HKSAR v. LI CHI WANG

[English Translation – 英譯本]

HCMA 266/2022

[2023] HKCFI 1794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 266 OF 2022

(ON APPEAL FROM ESCC 2480/2020)

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JUDGMENT

A.  Introduction

1.  The appellant was charged with an offence of “behaving in a noisy or disorderly manner in a public place”, contrary to section 17B(2)  of the Public Order Ordinance, Cap 245 of the Laws of Hong Kong.  He pleaded not guilty and was convicted after trial by Magistrate Ms Winnie Lau (“the magistrate”) sitting at the Eastern Magistrates’ Courts and sentenced to 7 months’ imprisonment.  He appealed against the conviction and sentence.

B.  Particulars of offence

2.  In the particulars of offence, it is alleged that the appellant did, on 24 May 2020, at a public place at the junction of Canal Road East and Hennessy Road in Causeway Bay, Hong Kong, behave in a noisy and disorderly manner or use threatening, abusive or insulting words, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused[1].

B.1.  Prosecution case

3.  The magistrate recounted the prosecution case in her Statement of Findings:

“6. In short, the prosecution case mainly showed that on the day in question, Station Sergeant SSGT33867 Leung Chi Wai (transliteration)(PW1) was on duty at the media team of the police. He was in plainclothes and wearing a blue vest of the police media team. Around 1530 hours, he was on Hennessy Road outside Sogo Department Store, where many members of the media and citizens were standing on the roadway. For the safety of the media and citizens and the resumption of road traffic, he advised the members of the media and the public to go back to the pavement. Next to SSGT Leung, there were also uniformed police officers advising the media and citizens to do so.

7. At that time, the defendant was standing by the outside of the railings dividing the roadway and pavement at that location, i.e. nearer the roadway. SSGT Leung advised the defendant to move back to the pavement. In the course of it, the defendant suddenly sat down on the ground and, after getting up, scolded SSGT Leung for pushing him down. SSGT Leung immediately clarified that he had never pushed the defendant. According to SSGT Leung’s observation, no one had ever had any body contact with the defendant. Despite SSGT Leung’s repeated clarifications, the defendant kept on shouting out that he had been pushed onto the ground by a police officer. An uproar started among the people around, who echoed with the allegation that a police officer had pushed the defendant onto the ground. On seeing that the defendant was not injured and many members of the media were still at the scene, SSGT Leung continued with his duties of the media team. (Incident 1)

8. After Incident 1, SSGT Leung was not subject to any criminal investigation or investigation by the complaint unit. Clips P6 and P7 showed what he saw and heard and so on.

9. Inspector Wong Nok Sze (transliteration)(PW2) was the commander of Sub-unit 4, Tier 2, Marine Region. Around 1545 hours on that day, he and his team members formed cordon lines under the flyover, at the junction of Canal Road East and Hennessy Road to cope with the unlawful assembly at the scene. He was assigned to give out warnings and tackle the people assembled there with a view to their departure.

10. Around 1613 hours, the police set up Cordon Lines 1 and 2 [Exhibit P10]. At that time, 40 to 50 people were gathering at Cordon Line 1, and over one hundred people were at Cordon Line 2, somewhere farther away. Most people who gathered were dressed in all black and wearing black masks, and some of them were wearing pink respirators. Those people scattered on the roadway and pavements and shouted out slogans which were mixed with words scolding the police, including ‘Hong Kong be independent’, ‘Disband the police, no delay’ and ‘Black cops, may your whole family die’. Cordon Lines 1 and 2 were mainly in the charge of Inspector Wong’s team. At the same time, there was Cordon Line 3 in Zone C, which was in the charge of another team. The road in Zone C was a pavement which was a passageway, but relatively fewer people gathered there. At that stage, the police did not prohibit the crowds from being on that pavement, and pedestrians were allowed to walk past under the flyover to the bus-stops, but the people assembling were advised to leave that passageway.

11. Since more people were gathering at Cordon Lines 1 and 2, the police dealt with the crowds there first. Inspector Wong through a loudspeaker gave warnings to the crowds gathering at Cordon Lines 1 and 2 and raised a blue warning flag, demanding the people there to leave. At that time, no traffic was running on the section of Hennessy Road behind the police. Apart from the people who were gathering, there were also passers-by and reporters. The police gave warnings to the crowds who gathered near Cordon Lines 1 and 2 and raised the warning flags in order to give those people time to leave first. However, after repeated but futile warnings, the police proceeded to disperse the crowds and make arrests. Some members of Inspector Wong’s team took part in dispersing when he and the other members maintained the order at the scene. People gathering there left at the time of the police dispersal.

12. After being dispersed from Cordon Lines 1 and 2, the crowds gathered at various places between Zones A and D [P10]. Inspector Wong was physically at the scene at the junction of Canal Road East and Hennessy Road. Through the loudspeaker, he verbally urged people gathering there to leave the roadway, move back onto the pavement and leave the scene. He also instructed his team members to urge other people gathering there to move back onto the pavement. Afterwards, Inspector Wong’s team, including PC9917 (PW3), took over Cordon Line 3. At this stage, since the police wanted the crowds from different places to leave the scene as soon as possible, the crowds were allowed to walk over the boot-shaped part in P10 so as to go away to other places.

13. Around 1635 hours, PC9917 was under the flyover, facing Times Square and maintaining the public order at that location. He heard Inspector Wong give out warnings against unlawful assembly through the loudspeaker. He and his team members lined up in a row at Cordon Line 3 under the flyover with a view to dispersing the crowd, forcing them to leave and maintaining the order at that place. He gave verbal warnings to the protestors and the crowds assembling, saying that their behavior amounted to unlawful assembly and telling them to leave as soon as possible. After that verbal warning, the crowd diminished with about 50 people remaining near Cordon Line 3, appearing to be peaceful in general. Subsequently, PC9917 saw that the defendant rushed out from that crowd of people towards the front of the orange cordon line near the bus lane under the flyover and, being right against that orange cordon line, scolded the 10 to 20 police officers who were dispersing and arresting people on the bus lane. The defendant appeared to be emotionally agitated. He shouted out with anger, flinging his arms and legs. Roughly speaking, the content of his shouts was demanding the police to stop arbitrarily arresting citizens, attacking citizens and using pepper spray, and scolding the police that they were all refuse and “not human being”, and such seditious, insulting and provocative words attracted more people to come together. The number of assemblers increased to about 200. Other crowds also echoed and decried words including, but not limited to, “Black cops, may your whole family die” and “do you have a police number” and also scolded the police with insulting and provocative words such as foul language.

14. In PC9917’s view, what the defendant had said was seditious, insulting and provocative in nature because his words had stirred up others’ emotion and provoked uproars at the scene, and also insulted the police officers working there. He himself also felt being insulted and challenged. He also found what those people said at the scene insulting and provocative because they asked him if he had a police number, and they did use foul language and act in insulting and provocative ways.

15. Hence, PC9917 urged and warned the defendant, demanding him to leave, and told him not to further incite others to decry and assemble there. The defendant did not want to leave, refused his request and indicated that he would not leave. He even put out his clenched fists forward, acting in a way of surrendering to PC9917’s arrest and uttered seditious, insulting and provocative words such as ‘Arrest me. Police are all rubbish. I tell you to make arrest but you just don’t. Now just do your own work’. At that time, the defendant’s voice was very loud and sharp, and he had also said that he was a district councillor. In PC9917’s view, a breach of the peace had already occurred by that time, and there were reasons to believe that the defendant had committed the offence of misbehaving in public place. PC9917 ‘was not sure’ of the defendant’s identity of a district councillor, but such identity in any event would not affect his decision of urging and warning the defendant because every person was equal before the law.

