HKSAR v. HO CHUN YAN AND OTHERS

DCCC 857-875, 877-884, 886-889, 891 & 893/2020 (Consolidated)

[2021] HKDC 1160

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 857-875,877-884, 886-889, 891 & 893 OF 2020

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REASONS FOR SENTENCE

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1.  There were 37 cases arising from the same incident of which 4 were dealt with earlier and the remaining 33 were consolidated. In this consolidated case, there are 20 defendants. 8 defendants have pleaded not guilty and a trial has been set down for 10 days in November 2021.

2.  The remaining 12 defendants pleaded guilty to their respective charges before me and agreed the Amended Summary of Facts. I heard mitigation on behalf of the 12 defendants on 9 September 2021 and adjourned sentence to today.

3.  The 2^nd, 5^th, 6^th, 8^th, 9^th, 11^th and 12^th defendants pleaded guilty to Charge 1, incitement to knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221.

4.  On 4 June 2020 at Water Fountain Plaza, Victoria Park, Causeway Bay, in Hong Kong they together with other defendants unlawfully incited other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public meeting which took place in contravention of section 7 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.

5.  The 2^nd, 5^th, 6^th, 8^th, 9^th, 11^th, 12^th, 14^th, 15^th, 16^th, 18^th and 20^th defendants pleaded guilty to Charge 3, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the Public Order Ordinance.

6.  On the same day, 4 June 2020, at Victoria Park, Causeway Bay, they together with the defendants named and others unknown, without lawful authority or reasonable excuse, knowingly took part in a public meeting which took place in contravention of section 7 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.

7.  The 4 defendants sentenced earlier by HHJ Stanley Chan pleaded guilty to a charge arising from the same incident in a consolidated case, DCCC 876, 885, 890 & 892/2020. Wong Chi Fung, Lester Shum, Tiffany Yuen Ka Wai and Rosalynne Jannelle Leung admitted they knowingly took part in that same unauthorised assembly. They were sentenced on 6 May 2021 to sentences ranging from between 4 to 10 months’ imprisonment.

The Facts

8.  On 23 April 2020 Tsoi Yiu-Cheong Richard (the 3^rd defendant) on behalf of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, “Hong Kong Alliance” submitted a notification to the Police applying to hold a public meeting in Victoria Park between 9am and 10pm on 4 June 2020.

9.  The purpose of the public meeting was to “mourn the 31^st anniversary of the June 4^th Incident” with an estimated number of participants between 50,000 and 100,000.

10.  The Police held a liaison meeting with the applicant’s representatives and several defendants. The organisers could not implement any social distancing measures. All they could do was tell participants to congregate in small groups.

11.  The Department of Health were consulted and advised against holding any mass gatherings at that time in view of the coronavirus pandemic. The Department of Health took into account the number of COVID-19 cases by the end of May 2020, the upsurge between March and early April 2020 as well as several local clusters mid May 2020 with no apparent primary source identifiable. The risk of major community outbreak existed at that time.

12.  In a memo to the Police stated 28 May 2020, the Department of Health set out its concerns and reasons for its recommendation. This included the risk that existed, the inability of participants at a public meeting to maintain social distancing measures and small groups as well as the difficulty in contact tracing and imposing disease control measures if there was any subsequent confirmed case of COVID-19 identified and linked to the mass gathering.

13.  On 1 June 2020, the Commissioner of Police issued a notice to Hong Kong Alliance as required prohibiting the holding of the proposed public meeting in the interests of public order, public safety, and the protection of the rights and freedoms of others. Hong Kong Alliance did not appeal that decision nor apply to Judicial Review it.

14.  On the same day, Lee Cheuk Yan (1^st defendant) and the 2^nd defendant on behalf of Hong Kong Alliance held a press conference at the Water Fountain Plaza at Victoria Park and declared that the public meeting on 4 June 2020 would proceed in spite of the decision to prohibit it. Lee accused the Police of using the pandemic as an excuse to suppress the public meeting.

15.  They said Hong Kong Alliance would still go to Victoria Park in groups of 8 to mourn the “June 4^th Incident”. Candles would be distributed outside Victoria Park all afternoon. They appealed to the public to join them. Annex I of the Amended Summary of Facts contains the press conference footage and transcripts with translations.

