HKSAR v. CHAN HO WUN AND OTHERS

DCCC 107/2021

[2021] HKDC 1324

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 107 OF 2021

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REASONS FOR SENTENCE

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1.  There are 8 defendants and 3 charges in this case.

2.  Charge 1 is a joint charge of “Incitement to knowingly take part in an unauthorized assembly[1]” against D1 to D5.  All except D5 pleaded guilty.

3.  Charge 2 is a joint charge of “Holding or organizing an unauthorized assembly[2]” against D1, D3, D4, D6, D7, D8 who all pleaded guilty.

4.  Charge 3 is a joint charge of “Knowingly taking part in an unauthorized assembly[3]” against the same 6 defendants as in charge 2, but only D1 and D7 pleaded guilty to this charge.

5.  All the defendants who pleaded guilty to their respective charges were duly convicted upon their admission to the Amended Summary of Facts.

6.  On the application of the prosecution, charge 3 was ordered to be kept on file, not to be proceeded with against D3, D4, D6 and D8 without the leave of court.

SUMMARY OF FACTS

Charge 1: “Incitement to knowingly take part in an unauthorized assembly”

7.  The facts in relation to charge 1 concern a press conference held on 30 June 2020, where the defendants incited the general public to join them in a procession to take place the following day to voice their opposition to the soon to be promulgated National Security Law.

8.  The holding of the procession was objected to by the Police by way of their refusal to issue a certificate of no objection.  Their decision was upheld on appeal to the Appeal Board on Public Meetings and Processions.  The assembly, which in fact did take place, was, therefore, an unauthorized assembly.

9.  At around 2:15 pm on 30^th June, the 5 defendants stood outside the Court of Final Appeal building and held a press conference, with at least 12 attending media outlets.

10.  At the beginning of the conference, and at various times later on, the defendants held banners that read “反對國安法 七一齊上街”, which translates into “Opposing National Security Law. Let’s march on 1 July”.  They also chanted slogans including “七一街頭見”, or “see you in the street on 1 July”, thereby inciting others to join them in the unauthorized procession.

11.  D1 was the first to speak and announced, among other things, that regardless of whether permission was given, he and those with him will insist on initiating a public procession from East Point Road to Chater Road on 1^st July to oppose the soon to be promulgated National Security Law, to express the views of all the participants peacefully.  He urged all Hong Kong citizen to join the procession, to be united in the voicing of their views against that law.

12.  D2, D4 and D5 took turn to speak and they each appealed to the public to join the procession. D4 said that he understood that the convening of public processions was regulated by law but that he was prepared to be arrested and insisted on taking part in the procession.

13.  D1 clarified that he was taking part in the press conference in his personal capacity, that this will be the fourth time he committed an act of civil disobedience, and urged those of his generation to persist in the expression of their views by way of taking part in the procession.

14.  D3 stood behind D2, D4 and D5 while the others spoke, holding up a poster that read “反對國安法 七一齊上街”。

15.  At the end of the press conference, the 5 defendants stood side by side and held up a similar poster for the press to take photos while they chanted various slogans including “七一上街”.

16.  The said press conference was widely reported in Hong Kong by different media outlets.  D2 also shared a live broadcast of the conference on his Facebook page with the message “七月一日 一息尚存 抗爭到底”，or “1 July Fight until the last breath”.

17.  Based on the facts summarized above, the defendants had jointly incited the public to knowingly take part in the unauthorized assembly to be held on 1 July 2020, and the defendants so incited without lawful authority or reasonable excuse.

Charge 2: “Holding or organizing an unauthorized assembly” and Charge 3: “Knowingly taking part in an unauthorized assembly”

18.  Subsequent to the said press conference and still on the 30^th June, D1 appealed to the general public on his Facebook page to join the unauthorized procession on 1^st July.  D1 stated that himself and D2 to D5 were the initiators of the procession and urged the public not to fear the prohibition and to stand fast on the street, “無懼禁令 堅守街頭”.

19.  Also on 30^th June, D6 posted the messages “反對國安法 七一齊上街” (Opposing National Security Law March on 1 July), and “繼續做一直做的事 繼續嗌一直嗌的口號 反對國安法 71街頭見” (“Continue to do what we have been doing, continue to chant the slogans we have been chanting, oppose National Security Law, see you on the street on July 1”)  on his Facebook page.  