16. Around 1644 hours, Inspector Wong was on the bus lane, near the crowd at Zone D on the pavement. At that time, 10 to 20 people flocked from Zone C, Cordon Line 3 to that cordon line, and his attention was drawn by someone who decried. So, he went up to see what happened and was told by the colleagues there, including PC9917, that the defendant was decrying, thereby stirring up the emotion of the assemblers at the scene and inciting them to raise an uproar, who just ignored the colleagues’ persuasion and warnings and was suspected to have committed an offence. After hearing such report, Inspector Wong tried to instruct other colleagues to take the defendant away from the cordon line for investigation, and he personally explained to the defendant the reasons for which the police intercepted him and took him away from the cordon line for investigation so as to avoid other assemblers around from taking more radical actions during the investigation,. However, the defendant did not agree to what the police did, and hence an argument broke out at the cordon line. The defendant tended to be emotionally agitated, he raised his arms high and waved them at times, denied being seditious and claimed that he was carrying out his duty as a district councillor by scrutinizing the police at the scene. Since at that time the people gathering there (namely the 10 to 20 people surrounding the defendant nearby plus those two to three metres behind) decried and scolded the police loudly, Inspector Wong found them to be emotionally agitated, and in order to stop dragging on and to avoid the situation from getting worse, he instructed his colleagues to take the defendant away from the cordon line immediately.

17. Around 1652 hours, the defendant was at the boot-shaped part [see the bend shown in green line on P14]. PC9917 carried out investigation on him, explained to him the acts which amounted to committing [an offence] by referring to the Police Force Ordinance and asked him to produce his identity card. The defendant raised his identity card and said loudly, ‘Why do I have to give it to you?’ In the course of it, he decried loudly, uttering seditious, insulting and provocative words, such as ‘I am a Shatin District Councillor’, ‘the police frame me up’, ‘do the police respect a district councillor’ and ‘the police blacken [my] name’. To PC9917, the defendant’s loud decry of ‘the police frame me up’ and the words purporting the police blackened his name were acts inciting others to object to the police’s action, insulting his work and challenging the police. At that time, people assembling were blocking the roadway of Canal Road East, and more and more people got together, decried loudly and echoed. It was full of scolding words mixed with foul language, including ‘X (X is used by this Court to stand for the four-letter word used by PC9917 in his testimony) your mother, bloody black cops, your acts amount to abusing police power. Release the district councillor as soon as possible; otherwise the citizens will prosecute you’. In addition, there were repeated chanting of the slogan ‘Independence of Hong Kong is the only way out’. The scene was very chaotic and noisy. After PC9917 had warned the defendant twice, around 1656 hours, the latter gave the former his [identity] card. Around 1657 hours, PC9917 revealed his identity to the defendant and declared the arrest for the offence of misconduct in public place.

18.  Around 1705 hours, PC9917 handcuffed the defendant.  Around 1725 hours, the defendant was taken on board a police vehicle for North Point Police Station in the company of PC9917.  He did not administer caution to the defendant at the scene because in dealing with the social events, a lot of manpower was needed at the frontline, and there was a police order that the frontline officers were to declare arrests, and the subsequent paper work and caution would be carried on by the detective police officers.  He followed this practice at the material time.”

B.2.   Defence case and stance

4.  The appellant exercised his right and elected not to give evidence or call any witness.         It was said that the production of the evidence of Incident 1 was objected at trial because Incident 1 was not relevant to the incident for which the charge was brought (Incident 3), and such production might wrongly reflect that the appellant tended to commit the offence and so on.  The magistrate hence dealt with it by way of the alternative procedure; the appellant did not give evidence or call any witness in respect of the special or general issues.

5.  The approach of the appellant’s defence was brought out through the cross-examination and submissions, including:

a.  The appellant had not used any wording to incite others to use violence, showing that he did not have such intention;      

b.  The people at the scene had not performed any act of actual violence, showing that the appellant’s acts were not likely to cause others to breach the peace;

c.  PW3 was not an honest or reliable witness because not only did he claim of not seeing Episode 1 of Incident 3A (captured by footage such as P15), but what he claimed of having observed, ie Episode [2] of Incident 3A which happened later, had no evidence in support, and it was inherently improbable chronologically;

d.  What the appellant did in Episode 1 of Incident 3A was only expressing discontent that under the Canal Road Flyover at the junction of Canal Road East and Hennessy Road, the police suddenly subdued the male wearing a cap and used pepper spray towards the crowd;

e.  Incident 3C happened within the police cordoned area, which the public had no access and thus was not a public place.

C.   Appeal against conviction

6.  Mr Anthony Lai and Mr Stephen Keung, acting for the appellant, basically advanced two grounds of appeal, alleging that the conviction was not safe or satisfactory.

Ground of appeal (1)	The magistrate erred in holding that the appellant behaved with intent to provoke a breach of the peace, or whereby a breach of the peace was likely to be caused.
Ground of appeal (2)	The magistrate erred in accepting that Episode 2 of Incident 3A did occur, erred in accepting PW3’s evidence and erred in rejecting the appellant’s excuse.

D.  Ground of appeal (1)

D.1. Appellant’s submissions

7.  It was first submitted for the appellant on the point of a breach of the peace is likely to be caused and then on the intent to provoke a breach of the peace.

“A breach of the peace is likely to be caused”

8.  The appellant submitted that the most crucial point in the factual background of the present case was that throughout the 1.5 hours (from Incident 1 occurred around 1530 hours to the time when the appellant was handcuffed around 1705 hours) during which the whole incident had lasted, even if it was accepted that the appellant had behaved in a noisy and disorderly manner and used abusive and insulting words, plus the actual law enforcement acts (as opposed to giving warnings only) carried out by the police, including subduing the male wearing a cap, taking the appellant into the area enclosed by Cordon Line 3 and arresting him, there was only a pure gathering involving no words or slogans of violence (compared with, for example, “valiant”) and no actual violence (e.g. “snatching arrestees” or throwing odd objects such as water bottles, etc.) took place.

9.  In other words, in law, one reasonable possibility not being ruled out was that the threats of violence at that time was not imminent, and there was a mere possibility but no real risk of violence (HKSAR v Chow Nok Hang[2]).  Conversely, if the prosecution’s stance was that the threat of violence was then ready but had yet broken out only because of the police deployment, then when would it break out?  Or might the answer be simply not having such ability, and therefore the people assembling at the scene could only argue verbally?

10.  The appellant contended that the magistrate had not only failed to give sufficient consideration on the non-violent situation which lasted for a long time as mentioned above, but instead regarded the discontent with the police as the imminent and actual threat of violence.  In law, the freedom of expression and the relevant restrictions must be given generous and narrow interpretation respectively, meaning that views which were disagreeable, unpopular, distasteful and even offensive or views which might be critical of persons in authority (going further than discontented emotion) also needed to be tolerated and able to be conveyed (Chow Nok Hang[3]).

11.  It was submitted that abuse directed at the police in the presence of third parties did not ipso facto constitute incitement to those third parties to violence (HKSAR v Li Wai Kuen[4]).  As submitted for the appellant whose appeal was allowed by the Court of Appeal in that case, although the reaction of the spectators showed that they supported the appellant’s abuse to the police officer, there was no evidence that what he said was likely to provoke them to attack the constable or to contend among themselves.  It was true that the constable said he thought there might be a riot, but the risk (even if there was a real possibility) might likely be caused by the crowd’s disapproval of the constable’s action (proper though it was) rather than the insulting words spoken to that police officer by the appellant.

12.  It can been seen from the above legal principle that discontent was not equal to threat of violence when the magistrate considered if a breach of the peace was likely to be caused, and the objective environment at the material time (including the above long duration and non-violent circumstances) must be taken into account, and it was for the court to determine rather than the witnesses in the present case or police officers at the scene to make judgment.  In this regard, the magistrate erred in relying on the subjective judgment made by the police officers at the scene and their evidence in response.