16.  On 4 June 2020 the Police set up 9 loudspeakers near or inside Victoria Park to continuously broadcast public announcements. The messages included informing the public that the holding of a public meeting was prohibited and participants could be legally liable. They warned the public not to participate in any unauthorised assembly and that group gatherings were prohibited. It included a warning about the transmission of COVID-19 in the community.

17.  The Leisure and Cultural Services Department, “LCSD” also broadcasted announcements to declare the football pitches in Victoria Park closed with entry prohibited and that groups of no more than 8 were allowed to gather in the park.

Charge 1 – Incitement to knowingly take part in an unauthorised assembly

18.  The prosecution relied on video footage of media outlets broadcasting the event and press interviews by various defendants. MFI-1 is a playlist of video footage relied on by the prosecution. It contains remarks to explain the relevance of individual footage. Examples of footage from several media outlets was played in open court before mitigation.

19.  There is news footage of the 6^th defendant’s afternoon press interview on 4 June 2020 where he criticises the LCSD for barricading Victoria Park to oppress members of the public who intended to attend the June 4^th Vigil that night. His speech and the transcript with translations is set out in Annex II of the Amended Summary of Facts.

20.  The 6^th defendant was speaking to the press inside the Legislative Council Complex. He was speaking in his capacity as a Hong Kong Alliance’s Standing Committee member. He too accused the Government of using the pandemic as an excuse. He appealed to the public to fight to the end against suppression.

21.  After about 5:30pm on 4 June 2020 there is footage of candles and leaflets being handed out to members of the public by many defendants near Victoria Park with appeals to the public to light their candles at 8pm and mourn for 1 minute at 8:09pm that night. Those that made this appeal includes the 2^nd, 5^th and 16^th defendants.

22.  Lee Cheuk Yan held a press interview at the Water Fountain Plaza at about 5:30pm where he said Hong Kong Alliance would light candles in Victoria Park at 6:30pm and enter Victoria Park to commemorate the 31^st year of the “June 4^th Candlelight Vigil”. He urged the Police to disappear that night. He appealed to the public to join them in Victoria Park because they had a right to light a candle inside the park.

23.  After that press interview, defendants including the 6^th, 11^th, 12^th and 14^th defendants distributed candles and leaflets between 5:41pm and 6:22pm at the entrance of Victoria Park near the junction of Great George Street and Gloucester Road.

24.  At 6:25pm, Lee Cheuk Yan and the 2^nd, 5^th, 6^th, 8^th, 9^th, 11^th, and 12^th defendants together with other defendants gathered together as a group at the Water Fountain Plaza. Lee Cheuk Yan gave a speech via a loudhailer and then invited all the defendants gathered together to light their candles at the same time. Each lit and held a candle facing the press. He is heard telling the public to join them in meeting in Victoria Park and to light candles even though the public meeting was prohibited. He also shouted various political slogans repeated by those defendants stood with him in support and encouragement.

25.  Lee Cheuk Yan, the 1^st defendant has pleaded not guilty to Charges 1 and 3 as well as Charge 2. He alone faces Charge 2, holding an unauthorised assembly.

Charge 3 – Knowingly taking part in an unauthorised assembly

26.  After Lee Cheuk Yan finished giving a speech, he led a group of around 100 people including the defendants stood together with him to walk with a lit candle from the Water Fountain Plaza into the football pitches of Victoria Park. The 15^th defendant joined the group with the 16^th and 18^th defendants entering Victoria Park with others a few minutes later.

27.  At that time because of the COVID-19 pandemic the football pitches were closed and surrounded by mill barriers. Entrance was prohibited. When Lee Cheuk Yan and the 2^nd, 5^th, 6^th, 8^th, 9^th, 11^th, 12^th, 14^th to 16^th defendants arrived near football pitches number 3 and 4, the 5^th defendant can be seen pulling away the mill barriers in order for the group and members of the public to follow him in to occupy the football pitches. He ignored a security guard who can be heard telling him the pitches were closed.

28.  Initially, about 400 people gathered at number 6 pitch with the numbers increasing with time to 20,000 by about 8pm. In the video footage from various media outlets one can see little social distancing. Those defendants I have referred to sat down on the ground on pitch number 6. The 18^th and 20^th defendants entered the football pitch and sat down in groups with others. All sat on the ground holding a candle. The 5^th defendant is heard shouting slogans which were repeated by others present.

