SECRETARY FOR JUSTICE v. CHUNG KA HO

[English Translation – 英譯本]

CAAR 4/2020

[2020] HKCA 990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 4 OF 2020

(ON REVIEW FROM ESCC 2461/2019)

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REASONS FOR JUDGMENT

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Hon Pang JA (giving the Reasons for Judgment of the Court):

A.      Introduction

1.  On 4 June 2020, the respondent was convicted upon his guilty plea of one charge of “unlawful assembly”[1]. The other charge on the charge sheet, namely “possession of offensive weapon”[2], was withdrawn.  On the same day, after hearing the defence submission for mitigation, the trial magistrate Mr Ho Chun Yiu (the magistrate) called for a report on community service order in respect of the respondent.  On 18 June 2020, the magistrate adopted the recommendation in the report[3], and sentenced the respondent by ordering him to perform community service for 120 hours.

2.  The applicant considered the sentence was wrong in principle and manifestly inadequate, and therefore made an application to the Court of Appeal for leave to apply for review pursuant to section 81A of the Criminal Procedure Ordinance, Cap 221.  Leave was granted on 6 July 2020.

3.  On 19 November 2020, after the formal hearing, this court held that the applicant’s grounds of review were established and substituted the respondent’s original sentence with three months’ imprisonment.  These are our reasons.

B.      Charge and facts

4.  The charge alleged that the respondent took part in an unlawful assembly with other persons unknown outside Nos 9-13 of Lyndhurst Terrace, Central, Hong Kong on 31 October 2019 (ie the day of Halloween last year).

5.  The facts agreed by both sides are set out below.

6.  At around 10:30 on the night in question, about 400 to 500 protesters took part in an unauthorised assembly at the location in question and blocked the carriageway there.  The police thus arrived at the scene and took action.

7.  The police formed a check-line on Lyndhurst Terrace in the direction of Gage Street, at about 30 metres from the crowd of protesters on higher terrain.  At that time, most of the protesters were dressed in dark colour and had their faces covered with masks or scarves.  They were holding printed banners.  They kept on making hand gestures, shouting slogans, scolding with abusive words and projecting laser beams at the police.  Some protesters even blocked the roadway with miscellaneous items and objects.

8.  Between 10:49 and 10:54 on the same evening, a police inspector gave warnings to the protesters with a loudspeaker on three occasions, telling them that they were taking part in an unlawful assembly and violating the Prohibition on Face Covering Regulation[4].  The police also raised flags to warn the protesters that they had to disperse and remove their face coverings immediately.

9.  During the confrontation between the two sides, the respondent was found to be standing in the forefront row among the protesters. He was wearing a black cap, covering his mouth and nose with a blue-and-white scarf, wearing a dark long-sleeved top, long pants and black trainers, and also carrying a black rucksack.  It was also shown in the screen shots captured from the video footage (see paragraph 13 below) that the [respondent] was wearing spectacles but having a pair of diving goggles on his forehead as well.

10.  In the course of confrontation, the respondent once left the protesters, picked up two gunny bags from the roadside and then threw the bags to the middle of the road, which was a few metres in front of the protesters.  Afterwards, he moved back to the crowd of protesters.

11.  Since the protesters ignored the warnings, refused to leave, continued to occupy the roadway and kept on shouting slogans, the police advanced towards Gage Street at 10:55 in the same evening.  The protesters turned to run away, and the respondent was however subdued and arrested.

12.  The police found upon searching the respondent’s rucksack a black cap, a pair of diving goggles, two pairs of gloves, two scarves and a 120 cm long sectional wooden pole.  The pole was the subject of the withdrawn charge of possession of offensive weapon.  The respondent remained silent under caution.

C.     Video recordings of the scene and related screen shots

13.  In addition to the agreed facts, the prosecution and the defence have also produced to the court the video recordings made at the scene and relevant screen shots[5].  Some clips of the video recordings were played in court[6].

14.  After watching the video recordings, the magistrate on his own initiative confirmed with the prosecution: “[‘]extreme violence[’] was not applicable in this case”, “the people assembling were relatively self-restrained”, and “the defendant [after] being arrested did not struggle [or] resist”.  Counsel on fiat for the prosecution indicated that it was “agreed”[7].

15.  During the defence mitigation, the magistrate also mentioned that the protesters were holding banners with contents including [“]appealing to people to take part in the procession on November 2”, whilst the defence said that the slogans chanted were “fight for freedom[”] and so on[8]. As to other matters shown on the video, for example, the masks worn by the protesters (many were so-called “Guy Fawkes masks”), neither the magistrate nor the defence has touched upon them.