20.  At 11 pm on 30 June 2020, the law of the People’s Republic of China on Safeguarding National Security in HKSAR was promulgated in Hong Kong.

21.  At around 11:55 pm, D4 posted on his Facebook page urging the public to join the procession the following day.

22.  At around 11:58 pm, D7 published a video of himself urging the public to join the procession the following day.

23.  On 1^st July, at 00:42 am and 12:57 pm, D1 appealed to the public on his Facebook page to gather at 2 pm that day and to take part in the procession at 3 pm.

24.  At around 1 pm on 1^st July, a large crowd of protestors started to assemble on East Point Road, Great George Street and Paterson Street in Causeway Bay.  They chanted slogans and refused to leave despite the Police warning them that they were taking part in an unauthorized assembly and appealing for them to disperse.

25.  At around 2:18 pm, D3 publicized his presence in Causeway Bay and asked members of the public to be careful.

26.  At around 2:34 pm, D7 posted a photo of himself together with D1 and D6 at Tin Lok Lane, Causeway Bay.  This post was shared by D2 via his Facebook page at around 2:47pm.

27.  At around 2:50 pm, D1, D6 and D7 together held a banner that read “反對國安惡法 堅持五大訴求” (“Opposing the evil national security law, insisting on the five demands”), while D8 walked alongside.  D3 also marched closely behind them.

28.  D1, D3, D6 and D7 all gestured in support of the five demands.  D1 shouted slogans echoed by D6, D7 and the other participants.

29.  At around 2:55 pm, D1 directed and led the procession to turn from Hennessy Road into Tonnochy Road, where D4 joined and was invited by D7 to hold the above mentioned banner together with D1 and D6, while D3 and D8 followed closely behind.

30.  D1, D3, D6 and D7 each gestured in support of the five demands.  D7 led the procession while chanting slogans that were echoed by D1, D4, D6 and the other participants.

31.  D3, D7 and some of the participants gestured to people standing on a nearby footbridge to go down to join in the procession.

32.  At this time, on Tonnochy Road, there were at least 100 people immediately behind D1, D3, D4, D6, D7 and D8, all participating in the procession held or organized by the six defendants.

33.  At around 3:04 pm, the procession reached the junction of Tonnochy Road and Gloucester Road.  The participants dispersed when Police vehicles entered the area.  As soon as the vehicles had left, the six defendants attempted to re-group the procession and march on towards Gloucester Road.

34.  D1 asked the people to get back to Tonnochy Road; D8 passed the banner to D6 who tried to unfold it and to hold it in front of the procession; D1, D3 and D7 gestured for the five demands while walking to the front of the procession; and D4 returned to the procession on Tonnochy Road.

35.  As a result of Police action, they were not successful in their re-grouping of the procession.

36.  At around 3:26 pm, D1, D7 and D8 went to Wan Shing Street near the cross-harbour tunnel where D1 held a press conference with D7 next to him.

37.  D1 said in the interview that he wanted people to persist with marching on the street despite Police action against that.  He acknowledged the courage of those who were taking part in the procession despite the risk of being held criminally liable. He stated that the key to counter Police dispersal was to have a large number of people, and that with sufficient numbers, they could achieve whatever they wanted.

38.  Based on the above summarized facts, the 6 defendants in charge 2 had held or organized an unauthorized assembly on that day.

39.  Also based on the above summarized facts, D1 and D7 had knowingly taken part in an unauthorized assembly on that day.

OTHER INCIDENTS THAT TOOK PLACE ALONG THE ROUTE OF THE UNAUTHORIZED ASSEMBLY, THE PROCESSION AND NEARBY ROAD ON 1 JULY 2020

40.  Between 3:07 pm and 7:02 pm on 1^st July, along the route of the unauthorized assembly from East Point Road to Chater Road and the route of the procession and the nearby roads, roads were blocked and obstructed by those taking part with railings, traffic cones, bricks, mills barriers and bus stop signs etc.  Small fires were started on the roads and Police officers were confronted and assaulted by protestors who tried to prevent them from subduing a protestor.  Bricks were dug up and threw onto the carriageway. Some of the shops along the routes were forced to close.