29.  Lee Cheuk Yan, before 8pm, announced the start of the meeting at that time and shouted many slogans. He gave a speech relating to the June 4^th Incident. He played a video relating to the “June 4^th Incident” which also included footage of the social unrest in Hong Kong in 2019.

30.  The 18^th defendant gave white flowers to some of the defendants. There was some kind of wreath laying ceremony. A minute of silence was observed followed by more speeches and songs. The meeting was announced to be finished at 8:45pm after some of the defendants burnt some books to commemorate the date on the football pitch.

31.  Chants unrelated to the June 4^th Vigil were also heard such as “Fight for freedom”, “Stand with Hong Kong” and “5 demands not one less”. Later, certain words and phrases were found to have been posted or written on the ground and on some of the facilities inside Victoria Park. As large crowds gathered, the police had to implement road closure and traffic diversions around Victoria Park. The crowds obstructed the roads in the vicinity.

32.  The public meeting was captured on police as well as news media videos. Those videos, screen captures identifying the defendants as well as the transcripts of the speeches and slogans chanted are set out in Annexes III and IV of the Amended Summary of Facts.

33.  Essentially, undeterred by a Police ban and in direct defiance of law and order, thousands of people converged on Victoria Park and onto the football pitches. The unauthorised assembly caused traffic chaos all around Victoria Park.

34.  Thousands of people gathered despite the risk of the pandemic. This was a breach of the Regulation gazetted on 19 May 2020 under the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation where no group gathering of more than 8 people may take place in any public place during that period including 4 June 2020 unless exempted or permitted because of the emergency response level.

35.  That response level which was the highest, implied there was a serious threat to the health of the local population and a high and imminent risk of sustained community level outbreaks with severe and extensive human infections.

Mitigation

36.  I have heard mitigation in full and have either received written mitigation, biographies, statements and supporting authorities in bundles in advance or received letters of mitigation from defendants unrepresented. I do not intend to repeat the mitigation provided but all that can be said on behalf of the defendants has been conveyed and considered. Their best mitigation is their pleas of guilty.

37.  It was submitted that by then the turbulent and tumultuous social unrest of 2019 had receded. The obstruction and inconvenience to the public around Victoria Park was limited to the streets in Causeway Bay area only and natural with any assembly. There was no violence or imminent risk of violence at any time. The unauthorised meeting lasted only a few hours and was relatively short.

38.  It was submitted that those who pleaded guilty to Charge 1 were that evening only showing support, remained largely silent, held a candle but played a passive role in inciting others to knowingly take part. Those who pleaded guilty to Charge 3, knowingly taking part in an unauthorised assembly, were peaceful and passive whilst inside Victoria Park. They all wore face masks and no outbreak of COVID cases arose from this gathering.

39.  I was urged to and will consider personal mitigation, motive, backgrounds and previous significant public service. Where applicable, I was urged to consider clear records at the time of the offences.

Principles of Sentencing

40.  I considered the authority of Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding it referred to offences of unlawful assembly. The Court of Final Appeal went on to endorse the Court of Appeal’s sentencing principles and the list of factors relevant to a decision on the appropriate sentence for an unlawful assembly.

41.  Notwithstanding the offences here relate to an unauthorised assembly, I am sure I can draw on sentencing factors set out in Wong Chi Fung. Deterrence can be necessary to maintain public order and public safety.

42.  In that authority, the Court of Appeal identified the inherent risk of large gatherings becoming emotional and breaking out into violence. Even if there is no actual violence, the Court should take into consideration the threat of violence. It all depends on the actual circumstances of the case concerned but a punitive and deterrent sentence can be considered appropriate even if there is no actual violence. There may be equally as serious a risk to public order and public safety such as a public health risk; a different type of threat.

43.  As far as the incitement charges concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe deterrent immediate custodial sentence. Here there was incitement to take part in an unauthorised assembly to commemorate an event but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.

44.  I consider the culpability of the offenders individually. The context in which a crime is committed is of relevance to assessing its gravity and that culpability. It can be relevant to whether a punitive and deterrent sentence is appropriate. Since preserving public order and public safety is important, I have taken into account the prevailing circumstances at the time some defendants incited others to take part in an unauthorised assembly and all defendants knowingly took part in it.