13.  It was submitted that even the cases of protest themselves might be classified into different levels of violence: from the serious ones involving substantive violence (constituting riot) to minor ones involving pure possibility (constituting lawful assembly), and could not be generalized.  Conversely, if any behaviour (irrespective of its objective circumstances) had to be magnified for examination to see if any criminal liability was involved only because of having happened during a protest, and as a result, for example, the people in the protest who regarded themselves as having been unlawfully treated by the police worried that they might “incite” others, and hence they gave up reasoning with the police and turned out to be forced to accept liability and leave the complaint and pursuit of the case until later at the expense of time and effort. In such case, the interpretations of free expression and the relevant restrictions might become over narrow and generous respectively.

14.  It was also submitted that whether the appellant’s act of continuously arguing with the police was lawful and reasonable should not depend on whether the police had given any warning.  The police, of course, had their own duties and significance, and it did not follow that those people who disagreed with the police action and even argued with them should be criminally liable.  The gravamen of the charge in the present case was preventing the outbreak of public disorder (Chow Nok Hang[5]) rather than anything detrimental to the efficiency of the police in executing their duties.

15.  As to whether the male having a proof of identity was, as held by the magistrate, trying to stop the male wearing a cap being subdued, the appellant said this was obviously not the only reasonable inference because the male wearing a cap had repeatedly raised his hands before the police had any contact with him, which was a gesture going in line with his words rather than getting ready for being held back by his “fellows”.  Furthermore, since the police seemed to have subdued the male wearing a cap without any warning in advance, the fact that the male having a proof of identity put out his hand could be an attempt to grab any person (irrespective of his identity) to avoid the latter from getting injured, or a shout to stop any action having the risk of causing injury (no matter by whom or to whom), which were neutral and natural acts.  Finally, whether any person who displayed a proof of identity to show his/her identity, face or occupation, for example reporters or humanitarian paramedics, was taking part in unlawful activity at the scene was itself doubtful.  As such, the magistrate erred in taking this as the evidence showing the real and imminent risk of violence.  In any event, this matter was only a very small part of the whole incident, not only was it not caused by the appellant, it did not lead to any actual violent confrontation.

“Provoke a breach of the peace with intent”

16.  The appellant submitted that although all of what the appellant had said and done had lasted for quite some time, it involved no direct incitement to others to behave violently, such as attacking the police or snatching any arrestee from the police.  Had the appellant really intended to do so, he could have well before then directly called on others to charge at the police, to save him and so on.  There was not sufficient evidence to prove that his intent must be provoking others to breach the peace.  The appellant [said it] must be stressed that even if he intended to let his complaints against the police be heard by other people, and even hoped that others would agree and support his discontent, such intention was not equivalent to that of provoking others to use violence.

17.  Going one step further, what the appellant had done was merely reasoning with the police (as opposed to merely abusing) because what he argued for was not absolutely unreasonable:

a.  First, as the magistrate did not rule out (but without proper consideration) that in Incident 1, the appellant misconceived that when he was communicating with the police in respect of the interception of a possibly innocent citizen, PW1 maliciously “tripped” him up but refused to admit.

b.  Second, in Episode 1 of Incident 3A, the male wearing a cap seemed to have been subdued by a number of police officers with force solely because of having argued with them, and the crowds nearby were subject to pepper spray innocently solely because of standing close, and the appellant instantly began to reason with the police.  In other words, the magistrate should have considered the appellant’s intention by taking into account whether Episode 1 of Incident 3A was the reason for which the appellant made complaints to the police, instead of whether it was the reason for which PW3 intervened the appellant.  The appellant stated that under the circumstances at that time, whether it was necessary for the police to subdue the male wearing a cap with force and use pepper spray in Episode 1 was not completely indubitable to the citizens.

c.  Arguing whether certain law enforcement action was lawful (in particular under certain factual basis) was obviously not equivalent to inciting others to use violence.  The appellant did not create trouble out of nothing.  In fact, the police have never directly responded to the appellant’s argument throughout the entire event, for example: Why did the male wearing a cap have to be subdued?  Why was pepper spray used to the crowd near the male wearing a cap?  And/Or why was the appellant thought to be inciting?

d.  It was asserted that the appellant only wanted to assist the court to infer his intent by inviting the court to consider the objective circumstances at the material time so as to assess if the appellant was, as the magistrate had found, completely vexatious. If it was possible that the appellant had not been vexatious, it would be more clearly that he was only striving to argue based on reasons rather than intending to provoke others to breach the peace.  In fact, during the time when the appellant was handcuffed (after around 1705 hours), he did not do or say anything apparent and, on the contrary, was rather co-operative with the police.  If the appellant had intended to provoke others to breach the peace, why would he have not gone further before and/or at that time, for example, by refusing to go into the area enclosed by Cordon Line 3, refusing to be handcuffed and/or shouting out words of violence so as to stop the investigation and/or arrest done on himself?

18.  It was said for the appellant that in the present case, the abuse on the police, whether by the appellant or other people, were not sufficient to constitute inciting others to use violence.  Even if the appellant did really carry out incitement, it would only be inciting others to support him criticising the police and/or to criticize the police by themselves.  The various acts performed by the appellant upon which the magistrate relied just aligned with such possibility. The appellant at most only took advantage of the crowds’ momentum to defeat the police verbally, whilst he did not (and even dared not) put things into action, not to mention using violence.

D.2. Response from the Respondent

19.  Ms Kathy Sum, Public Prosecutor, acting for the respondent has adopted the written submissions prepared by Mr Ivan Cheung, ADPP and herself.  Here is her submission in response to the ground of appeal (1).

A breach of the peace is likely to be caused

20.  The respondent submitted that the magistrate first recounted the circumstances and environment at the material time on the pavement on both sides under the Canal Road Flyover and in the area around the intersections of Canal Road East and Canal Road West with Hennessy Road (collectively called “in the vicinity of the scene”), which had been continuously chaotic and tense up to 1640 hours.  Quite a lot of people were gathering at the scene, expressing discontent, venting negative emotion to the police and blockading roads.  The police, therefore, had to repeatedly raise the warning flags and take action to control the situation.

21.  The magistrate has considered the following evidence which were relevant:

(a)  According to PW2’s evidence, around 1613 hours, the police set up Cordon Line 1 and Cordon Line 2 under the flyover at the junction of Canal Road East and Hennessy Road.  Forty to fifty people were gathering at Cordon Line 1, and over 100 people were gathering at Cordon Line 2, somewhere farther away.  Most people in the crowds were dressed in all black and wearing black masks, and some of them were wearing pink respirators.  These people scattered on the roadway and pavements and shouted out slogans, including words insulting the police such as “Black cops, may your whole family die”, “Hong Kong be Independent”, “Disband the police, no delay”.  PW2 gave warnings through a loudspeaker to the people gathering at the scene, demanding them to leave, and the police raised the blue warning flag(s) as well.  After repeated but futile warnings, the police proceeded with disperse and arrest action at the two cordon lines.  While being dispersed, some people who had gathered left.  After being dispersed, the crowds gathered at various places between Zones A and D (see the sketch of Exhibit P10[6]).  PW2 was physically in the area of the junction of Canal Road East and Hennessy Road, through the loudspeaker, he urged the people who gathered to move back to the pavements and leave the scene; he had given out warnings against unlawful assembly repeatedly between 1613 and 1640 hours[7]; 

(b)  As shown by Clips P2, P3 and P5 as a whole, around 1623 hours, quite a lot of people kept on gathering in the vicinity of the scene.  During different periods and at different locations, the police repeatedly warned the crowds that their behavior amounted to unlawful assembly and urged them to leave.  The police also raised and displayed flags with warning words to the people at the scene, indicating that the gatherings or processions concerned were illegal, and told them to disperse immediately; otherwise the police might use force, but the crowds did not listen to the police directions.  Someone in the crowds broadcast music and some shouted out slogans (such as “Liberate Hong Kong, Revolution of the time”, “Disband the police” and so on) or expressed their requests, discontent and/or words against the police by way of an uproar[8];

(c)  According to Clip P2, after the male wearing a cap had been subdued on the ground, i.e. around 1634 hours shown in the Clip, over the subsequent 6 minutes, around the section of Hennessy Road and Canal Road West in question and the place beside which was under the Canal Road Flyover, a lot of people remained gathering there.  It was chaotic.  The police raised the warning flags, including blue flags and black flags a number of times to issue warnings, and even used tear gas[9].

