SECRETARY FOR JUSTICE v. CHAU WAN YING

HCMP 774/2015

HCMP 776/2015
HCMP 778/2015
HCMP 780/2015
HCMP 781/2015
HCMP 783/2015
HCMP 784/2015
HCMP 787/2015
HCMP 788/2015
HCMP 789/2015
HCMP 791/2015
HCMP 792/2015
HCMP 793/2015
HCMP 795/2015
HCMP 796/2015
HCMP 798/2015

(Heard together)

[2018] HKCFI 77

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NOs 774, 776, 778, 780,

781, 783, 784, 787, 788, 789, 791, 792, 793, 795, 796, 798 OF 2015

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REASONS FOR SENTENCE

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1.  I deal first with all those who have admitted their liability.

HCMP 774/2015 Chau Wan Ying

2.  In Ms Chau’s case, video footage depicted her presence in the Area from about 10:10 am to 11:40 am.  She was seen standing behind the police check line near the junction of Argyle Street and Nathan Road and the junction of Shantung Street and Nathan Road.  She was warned by police officers to leave but ignored the warning and was eventually arrested by the police. Ms Chau was not involved in the organisation of the protest on the day in question.

3.  Ms Chau was 20 at the time and grew up in a single‑parent family. At present, she is pursuing an undergraduate study.  A letter of her former teacher was produced.  According to her teacher, despite the fact that she came from a modest family, Ms Chau had been a school prefect throughout.  In order to alleviate her mother’s financial burden and supplement the family’s income, Ms Chau has since 2016 been providing private tuitions to school children and managed to earn $2,000 each month.

4.  It was submitted that Ms Chau did not put up any resistance during her arrest.  She was not affiliated to any political party and is now deeply worried that a term of imprisonment might affect her studies and future.

5.  It is most unfortunate that Ms Chau did not pay heed to all the warnings given on that day.  However, bearing in mind the limited role played by Ms Chau and her family’s financial situation, I believe an exception can be made in her case.  In line with the others who have admitted their liability, Ms Chau will be given an imprisonment term of one month but suspended for 12 months with no additional financial penalty.

HCMP 776/2015 Chu Wai Lun

HCMP 787/2015 Cheung Kai Hong

HCMP 792/2015 Choi Tat Shing

6.  In respect of Mr Chu, Mr Cheung and Mr Choi, video footage depicted their presence in the Area despite numerous warnings being given.  None of them were involved in the organisation of the protest on the day in question, nor had they taken any active part in it.  No violence was used by any of the three respondents either.

7.  Mr Chu was 21 at the time.  After completing his secondary school, he has been working as a cook.  At present, he earns $6,500 a month. Mr Chu was not affiliated to any political party.

8.  Mr Cheung was 27 and a computer maintenance technician at the time.  At present, he only manages to work on part‑time basis with an hourly rate of $70.  Mr Cheung was not affiliated to any political party.

9.  Mr Choi was 18 at the time and was educated up to form 2.  At present he works as a barista at an hourly rate of $36.  He is a keen soccer player and has been recruited into the Hong Kong Premier League Reserve Division and wishes to make a career in football.  He was not affiliated to any political party.

10.  Given their limited roles, each of them will be given an imprisonment term of one month but suspended for 12 months and a fine of $10,000.  They all have 3 months to pay and in default they will go to prison for one month.

HCMP 793/2015 Szeto Tze Long Jason

11.  In Mr Szeto’s case, he was found not only present in the Area but also holding one loudhailer so that the others such as Mr Wong Chi Fung and Mr Wong Ho Ming could make a broadcast to the crowd.  Mr Szeto was 20 and a student at the time.  In 2014, he was the Secretary General (External Affairs) of the Student Union of the Chinese University of Hong Kong.  Frustrated by the lack of progress in the democratic process, he took part in activities organised by the Hong Kong Federation of Students.  It was his belief that civil disobedience was justified in this case.  He was not affiliated to any political party.

12.  At present, he works for one Legislative Councilor earning $14,000 a month.  It was submitted that in anticipation of violence being resorted by both the protestors and the police, Mr Szeto decided to observe the clearance operation.  He himself did not challenge the police, the Bailiffs and the Plaintiffs’ solicitors and their agents.

13.  Video evidence showed that his role on that day did not confine to mere observation. Mr Szeto was seen holding a loudhailer and assisting others to make broadcast to the crowd, yet that was the full extent of his involvement.  In sentencing him, I take all that into account.

14.  In view of his involvement, Mr Szeto will be sentenced to 6 weeks’ imprisonment but suspended for 18 months.  In addition, he will be fined $10,000.  He has 3 months to pay the fine and in default he will go to prison for 6 weeks.