45.  The social unrest and violence we saw in 2019 had significantly receded by June 2020 but not disappeared entirely. What we did see from the beginning of 2020 was a different threat to public order, public safety, and the protection of the rights and freedoms of others in the form of a pandemic. This is not an epidemic confined to the Mainland and Hong Kong but an indiscriminate pandemic that by June 2020 had spread across the world.

46.  Whether or not it contributed to the social unrest of 2019 receding somewhat, the pandemic itself presents a different threat and risk. It was this threat behind the decision of the Commissioner of Police.

47.  All sentencing principles applied to determine what is an appropriate sentence should take into account the facts of the charges and in this case, also the prevailing public health crisis in Hong Kong at that time.

48.  In mitigation for both the 5^th and 16^th defendants, Mr Wong referred me to Director of Public Prosecutions v Ziegler (2021) 3 WLR 179. It was submitted that this decision is applicable to sentencing; I should consider the proportionality of the sentence in the context of whether such sentence was necessary.

49.  As summarised by Pang JA in HKSAR v Au Nok Hin CACC 84/2021 in his reasons for refusing bail pending appeal from a sentence imposed by myself in DCCC 536/2020, I quote paragraph 13,

“In broad terms, what Ziegler requires in a case of this kind is for the court to recognise that, notwithstanding his law breaking, a defendant’s right to freedom of expression and right to freedom of assembly were engaged, and that his conviction and sentence are in themselves an interference with those rights. …”

50.  It has been submitted I should, according to that authority, take into account certain factors identified in paragraphs 71-78 as relevant to the assessment of proportionality, for example, the duration of the protest, whether the obstruction was targeted at the object of the protest, the importance of the precise location to the protesters and the extent of the actual interference on the rights of others.

51.  In Ziegler the obstruction was targeted at the object of the protest whereas here, the location of Victoria Park was important to Hong Kong Alliance because by convention they had held their vigil there for many years. The location was more symbolic to Hong Kong Alliance rather than relevant to the object of the vigil however, I nevertheless take that submission into account.

52.  The obstruction to roads and transport links are also relevant but in particular, the risk to public safety during a pandemic serves to prove this unauthorised assembly was very serious. These are factors I have taken into account and reflected in sentence.

Reasons for Sentence

53.  The Basic Law and the Bill of Rights does guarantee the freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional. Here, restrictions can be applied in the interests of public safety, public order, and the protection of others rights and freedoms. A public health crisis must come under the umbrella of public safety as well as the need to protect the rights of others.

54.  When considering an appropriate sentence, I do not consider the common purpose of the assembly nor the politics, beliefs, stance and opinions of any of the defendants. I am aware that yearly there is an event in Victoria Park to mark June 4^th but under the circumstances the organisers had other alternative and creative options to consider such as an interactive online vigil.

55.  The social distancing measures adopted to combat this pandemic were not designed to surreptitiously prevent people gathering for a common purpose or as a tool of suppression as suggested but to specifically stop people gathering in groups to prevent the transmission of COVID-19.

56.  The sole reason for social distancing measures is to protect the public and whole community; restrictions applied in the interests of public safety, public order, and the protection of others rights and freedoms. So to defy and incite others to defy those restrictions under such circumstances is serious.

57.  Therefore, I consider a deterrent and punitive sentence appropriate. Thankfully no violence erupted within the crowds but the defendants exhibited a blatant disregard of another serious risk to the entire community. The defendants ignored and belittled a genuine public health crisis. They showed no concern for the safety and health of fellow Hong Kongers. They wrongly and arrogantly believed their common purpose was more important than protecting the community or the public’s right to protection from a serious health risk; an invisible risk.

58.  Some or most of those charged with incitement are well-known public or political figures and their frontline role in this unauthorised assembly is an aggravating factor. They have a public profile and what they said and did was widely broadcast by media outlets. Moreover, they came together as a group for the press to reinforce each other and their message in order to be more visible to draw as many people as possible to Victoria Park.

59.  They were not to know whether the crowds they encouraged to participate in an unauthorised assembly would be peaceful and non-violent as well as diligently adhere to social distancing measures. On the day, the crowds did not adhere to such necessary measures. The fact that there did not appear to be an outbreak of either violence or COVID cases as a result of this assembly does not detract from their culpability. It was fortuitous.

