HKSAR v. TANG KA MAN

DCCC 6/2022

[2024] HKDC 2034

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 6 OF 2022

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REASONS FOR SENTENCE

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BACKGROUND

1.  D was convicted after trial of two charges:

(i)  Riot; and

(ii)  Conspiracy to wound with intent.

2.  On 22 July 2019 around midnight, a riot took place at Long Wo Road near Ying Lung Wai and YL Station.  A serious clash broke out between the White Tops and the Black Tops.

3.  At first, the Black Tops outnumbered the White Tops at the entrance of Ying Lung Wai.  The White Tops scolded the Black Tops and both engaged in physical scuffles.  Then more White Tops joined in and they armed with wooden poles and rattan sticks. The White Tops attacked the Black Tops with wooden pole and rattan stick in Long Wo Road. The Black Tops retreated to Exit J of the YL Station.

4.  I found that D was one of the White Tops.  The Footages showed that he threw a site lamp, a wooden stick towards the Black Tops.  He also held a rattan stick among the front line of the White Tops in Exit J of YL Station.

5.  I found that there were about a hundred people in the riot.  The whole course lasted for 16 minutes.

6.  Prosecution confirmed there was no reported injury in this riot.

CRIMINAL RECORD

7.  D has 6 previous convictions on 3 occasions, 4 involved in traffic offences.  His last conviction was in 2009 for similar offence of conspiracy to wound with intent.

MITIGATION

8.  Mr Boyton for D submitted the following mitigation factors:

(i)  D is 46 years old, divorced with an adult son. He now has two young daughters with his girlfriend.

(ii)  He is a merchant operating car park with income of $30,000 per month.

(iii)  He is an indigenous villager of Ying Lung Wai of Yuen Long.

(iv)  According to the mitigation letter from Miss Yuen, a Yuen Long District Board member, it said that she had known D for more than 10 years. D has consistently demonstrated a strong enthusiasm for public welfare and social issues. He has regularly donated to and participated in volunteer services with Yuen Long District. During the COVID-19 pandemic, D took it upon himself to donate and distribute masks. Even amidst the epidemic, D ensured that free lunchboxes were distributed and made visits to elderly residence in the area, helping them to feel supported and cared for.

9.  Mr Boyton submitted that prior to 22 July 2019, there was extensive publicity that “Members of young people organization” would take over Yuen Long in defiance of Hong Kong Government. The local villagers decided to have a show of force to support the government and dissuade the “young people” wearing black from entering the villages.  This explains the seizure of foam boards, “Defend Yuen Long. Defend our home.” The “young people” had entered the village areas and the White Tops pushed back and cornered them to YL Station.

10.  Mr Boyton submitted that D was not an organizer.  As shown in the Footages, he was not armed initially. The throwing of the site lamp, wooden stick and the pointing of the rattan stick by D was spontaneous. 

11.  There was no evidence of any confrontation or challenge of the police and the public authority by the White Tops.

CONSIDERATIONS

12.  In HKSAR v. Tang Wai Sum & others CACC 171/2021, the appeal concerns against the incidents happened in Yuen Long in the evening of 21 July 2019 and early morning of the next day.  There were two camps of people, generally in Black Tops and White Tops, acted in confrontation with each other. The events happened could be divided into 3 stages by reference to the time and place[1].

13.  Applying Tong Wai Sum to the present case, the current riot is the prescribed second stage. According to the prosecution’s opening and the Footages submitted to court, the evidence elicited in the trial related to that at Long Wo Road outside Ying Lung Wai and Exit J of the YL Station. It lasted for 16 minutes. The people involved at its highest was about 100.

14.  According to the Footages (see para. 26 of [2024] HKDC 1890, verdict of this case), D turned up at 00:05 hours and joined the White Tops.  He left at 00:16 hours. I would consider D’s sentence in light of this.

