HKSAR v. WONG KAM CHUNG AND OTHERS

CACC 357/2025 [2026] HKCA 1713

On appeal from [2025] HKDC 1415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 357 OF 2025

(ON APPEAL FROM DCCC NO 822 OF 2023 and DCCC 641 OF 2024)
(Consolidated)

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J U D G M E N T

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1.  The five applicants, together with three other co-defendants, were charged with affray, contrary to common law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221 (Charge 1) and unlawful assembly, contrary to section 18(1) and (3) of the Public Order Ordinance, Cap 245 (Charge 2). Charge 2 was laid as an alternative to Charge 1.

2.  For ease of reference, the applicants shall be individually referred to by their trial designations as D3 for the 1^st applicant, D2 for the 2^nd applicant, D1 for the 3^rd applicant, D6 for the 4^th applicant and D7 for the 5^th applicant.

3.  On 27 August 2025, D1, D2, D3, D4, D6, D7 and D8 pleaded guilty to the alternative charge of unlawful assembly (Charge 2) before District Judge E Yip (the judge). D8 also pleaded guilty to a third charge on the charge sheet of failing to surrender to custody without reasonable cause. D5 pleaded not guilty to the charges and his case proceeded to trial. D1, D2, D3 and D6 were each sentenced to 2 years’ imprisonment. D4 was sentenced to 1 year and 6 months’ imprisonment. D7 was sentenced to 2 years and 4 months’ imprisonment. D8 was sentenced to 1 year, 8 months, and 4 days’ imprisonment (the 4-day term was the sentence for the third charge).

4.  The applicants apply for leave to appeal against sentence, and D1, D2 and D3 also apply for bail pending appeal. D1, D2, D3 and D6 filed their respective notices of application for leave to appeal against sentence within time on 15 September 2025 (D1), 5 September 2025 (D2 and D3) and 22 September 2025 (D6) respectively. The applicants were granted legal aid. Mr Tien Kei Rui (who replaces Mr Franco Kuan), with Mr Benny W H Lo, represents D1 to D3, and Mr David Ma represents D6.

5.  On 22 July 2026, D7 filed his notice of application for leave to appeal against sentence out of time. In his homemade ground of appeal, his sole complaint is that the 60 days he spent in custody had not been properly deducted as ordered by the judge, resulting in him serving a longer term than he should have. D7 appears in person.

6.  Mr Ivan Cheung, with Ms Stephanie Kong, for the respondent, opposes the applications.

The summary of facts

7.  The incident involved a fight which took place at a bar called Inside Bar (the Bar), Shop 22, Ground Floor, Yuccie Square, Yuen Long between 12:23 am and 12:34 am on 19 September 2022. The fight was between two rival groups, with approximately ten individuals in each group: “Party B” included D1, D2, D3, and “Party A” included D4, D5, D6, D7 and D8.

8.  The summary of facts was poorly drafted and does not provide a very clear description of the incident and of the role and culpability of those involved. The facts admitted by the applicants and outlined to the judge were as follows:

i.  There was a VIP room (the VIP Room) located in the innermost area of the Bar. The Bar had a main entrance and a rear entrance.

ii.  CCTV of the Bar and Yuccie Square captured the following on 19 September 2022:

a.  12:20 am – There were about ten people at the table right outside the VIP Room (Party B). A male named Kan Chun-ho (Kan) entered the VIP Room[1].

b.  12:22 am – D1 and D2 entered the VIP Room shortly after Kan.

c.  12:23 am (Outside the VIP Room) – Kan was forced out of the VIP Room and punched by a male (Wanted Person WP1) from Party A. Members from Party B pulled WP1 away and struggled with him.