60.  Accordingly, it is in this context and because of the prevailing circumstances at the time, I find an immediate custodial sentence appropriate.

61.  The defendants who incited others to congregate in large numbers and join them in an organised unauthorised assembly and on closed off football pitches created a public order and safety risk. They committed these offences despite the reasons given for the decision to prohibit the proposed meeting being completely credible and justifiable.

62.  In addition, in relation to Charge 1, I have taken into account the roles of the defendants as set out in the Amended Summary of Facts and seen in the video footage. The 2^nd, 5^th and 6^th defendants, in my view, played a more active role when compared to the more passive roles of the others which would be appropriate to reflect in sentence.

63.  I have taken into account mitigation put forward, submissions made, the facts of the offences and the prevailing situation at the time behind the decision of the Commissioner of Police. I sentence the defendants as follows:-

The 2^nd defendant - Ho Chun Yan

64.  The 2^nd defendant is presently serving a suspended sentence for organising and also taking part in an unauthorised assembly in DCCC 536/2020 imposed on 16 April 2021. He was sentenced to 18 months’ imprisonment in DCCC 534/2020 on 28 May 2021 for incitement to knowingly take part in an unauthorised assembly and organising it. He was also sentenced to 16 months’ imprisonment on 1 September 2021 in DCCC 535/2020 again for incitement to knowingly take part in an unauthorised assembly.

65.  At the time of this offence he had a clear record but he was on court bail for those 3 cases having been arrested in April 2020. The 2^nd defendant represented himself in mitigation; his statement is MFI-3. I have previously considered his biography and made allowances for his age and public service. I again take it all into consideration. On 4 June 2020, 2^nd defendant was the vice-chairman of the Hong Kong Alliance.

66.  I find a starting point of 12 months’ imprisonment appropriate for Charge 1. However, I take into account the 2^nd defendant’s more active role and the fact he was on court bail at the time and increase that starting point by 3 months to 15 months’ imprisonment.

67.  I find a starting point of 6 months’ imprisonment appropriate for Charge 3 but for the same reasons, I increase this by 3 months to 9 months’ imprisonment.

The 5^th defendant – Chan Ho Wun

68.  The 5^th defendant is now 25 years old and at the time of his offence had a clear record but like the 2^nd defendant, he too was on court bail for similar offences committed in 2019 having been arrested in April 2020. I have heard mitigation in full in MFI-4.

69.  The 5^th defendant is presently serving an 18-month term of imprisonment imposed on 28 May 2021 in DCCC 534/2020 after a plea to one count of incitement to knowingly take part in an unauthorised assembly and one count of organising it. He pleaded to identical charges in DCCC 535/2020 and was sentenced to 16 months’ imprisonment on 1 September 2021 to run concurrently to that earlier sentence.

70.  I find a starting point of 12 months’ imprisonment appropriate for Charge 1. However, I take into account the 5^th defendant’s more active role and the fact he was on court bail at the time and increase that starting point by 3 months to 15 months’ imprisonment.

71.  I find a starting point of 6 months’ imprisonment appropriate for Charge 3 but for the same reasons, I increase this by 3 months to 9 months’ imprisonment.

The 6^th defendant - Wan Siu Kin Andrew

72.  The 6^th defendant is 52 years old, married with 2 teenage children. He is the breadwinner of his family. At the time of the offences he had a clear record. He was a social worker until he became a District and then a Legislative Councillor. He served in those roles for a total of 17 years.

73.  I have a biography which lists his political career and public service to the community. I have heard full mitigation, MFI-5 and seen many mitigation letters which stress his dedication in helping the underprivileged and vulnerable in this society; from former government officials, colleagues, the clergy, peers and groups who have benefited from his help in the past.

74.  The 6^th defendant was on court bail at the time of these offences for obstructing an officer of the Legislative Council in the execution of his duty in June 2018. I repeat, he was also at the time of these offences a Standing Committee member of the Hong Kong Alliance.

75.  I find a starting point of 12 months’ imprisonment appropriate for Charge 1. However, I take into account the 6^th defendant’s role and the fact he was on court bail at the time and increase that starting point by 3 months to 15 months’ imprisonment.

76.  I find a starting point of 6 months’ imprisonment appropriate for Charge 3 but for the same reasons, I increase this by 3 months to 9 months’ imprisonment.