D.     The respondent’s background and mitigation

16.  At the time of the offence, the respondent was aged 24, single, working as a waiter in the food and beverage department of a hotel.  He had a clear record before the present case.

17.  The defence in their submission asserted that the unlawful assembly in the present case was “peaceful”, the vast majority of the protesters were only holding banners and making hand gestures, while the banners and slogans were “not really very provoking [or] insulting”, and there was not “any scene of much blood and gore” in the overall incident.  The defence emphasised that the protesters “basically” had no weapon.  The video did not capture anyone charging on the police, and in fact no police officer was injured.  The defence accepted there were “different social events” in Hong Kong at the time of the offence, but stressed that “the assembly happened at any specific location in any specific hour on any specific day should be viewed separately” [9].

18.  The defence stressed that the respondent was standing amongst the crowd most of the time.  Although he had thrown the sandbags, it must have been done with very little force and he had no intention to throw them at the police check-line because eventually the sandbags only landed on somewhere which was “a few persons’ distance” away from him.  The defence also said that the respondent resumed standing at his original position immediately after throwing the bags, “no idea of what he was doing”, obviously showing no intention to attack the police check-line.  The defence emphasised that he did not struggle after being arrested, and the prosecution already withdrew the charge in relation to the sectional pole[10].

19.  The defence referred to an observation of the Court of Appeal in Wong Chi Fung, which was subsequently accepted by the Court of Final Appeal[11], that if the case was of relatively minor nature, the court might give proportionally more weight to such factors as the personal circumstances of the offender, his motives for committing the offence and the sentencing factor of rehabilitation while proportionally less weight to the sentencing factor of deterrence[12].

20.  The defence submitted that the respondent fully satisfied the requirements for having a community service order[13].

21.  The defence submitted the letters for mitigation written by the respondent himself and also his mother and elder brother.  The respondent repeatedly mentioned in his letter that he had the heart to “help others”, “love Hong Kong” and “help this city”, nevertheless he stated explicitly that he learnt he should first “increase his own value” and therefore enrolled on a course of tree management[14].

E.      Original sentence

22.  The magistrate had made clear at the first hearing that he found that the unlawful assembly in the present case was “relatively mild” and even “peaceful”, and that the behaviour of the respondent himself was not “very violent”, nor did he “intend to injure others”, and he therefore thought that he might consider sentencing the respondent by making a community service order[15].

23.  On the very day of sentencing, the magistrate referred to Wong Chi Fung again, his main points were identical to what the defence had emphasised in mitigation (see paragraph 19 above)[16].  Moreover, he also reiterated the reasons why the facts of the present case might be considered as less serious[17]:

“This case … although … involving four to five hundred people, was not to be regarded as in a small scale, …these people who assembled … only shouted slogans, made hand gestures, projecting laser beams at police officers and so on, which were relatively mild behaviour. More importantly, as what the prosecution have earlier on … confirmed, this case did not involve any behaviour which was considered to be violent by the Court of Appeal. I also do not see that … anyone was injured or any property damaged because of this unlawful assembly.”

24.  He explained why in his view a community service order was the most appropriate sentence in the present case[18].

“…The facts of this case … I think that it is closer to the end of the scale, as the Court of Appeal referred to as relatively mild … . Therefore, … the court may give to the sentencing factors such as the personal circumstances, motive and reasons for committing the offence and rehabilitation … proportionally more weight. Of course, the Court ofAppeal has also emphasised that generally speaking, although … the facts of the case are not that serious, the court is still required to ensure that the public order is effectively maintained. So there remains a need for sentences to be suitably deterrent… . Considering from this perspective, if all the six factors set out in Brown are present, or the facts of the case are suitable … a community service order can be an appropriate sentencing option. It is because the punitive factor in a community service order can be regarded as having a proportionate deterrent effect while its rehabilitative factor can help offenders, especially young offenders, turn over a new leaf. The Court of Appeal has also reiterated that a community service order provided for both retribution and rehabilitation, and it is not a lenient … sentence by itself. And a community service order also provides for remedy. An offender contributes to society through unpaid work so that the public affected by the damage caused by the offender would benefit.”

25.  The magistrate emphasised that the report in relation to the respondent was positive.  He said that the respondent had a decent background and committed the offence only because of his failing to think over the consequence.  He has learnt a precious lesson from these proceedings[19].