About ten members from Party A, including D4, D6 and D8, came out of the VIP Room to join WP1. At the same time, D1 and D2 were forced out of the VIP Room. Members of Party A and Party B began pushing each other outside the VIP Room, during which D8 brandished a machete. D6 grabbed two bottles from a fridge in the bar area, threw them towards Party B and then grabbed several more bottles from the fridge.

d.  12:25 am – D3 punched D7 in the face and exited the Bar via the main entrance. D3 returned to the Bar fifteen seconds later and punched another male in the head from behind. D6 brandished a glass bottle.

e.  12:26 am – Members of Party A and Party B briefly disengaged. D1 then threw a chair towards a member of Party A and D6 threw a chair towards a member of Party B. Members of Party A and Party B continued to argue. D1 and D2 threw chairs towards Party A.

f.  12:27 am – Members of Party A and Party B separated but kept arguing.

g.  12:29 am – D2 threw several objects towards Party A.

h.  12:30 am (Outside the Bar) – Members of Party B exited the Bar via the main entrance. Inside the Bar, a male handed a machete to a member of Party A. Members of Party A then exited through the rear entrance.

Outside the Bar, a fight erupted between members of Party A and Party B, during which D6 took the machete from a member of Party A.

Meanwhile, D3 dragged an individual into the bushes outside the Bar and hit him while he was on the ground. D2 assisted D3. D7 subsequently slashed D2 with a machete, and D2 struggled with WP1. D4 threw a bottle towards D2.

i.  12:34 am – Members of Party A and Party B separated.

iii.  Police officers arrived at Yuccie Square at approximately 12:37 am and found D1, D2 and D3 injured. Police officers also found three knife sheaths inside the Bar.

9.  Kan, D1, D2 and D3 were taken to hospital. Medical examinations revealed:

i.  Kan had lacerations to his left forehead, right eyebrow and chin, an abrasion to his left hand, a hematoma on his left scalp and soft tissue swelling to his right periorbital area.

ii.  D1 had a deep laceration wound to the volar aspect of the left index finger with loss of flexion movement.

iii.  D2 had multiple lacerations to the forehead, left leg, right leg and left hand.

iv.  D3 had lacerations to the right eyebrow, left frontal scalp and left forearm dorsal aspect.

10.  D1, D2 and D3 were arrested on 19, 20 and 21 September 2022 respectively. D6 was arrested on 20 May 2023. D7 was arrested on 6 August 2023.

Mitigation

D1, D2 and D3

11.  D1 was 44 years of age at the time of sentencing, married with four children and employed as a transport worker. He had six previous convictions, none of which were similar to the present charge.

12.  D2 was 39 years of age at the time of sentencing, married with three children and employed as a decoration worker. D2 and D3 are brothers. D2 had five previous convictions, none of which were similar to the present charge.

13.  D3 was 34 years of age at the time of sentencing and employed as a construction worker. He had five previous convictions, including one for common assault in 2004.

14.  Counsel for D1, D2 and D3 accepted that the sentencing principles applicable to unlawful assembly involving violence laid out in HKSAR v Wong Chi Fung and others[2]apply to the present case[3]. However, he sought to distinguish Wong Chi Fung, submitting that the facts in the present case were less serious because the incident was not premeditated, involved a limited number of participants and lasted for a brief duration.

15.  Regarding the roles of D1, D2 and D3, counsel submitted that (1) they were attacked first, which may amount to provocation; (2) it was the other party who had and used the lethal weapons; and (3) they came off worse, as all three suffered laceration wounds. He emphasised that D1’s role was minimal. D1 only threw chairs and other objects at the other party. As for the roles of D2 and D3, he submitted that “D1 and D2 threw chairs and other objects at the other party. D2 went to assist D3 outside the Bar but was slashed with a machete. The struggle must be self-defence.[4]” This was the only time the issue of self-defence was raised, and it was not further developed.

D6

16.  D6 was 29 years of age at the time of sentencing, married with two children and employed as a chef. He had three previous convictions, none similar to the present charge. Counsel for D6 likewise accepted that the sentencing principles in Wong Chi Fung applied[5], and submitted that the present case was far less severe: there was no premeditation, the number of participants was limited, no innocent bystanders were affected, and the scale and the duration of the incident were both small.

