HKSAR v. CHEUNG KING SANG KINSON AND OTHERS

Press Summary (English)

Press Summary (Chinese)

DCCC 917/2021

[2023] HKDC 1463

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 917 OF 2021

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REASONS FOR SENTENCE

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1.  The 4 defendants are charged with the following offences:

(1)  Advocating Terrorism, contrary to Article 27 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (the NSL) in Schedule to the Promulgation of National Law 2020 (LN 136 of 2020) (Charge 1); and

(2)  Incitement to wound with intent, contrary to Common Law, section 17(a) of the Offences Against the Person Ordinance, Cap 212, and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong (Charge 2).

2.  Charge 2 is an alternative charge to Charge 1.

3.  All 4 defendants pleaded guilty to Charge 2. Their pleas were accepted by the prosecution. Charge 1 was dismissed.

4.  These are the reasons for sentence.

Admitted Facts

5.  The facts admitted by the defendants are as follows:

Unlawful wounding of an officer of the Hong Kong Police Force with intent on 1 July 2021 (the Incident)

(1)  On 1 July 2021 (which was the HKSAR Establishment Day), there were appeals on the Internet for protests on Hong Kong Island.

(2)  At around 2205 hours on 1 July, a uniformed police officer (the Police Officer) and his colleagues from the Police Tactical Unit were deployed on static positioning in response to the call for protests. When the Police Officer was performing this duty outside SOGO Department Store in Causeway Bay, a Chinese male LEUNG Kin Fai (LEUNG) suddenly approached the Police Officer from behind and used a sabre knife to stab the Police Officer’s left upper back once. When the other police officers at scene tried to subdue LEUNG, LEUNG immediately stepped backwards, scattered 8 USBs and used the same sabre knife to stab his own left chest twice to commit suicide.

(3)  LEUNG was certified dead at the Ruttonjee Hospital at 2320 hours as a result of his suicidal conduct. The Police Officer sustained a 10 cm stab wound. He was admitted to hospital, received 21 stitches and was granted sick leave.

(4)  The 8 USBs scattered by LEUNG were found to contain photographs of the sabre knife together with its parts and a picture of how to conceal the sabre knife with clothing. They also contained LEUNG’s “will notes”, showing his plot of the attack, his intention to kill himself thereafter and his hostility towards the Hong Kong Police Force.

(5)  Immediately after the Incident and between 1 and 6 July 2021, the Government issued statements and press releases to publicly condemn violence and acts undermining public order. The Incident was characterised by the Government as a “lone-wolf terrorist attack”. The Incident and the Government’s statements and press releases were extensively covered by the media, including but not limited to NOW TV, Inmediahk, HK01, TVB, Commercial Radio Hong Kong, Speakout.hk, Ming Pao and UNDERGRAD (the official editorial board of the Hong Kong University Students’ Union). In their reports of the Incident, the existence of LEUNG’s “will notes” was mentioned but not their contents.

Roles of D1 to D4 at the material time

(6)  At the material time, the Hong Kong University Students’ Union (HKUSU) (also known as the Students’ Union or the Union) was the main body of the students’ association in the University of Hong Kong (HKU) and was registered under the Societies Ordinance, Cap 151. According to its structure, the Hong Kong University Students’ Union Council (HKUSUC) had the function of representing members of the HKUSU in such matters that affect their interests and afforded a recognised means of communication between the HKUSU and the University authorities. At the material times, the roles of D1 to D4 in the HKUSUC were as follows:

(a)  D1 was the Chairperson of the HKUSUC. He was elected to this position on 28 February 2021. In July 2021, D1 was a 2^nd year Bachelor of Social Science (Government and Laws) and Bachelor of Laws student in HKU;

(b)  D2 was the President of the Executive Committee of HKUSU. He was elected to this position in May 2021. At the time of election, D2 and his union executive members under the name of “DEFINANCE (薪燧)” issued a campaign manifesto setting out their views and position. In July 2021, D2 was a third year Bachelor of Engineering (Civil Engineering) student in HKU;

(c)  D3 was the representative of Simon K Y Lee Hall Students’ Association HKSU in the HKUSUC, representing members of the Simon K Y Lee Hall Students’ Association HKUSU. Simon K Y Lee Hall is a residential hall or dormitory of HKU. The Association is a body of students formed by members of that Hall and was affiliated to the HKUSU. In July 2021, D3 was a first year Bachelor of Arts student in HKU;

(d)  D4 was the representative of the Arts Association HKUSU at the HKUSUC, representing members of the Arts Association HKUSU. This Association was formed by students in the Arts Faculty of HKU and was affiliated with HKUSU. In July 2021, D4 was a first year Bachelor of Arts student at HKU.

Websites and Social Media Platforms of the HKUSU, HKUSUC and related entities

(7)  At the material times, the means of publication of the HKUSU, HKUSUC and related entities were as follows:

(a)  HKUSU operated and maintained a Facebook page and a website for publication of content, which were all open to public view;

(b)  HKUSUC operated and maintained a Facebook page for publication of content, which was open to public view;

(c)  The official editorial board of HKUSU, namely UNDERGRAD, operated and maintained a Facebook page, an Instagram account and a website for publication of content, which were all open to public view. The publications of UNDERGRAD may take the form of real-time videos and/or publication of the recent affairs, meetings and resolutions of HKUSUC;

(d)  The audio-visual medium of HKUSU, CAMPUS TV, operated and maintained a Facebook page, an Instagram account and a YouTube channel for publication of content, which were all open to public view. The publications of CAMPUS TV may take the form of real-time videos and/or publication of the recent affairs, meetings and resolutions of the HKUSUC.

(8)  Facebook and Instagram are popular online social media and social networking platforms. YouTube is the most popular global online video sharing and social media platform. All such platforms provide for live broadcasting and other real-time and/or publication for immediate access and circulation of content. Such platforms can be accessed by means of the Internet from devices, such as personal computers, tablets and smart mobile telephones etc. No payment is required for the use of such platforms. Anyone can view content which is published for public view by users of such platforms and the contents can be shared with others.

Incitement to wound with intent by D1 to D4 through the calling, holding, making and publication of statements at the 3^rd Emergency Council Meeting Session 2021 of the HKUSUC (the 3^rd Meeting)

(9)  In the context of the Incident, where LEUNG’s conduct constituted an unlawful wounding of the Police Officer with intent, the official statements and press releases by the Government and wide publication of news relating to the Incident, D1 to D4 individually and jointly incited others to wound police officers.

(10)  In the small hours of 5 July 2021, D1 as the Chairperson of the HKUSUC sent emails to the council members and members of the HKUSUC to convene the 3^rd Meeting. This meeting was to be held at 1900 hours on 7 July 2021 at the Union Council Chamber UG201, Union Building of the University of Hong Kong. An agenda of the meeting was enclosed in those emails. Item 1 in Section B of the agenda items was “To discuss the death of Mr Leung Kin Fai”. This was the only item which did not relate to the ordinary affairs and businesses of the HKUSU or its related entities.

(11)  At about 0155 hours on the same day, a post was also published in the Facebook page of the HKUSUC with the same notice of meeting and agenda. The Facebook page of the HKUSU was open to public view with 4,517 followers and 4,359 likes as of 17 August 2021. This post remains accessible as of 11 September 2023.

[See Annex 1:  screen capture of the post on the HKUSUC Facebook page]

(12)  The 3^rd Meeting was held on 7 July 2021 between 1914 hours and 2203 hours. Proceedings were conducted in both Punti and English. The meeting was attended by D1 to D4 and about 30 other members. The meeting was filmed by CAMPUS TV and was broadcasted live on its Facebook page and YouTube channel. The video footage was deleted by 16 July 2021. The police were provided with a copy of the video by a person (not D1 to D4) when enquiries were made during a search of the HKUSU.