HCMP 781/2015 Shum Lester

15.  In Mr Shum’s case, video evidence depicted his presence in the Area for an extended period of time.  He stood at the forefront of the police check line together with Mr Wong Chi Fung and Mr Wong Ho Ming almost all the time.

16.  Mr Shum was 19 at the time, a student of the Chinese University of Hong Kong.  He was also the Vice President of the Student Union of the Chinese University of Hong Kong and the Secretary General of the Federation of Students.  He however was not affiliated to any political party.

17.  It was submitted that Mr Shum went to the Area on the day firstly to clarify matters which had been troubling him, namely whether protestors amounted to obstacles and the identity of the Plaintiffs’ agents, and secondly to ensure the safety of the protestors in their retreat.

18.  It was submitted that Mr Shum had all along respected the court’s decision on granting the injunction and that his grievance was centred on the unwillingness of the government to respond positively to the demand of genuine universal suffrage.  It was further submitted that although Mr Shum’s presence might have caused obstruction to the Bailiffs and the Plaintiffs’ agents, he was not violent in his activities and had not put up any resistance during his arrest.  He went there simply as a representative of the Hong Kong Federation of Students to observe the clearance and that it had never been his intention to incite other to resort to physical violence.  On the contrary, he had been asking protestors not to swear at the police and the police to allow the press to continue their reporting and filming.  Most of the time, Mr Shum was simply standing next to the two Mr Wongs, paying attention to their questions.

19.  Having viewed the video evidence carefully, I accept what had been said on his behalf.  Mr Shum did not himself challenge the Bailiffs and the Plaintiffs’ agents.  He stood most of the time quietly and passively next to the two Mr Wongs observing the clearance operation.  Apart from standing at the forefront of the police check line, he practically did very little during the clearance operation.

20.  Although he was a leading student figure during the “Occupy Movement”, his acts and movements on that day were not much different from any other protestors.  The present contempt proceedings were brought against him specifically for his acts and movements on the 26th November 2014.  Bearing all those in mind, Mr Shum will be sentenced to one month’s imprisonment but suspended for 12 months and fined $10,000.  He has 3 months to pay the fine and in default will go to prison for one month.

HCMP 795/2015 Wong Chi Fung

21.  In the case of Mr Wong Chi Fung, at the request of Mr Lok, I adjourned his sentence on the last hearing pending further written submission as to the applicability of S 109A of the Criminal Procedure Ordinance.

22.  S 109A provides that no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate.

23.  Mr Lok accepted that in the English case of Morris and Others v Crown Office [1970] 2 QB 114, the English court had held that S 17(2) of the Criminal Justice Act 1948 (the wordings of which were almost identical to S 109A) had no place in criminal contempt proceedings, it was nevertheless submitted that the situation in Hong Kong was different from England in that Article 6(3) and 11(3) of the Hong Kong Bill of Rights were both applicable in Hong Kong.

24.  Further it was argued that the wordings were broad enough to encompass those persons of or over 16 and under 21 years of age who might be sentenced to imprisonment for criminal contempt which was not an excepted offence.

25.  It was argued primarily by Mr Lok that S 109A of the Criminal Procedure Ordinance was applicable in Mr Wong’s case and also to other respondents who were under the age of 21.  It was contended that in sentencing a young offender, the court should heed the concern and intention of the legislative in that a young person should only be sentenced to imprisonment when it is absolutely necessary.

26.  Article 6(3) of the Hong Kong Bill of Rights provides that the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation and the juvenile offenders should be segregated from adults and be accorded treatment appropriate to their age and legal status.  On a careful reading, it seems clear that Article 6(3) does not in any way place any restriction on the sentencing power of a judge in dealing with juvenile offenders.  Its primary objective is aimed at our correctional service system.  I fail to see the connection.

27.  Article 11(3) of the Hong Kong Bill of Rights provides that in the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.  Again, the primarily objective of Article 11(3) is aimed at establishing a procedure in the dealing of juvenile offenders, such as the establishment of a juvenile court and the different forms of training offered by the Social Welfare Department or Correctional Services Department in promoting their rehabilitation.  Hong Kong does provide such a procedure and system.  I do not see the connection either.