15.  In HKSAR v Leung Tin Kei [2020] HKCA 275 , the Court of Appeal stated the factors to be taken into account when passing sentence on the offence of riot include:

i. whether the riot was spontaneous or premediated; if it was the latter, how detailed and precise the plan was;

ii. the number of people engaged in the riot;

iii. the degree of violence used by the rioters, including whether weapons were used and, if so, what kind and quantity of weapons;

iv. the scale of the riot, including the time, location, the number of places and the area in which the riot took place;

v. the duration of the riot, including whether the riot was prolonged; and whether it still went on despite repeated warnings by the police or public officers;

vi. the harm caused by the riot: 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;

vii. the imminence and gravity of threat that was caused by the riot;

viii. the nature and extent of nuisance caused to the public by the riot;

ix. the impact caused by the riot on the relationship among community groups;

x. burden caused to public expenditure by the riot;

xi. the offender’s role and degree of participation; for instance, apart from taking part in the riot, whether he had arranged, led, summoned, incited or advocated others to take part in the riot; and

xii. whether the offender committed any other crimes during the course of the riot.

16.  In the present case, the Black Tops gathered outside the entrance of a village (Ying Lung Wai)  in Yuen Long.  They dressed mostly in black and they concealed their identity by wearing masks and caps.  They also equipped with umbrellas. These were the common outfit and equipment used in the social event in Hong Kong in 2019.  In my view, a sudden influx of Black Tops in Yuen Long, especially at the entrance of a Yuen Long village, was not coincidental. They were not totally innocent.

17.  I found that the White Tops acted with premeditation. They had prepared rattan sticks and wooden poles for use. They even prepared foam boards with words of “Defend Yuen Long. Defend our home’. It appeared that the White Tops had anticipated the arrival of the Black Tops on that particular night. The court has to take into account the extent of premeditation.

18.  The Footages show the White Tops attacked the Black Tops. Such conducts had the effects of hate, bullying, intimidation and silencing. They should not take justice into their own hands by private settlements.  They should have called the police to deal with the situation.  They cannot express their grievances by violence as this would lead to damage to the society.  In my view, the court shall take a serious approach to preserve public order to create a safe and stable society. The court will not pay attention to whether the behavior stems from the hostile camps between the White Tops and the Black Tops. The focus is on the degree of social peace was destroyed.

19.  D armed himself with a rattan stick and took part in the riot.  There was no evidence that D had done any act causing injury to the Black Tops. However, culpability of D is not to be judged merely by what he had done individually.  Instead, the court has to consider what support D had lent to the White Tops. I find that D's presence at the scene had encouraged others to participate in the riot.

20.  I have also considered the sentence passed in Tang Wai Sum.  This is the appeal case in relation to a District Court case [2021] HKDC 862.  In that case, D5 and D6 were convicted for the offence of riot related to the second stage of the riotous activities in Yuen Long.  D5 was found to have punched and used a rod to attack two different men. He was seen handing a wooden rod to a White Top. He also pointed a broken umbrella and threw objects against the Black Tops. D5 and D6 were sentenced to 5 and 4 years respectively. D5 appealed against the sentence and the Court of Appeal (in the case of Tang Wai Sum)  confirmed the sentence of D5.

21.  Having regard to all the relevant circumstances in the case, including the magnitude and duration of the riot, no reported injury and no public facilities damaged. I also compared the culpability of D with that of D5 and D6.  I find that the culpability of D in this case is intermediate of that of D5 and D6. Therefore, I find a starting point of 4 years 6 months’ imprisonment’ term is appropriate for D for each offence in the present case.  This is within the range of sentence to reflect the gradations in severity: HKSAR v Lui Sai Yu [2023] 1 HKLRD 751 at paragraph 81.

22.  Apart from the issue of identification, D has agreed with the entirety of the prosecution case.  The trial lasted for 3 days.  It saved the time and resources of the court. I give D a discount of 3 months’ imprisonment in light of the way the defence conducted the trial.

23.  In view of D’s enthusiasm in relation to the charitable work in Yuen Long, I give a further discount of 2 months’ imprisonment.

24.  That would bring the starting points down to 4 years 1 month’ imprisonment for each charge.

25.  D’s previous record was in 2009.  One of them was of similar nature with Charge 2 but there was a 15 years’ period when D managed to stay out of trouble.   Therefore, I do not consider it necessary to take the previous record into account.

26.  Since both charges arose from the same acts, I order both terms to run concurrently with each other. 

27.  For the reasons given, I sentence D to 4 years 1 month’ imprisonment.