[See Annex 2:  Transcript of the 3^rd Meeting; Annex 2A: Translation of Annex 2 – where D1 was referred to as person A, D2 was person B, D3 was person D and D4 was person C]

(13)  During the 3^rd Meeting (which was broadcasted live), D1 to D4 conducted themselves in the following manner:

(a)  D1 as Chairperson of the HKUSUC opened the meeting by saying:

“I now invite the Union Council to rise and observe a minute of silence as we remember the honourable sacrifice of Mr Leung Kin Fai, a fellow citizen of Hong Kong on the 1 July 2021。本席為於二零二一年七月一日，為香港犧牲的梁健輝先生默哀一分鐘” [See counter 1 of Annex 2 and Annex 2A]

(b)  After around 6 minutes of discussion of other matters, D1 moved to the agenda item “To discuss the death of Mr Leung Kin Fai” and invited D2 to speak [See counter 7 of Annex 2 and Annex 2A]

(c)  D2 introduced himself and explained the reason of submitting the Motion. He stated that the regime had classified LEUNG’s death as a lone-wolf terrorist attack and that all memorial activities were classified as illegal. D2 equated LEUNG’s death to the death of M/LEUNG Ling Kit, who fell to his death from Pacific Place during one of the unlawful events which commenced in Hong Kong in June 2019. D2 described LEUNG as a “martyr who sacrificed a lot, including his life, for Hong Kong”. In addition to the one minute of silence observed earlier on in the meeting, D2 wished to mourn LEUNG with the Motion and to record the Incident in the history of the HKUSU [See counter 8 of Annex 2 and Annex 2A].

(d)  D1 then announced that the following Motion was received:

“… that the Union Council expresses its deep sadness in the death of Mr Leung Kin Fai, offers its sympathy and condolences to his family and friends, appreciates his sacrifice to Hong Kong” (the Motion).

D2 was the proposer and D3 was the seconder of the Motion. After asking whether D3 had anything to say and D3 indicating that he had nothing to say, D1 invited D4 to speak. [See counter 9 of Annex 2 and Annex 2A]

(e)  D4 introduced himself and reiterated “the importance” of the Incident. He stated that the Incident took place in a year which was so “desperate” and invited members of the HKUSUC to “express their views” on the Incident and the Motion [See counter 10 of Annex 2 and Annex 2A].

(f)  No other attendees indicated that they wished to speak. D1 then again invited those attendees who wished to express their condolences through the Motion to speak and repeated the wording of the Motion. After ascertaining that no one wished to speak, D1 put the Motion to the vote. The Motion was passed as a resolution of the HKUSUC (the Resolution). There were a total of 32 votes, out of which 30 were in favour of the Motion, 0 against and 2 abstentions [See counters 13 and 80 of Annex 2 and Annex 2A].

(g)  Thereafter, D1 invited D3 to speak about the Resolution as part of the comments. D3 stated that:

“… probably this year… when history is distorted, starts to be distorted, (I) hope that everyone will really remember the sacrifice made by martyr LEUNG for Hong Kong, that is… Just seven days after the Incident, Hong Kong police has begun to use various reasons to stifle Hongkongers’ expression of condolences or some acts of speaking the truth… I hope… every Hongkonger, every student of the University of Hong Kong can… at least… the least we can do is to remember the truth and to do as much as possible. That is, probably some memorial activities, also can just do (your) part yourself as a Hongkonger” [See counter 81 of Annex 2 and Annex 2A].

(h)  D4 then stated that there was no discussion on the Motion and the Motion has been passed as a resolution because “everyone do not have any argument about this Motion”. With reference to the unlawful events in Hong Kong since June 2019, D4 asserted that “defeatism and cynicism have pervaded Hong Kong”. In respect of the Incident, he said that it was a big shock to learn of the Incident, be it from Facebook, television or news media. He continued by saying “Some people, even in such a desperate environment, they would make… sacrifices for Hong Kong, … sacrifice their own lives…”. He called himself a coward who could not admit his weakness “under such a huge totalitarian suppression”. He stated that LEUNG, an ordinary citizen and a mere staff of Vitasoy has been characterised by the regime as a terrorist. He referred to President XI Jinping’s statement on 1 July 2021 at Tiananmen Square calling on the 1.4 billion people “to form brass fortresses and iron walls to protect the Communist Party” and asserted that those are the “true terrorists” who are “really steeped in blood”. He alleged that those regarded as terrorists by the Communist Party are in fact heroes. D4 went on to “express the highest respect for Mr Leung” who “showed the best side of human nature” by sacrificing his life for “the greater good” [See counter 83 of Annex 2 and Annex 2A].

(i)  In the absence of further comments, D1 concluded by asking all members of the HKUSUC to “restrain” their grief. He undertook to try his best “to convey the respect” from the HKUSUC members to LEUNG’s family [See counter 84 of Annex 2 and Annex 2A].

(14)  As was the practice for other HKUSUC meetings, the proceedings of the 3^rd Meeting were filmed by CAMPUS TV and were broadcasted live on its Facebook page and YouTube platform.

(15)  The written text of the Resolution was published and reported either in real time or published shortly after the Resolution in the Facebook pages of UNDERGRAD and CAMPUS TV. As at about 1240 hours on 17 August 2021, the Facebook post of UNDERGRAD covering the Resolution attracted 253 likes, 65 comments and 14 shares. As at about 1805 hours on 21 July 2021, the Facebook post of CAMPUS TV covering the Resolution attracted 1,253 likes, 110 comments and 108 shares. The same or similar content was also published on the Instagram and/or the website of UNDERGRAD and CAMPUS TV.

(16)  The Resolution was also widely reported by the news media between 7 July 2021 and 9 July 2021.

(17)  The holding of the the 3^rd Meeting and the Resolution were extensively covered by various news media and were all published for public view, particularly between 7 July 2021 and 9 July 2021.

Events after the incitement to wound with intent by D1 to D4

(18)  In response to the 3^rd Meeting and the Resolution, the Government issued public statements condemning the conduct, including that of D1 to D4. In its statement on 8 July 2021, the Security Bureau condemned the HKUSUC for “beautifying” and treating as heroic the blatant violence of the attacker who attempted to murder a police officer [See Annex 3: Government press release].

(19)  On 8 July 2021, the HKU also condemned the Resolution for “glorifying violent attacks”. The HKU’s response was published by UNDERGRAD and CAMPUS TV on their websites and/or social media platforms [See Annex 4: screen capture of HKU’s response on the Instagram of CAMPUS TV; Annex 4A: English translation of Annex 4].

(20)  After the above events, and not until 0100 hours on 9 July 2021 did D2 hold a press conference with other students dressed in black T-shirts. D2 read out a letter of apology issued by the HKUSU. He stated that the Resolution was inappropriate and that the HKUSU did not intend to encourage or promote any illegal or unlawful behaviour. He further said that “as a gesture of apology”, the HKUSUC will withdraw the Resolution and the members of the HKUSU Executive Committee will resign immediately. D2 explained that that meant the persons present at the press conference (who were the members of such Executive Committee) will resign. D1 was not present at the press conference. This press conference was filmed by CAMPUS TV and was broadcasted live on its Facebook and YouTube platforms. The video is still accessible as of 11 September 2023 [See Annex 5: Transcript of the press conference; Annex 5A: English translation of Annex 5 where D2 was referred to as person A].

(21)  On 10 July 2021 between 1824 hours and 2252 hours, the 4^th Emergency Council Meeting of the HKUSUC Session 2021 (the 4^th Meeting) was held. The proceedings were filmed by CAMPUS TV and broadcasted live on its Facebook and YouTube platforms. This video was deleted by 16 July 2021. The police was provided with a copy of the video by a person (not D1 to D4) when enquiries were made during the search the HKUSU [See Annex 6: Transcript of the 4^th Meeting; Annex 6A: Translation of Annex 6 where D1 was referred to as person A].

