HKSAR v. LAI CHEE YING AND OTHERS

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

[2021] HKDC 1547

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

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

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REASONS FOR VERDICT

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1.  This trial arises from a consolidated case that involved 20 defendants. 17 defendants pleaded guilty before trial. The 4^th, 13^th and 19^th defendants proceeded to trial.

2.  The 4^th and 13^th defendants face Charge 1, incitement to knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221.

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

4.  The 13^th and 19^th defendants face Charge 3, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the Public Order Ordinance.

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

6.  Charge 2, holding an unauthorised assembly only involved the 1^st defendant, Mr Lee Cheuk Yan who pleaded guilty to this Charge as well as Charges 1 and 3 before trial.

Background

7.  For many years now the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, “Hong Kong Alliance” has submitted a notification to the Police to hold a public meeting in Victoria Park on 4^th June each year. On 23 April 2020, the 3^rd defendant, Mr. TSOI Yiu Cheong Richard on behalf of the Hong Kong Alliance submitted a similar notification to the Police. The purpose of the public meeting was again to “mourn the anniversary of the June 4^th Incident” with an estimated number of participants between 50,000 and 100,000.

8.  There was a liaison meeting between the Police and the representatives of Hong Kong Alliance including several defendants. The Department of Health were also consulted, by memo from the Police, exhibit P50, and advised in writing against holding any mass gatherings on 4 June 2020 in view of the coronavirus pandemic, exhibit P3.

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

10.  Despite the prohibition, the prosecution alleges that on 4 June 2020 members of Hong Kong Alliance and others including the 4^th and 13^th defendants, incited others to take part in what would be an unauthorised assembly relating to the June 4^th Incident. By 8pm that night there were approximately 20,000 people including the 13^th and 19^th defendants gathered on the football pitches inside Victoria Park which were originally closed off to the public due to COVID-19.

11.  Despite the prohibition, the Police did not take any enforcement action on the day in Victoria Park nor make their presence known. There were Police outside Victoria Park in Causeway Bay but again they took no enforcement action during the material time. The decision was made not to take any enforcement action to avoid any conflict arising between the Police and members of the public. During the afternoon, several roads near Victoria Park had to be closed off to traffic for safety reasons and because of the obstruction caused by the number of people present.

The Issues

12.  The issues raised include whether or not the defendants incited other persons unknown to take part in an unauthorised assembly and whether there was an unauthorised assembly that evening. It was submitted that the people who were present in Victoria Park were there for their own personal reasons and intentions; not convened or organised by the Hong Kong Alliance.

13.  There are constitutional challenges by all the defendants on a systemic level as well as an operational level. They will come into play if I find the prosecution has proved the Charges beyond reasonable doubt.

14.  The defence submits these offences should not carry a criminal sanction and/or the maximum sentence of 5 years that can be imposed is too severe to be proportional and constitutional. The defence submits that the sole legitimate aim for imposing criminal sanctions is to ensure the compliance with the notification system and therefore, the restrictions arising from section 17A (3) are not rationally connected with or are disproportionate to the legitimate aim if it were to be subjected to a 4-step proportionality test.

15.  On an operational level, the defendants submit that they should not have been arrested later nor prosecuted, subjected to a trial and possibly face a conviction for what turned out to be a peaceful public meeting.

16.  The 4^th defendant submits that the decision of the Commissioner of Police to prohibit the public meeting can be challenged by him during the trial and it is submitted that the prohibition of the meeting was disproportionate; a constitutional challenge on an operational level.

The Prosecution’s Case

17.  It is the prosecution’s case that the Commissioner of Police took into account the advice of experts, the Department of Health. In view of the COVID-19 pandemic, the risk of a major community outbreak existed at the time and the Government’s response level of the “preparedness and response plan for novel infectious disease of public health significance” was at the highest level, an emergency level. Since January 2020, this response level remained at the highest level. This meant that the risk of an impact to health caused by the pandemic on the local population was high and imminent.

18.  The Department of Health assessed the risks and set out their considerations in their recommendation, exhibit P3. A mass gathering event was not recommended. Public safety and the protection of the rights and freedoms of others must include public health considerations that directly affect the local population.

19.  It is the prosecution’s case that the defendants deliberately flouted the law and ignored the prohibition by the Police by inciting others and/or then knowingly took part themselves in an unauthorised public assembly in Victoria Park on 4 June 2020.

20.  The decision by the Commissioner of Police to prohibit the holding of the proposed public meeting was widely broadcasted, printed and discussed in many media outlets. There were press conferences and interviews given by defendants in this case who were members of the Hong Kong Alliance as well as the 4^th defendant. These are set out in exhibit P1, the Admitted Facts.

21.  Other than those widely broadcasted interviews and media news reports, the prosecution says anybody in or near Victoria Park on 4 June 2020 must have known that anybody participating in a meeting in Victoria Park that night would be joining an unauthorised assembly or prohibited group gathering. It is admitted that the Police had set up many loudspeakers near or inside Victoria Park broadcasting from about 4pm until late in the evening, making continuous announcements and warning the public not to join any unauthorised assembly.

22.  It was also admitted that the football pitches in Victoria Park had been closed for some time because of the pandemic and no entry to these facilities were allowed. They were in fact cordoned off by barriers which were knocked down by various people so that those gathering in Victoria Park that evening could enter and occupy those pitches.

23.  What happened that day on 4 June 2020 in and around Victoria Park including who was where and when, who said what and who went where was all recorded by either the Police or numerous media outlets and admitted by all parties. The video footage, transcripts and certified translations were all agreed. Facebook posts by various defendants including the 13^th and 19^th defendants were included in the Admitted Facts.

24.  The prosecution’s case is that the 1^st to the 13^th defendants in this consolidated case gathered together at the Water Fountain Plaza just inside the entrance of Victoria Park in a show of solidarity when the 1^st defendant gave a press interview at 6:25pm. What the 1^st defendant, as the Chairman of Hong Kong Alliance, said and did amounted to inciting others to knowingly take part in an unauthorised assembly in Victoria Park that night.

25.  The defendants with him, including the 4^th defendant and the 13^th defendant, each lit a candle at the same time at 6:30pm and stood in 2 rows together facing the press. They showed their support, encouragement and participation in the incitement by mirroring each other’s actions and then chanting slogans with the 1^st defendant. When the 1^st defendant chanted “5 demands, not one less” the defendants all raised a hand in unison with him.

26.  Their assembly at the Water Fountain Plaza was planned and timed for full press coverage. The 4^th defendant arrived by himself just before this group lineup and press conference. When he arrived he was shepherded by the 2^nd defendant who then called over the 1^st defendant to join them. They and all other defendants facing Charge 1 then gathered in front of the Water Fountain Plaza not long before 6:30pm. What followed was the symbolic action of all the defendants lighting a candle and a speech. The 4^th defendant then left at the end of this display of unity as the others set off on a slow march into Victoria Park.

27.  The prosecution relies on what the 1^st defendant said during this speech and prior to this speech to prove his intention to incite others to join him and other members of Hong Kong Alliance to flout the Police ban and enter the football pitches; to participate in an unauthorised assembly.