TRAFFIC DISRUPTION

41.  As a result of the gathering of people in the vicinity of Causeway Bay to attend the procession, traffic in the area was seriously disrupted on 1^st July and traffic along the route of the procession was seriously affected between 2:22 pm and 9:15 pm.

42.  During the procession, 75 bus routes were suspended, truncated or diverted and 5 minibus routes were suspended.

43.  At the height of the traffic disruption at around 5:20 pm, 94 bus routes and 9 minibus routes had to be diverted or suspended.

44.  45 trams services between North Point Terminus and Western Market Terminus were suspended between 1 pm and 8:35 pm.  Only limited tram routes were able to be maintained during that time.

45.  The defendants were all arrested on 8 December 2020.

PREVIOUS CONVICTIONS

46.  D1 Mr Chan was of clear record at the time of his commission of the present offences.  He has since been convicted of various similar offences that will be referred to later on.

47.  D2 Mr Tsang has two previous convictions.  He was fined $3,000 for one charge of Disorderly conduct in a public place in 1999, and sentenced to 14 days’ imprisonment, suspended for 18 months for an offence of Participating in a prohibited group gathering in March 2021.  This latter conviction is dated after the commission of the present offences and will not be taken as adding to his culpability.  His sentence will not be enhanced based on those records given the lapse of time.

48.  D3 Mr Chui and D4 Mr Wu are both of previously clear record. 

49.  D6 Mr Chu has 3 previous convictions dated October 2012, all relating to civil disobedience matters as at the time of his commission of the offence in charge 2.  Given the lapse of time, I will not enhance his sentence based on those convictions.

50.  He was convicted recently on 15 September 2021 for one charge of Taking part in an unauthorized assembly in the District Court and was sentenced to 6 months’ imprisonment[4]. The assembly in that case took part on 4 June 2020.

51.  D7 Mr Leung has attended court on 22 previous occasions.  His latest set of convictions started in March this year and ended on 15 September 2021, being all related to unauthorized assemblies.

52.  As at the time of his commission of the present 3 offences, his last convictions were in 2016.  Given the lapse of time, I will not enhance his sentence on the basis of those convictions.

53.  D8 Mr Tang is of previously clear record.

MITIGATION

54.  Each of the 7 defendants have provided the court with written submissions.  Apart from D1 Mr Chan, all the other defendants also produced letters written by their friends or relatives in support of their mitigation.  I have considered them all and will not set them out here.

D1

55.  Mr Chan appeared in person.  In his short but eloquent handwritten submissions, he states that he has no regrets in committing the offences, stressing that he was just holding fast to his belief in civil disobedience.

D2

56.  Mr Tsang also wrote, setting out his life story, of how he started from humble beginnings and worked hard to create a lovely family.

57.  Mr Tsang understands that he is very likely to be incarcerated but he will not hold a grudge against the court.  For over 32 years, he never stopped speaking up when he sees injustice and he will continue to do so, acting in accordance with his conscience without regrets.

58.  Mr Ng on behalf of Mr Tsang referred to the District Court case of HKSAR v Lai Chee Ying and Others[5] and asked the court to consider the following matters when setting the appropriate sentences.

59.  They include the defendant’s attitude, the scale of the procession, the age of the defendant and the defendant’s positive contribution to society.

60.  Mr Ng also referred to the case of HKSAR v Chow Ting[6], where the applicant Ms Chow was sentenced to 10 months’ imprisonment after plea for one count of incitement of an unauthorized assembly and one of knowingly taking part in an unauthorized assembly.  Mr Ng pointed to the lesser role of Ms Chow there and suggested that, despite the need for general deterrence, the court should adopt a lower starting point for both D2 and D8 according to their lesser roles and the small scale of the procession, as well as the lack of violence in the present case.

D3

61.  Mr Chui is 54 years old and is going through divorce proceedings.  He was a proprietor of a trading company for most of his working life until 2015 when he ran successfully to be the District Councillor for Yue Wan Constituency. He was re-elected in 2019.

62.  The letters filed in support of Mr Chui allow the court to see that he has been exceptional in his dedication to his job as District Councillor.

63.  Unfortunately, Mr Chui’s health condition has not been good and requires daily insulin injection as well as regular pain medication.