(22)  At the 4^th Meeting, D1 continued to act as the chairperson whilst D2 to D4 were absent. D3 and D4 were said to be absent because of private matters. D1 read out letters from D3 and D4. D3 thanked D1, D2 and others for all that he had learnt in Session 2021; he wished “HKUSU and our dear city all the best”. D4 also thanked D1 and stated that he was “sorry for all my inability and cowardice” [See counters 8, 12, 109 of Annex 6 and Annex 6A]. During the meeting, the Motion and the Resolution were rescinded [See counter 107 of Annex 6 and Annex 6A]. D2’s letter of resignation was read out at this meeting. He stated that “the ups and downs that we have gone through has made this journey a remarkable one yet with regret”. His resignation from his post of president of the HKUSU Executive Committee was voted upon and passed as a resolution [See counter 109, 165 of Annex 6 and Annex 6A].

Police Investigation and search of HKUSU and related premises

(23)  On 16 July 2021, the police conducted enquiries at and a search of the HKUSU. The police obtained the relevant footages of the 3^rd Meeting. Search of the premises resulted in the seizure of exhibits, including name displays, the constitution, rules and regulations of the HKUSU and/or the HKUSUC and other similar documents. Sketches of the premises were made and photographs were taken, including the venue of the 3^rd Meeting. In particular, a copy of a letter purporting to be “A letter of Apology from the Hong Kong University Students’ Union” was found and seized at the UNDERGRAD office.

Arrest of D1 to D4

(24)  On 18 August 2021, D1 to D4 were respectively arrested for “Conspiracy to advocate terrorism”. Under caution, D2 to D4 exercised their right to remain silent. Upon arrest and under caution, D1 stated: “I was the chairman of HKUSUC. I did participate in chairing the HKU Students’ Union’s 3^rd Emergency Council Meeting on the evening of the 7 July 2021 that you have just talked about”. In subsequent cautioned interviews, D1 stated, inter alia, :

(a)  he took up the role as chairperson of the HKUSUC in March 2021. As the chairperson, he was responsible for drafting agendas, convening and holding the HKUSUC meetings;

(b)  CAMPUS TV would conduct live broadcasts of the meetings, while CAMPUS TV and UNDERGRAD would publish reports relating to meetings;

(c)  At the time, D1 as the chairperson hosted and convened the 3^rd Meeting which took place at 1900 hours on 7 July 2021. He was responsible for drafting the agenda. Emergency Council Meetings would be called to discuss urgent matters or agenda when the time was insufficient to call an ordinary Council Meeting. D1 had the power to convene such emergency meetings or pursuant to the joint requests of several HKUSUC members;

(d)  He included “To discuss the death of LEUNG Kin Fai” as an agenda item because some students indicated that the Incident was important and worthy of discussion and he was of the same view;

(e)  D1 admitted to have led the attendees to observe a minute of silence for LEUNG at the meeting;

(f)  D2 was the proposer and D3 was the seconder of the Motion. D1 admitted that D3 and D4 made statements relating to the Motion but D1 claimed to have no recollection of what they said;

(g)  D1 admitted that he knew that the representatives of UNDERGRAD and CAMPUS TV abstained from voting on the Motion. He claimed that he had forgotten who had attended the 3^rd Meeting;

(h)  D1 understood that the 3^rd Meeting would be filmed or broadcasted live by CAMPUS TV. He knew that UNDERGRAD and CAMPUS TV had social media platforms to broadcast and publish the proceedings of the meeting to the public;

(i)  D1 claimed that he should remain neutral at the meeting and hence he would not proactively stop any person from speaking as he was worried about a conflict of interest. However, D1 admitted that on previous occasions, he had stopped students from raising topics relating to national unification. At the 3^rd Meeting, he was not sensitive enough to stop students from raising the matter and he felt remorseful.

(25)  D1’s digital devices were seized and were subjected to forensic examination. The police found PDF files in D1’s Dell laptop which contain the agenda of the 3^rd and 4^th Meetings signed by D1. Those files were found to have been deleted before D1’s arrest but were recovered in the trash folder at 1703 hours on 20 July 2021.

(26)  Digital devices of D2 were seized and were subjected to forensic examination. A document which appeared to be a draft of the purported “Apology Letter” in respect of the Resolution was found in D2’s MacBook. A copy of the annual report of the Current Affairs Committee of the HKUSUC in Session 2020 was also recovered in the same laptop. This showed that D1 to D4 had been involved in the activities of that committee before their common membership in the HKUSUC.

Charge 2:  “Incitement to wound with intent”

(27)  At the time of Charge 2, D1 to D4 jointly and by their individual conduct at the 3^rd Meeting, unlawfully incited other persons to unlawfully and maliciously wound officers of the Hong Kong Police Force with intent to do grievous bodily harm to those police officers.

(28)  In particular, D1 to D4 publicly advocated LEUNG’s wounding of the Police Officer to incite others, including but not limited to HKUSUC members present at the 3^rd Meeting as well as persons who had access to the video of the 3^rd Meeting on the websites, news media and/or social media platforms (which were open to the public). At the material time, D1 to D4 knew that the Incident garnered widespread media publicity and they committed Charge 2 in that context.

Sentencing Principles

6.  Wounding with intent under section 17 of the Offences Against the Person Ordinance, Cap 212 is an extremely serious offence, the maximum sentence for which is life imprisonment. Pursuant to section 101I of the Criminal Procedure Ordinance, Cap 221, the maximum sentence for incitement to commit wounding with intent is also life imprisonment. There is no tariff.

7.  There is no dispute that the sentencing principles for this type of cases are set out in HKSAR v Poon Yung Wai [2021] HKCA 510. In that case, the respondent was convicted of one count of “inciting others to take part in an unlawful assembly” at San Uk Ling after trial. At the time, San Uk Ling was used as a temporary holding centre for protesters arrested since June 2019 due to unlawful assemblies. The respondent was a user of Facebook and was a member of the Facebook group “Not climbing over the wall is hard; it’s hard not to climb over the wall (exclusively for political topics)”. During that period, this group had at least 10,000 to 20,000 members. At around 0339 hours on 19 September 2019, the respondent published a post to the group alleging that he had a former schoolmate who was a “black cop”. He asserted that this schoolmate told him after a few drinks that the female detainees in San Uk Ling were raped (including gang raped) or sexually assaulted by the police whilst many other detainees committed suicide or were beaten to death. Applications by Justices of the Peace to visit the facility were refused. The respondent subsequently admitted under caution that those assertions were false.

8.  The Magistrate sentenced the respondent to 160 hours of community service. The Court of Appeal held that the sentence was manifestly inadequate and substituted it with a sentence of 13 months’ imprisonment.

9.  In paragraph 20 of that Judgment, the Court of Appeal listed some factors which the prosecution urged the court to consider in sentencing for the offence of incitement to commit unlawful assembly:

(1)  the manner of incitement and the number of recipients;

(2)  Whether it was a single incitement or some means was used to enhance the effect of the incitement;

(3)  Whether it was spontaneous or premeditated;

(4)  As regards the unlawful assembly that might take place:

(a)  The contemplated number of people involved;

(b)  The contemplated degree of violence;

(c)  The contemplated scale of violence;

(d)  The possible consequences;

(e)  The gravity and degree of imminence of the possible threat;

(5)  Whether the act of incitement in fact led to an unlawful assembly or other related illegal acts (even though the situation was perhaps not yet an unlawful assembly or had become more serious, such as a riot);

(6)  The subject location.

10.  The Court of Appeal held that:

“33. Inciting others to commit an offence is a common law offence and one of the inchoate offences. Put simply, a person is guilty of incitement if he persuades or encourages another to commit an act which would constitute a crime if done by the other: R v Curr [1968] 2 QB 944. The offence of incitement was created to prevent the commission of crimes and therefore it is sufficient to constitute incitement even if the crime is not carried out or attempted: R v Higgins [1801] 2 East 5.

34. The gravamen of the offence of incitement is to:

(1) stop people from persuading or encouraging others to commit crime, even if no one so persuaded or encouraged carried out the crime; and

(2) allow intervention of the law at the earliest possible time to stop a person who has been incited from carrying out the relevant crime.