28.  The 13^th defendant is next to the 1^st defendant during the press conference and when he led other defendants as well as a group of around 100 people to walk from the Water Fountain Plaza just after the 6:30pm candle lighting ceremony to the football pitches. She, like other members of Hong Kong Alliance, was holding a candle as they walked. Video footage shows the 1^st and 5^th defendant, Chan Ho-wun, chanting slogans such as “5 demands, not one less” and “Hong Kongers, add oil” and “Oppose National Security Law”. Other slogans were shouted in Victoria Park and can be heard during the viewing of the video footage including “Liberate Hong Kong, revolution of our times” and “Fight for freedom, stand with Hong Kong”.

29.  The group headed to the football pitches and the 13^th defendant can be seen pushing aside a barrier to facilitate entry into the football pitches. They went to football pitch number 6 which is where the Hong Kong Alliance would normally have erected a platform or a stage for the annual June 4^th vigil. Symbolically they sat down where the stage would have been erected at about 7pm. The 13^th defendant was sat with other defendants together.

30.  The 19^th defendant was seen sat with 7 other people in a group minutes after the 13^th defendant sat down nearby. The 2 groups were close together and separated by mainly members of the press facing the 13^th defendant and her group. At that time, because of COVID-19 pandemic measures, group gatherings were limited to 8 per group.

31.  The 19^th defendant’s group comprised of 4 other defendants who were also later charged with the same offence, taking part in an unauthorised assembly but were dealt with in another consolidated case, DCCC876, 885, 890 and 892/2020. This group are seen sat with lit candles in Hong Kong Alliance candle cups. The 19^th defendant and some others in her group were holding bunches of white flowers.

32.  From about that time to 8:30pm when the 1^st defendant declared the vigil over, the 19^th defendant remained in her group which was close to the main group of Hong Kong Alliance members. When they observed a minute of silence, she stood and observed a minute of silence. When there was a flower laying ceremony, consisting of white flowers only, members of her group carried over white flowers to the main group and lay them on the ground.

33.  The prosecution says the 13^th and 19^th defendants were knowingly taking part in an unauthorised assembly together and with other persons unknown without lawful authority or reasonable excuse. The prosecution estimates from video footage and screenshots that by the end of the vigil there were 20,000 people on the soccer pitches of Victoria Park.

34.  This unauthorised assembly was a public meeting convened and organised for the common purpose of mourning the 31^st anniversary of June 4^th Incident. The group through speeches and chants also expressed discontent against the Hong Kong Government, the Communist Party and its opposition to the National Security Law.

35.  The prosecution also rely specifically on what was undisputedly said by the 13^th defendant and 19^th defendant either during interviews, in public or written in their personal Facebook posts to show the 13^th defendant incited others and both defendants knowingly took part in an unauthorised assembly.

PW1-Superintendant Chow Wing Yee, Josephine

36.  PW1 was the delegated Superintendent by the Commissioner of Police to decide whether or not to approve the Hong Kong Alliance notification of 23 April 2020. Her evidence was she had to balance the rights and freedoms of Hong Kongers to hold public meetings but at the same time she had to take into account any issues of public safety, public order as well as the rights and freedoms of others. The pandemic at the time was very serious and she had to consider its impact on the public and the risk of a mass gathering. She examined the data relating to cases and deaths in March, April and May 2020.

37.  In order to do a risk assessment, she had to look not only at open source information relating to the pandemic but also seek the recommendation of the Department of Health. In her view, public safety covers the lives and health of Hong Kong people. To protect the rights of others would also include considering their health. She considered the current gazetted prohibitions relating to group gatherings covering the 1^st week of June 2020. Gatherings of more than 8 people at that time would have contravened this prohibition regulation under Cap 599.

38.  She explained the reasons behind her decision to issue a Letter of Objection and prohibit the public meeting of the Hong Kong Alliance, exhibit P4. She took into account that Hong Kong Alliance could not verbalise what precautionary measures they could effectively arrange. During the liaison meeting, she asked this question repeatedly but did not get any direct answers. She gave evidence of the discussion during the liaison meeting. Hong Kong Alliance said they would verbally appeal to Hong Kong people to social distance and wear a mask.

39.  PW1 received the recommendation from the Department of Health after the liaison meeting. At that time, she had not yet decided to issue a Letter of Objection. After she read the opinion from Dr Chen, she decided to prohibit the public meeting.

40.  On 4 June 2020 the Police had intelligence and also knew from news media that Hong Kong Alliance were still intending to hold a meeting in Victoria Park despite the Letter of Objection. She decided not to deploy police officers inside Victoria Park so as not to inflame emotions and ongoing tensions between the Police and some of the public. She had some officers stationed outside in case there were any unexpected incidents. She took into account there were participants in Victoria Park who were old, young, disabled and only children. She explained why she took no enforcement action that evening.

41.  In cross examination by Mr Robert Pang SC leading Mr Jeffrey Tam, Mr Ernie Tung and Mr Joshua Ngai, it was suggested that COVID-19 was stable and according to the numbers, waning. In May 2020, the Government had allowed nightclubs, karaokes, bars and party rooms to resume business albeit with restraints and conditions. Groups of 8 were allowed to sit together in restaurants, up from groups of 4.

42.  It was put to PW1 that she could have imposed conditions on Hong Kong Alliance such as mandatory masks and grids marked by chalk in Victoria Park to ensure social distancing. She agreed she did not take the initiative to ask the Department of Health what measures or conditions would be required to ensure any risk was mitigated. PW1 said she decided if conditions could not achieve public order, public safety and protect the rights and interests of others then she would prohibit that meeting. If those considerations were threatened and they were by COVID-19 then she had no choice but to prohibit any mass gathering.

43.  It was suggested to her that she had decided to prohibit the public meeting before she sought the advice of the Department of Health which she denied. She denied that the mention of an appeal by the Hong Kong Alliance in the Police memo to the Department of Health meant she had already decided.

44.  PW1’s answer to that question was that she anticipated an appeal in case the public meeting was prohibited as was usually the case and since they are heard very quickly after a decision is given, she wanted the Department of Health to be ready to provide an expert witness to attend an Appeal Board hearing.

PW2 - Dr Chen Hong

45.  This doctor is a consultant with the Department of Health, the infection-control branch and gave evidence relating to her recommendation to the Police, exhibit P3. She was tendered for cross examination. At their request, she provided a general statement to the Police on the risks to public health of a mass gathering taking place at the material time. She was asked about the specific risk to public health. She explained the reasons behind her recommendation.

46.  It was her evidence and she agreed that the number of COVID-19 cases had slowed down by the end of May 2020; she attributed it to social distancing being implemented and effective. However, she said there were still asymptomatic cases in the community and the Department of Health could not locate their origins; they were worried about a 3^rd wave hitting the territory.

47.  She herself had in the past attended “June 4^th vigils” in Victoria Park and she knew from personal experience what the crowds were like. She was of the view that even if all possible precautionary measures were implemented she still would not have recommended a mass gathering proceed. She explained why and the risks that existed.

PW3 - Mr Chau Yin Fung

48.  Mr Chau was a manager from the Leisure and Cultural Services Department, “LCSD”. As far back as 29 June 2019 his Department received an application from Hong Kong Alliance to use the facilities in Victoria Park for a public meeting from 31 May to 4 June 2020. He explained that the Department would not process this type of application until 2 to 3 months before the event dates.

