HKSAR v. SHUM LESTER AND ANOTHER

CACC 101/2021

[2021] HKCA 943

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 101 OF 2021

(ON APPEAL FROM DCCC NO 876, 885, 890 & 892 OF 2020)

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REASONS FOR DECISION

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1.  The applicants (‘A1’ and ‘A2’) were convicted on their own plea of one joint charge of ‘knowingly taking part in an unauthorized assembly’, contrary to section 17A(3)(a) of the Public Order Ordinance, Cap 245.  The sentencing judge (‘the judge’) imposed the respective terms of 6 months and 4 months’ imprisonment.  Having filed their notices of appeal against sentence, the applicants applied for bail pending appeal.  I refused their applications.  These are my reasons.

The Charge

2.  The charge named 25 individuals and an unspecified number of other persons unknown as co-defendants.  Including the applicants, all the named individuals were to varying degrees active, longstanding and/or well-known figures in the political scene.  As admitted by A1 and A2, the case against them was that they took part in what I would call the June 4 meeting 2020 (‘the meeting’), knowing it was prohibited.  There was no question that the prohibition was lawful and constitutional.

The Facts

3.  The Consolidated Summary of Facts was the basis upon which the applicants pleaded guilty. Forming part of that 9-page document were 11 annexures attaching a large number of videos and screenshots that were derived from police, media and other sources, not least the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (‘the HK Alliance’) which ran a live broadcast of the event on the internet.  Based on the above materials, I make and lay emphasis on the following observations.

4.  When the HK Alliance submitted their notification to hold a meeting, the number of participants was estimated to be between 50,000 and 100,000.  It was intended to be a huge public gathering by any standard.

5.  The meeting was prohibited amidst the current pandemic on public health grounds.  At the time, the “Preparedness and Response Plan” for covid-19 was at the “emergency” level, and the Department of Health had expressed concern over the feasibility of such measures as body temperature screening, maintaining adequate physical distance and having no more than eight people in each pocket group of participants, the last being a legal requirement under the so-called 599G Regulation, in the context of a huge public gathering.  It also pointed out that it would be difficult to conduct contact tracing should it be discovered that there were infected cases amongst the participants after the meeting.

6.  It was the above concerns which led the Commissioner of Police (‘CP’) to conclude that not only would the meeting increase the risk of covid-19 infection amongst the participants, but it would pose “a serious threat to the lives and health of all citizens”, hence his decision to disallow it “in the interests of public order, public safety and the protection of the rights and freedoms of others”.

7.  The fact that those concerns were serious was self-evident.  They arose from an enormous public health crisis.  In any event, the HK Alliance had chosen not to appeal the CP’s decision and it was not up to the applicants to challenge, belittle or simply ignore those concerns.  What the applicants did was but one hell-bent act of defiance in blatant disregard of the risks that it would create for the greater community.

8.  There were, one should add, other ways to mark June 4 –  collectively if the event was held on-line (think of all the interactive concerts everywhere during lockdown).  The prohibition was on people gathering en masse, not a ban on people making their point.  A balance could and must be struck.

9.  In the event, some 20,000 people turned up at No. 6 Football Pitch in Victoria Park.  As per the visual records, there was little attempt to maintain social distancing particularly in and around the area where some of the named accused were found.  There were singing and chanting and notwithstanding hours of government broadcast that it was against the law, the meeting persisted.  It made it necessary for the police to close roads and redirect traffic in busy Causeway Bay.

10.  Both A1 and A2 took a front-line if not leadership role in the offence.  Together with Lee Cheuk Yan, A1 was amongst the first to enter Victoria Park when all the football pitches were in fact out of bounds to the public because of the pandemic.  Thereafter, he was repeatedly seen to be in the company of Wong Chi Fung who received intermittent attention from the media.  In the same group was A2 who later assisted Lee Cheuk Yan and Chu Hoi Dick in some kind of wreath laying ceremony.[1]  It must also be said that having a public profile of their own was an aggravating factor for all the accused in this case.  It had a rallying effect particularly since the event was on live broadcast.  They were reinforcing each other as well as a very large number of participants and would-be participants.