F.      Reasons for review

26.  The applicant was represented by Mr Derek Lau, Senior Public Prosecutor.  The following summary of the grounds for review is a consolidation based on the applicant’s written application and Mr Lau’s written and verbal submissions.

F.1    Ground (1): The magistrate underestimated the seriousness of the present case and failed to give sufficient weight to the factors of punishment and deterrence.

27.  The gravamen of the offence of taking part in an unlawful assembly is the participants’ acting in large numbers and using those large numbers to achieve their common purpose.  Authorities in England and Hong Kong have had various analyses and discussions on the threats caused to public order by such situation, its seriousness and why it is serious[20].

28.  The provision for the offence of taking part in an unlawful assembly is a preventive measure against the said threats. This offence is designed to nip in the bud the consequences which may arise from a breach of the peace in society.  This point has also been addressed by precedents in Hong Kong[21].

29.  In Wong Chi Fung[22], the Court of Appeal succinctly reviewed the precedents mentioned above.  Furthermore, the Court also emphatically pointed out the importance of the sentencing factors of punishment and deterrence by referring to the gravamen of and the reasons for the provision for the offence.  The Court of Appeal pointed out that the sentence of taking part in an unlawful assembly must be made on the basic premise of maintaining public order.

30.  Admittedly, the Court of Appeal also indicated the weight that the court should accord to individual sentencing factor depends on the actual circumstances of the case.  However, if the facts were serious, such as involving violence and the factors set out in the judgment[23], the factors of punishment and deterrence should still be given the greatest weight.

31.  Although the magistrate said that he had borne in mind the judgment of Wong Chi Fung, he did not fully and properly consider the seriousness of the present case in accordance with that case and the precedents mentioned therein.  What he had overlooked includes: the scale of the unlawful assembly in question was in fact so large that the participants far outnumbered the police officers at the scene; the participants’ gathering in the narrow streets with buildings on both sides put the personal safety of the people at the scene at high risk; in view of the clothing and outfits of the protesters and the respondent, they took part with a plan and premeditation; the protesters and the respondent conducted themselves in an extremely provocative manner, pushing the highly charged atmosphere up further; and their refusal to comply with the police order of dispersal allowed the confrontation to carry on for 25 minutes, the risk of breaking out of violence hence increased.

32.  According to the recent case of Leung Kwok Hung (No 2) (date of judgment: 9 April 2020)[24]: the participants of unlawful assembly who could conceal their identities by wearing masks tended to be more emboldened and get more mutual support and encouragement; and those participants’ refusal to leave despite police warnings would further worsen the peace of public already under threats.  In addition, the Prohibition on Face Covering Regulation had just come into effect at the material time, it was still a binding legislation albeit under judicial review.  Yet, the protesters and the respondent blatantly disregarded and violated it.  These were all factors aggravating the circumstances of the case but overlooked by the magistrate.

33.  The magistrate, by saying that the respondent himself did not behave with excessive violence or intend to cause harm to others, in fact forgot the gravamen of the offence of taking part in an unlawful assembly.  As said above, participation in an unlawful assembly threatened public order because of what was done jointly by the participants and not any individual’s act.

34.  The magistrate said that he bore in mind the principle laid down in Wong Chi Fung, but he classified the present case as “relatively mild” due to the absence of physical conflict or damage of property, and eventually the two factors, namely punishment and deterrence, were not given the weight that they deserved, resulting in an inadequate sentence on the respondent.  In conclusion, he merely paid lip service to the relevant principle.

F.2    Ground (2): The magistrate failed to assess the respondent’s culpability properly

35.  Even if the gravamen of the offence was put aside, and only the respondent’s personal behaviour was discussed, the magistrate had seriously underestimated the respondent’s culpability.  The magistrate ignored the following circumstances: the respondent was standing at the forefront of the protesters, showing his active participation; he was wearing a cap, face masked and dressed in dark colour, showing that he was premeditated to commit the offence and planned well in advance to conceal his identity; and the respondent conducted himself in an extremely provocative way by throwing gunny bags when the two sides were confronting.