49.  The pandemic meant from early 2020 many of the LCSD and Victoria Park facilities were closed including football pitches, children’s playgrounds, basketball, handball and volleyball courts. These facilities were cordoned off by mill barriers and notices explaining that COVID-19 had closed those facilities. They were not opened again until long after 4 June 2020. He told the applicant from Hong Kong Alliance that COVID-19 had meant processing of all applications was suspended and venues temporarily closed until further notice.

50.  He was in Victoria Park on 4 June 2020 because he anticipated a public meeting going ahead anyway. Security guards were posted around the facilities that were closed to warn members of the public not to gather in breach of the law. Despite appeals to the public, no one dispersed. Guards were ignored and he could see that crowds invaded all the football pitches. The crowds dispersed after 11pm and he inspected the grounds to find some graffiti on walls and on the surface of the pitches relating to June 4^th Incident.

PW4 and PW5

51.  The last 2 prosecution witnesses were Police Officers. PW4 was in charge of traffic control around Victoria Park in Causeway Bay and he decided by late afternoon that the Police had to close off a few roads because of the crowds in the area obstructing traffic. Exhibit P52 is a map showing which roads were closed to vehicles. They became pedestrian only areas for safety reasons. They were later reopened at 9:14pm after the crowds dispersed.

52.  PW5 was tasked to estimate the crowds that evening and he estimated that there were approximately 20,839 people at around 8pm on all the soccer pitches in Victoria Park. His statement, exhibit P53 was read into the record in which he explains his methodology in calculating that estimate from sequential screenshots of video footage of the pitches.

The Defence Case

The 4^th Defendant

53.  The 4^th defendant is facing only Charge 1 and his case is that what he said and did in the 15 minutes he was at the Water Fountain Plaza in Victoria Park on 4 June 2020 cannot amount to incitement. What he said or did was not to persuade or encourage another to participate in an unauthorised assembly. His mere presence as a prominent outspoken public figure was insufficient to amount to and prove the elements of incitement.

The 13^th Defendant

54.  The 13^th defendant elected to give evidence and stressed several times that as the Vice Chairperson of Hong Kong Alliance, she took responsibility and held herself accountable for the speeches and actions taken by Hong Kong Alliance irrespective of whether she was the speaker or not.

55.  Her case is that Hong Kong Alliance did not incite others to participate in an unauthorised assembly because there was no unauthorised assembly that night. The proposed meeting was prohibited by the Police and no longer existed any more. The Hong Kong Alliance planned an online vigil but also planned for their own members to hold a commemoration in Victoria Park and as long as they did not exceed 50 people then they were not breaking the law.

56.  The 13^th defendant gave evidence that once inside in Victoria Park she could not see much beyond her own group of 20 to 30 people as she was surrounded by reporters. She did not know if those people outside of her own circle were there because of Hong Kong Alliance or for their own reasons. Hong Kong Alliance cannot be held responsible for however many other people were present at Victoria Park who may have come for their own personal reasons. She could not have stopped others entering the football pitches just as she would not have stopped friends of Hong Kong Alliance such as the 4^th defendant appearing or joining them.

57.  Hong Kong Alliance had contingency plans ready if the Commissioner of Police prohibited their meeting. They would hold an online meeting and appeal to the public to light a candle wherever they were in Hong Kong so that “flowers blossom” all over the territory. They would hand out candles to the public for this purpose. She herself was at a street booth in the afternoon of 4 June 2020 outside Victoria Park distributing candles and leaflets. She is heard announcing that Hong Kong Alliance members would still enter Victoria Park to commemorate June 4^th Incident.

58.  The 13^th defendant’s case is simply that there was no unauthorised meeting that night in Victoria Park therefore she could not have knowingly taken part in one. The reasoning was that the notified meeting once banned by the Police no longer existed and no one else applied or notified the Police of another meeting so therefore any meeting in Victoria Park that night could not be labelled as unauthorised. They were not there physically for a meeting, only to light a candle. Lighting a candle in Victoria Park in a private gathering of Hong Kong Alliance members and friends of less than 50 was not an unauthorised assembly.

59.  She went further and said no authorisation was necessary to enter Victoria Park to light a candle. Therefore, she did not knowingly take part in an unauthorised meeting because there was no unauthorised meeting that night.

60.  The 13^th defendant did explain why Hong Kong Alliance would, in her own words, “of course” choose Victoria Park to light a candle because the candlelight vigil had been held there for 30 years. Victoria Park had a strong symbolic meaning because it represented a defiance to authorities and represented resistance to the lies of the regime. She described themselves as survivors of the 1989 movement and therefore  would insist on lighting a candle in Victoria Park.

61.  In cross examination by the prosecution, the 13^th defendant agreed that the Alliance was determined to hold the June 4^th vigil annually. She said it was their right, their freedom and their plan.

62.  She agreed that when the 1^st defendant gave a speech at 6:25pm on 4 June 2020 at the Water Fountain, she was stood next to him and that everyone in the 2 lines were there to support him. She said they were not there just to support him but there was “a common action amongst us.”

63.  She agreed that Hong Kong Alliance was encouraged by the turnout at Victoria Park because, despite the prohibition by the Police, people still came out to commemorate 4 June 1989. Even though there was no official Hong Kong Alliance event people still chose to come into Victoria Park. She said Hong Kong Alliance’s intention was for people to go everywhere all over Hong Kong as well as Victoria Park.

64.  She agrees that she did in the afternoon of 4 June at Great George Street shout using a loudhailer, telling the public that the candlelight vigil in Victoria Park could not be banned. She explained she meant candle light could not be banned. Lighting a candle was not an assembly. She explained when she was asking people to join a vigil, she was referring to a vigil online for Hong Kongers and a vigil in Victoria Park for people in “our circle”.

65.  The 13^th defendant agreed the Water Fountain press conference attended by the 1^st to 13^th defendant to light a candle at 6:30pm was preplanned. A message was sent to the press to notify them that there was such an arrangement; at 6:30pm there would be a candle lighting ceremony and a slow walk into Victoria Park together as a group. However, she denied it was a call and incitement to other people to persist with their right to assembly and come into Victoria Park.

66.  The prosecution suggested she left her group after they arrived at the football pitches and before the commencement of the program; she walked around as seen in video footage. She agreed she was curious to see how many people had come and said she did see a lot of people on pitches holding candles but was not sure if they were attending a vigil. She suggested they were perhaps there in Victoria Park to join the Hong Kong Alliance on-line meeting.

67.  She disagreed that everything the 1^st defendant said and did in Victoria Park was directed at those crowds present such as leading them in song or to observe a minute of silence. She said it was leading or directing those participating in an online meeting not everyone in Victoria Park.

The 19^th Defendant

68.  The 19^th defendant said she knew that the Police had banned the notified meeting of Hong Kong Alliance. She admits she was first at Great George Street at a Demosisto party street booth in the afternoon and then entered Victoria Park football pitch number 6 by about 7pm. She herself mourned June 4^th Incident her own way and was not there for the same reasons as members of the Hong Kong Alliance. She was not a political figure but a very ordinary person in Hong Kong. She had nothing to do with Hong Kong Alliance therefore she was not gathered there taking part in a public meeting they had convened or organized if they indeed had done so.