22.  The respondent said that the magistrate found what the appellant did and said at the material time fell within the meaning of behaving in a noisy and disorderly manner and using abusive and insulting words under the relevant ordinance[10].  This finding seemed to have been accepted by the appellant at the appeal stage and did not dispute anymore.  In fact, as far as the appellant’s behaviour was concerned, including that he rushed out from the crowd to front of the cordon line in Zone C, loudly shouted out insulting and provocative words such as saying the police were “rubbish”, raised his arms at times, subsequently continued to loudly challenge the law enforcement action taken by the police when he was within the cordoned area, and deliberately raised his identity card to challenge the police constable about the need for producing his identity card to him, he was definitely behaving in a noisy and disorderly manner, and what he said was clearly abusive and insulting.  Undoubtedly, the magistrate’s findings in this regard was sensible and reasonable.

23.  The respondent said that taking into account the continuously chaotic and tense atmosphere in the vicinity of the scene, the magistrate considered that what the appellant had done and said must have aggravated the negative emotion of the crowds who were dissatisfied with the police and gathered at the scene, intensified their anger and agitation, and pushed the very chaotic circumstances to continue or even deteriorate (the magistrate made such analysis and inference from various circumstances in the case in a number of paragraphs[11]).   

24.  The respondent submitted that the magistrate’s analysis in this aspect was objectively supported by video footage recording what happened at the scene:

(a)  As shown at counter reading 00:15:33 in Clip P5, the appellant shouted out loudly within the cordoned area, “This is obviously abusive, abused prosecution!” and “This is absolutely arbitrary law enforcement, which is totally baseless by just picking a person in the street and intercepting him right there.”  Shortly after these two utterances, a male voice shouted out loudly outside the cordoned zone, “Shame on abusive arrest!”  Meanwhile, some people outside the cordoned zone lent verbal support to the appellant, shouted loudly, “X your mother, bloody black cops”, “Hong Kong police are just rubbish” and words of the kind.  The crowds’ actions even escalated afterwards, they shouted out in a coordinated way, “Release him! Release him!”  They tried to pressurize the police to release the appellant.

(b)  It could be seen from the above footage that what the appellant did and said could obviously be seen and heard by the crowds outside the cordoned area. The appellant’s words in fact made the crowds who were discontented with the police law enforcement at the scene even angrier, and they became united with the original noisy decrying by individuals turning into the crowds coming together to press the police to release the appellant.  It was clear that the crowds at the scene were provoked and incited by what the appellant said and did, thereby the tense and chaotic circumstances in existence were aggravated, and a confrontation between the police and the citizens was just about to break out[12].

25.  The appellant repeatedly stated at trial and in the appeal that what the appellant had said involved no wording of applying violence by himself or suggesting others using violence, and hence his conduct would not cause any breach of the peace.  As pointed out by the magistrate at paragraph 37xx of her Statement of Findings, people were different in the ability to control their emotion.  Some people were relatively weak in controlling themselves in this aspect and might be easier got triggered into using violence in the state of agitation, which might just happen in the split of a second.  The magistrate has also considered what had happened on that day as a whole, including the series of law enforcement actions taken by the police, the appellant’s subsequent allegations against the police for arbitrarily arresting and attacking the citizens and using pepper spray and his persistent challenges made against the police enforcement, all of which when adding up together, must, on the factual level, bring about a real and imminent risk of provoking the crowds at the scene to resort to violence, object to the police law enforcement and finally breach the peace of society[13].

26.  In HKSAR v Luk Ping Yat (transliteration of陸冰溢) [14], Alex Lee J cited what Rebeiro PJ has said in Chow Nok Hang, namely even if the defendant himself had not applied violence or threatened to use violence, he might still have committed the offence under section 17B(2)[15].

27.  The appellant pointed out that throughout the whole incident happened on that day (from Incident 1 to the time when the appellant was handcuffed), no real violence had ever occurred, and therefore the threat of violence at that time was not imminent nor was there any real risk of it.  However, the appellant seemed to have ignored the continuously chaotic and tense situation in the vicinity of the scene, and that many people had kept on gathering together, and the police had to applied force to control the situation, including using tear gas and pepper spray.  The relationship between the police and the citizens was very tense at that time.  The appellant has tried to play down the turmoil on that day by saying “there were only words and slogans not involving violence” and “pure gatherings”, whereas forgotten that the objective evidence in the case, such as what was shown by multiple video footage, was just the opposite.

28.  In addition, the appellant also said that under the police deployment, the people at the scene simply could not threaten to use force and could only contend verbally.  The appellant referred to Luk Ping Yat, saying that as pointed out by A Lee J in the case, whether the scene was a police “closely monitored demonstration” and whether the protestors had been under effective control of the law enforcement officers were proper factors for consideration.  The respondent submitted that A Lee J further pointed out in paragraph 31 of the judgment:

“31. However, since limb 2 [i.e. the limb of whether a breach of the peace is likely to be caused] was a purely objective criterion, and the precise circumstances of each case are just different, … Therefore, the outcome of the appeal should depend on whether the defendant’s conduct amounted to behaviour in a disorderly manner and caused a breach of the peace at the same time. Furthermore, I accept the respondent’s submission that Chiu Hin Chung happened in 2010, and time has changed, the circumstances in society and the relationship between the police and the citizens were not comparable to what we have today. Between 2019 and 2020, i.e. the period during which this case happened, the atmosphere in society has deteriorated quickly, the rioters blockaded roads, committed arson, damaged public property, wilfully insulted the police who were in execution of their duties, put up stiff resistance and even imposed violence on them. All these were not uncommon. It was not until late 2020 that the community became stable gradually.”

29.  In objectively considering whether there was an imminent and real risk of likely causing a breach of the peace at the scene, the magistrate was certainly entitled to consider the discontent of the crowd at the scene with the police, because this was the very reason that those gathered at the scene would “wilfully insult the police who were in execution of their duties, put up stiff resistance and even apply violence on them”.  Naturally, the magistrate could consider the evidence as a whole, including the subjective judgment of and the response given by the police officers at the scene so as to understand the actual circumstances and atmosphere at the material time.  The appellant’s complaint could not stand.

30.  The respondent said that the magistrate had in the Statement of Findings clearly explained that one of the reasons for convicting the appellant was that his “agitated words and behaviour were not caused by his discontent and/or disagreement with the police, but by his intention to act against the police and challenge them in enforcing the law, and he did further incite and provoke the discontent of the people at the scene against the police with intent” [16].  The respondent suggested that the appellant had spoken out of context, being unfair to the magistrate.

31.  The respondent also said that the appellant’s complaint was unrealistic and disregarded the occurrences of “snatching arrestee” from time to time among various incidents during the social event.  Irrespective of the capacity in which this male having a proof of identity (the magistrate called this person “the male wearing goggles” in the Statement of Findings[17]) at the scene at that time, he was certainly not a police officer, and in such case, while he was getting close and putting out his hands to a person who had just been subdued and detained by the police, what he did would certainly be regarded by the police officers and other people at the scene as “snatching the arrestee”; which was disturbing the order in less serious cases, or causing harm to the police officer and leading to riotous situation in more serious ones.  It was not improper for the magistrate to take into account what was shown by the footage as one of the objective evidence in considering the actual circumstances at the material time.