64.  Ms Wong for D3 reminded the court of Mr Chui’s clear record at the time of his commission of the present offences.

65.  Ms Wong also pointed out that, in relation to the incitement charge, D3 did not speak at the press conference, and merely held a poster in the background.  As for the holding and organizing charge, Ms Wong pointed out that the defendant was not walking in the front of the procession, not leading the crowd nor holding a banner.  His was not the most active role as a holder or organizer of the unauthorized assembly.

66.  Ms Wong echoed what Mr Ng said on behalf of D2 and D8, and asked the court to bear in mind that social unrest had significantly receded by June 2020, and that the scale of the procession was relatively small and short-lived.  Furthermore, D3 never intended any violence at the assembly, although he now recognizes that there was always an inherent risk of violence breaking out in events of such a nature.

67.  Ms Wong referred to the case of Secretary for Justice v Wong Chi Fung[7] and accepted that the sentencing principles there are applicable to unauthorized assembly as well, as summarized in paragraphs 151 to 153 of the judgment:-

“151. Drawing the above discussions together, the sentencing principles which the courts should adopt in cases of unlawful assembly involving violence can be summarized as follows:

(1)  In accordance with general sentencing principles, the court will have regard to all the actual circumstances of the case and the seriousness of the facts pertaining to the commission of the offence. Appropriate weight will then be accorded to each applicable sentencing factor, and a sentence that is commensurate with the offence will then be imposed. The same principles apply to cases of unlawful assembly involving violence.

(2)  Although the definition of unlawful assembly in section 18 of the Public Order Ordinance is relatively simple, the range of factual situations covered is wide. The seriousness of the facts involved varies from case to case and may, depending on the actual circumstances, run from the extremely trivial to the extremely serious. Incidents involving violence are certainly much closer to the serious end of cases, but the facts of different cases still vary. So even for the more serious cases there will still be a spectrum of seriousness. Within the spectrum, the court will accord appropriate weight to the applicable sentencing factors based on the actual circumstances of the case and the seriousness of the facts pertaining to the commission of the offence.

(3)  On the basic premise that the public order must be maintained, and taking into account the gravamen of the offence of unlawful assembly, the court has to consider the factor of deterrence in sentencing. As to how much weight it should accord to this factor, the court has to have regard of the actual circumstances of the case.

(4)  If the case is of a relatively minor nature, such as when the unlawful assembly was unpremeditated, small in scale, involving very little violence, and not causing any bodily harm or damage to property, the court may give proportionally more weight[85] to such factors as the personal circumstances of the offender, his motives or reasons for committing the offence and the sentencing factor of rehabilitation while proportionally less weight to the sentencing factor of deterrence.

(5)  If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence and the sentencing factor of rehabilitation.

(6)  After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.

152. Generally speaking, although the facts of minor cases 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. 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 sufficient deterrent effect while its rehabilitative factor can help offenders, especially young offenders, turn over a new leaf.

153. For serious cases, the main purpose of the sentence is to punish and deter. So the overall consideration of the court should be inclined towards imposing an immediate custodial sentence. Unless there are very exceptional circumstances, and these circumstances should by definition be rare, sentences other than an immediate custodial sentence, including suspended sentences and community service orders, are not appropriate.”

D4

68.  Mr Wu also wrote in mitigation, together with a number of distinguished individuals, as well as those who had benefitted firsthand the kindness and generosity of Mr Wu.

69.  Mr Grounds reminded the court that Mr Wu has devoted his life to the Hong Kong community and set out as best he could in a few paragraphs the various achievements of Mr Wu, as well as examples of the dedication he has shown over the years to the service of others.

70.  Mr Grounds pointed out that the unauthorized assembly was in good order and without any threat to public safety, that the offence was committed out of a desire to effect positive change in society, and that the sentencing court may properly take the offender’s conscientious objections and genuine beliefs into account.

71.  It is his submission that the lack of violence; the limited number of participants in the procession; the short duration of the assembly all contribute to suggest that the starting point should be manifestly lower than the 24 months adopted in earlier cases[8].

72.  Lastly, Mr Grounds asks the court to take into proper account the defendant’s clear record, his positive good character, and his contribution to society and suspend his sentence.