The 8^th defendant - Cheung Man Kwong

77.  I have a received a biography, mitigation as well as many letters from his wife, his former assistant when he was a Legislator, colleagues and friends. He is 66 years old, now a retired teacher and married with one daughter. He has years of public service as a Legislative Councillor, member of the Education Commission and past president of the now disbanded Hong Kong Professional Teachers Union.

78.  I have been urged to consider his passive role in the events of that evening. He is a man with a clear record. He has spent his life devoted to political reform and education in Mainland and Hong Kong. In his many years as a Legislator he displayed utter dedication; he attended 99% of the 772 Council meetings held in his 20-year tenure.

79.  Written mitigation highlights his achievements in the education sector. In recognition of his service and contributions to education for 3 decades, he has been bestowed honorary degrees of fellowship from both the Chinese University of Hong Kong and the Education University of Hong Kong. At the time of the offence, he was a Standing Committee member of the Hong Kong Alliance. His mitigation is set out in MFI-6.

80.  I find a starting point of 12 months’ imprisonment appropriate for Charge 1 and a starting point of 6 months’ imprisonment appropriate for Charge 3.

The 9^th defendant - Kwok Wing Kin

81.  The 9^th defendant is now 34 years old, married with a 5-year-old child. He is the breadwinner of his family and now working in the private sector. At the time of these offences he had a clear record.

82.  He was for many years working in community service until recently. He was an assistant to a Legislator for 8 years before serving on the Tai Po District Council and then becoming a Councillor himself. I have heard full mitigation as well as have his biography, MFI-7.

83.  I also have many mitigation letters from social workers, community groups who have benefited from his support and work, and peers. They highlight his work for, in particular, the elderly and disabled.

84.  I find a starting point of 12 months’ imprisonment appropriate for Charge 1 and a starting point of 6 months’ imprisonment appropriate for Charge 3.

The 11^th defendant - Chiu Yan Loy

85.  The 11^th defendant is 36 years old and single. He has a clear record. He is a university graduate who left the private sector to join the 1^st defendant, Lee Cheuk Yan’s office as a Community Officer in 2012. He then later himself became a District Councillor until this year. He too was a Standing Committee member of the Hong Kong Alliance at the time.

86.  His desire to better the community is genuine. He works hard for the community. I have received many mitigation letters written from his previous school principal, employer, colleagues and peers. I have heard full mitigation put forward on his behalf, MFI-7.

87.  I find a starting point of 12 months’ imprisonment appropriate for Charge 1 and a starting point of 6 months’ imprisonment appropriate for Charge 3.

The 12^th defendant - Mak Hoi Wah

88.  The 12^th defendant is 70-year-old married and has a clear record. He is retired and now spends time with his children and grandchildren. Prior to retirement he was an academic, social worker and heavily involved in public service through many advisory committees, tribunal’s and councils. He has worked tirelessly for the elderly, the disabled, racial minorities and discriminated groups in Hong Kong.

89.  I have heard full mitigation put forward on his behalf, MFI-5. I have read the many mitigating letters from family, clergy, past academic colleagues and students, all who have known him a very long time and speak of his dedication to many causes. At the time of the offence he was a Standing Committee member of the Hong Kong Alliance.

90.  I find a starting point of 12 months’ imprisonment appropriate for Charge 1 and a starting point of 6 months’ imprisonment appropriate for Charge 3.

The 14^th defendant - Leung Kwok Wah

91.  The 14^th defendant is 62 years old and lives with his wife and 96-year-old mother. He worked for 24 years in a bank before turning to serve the community full-time. Long before that he was volunteering regularly but in 2008 became a District Councillor serving for a total of 8 years before retiring this year. In total, he served his community for about 17 years. He in particular worked tirelessly for labour rights, disadvantaged groups and ethnic minorities.

92.  He has a clear record. He is not in great health, I have seen a biography which also sets out his health issues and conditions. He has difficulty walking and is reliant on much medication. I have a doctor’s diagnosis explaining why he has difficulty walking. I have letters from his wife, some of his sisters, colleagues, friends and beneficiaries of his support and help over the years, MFI-7. At the time of the offence he was a Standing Committee member of the Hong Kong Alliance.