35. With regard to the penalty for the offence of incitement, section 101I(2)(c) of the Criminal Procedure Ordinance provides:

“Where a person is convicted of –
Incitement, to commit an offence for which a maximum penalty is provided by any Ordinance and no penalty is otherwise provided by any Ordinance for such… incitement, he shall be liable to be sentenced to that maximum penalty.”

36. The maximum penalty provided by section 101I(2)(c) for the offence of incitement is the one for the crime the subject of the incitement since the offence of incitement requires there to be a target crime. The culpability of that crime does necessarily relate to the inciter’s culpability for his incitement as he incited another person to commit the crime despite not committing it himself. Consequently, in determining sentence for a person who has committed the offence of incitement, consideration needs to be given to the crime incited by him as well as its culpability and sentence; the approach to consideration should depend on the actual circumstances of the case. In general, the factors submitted by (the prosecution) as set out in [20] above are of some reference value for the offence of incitement to unlawful assembly. In any given case, whether these factors are applicable or whether there are any other factors that need to be considered, and the application of an applicable factor in assessing the offender’s culpability are dependent on the actual circumstances of the case.

37. The present case concerns inciting others to commit unlawful assembly involving violence. In Wong Chi Fung, the Court of Appeal and the Court of Final Appeal both emphasised that unlawful assembly involving violence was a serious offence for which the court was required to give sufficient consideration to deterrence and punishment in sentencing. Likewise, inciting others to commit unlawful assembly involving violence is of course a serious offence for which the court is also required to do the same in sentencing. In addition, the facts of the offence committed by the respondent were grave, which considerably aggravated his culpability, and the court must severely punish and deter.

38. First, according to the general sentencing principles, the context of offending is of relevance to the gravity of an offence and the culpability of an offender: see Tse Chung, at p 458; Divin, at [20]. In the present case, the respondent committed the offence amid a series of persistent, serious and violent confrontations and illegal acts in Hong Kong, among which were many large-scale protracted riots or unlawful assemblies involving violence that affected extensive areas or quite a number of places. The respondent’s inciting others in this social context and under these circumstances to commit unlawful assembly involving violence clearly increased the risk of breaking social peace and order.

39. Second, the respondent incited others to take part in an unlawful assembly targeting the San Uk Ling Holding Centre, which was then a temporary holding centre for the police to cope with large-scale arrests in their operations against unlawful meetings. By targeting the police facility, the respondent not only intended to impede the police’s work there but also made a direct challenge to the law enforcement by the police, in particular, their enforcement in response to the severe threat to social order Hong Kong was facing at the time.

40. Third, related to the second point is that the respondent described, in the 1^st post, police officers at the San Uk Ling Holding Centre as “black cops”, smearing them by saying that they sexually molested female protesters in ways that were extreme and cruel, that some male protesters were even “beaten to death alive” and that requests for visits from Justices of the Peace who had received reports were declined. The respondent’s wordings and accusations could very easily stir up in readers of the post intense dissatisfaction or even disgust for the police, and could lead to deepened distrust of, or even animosity towards, the police on the part of the readers, especially those who already had suspicion or dissatisfaction against the police. This would undermine the credibility of the police and, in turn, affect their enforcement of the law.

41. Fourth, the respondent posted the posts in question in an online group having more than 10,000 members. It is common knowledge that messages posted on the internet can circulate rapidly and widely. The respondent, in choosing to incite by means of this, albeit without specifying the time, obviously intended to incite, as soon as possible, many people to go to San Uk Ling Holding Centre for a violent unlawful assembly. His conduct aggravated his culpability: see Blackshaw, at [73]; Yiu Ka Kiu, at [28].

42. Fifth, the contents of the posts in question were all fabrications. In order to boost his credibility, the respondent even made up a character of a “black cop former schoolmate” who told him after drinking. Some members in the Group said that they believed what was stated in the posts. When some other members remarked that they did not, the respondent argued with them, insisting all the time on the truthfulness of the contents of his posts. This is compounding the wrongdoing knowingly committed.

43. On the whole, the respondent’s culpability is very high, necessitating a sentence of sufficient punishment and deterrence. Immediate custody is the only appropriate sentencing option.”

11.  In R v Umran Javed [2008] 2 Cr App R(S) 12, the English Court of Appeal held that in sentencing inchoate offences that can lead others to commit the target crime:

“… it is material to have regard to the period of time covered by the offending, the sophistication, skill and industry devoted to it, and the likelihood that the offending would lead others to commit acts of [the target crime], or may even have done so.”

Whether Charge 2 is an Excepted Offence

12.  In his written submissions, counsel for D3, Mr Steven Kwan, stated that “if sentence is passed immediately on 11 September 2023, s.109A of the Criminal Procedure Ordinance (Cap 221) would be relevant. However, if sentence is passed on or after 17 September 2023, s.109A would not be applicable to D3”.

13.  The court queried the applicability of s.109A of the Criminal Procedure Ordinance as wounding with intent is an Excepted Offence under Schedule 3 of that Ordinance. In answer, Mr Kwan replied that only the actual offence of “wounding with intent” was an Excepted Offence. He drew the court’s attention to Schedule 3 of the Ordinance, which states:

“Excepted Offences

The following offences are declared to be excepted offences –

1. Manslaughter.

2. Rape or attempted rape.

3. Affray.

4. Any offence against section 4, 5 or 6 of the Dangerous Drugs Ordinance (Cap 134).

5. Any offence contrary to section 10, 11, 12, 13, 14, 17, 19, 20, 21, 22, 23, 28, 29, 30, 36 or 42 of the Offences against the Person Ordinance (Cap 212). …”

14.  Mr Kwan argued that only offences explicitly listed under Schedule 3 constituted an Excepted Offence. For rape, the inchoate form of attempted rape was so listed. However, this was not the case for the offences under the Offences Against the Person Ordinance. On that basis, he concluded that all inchoate forms of the offences under the Offences Against the Person Ordinance are NOT Excepted Offences.

15.  Apart from the issue of whether Charge 2 was an Excepted Offence, there was another legal argument put forward by D2 (which is dealt with below). Firstly, the prosecution must be given time to reply to the defence arguments. Secondly, the issues raised by D2 and D3 may also have an impact on the sentence of the other defendants. Counsel for the other defendants must also be given time to properly consider the matter, to see if they would join in the argument. In those circumstances, the matter was adjourned to 20 September 2023 for argument and the parties were directed to file written submissions (if any).

16.  Counsel for the 4 defendants filed a Joint Submission on 18 September 2023 (the Joint Submission). They pointed out that section 109B(1) of the Criminal Procedure Ordinance, Cap 221 provides:

“A court which passes a sentence of imprisonment for a term of not more than 2 years for an offence, other than an excepted offence, may order that the sentence shall not take effect, unless, during a period specified in the order, being not less than 1 year nor more than 3 years from the date of the order, the offender commits in Hong Kong another offence punishable with imprisonment and thereafter a court having power to do so orders under section 109C that the original sentence shall take effect.”

17.  Section 109G of the Criminal Procedure Ordinance provides:

“In sections 109B, 109C, 109D, 109E and 109F… excepted offence means an offence declared to be an excepted offence by Schedule 3;”

18.  Counsel for the 4 defendants argued that:

(1)  Incitement to commit a substantive offence is a common law offence punishable under s.101I(2) of the Criminal Procedure Ordinance;

(2)  Section 109G deliberately omits to mention any inchoate offence to commit the excepted offences declared under Schedule 3;

(3)  Some (but not all) of the offences in Schedule 3 are inchoate offences (for example, attempted rape under paragraph 2; attempt to administer poison, shoot or drown; attempt to murder; attempt to choke, suffocate or strangle and attempt to apply or administer chloroform under paragraph 5; attempted indecent assault under paragraph 6).