F.3    Ground (3): Having considered the facts as a whole, a sentence by way of a community service order was wrong in principle and manifestly inadequate

36.  According to the relevant precedents: unless there are very exceptional and really rare circumstances, for an offence of which the main purpose of sentencing is obviously punishment and deterrence, a sentence other than an immediately custodial sentence is not appropriate[25]; for an offence which clearly calls for a deterrent sentence, even if the offender is suitable for a community service order, it is generally not appropriate for the court to impose one[26]; good character and remorse are generally not justified for not imposing a deterrent sentence[27]; although a community service order is described as “not a soft option”, its punitive and deterrent effects are undeniably lighter than that of an immediate custodial sentence[28]; and even if there is the principle of sentencing practice that a deterrent sentence should not be passed on a man with a clear record, such principle is not applicable to offences against public order[29].

37.  In dealing with the present case, it is obviously necessary to take punishment and deterrence as the main purposes.  Also, in the present case, there are no exceptional and rare circumstances like those described in the precedents.  Under such circumstances, the sentence of community service order is plainly wrong in principle and manifestly inadequate.

G.     Respondent’s response

38.  Ms Jessica Leung was counsel for the defence at trial, she and Mr Joe Chan represented the respondent in this review. However, Mr Chan could not attend this hearing.  The respondent’s response may be summarised as follows.

G1.   Re Ground of review (1)

39.  The magistrate had fully examined the facts of the present case and briefly pointed out the material facts in the case, for example the number of participants and protesters, their behaviour and so on.  On such basis, the magistrate found that the unlawful assembly in question was “mild” and “involved no violence”.  This was a conclusion open to him and also confirmed by the prosecution.  Unless such conclusion resulted in the imposition of a manifestly inadequate sentence, the Court of Appeal is not entitled to replace it with its own conclusion and revise the sentence[30].

40.  The principle laid down by the Court of Appeal in Wong Chi Fung was applicable only to unlawful assembly involving violence, and the Court of Final Appeal did not go beyond it in dealing with the case.  Since violence was generally interpreted as attacking other people or damaging property with violence, and there was no attack on others and no damage of property in the present case, the principle in Wong Chi Fung was not applicable.

41.  As to the unlawful assembly in the present case, although it was in relatively large scale with participants in high emotions and some of them were masked, all unlawful assemblies have the common features of the participants’ acting in large numbers and using those large numbers to achieve their common purpose, and that is also the main reason which put public order under threat.  Therefore, merely having participants in sheer numbers, masked and in escalating spirit did not make an unlawful assembly more serious.  It is violence that makes an unlawful assembly more serious.

42.  After confronting the police for 25 minutes, the protesters did not charge at the police or use any form of violence, which was sufficient to show that not only no violence was involved in the present case, but the risk of having violence was also not high, and at most one could only say that the atmosphere was tense at the scene.

43.  It was not the case that the magistrate placed no corresponding weight on punishment and deterrence according to the seriousness of the present case.  It was clearly pointed out that a community service order did cover various elements of sentence, and since no violence was involved, he found that it was the most appropriate sentence in the present case.  This was wholly within his power, and the Court of Appeal should be slow to intervene[31].

G2.   Re Ground of review (2)

44.  What the respondent did was not sufficient to increase the seriousness of the present case substantially.  The sandbags were merely picked up by him casually from a heap of construction materials lying by the roadside.  He threw the sandbags without aiming at the police check-line. He did not throw them with the intention to intimate to or encourage other protesters to charge forward, and he himself returned to his original position immediately afterwards.  In fact, he was only standing among the protesters most of the time and did not resist after arrest.  He might have come with a plan but he had not used any gear (in particular the sectional wooden pole) for attacking the police (the charge of possession of offensive weapon was withdrawn).

G3.   Re Ground of review (3)

45.  Precedents revealed that community service orders were even imposed for unlawful assemblies involving minor violence such as pressing the bodies against the police line for a short time, breaking open the gate entrance by charging at the security guards and so on[32].  The exceptional and rare circumstances mentioned in the precedents were not necessary in cases of minor nature for community service order to be imposed.  The present case was an example.

G4.   Respondent’s recent condition

46.  This court was informed by Ms Leung that due to the COVID-19 pandemic, the respondent had not been able to get any suitable job assignment for some time, and he had performed 8 hours’ service as on the day of the review hearing.

H.     Discussion and analysis

H1.   Importance of gravamen of offence

47.  The applicant’s submission that the magistrate should have seriously considered the gravamen of the offence concerned is correct.

48.  Poon JA (as he then was) said in section H (“Sentencing principles”) in Wong Chi Fung, at paragraph 107, “In deciding how much weight to be attached to a particular sentencing factor, the court will, generally speaking, consider the nature and seriousness of the offence,” which means the gravamen, and it was placed even before “the seriousness of the facts surrounding the commission of the offence, the consequences of the offence, the offender’s motive for committing the offence, and the personal circumstances of the offender, etc”.