32.  The respondent referred to HKSAR v Chan Ho Lun (transliteration of陳浩倫) [18]，in which the appellant was convicted for the offence of “behaving in a noisy manner in a public place”.  The prosecution case alleged that when the police officers were clearing the obstacles on the road, the appellant, who was standing by the side, scolded loudly and called upon the crowds at the scene to surround the police officers, which attracted a lot of passers-by to get around to watch, and some people even applauded and booed with clapping hands.  The appellant appealed against the conviction.  After the appeal conducted before Andrew Chan J by way of a rehearing, it was held that the evidence was sufficient to support the conviction and the appeal was dismissed.  Therefore, it could be seen that the behaviour of repeatedly and continuously scolding the police officers and inciting people to obstruct the police in law enforcement could be supportive elements of the charge in the present case.

Intended to provoke others into a breach of the peace

33.  In respect of the appellant’s intention, it was said on his behalf that he had no intention to incite the people at the scene to any violent act but only to reason with the police; or he at the most incited others to support him to criticise the police and/or incited others to criticise the police together.  At trial, the appellant elected not to give evidence, which was of course his right to do so.  This, however, also meant the [appellant] had no evidence to reflect his state of mind, and the court had to draw inference from the objective evidence.

34.  The respondent submitted that the magistrate had analysed the evidence in the case in detail before holding that the appellant had provoked and incited discontent with the police among the people at the scene with intent at the material time.  She supported her analysis and conclusion with the following matters:

(a)  When the appellant charged at the cordon line, i.e. Incident 3A – Episode 2, he was aware of and noticed that what he said had drawn more people to come together, and that the people at the scene reacted and spoke in a negative manner to the police as a result.  However, under such circumstances, the appellant not only refused to listen to PW3’s advice and leave, but put out his hands to make a gesture of surrendering to PW3’s arrest and said, “Arrest me, the police are all rubbish, ask you to make arrest but you just don’t, do your own job now,” to challenge the police enforcement of law and insult them[19];

(b)  During the occurrence of Incident 3B, PW2 tried to understand the matter with the appellant and give him a chance to explain his acts and also persuade him.  However, the appellant chose to continue to speak loudly, raised and waved his arms at times and repeatedly asked PW2 if he had breached the law, and he also conversely said that he had not breached the law because of not being arrested, demanded PW2 to leave and even insulted the police by calling them rubbish[20];

(c)  When the appellant was taken inside the “boot-shaped part” of the cordoned area, he not only made gestures of talking over, looking at and operating the phone, but when facing the people in Zone C, he repeatedly moved with exaggerated gestures while simultaneously spoke loudly towards the people at the scene.  Obviously, at that moment, the appellant was trying to draw other people’s attention and not solely expressing discontent with the police[21].

35.  The appellant’s complaints had been properly dealt with by the magistrate at trial.  In short, the magistrate did not agree that the appellant had merely reasoned with the police at the material time, which was inconsistent with his actual behaviour.  Had the appellant merely reasoned with the police and expressed his discontent, he would not have put out his hands to make a gesture of surrendering to PW3’s arrest and insultingly called them rubbish afterwards.  There was no need to do so.  These were completely irrelevant to expressing his discontent with the police law enforcement at the scene.  In addition, had the appellant really only reasoned with the police, why would he had not expressed his dissatisfaction to PW2 when the latter tried to understand the matter with him, but instead repeatedly questioned PW2 if he had breached the law and said he would leave if there was no arrest?  Obviously, it was not the appellant’s intention to express discontent, but instead he tried to provoke the discontented mood against the police among the crowds, inciting them to act aggressively.

D.3.   My considerations

36.  I completely agree with the respondent’s submissions and arguments.  As cited by the respondent, Ribeiro PJ said in Chow Nok Hang that a person may provoke a breach of the peace without any violence or threat of violence on his part, and it suffices that the natural consequence of his conduct is violence from some third party[22].  Although the appellant said that the incident had lasted for one hour odd and no violence occurred, it is my view that the magistrate had given sufficient consideration to all relevant circumstances and what the appellant had said and done before convicting him of having behaved in a noisy or disorderly manner.  The appellant did provoke a breach of the peace with intent, and his disorderly behaviour and words were likely to cause a breach of the peace.  The magistrate’s verdict is completely sensible and reasonable, and there is no reason for this Court to intervene.  I do not agree with the appellant’s allegation that the magistrate just relied on the subjective feeling of the police officers at the scene.  She has made objective assessment.  Furthermore, the ordinance concerned is pre-emptive in nature, preventing the occurrence of any violent incident.

37.  This ground of appeal fails.

E.  Ground of appeal (2)

E.1.   Appellant’s submissions

38.  The appellant submitted that at trial the prosecution initially only relied on PW3’s testimony to prove the occurrence of Episode 2 of Incident 3A (which happened around 1640 hours according to PW3’s testimony) and placed no reliance on Episode 1 of Incident 3A.  Episode 1 (happened around 1632 to 1633 hours according to Clip P15) was brought out when the video footage was played during PW3’s cross-examination by the defence.  It was the defence’s stance at trial that only Episode 1, and not Episode 2 as described by PW3, had happened, because the police had subdued the male wearing a cap with force and used pepper spray under the Canal Road Flyover at the junction of Canal Road East and Hennessy Road.  The appellant challenged such action of the police and complained, which also led to PW3’s intervention and issue of warning to the appellant.  Although PW3 admitted that save and except 1657 hours which was the actual time of arrest, the timing of other events was only estimates, he did not agree that Episode 2 had not happened and even said that Episode 1 shown by P15 had happened before the Episode 2 described by him, and he on that day did not know about the occurrence of Episode 1[23].

39.  According to Clip P15, Episode 1 happened immediately after the police had subdued the male wearing a cap with force and used pepper spray.  What the appellant said in Episode 1 roughly was recorded in P15B[24]:

“Arbitrary use of force, the police use force arbitrarily.

I’m a district councillor. Now a district councillor is keeping you the police in surveillance, who use force arbitrarily …

How’s it have anything to do with you[?] Is the law breached, is the law breached, is the law breached[?] Now that you hit someone arbitrarily is a breach of law. I wear no mask, I do not breach the law. How’s it have anything to do with you[?] But now you are hitting someone arbitrarily!

… the police are observed to be hitting someone arbitrarily here!

Please stop your hands.”

40.  As to Episode 2, PW3’s testimony was the only evidence.  According to him, the appellant said as following, “Police, stop arbitrarily arresting citizens, attacking citizens and using pepper spray.  The police are all refuse and not human being.”[25]

41.  In Item 76 of P3A [26], when the appellant was under the police investigation within the cordoned area, he did explain his own behaviour, “I was there all along, and only said that pepper spray was being used arbitrarily there, and told them to stop.  What was the incitement[?]  Inciting the police to use pepper spray[?]”

42.  It was submitted that PW3’s version was inherently improbable with reference to the overall chronology.  If what PW3 said was correct, i.e. it was between 1632 and 1633 hours that the appellant uttered the above words in P15B roughly to the police officer after the police had subdued the male wearing a cap with force and used pepper spray; however, after a while, around 1640 hours, the appellant again became emotionally agitated, “put up a fuss” and complained against the police for “arbitrarily arresting the citizens, attacking the citizens and using pepper spray”.  Nevertheless, except using force and pepper spray between 1632 and 1633 hours, the police just did not use force or pepper spray again.  Why would he have suddenly become emotionally agitated and uttered the words in Episode 2 some time after the conclusion of Incident 1?  This was inherently improbable.  However, the magistrate failed to correctly consider that if PW3’s version was true (i.e. both Episodes 1 and 2 did happen), whether it would be inherently probable in the incident as a whole.  Instead of it, she only focused on PW3 and failed to notice that the occurrence of Episode 1 was not suspicious[27]. On the other hand, the magistrate considered that what the appellant had said under Item 76 (the magistrate seemed to have mistakenly referred to it as Item 71 in the Statement of Findings) of P3A was yet tested by cross-examination, and the wording in the complaint described above and that in P15B were different, and hence the excuse under Item 76 in P3A was not credible[28].  However, the appellant was not an audio recorder, and it was not surprising that he was not able to repeat what he had said before verbatim with 100% in accuracy, and there was no significant difference semantically because using pepper spray was by itself one kind of force.  As a whole, his reaction in Incident 1 was obviously a result of the police application of force in subduing the male wearing a cap (the clip(s) and screenshot(s) showed that the male wearing a cap was pulled by the police officer from the pavement down to the roadway and then subdued on the ground) and use of pepper spray because they absolutely aligned chronologically.  This was also inherently probable, but the magistrate failed to analyse it properly.