19.  The defence cited the Court of Appeal’s decision in AG v Chan Ka Shu CAAR 4/1984 in support of their argument. In that case, the respondent, aged 18 at the time of the offence, was convicted of conspiracy to rob after trial. The Attorney General applied for a review of sentence after the respondent was sentenced to Detention Centre. The Court of Appeal found that the sentence was manifestly inadequate and substituted the Detention Centre Order with a Training Centre Order.

20.  The defence only cited part of the Court of Appeal’s observations and omitted parts which are wholly relevant:

“Mr Duckett for the applicant drew our attention to a number of decisions of this court. It is unnecessary to go into those in any detail. Each of the three cases to which he referred were instances of actual kidnapping, the charges being laid under Section 42 of the Offences Against Person Ordinance, for which the maximum sentence is 14 years. Under the law as it was at the time when the judge dealt with the present case conspiracy attracted a maximum sentence of 7 years only. The decisions to which Mr Ducker has referred to us are useful only to the extent that in each case the Court of Appeal stressed the gravity of the nature of this offence. In only one of those cases was a sentence actually reduced. That was on the basis that the trial judge, in imposing sentence, had been under the misconception that the maximum was life imprisonment. The term of 12 years imposed was therefore considered by the appellate court to be too close to the real maximum of 14 years to be sustained under circumstances disclosed in that case…

The judge was at the time of the trial entitled and indeed obliged, by virtue of s 109A of the Criminal Procedure Ordinance to regard rehabilitation as the paramount consideration. Since then, the law has been altered and the maximum which now applies in respect of conspiracy is life imprisonment. Although, technically speaking, the offence will still remain a non-excepted offence under Section 109A that is now so technical a distinction that one would incline to the view that, in dealing with such offences in the future, the courts will not be entitled to consider rehabilitation in the way in which it was considered in the present case…”

21.  The defence submitted that in that case is also supported by the interpretative principle of expressio unius exclusio alterius (the express provision of one thing implies the exclusion of everything else). They argued that the fact that the Legislature decided to expressly include some inchoate offences in Schedule 3 of the Criminal Procedure Ordinance implies that it did not intend to include other inchoate offences not expressly included therein. They cited Bennion, Bailey & Norbury on Statutory Interpretation (8^th edition):

“The principle of construction can be… explained based on the argument that (unless some other reason appears) there was no reason to mention some only of the possible items unless the intention was that they were to be the only ones dealt with, so that the rest are excluded… it is doubtful whether the maxim does any more than draw attention to a fairly obvious linguistic point, viz that in many contexts the mention of some matters warrants an inference that other cognate matters were intentionally excluded” (paragraph 23.12).

22.  The defence argued that had the Legislature intended to include an incitement to commit an excepted offence in Schedule 3 to the Criminal Procedure Ordinance, it can be easily achieved by an amendment to the schedule under section 124 of the same Ordinance, in the same way that it did in relation to the offence of rape or indecent assault. They proceeded to invite the court to consider a suspended sentence.

23.  In reply, the prosecution pointed out that on the face of Schedule 3, it appears that attempts to commit only certain Excepted Offences were expressly included in Schedule 3 of the Criminal Procedure Ordinance. However, they pointed out that the Court of Appeal’s observation in Chan Ka Shu (supra) was obiter dicta. The defence conceded that the question as to whether inchoate forms of Excepted Offences were included in Schedule 3 was not an issue in that case and the matter was not fully argued.

24.  I have considered the arguments very carefully. I agree with the prosecution’s observations in Chan Ka Shu was obiter dicta without hearing full legal arguments. I wholly disagree with the analysis of Schedule 3 by the defence.

25.  The answer to this issue is to be found in the way that Charge 2 is framed and the wording of paragraph 5 of Schedule 3. The Statement of Offence of Charge 2 is:

“Incitement to wound with intent, contrary to Common Law, section 17(a) of the Offences Against the Person Ordinance, Cap 212, and punishable under section 101I of the Criminal Procedure Ordinance…”

26.  Firstly, Incitement is not an offence by itself. Only incitement to commit a “target offence” carries criminal liability. That is why the charge is always framed to include the “target offence”, as was the case here. In the present case, the defendants were charged and convicted of an offence under section 17 of the Offences Against the Person Ordinance.

27.  I also disagree that the Legislature had expressly omitted the inchoate forms of the offence. Paragraph 5 of Schedule 3 provides that “ANY offence contrary to section… 17 of the Offences Against the Person Ordinance…” is an Excepted Offence. The inchoate forms of this offence have not been excluded. Charge 2 comes within the wording of Schedule 3. Therefore, the maxim expressio unius exclusio alterius does not apply.

28.  By reason of the aforesaid matters, it was unnecessary for Schedule 3 to mention the different inchoate forms of the offence.

29.  In my judgment, Charge 2 is an Excepted Offence. Even if I were wrong, the discussion is purely academic. All the defendants are over 21. As explained below, there are a number of very serious aggravating features in the present case. The present case is much more serious than Poon Yung Wai in many respects. In that case, the Court of Appeal has already pointed out that the appropriate sentence is one of immediate custody. A suspended sentence suggested by the defence is wholly unrealistic; any order other than a substantial immediate custodial term would be manifestly inadequate and would be sending a wrong message to the rest of society.

Sentences in Similar Cases

30.  Apart from Poon Yung Wai (supra), the defence refer to the sentences passed in similar cases, the background for some of which was identical to the present case. Counsel for D1, D2 and D4 then asked this court to compare the present case with those cases. The cases include 香港特別行政區 訴 葉倩敏 [2023] HKDC 768, 香港特別行政區 訴 黎哲 [2023] HKDC 1185, 香港特別行政區 訴 趙浩楠 [2023] HKDC 8, 香港特別行政區 訴 鍾志超 [2023] HKDC 629 and 香港特別行政區 訴 蕭張龍 [2021] HKDC 1534。

31.  Firstly, apart from Poon Yung Wai (supra) all the other cases are District Court cases. It is trite law that those cases are not authorities and are not binding on this court.

32.  Secondly, although the social context and background of some of the cases are identical to the present case, there are marked differences between the facts of each case. In Poon Yung Wai, the Court of Appeal held that “in determining sentence for a person who has committed the offence of incitement, consideration needs to be given to the crime incited by him…”. In 葉倩敏, the target offence was unlawful assembly which carries a maximum sentence of 5 years’ imprisonment, whereas Charge 2 in the present case carries a maximum sentence of life imprisonment. The words of incitement, the intended audience, the language used and the number of persons involved in the cases mentioned by the defence are also different from the present case. For example, in all of those cases, the defendant committed the offence alone, whereas in the present case, it was a joint enterprise. In some of the cases, the inciting words were published within a limited group. In 蕭張龍, the inciting words were published in a Telegram group that had over 20,000 members. In 黎哲 and 鍾志超, the offending posts were published in LIHKG which is only popular in Hong Kong and Chinese speakers. In 趙浩楠, the incitement was published in both LIHKG and a Telegram group. In 葉倩敏, the inciting words were published in a Telegram group with about 10,000 members together with Facebook and Instagram which were open to the public. In all those cases, the inciting words were in Chinese. In the present case, the offending words were published on Facebook, Instagram and YouTube. Some of the words were in both Chinese and English and the publication was accessible to the public, both locally and internationally.