93.  I find a starting point of 6 months appropriate for Charge 3.

The 15^th defendant - Ho Sau Lan Cyd

94.  The 15^th defendant is presently serving an 8-month sentence for organising and also knowingly taking part in an unauthorised assembly in DCCC 536/2020 imposed on 16 April 2021. She was sentenced to 14 months’ imprisonment in DCCC 534/2020 on 28 May 2021 for organising an unauthorised assembly with others. She was also sentenced to 14 months’ imprisonment in DCCC 535/2020 on 1 September 2021 again for incitement to knowingly take part in and organising an unauthorised assembly. All sentences were ordered to be served concurrently.

95.  At the time of this offence she had a clear record but she was on court bail for those 3 cases having been arrested in April 2020. I have her biography, public service details and have heard mitigation in full, MFI-8. I have many letters that were submitted to me in her previous 3 cases.

96.  I have another letter from the 15^th defendant dated 2 September 2021 recounting the history of the June 4^th Vigil and her reasons for attending it on an annual basis, including on this occasion. I will take it all into consideration.

97.  I find a starting point of 6 months’ imprisonment appropriate for Charge 3. However, the 15^th defendant was on court bail at the time of this offence and to reflect this, I increase that starting point by 3 months to 9 months’ imprisonment.

The 16^th defendant - Leung Kwok Hung

98.  The 16^th defendant was sentenced to 18 months’ imprisonment in DCCC 536/2020 after trial and the same in DCCC 534/2020 after he pleaded guilty. 4 months of that last sentence was ordered to run consecutively to DCCC 536/2020. He was also sentenced to 16 months’ imprisonment 1 September 2021 in DCCC 535/2020 again for incitement to knowingly take part in and organising an unauthorised assembly. That last sentence run concurrently to the other 2 sentences.

99.  In those previous 3 cases, I heard full mitigation on behalf of the 16^th defendant. I have had mitigation letters from all walks of life who admire him, are indebted to him and support him. I have heard details of his health condition; it would appear this is being addressed and will be treated if necessary. His mitigation is set out in MFI-4.

100.  I take into account his long-term commitment to social injustices and the need to raise public awareness of it. The 16^th defendant is well-known for his concern for the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups.

101.  I find a starting point of 6 months’ imprisonment appropriate for Charge 3. However, the 16^th defendant is not a man with a clear record; he has many similar convictions with almost all arising from the Public Order Ordinance. When he committed this offence he was on court bail and had only recently appeared in court. I increase that starting point by 3 months to 9 months’ imprisonment.

The 18^th defendant - Chu Hoi Dick Eddie

102.  I have received a biography relating to 18^th defendant’s family background, education, employment and community work, MFI-9.  He did not want to advance any mitigation other than that biography. The 18^th defendant is 43 years old, married with one child. The majority of his working life he has been engaged in public service and community work.

103.  The 18^th defendant is known as an environmentalist and has championed campaigns in many areas such as preservation of sites, waste recycling, town planning, redevelopment of agriculture as well as engaged in the fight against dumping.

104.  I find a starting point of 6 months’ imprisonment appropriate for Charge 3. However, the 18^th defendant is not a man with a clear record; he has one previous conviction from 2012 related to a public order offence. When he committed this offence he was on court bail for assaulting, obstructing or molesting a member being within the precincts of the chamber of the Legislative Council. I increase that starting point by 3 months to 9 months’ imprisonment.

The 20^th defendant - Yeung Sum

105.  The 20^th defendant was sentenced to 8 months’ imprisonment suspended for 12 months on 16 April 2021 for knowingly taking part in an unauthorised assembly in DCCC 537/2020. He then pleaded guilty to organising an unauthorised assembly and was sentenced to a total of 14 months’ imprisonment in DCCC 534/2020 on 28 May 2021. On 1 September 2021 he was sentenced to 11 months’ imprisonment for organising an unauthorised assembly which I ordered to run concurrently to the term of imprisonment imposed in DCCC 534/2020.

106.  The 20^th defendant acted in person when it came to mitigation and read out his statement, MFI-10. I have also considered his previous mitigation, submissions from his then Counsel and his biography submitted in DCCC 537/2020 and DCCC 534/2020.

107.  He has explained why he committed this offence in this case as he did for the previous 3 cases. He did not believe in violence and only advocated peaceful social movement. He explained his commitment to commemorating the date of June 4 on this occasion and in the past.