17.  As for D6’s role, counsel submitted, amongst other things, that:

i.  As the situation escalated outside the Bar, D6 was “scared” and “wanted no part in it”;

ii.  D6 took the machete away from one of the members of Party A, knowing that that member was violent;

iii.  D6 never used the machete and kept it away from the vicinity of the fighting; and

iv.  D6’s role was minimal, and he was “nowhere near the fighting zone and was seen turning away from it”.

D7

18.  At the time of sentencing, D7 was 27 years of age, and lived with his fiancee. They had two daughters and he was employed as a pet shop salesman. He had one unrelated previous conviction. Counsel for D7 also accepted that the factors laid down in Wong Chi Fung were applicable, and he submitted that the present case was not premeditated, involved about twenty people, “the degree of violence was relatively high” but “the scale of violence was not high” (location restricted to inside and outside of the Bar), the duration was short, and the degree of injury to Kan, D1, D2 and D3 was serious involving laceration wounds. As for D7’s role, it was submitted that he did not start the fight although he used a machete against D2. He accepted that the force used was disproportionate.

19.  Counsel also invited the court to give credit for the 60 days D7 had spent in custody from 6 August 2023 to 4 October 2023 for matters related to the present offence, during which D7 was charged under a different case number that was subsequently withdrawn. The court was invited to “endorse on the certificate of sentence the period D7 spent in custody in D7’s 1^st Proceedings”[6], or alternatively to “reduce the sentence by the 60 days D7 spent in custody in D7’s 1^st Proceedings”[7].

Sentencing

20.  The judge set out the factors laid down in Wong Chi Fung and evaluated the individual roles of the defendants. The judge noted defence counsel’s common submissions that there was no evidence of premeditation  and that the confrontation lasted only eleven minutes. The judge assessed the aggressiveness and culpability of the defendants, in descending order, as follows:

i.  D7: The judge noted that D7 slashed D2 with a machete.

ii.  D1, D2, D3 and D6: In assessing their roles, the judge observed:

“D6 threw glass bottles and a chair at others in the bar. He took a machete outside the bar. There is no evidence of how he used it. D1 and D2 threw chairs and other objects at others in the bar. D3 punched D7's face, then another male’s head from behind in the bar. He dragged a member of Party A to the bushes outside the bar and hit him. D1, D2, D3 and D6 were less aggressive and culpable than D7”.

iii.  D4 and D8: The judge noted that (1) D4 threw a bottle towards D2; and (2) D8 brandished a machete outside the VIP Room but there was no evidence of what he did afterwards.

21.  As for D7, the judge adopted a starting point of 3 years and 6 months’ imprisonment, which he reduced by one-third for his guilty plea, to 2 years and 4 months’ imprisonment. He noted that D7 had been detained for 60 days for the present matter but under another case number which was subsequently withdrawn. At the request of D7’s counsel, he made an order “to endorse such 60 days as part of the present sentence already served”.

22.  As for D1, D2, D3 and D6, the judge adopted a starting point of 3 years’ imprisonment, which he reduced by one-third for their guilty pleas, to 2 years’ imprisonment.

23.  As for D4 and D8, the judge adopted a starting point of 2 years and 6 months’ imprisonment, which he reduced by one-third for their guilty pleas, to 1 year and 8 months’ imprisonment.

D1, D2 and D3’s submissions

24.  Mr Tien, on behalf of D1, D2 and D3, advances three grounds of appeal against sentence. Grounds 1 and 2 relate to the issues of self-defence and provocation as mitigating factors. Ground 1 contends that the judge’s failure to alert D1, D2 and D3 that the self-defence and provocation mitigation raised were not accepted deprived D1, D2 and D3 of the opportunity to offer explanations. Ground 2 avers that, in the absence of specific findings on the issues of self-defence and provocation, the judge ought to have passed sentence on the factual basis most favourable to D1, D2 and D3.

25.  Mr Tien submits that if the judge had accepted that D1, D2 and D3 had acted in self-defence and were provoked, this would have constituted mitigating factors materially lowering their culpability. In support of his submission, he contends that it was clearly members of Party A who initiated the attack on members of Party B and that members of Party A were the ones who brought the lethal weapons, resulting in the serious injuries suffered only by D1, D2 and D3.