28.  After careful consideration of all the authorities, I am of the view that S 109A does not apply in the present proceedings.  S 2 of the Criminal Procedure Ordinance defines “court” as “the Court of First Instance acting in the exercise of its criminal jurisdiction.”  The definition is clear. The Court of Appeal in the Secretary for Justice v Cheung Kai Yin [2016] 4 HKLRD 367 (CA) has decided that the Court of First Instance is not exercising its criminal jurisdiction in respect of the present contempt proceedings.  The decision of the Court of Appeal is binding on this court.  Paragraph 33 of the judgment provides as follow:

“33. Adopting the approach in Re Kennedy (No 3), since the present sets of contempt proceedings stemmed from the execution of injunction orders granted by Au J in civil proceedings, they remain civil causes or matters notwithstanding that they are proceedings for criminal contempt. The appeals brought against the orders of Chow J are also appeals in civil causes or matters.”

As such, S 109A has no place in the present proceedings.

29.  Returning to Mr Wong’s case, video evidence depicted his presence from 8:51 am to 10:20 am.  During the clearance operation, Mr Wong repeatedly challenged the validity of the injunction order by demanding the Plaintiffs’ solicitors to explain who had been authorized to clear the obstacles, the identity of the Plaintiffs’ agents and their power in dismantling the barricades.  His challenges to the Bailiffs and the Plaintiffs’ solicitors and their agents led to vehement exchange of abusive language between the protestors and the Plaintiffs’ agents, undoubtedly some were taxi drivers.

30.  Every citizen of Hong Kong has the right to publicly protest against anything which displeases him and publicly proclaim his views provided that he does not infringe the right of others.  These respondents rightly or wrongly thought that they had a grievance and as such they were entitled to protest.  By 26 November 2014, it became apparent that their continued unlawful occupation of roads and streets especially in Mong Kok would not alter anything and would affect no one except ordinary citizens of Hong Kong in going about their daily routine.  When the livelihood of our ordinary citizens had been adversely affected, such as the livelihood of the taxi and minibus drivers who had aged parents to support, mortgage and rent to pay, children to go to school, the court had to intervene and protect not just the right of the protestors but also the right to live of the vast majority of the people.  In the turmoil of any political movement, it is unfortunately always the poorest and the working class who suffer the most.

31.  Although Mr Wong stayed in the Area for just one and a half hours, his involvement in obstructing the clearance operation was deep and extensive.  He played a leading role on that day.  In view of his overall involvement, I am of the view that the only appropriate punishment for Mr Wong will be one of immediate imprisonment.  For his part, Mr Wong will be sentenced to 3 months’ imprisonment, consecutive to the imprisonment term he is now appealing before the Court of Final Appeal as they are two separate and distinct incidents.

32.  I now turn to those respondents who are found guilty after trial.

HCMP 778/2015 Chu Pui Yan

HCMP 780/2015 Kwok Yeung Yuk

HCMP 788/2015 Kwan Siu Wang

HCMP 789/2015 Hung Cheuk Lun

HCMP 791/2015 Fung Kai Hei

HCMP 796/2015 Mak Ying Sheung

33.  In Ms Chu’s case, she was 23 at the time of her arrest.  She works as an account clerk and earns $20,000 each month.  Ms Chu was not affiliated to any political party.  Letters from her friends and family had been produced to inform the court the kindness of and the stress faced by Ms Chu for the past 3 years.  These people speak highly of her and her struggle to lead a normal life in the face of the present proceedings.  They urge the court to impose a lenient sentence.

34.  Mr Kwok was 19 at the time of his arrest.  He is now a student studying nursing in his fourth year at the university and hopes to become a nurse.  Mr Kwok was not affiliated to any political party.  A large number of mitigating letters had been produced.  Judging from those letters written by his tutors and professors at his university, it is apparent that Mr Kwok has spent his past few years, after the incident, focusing on acquiring all the necessary nursing skills and medical knowledge which enable him to become a better and more caring professional.  He has excelled in his studies.  In addition, he is also commended by one nursing ward manager for his dedication in looking after patients.  These people have no doubt that Mr Kwok will turn out to be a useful citizen contributing his part in building a better Hong Kong.

35.  Mr Kwan was 23 at the time of his arrest.  He works as a freelance photographer and designer and earns around $11,000 per month.  It was submitted that Mr Kwan had played a very passive role during the clearance operation. He did not commit any violent act, nor did he incite others to do so.  He was most of the time just standing next to the two Mr Wongs and was co‑operative with the police during his arrest.

36.  Mr Hung was 24 at the time of his arrest.  He works as a baggage handler at the airport and earns $11,000 each month.  Mr Hung was not affiliated to any political party.  Again, mitigating letters from his superior and sister had been produced.  They too urge for a non‑custodial sentence.

37.  Mr Fung was 30 at the time of his arrest.  He works as a waiter in a hotel and earns $17,000 per month.  He was not affiliated to any political party.  He is his aged parents’ sole financial support.  It was submitted that Mr Fung was most of the time standing or walking around in the Area simply to show his support for the students.  Again he did not commit any violent act.  He was co‑operative with the police during his arrest.