49.  In passing sentence for the offence of taking part in an unlawful assembly, the court has to sufficiently and fully grasp the gravamen concerned.  This is not simply for complying with the general principle of sentencing, but is also because the public hazard which this charge directs at is often more extensive than the apparent acts of committing the offence.

50.  Poon JA pointed out in section H.2 of Wong Chi Fung[33] that a line had to be drawn between citizens’ right to have “peaceful meeting” and the conduct which “disrupts or threatens to disrupt public order” and “uses or threatens to use violence”.  This line must not be crossed, lest public order could not be preserved and society would be prone to descend into anarchy which was the crux of the public hazard.  Poon JA went on and used the entire sub-section H.3 to discuss the gravamen of the offence of taking part in an unlawful assembly[34] in order to explain the feature of the offence and how this feature would lead to and even aggravate the said public hazard.  A full understanding can hardly be achieved merely by looking at the criminal acts on a superficial level.

51.  In order to remind all people concerned that serious consideration must be given to the gravamen of the offence in similar cases of taking part in unlawful assembly, this court repeats the most relevant part of H.3 below.  This part is also cited and relied on by the applicant in their first ground of review:

“123. In sentencing, the court will consider the gravamen of the offence with which an offender is charged. The gravamen of the offence of unlawful assembly is the participants’ acting in large numbers and using those large numbers to achieve their common purpose: see Caird, per Sachs LJ at pp. 504-505. The offence of unlawful assembly in Caird is a common law offence, but the gravamen of that offence is the same as the offence in section 18 of the Public Order Ordinance: see Leung Kwok Wah per Lam JA (as he then was) at [18]-[22].

124. In the more recent case of R v Gilmour [2011] EWCA Crim 2458, Hughes LJ observed:

“It is an unavoidable feature of mass disorder that each individual act, whatever might be its character taken on its own, inflames and encourages others to behave similarly, and that the harm done to the public stems from the combined effect of what is done en masse.”

In R v Blackshaw [2001] EWCA Crim 2312, Lord Judge, the Lord Chief Justice, took a similar view. In describing the state of mind of the offenders in a violent unlawful assembly, he said at [9]:

“The reality is that the offenders were deriving support and comfort and encouragement from being together with other offenders around them. Perhaps too, the sheer numbers involved may have led some of the offenders to believe that they were untouchable and would escape detection.”

125. Although the charges in Gilmour and Blackshaw were not unlawful assembly, but were other offences of disrupting the public order, the fact that the offenders were trying to achieve their common goal by sheer numbers, is a characteristic common to all offences of massive public disorder. Thus the above observations by Hughes LJ and Judge LCJ are equally applicable to the section 18 offence.

126. Furthermore, we know from experience that, when a large number of demonstrators are gathered, emotions are likely to run high, or the crowd may even become agitated, so that these situations have the inherent risk of breaking out into violence. Occasionally, unruly elements may also be present, who would seize the opportunity to achieve the very objective of fomenting violence. Such risks cannot be overlooked: see The Queen v To Kwan-hang [1995] 1 HKCLR 251, per Macdougall VP at p.257. It follows that the provision on unlawful assembly under section 18 is a necessary preventive measure, designed to nip in the bud the serious consequences which may arise from a breach of the peace or possible breach of the peace: see Leung Kwok Wah per Lam JA at [40].

127. On the basic premise that public order must be maintained, and taking into account the gravamen of the offence of unlawful assembly, the court, in passing sentence, not only has to impose a penalty that is appropriate to the punishment of the offenders, but it also has to take into account the factor of deterrence.  That is to say, a sentence must not only seek to prevent the offenders from reoffending, but also to give a warning to deter others from violating the law by breaking and disrupting public order in like manner. The weight that the court should accord to this factor of deterrence depends on the actual circumstances of the case.  If the case is sufficiently serious, it is necessary for the court to impose a deterrent sentence.”

H2.   The question of whether violence was actually used

52.  In Wong Chi Fung, the heading of H.3 is “Gravamen of the offence of unlawful assembly”.  Its content is applicable not only to violent unlawful assembly, but also to those not involving actual violence.  In fact, it was not until the next sub-section, ie H.4, under the heading “Disrupting public order with violence” that Poon JA commenced the discussion directly concerned with violence.