26.  Ground 3 contends that the judge erred in equating the culpability of D1, D2 and D3 with that of D6. Mr Tien sets out the individual roles and degree of participation of D1, D2 and D3[8] and argues that D6 was more culpable for the following reasons:

i.  D6 belonged to Party A (the initial aggressors);

ii.  D6 was the first person to throw bottles, and this caused the violence to escalate;

iii.  D6 took a few more bottles from the fridge and later brandished a glass bottle;

iv.  D6 threw a chair towards Party B; and

v.  D6 possessed a machete outside the Bar.

27.  In comparison to D4 and D8, Mr Tien submits that D4 and D8 belonged to Party A and did not suffer any injuries, D4 threw a bottle towards D2 after D2 was slashed by D7, and that D8 was the first to brandish a machete. He argues that D1, D2 and D3 should at least be treated as being in the same category as D4 and D8.

D6’s submissions

28.  Mr Ma, on behalf of D6, advances two grounds of appeal against sentence: Ground 1 contends that the judge failed to apply the sentencing principles laid down in Wong Chi Fung properly. Ground 2 argues that the judge wrongly and arbitrarily classified D6 as being in the second most aggressive category.

29.  Under Ground 1, Mr Ma argues that this was essentially a bar fight, distinct from unlawful assemblies intended as a display of force, which lasted a short period of eleven minutes with only about twenty participants. Mr Ma submits that a proper assessment of the above considerations would lead to the conclusion that the present case is much less serious than the unlawful assemblies in Wong Chi Fung and HKSAR v Leung Hiu Yeung[9], and thus would warrant a significantly lower starting point.

30.  Under Ground 2, Mr Ma challenges the assessment of D6’s role. First, he contends that the judge’s remark “don’t know how he [D6] used it [the machete]” improperly imported a “dubious, if not heinous, nature” to D6’s conduct despite no evidence of use. Secondly, he submits that there was a disparity in sentencing, in particular because D8 brandished a machete yet received a lower starting point than D6. He submits that D6 should at least be in the lowest level of culpability. Finally, he argues that the judge failed to address D6’s mitigation that he got hold of the machete to keep it away from the “fighting zone”.

Respondent’s submissions

Reply to D1, D2 and D3

31.  Regarding Grounds 1 and 2 of D1, D2 and D3, Mr Cheung acknowledges that the judge did not make any reference to self-defence or provocation in his reasons for sentence. However, he contends that the judge’s explicit consideration of other mitigation points[10] indicates that he took into account the full submissions. He points out that the judge’s categorization of culpability focused on the actual acts committed rather than who initiated or escalated the incident; in doing so, the judge impliedly rejected the self-defence and provocation arguments.

32.  In relation to the issue of self-defence, Mr Cheung submits that by reason of D1, D2 and D3’s guilty pleas, it must have been accepted that their conduct could not have constituted self-defence in the sense that it amounted to a denial of the offence.

33.  In relation to the issue of provocation, Mr Cheung submits, citing Nathan v R[11], that “whether alleged provocative conduct reduces culpability of a defendant is a fact-dependent assessment”. Viewing the incident as a whole, the confrontation seemed to have been triggered by Kan, D1 and D2 entering the VIP Room already occupied by Party A. He argues that it would be unrealistic to microscopically examine the incident on the basis of where certain events took place, inside or outside the Bar, and that doing so would be to lose sight of the whole picture of the incident. He contends that even if Party A’s conduct was provocative, D1, D2 and D3’s retaliation was disproportionate. He accepts that D1, D2 and D3 suffered injuries, but submits that the injuries were brought about by their own conduct and could not constitute effective mitigation. Consequently, he submits, the judge was not required to warn counsel before rejecting arguments that were wholly implausible[12].

34.  The two mitigating factors in issue are (1) provocation (that  D1, D2 and D3 were attacked first) and (2) self-defence.