E.2.   Respondent’s response

43.  The respondent said that the appellant had already advanced such argument for this ground of appeal at trial.  Having considered PW3’s testimony as a whole and the circumstances shown by the footage of the scene, the magistrate was of the view that since the scene was noisy, and the direction and focus of PW3’s view were towards the people gathering at the scene, it was not surprising that PW3 did not see the appellant and did not notice the occurrence of Episode 1 of Incident 3A[29].

44.  The magistrate did consider the same argument which was also raised by the appellant at trial as well, namely the defence’s allegation that what PW3 said was inherently improbable with reference to the overall chronology.  In brief, it was the magistrate’s view that Clip P16 could not reflect that the appellant suddenly got emotionally agitated having calmed down for a few minutes after 1633 hours. In view of the factors such as the focus and angle of the filming of P16 and the quality of the sound recorded, the magistrate came to the view that although it was not recorded in Clip P16, it did not mean that the appellant had not spoken or not spoken loudly after 1633 hours[30].  Therefore, the appellant’s complaint that it was inherently improbable for him to get agitated suddenly out of the blue in several minutes after uttering the words in P15B was based on a false premise.  Since the appellant elected not to give evidence (which was of course his right), there was no evidence before the court to directly show whether he had or had not spoken within those few minutes, and the court could consider only the evidence adduced.

45.  In relation to the appellant’s complaint against the magistrate for rejecting his explanation, as the magistrate has pointed out, what the appellant said in Item 76 of P3A was not tested, and the magistrate was entitled to make a factual finding on the credibility of the said explanation.  The appellant argued that there was not much semantic difference between the words in P15B and those in Item 76, however, he had obviously alleged the police for “hitting someone arbitrarily” in P15B and even repeated this allegation thrice.  Had he uttered the words in P15B because of the police’s use of pepper spray, why would he have only complained in Item 76 that the police had used pepper spray arbitrarily with no mention at all of his previous allegation that the police had hit someone arbitrarily[31]?

46.  In any event, as pointed out by the magistrate, even if the words uttered by the appellant in P15B were related to the fact that the male with a cap was subdued by the police and the use of pepper spray, the utterance of such words at an earlier stage only reflected the manner in which the appellant challenged the police law enforcement, which was consistent with PW3’s allegation that the appellant shouted and scolded the police officers escorting the arrested persons on the bus lane[32].

E.3.   My considerations

47.  I fully agree with the respondent’s submissions and arguments.  The magistrate, as trier of the facts, enjoyed the advantage of listening to and watching how the witnesses (in particular PW3) gave evidence.  There was nothing wrong that she was satisfied with PW3’s testimony.  No “inherently improbability” as alleged by the appellant existed in PW3’s evidence.

48.  This ground of appeal fails.

E.4.   Conclusion on the conviction

49.  I find that the prosecution has proved beyond all reasonable doubt that the appellant has committed the offence as charged.

50.  The appeal against conviction is dismissed.

F.    Reasons for sentence

51.  This Court first set out the reasons for sentence of the magistrate in the following:

“54. Pursuant to the Ordinance, an offender upon conviction of the offence in this case is liable to a fine at level 2 and to imprisonment for 12 months.

55. There is no guideline for the sentence of this charge, but the essence of the Ordinance is on preventing any breach of the peace in society and protecting the order, safety and property of the public.

56. I find that the facts of this case are serious, of which the main points are set out as follows:

i. At the time of the offence, the defendant incited and provoked the discontent of the people at the scene with the police with intent. At that time he knew there were crowds dissatisfied with the police gathering at the scene and the vicinity, and that what he said and did cause more and more people to come together, and there were also crowds who echoed, decried, screamed, cursed and/or insulted the police with foul language, reflecting that their negative emotion against the police was provoked and incited by the defendant’s noisy and disorderly behavior, and as a result, the negative comments on the police got worse and the discontent escalated, and there was an imminent and real risk of using violence;

ii. The overall nature, content, target and mode of expression of the defendant’s noisy words and disorderly behavior, etc showed that such words and behaviour were not verbal agitation or behaviour venting his emotion;

iii. The defendant chose not to follow PC9917’s advice and warnings;

iv. The defendant knew very well that the circumstances in the vicinity of the scene before the incident was chaotic with tense atmosphere;

v. The police officers shoulder the important duty and responsibility of maintaining the overall order in society, and the court is obliged to protect them;

vi. The case has lasted for quite some time, even not including the episodes described by the prosecution witnesses but not shown in the footage, that is to say, while only the episodes seen in the footage were counted in, namely what the defendant said and did from around 16:47 hours to 17:01:17 hours, it lasted for ten minutes or so; but from 1640 hours, as PC9917 testified, until 17:01:17 hours, it was over 20 minutes. In addition, afterwards, the defendant’s words and acts still continued to cause influences to the crowds who gathered;

vii. The police officers maintained the order at various locations at the scene and in its vicinity;

viii. At the scene, apart from the crowds who gathered and the police officers, there were also reporters and passers-by. If the crowds who gathered at Zone C where the case happened had acted in a really violent way as a result of the defendant’s words and disorderly behaviour, it might likely have caused serious casualties (including getting reporters and innocent passers-by involved) and loss of property;

ix. The location where the case happened was a public place, and the defendant spoke and behaved in a noisy and disorder manner, and if the crowds who gathered at Zone C acted in a really violent way upon being provoked by his words and behaviour, it could be observed by the crowds who were dissatisfied with the police and gathered at various locations near the scene. As shown by the facts of the case, demands for releasing the arrestee(s) were made from Zones A and B, and the police had given repeated warnings to the crowds in Canal Road East, which, in my view, reflected that what happened at various locations, the disorderly behaviour and the circumstances in the vicinity of the scene could be seen by the crowds at other locations. This was consistent with the objective facts. In the vicinity of the scene, there were open pavements and roadways. Therefore, the crowds who were subject to the provocation and influence by what the defendant said and did were not limited to those who gathered at Zone C. As said above, there were police officers maintaining the public order at various locations in the vicinity of the scene. I find that among the crowds who gathered at various locations in the vicinity of the scene, some people were likely to be encouraged and bring the real and imminent risk of using violence to the police officers who were at various locations, which also increased the risk and extent of causing casualties and loss of property;

x. In other words, if there came any violent behaviour which breached the peace, it would definitely cause serious damage to the order at the scene and endanger the safety of the public and the police.

57. This case is distinguishable from the cases cited by the defence, and the court is required to consider the facts and pleas in mitigation in each case separately in sentencing.

58. In one of the authorities cited by the prosecution, Secretary for Justice v Law Man Chung[2020] 4 HKLRD 941, the charge involved therein is different from the one in this case.

59. Although the facts in the prosecution’s authority HKSAR v Ma Hei Yuk [2016] 1 HKLRD 1469 were different from those in this case, as can be seen from [paragraph 24] in the judgment, in this type of offences contrary to the Public Order Ordinance, the focus of the sentence is, in my view, on the influence brought and/or may be brought by the offender’s acts to the risk to public safety and order and its seriousness.