69.  The 19^th defendant said she was there that night to resist the prohibition of the Police. She was there to resist the authorities. She went there because she believed the authorities were using the pandemic as an excuse. She thought it was wrong that the Hong Kong Alliance had their annual event taken away from them. She felt the real purpose behind the ban was that the Police were trying to scare people from entering Victoria Park that night. She had heard Hong Kong Alliance talk about “flowers blossoming” across the territory but she thought they were not organising this at Victoria Park and that no one would go to Victoria Park to commemorate and that nothing would be done to commemorate. If she had known the crowds in Victoria Park were commemorating June 4^th Incident, then she would not have gone.

70.  When asked in cross examination if she was there to join the June 4^th vigil irrespective of her views on Hong Kong Alliance she said she never mourned 4 June because she disagreed that 4 June needed to be mourned. She thought action needed to be taken to keep alive the democratic movement of 1989. She believed the spirit of 1989 should continue. In any event, she said that she disagreed that there was a vigil in Victoria Park there that night and if there were crowds mourning 4 June in an unauthorised meeting then she had nothing to do with that crowd and did not care what they did.

71.  The 19^th defendant was asked if she was not mourning why did she take white flowers which are a symbol of mourning into Victoria Park and then take them away. She said she wanted to see if she would be arrested like those in China would be arrested for commemorating or mourning the anniversary of 4 June by holding candles and white flowers on the street in public. She said there was only one place in the world where people would be arrested for holding lit candles and flowers on 4 June and that was in China so she wanted to see if she would also be arrested here in Hong Kong.

72.  What she meant was she was testing the Police and the authorities and not mourning the date or incident by being there in Victoria Park with a lit candle and holding white flowers. In exhibit P40 a copy of her personal Facebook page, she posted a photo of herself that night at 7:56pm shielding a lit candle and holding white flowers with others.

73.  She said that the proximity of her group of 8 and the group led by the 1^st defendant, Lee Cheuk Yan with other members of the Hong Kong Alliance including the 13^th defendant was not close, nor planned and merely a coincidence. She said when she entered Victoria Park she could not remember who she entered with but they walked to football pitch number 6 because she knew that there were many people about to enter the park behind them so it would become very crowded. They did not choose this football pitch or choose to be close to the main group because this pitch was symbolic for the stage or platform of Hong Kong Alliance being erected there annually. Her actions were not symbolic nor a show of solidarity with Hong Kong Alliance and their purpose.

74.  It was the 19^th defendant’s evidence that she did not sing songs nor follow the commemoration program as set out by Hong Kong Alliance. She did not observe a minute of silence although she did stand and was silent but only because others around her were silent. She had white flowers with her when she entered Victoria Park and sat down in her group of 8 but has no recollection of what happened to them. She did not bring them to lay down to commemorate and participate in a June 4^th vigil. She held a candle but says she did not even know how to use the Hong Kong Alliance candle cup; in fact, she had one but burnt it by accident. All this said to show she was not there with Hong Kong Alliance but in her own personal capacity and therefore not participating in an unauthorised assembly if any.

75.  In cross examination she was taken through her Facebook post, exhibit P40 posted whilst still in Victoria Park just before 8pm. She posted photographs of herself and of the crowd. She also wrote that it was the first June 4^th vigil with “no big platform” in 30 years. She referred to chants as well as songs associated with the June 4^th vigil. She ended her post with this comment “In the first June 4^th vigil with no approval, candlelight still fills the soccer pitches. Hong Kong people, will not allow our will to be suppressed.”

76.  She however disagreed with the certified translation of “no big platform” as well as the word “vigil”. Even though Hong Kong Alliance had referred to this being the first vigil in 30 years without their usual stage or platform built on that soccer pitch, she herself was not referring to a physical stage but says she meant “decentralised” as used by scholars in a political sense. She disagreed that her reference to the “first June 4^th vigil” meant a vigil in the literal sense. She disagreed she was referring to the event as a June 4^th vigil but explained she meant it was the meeting notified but not approved by the Police.

77.  The 19^th defendant agreed she referred to candlelight in her post and agreed a lot of people were holding lit candles but abstrusely said whether this meant it was a candlelight vigil she could not say. She clarified this answer and said if she says a vigil did not exist that night how could she be participating in it; although she lit a candle she was not participating in a vigil. She did not know if others were holding a candle to participate in a vigil because she could not speak for them.

78.  The Prosecution, in closing submissions, MFI-12 summarised in full both the 13^th and 19^th defendants’ evidence as well as the evidence of the prosecution witnesses.

Defence Submissions

79.  Mr Pang for the 4^th defendant doubts the evidence and particulars for Charge 1 prove Hong Kong Alliance were inciting the public to attend a candlelight vigil inside Victoria Park on 4 June 2020. Their plan made public earlier and repeated at that press conference at the Water Fountain was to urge people to take part in an online rally not to physically gather in Victoria Park. Therefore, the elements of incitement have not been proved. MFI –13, his closing submissions set out the legal principles and authorities relating to the definition and elements of incitement.

80.  Mr Pang submits that the defendant’s presence and conduct, even if he was there to support Hong Kong Alliance was not evidence of inciting others to commit a specific criminal offence. Even if he was supporting Hong Kong Alliance, the subject matter of that press conference was an online rally. He himself was not a committee member. The committee member’s plan to enter Victoria Park themselves was not a plan to hold a public assembly. Their plan was not a notifiable meeting and therefore “not subject to the notice of prohibition”.

81.  Mr Cheung for the 13^th defendant submits the 13^th defendant and Hong Kong Alliance disseminated a message that there would be an online vigil or rally for the public and that the members of Hong Kong Alliance would enter Victoria Park physically in their personal capacity only. Upon a reading of speeches made and interviews given, there was no evidence of incitement of others to join them and Charge 1 cannot be proved beyond reasonable doubt.

82.  The submission was that their own group by themselves, was not a meeting and therefore not unauthorised. Their group by themselves was not a notifiable meeting for the purposes of complying with regulations in the POO. If there were other people in Victoria Park other than their group, they were not there with Hong Kong Alliance nor were they the responsibility of Hong Kong Alliance, therefore, there was no unauthorised meeting for the 13^th defendant to knowingly participate in.

83.  Miss Wong for the 19^th defendant says according to the definition of a public meeting in section 2 of the POO, the prosecution have not proved there was any public meeting convened or organised in Victoria Park that night. The prosecution had to prove that the unauthorised public meeting was the meeting notified to the police and prohibited.

84.  The 19^th defendant, however, was not there as part of that meeting notified but prohibited. She was there for her own personal reasons therefore she was not participating in that particular meeting prohibited. Her proximity to the other defendants on football pitch no. 6 was irrelevant and insignificant.

85.  Even if the Court found that the prohibited meeting of Hong Kong Alliance was convened and unauthorised, there were other people including herself with different views and for a different purpose also present in Victoria Park that night. The prosecution cannot prove they were all there for the one and same prohibited unauthorised meeting. If the prosecution cannot prove she was there for that prohibited meeting, then the elements of Charge 3 have not been proved. This submission was also adopted by the 13^th defendant.

86.  In final submissions, the prosecution made it clear that in relation to Charge 3 the unauthorised assembly particularised does mean the Hong Kong Alliance’s public meeting notified but subsequently prohibited as well as what was a spontaneous meeting of more than 50 people of which the police were not notified pursuant to the Public Order Ordinance. The prosecution’s case is that Hong Kong Alliance held and conducted an unauthorised meeting and had always intended to hold one regardless of whether or not they had authority to do so.