33.  As the Court of Appeal has repeatedly emphasised, sentences in other similar cases are of limited guidance. Each case must be sentenced on its own facts. Lamentably, those decisions appear to have fallen on deaf ears. This was emphasised again by the Court of Appeal in 2 recent cases:

(1)  In 香港特別行政區 訴 唐健帮及另二人 CAAR 13/2022 [2023] HKCA 896第35段，上訴法庭重申：

「第一，雙方於本案存檔了多份區域法院的判刑理由書，希望法庭藉此支持己方立場，本庭在律政司司長 訴 溫達揚一案第27段已指出：

「…因為這些判刑，從來就沒有經過上訴而被肯定，也沒有什麼量刑原則可言，對量刑既沒有約束力也沒有參考價值，根本起不了任何指導作用，根本不應稱之為「案例」…」

況且，「有意圖而傷人」及「暴動/非法集結」罪的案情，以及某被告人的背景、犯案動機、於該案所扮演的角色等事項，可謂千變萬化，任何單純對案件判刑作出比較的做法，都不能協助本庭處理原審判刑是否恰當這個議題。歸根究底，控罪要旨（gravamen of the offence）及適用的量刑因素才是重點所在，而非個別案件的判刑。」

(2)  In 香港特別行政區 訴 劉晉旭及另三人 CACC 243/2021, [2023] HKCA 1098, the Court of Appeal again felt the need to stress at paragraph 51:

「在完結前特別一提，申請方曾在他們的書面陳詞援引區域法院另一宗二號橋暴動案的原審判刑（香港特別行政區 訴 陳起行 [2021] HKDC 874），作為適用蔡家輝案的支持點以支持本案量刑基準過高的主張，結果終被勸退。本庭已在過往指出過多次，在今年的律政司司長 對 唐健帮及另二人 [2023] HKCA 896（判案理由書日期：2023年8月25日）又再重申：未經上訴的原審判刑對同級法院沒有約束力，對上訴法庭也沒有任何參考價值，作上訴時的依據。」

Factual Basis of Sentence

34.  Leading Counsel for D1 first dealt with the principles in dealing with the factual basis of sentencing. He referred to §21-36 of Sentencing in Hong Kong (10^th Ed):

“… In the absence of any specific finding on a point of mitigation, a sentence should, unless the court decides to hear evidence and resolve the issue itself, be passed to reflect the factual version most favourable to the accused: R v Hiroyuki Sato [1994] 1 HKCLR 119, 121, [1994] HKCU 223, [7]; HKSAR v Chow Kam Lung [2010] 6 HKC 49, 52…”

35.  I accept that principle. However, not only were some of the submissions contrary to the admitted evidence, they were contradicted by the documents produced by the defence. I will now deal with them in turn.

Submissions from D1

36.  Leading Counsel submitted that “any suggestion that (D1) called the 3^rd Meeting and provided the other defendants a platform to discuss the impugned motion must be refuted”. He argued that D1 was merely hosting the HKUSUC meetings and facilitating the discussion of the councillors in the course of carrying out his duties as the Chairperson. He pointed out that as the Chairperson, it was not D1’s duty to propose policies. He was also not the proposer or seconder of the Motion. Secondly, Counsel submitted that the agenda was drafted in neutral terms (namely, to discuss the death of Mr Leung Kin Fai”). During the cautioned interview, D1 explained that the item was included in the agenda because “there were students indicating that the incident was important and worthy to discuss, and he thought the same”.

37.  Those submissions are wholly contrary to the admitted evidence and cannot be accepted.

38.  The function of the HKUSUC is set out in Section VII Article 1 of “The Constitution of the Hong Kong University Students’ Union” (The Constitution) [See page 66 of D1’s Mitigation Bundle]:

“Article 1 - Function

The function of the Union Council shall:

(a) represent Members of the Union in such matters as affect their interests;

(b) afford a recognised means of communication between the Union and the University authorities.”

39.  Section VII Articles 11 and 12 of the Constitution (pages 66 to 67 of D1’s Mitigation Bundle) which govern meetings of the HKUSUC and the business to be transacted at such meeting provide:

“Article 11 - Meeting

(a) The Union Council shall meet at least once every Semester.

(b) Meeting of the Union Council shall be convened by the Chairperson of the Union Council at his/her initiative, or at the request of the President of the Union or any Union Councillor seconded by three Union Councillors.

(c) A notice of all Union Council Meetings and the agenda thereof shall be posted five clear days beforehand. Such notice and agenda shall be sent to each Union Councillor and Official Observer.

(d) …

(e) …

(f) An Emergency Meeting of the Union Council shall be convened by the Chairperson of the Union Council at his/her initiative, or at the request of the President of the Union or any Union Councillor seconded by three Union Councillors. A notice of any such meeting and the agenda thereof shall be posted one clear day beforehand…

Article 12 - Business

(a) To receive and consider, and approve, or amend and approve the annual budget estimates of Union Income and Expenditure at the beginning of each Union Session.

(b) To elect four Vice-Patrons, one Honorary Treasurer, one Honorary Legal Advisor, one Honorary Archivist and one Honorary Auditor of the Union to hold office for particular Union Session(s).

(c) To receive and adopt the Annual Report of the previous Union Session prepared by the Union Executives, the Undergrad, the Campus TV and Popularly Elected Union Councillors at the beginning of such Union Session.

(d) To receive and adopt the Honorary Treasurer’s report and the audited Statement of Accounts and Balance Sheet prepared to the end of the previous Calendar Year.

(e) To establish Committees ad hoc when necessary…

(f) To appoint the members of all Standing Committee of the Union Council.

(g) To receive and consider, and approve or reject applications from organisations for affiliation to the Union.

(h) To consider any proved, grievance, or alleged infringement of the Union Constitution, and all such matters as may be placed before the Union Council by any member of the Union or a Sub-organisation, and deemed necessary, to adjudicate upon, or act in all such cases.

(i) To frame by-laws from time to time.

(j) To conduct any Union Business not explicitly conferred on any other body.”

40.  It is obvious that the Incident had nothing to do with the students’ interests or the Union’s communication with the University and does not come within the meaning of “Business” in the Constitution.

41.  There is no dispute that in the early hours on 5 July 2021, D1 as the Chairperson of HKUSUC gave notice of the 3^rd Meeting, to be held in the evening of 7 July 2021. That meeting was an Emergency meeting with only one clear day’s notice [See paragraph 10 of the Amended Summary of Facts].

42.  D1 admitted that he drafted the agenda for the 3^rd Meeting. Agendum A only related to correspondences (which were apologies for non-attendance) and adoption of the agenda [See counters 3 to 7 of Annex 2 and 2A). The real business to be dealt with at the 3^rd Meeting was set out in Agendum B. The first item on that Agendum was “To discuss the death of Mr Leung Kin Fai” [See counter 7 of Annex 2 and 2A]. The fact that the Incident was placed as the first item shows the importance D1 placed on it. The other items on the agenda were “To Establish the working group on Union Restructuring [Agendum B2 counter 154 of Annex 2 and 2A]; To consider and approve the Audited Financial Statements of Session 2028 [Agendum B3, counter 163 of Annex 2 and 2A]; To enact the English version of the Orientation Regulation [Agendum B4, counter 170 of Annex 2 and 2A]; To enact the English version of another document regarding Orientation 2021 [Agendum B5 counter 188, 261 of Annex 2 and 2A] and To discuss the Union’s relationship with the University of Hong Kong [Agendum B6, counter 263 of Annex 2 and 2A].” Those were all routine matters and there was nothing urgent which necessitated an Emergency Meeting. In fact, D1 admitted in his 3^rd video-recorded interview that he thought that the Motion was important and would impact the society, so important that he decided to read it out twice [See counter 619 at page 168 of D1’s Mitigation Bundle].

43.  Not only was the topic of Leung made the first item of the agenda for the 3^rd Meeting, D1 opened the meeting with the following words [counter 1 of Annex 2 and 2A and paragraph 13 of the Amended Summary of Facts]:

“I now invite the Union Council to rise and observe a minute of silence as we remember the honourable sacrifice of Mr Leung Kin Fai, a fellow citizen of Hong Kong on the 1^st of July 2021。本席現在邀請全體嘅評議員起立，為於二零二一年七月一日，為香港犧牲的梁健輝先生默哀一分鐘…”

44.  I also disagree that D1 as the Chairperson of the HKUSUC was merely hosting the 3^rd Meeting to facilitate discussion of the councillors. As was admitted by D1 in his 3^rd video-recorded interview, they only knew that Leung stabbed the Police Officer and thereafter committed suicide. The police has not yet released further information of the investigation. The full circumstances of the Incident, the reasons or motive behind LEUNG’s attack were unknown. In fact, D1 did not even know if Leung was a mental patient (counters 425 and 445 of D1’s 3^rd video-recorded interview). There was no basis for any discussion.