38.  Ms Mak was 33 at the time of her arrest.  She held a bachelor degree in engineering and two master degrees.  She had been working as a project manager in the toys industry for the past 8 years.  Ms Mak was not affiliated to any political party.  Due to certain dramatic change in family circumstances, Ms Mak has left her employment and now devotes all her time and energy in looking after her aged parents and her mother‑in‑law.

39.  It was submitted that Ms Mak did not commit any violent act and was most of her time simply standing in the Area.  She was co‑operative with the police during her arrest.  Mitigating letters from her teachers and colleagues and certificate of appreciation from voluntary agencies had been produced.  All these people speak highly of Ms Mak.

40.  In respect of the above respondents, their movements and actions had been described in details in my judgment dated 13 October 2017 and I shall not repeat them.  Suffice to say that they were all found to be present in the Area for an extended period of time and that they had participated in the protest.  Evidence produced in this court showed that none of them was involved in the organisation of the protest even though some might be affiliated to political party.  None of them had taken an active part in the protest.

41.  These six respondents were found guilty after trial.  They do not enjoy the benefit as those who had decided not to contest the case.  It is therefore ordered that, except Mr Kwok and Ms Mak, each will be fined $15,000 and given an imprisonment term of 6 weeks but suspended for 12 months.  They all have 3 months to pay the fine.  In default of the payment, they will go to prison for 6 weeks.  In the case of Mr Kwok and Ms Mak, because of their individual financial and personal circumstances, they will be given an imprisonment term of 6 weeks but suspended for 12 months with no additional financial penalty.

HCMP 783/2015 Chiu Chi Sum

HCMP 784/2015 Chan Po Ying

42.  In respect of both Mr Chiu and Ms Chan, video footage depicted them assisting others in making broadcast to the crowd.  Their involvement was limited to that extent.  To put it simply, they were not mere protestors.

43.  Video evidence however showed that both Mr Chiu and Ms Chan at no stage resorted to any violent behavior or the use of any abusive language.  As the police check line advanced towards the direction of Tsim Sha Tsui, they were retreating and reacting passively.

44.  Mr Chiu was 65 at the time of his arrest and works as a maintenance worker earning $12,000 per month.  Ms Chan was 58 at the time of her arrest and works as a policy researcher earning $12,000 per month.  In one hand‑written letter, Ms Chan explained in length her motive behind her participation. I understand it but express no view on that as the court is not the appropriate forum in engaging political debate.

45.  As both of them were found guilty after trial, each will be fined $15,000 and sentenced to 2 months’ imprisonment but suspended for 18 months. They have 3 months to pay the fine.  In default, they will go to prison for 2 months.

HCMP 798/2015 Wong Ho Ming

46.  In Mr Wong Ho Ming’s case, video evidence depicted his presence from 8:44 am to 10:18 am.  His acts and movements during the clearance operation were similar to those of Mr Wong Chi Fung.  He constantly challenged the validity of the injunction order, the identity of the Plaintiffs’ agents, and queried whether human being amounted to obstacles.  He mocked at the Plaintiffs’ solicitors and their agents with the intention of inciting the protesting crowd to continue their defiance, which resulted in hatred between the two groups.

47.  Mr Wong was 26 at the time of his arrest.  After graduation in 2011, he has been working as a community organiser earning $10,000 each month. Mr Wong played a significant and active role in obstructing the Bailiffs and the Plaintiffs’ solicitors and their agents during the clearance operation on the material day.  Given his deep and extensive involvement during the clearance operation and that he was found guilty after trial, I am of the view that the appropriate sentence in his case will be one of immediate imprisonment.  He is ordered to serve a term of 4 months and 15 days’ imprisonment.

Costs

48.  The respondents do pay to the applicant the costs of and occasioned by these proceedings including all costs reserved on an indemnity basis, with certificate for 3 counsel.  The respondents’ own costs be taxed in accordance with Legal Aid Regulations.

Mr Victor Dawes, SC leading Mr Jin Pao and Mr Derek Chan, instructed by Department of Justice, for the applicant.

Mr Lawrence Lok, SC leading Miss Yu Cheuk Wing, Christine, instructed by M/s Ho, Tse, Wai & Partners assigned by DLA, for respondents in HCMP 774, 776, 778, 780, 781, 787, 789, 792, 793 and 795/2015.

Mr Hectar Pun, SC leading Mr Deng, Jundi Earl, instructed by M/s JCC Cheung & Co assigned by DLA, for respondents in HCMP 783, 784, 788, 791, 796 and 798/2015.