87.  The prosecution accepts that there may have been other people in Victoria Park that night for their own purposes but their case is that there was a large unauthorised meeting held by the 1^st defendant of Hong Kong Alliance and it was a June 4^th vigil. The 13^th and 19^th defendants were by their conduct and proximity to the 1^st defendant and Hong Kong Alliance committee members clearly participating in that vigil.

My Findings

88.  As I indicated earlier, I will first determine on the facts proved if the prosecution has proved beyond reasonable doubt all the elements of the offences. They do not fall or stand together. The defendants themselves do not fall or stand together.

89.  I have taken into account that on the date of the offence, 4 June 2020, all defendants on trial had clear records. I have considered the good character directions in relation to both credibility and propensity.

90.  The 4^th defendant elected not to give evidence. That is his right and no adverse inference can be drawn against him. The fact that he did not give evidence proves nothing, one way or the other. It does nothing to establish his guilt. However, this means that there is no evidence from the defence to undermine, contradicted or explained the evidence presented by the prosecution. I referred myself to Li Defan v HKSAR (2002) 5 HKCFAR 320.

91.  I have considered the oral as well as written submissions of the prosecution, MFI-12, the 4^th defendant, MFI -13, 13^th defendant, MFI -14 and the 19^th defendant, MFI-15. It is simply not practical in the course of these Reasons for Verdict for me to attempt to cover every aspect of the evidence of the witnesses; to identify individually and discuss every argument or submission made by individual counsel for the prosecution and the defence. That I do not mention a particular piece of evidence, transcript, video recording, translation, submission or authority submitted does not mean that I have not considered it or factored it into my decision making.

Charge 1 - the 4^th and 13^th defendants

92.  I have considered the elements of the incitement charge and legal principles I have been referred to, in particular by Mr Pang. A person is guilty of incitement to commit an offence if he incites another to do or cause to be done an act or acts which, if done, will involve the commission of the offence or offences by the other and he intends or believes that the other, if he acts as incited, shall or will do so with the fault required for the offence or offences.

93.  It is the prosecution’s case that the unlawful act was to participate in an unauthorised public meeting inside Victoria Park on 4 June 2020. It is their case that the 1^st to 13^th defendants incited others when they gathered to line up at the Water Fountain Plaza at 6:25pm in a group to face the press together. The video footage, exhibit P21 shows the 4^th defendant arriving to be greeted by the 1^st and 2^nd defendants before they and other defendants grouped together to light a candle at 6:30pm to start proceedings.

94.  I am sure the 4^th defendant arrived when he did for the sole purpose of or in order to participate in this press conference and candle lighting ceremony at 6:30pm. He can be heard suggesting to the 1^st defendant when they should start lighting candles. He stood with the group during the 1^st defendant’s speech and chanted slogans with them in unison. The 4^th defendant left as soon as the speeches were over and the others began to walk inside Victoria Park.

95.  Clearly he was there to support Hong Kong Alliance and did lend his support to their aim and that was, in my findings, to hold an unauthorised assembly despite the police ban and incite others to join them. He is a prominent public figure known to publicly share similar views as Hong Kong Alliance.

96.  Apple Daily online news ran an interview with the 4^th defendant dated 2 June 2020 at 2:20am, exhibit P10, where he is quoted as saying “if you are not intimidated by them, you should come out and continue to mourn in your own way or at Victoria Park.” He said it was important to light the candle to indicate their refusal to fade into oblivion on the night of 4 June. He said he would still walk into Victoria Park that night to mourn. He makes several references to the significance of candlelight on 4 June. This was the day after the widely reported ban by the police. This gives an indication of why he was present at the Water Fountain on 4 June 2020.

97.  As usual and as anticipated, when the 4^th defendant did arrive at Victoria Park he was surrounded and followed by photographers and reporters. His presence at that press conference was a deliberate act to rally support for and publicly spotlight the unauthorised assembly that followed. He need not use words of incitement to intend to incite others.

98.  He was interviewed later that evening after attending a church service to commemorate the date and said he was encouraged and inspired by the large turnout of those who did enter Victoria Park that night. That was immediately after the press conference he attended which I find was for the purpose of inciting others without lawful authority or reasonable excuse, to knowingly take part in an unauthorised assembly.

99.  The 13^th defendant was the Vice Chair of Hong Kong Alliance at the material time. She stood with the 1^st defendant and the other 11 defendants also charged with inciting to light a candle at 6:30pm, to support the 1^st defendant whilst he made a speech and chant in unison with him after his speech. I have no doubt what was said before and during this speech showed an intention by Hong Kong Alliance to hold an unauthorised assembly in Victoria Park despite the police ban. There is a transcript of the 1^st defendant’s speech at that time which clearly indicates that Hong Kong Alliance were appealing to people to light candles all over the territory but also to come into Victoria Park to do the same. He appealed to “friends” to light candles “not only in Victoria Park but also anywhere” around the territory.

100.  In fact, what the 1^st defendant and other defendants said before this press conference and after the vigil was declared at an end clearly indicated an intention to defy the police ban. As an example, the 6^th defendant gave a press conference from the Legislative Council, exhibit P11, that afternoon which was very inflammatory; he accused the police, the Government and the LCSD of suppression. He specifically says the Hong Kong Alliance will not give in to the Government or the police ban. He then referred to going to Victoria Park himself after that press conference.

101.  After the 1^st defendant announced the end of the meeting in Victoria Park he can be heard saying at about 8:40pm that despite the police ban “as usual, our candlelight blossoms everywhere at Victoria Park”. He made several references to many Hong Kongers lighting candles with Hong Kong Alliance inside Victoria Park.

102.  The 13^th defendant handed out candles and leaflets near the Water Fountain Plaza in Victoria Park before the 6:30pm press conference and can be heard at about 5:40pm repeatedly making appeals to the public with a microphone to collect a candle whilst making reference to an online vigil. However, she also made many references to participating in the commemoration vigil that night without mentioning from where. She did make reference to the Hong Kong Alliance going inside Victoria Park and lighting candles saying they would not let the candlelight at Victoria Park extinguish.

103.  A reading of the 13^th defendant’s own Facebook post, exhibit P38, clearly makes reference to those that will definitely join her in Victoria Park that night. She does not specifically appeal or invite people to join her but implicitly that intention is there. She signs off with “see you tonight”.

104.  I am sure the prosecution has proved beyond reasonable doubt from the evidence admitted that what was said and done as a group gathered at the Water Fountain Plaza was an intention by the 4^th and 13^th defendants and others to unlawfully incited others to knowingly take part in an unauthorised assembly in Victoria Park that evening. The elements of the offence have been proved.

105.  The 13^th defendant’s evidence was a weak attempt to deflect the truth and intention to publicly and openly defy the police ban. The undisputed and admitted evidence does not support her attempt to try and contradict or misrepresent it. I am sure the prosecution can prove beyond reasonable doubt that the 4^th and 13^th defendant committed Charge 1 despite their clear records at that material time.

106.  As the offence of incitement is for preventative purposes, an incomplete or attempted crime is sufficient to amount to incitement. However, in this case I am sure, after considering the evidence and submissions that there was an unauthorised public assembly in Victoria Park despite an objection to it by the Commissioner of Police.