D6

73.  Mr Chu is 43. In the written submissions in mitigation prepared by his solicitors, the court is reminded of his dedication to public service and community work over the years.

74.  It is stated in the submissions that the assembly on 1 July 2020 lasted from 14:50 to 15:04 and was at all times peaceful.  The participants assembled in an orderly and organized fashion.  There is no evidence to suggest there will be violence or the threat of it.

75.  D6’s role in the holding and organizing of the unauthorized assembly was merely to chant slogans, holding a banner, and keeping the procession in order.

76.  Mr Chu also relies on the small size of the procession as a mitigating factor, suggesting that the case falls in the lower end of the spectrum of seriousness.

D7

77.  Mr Leung, D7, is 65 and got married recently.  He has been having cardiovascular health issues.

78.  On behalf of the defendant, Mr Anson Wong submitted that the court should take into account the following matters when deciding on the proper sentence.  These are factors distilled from local and overseas cases[9] where a defendant’s right to freedom of expression and assembly were engaged and the court has to consider the appropriate sentence when those rights were interfered with.

79.  First, the defendant had always intended the 1^st July public procession to be held in a peaceful and non-violent manner, and had conducted himself accordingly throughout his organization of the event.

80.  Secondly, the defendant was involved in the public procession for a relatively short period of time, and the procession was of a relatively small scale when compared to the ones that took place in August and October 2019[10].

81.  Mr Wong’s position is that the smaller scale would suggest a lower level of culpability and should be reflected in a lower starting point.

82.  Thirdly, the views that the defendant was trying to convey through organizing the procession related to very important issues, and are “views which many would see as being of considerable breadth, depth and relevance”, and the defendant, together with those jointly charged, “believed in the views they were expressing”.

83.  Mr Wong submitted that the court should not attribute to the defendant any reprehensible conduct which he did not incite, cause or participate in, especially not for events that took place after his participation in the public procession, relying on a passage at paragraph 224 of the Guidelines on Freedom of Peaceful Assembly (3^rd edition, 15 July 2020)  published by the European Commission for Democracy through Law for this proposition.

84.  In gist, it is Mr Wong’s submission that neither the defendant nor those jointly charged with him had incited any violent conduct, and his sentence should so reflect.

85.  As for the disruption to traffic in the Wanchai, Causeway Bay and connected areas, Mr Wong pointed out that such disruption would have occurred regardless of whether the assembly was authorized or not.  He also drew the court’s attention to two cases where the court opined that any meaningful assembly procession or demonstration would cause some measure of obstruction and that it is important for the public authorities to show a certain degree of tolerance[11].

D8

86.  Mr Tang is 59 years old and a divorcée.  He is currently unemployed and suffers from medical conditions concerning his eyesight and blood pressure.

87.  In his letter, Mr Tang says that with hindsight, he regrets his impulsiveness on the day of the offence.  He wishes the court to give weight to his guilty plea, his genuine remorse, his clear record and limited involvement in the holding or organizing of the unauthorized assembly in charge 2.

88.  He also referred to the short duration and small size of the procession as factors to consider when this court decides on his sentence.

89.  On behalf of Mr Tang, counsel Mr Ng supplemented D8’s letter by pointing out that the defendant did not take part in the application for approval from the Police for the procession, nor in the press conference.  His only involvement in relation to the holding or organizing of the procession only started on 1^st July and his role was minor.  D8 did not speak with a loudhailer nor led the crowd in chanting slogans.  D8 only walked along with other defendants and demonstrators.  He did hold up one corner of a large banner when he saw that no one was doing it, but he only did so for about 20 minutes before he handed it over to someone else.

90.  Mr Ng stressed that Mr Tang did not speak to the press, nor actively encourage anyone to join the procession.  He is not a public figure and unlikely that anyone would have been induced by his presence to take part in the procession.

SENTENCE

91.  The maximum sentence on conviction upon indictment for committing a s 17A(3)  offence, or inciting others to so commit, is that of 5 years’ imprisonment.

SENTENCING PRINCIPLES

92.  The sentencing principles applicable in offences related to unauthorized assembly are not in dispute.

93.  Each of the defendants, by way of their adoption of the relevant parts of the mitigation submissions of Mr Ng, Ms Wong, Mr Grounds, Mr Wong and solicitors for D6, is asking the court to consider the matters I have already set out above and I will not repeat them here.