11.  Amongst other things, the people in the meeting chanted “Fight for Freedom”, “Stand with Hong Kong” and “Five Demands Not One Less”.  This is hardly surprising.  A quick look at that period will show that the highly challenging times of 2019/2020 were coming to an end but hardly over.  For example, a teashop was attacked in a politically motivated case of criminal damage on May 13, just three weeks before the meeting (SJ v Chow Kin Nok CAAR 1/2021).  Closer still was the “Three Suspensions 2.0”[2] causing widespread disturbances on May 27.  And on July 1 a man was arrested for causing an incident with his motorcycle which led to the first ever prosecution under the National Security Law (HKSAR v Tong Ying Kit HCCC 280/2020).  That is the “context” against which all the sentences in this case must be considered.  The emphasis is not on punishing a defendant for what he has not done, but to assess what extra level of harm his unlawful conduct might have incurred should things go the wrong way.  It is only through this process that the overall culpability of a defendant can be gauged: SJ v Chow Kin Nok ibid; SJ v Chung Ka Ho CAAR 4/2020; SJ v Chu Anson Pui Hang CAAR 2/2021.

This Application

12.  The written reasons for sentence consisted of 17 pages and 56 paragraphs.  I see no purpose in repeating any of it.  Suffice it to say that broadly speaking, the judge had identified the two areas that I have identified as important to the sentence in this case, namely the considerations as regards public health and the considerations as regards public order – with a much heavier emphasis on public order.

13.  Acting for both the applicants, Mr Harris SC accepted the relevance of those considerations.  His position was that irrespective of those considerations, the judge was nevertheless wrong to conclude that the immediate custodial sentences of 6 and 4 months were the only appropriate sentence.  He submitted that these sentences were either wrong in principle or manifestly excessive or both because, amongst other things:

(a)     The meeting lasted for only about two hours with no violence and very little damage to property except for a few graffiti writings in some paved area.

(b)     The applicants wore facemasks, plus there was an attempt to comply with the 599G Regulation at least by the group that they were with.

(c)     What the applicants did was wrong but they were young, of good background and had good intentions.

(d)     Subject to a few exceptions with particularly bad factual matrices, past cases of unauthorized assembly were almost invariably met with by a fine, a community service order or at worst a suspended sentence[3].

14.  The earliest date of release for A1 and A2 being 30 August 2021 and 20 July 2021 respectively, Mr Harris also made the point that unless the applicants were granted bail, they would most likely have served the bulk if not the whole of their sentences by the time their appeals were heard.      

15.  Given the nature of this application, and what I have already outlined in paragraphs 4 to 11 above, I would refrain from any analysis of length and simply say that, in my judgment, what Mr Harris had so admirably put forward was not premised on a correct evaluation of the seriousness of the offence.  Nor did it adequately describe the full extent of the culpability of the applicants.  In my judgment, it is both clear and irrefutable that the threat posed by the pandemic was serious, that the applicants were bent on pursuing their own agenda regardless, that they did so at the expense of the health and safety of the entire community, and that by congregating and implicitly encouraging others to congregate in large numbers they were also creating a huge public order risk amidst a highly volatile situation.  The fact that there was no actual violence on the night nor any subsequent upsurge in covid-19 cases as a result was entirely fortuitous.  The applicants do not have any valid complaint about the deterrent sentences that had been meted out.

Conclusion

16.  Applying my mind to the relevant principles in law (see p 257, para 3-119, Archbold Hong Kong 2021), I am not satisfied that this is an appropriate case to grant bail pending appeal, be it under the merits or time limb or both.  I refuse the applicants’ applications.

[1] Lee Cheuk Yan, Wong Chi Fung and Chu Hoi Dick were also named in the charge.

[2] “大三罷2.0”.

[3] No past decisions were citied.