45.  Throughout the investigation and these proceedings, D1 has been trying to hide behind the provision for neutrality of the Chairperson. He has been trying to shirk his responsibility, blaming the other defendants and members of the HKUSUC.

46.  It is true that pursuant to the Constitution:

(1)  The Chairperson is not a member of the Executive Committee of the HKUSUC and it is for the Executive Committee to decide on policy matters (See Section VIII Articles 1 and 2 of the Constitution at page 68 of D1’s Mitigation Bundle);

(2)  The Chairperson of the HKUSUC is not allowed to move, second or vote upon motions unless he is vacated from the chair (See Section VII Articles 7(a) and (b) of the Constitution at page 65 of D1’s Mitigation Bundle);

(3)  The Chairperson does not have a right to speak in discussions of any motion [See Section VII Article 7(c) of the Constitution and Section E, clause 4 of the Standing Orders of the Hong Kong University Students’ Union Council (the Standing Orders) at pages 65 and 90 of D1’s Mitigation Bundle];

47.  Although D1 did not propose, second, or vote on the Motion, he made it clear at the outset of the meeting that he had a predisposed stance about the Incident. He was not at all impartial and made his views known to the Council before any of the purported discussions. This was reinforced after the Resolution was passed, when D1 stated [counter 84 of Annex 2 and 2A]:

「…希望咁多位評議員大家節哀啦，咁我會嘗試盡力將大家嘅誒尊敬之情呢轉達畀…梁先生嘅屋企人。」

48.  I also disagree that the agenda in relation to the Incident was drafted in neutral terms. Leung chose to commit suicide. On the other hand, the Police Officer was only carrying out his duty but was injured as a result of an extremely violent and cold-blooded attack with a dangerous weapon. In his 3^rd video-recorded interview, D1 admitted that he did not know the condition of the Police Officer and that the officer may well die from his injuries [See counter 784 at page 188 of D1’s Mitigation Bundle]. If the defendants were genuinely concerned about the Incident, the Police Officer should have been mentioned. Yet, there was no proposed discussion about the attack.

49.  Leading Counsel for D1 also submitted that the HKUSUC page on Facebook had minimal coverage. After the agenda of the 3^rd Meeting was posted, there were only 6 reactions including negative responses, most of which were angry emojis. Although there were 48 replies, none of those replies were relied on by the prosecution.

50.  Contrary to what is alleged in mitigation, it was admitted that the agenda was not only published on the HKUSUC Facebook page, it was circulated to all Union Council members. There is no dispute that that Facebook page was open to the public and had 4,517 followers as at 17 August 2021. That post remains accessible as at 11 September 2023 [See paragraphs 10 and 11 of the Amended Summary of Facts].

51.  D1 knew that the proceedings of HKUSUC meetings (including the 3^rd Meeting) were filmed by CAMPUS TV [paragraph 12 of the Amended Summary of Facts]. In fact, he was a member of the Executive Committee of CAMPUS TV [See Section XI Article 2(a) of the Constitution at page 74 of D1’s Mitigation Bundle]. He knew that the proceedings would be broadcasted live on the Facebook and YouTube platforms of CAMPUS TV and UNDERGRAD, which is also open to the public, both locally and internationally. That footage was viewed a total of 122 times but was taken down by 16 July 2021 [See statistics produced by D3 and paragraph 12 of the Amended Summary of Facts]. As was the usual practice, the written text of the Resolution was published by both CAMPUS TV and UNDERGRAD. As at 1240 hours on 17 August 2021, the Facebook post on the UNDERGRAD’s page attracted 253 likes, 65 comments and 14 shares. As at 1805 hours on 21 July 2021, the post on the Facebook page of CAMPUS TV attracted 1,253 likes, 110 comments and 108 shares. Similar content was also published by UNDERGRAD and CAMPUS TV on their Instagram accounts and websites [See paragraphs 14 to 15 of the Amended Summary of Facts]. Save for YouTube, the above figures only reflect the number of people who reacted to the posts and not the number of people who had viewed them. The submission that there was minimum coverage is a complete misrepresentation.

52.  Further, the Court of Appeal has already dealt with a similar argument in Poon Yung Wai and labelled it erroneous. The Court of Appeal explained that:

“41. Fourth, the respondent posted the posts in question in an online group having more than 10,000 members. It is common knowledge that messages posted on the internet can circulate rapidly and widely. The respondent, in choosing to incite others by means of this, … His conduct aggravated his culpability: see Blackshaw, [73]; Yu Ka Kiu, [28]…

44. Mr Tam contended that the respondent’s posts, whose contents were plainly false and incredible, generated little response and the majority of the responses questioned what was said; at the end, the incitement to an unlawful assembly at the San Uk Ling Holding Centre was not acted on. The Magistrate held the same view and that was the main reason she sentenced the respondent to community service.

45. This court does not accept these arguments because:

(1) they ignored the gravamen of the offence of incitement in preventing the commission of crime. The respondent committed the offence of inciting others to unlawfully assemble when he posted the posts in question. The court should assess his culpability against the then circumstances, including factors such as the context, the place and individuals targeted, the modus operandi; and the risk of undermining law and order. The incitement to an unlawful assembly which would involve violence at the San Uk Ling Holding Centre, if acted on, would aggravate the respondent’s culpability, but that it did not come to fruition would not mitigate his culpability. This court’s view can find support in Divin, where against the backdrop that riots had broken out in a number of cities and districts in England, which had been widely reported by the media in Scotland, the appellants incited others to take part in a riot in Scotland by means of Facebook. The High Court of Justiciary stressed at [20] of its judgment that even though riots had not spread to Scotland, the appellants’ culpability was quite high irrespective of the terms they used or the responses posted by members of the public. The same applies in the present case.

(2) due to these erroneous arguments, the Magistrate failed to properly assess the respondent’s culpability.”

53.  Leading Counsel added that D1 only read out the Motion as an impartial Chairperson. He did not tamper with the contents. He believed albeit wrongly that he had no power to disallow the Motion proposed by a member of the HKUSUC.

54.  This submission is also erroneous. In his 3^rd video-recorded interview, D1 suggested that he was not aware of the wording of the Motion before he read it out. Once the Motion was proposed and seconded, he had no choice but to put the Motion to the vote [See counters 542 and 570 at D1’s Mitigation Bundle page 159 and 162]. This is untrue. Under the Standing Orders, the Chairman has the power to “direct the discussion”. D1 admitted in the 3^rd video-recorded interview that he had the power to stop inappropriate discussions [See counter 455 at page 150 of D1’s Mitigation Bundle]. Further, D1 was clearly aware of this power and in fact exercised it during the 3^rd Meeting to reserve item B6 on the agenda as discussion was premature.

55.  Leading Counsel further stated that D1 was blindsided by the need for impartiality, which made him insensitive to screen inappropriate agenda items, observance of silence and motions. As explained above, D1 was not impartial at all. He drafted the agenda and gave notice of the 3^rd Meeting. He had ample time to consider what he was going to say (if anything). He made his predisposed stance clear at the commencement of the 3^rd Meeting.

56.  Lastly, Leading Counsel pointed out that at the time of the 3^rd Meeting, the content of LEUNG’s “will notes” in the 8 USBs had not yet been revealed to the public. This is a double-edged sword. It also means that D1 had absolutely no reason to conclude that Leung had made an “honourable sacrifice” for Hong Kong.

57.  In the light of all the matters mentioned above, it was clear that the 3^rd Meeting was engineered by D1 to provide a platform to glorify the Incident.

D2’s Submissions

58.  Counsel submitted that at the outset, D2 opposed addressing the Incident in the manner proposed and he declined to call the 3^rd Meeting.