Charge 3 - the 13^th and 19^th defendants

107.  Both the 13^th and 19^th defendants face Charge 3. Both admit knowing the Hong Kong Alliance meeting had been banned. Both gave evidence why they were in Victoria Park and why they were not part of any unauthorised assembly. I reject their evidence as frankly nonsensical. They were both at times evasive and abstruse for the purposes of being provocative and argumentative. I repeat, even the admitted facts do not support the evidence given by either defendant. Their evidence was a poor attempt to either negate or repudiate evidence that was overwhelming and undisputed.

108.  I find an unauthorised assembly was held by Hong Kong Alliance who announced in advance they would still be proceeding into Victoria Park to hold a vigil despite the police ban. From the evidence of news footage, it is clear that many people followed them in. Barriers were torn down around the football pitches and they were occupied by thousands of people. By 8pm there were an estimated 20,000 people.

109.  So much of what the 1^st defendant did, with the 13^th defendant beside him showed that they intended to hold a candlelight vigil and commemorate the date. So much of what he said showed that they knew there were many people in Victoria Park with them and for the same reason. He referred to “friends” in Victoria Park and “friends behind him” and “friends here”. When he appealed to “friends here” to observe a minute of silence, it is quite clear from the news footage that many people did observe a minute of silence. He referred to them occupying the whole Victoria Park to continue to commemorate. He shouted many slogans that were repeated at volume.

110.  The 13^th defendant can be seen at 7:40pm before the program started walking around the football pitches with another person weaving amongst groups of people sat on the ground. Her evidence that she could not see or hear beyond her own group was clearly an attempt to evade questions about the many thousands of people in Victoria Park and on the pitches.

111.  I also reject the 19^th defendant’s evidence that she was there for her own purpose and definitely not there to commemorate the date with Hong Kong Alliance. I reject the submission that she did not come within the meaning or interpretation or definition of “meeting” as set out in section 2 of the POO.

112.  Taking into account the facts agreed, the news footage of the 19^th defendant’s movements, actions and position inside Victoria Park in relation to her proximity to the Hong Kong Alliance committee members, her Facebook post including photos attached, as well as her carrying a bunch of white flowers and a lit candle, I am sure she was there to commemorate the date, participate in the vigil as planned by Hong Kong Alliance as well as protest against the police ban. The reality was, any intention to come out and participate in the candlelight vigil in Victoria Park that night was an act of defiance and protest against the police.

113.  At 7:56pm that evening, whilst sat on a football pitch inside Victoria Park very close to the Hong Kong Alliance group, she posted photographs and a comment on her Facebook page. She referred to what was going on in Victoria Park as “first June 4^th vigil with “no big platform” in 30 years”. She referred to the “flowers of freedom” song played which is known to be associated with this vigil. She mentioned chants of “Liberate Hong Kong, revolution of our times” associated with the social unrest from 2019. She ended her post with “today, in times of the National Security Law, mourning is resisting. In the first June 4^th vigil with no approval, candlelight still fills the soccer pitches. Hong Kong people, will not allow our will to be suppressed”.

114.  This post is accompanied by a photograph of her stood next to another with both cradling a bunch of white flowers as well as holding a lit candle in a Hong Kong Alliance candle cup. Both are shielding the candle to prevent it extinguishing.

115.  The 19^th defendant objected to the certified translation of “vigil” and “big platform” however, I find no fault in the certification as confirmed by my qualified interpreter. She said she put quotations around “no big platform” to indicate she meant decentralised in the political sense. Even if that was her intention behind the quote, a plain and literal reading of the rest of the post indicates she was participating in the banned June 4^th vigil by holding a candle amongst enough other people to fill all the football pitches. Her evidence that despite her reference to candlelight she did not know if all those people holding candles were participating in the June 4^th vigil is neither here nor there; I am sure that the majority were there for that reason.

116.  Much was made of the statutory definition of “meeting” and that it was incapable of covering “decentralised” political actions which were not organised or convened by one particular organiser but spontaneous and self-initiated by individuals. I can deal shortly with this submission; I am sure from the evidence proved by the prosecution that the 19^th defendant was indeed knowingly participating in an unauthorised assembly intentionally held by Hong Kong Alliance.

117.  I am sure there was a public meeting that night in Victoria Park that was subject to an objection by the Commissioner of Police which became an unauthorised assembly. I am sure the prosecution can prove beyond reasonable doubt from the evidence proved and admitted that both the 13^th and 19^th defendants were knowingly taking part in that unauthorised assembly which took place in contravention of section 7 of the POO, which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance. All the elements of charge 3 are proved.

118.  In conclusion, I find the 4^th and 13^th defendants both guilty of Charge 1 and the 13^th and 19^th defendants both guilty of Charge 3.

Constitutional Challenges

119.  On 1 September 2021 as directed, the 4^th defendant filed written submissions on his systemic constitutional challenge whilst the 13^th defendant by letter from her solicitors raised certain issues relating to the decision of the Commissioner of Police and submitted that to impose criminal liability on a peaceful demonstration is a disproportionate restriction of a defendant’s right to freedom of assembly, demonstration and speech. The 19^th defendant indicated she adopted both their submissions.

Systemic Proportionality Challenge

120.  The systemic constitutional challenge raised by the 4^th defendant was raised by him in a recent “unauthorised assembly” case, HKSAR v Lai Chi Ying and others, [2021] HKDC 398. In that case there was a systemic challenge by the 4^th defendant to the constitutionality of section 17A(3)(a) and section 17A(3)(b)(i) of the POO.

121.  In this case, the same challenge is raised as to whether criminalising the participation of an unauthorised assembly as provided for in section 17A (3) amounts to a disproportionate restriction on the right of freedom of assembly and procession protected under Article 27 of the Basic Law and Article 17 of the Hong Kong Bill of Rights Ordinance, Cap 383 which corresponds to Article 21 of the International Covenant on Civil and Political Rights.

122.  The 4^th defendant submits that section 17A (3) should be struck down as unconstitutional as it fails to satisfy the proportionality analysis. If the predicate offence is found to be unconstitutional, the 4^th defendant cannot therefore be guilty of incitement to commit an unconstitutional offence. All defendants submit that to impose criminal sanctions for participation in a peaceful unauthorised assembly would disproportionately restrict the right to freedom of assembly.

123.  The 4^th defendant also submits that the maximum term of imprisonment of 5 years that could be imposed for a breach is too severe; so severe it is disproportionate. So severe it has a chilling effect on those that wish to exercise their right to freedom of assembly.

124.  The 13^th defendant challenges the decision of the Commissioner of Police. She submits the prohibition of the June 4^th vigil on the grounds of public health was neither prescribed by law nor proportionate; therefore, ultra vires and unconstitutional. The prohibition of the public meeting on the grounds of public health is not prescribed by law nor derived from authority provided for by section 9 (1) of the POO.

125.  Section 9 (1) provides that the Commissioner of Police may prohibit the holding of any public meeting notified under section 8 where he reasonably considers such prohibition to be necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others.

126.  At the same time, it was submitted that alternatives to a complete ban had not been considered; a complete ban was a disproportionate restriction. There was a failure on the part of the Commissioner of Police who had a positive duty to facilitate peaceful assemblies.