35.  As for provocation, the sequence of events, including how the fight started or who brought the weapons, is in the agreed summary of facts and was set out in the reasons for sentence. As for self-defence, defence counsel’s submission was vague regarding which defendant acted in self-defence. Mr Tien appears to have grouped self-defence as a mitigating factor for D1, D2 and D3. However, factually, self-defence could only relate to D2: the reasons for sentence stated “D7 later slashed D2 with a machete at the bushes, and D2 struggled with WP1”[13] which defence counsel submitted as “D2 went to assist D3 outside the Bar but was slashed with a machete. The struggle must be self-defence.”[14]  However, this occurred near the end of the fight, well after D2 had thrown chairs and objects towards others. The other evidence D1, D2 and D3 rely upon to support provocation and self-defence, namely that Party A brought the lethal weapon and that only D1, D2 and D3 suffered serious injuries, was already set out in the summary of facts and reasons for sentence. Accordingly, D1, D2 and D3 were not deprived of any opportunity to call evidence or explain the mitigating factors.

36.  Mr Cheung submits that Ground 1 is not made out, and consequently Ground 2 falls away, as the judge committed no error in declining to sentence on an unaccepted factual basis.

37.  Regarding Ground 3, Mr Cheung submits that the judge’s assessment of the defendants’ respective roles was based on correct legal principles. The baseline of culpability in an offence of unlawful assembly is the act of participation, and those who engaged in violent or disorderly acts may be regarded as more culpable. He submits that Mr Tien’s analysis of D1, D2 and D3 and D6’s conduct was out of context and that it would be illogical to assess culpability based merely on who held a machete and who did not. He submits that the judge’s assessment of culpability was clear:

i.  Highest: use of a weapon resulting in actual injury.

ii.  Intermediate: holding or brandishing a weapon without evidence of use or engaging in repeated direct acts of participation such as throwing objects and barehand assaults.

iii.  Lowest: holding a weapon without use and engaging in a single isolated act of participation.

38.  Mr Cheung notes that the conduct of D1, D2, D3 and D6 was substantively the same, except that D6 held a machete without use. D1 and D2 threw chairs at others. D3 punched a male in the face, punched another male’s head and dragged someone to the bushes outside the Bar and hit him.

Reply to D6

39.  As for D6’s Ground 1, Mr Cheung acknowledges that while the incident was not a political protest, it involved approximately twenty participants, lasted eleven minutes and there were actual acts of violence and disorder, including the use of a machete and other objects. Mr Cheung submits that the sentencing principles in Wong Chi Fung are not restricted to only unlawful assemblies arising from opposition to public authorities, but remain applicable in cases where unlawful assembly involves violence.

40.  Mr Cheung suggests that sentencing may also be analysed through the perspective of affray offences. He notes that there are no tariffs in either unlawful assembly or affray. He refers to R v Nguyen Quang Thong[15], which sets out the sentencing considerations for offences of affray, including location, number of persons placed in fear by it, the number of participants, duration, whether it was spontaneous or organised, the nature of the violence, whether weapons were used and whether injuries were occasioned and, if so, the seriousness of the injuries.

41.  Mr Cheung also referred to HKSAR v Yip Kam Wah[16] where the Court of Appeal found that a sentence of 10 months’ imprisonment after trial would be commensurate for a defendant whose role was restricted to barehand fights without the use of weapons. The affray in Yip Kam Wah took place in an isolated location with about seven persons involved, and whilst weapons were used the injuries were relatively minor, and Mr Cheung accordingly submits that it was of a less serious nature than the present case. He submits that factoring in the serious features in the present case (in terms of locality and participants involved) and the need for deterrence as confirmed in Wong Chi Fung, a starting point of 3 years’ imprisonment is not manifestly excessive or wrong in principle.

42.  Regarding D6’s Ground 2, Mr Cheung submits that the judge rightly noted that D6 held a machete and “there is no evidence on how D6 used it” and that there was nothing in the judge’s observation which suggested any “unwarranted sense of enhanced aggressiveness”. He contends that D6 was rightly placed in the second most aggressive category due to his repeated throwing of objects towards others, whereas D8 only held a machete without evidence of use and there was no evidence of other violent acts. As for D6’s mitigation that he held the machete in order to de-escalate the situation, he submits that D6’s conduct must be viewed as a whole and that, where the judge did not give weight to D6’s holding of the machete, D6’s underlying subjective motive for holding it was immaterial.