108.  I find a starting point of 6 months’ imprisonment appropriate for Charge 3 however, when he committed this offence he was on court bail for similar offences and had only recently appeared in court. I increase that starting point by 3 months to 9 months’ imprisonment.

Discount after plea

109.  Although not all defendants indicated their intention to plead guilty at the same time, I have considered the chronology of the court appearances and find all defendants are entitled to a full discount after plea.

110.  I also find a suspended sentence appropriate for the 8^th, 12^th and 14^th defendants after considering their backgrounds, ages, clear records, health, public service and mitigation.

Totality principle

111.  I have taken into account the totality principle, the facts of the case and the charges here. I will order those who face both Charges 1 and 3 to serve their sentences concurrently.

112.  Several defendants are serving sentences for similar or the same offences committed on several divers dates during the social turmoil in 2019 although the common purpose was not the same as in this case. The importance of the totality principle is to ensure fairness to any defendant. Courts must achieve a just and balanced sentence that will not punish a defendant twice for the same or similar conduct and crush him.

113.  Often, to achieve a fair and balanced sentence, the Court can consider concurrent and consecutive sentences. If a person is convicted of more than one offence committed on different days or not arising out of a single transaction or the same set of facts, then the sentence ought in principle to run consecutively to the sentences on each of the other offences but subject to an assessment of the appropriate totality. To achieve that, sentences can be imposed but are served in whole or in part concurrently rather than consecutively. This avoids excessive punishment yet still reflects multiple offences, overall criminality and culpability.

114.  I have considered the facts of DCCC 536/2020, DCCC 534/2020, DCCC 535/2020 and the similar or same offences, roles and mitigation of those relevant defendants. I have taken into account the sentences I imposed in those cases. Although there was a time gap of months, I find it fair and appropriate to consider concurrent sentences here.

Conclusion

115.  After a full discount is applied;

(i) The 2^nd defendant is sentenced to 10 months’ imprisonment for Charge 1 and 6 months’ imprisonment for Charge 3 to be served concurrently; a total of 10 months’ imprisonment. I order this sentence to run concurrently to the sentences he is presently serving.

(ii) The 5^th defendant is sentenced to 10 months’ imprisonment for Charge 1 and 6 months’ imprisonment for Charge 3 be served concurrently; a total of 10 months’ imprisonment. I order this sentence to run concurrently to the sentences he is presently serving.

(iii) The 6^th defendant is sentenced to 10 months’ imprisonment for Charge 1 and 6 months’ imprisonment for Charge 3 to be served concurrently; a total of 10 months’ imprisonment.

(iv) The 8^th defendant is sentenced to 8 months’ imprisonment for Charge 1 and 4 months’ imprisonment for Charge 3 to be served concurrently; both these sentences are suspended for 18 months. He is sentenced to a total of 8 months’ imprisonment suspended for 18 months.

(v) The 9^th defendant is sentenced to 8 months’ imprisonment for Charge 1 and 4 months’ imprisonment for Charge 3 to be served concurrently; a total of 8 months’ imprisonment.

(vi) The 11^th defendant is sentenced to 8 months’ imprisonment for Charge 1 and 4 months’ imprisonment for Charge 3 to be served concurrently; a total of 8 months’ imprisonment.

(vii) The 12^th defendant is sentenced to 8 months’ imprisonment for Charge 1 and 4 months’ imprisonment for Charge 3 to be served concurrently; both these sentences are suspended for 18 months. He is sentenced to a total of 8 months’ imprisonment suspended for 18 months.

(viii) The 14^th defendant for Charge 3 is sentenced to 4 months’ imprisonment suspended for 12 months.

(ix) The 15^th defendant is sentenced to 6 months’ imprisonment for Charge 3. I order this sentence to run concurrently to the sentences she is presently serving.

(x) The 16^th defendant is sentenced to 6 months’ imprisonment for Charge 3. I order the sentence to run concurrently to the sentences he is presently serving.

(xi) The 18^th defendant is sentenced to 6 months’ imprisonment for Charge 3.

(xii) The 20^th defendant is sentenced to 6 months’ imprisonment for Charge 3. I order the sentence to run concurrently to the sentences he is presently serving.

116.  The 8^th, 12^th and 14^th defendants are warned that if they commit an offence punishable by imprisonment during the period of suspension and are convicted then, they will most certainly be ordered to serve their respective terms of imprisonment imposed today.