60. In respect of the facts in this case, it is my view that what the defendant said and did have caused to public safety and order the real and imminent risk of using violence, the degree of damage and harm, and negative influence likely to be caused thereby would be very serious. Although this case was different from Ma Hei Yuk which involved serious factors such as inflammable substance and glass bottles, the crowds subject to the provocation and influence of what the defendant said and did were, as stated above, not limited to those who gathered in Zone C, the crowds who could see the incidents in this case from various locations in the vicinity of the scene would also be subject to the influence. Even looking at Zone C alone, I am of the view that from the relevant evidence of the prosecution witnesses and what can be seen from the footage, at the material time, the number of people who were subject to what the defendant said and did was absolutely not insignificant. If anyone among them resorted to violence under such influence of the defendant, the degree of damage and harm caused to public safety and order would not differ much from those in Ma Hei Yuk. The fact that this case eventually did not involve any unfortunate matters such as casualties or loss of property was merely a matter of luck.

61. Taking this case as a whole, I think that a deterrent sentence is necessary, and an immediate imprisonment for 8 months is appropriate.

62. The defendant was convicted after trial and will not be given the discount for a guilty plea. Having considered that the defendant has a clear record and has served the community for quite some time, I will deal with it leniently by reducing 1 month from his term by discretion.

63.  Apart from that, I do not see any other factor for mitigation, and therefore he is sentenced to 7 months imprisonment.”

F.1.   Appellant’s submissions

Wrong in principle

52.  The appellant said that the magistrate found the present case serious.  However, in fact, in sub-paragraph (i) (the intention to provoke the people at the scene to be discontented with the police led to actual violence), sub-paragraph (ii) (the appellant’s behaviour consisted of not only verbal provocation and venting of emotion) only explained how his behaviour constituted the offence, and should not be regarded as an aggravating factor itself, and sub-paragraph (iv) (the appellant’s knowledge of the circumstances at the scene) was the premise on which the intent of “provoking” a breach of the peace was constituted, and was therefore also an element of the charge only and should not be regarded as an aggravating factor (in HKSAR v Chan Cheung Oi[33]: regarding the element constituting “dangerous driving” as an aggravating factor is a double counting of punishment).

53.  It was submitted for the appellant that the gravamen of the charge in the present case was preventing the breach of public order, and on analysis of the elements of the charge, a more accurate expression would be preventing the occurrence of actual violence, and therefore the elements of the charge required “the intent to provoke a breach of the peace” or “being likely to cause a breach of the peace”.

54.  It was contended that the magistrate was wrong to think that the present case and HKSAR v Ma Hei Yuk[34] “did not differ much”.  In that case, at an occupied area of the Occupy Movement, the defendant threw two bottles of thinner onto the ground and thereby smashed them, and then he further took out another glass bottle and a lighter, and even said “let’s go to hell together”, resulted in being assaulted by 3 or 4 supporters of the Occupy Movement and got injured.  The defendant, who was found to have odour of alcohol, said under caution, “I found the people occupying Central too annoying.  I just wanted to scare them.”  Obviously, that defendant’s behaviour was very dangerous.  Thinner was highly inflammable and volatile.  In case fire was started, dreadful consequence could have been resulted, and it would definitely cause serious casualties and loss of property.  The glass bottles in the case even looked similar to petrol bombs.  In addition, one of the elements of the charge was the intent to provoke or likely to cause a breach of the peace “by other people”.  This actually happened in that case because the defendant was assaulted, by which the gravamen of the charge was established fully.  It was understandable that the Court of First Instance adopted 9 months imprisonment as the starting point.

55.  On the contrary, in the present case, no actual violence occurred nor did the appellant directly ask or encourage others to use violence or threaten to use violence, and no inflammable substance was involved.  It differed quite a lot from Ma Hei Yuk.

Manifestly excessive

56.  It was submitted that the sentence imposed by the magistrate was manifestly excessive and far more than the sentences imposed in the precedents.  The appellant referred to the cases below, indicating that some also involved actual violent behaviour leading to casualties or damage of property, and the gravamen established was much more serious than that in the present case:

(a)  HKSAR v Leung Kwok Hung[35]

i.   Facts:  The defendant, who was then a Legislative Councillor, in the course of an open forum on filling vacancies of the Legislative Council, barged into the venue of the forum with other protestors.  They went on to the stage, chanted slogans through the microphone and screamed, swept things off the table, threw and scattered pieces of paper around and made speeches, had physical confrontation with the security staff, pounded at the doors and pulled a door handle, damaged a wooden door and a glass door at the venue and so on, making the venue chaotic.

ii.  Outcome: The defendant was convicted of two counts of the offence of criminal damage and one count of the offence under section 17B(2) of the Public Order Ordinance, and was sentenced to imprisonment for 2 months in total.  The defendant had previous similar records.  His appeals against sentence were allowed and the sentences were reduced to four weeks’ imprisonment.

(b)  HKSAR v Chow Nok Hang[36]

i.   Facts:       During a prize presentation ceremony of a charity event organized by the MTR Corporation, when a guest speaker was giving speech, the defendant chanted a slogan and then rushed on to the left side of the stage and scattered paper offerings.  When the first defendant was being taken away by the staff, he continued to shout out the slogan loudly.  Just then, the second defendant rushed onto the stage and ran towards the Secretary [for Transport and Housing], shouted out the slogan loudly through the microphone.  Two staff members tried to stop the defendants and sustained injuries.

ii.  Outcome: the Court of First Instance convicted the two defendants of the offence under section 17B(1) of the Public Order Ordinance, who were fined $2,000 and $3,000 respectively.  (Note: the Court of Final Appeal finally quashed the convictions of the two defendants).

(c)  HKSAR v Fung Jing-en[37]

i.   Facts:       The first defendant was the President of the Student Union of the University of Hong Kong at the material time.  At the conclusion of a meeting of the Council of the University, when the meeting attendees were leaving, he shouted out near Professor Arthur Li, “Don’t let him go! Don’t let Arthur Li go! Kill him! Kill him!”  After that, two unknown persons pulled Professor Li.  After that, the first defendant got to the main entrance to the building and demanded entry.  As the security guard opened the door slightly, the first defendant turned and shouted out to the protestors behind him, “Does anyone want to go in to find Arthur Li?”  The first defendant also tried to pull open the glass door and used his left foot to prevent the security guards from closing it.  Two protestors went up to help the first defendant pull the door, and after that, more protestors came up to help in pulling the door and shouted “1, 2, 3 - Pull!” at the same time, thereby the door was damaged.

ii.  Outcome:  The first defendant was convicted of the offence under section 17B(2) of the Public Order Ordinance and criminal damage, and was ordered to serve community service for 240 hours.

(d)  HKSAR v Pearce [38]

i.   Facts:       The defendant was the leader of a small political body, and was involved in two incidents.  In the first incident, the defendant in a horse costume ran onto the track of the racecourse and demanded democracy, leading to a delay of the race.  In the second incident, he, who was dressed in a Spiderman costume, climbed onto the external wall of the 1/F of a building in Queen’s Road at noon time and protested against the June 4 Incident, causing obstruction to the traffic for 2 hours and also affecting the shops and pedestrians nearby.

ii.  Outcome:  For the first incident, the defendant was convicted of public nuisance and the offence under section 17B(1) of the Public Order Ordinance, but his appeal was allowed. The Court of First Instance commented that if the convictions were upheld, in principle, the 1 month’s imprisonment were unduly harsh although it was noted they were to be served concurrently and were suspended, and that a substantial fine or a community service order was adequate.  As to the second incident, the defendant’s conviction of public nuisance was upheld, with the appeal against sentence allowed to the extent that the sentence of 21 days’ imprisonment remained unchanged but be suspended for a period of 18 months

(e)   HKSAR v Chiu Ka Man (transliteration of趙家文)[39]

i.   Facts:      During a police raid against unlawful gambling, the defendant insulted the police officers in execution of duty with abusive language and even called to tell his friends to come to the scene to support him.

ii.  Outcome: The defendant pleaded guilty to the offence under section 17B(2) of the Public Order Ordinance.  Although the defendant had previous record(s), the sentence of four months’ imprisonment was manifestly excessive and was substituted with one month’s imprisonment, suspended for 12 months.

