulsive behaviour and being carried away by the emotions of others carry little weight.

47.  In this case, a deterrent sentence will reflect the fact that the defendants rioted in a public place which led to a direct physical attack on an innocent resident who was defenceless, vulnerable and entirely on his own.  It was a shameful attack on peace and order as well as an intention to injure and wound a man whose only complaint was the noise levels from downstairs in his own estate.

48.  Deterrence overrides the sentencing principle of rehabilitation in the prevailing circumstances including the then increasing incidents of unrest and a rising number of large-scale public protests involving violence.  This is clear from the Court of Final appeal in SJ v Wong Chi Fung 2018 21 HKCFAR 35.

49.  The defendants were one of a number engaged in a crime against peace, in this case it was definitely the sheer number with the defendants that gave them support and encouragement from being together with so many others to riot.  It is a common feature of mass disorder that if individuals within the crowd act violently, this will in turn inflame and encourage others to behave similarly.  This was what I witnessed in the news footage, it was disproportionate and without provocation.  The victim threatened to call the police.  That crowd knew the police were nearby so I am sure that threat didn’t scare them. I believe some were looking to cause trouble and their actions with words led others to behave similarly.  The harm and destruction done comes from the combined effect of what is done en masse.

50.  For similar offences with different backgrounds and facts, the sentences and starting points in those cases do not provide a helpful guidance.  Each charge must be considered on its own facts.  What is a common factor is that the sentence should be punitive and sufficiently deterrent therefore, an immediate custodial sentence is inevitable.

51.  The Court of Appeal in Leung Tin Kei set out various factors to be taken into account when passing sentence on the offence of riot.  In that case the riot took place in February 2016 in Argyle Street, Kowloon.  Courts must consider these factors and principles to arrive at a sentence according to the facts of each individual case. I have taken them into account.  In that authority, the Court of Appeal upheld the sentences imposed.

52.  In deciding the starting point of the offence, the extent of the overall violence involved must be considered, not the defendant’s individual acts in isolation.  It has been suggested in mitigation that the defendants actions were spontaneous and not premeditated. It was submitted neither used weapons although others did according to the news footage and the extent of X’s injuries. The 2^nd defendant wasn’t wearing a mask to hide his identity. However, there were clearly many people there wearing caps and masks carrying umbrellas.

53.  I quote from the authority R v Caird and others 1970 Cr App R 499 where LJ Sachs said at pages 507-508,

“those who choose to take part in such unlawful occasions must do so at their peril. … Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who, by weight of numbers, pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers. ... In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.”

54.  Therefore, in determining an appropriate sentence, I considered the extent of the overall violence involved, not the defendant’s individual acts in isolation. Both the defendants pleas and their behaviour seen on the camera footage shows they endorsed the offences and actively took part in them.  Their culpability is significant. I do not differentiate between their roles and culpability.

55.  I have also considered the scale of the disturbance that night caused to the public, residents nearby, the harm to society, including the relation between the police and the public. There is no doubt that the riot was a serious incident. What I also find relevant is the riot was in a public place, the number of actual rioters was hard to estimate but enough to make it significant and frightening.

56.  Within that riot, I take into account there was intentional violence used against X. This makes the riot even more serious. He was punched and kicked and obviously hard objects were used to hit him. There were those who put up umbrellas to hide the identity of the rioters. At the time of the riot the police were not present but there were some people audibly trying to warn off the rioters but to no avail. It was only cut short by the police arriving. Such gratuitous violence cannot be tolerated by a civilised and diversified society.

57.  Accordingly, as mentioned above both the defendants mitigation and personal circumstances are not mitigating factors of any significant weight. A plea of guilty does demonstrate remorse and I’m sure they both regret their actions and participation after the event. I am conscious of the undoubted suffering of their family members, especially the young children as a result of their participation and actions. However, I do have to give proper weight to public interest and a deterrent sentence.

58.  Similarly wounding with intent is a serious offence which also warrants a deterrent sentence. Sentencing is very much case specific and there is no tariff as such. In HKSAR v Chan Chun Tat 2013 6 HKC 225, the Court of Appeal considered what factors were most relevant to sentencing such a serious offence.

59.  Those include whether there was premeditation, the motivation behind it, the mental and emotional state of the attacker, whether the attacker was acting under the influence of alcohol or drugs, whether the assault was committed by the attacker alone or as part of a group, type of weapons used, level of force used and injury suffered. Other aggravating factors would include whether the attack was committed in company, unprovoked, in a public place and did the attack go on after the victim had fallen down to the ground. For the purposes of sentencing, I’ve taken into account whether these factors exist in these facts.

60.  In this case of riot and wounding, the unlawful assembly of so many people became a riot and an intentional attack on a defenceless man armed with only a mobile phone. This was not obviously premeditated but nor can it have been said to have been provoked. The emotional state of the rioters led to a total loss of self-control, reason and their humanity.

61.  I have taken into account the facts, mitigation, the background of both defendants and the content of the reports I sought. I am of the view that the culpability and seriousness of Charge 1 is higher than that for Charge 2, it was a riot with intentional violence against a targeted person. I find the appropriate starting point for taking part in this riot to be 5 years’ and 6 months’ imprisonment after trial. I will say that if there had not been the intentional attack directed at X, I would have taken a five-year starting point.

62.  For charge 2, I take into account the circumstances of the facts leading to charge 2 as well as the injuries suffered. I find the appropriate starting point to be 4 years and 6 months imprisonment.

63.  Both defendants have pleaded guilty at the earliest opportunity and are both entitled to the usual full discount after plea. Therefore, I reduce the starting points accordingly and sentence the defendants as follows;

The 1st defendant:	Charge 1	3 years and 8 months.
	Charge 2	3 years.
The 2nd defendant :	Charge 1	3 years and 8 months.
	Charge 2	3 years.

64.  I have taken into account the facts and the totality principle. The 2 charges are intertwined and I order that all charges be served concurrently. Therefore, the 1^st and 2^nd defendant will serve a total of 3 years and 8 months’ imprisonment.

65.  I order psychiatric treatment be arranged for the 1^st defendant whilst she is serving this sentence as deemed necessary by a psychiatrist.