D7 – 60 days remand period

43.  According to D7, the 60 days of detention should be applied towards the final sentence he is required to serve. However, the Correctional Services Department (CSD) deducted only 40 days, because its view was that the 60 days should be deducted from the starting point, before the one-third discount.

44.  Mr Cheung submits that D7’s sentence of 2 years and 4 months’ imprisonment was appropriate. He acknowledges that D7 had served a period of 60 days’ detention, and submits that it is that quantum of actual detention that should be credited to D7 as a matter of logic and principle. However, in HKSAR v Ghulam Mustafa[17], it was held “In respect of any reduction for a period spent on remand … that issue must be a matter for the CSD in determining the applicant’s date of release. It is not a factor which determines the appropriate length of sentence or the extent of discount by the court. Nor is it a matter which normally engages the Court of Appeal. If an applicant is aggrieved by an administrative decision of CSD, he has other avenues open to him to pursue his complaint.”  Accordingly, he submits that D7’s avenue is not with the criminal courts and he invites the Court to dismiss D7’s present application.

Discussion

45.  This case concerned a bar fight between two rival groups. Various members of the two groups were charged with the offence of affray, which is typically charged against individuals who are involved in a fight causing an affray. They were also charged in the alternative with unlawful assembly, in which it was alleged that they took part in an unlawful assembly involving violence. They pleaded guilty to the alternative charge, which was accepted by the prosecution in resolving the case against them. This charge usually concerns public gatherings, which may involve acts of violence. The Court of Final Appeal in Wong Chi Fung[18]endorsed the following list of factors relevant to the determination of the appropriate sentence for unlawful assembly involving violence:

“(1) Whether the violent acts were spontaneous or premeditated; if it was the latter, how detailed and precise the plan was;

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

(3) The degree of violence, including whether weapons were used and, if so, what kind and quantity of weapons;

(4) The scale of violence, including the location, the number of places and the area in which violence took place;

(5) The duration of violence, including whether the violent act was a prolonged one, and whether it still went on despite repeated warnings by police or public officers;

(6) The consequences of the violent act: for example, whether there was any loss or damage to properties and, if so, to what extent; whether anyone was injured and, if so, the number of injured persons and the degree of injury;

(7) Even if there was no loss or damage to properties, nor any injury, what imminence and gravity of threat was caused by the violent acts;

(8) The offender’s role and degree of participation; for instance, apart from taking part in the unlawful assembly, or using violence, whether he had arranged, led, summoned, incited or advocated others to take part in the unlawful assembly or use violence.”

46.  The judge referred to this list of factors and was guided by them when determining the sentences of the defendants. However, as I have already noted, this was a typical bar fight between two groups, and it is therefore appropriate to refer to this Court’s guidance in Yip Kam Wah when sentencing for the offence of affray. McMahon J, giving the judgment of the Court, stated as follows:

“18. … Affrays vary greatly on their facts and the sentence imposed on a defendant must always be case specific. A court should take into account the nature of the affray itself, for example where it occurred and the number of persons placed in fear by it, the number of participants, its duration, whether it was spontaneous or organised, the nature of the violence, whether weapons were used and whether injuries were occasioned and if so how serious those injuries were: see R v Nguyen Quang Thong [1992] 2 HKCLR 10 at 15, per Silke VP. The role of a particular defendant, so far as that can be ascertained, is also as we have said, a factor.”

47.  The use of weapons in a fight is an extremely dangerous act that elevates the seriousness of the offending, as it increases the risk of inflicting serious injury or causing the death of another. It is particularly dangerous when the fight occurs in a public place with members of the public in close proximity.

48.  Party A (D4 to D8 and WP1) was in the VIP Room and Party B (D1 to D3 and Kan) was at a table outside. It seems that the fight started when Kan went into the VIP Room, followed by D1 and D2. Kan was forced out of the VIP Room and punched by WP1, and D1 and D2 were also forced out of the VIP Room. The fight between the two groups then erupted outside. At that stage, the fight involved the men punching and throwing bottles at each other.