53.  However, it is worthy to note the last two paragraphs in H.3[35]. They respectively point out (see the extract at paragraph 51 above): First, when a large number of protesters gather, emotions are likely to run high, so that the situation has the inherent risk of breaking out into violence, and such risk may increase if unruly elements seize the opportunity to foment trouble.  Second, the court should, on the basic premise that public order must be maintained, impose deterrent sentence for unlawful assembly having serious circumstances.  From these two paragraphs, it can be seen that the serious cases requiring the court to deal with by heavy penalties include unlawful assemblies involving no actual violence but on the verge of breaking out in view of the overall circumstances.  After all, the offence of taking part in unlawful assembly is designed for pre-emptive purpose, aiming at nipping in the bud the breach of public peace.

54.  Dividing unlawful assemblies into violent and non-violent ones and making artificial differentiation at the time of sentence are not only inconsistent with the content of H.3 but also unreasonable and not sustainable to reasoning.  As what has just been mentioned above, even though no offender had assaulted anyone, thrown any object or charged at the police check-line, where many were gathering on a special day within a narrow and crowded area or somewhere which may have other risks due to the environment, asserting their position on controversial issues in a radical and provocative manner and refusing to leave despite repeated police warnings, were such circumstances not serious, and is it definitely not necessary to impose a punitive and deterrent sentence?  This is not, and cannot possibly be, the intention of Wong Chi Fung.

55.  The suggestions above are only examples, and it does not require the presence of all the examples to make an unlawful assembly serious.  Whether the situation is serious depends on the actual circumstances of the case.  In passing, we take this opportunity to point out that what have been identified by Poon JA in Wong Chi Fung at paragraph 135, namely the factors assisting the court to determine the seriousness of a particular violent unlawful assembly[36], may also be applicable with modifications to the so-called non-violent unlawful assembly.  For example, existence of a plan, number of participants, location, area affected, duration, intensity of the means, consequence of the criminal acts and the defendant’s role and so on, are actually general aggravating factors, and the courts should be able to apply them with flexibility.  As to point (7) on the list, namely even if there was no injury, nor any loss or damage to properties, “what imminence and gravity of threat was caused by the violent acts” may be modified to become: where there was no actual violence, what imminence and threat of actual disruption of public peace was caused by the criminal acts.

56.  In conclusion, it is unfounded to claim that the judgment in Wong Chi Fung is applicable only to unlawful assembly involving violence.  It is never the judgment in Wong Chi Fung that sentence with relatively more punitive and deterrent effect should not be imposed if no actual violent act is involved.  It all depends on the actual circumstances of the case concerned.

H3.   Being masked, potential risk and refusal to disperse

57.  In Leung Kwok Hung (No 2)[37], the Court of Appeal referred to what the expert witness said in that case[38]: Mask functions as a facilitator of anonymity.  When anonymity joins with group functions, the participants’ responsibilities become easily diffused or shared.  Individuals tend to feel they are being supported by a lot of people.  This is an emboldenment effect.  If the dominant group value or purpose in the situation is anti-social, the individual will conform to that and be more likely to act anti-socially.[39]

58.  The above expert evidence is consistent with people’s general life experience.  Concealed identity can truly remove one’s scruple easily.  This point is important because according to both academic research and inference by common sense, participants who are masked in an unlawful assembly would easily lose self-control, and the risk for the assembly to break into violence would greatly increase.

59.  It was also mentioned at paragraph 226 in Leung Kwok Hung (No 2): Given the potential for rapid deterioration of the situation and the serious ramifications for the maintenance of law and order and safety of those at the scene, a person who refuses to disperse or leave a large assembly upon police orders perpetuates a state of affairs which disrupts public order and gives rise to a serious threat to the reservation of public peace.  By remaining at the assembly, even without the commission of further act of violence or threat of violence, such person perpetuates the worsening situation which can potentially escalate to serious violent confrontations.[40]

60.  Although Leung Kwok Hung (No.2) is related to the constitutionality of the Prohibition on Face Covering Regulation, the above paragraph in the judgment is helpful in dealing with unlawful assembly involving no actual violence.  It again points out that one of the concerning matters to the court is the potential risk for an unlawful assembly to break into a violent clash.  The risk would be even greater if most participants are masked.  As to the participants’ refusal to disperse mentioned in the paragraph, the court has to be careful in dealing with it in sentencing and not to readily regard it as a factor aggravating the sentence of an individual defendant, otherwise it will be an overlap of the conduct of gathering itself.  It all depends on the actual circumstances of the case.