127.  The 13^th defendant also submits the prohibition of the public meeting was politically motivated as was the subsequent arrest and prosecution of the 13^th defendant. The aim was to eliminate dissenting voices and opposition leaders as well as suppress the memory of the June 4^th Incident. This was not put to any witness.

128.  Courts recognise certain constitutional guaranteed rights are absolute and never subject to a proportionality analysis. Where guaranteed rights are not absolute, the law can create restrictions limiting such rights. Courts can question those restrictions and it will do so by subjecting them to a proportionality analysis.

129.  For the sake of brevity and because the argument is identical I adopt my reasons and findings from Lai Chee Ying and others 2021. I found I was bound by precedent and there were no grounds for a constitutional systemic challenge to section 17A (3) on the ground that this challenge was precluded by the authority of Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229. That decision held the notification scheme under the POO was constitutional, including section 17A. That offence creating section must have been in the purview of the Court of Final Appeal and I was bound by it.

130.  I adopt my paragraphs 216 to 253 and 260 to 282 in Lai Chee Ying and others 2021. I found then and I find again here in this case no grounds to challenge the imposition of criminal sanctions nor the provision of sanctions itself.

131.  Accordingly, this challenge on a systemic level fails and I find that the subject offence under section 17A (3) is constitutional.

This

Is Public Health Part of Public Safety?

132.  The 13^th defendant submits that the decision to prohibit the public meeting was based on public health grounds as a result of the pandemic arising from COVID-19. Since public health has nothing to do with national security or public safety, public order or the protection of the rights and freedoms of others then the decision must be ultra vires and not prescribed by law.

133.  The prosecution’s case was that in the context of the POO, the concept of public safety would include the risks and threats posed to the lives, physical integrity or health of the public. Equally, the concept of protecting the rights and freedoms of others would include the same.

134.  COVID-19 was declared a pandemic in March 2020. The pandemic is an epidemic of an infectious disease that has spread worldwide and affected millions of people. In Dr Chen’s memo to the police she points out there is ample evidence that mass gatherings can amplify the spread of infectious diseases. COVID-19, a threat in the form of a pandemic, was a different threat to public order, public safety and the protection of the rights and freedoms of others from, for example, certain violence and destruction arising from serious social unrest but nonetheless still a threat.

135.  Clearly it was prudent of the Police to seek the advice of the Department of Health as to their view of mass gathering events at that material time. A situation that affects the safety of Hong Kongers as well as their rights and freedoms to be protected from a pandemic must be considered by the Commissioner of Police. In fact, he would be negligent to ignore a pandemic and the advice of the Department of Health. I find there is no basis for the 13^th defendant to argue that the Commissioner of Police’s decision to prohibit the public meeting notified was not prescribed by law.

Operational Proportionality challenge

136.  All defendants challenge the merits of the decision of the Commissioner of Police. It was submitted that on an operational level, the Police had unnecessarily prohibited the public meeting and the unnecessary prohibition had the effect of disproportionately encroaching on the right and freedom of assembly.

137.  It was also submitted that to later arrest, prosecute and possibly convict and sentence the defendants for either inciting peaceful assembly or taking part in one is in violation of and disproportionate to the constitutional guarantees and rights of those defendants. This violates the principle of tolerance and proportionality on an operational level.

138.  The defendants point out that the pandemic was not severe at the material time, the number of cases of COVID-19 were decreasing at the material time and therefore the decision to prohibit the public meeting was disproportionate.

139.  The defence also submits that the Police should have explored and proposed precautionary conditions for the organisers to implement so as to facilitate the public meeting and the exercise of the defendants’ constitutional rights to freedom of peaceful assembly.

140.  The prosecution argues that it is not open to any of the defendants to challenge the merits of the decision of the Commissioner of Police in a criminal trial. That should have been resolved by an appeal to the Appeal Board or a Judicial Review. Moreover, that decision itself is not an essential element of the subject offence under section 17A (3).

141.  The prosecution submits that there are in fact, no arguable grounds for a challenge on an operational level. I have referred myself the Court of Appeal in Leung Kwok Hung v Secretary for Justice (No. 2) (2020) 2 HKLRD 771 which I believe lays down guidelines for an operational challenge.

142.  An operational proportionality challenge was raised in Lai Chee Ying and others 2021 and I rely on my decision there and quote myself from paragraph 285,

“285. …in the lead up to these guidelines the Court of Appeal (in Leung Kwok Hung (No. 2) 2020) first considered relevant authorities on the permissible restrictions on the fundamental rights of demonstration and expression.

286. That prohibition on Face Covering Regulation came into being because, as the Court of Appeal observed “since June 2019, Hong Kong has experienced serious social unrests and public disorder marked by protests, escalating violence, vandalisms and arson across the territory. It is a dire situation that has not been seen in the last 50 years.” Paragraph 1.

287. The Court of Appeal made it clear when either measures that interfered with freedom of assembly or enforcement action taken by authorities were to be subject to a proportionality requirement then, that proportionality analysis has to be applied on 2 different levels. I quote the paragraphs identified as the guidelines;

      “182. Thus, the proportionality analysis has to be applied on 2 different levels:

      (1) examining the systemic proportionality by reference to the legislation or rules in question;

      (2) examining the operational proportionality by reference to the actual implementation or enforcement of the relevant rule on the facts and specific circumstances of a case at the operational level.

      183. In these appeals, it should be emphasised that we are only concerned with the first level of challenges. It remains for the court to assess the proportionality on the second level on the facts and circumstances in a particular case if a charge is brought against a person.

      184. The Strasbourg Court continued at (155) – (157) in Kudrevicious v Lithuania to identify the need to have measures to restrict conducts causing disruption to ordinary life to a degree exceeding that which is inevitable for peaceful demonstration and assembly. At (155), the Court alluded to 2 important mindsets for striking the balance:

      (1) on the one hand, the public authorities have to show a degree of tolerance;

      (2) on the other hand, demonstrators should comply with the regulations in force.”

288. The operational challenge is explained at para 182(2). What is to be operationally proportional is the actual implementation or enforcement if there is any, on the facts and specific circumstances of a case. This must be read in conjunction with paragraph 181 and the Court of Appeal references to Kudrevicius v Lithuania (2016) 62 EHRR 34.

289. In para 181, it refers to a scenario when a demonstration has not been authorised. It summarises some general observations from Kudrevicius;

      “181. ...Whilst acknowledging that it is essential to have a system of prior notification, the absence of prior authorisation does not give carte blanche to the authorities in taking enforcement actions. Such actions would still be subject to proportionality requirement. The Court highlighted that though there could be special circumstances which justify the holding of spontaneous demonstrations without prior notification, such exception must not be extended to the point where the absence of prior notification of a spontaneous demonstration can never be a legitimate basis for crowd dispersal.”

290. In my view, the Court of Appeal is referring to enforcement action against a demonstration on the day, here with specific reference in the last line to crowd dispersal. Public authorities have to show a degree of tolerance in what action they decide to take at the time. Some level of disruption can be inevitable in any demonstration so just that fact alone does not justify an interference with the right to freedom of assembly hence, a tolerant approach is required.”

143.  Indisputably, on 4 June 2020 the Police took no enforcement action. PW1 gave her reasons for this decision. There was no restriction therefore upon the exercise by any defendant of their rights or freedom of procession and freedom of assembly that day. There is nothing to subject to an operational proportionality challenge. However, it does not follow that there cannot or will not be any action taken later by the authorities in the form of arrests and prosecutions.