Charge 1: incitement

94.  In relation to the incitement charge, I note first of all that the incitement was directed at all of Hong Kong and that it was covered widely by different media.  The intention of the defendants was clearly to incite as many as possible to join in the procession that they knew will in all likelihood be an unauthorized assembly.

95.  D1 Mr Chan was the first person to speak, and he spoke more than once at the press conference on 30^th June.  He was clearly the spokesperson of the group.

96.  D2 Mr Tsang and D4 Mr Wu also spoke at the conference to incite others to join the procession.  Given the social status of Mr Tsang and Mr Wu, their words would have carried considerable weight towards the intended audiences, amplifying the incitement to a certain extent.

97.  Having said that, the court can take notice that as at the time of the incitement, as a result of Police action, the general situation of Hong Kong had settled down considerably.  This is evidenced by the clearly smaller number of participants in the procession the following day.

98.  Furthermore, out of all the video footages of the procession and the assemblies that took place in or around Causeway Bay and Wanchai, there were only 2 occasions of a small fire being lit in the middle of the road, away from buildings.  There were assorted debris on the road but they would have been easily cleared away.  There was one incident of an organized blockade of the road between Central Library and Victoria Park with umbrella holding protestors but it did not last long.  There was, however, one incident where matter had turned violent when riot Police tried to subdue a protestor.

99.  It is clear from the line of sentencing cases and authorities now in place that, in relation to offences involving the incitement of others to join in unauthorized assemblies, the need to punish and deter is overwhelming and an immediate custodial sentence is the only appropriate option in serious cases involving violence unless there are very exceptional circumstances.

100.  The incitement by the defendants was towards the general public.  Regardless of the eventual turnout, the nature of the incitement was serious.  There was always an inherent risk of matters taking a wrong turn given the volatile atmosphere after the passing of the National Security Law.  I find that an immediate custodial sentence is the only appropriate sentencing option.

101.  As such, after careful consideration of all the circumstances, for their active and vocal role in charge 1, I will adopt a starting point of 18 months’ imprisonment for D1, D2 and D4.

102.  As for D3, Ms Wong rightly pointed out that all Mr Chui did was to hold up a poster while the others spoke, as well as to join in the chanting of slogans from time to time.  For his lesser role in the incitement, I adopt a starting point of 12 months’ imprisonment.

103.  All 4 defendants had entered timely pleas of guilty and they are given the full one-third discount on that basis.  The respective sentences after plea are, therefore, for D1, D2 and D4, 12 months’ imprisonment and 8 months’ imprisonment for D3.

Further reduction in sentence

104.  In recognition of their past contribution to the Hong Kong community as disclosed in their mitigation materials, I will apply a further reduction of 2 months to sentences of D2 and D4.

105.  Also recognizing his contribution to society through his dedication to help others, and taking into consideration Mr Chui’s health condition, I will also grant him a further 2 months’ reduction in sentence.

106.  The sentences after plea and reduction in relation to charge 1 is, therefore, 12 months’ imprisonment for D1, 10 months’ imprisonment for D2 and D4, and 6 months’ imprisonment for D3.

Charge 2: holding and organizing

107.  In relation to charge 2, based on the summary of facts and the video footages, D1 was again the most vocal of the group and was clearly a leading figure.

108.  Much was said by all the defendants as to the short duration of the procession.  On their different estimates, it lasted between 4 to 40 minutes.  While this may be true, one must not overlook the reason it did not last longer was because of swift and effective Police action.  I find that it is an irresistible inference that had the Police not been there, the procession would have gone on for much longer.  In fact, from the video footages, one can clearly hear D1 saying that he “will not give up so easily” after the Police appeared to have broken up the procession at the junction of Tonnochy and Gloucester Road.

109.  For a charge of holding or organizing an authorized assembly, I find that the intention of the holder or organizer for the procession to continue must be one of the factors to be considered when deciding on the defendants’ culpability, alongside the fact that the scale of the procession was relatively small.

110.  Different to the assemblies that took place in August and October 2019 which were dealt with in the earlier cases referred to in mitigations above, the social unrest situation had settled down slightly by the end of June 2020.