H4.   Great disparity in number of people and provocative behaviour

61.  The case in Tang Ho Yin was decided last year (date of judgment: 5 June 2019)[41]. Macrae VP of the Court of Appeal pointed out at paragraph 27 in the judgment: [T]he inevitable danger of any highly charged confrontation is that violence that is not contained or controlled will escalate; particularly where law enforcement officers are heavily outnumbered. Such an escalation may result in widespread damage, arson, looting, injury and even death.[42]

62.  Admittedly, Tang Ho Yin involved riot, and the riotous behaviour had already taken place.  By citing that case, the applicant only intended to say on such basis that even for non-violent unlawful assembly, while the police were greatly outnumbered by the people gathering, the risk of actual violence would increase.  In our view, this proposition is correct.  Yet, the confrontation has to reach a highly charged state as stated in the quoted paragraph in the judgment, otherwise the risk may not necessarily escalate.  In addition, the great disparity in the number of people on the two sides generally does not amount to an aggravating factor to the sentence on the individual defendant but can only assist the court in determining the overall seriousness of a particular unlawful assembly.

63.  Another point put forward by the applicant was that the participants of the unlawful assembly were behaving in a very provocative manner.  Examples identified by the applicant in the present case include: some people among the crowds of protesters projected strong light and laser beams at the police check-line; the protesters kept on shouting not only slogans but also slogans mixed with many abusive words; and the respondent himself threw the sandbags onto the middle of the road. Moreover, many people among the protesters were masked, blatantly violating the Prohibition on Face Covering Regulation and resisting the police order which required them to remove their face coverings.  Such behaviour can also be regarded as provocative.

64.  Provocation should not simply be understood as challenging the law enforcement officers and public power.  Whether or not certain behaviour is provocative also depends on the possible reactions resulted among the protesters and those present with different views.  In fact, since law enforcement officers ought to be professional and restrained, whether or not people of the latter two types would be incited or further incited is a much more important consideration.  If the protesters would or might be incited or further incited, and strong reactions would be or might be aroused among people having different views, then the risk of having violent clashes would increase and so would the overall seriousness of the unlawful assembly.  Even if there was nobody from the opposite side or opposite camp at the scene, and only the protesters themselves were being incited or further incited, the risk of violence would still increase, and the only difference would be the degree of escalation.  It all depends on the actual circumstances of the case.

65.  The provocative behaviour of individual defendant may, but does not necessarily, amount to an aggravating factor of the sentence on the defendant.  By throwing sandbags onto the middle of the road, the respondent obviously tried to show his intention to carry on blocking the road, and the inciting effect on the protesters cannot be taken lightly.

H5.   Special day and high risk location

66.  This court has watched the video recordings which had been played at trial and it was confirmed by both sides: the protesters’ hand gestures consisted of vulgar ones and those having five fingers up; the slogans said “Revolution of Our Times”, “fight for freedom” and “stand for Hong Kong”; banners lifted included “11.2  3 pm”, “why need letter of no objection” and “Seek help from the world. Safeguard Hong Kong. See you in Victoria Park”.

67.  Both sides did not dispute that the day in question was the first day of the judicial review hearing on the Prohibition on Face Covering Regulation at the Court of First Instance[43], which attracted wide public concern because there were many objections against the Regulation. Moreover, it was Halloween night when many citizens came out to seek fun.  As to the location of the offence, it was mainly narrow slopes at and near Lyndhurst Terrace with buildings densely packed on both sides of the streets.  The defence in mitigation also frankly accepted that the location of the offence was “a narrow street entrance”[44].  Finally, the crowdedness in Lan Kwai Fong, which is not far away, on Halloween night is a fact well known to all people in Hong Kong.

68.  On the basis of the above facts, this court would make two points.

69.  First is the nature of the unlawful assembly in question.  It was obviously related to the Fugitive Offenders (Amendment) Bill at that time.  The intense debates aroused by this Bill and the public order problems followed were unprecedented and still in the heat at the time of the offence.  In addition, the Prohibition of Face Covering Regulation which was promulgated at almost the same time was no less controversial.  The risk for the assembly in question to break out into violence rapidly was extremely high, which the court should have considered in passing sentence.  Secondly, many citizens would be in the vicinity but the surrounding condition made dispersal difficult.  In case violent clashes took place, the consequence would be rather serious.  This is also a point that the court should have noticed.