144.  The decision to prosecute remains the sole authority of the Department of Justice according to the Basic Law; there were no grounds raised to justify an interference with that decision.

145.  I adopt what I said from paragraph 291 to 310 in that same case, Lai Chee Ying and others 2021. For the sake of brevity again, I will not repeat my reasons. I am sure the Court of Appeal did not mean in Leung Kwok Hung (No.2) 2020 at paragraph 183 that a charge or the decision to prosecute is open to an operational proportionality challenge and the decision to prosecute should be examined.

146.  In Leung Kwok Hung (No.2) 2020 no criminal charge or conviction was the subject of that appeal therefore, they were only concerned with the 1^st level of challenge and that was a proportionality analysis examining the systemic proportionality by reference to the legislation or rules in question. The court would only examine the 2^nd level, the operational proportionality if charges are brought against a person which was not the situation in that appeal. Hence, their remark that it remains for the court in another case to assess the proportionality on the 2^nd level on the facts and circumstances when a charge is brought against a person.

147.  I agree with the prosecution’s submission that there are no matters relied on by the defendants that constitute arguable grounds for an operational proportionality challenge. I agree with the interpretation that any subsequent arrest and decision to prosecute are not matters to be subject to that challenge.

148.  In paragraphs 302 to 310 in Lai Chee Ying and others 2021 I dealt with the same submission as here that the decision to arrest and decision to prosecute the defendants should be subject to a proportionality analysis. The systemic challenge has failed and the relevant sections constitutional. The subsequent arrest of the defendants was therefore lawful. If the propriety and lawfulness of an arrest is questioned, that will be dealt with on the facts during the course of the criminal trial and not by a constitutional challenge. The same principle applies to the submission that a conviction would be disproportionate.

149.  The 4^th defendant has relied on a recent appeal from the Supreme Court of the United Kingdom, Director of Public Prosecutions v Ziegler (2021) 3 WLR 179 a case concerning the obstruction of roads and highways. There the Court considered the conduct and intention of the appellants in an evaluation of proportionality. Did their actions cause or prevent disorder; was the conduct reasonable. A defence was raised in that authority.

150.  I have considered that authority and find I can distinguish it because the nature of those charges in that authority were very different from the offences under section 17A of the Public Order Ordinance. I also made a similar distinction in Lai Chee Ying and others 2021 and I adopt my paragraphs 263 and 264.

Merits of the Decision of the Commissioner of Police

151.  The 4^th defendant challenges the reasonableness of the decision of the Commissioner of Police in banning the public meeting. In final submissions it is stated that he accepts that whether the Commissioner was right or wrong in objecting to the public meeting cannot be challenged as laid down by the decision of Leung Kwok Hung 2005. He goes on to say however, the reasonableness of that decision is a relevant consideration for this Court when considering whether a conviction is a justifiable infringement on the constitutional rights, paragraph 34 of MFI-13.

152.  Much was made of the police memo to the Department of Health. Much was made of the evidence and opinion of Dr Chen as well as the statistics as to the number of COVID cases in January to May 2020 referred to in exhibit D2.

153.  Mr Pang for the 4^th defendant says that he would have been unable to appeal to the Appeal Board after the Letter of Objection from the Commissioner of Police because the 4^th defendant had no locus standi. Similarly, the same would apply to the 4^th defendant launching a Judicial Review. Mr Pang says that his only recourse in challenging the merits of that decision is during the criminal trial and in his defence of Charge 1.

154.  The prosecution’s position is that to argue the merits of the decision to prohibit the public meeting or to deny that COVID-19 was the real reason behind the decision are not constitutional challenges on the subject offence on either a systemic or operational level. I agree with this position.

155.  It is not open to the defendants to challenge to the merits of the decision during the trial. Firstly, the issue should have been resolved by the Appeal Board according to the statutory mechanism for aggrieved parties and then a Judicial Review.

156.  The prosecution’s case is that, in any event, on a true construction of the POO, the validity and merits of the Commissioner’s decision is not an essential element of the subject offence under section 17A (3) and therefore, it is unnecessary for this Court to consider. I also agree with this position.

157.  I was referred to an authority for the proposition that it was not open to a defendant in a criminal trial to challenge the validity of a statutory or regulatory order unless there were no other avenues available to him to appeal the order, HKSAR v Sky Wide Development Ltd (2013) 1 HKLRD 613.  In that authority the defendants challenged the validity of a building demolition order during their trial when the Buildings Ordinance provided a statutory mechanism for an avenue for appeal which was not utilised.

158.  It would make no sense if only those named in the Notification submitted under the POO could appeal to the Appeal Board yet the 4^th defendant, being someone who incited others to participate in an unauthorised assembly was able to effectively appeal it during a criminal trial instead.

159.  After considering submissions from both the defence and the prosecution, I do not find it open to the 4^th defendant in this trial to challenge the merits of the decision of the Commissioner of Police. It is not relevant to the elements of either Charge 1 or Charge 3. It is unnecessary for the purposes of this trial to determine whether the ban of the public meeting was justified, reasonable or proportionate.

160.  However, I will add that even if it was relevant and I should consider the merits of the decision then I would, without hesitation, rule against the defence. The Department of Health’s opinion and recommendation was very clear. The numbers of COVID cases from April 2020 had decreased because Dr Chen contributed that to the concerted efforts of the whole community in maintaining social distancing amongst other effective measures. That did not mean Hong Kongers were safe from COVID-19.

161.  I would have given weight to Dr Chen’s evidence that even if all possible precautionary measures were implemented in Victoria Park during a public meeting of between 50,000 and 100,000 people, she would still be of the same professional opinion that a mass gathering of that nature of which she had had prior personal experience, would be a risk to public health at that material time.

Conclusion

162.  After a careful consideration of the submissions, I find no matters raised by any of the defendants can constitute arguable grounds for an operational proportionality challenge. Accordingly, the constitutional challenge of section 17A (3) of the Public Order Ordinance on an operational level must fail. Both constitutional challenges on the systemic and operational level have failed.

Summary

163.  I have found after trial the prosecution able to prove beyond reasonable doubt that on 4 June 2020, the 4^th and 13^th defendants together with others unlawfully incited other persons to that lawful authority or reasonable excuse, knowingly take part in a public meeting which was an unauthorised assembly.

164.  I have also found after trial the prosecution able to prove beyond reasonable doubt that on the same day the 13^th and 19^th defendants knowingly took part in an unauthorised assembly as defined in section 17A(2)(a) of POO in Victoria Park without lawful authority or reasonable excuse.

165.  I did go on to consider constitutional challenges. The systemic challenge failed for the sole reason that this Court is bound by the decision made by the Court of Final Appeal in Leung Kwok Hung 2005. The constitutionality of section 17A was decided in that authority and a binding precedent.

166.  Similarly, I found the operational challenge failed for the sole reason that there were no matters relied upon by the defendants that could constitute good and arguable grounds for an operational proportionality analysis as envisaged by the Court of Appeal in Leung Kwok Hung (No. 2) 2020.

167.  Accordingly, and despite the clear records of all 3 defendants, I find the 4^th and 13^th defendants guilty of Charge 1. I find the 13^th and 19^th defendants guilty of Charge 3.