57.  The appellant contended that the starting point adopted by the magistrate was also higher than the sentence imposed in even more serious cases of unlawful assembly.  In Secretary for Justice v Chung Ka Ho[40], on Halloween in 2019, around 10:30 pm, 400 to 500 protestors assembled at Lyndhurst Terrace, participating in an unauthorized assembly, and blockaded the roadway.  Most of the protestors were dressed in dark colours and had their faces covered with masks or scarves.  They raised pre-printed slogans, and kept on making hand gestures, shouting slogans, scolding the police with abusive language and projecting laser beams at them.  Some protestors even blocked the roadway with miscellaneous items and objects.  The respondent picked up two sandbags from the roadside and threw them to the middle of the roadway, which was a few metres in front of the protesting crowd.  The Court of Appeal considered that the case happened on a special day at a high risk location, but took a starting point of 6 months only.

F.2.   Respondent’s submissions

58.  The respondent said that the maximum sentence for the charge in the present case was 12 months imprisonment, and there was no guideline for the sentence.  It was clear that the gravamen of the offence in the case was preventing the peace in society from being breached and going worse, for example, passing sentence in respect of the charge in the present case before any unlawful assembly or even riot actually took place.  The only main difference between the charge in the present case and unlawful assembly was that the former had no requirement for a gathering of three persons.

59.  The respondent said that the magistrate was entitled to consider the appropriate sentence by taking into account the gravity of the case, including the circumstances in society at that time (the present case happened when the social events relapsed after a slight decline of the pandemic severity, and the work on the Hong Kong National Security Law was said to have commenced by the State), the persistence of the appellant’s behaviour (the appellant definitely did not act out of character but repeated his acts continuously), and the real risk of having a breach of the peace at the scene (there were a lot of people who were antagonistic to the police at the scene).

60.  The respondent said that apart from considering Ma Hei Yuk on the principle as correctly pointed out by the magistrate, the court might also take into account Secretary for Justice v Law Man Chung[41].  At the stage of sentencing after trial in the case, the prosecution also submitted Law Man Chung to the magistrate, but she considered that the charges were different, nevertheless, the sentence imposed by the magistrate was in line with the principle affirmed by the Court of Appeal in the case, namely in passing sentence for whatever offence, the court was required to consider all facts of the case and determine the defendant’s culpability based on the overall circumstances and various related details.

61.  The appellant presently relied on making comparison with other cases involving similar charges, and many of them had been submitted for the magistrate’s consideration.  The facts of many of these cases were not comparable to the present case in terms of seriousness.  In short, the respondent noted that the charges in these precedents did not, as in the present case, happen against a background involving a long duration social event consisting of violent and unlawful elements, with a large scale demonstration actually proceeding at the scene, and it was under such circumstances that the appellant deliberately challenged the police with the intent to provoke a breach of the peace, whereby in fact provocation of a breach of the peace was likely to be resulted.  The facts involved in the present case were very serious indeed and, as indicated by the magistrate, similar to those in Ma Hei Yuk (in which the appellant threw two bottles of thinner on the ground among the crowds of supporters of the Occupy Movement in Mongkok, followed by taking out another bottle of thinner and a lighter[)], and after appeal, the court considered 9 months’ imprisonment as the appropriate starting point.  Although the present case did not involve any inflammable substance such as thinner and lighter, in comparison, the appellant here encouraged and was supported by a large number of people at the scene.  By adopting 8 months’ imprisonment as the starting point, the magistrate did properly reflect the difference between the two cases.

F.3.   My considerations

62.  There is no guideline for the sentence of the charge in the present case.  The court has to consider all the circumstances in order to impose a proper sentence. The circumstances in each case are different, and other precedents may not be of much help in the consideration of the sentence in the present case.

63.  The elements of the charge are that a person at a public place behaved in a noisy or disorderly manner with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused.

64.  What did that defendant say and do?  What were all the circumstances at the material time?  How did he provoke others to breach the peace with intent?  Or how was his behaviour likely to cause a breach of the peace[?]  These are absolutely what the court has to consider in imposing the sentence.  Therefore, I do not agree with the appellant that the magistrate was wrong in principle in sentencing.

65.  Although I fully agree with the seriousness in the facts of the present case as pointed out by the magistrate, in my view, under all the circumstances of this case, a starting point of 8 months’ imprisonment is manifestly excessive.  I think that an appropriate starting point is 6 months.

66.  The starting pointing in sentencing is the sentence which a person with a clear record should receive after trial.  The appellant had no criminal record, but no further discount should be given for it.

67.  However, as the magistrate has correctly pointed out and considered, the appellant has served the community for a long time, and he can be said to have positive good character in this regard, for which I think that he may have a reduction of one month.

F.4.   Conclusion of appeal against sentence

68.  In the light of the above reasons, I allow the appellant’s appeal against sentence with the sentence of 7 months’ imprisonment set aside and substituted with 5 months’ imprisonment.

Translated by the Court Language Section of the Judiciary and vetted by Mr Justin Yuen, solicitor.

[1]     Page 6 in the Appeal Bundle

[2]     (2013) 16 HKCFAR 837, paragraph 79 of the judgment

[3]     See paragraphs 31 to 33 of the judgment

[4]     [1973-1976] HKC 346, see page 348H-I of the judgment

[5]     See paragraph 4 of the judgment

[6]     Page 264 of the Appeal Bundle

[7]     Paragraph 37vix of the Statement of Findings

[8]     Paragraph 37xx of the Statement of Findings

[9]     Paragraph 37xvi of the Statement of Findings

[10]   Paragraph 37xviii of the Statement of Findings

[11]   Paragraphs 37xviii to 37xxi, 37xxiv, 37xxx and 37xxxii of the Statement of Findings

[12]   Paragraph 37xxx of the Statement of Findings

[13]   Paragraph 37xx of the Statement of Findings

[14]   [2022] HKCFI 1950

[15]   See paragraph 79 of the judgment, and the original text reads: “79．However, a person may provoke a breach of the peace without any violence or threat of violence on his part: “... it suffices that his conduct is such that the natural consequence of it is violence from some third party”.  That third party need not be the person provoked or a by-stander, it could, for instance, be a member of the provoker’s group.  The actual or feared harm must be unlawful and, where the harm is anticipated, there must be a real risk and not the mere possibility of such harm.  Moreover, the anticipated harm must be imminent.”

[16]   Paragraph 37xxiii of the Statement of Findings

[17]   Paragraph 37xxxiv of the Statement of Findings

[18]   [2022] HKCFI 2609

[19]   Paragraph 37xxi of the Statement of Findings

[20]   Paragraph 37xxiii of the Statement of Findings

[21]   Paragraphs 37xxv to xxviii of the Statement of Findings

[22]   See paragraph 79 of the judgment

[23]   Paragraphs 143 to 147 of the Gist of evidence, at pages 436 to 438 of the Appeal Bundle

[24]   Page 283 of the Appeal Bundle

[25]   Paragraph 123 of the Gist of Evidence, at page 433 of the Appeal Bundle

[26]   Page 189 of the Appeal Bundle

[27]   Paragraphs 37i to 37vi of the Statement of Findings

[28]   Paragraph 37xi of the Statement of Findings

[29]   Paragraphs 37i to 37iv of the Statement of Findings

[30]   Paragraph 37viii of the Statement of Findings

[31]   Paragraph 37xi of the Statement of Findings

[32]   Paragraph 37x of the Statement of Findings

[33]   [2017] 2 HKLRD 448

[34]   [2016] 1 HKLRD 1477

[35]   [2014] 5 HKLRD 683

[36]   [2013] 1 HKLRD 1008

[37]   ESCC 2357/2016

[38]   [2006] 3 HKC 105

[39]   HCMA 89/2003

[40]   [2021] 2 HKLRD 1354

[41]   [2002] 4 HKLRD 941