70.  In fact, back in Law Man Chung, the case of desecrating the national flag (date of judgment on 24 April 2020), the Court of Appeal already discussed how the factors such as date, time, location and occasion affected the overall seriousness of cases[45], which was repeated in Kung Yat Kan, Clifford, a recent case of assaulting a police officer during the “three major suspensions” (date of reasons for judgment on 9 November 2020)[46]. Courts of various levels should refer to them.  It is specifically pointed out here that the above factors are completely unrelated to the offenders’ political stance.  The court’s only concern is whether people at the scene would kick up a row because of the criminal acts under the influence of the said factors, thereby raising the risk of violent clashes. This must be considered at the time of passing sentence.

H.6   Respondent’s submissions

71.  Ms Leung acting for the respondent submitted that Wong Chi Fung was only applicable to unlawful assembly involving violence, which is her misconception of the case.  See paragraphs 52 to 56 in this judgment.

72.  Ms Leung asserted that the trial judge understood the facts of the present case and was entitled to conclude that the unlawful assembly in question was “mild” and “not involving violence”.  She contended that large number of participants, high emotions, and even deterioration caused by face coverings were circumstances commonly seen in unlawful assemblies and did not make a case involving no actual violence more serious.  She submitted that the risk was low because no violent clash broke out after the confrontation of 25 minutes. Such submissions just ignored the public hazard behind the offence of participation in unlawful assembly, the gravamen of the offence, the pre-emptive nature of the charge, and the reason why the risk of violence could escalate in the present case.  See sections H1 to H5 in this judgment, in particular paragraphs 53, 58, 60, 62, 64 and 69.

73.  Ms Leung suggested that the respondent’s culpability was low because on the one hand she emphasised that the respondent had no intention to attack the police check-line, but on the other hand she avoided the provocation he demonstrated by throwing the sandbags.  Similarly, she stressed that the respondent was standing and doing nothing special most of the time.  But she again avoided his active participation by choosing to position himself in the forefront.  She stressed that the respondent had not used the wooden pole inside the backpack nor resisted in the arrest; but she selectively evaded the fact that he came with equipment.

74.  Ms Leung averred that a community service order was an appropriate sentence only by playing down the unlawful assembly in question and the respondent’s personal culpability.  The cases she cited are not comparable with the present case.

H.7   Consideration by the magistrate

75.  In our view, the magistrate was too superficial to conclude and assess the unlawful assembly in question as “mild” and even “peaceful”.  This was due to his misunderstanding of Wong Chi Fung, thinking that an unlawful assembly involving no actual or only minor violence was not serious (projecting laser beams directly at someone’s eyes may amount to assault).  This is plainly wrong according to the analyses (actually a review to a large extent) done by this court under the headings mentioned above.  Pure and simple, the protesters in the present case did not have to turn and flee when the police advanced.  Only if a small group of radical elements resisted, it would be difficult to predict what would happen next, such as whether others would be incited to join in.  Furthermore, the case happened when social conflicts were heated, the possibility that some radical elements mixed into a large assembly, waiting for the opportunity to take action, just could not be ruled out.  See To Kwan Hang[47] cited in Wong Chi Fung at paragraph 126, as mentioned at paragraph 51 above, and Leung Kwok Hung (No 2)[48] at paragraph 14(3).

76.  In conclusion, the magistrate lacked a full grasp of the public hazard of the offence of unlawful assembly, the gravamen of the offence, the pre-emptive nature of the offence, and the risk of the present case breaking out into violent clashes, and he therefore has underestimated the seriousness of the present case substantially.  He only focused on the respondent having no intention to attack the police and not resisting in the arrest, and as a result seriously underestimated the respondent’s personal culpability.

77.  The magistrate failed to give consideration to the above two aspects. This was wrong in principle.  As a result, he thought that a community service order was an appropriate sentence, which was in fact manifestly inadequate.  In the light of the overall seriousness of the present case and the respondent’s personal culpability, immediate imprisonment is the only appropriate sentence.  This is unavoidable notwithstanding that the respondent has a positive background.  This is the judgment of this court.

I.       Substitution of sentence

78.  Having regard to all the circumstances in relation to the present case, this court adopted a starting point of six months in sentencing.  The respondent is given a one-third discount for his guilty plea, and the term is reduced to four months.  Since this is a review of sentence, and the respondent has already performed community service for eight hours, we exercise our discretion and further reduce the sentence by one month to three months.

J.      Order

79.  The applicant’s application for review of sentence is granted.  The original sentence of community service order is set aside and substituted with an order of three months’ imprisonment with immediate effect.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.