111.  Furthermore, it is clear that the defendants had wanted the procession to be peaceful and non-violent.  Although they must also have known from watching what had happened in the 2019 protests that the situation was still volatile and realized that there was always a risk of violence breaking out when they held or organized the unauthorized assembly.

112.  Taking into consideration the general sentencing principles referred to above when dealing with charge 1, I find that for D3, D4, D6, D7 and D8, I will each adopt a starting point of 12 month’s imprisonment based on their apparently lesser role in the holding or organizing of the unauthorized assembly.

113.  As for D1, for his leading role in the commission of the offence, I will adopt a starting point of 18 months’ imprisonment.

114.  The defendants all entered timely pleas of guilty and are granted the full one-third discount, taking the sentences down to 12 months for D1, and 8 months for D3, D4, D6, D7 and D8.

115.  Apart from D1, in recognition of their past contribution to society, as well as their health condition in the cases of D3 and D7, I will further reduce the defendants’ sentences by 2 months.  The resulting sentence for D3, D4, D6, D7 and D8 for charge 2 is, therefore, 6 months’ imprisonment. 

Charge 3: knowingly taking part in an unauthorized assembly

116.  Only D1 and D7 are being sentenced for this offence.

117.  Bearing in mind the relatively small scale of the assembly, the low level of violence involved, but being aware of the need to punish and deter, I find that an immediate custodial sentence is required and adopt a starting point of 15 months’ imprisonment for the two defendants.

118.  They both pleaded guilty and is granted the full one-third discount, leading to a sentence of 10 months’ imprisonment after plea.

119.  Just as before, in recognition of D7 Mr Leung’s past contribution to the community and taking into consideration his health condition, I will further reduce his sentence by 2 months, resulting in 8 months’ imprisonment for D7, and 10 months’ imprisonment for D1 on charge 3.

TOTALITY

120.  The issue of totality of sentence arises in the case of D1, D3, D4, D6 and D7, either because of them having been convicted of more than one charge in the present case, or because they are serving other sentences from earlier cases, or both.

121.  First of all, I find that in the present case, all 3 offences arose out of the same factual matrix, and that the sentences for those who are being sentenced for more than one charge should be made concurrent, and I so order.

122.  The total sentence for D3 and D4 is, therefore, 6 and 10 months’ imprisonment respectively.

D1: charges 1, 2 and 3 and his serving sentence

123.  D1 was of clear record when he committed the offences in the present case.

124.  He was, however, sentenced on 28 May 2021 to 18 months’ imprisonment in the District Court case of HKSAR v Chan Ho Wun and others [2021] HKDC 645; DCCC 534/2020 for one charge of “Incitement to knowingly take part in an unauthorized assembly” and one charge of “Holding or organizing an unauthorized assembly”.  The assembly in that case took place on 1 October 2019.

125.  He was next sentenced on 1 September 2021 to 16 months’ imprisonment in HKSAR v Chan Ho Wun and others [2021] HKDC 1100; DCCC 535/2020 for two similar offences.  The assembly took place on 20 October 2019.  The sentences in this case was ordered to run concurrently to the sentence in the earlier case.

126.  Mr Chan was last sentenced on 15 September 2021 in HKSAR v Ho Chun Yan and others[12] [2021] HKDC 1160; DCCC 857/2020 to 10 months’ imprisonment for Charge 1 (similar to our charge 1)  and 6 months’ imprisonment for Charge 3 (similar to our charge 3), to be served concurrently.  This sentence was then ordered to run concurrently to the sentences he was then serving.  The unauthorized assembly in that case took place on 4 June 2020.

127.  HH Judge Woodcock gave the following reasons for her decision to make the sentences concurrent:-

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

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

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

128.  While I agree entirely in principle with HH Judge Woodcock, given the close proximity in time of the offences committed in the present case after the previous one, I find, however, that part of the sentence should be made consecutive in order to properly reflect the culpability on D1’s part in inciting, organizing and taking part in another unauthorized assembly in such a short time.

129.  I will, therefore, order 3 months of the sentence in the present case to be served consecutively to the sentence that Mr Chan is presently serving, the balance to be served concurrently.