49.  A fight involving twenty men in a public bar is a very serious matter, not only for the harm that they could have caused to each other but for the disruption caused and the potential damage to property and harm to members of the public. However, the use of machetes elevated this fight to a more serious level. Three sheaths for machetes were recovered from the scene and together with the agreed facts that D7 used a machete and that D6 and D8 held a machete, this would indicate that several machetes were produced or used. The fact that D1, D2 and D3 sustained laceration injuries strongly supports the conclusion that the machetes were used by members of Party A.

50.  The judge adopted a starting point of 3 years’ imprisonment for D1, D2 and D3. I am satisfied that there is a strong argument that this starting point was excessive in the circumstances. I grant them leave to appeal against their sentences.

51.  I also grant D1, D2 and D3 bail pending appeal, as I am informed that their earliest discharge dates are 24 November 2026, 20 November 2026 and 1 December 2026 respectively.

52.  Mr Ma argues that D6 should have been treated the same as D8 who also held a machete with no evidence of D8 using it. However, the role and culpability of D6 were greater than those of D8 in that he was actively fighting the members of the other group, including by throwing glass bottles and a chair at them. The judge in his assessment of the role and culpability of D6 and D8 stated as follows.

53.  In respect of D6, he stated:[19]

“D6 threw glass bottles and a chair at others in the bar. He took a machete outside the bar. There is no evidence of how he used it. D1 and D2 threw chairs and other objects at others in the bar. D3 punched D7’s face, then another male’s head from behind in the bar. He dragged a member of Party A to the bush outside the bar and hit him. D1, D2, D3 and D6 were less aggressive and culpable than D7”.

54.  In respect of D8, he stated:[20]

“D8 raised a machete in the course of the confrontation outside the VIP Room, a very intimidating act by itself. However, there is no evidence of what he did afterwards. D4 and D8 were the least aggressive and culpable offenders.”

55.  As pointed out by the judge, D6 took a machete outside the Bar, notwithstanding that there was no evidence of how he used it. It had been submitted that D6 grabbed the machete from another member of his group in order to de-escalate the fight but that was not accepted by the judge on the basis of D6’s active participation in fighting members of the other group. This also distinguishes D6’s role and culpability from that of D8. I am not persuaded that he has reasonably arguable grounds of appeal. Accordingly, he is refused leave to appeal against his sentence.

56.  The judge found that D7 was the most aggressive and culpable offender and adopted a starting point of 3 years and 6 months’ imprisonment, which he reduced by one-third for his guilty plea to 2 years and 4 months’ imprisonment. He also made the following order:

“I understand that D7 had been arrested for the present matter and detained by the Court for 60 days under another court case number. That case was then withdrawn, so that D7 was released, before the present case. His counsel asked me to endorse such 60 days as part of the present sentence already served. The prosecution has no objection. I hereby make the order.”[21]

57.  I am informed that the 60 days concern the period of detention from 6 August 2023 to 4 October 2023. D7 was released on 4 October 2023 and placed on remand on 30 July 2025, and was subsequently sentenced on 27 August 2025. D7’s earliest discharge date is 10 January 2027.

58.  D7 stated that he had been informed that only 40 days of the 60 days that he served would be taken into account in relation to his sentence. His complaint is that he is not receiving the full benefit of 60 days from his sentence of 2 years and 6 months’ imprisonment. I am informed by Mr Cheung that the earliest discharge date does not take into account the 60 days that he had previously served in relation to this case. He was unable to explain whether Correctional Services Department apply the judge’s order that the 60 days be taken into account in relation to his current sentence. Accordingly, I have treated D7’s application for leave to appeal against his sentence as part heard, which I have adjourned to 2:30 pm on 8 October 2026. In the meantime, Mr Cheung will obtain instructions from Correctional Services Department as to the status of the 60 days and, if all or some of those days is not to be taken into account, will provide a written submission on the legal basis for doing so.