SECRETARY FOR JUSTICE v. CHEUNG KAI YIN

HCMP 777/2015
HCMP 779/2015
HCMP 794/2015
HCMP 797/2015
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NOs 777, 779, 794, 797 OF 2015

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REASONS FOR SENTENCE

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1.  In relation to the above four respondents, each of them has admitted their liability before this court for criminal contempt. I will not go into the backgrounds of the case as they have been set out in my earlier judgment. Similarly, I will not go into the legal principles regarding sentencing as they can be found in the Secretary for Justice v Cheng Kam Mun (No 3) [2017] 2 HKLRD 768.

HCMP 777/2015 Cheung Kai Yin

2.  In Ms Cheung’s case, video footage depicted her presence in the Area, standing with the crowd in front of the police check line near the junction of Shantung Street.  She was warned by police officers to leave the Area but she ignored the warning.  In the course of her arrest, she put up a struggle.

3.  Ms Cheung was 30 at the time, working as an assistant to one Legislative Councilor.  She is now working as a Community Development Officer earning $25,000 per month.

4.  In mitigation, it was submitted that Ms Cheung could not differentiate the difference between the challenge to the police and to the administration of justice, and that she all along had no intention in challenging the law.

5.  There is nothing before me suggesting otherwise or pointing her in playing any greater role in the protest.

6.  Further, I accept what has been advanced by Mr McCoy on her behalf that Ms Cheung has since shifted her focus from politics to people’s livelihood.  Letters have been placed before this court citing contributions made by Ms Cheung on environmental and community issues.  Credit will also be given to her early plea and remorse.

7.  Having considered her involvement, it is ordered that Ms Cheung will serve an imprisonment term of 1 month but suspended for 12 months. She will also be fined $10,000.  Ms Cheung will have 3 months to pay the sum.  In default, she will go to prison for 1 month.

HCMP 779/2015 Ma Po Kwan

8.  Mr Ma was 21 and unemployed at the time.  He received relatively little education.  He also had no political affiliation.  It was submitted that Mr Ma was discontent with the ways in which some police officers had treated the protestors during the “Occupy Movement” that he decided to join in the protest on the material day.  Currently he works as an estate agent with fluctuating income.

9.  In Mr Ma’s case, video footage captured him being present with the crowd.  What Mr Ma did was no more than refusing to leave the scene when repeated announcements had been made by the Bailiffs and police officers.

10.  His case was very similar to Mr Au Yuk Kwan’s case in HCMP 2923/2015.  Bearing in mind the limited role played by Mr Ma and his personal circumstances, his relatively young age, his limited education, his clear record, and the extent of his involvement, a suspended sentence combined with a fine in my view is sufficient.

11.  With the above in mind, Mr Ma will be fined a sum of $10,000 and given an imprisonment term of 1 month but suspended for 12 months.  Due to his unstable income, Mr Ma will have 6 months to pay the sum.  In default, he will go to prison for 1 month.

HCMP 794/2015 Wong Lai Wan

12.  Ms Wong was 19 and a student at the time.  She had no political affiliation.  At present, she works as an assistant at a dental clinic and earns $15,000 each month and lives with her mother.

13.  Ms Wong’s case was again similar to Mr Ma’s case.  Video footage depicted her being present with the crowd.  She sat on Nathan Road and refused to leave the Area despite repeated warnings given by the Bailiffs and Police.  Her role on that day was confined to simply participation.

14.  In the case of Ms Wong and given her limited involvement, she will be fined $10,000 and given an imprisonment term of 1 month but suspended for 12 months.  Ms Wong will have 3 months to pay the sum.  In default, she will go to prison for 1 month.

HCMP 797/2015 Yeung Ho Wah

15.  Mr Yeung was 30 at the time and presently works as a security guard.  He makes $20,000 a month and is the sole support of his aged parents.

16.  Mr Yeung’s case was similar to Mr Ma’s case.  Video footage depicted him being presence with the crowd.  Mr Yeung refused to leave the scene when repeated announcements had been made by the Bailiffs and Police.  He also put up resistance during his arrest

17.  Similar to Mr Ma, Mr Yeung will be fined $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Mr Yeung will have 3 months to pay the sum.  In default, he will go to prison for 1 month.

Costs

18.  The respondents do pay to the applicant the costs of and occasioned by these proceedings including all costs reserved on an indemnity basis, with certificate for 3 counsel.  The respondents’ own costs be taxed in accordance with Legal Aid Regulations.

Mr Victor Dawes, SC and Mr Jin Pao and Mr Derek Chan, instructed by Department of Justice, for the applicant.

Mr Gerard McCoy SC and Mr Albert NB Wong, instructed by Kenneth Lam, Solicitors and assigned by the Director of Legal Aid, for the respondents.