D7: charges 2 and 3 and his serving sentence

130.  In relation to D7, Mr Leung was sentenced to a total of 18 months’ imprisonment on 16 April 2021 for two identical charges arising out of an unauthorized assembly on 18 August 2019 in HKSAR v Lai Chee Ying and others [2021] HKDC 457; DCCC 536/2020.

131.  About 1 month later on 28 May 2021, Mr Leung was sentenced to a total of 18 months’ imprisonment for two identical charges for the unauthorized assembly held on 1 October 2019 in the case of HKSAR v Chan Ho Wun and others [2021] HKDC 645; DCCC 534/2020. HH Judge Woodcock ordered that 4 months of this sentence to be served consecutively to the earlier sentence, resulting in a total sentence of 22 months’ imprisonment for the two cases.

132.  On 1 September 2021, Mr Leung was sentenced for two identical offences in relation to a third unauthorized assembly held on 20 October 2019 to 18 months’ imprisonment, but reduced by 2 months for time already served in the 18 August and 1 October 2019 assemblies, leading to a sentence of 16 months’ imprisonment.  This 16 months sentence was then ordered to run concurrently to the sentences for the 18 August and 1 October 2019 assemblies.  That was the case of DCCC 535/2020.

133.  2 weeks after that 3^rd sentencing exercise, Mr Leung was before HH Judge Woodcock again for one charge of “knowingly taking part in an unauthorized assembly” where he was sentenced to 6 months’ imprisonment.  That sentence was also ordered to be served concurrently to the rest of the sentences that Mr Leung was serving.  This was DCCC 857/2020.

134.  This is Mr Leung’s fourth conviction for organizing or taking part in unauthorized assemblies.  Given that one of the key considerations in sentencing this kind of offences is deterrence, it would appear that the previous sentences have failed to achieve any such effect.  This is, of course, entirely understandable and if Mr Leung is to hold true to his beliefs, it is likely that no amount of enhancement reasonably applied would stop him from continuing to express his views as he sees fit.

135.  Bearing in mind the principle of totality, especially the circumstances of the defendant’s commission of the offences, both in relation to the present case and the previous 3 cases, but also the health condition of Mr Leung, I find that I must order that 1 month of the sentences in the present case to be served consecutively to the rest of the sentences, the balance to be served concurrently.

D6: charge 2 and his serving sentence

136.  D6 was convicted recently on 15 September 2021 for one charge of “taking part in an unauthorized assembly” in the District Court and was sentenced to 6 months’ imprisonment[13]. The assembly in that case took part on 4 June 2020.  This sentence gives rise to the issue of totality in sentencing the defendant in the present case.

137.  Mr Chu’s solicitors submit that the previous proceedings and the present one arose from the similar or same kind of offence, that is to say, a public procession.  D6 had similar roles in both the 4^th June and the 1^st July assembly.  They ask that the final sentence should reflect the true and limited culpability of D6  and ask that the sentence in the present case be ordered to run concurrently to the sentence in the earlier case.

138.  I find that I cannot agree entirely with Mr Chu’s solicitors’ submissions.  Just as in the case of D1 and D7, Mr Chu chose to commit the present offence just 27 days after he committed the offence in relation to the 4 June 2020 unauthorized assembly.  In order to properly reflect his culpability, I find that 2 months of Mr Chu’s sentence in the present case should be served consecutively to the sentence he is presently serving. 

FINAL SENTENCES

139.  For ease of reference, the final sentences after plea are tabulated as below:-

	Charge 1	Charge 2	Charge 3	After Totality in present case
D1	12	12	10	12
D2	10	-	-	10
D3	6	6	-	6
D4	10	6	-	10
D6	-	6	-	6
D7	-	6	8	8
D8	-	6	-	6

TOTALITY IN RELATION TO SENTENCES IN EARLIER CASES FOR D1, D6 AND D7

140.  In relation to D1, 3 months of the 12-month sentence in the present case to be served consecutively to the sentence he is now serving, the balance to be served concurrently.

141.  In relation to D6, 2 months of the 6-month sentence in the present case be served consecutively to the sentence he is now serving, the balance to be served concurrently.

142.  In relation to D7, 1 month of the 8-month sentence in the present case be served consecutively to the sentence he is now serving, the balance to be served concurrently.