59.  As is evident from Article 11 of the Constitution mentioned above, D2, as the President of the Union may request a meeting provided that his request is supported by 3 other Union Councillors. Even then, only the Chairperson of the HKUSUC has the power to convene a meeting.

60.  D2 was clearly supported the way that the Incident was addressed. The agenda (which included the purported discussion of the Incident) was passed unanimously [See counter 7 of Annex 2A]. D2 admitted that he was the proposer of the Motion, which stated as follows [See counter 9 of Annex 2 and 2A; paragraph 24(f) of the Amended Summary of Facts]:

“The motion that the Union Council expresses its deep sadness in the death of Mr Leung Kin Fai offer its sympathy and condolences to his family and friends. Appreciate his sacrifice to Hong Kong”.

61.  D2 then proceeded to explain the reason behind the Motion [paragraph 13(c) of the Amended Summary of Facts and Counter 8 of Annex 2 and 2A]:

「係，多謝主席…一個星期之前梁健輝，即係梁烈士佢身重不治，咁政權唔單止將佢嘅行為定義為孤狼式恐怖襲擊，更加將所有嘅悼念情況都定性係犯法，但係其實梁健輝先生同埋…兩年前，因為反送中運動而逝世嘅梁凌傑先生，其實都係為香港付出咗好多，同埋為香港犧牲咗性命嘅一個烈士。咁所以除咗啱啱嘅默哀儀式之外，我希望學生會可以…以一個motion嘅形式去悼念梁烈士，喺寫入我哋自己Union嘅歷史入面…」

62.  Notice of the 3^rd Meeting was given in the early hours of 5 July 2021. If D2 did not agree with it, he does not have to attend the meeting. Any Union Councillor could have proposed the Motion. If D2 did not agree with it, he was not required to propose, speak about or vote in favour of the Motion. As soon as the Motion was read out, D1 invited D2 to speak, without any indication from D2 that he would propose the Motion [See counter 7 of Annex 2 and 2A]. There was clearly a prior agreement for D2 to be the proposer. Counsel’s statement is not only misleading, it is contrary to the admitted evidence.

D3

63.  Counsel submitted that D3 did not call the 3^rd Meeting, or draft the agenda. Counsel asserted that D3 only decided to second the Motion after hearing the reasons behind it.

64.  Firstly, as explained above, it was not a matter of choice. Under Article 11 of the Constitution, only the Chairperson has the power to call a meeting. After the Motion was read by D1 and after D2’s speech, there was no need for D1 to ask if anyone was prepared to second the Motion. D1 knew that D3 was the seconder [See counter 9 of Annex 2 and 2A]. It was clear that there was a prior agreement for D3 to second the Motion.

65.  Counsel submitted that D3 did not take the initiative to speak after the Resolution. He was invited by D1 to speak. D3 did not advocate for violence. The focus of his speech was to mourn the dead, instead of glorifying him.

66.  That submission is again misleading. D3 was the seconder of the Motion, which glorified LEUNG’s crime as a “sacrifice” for Hong Kong. His speech must also be assessed in the context of the observation of silence, and the speeches of D1, D2 and D4. The incitement is not restricted to the events prior to the passing of the Resolution. D3 made a speech after the Resolution was passed which was also broadcasted to the public [See counter 81 of Annex 2 and 2A]. He was clearly glorifying the Incident. He said:

「多謝主席，李國賢堂學生會代表杜林丞亨，…希望真係…Union Council各位…即係之後大家都會…即係可能而家呢一年…，歷史都被篡改，開始被篡改嘅時候，希望大家係真係記得梁烈士為香港作出嘅犧牲…呢件事發生咗都只係七日，香港警方…已經開始係用種種嘅理由去扼殺香港人去悼念喇，或者係講返真相嘅一啲嘅行動咁樣。咁希望…各位香港人，各位港大同學，係可以去…即係最少做到最少嘅嘢都係至少去銘記番個真相，同埋去盡做喇，即係可能係一啲悼念嘅活動咁樣，都可以自己去做返自己一個香港人嘅本分…」

67.  Counsel continued to submit that D3 had no control over the broadcasts of the proceedings of the 3^rd Meeting. This submission was echoed by Counsel for D4. There is no dispute that the broadcasts were a matter of course for all meetings. D3 decided to attend, second, speak and vote on the Motion in that setting.

Aggravating Factors

68.  There is no dispute that the nature of Charge 2 is very serious. In addition, there are a number of very serious aggravating factors.

Committing the Offence with Others

69.  This is not a case where a defendant committed the offence alone. It was a joint enterprise. Counsel for D3 submitted that although the defendants are jointly charged, it does not mean that the role of each defendant was the same. When their roles are markedly different, the court is not “constrained” to pass the same sentence on all of them [paragraph 48 of D3’s submissions].

70.  I disagree that the defendants’ roles were markedly different. Under Article 11, only D1 had the power to call the 3^rd Meeting. He drafted the agenda. Although he was supposed to be neutral, he made his stance known at the outset of the meeting. D1 was prevented from proposing or seconding the Motion. Those roles were taken up by D2 and D3. D2 and D4 then made a speech about the Motion, whilst D3 and D4 provided the “comments” after the Resolution was passed. They each had their own role to play without which the Resolution would never have been passed or have the same impact.

Premeditation

71.  The offence was not committed on the spur of the moment. Notice of the meeting was given on 5 July 2021. An agenda and the Motion was drafted. As stated earlier, there was a prior agreement for D2 to propose and D3 to second the Motion.

The modus operandi and Formality

72.  This is not a case where an ordinary citizen decided to spread inciting words on their private social media accounts. The defendants chose to use the most formal channel of a HKUSUC meeting to publish the inciting words. In the eyes of the rest of society, the Resolution would appear to be the stance of all the students of one of the foremost Universities and lend it credence.

Abuse of Power

73.  As was pointed out above, the Incident had nothing to do with the functions or business of the HKUSUC. The decision to use the HKUSUC as a channel for incitement was an abuse of power (公器私用).

Open Defiance to the Law

74.  As was stated by the Court of Appeal in Poon Yung Wai (supra), the culpability of the defendants must be assessed in the context of the crime. Since June 2019, Hong Kong experienced an unprecedented period of violence and chaos, in which the police were regularly attacked. Normality and public order were only restored after the enactment of the Law of the People’s Republic of China on Safeguarding National Security. That legislation came into effect on 30 June 2020. The defendants stated during the 3^rd Meeting that the Incident was labelled as a lone-wolf terrorist attack and they believed that all mourning activities were characterised as illegal. Yet, they decided to hold the 3^rd Meeting, pass the Resolution and broadcast the proceedings. This was open defiance of the law. The words used during the 3^rd Meeting were likely to incite hatred for the Administration and the police. In Poon Yung Wai, the Court of Appeal expressly stated that inciting others in this social context and under those circumstances clearly increased the risk of reviving the social unrest.

Impact

75.  As was admitted by the defence, the University of Hong Kong is one of the foremost universities not only locally, but internationally. The students in this institution are regarded by the rest of society as the educated and the elite. The defendants are the student leaders in the University. Many of the protestors who took part in the unlawful assemblies and riots are young people, who regarded and respected these student leaders as their role models.

Target

76.  During the incident, the Police Officer was attacked and injured. The defendants admitted that by glorifying the Incident, they were inciting others to unlawfully and maliciously wound the police with intent to cause grievous bodily harm. In other words, the police were being targeted and they were validating attacks against them.

Means of Publication

77.  All the defendants knew that the 3^rd Meeting and the Resolution would be published on various social media platforms which are open to the public, both locally and internationally. In fact, the 3^rd Meeting and the Resolution were widely reported by the media between 7 and 9 July 2021 [See paragraphs 16 to 17 of the Amended Summary of Facts]. There is also an international element which is a serious aggravating factor [See D2’s admission at the press conference that the Resolution attracted international interest: Annex 5, counter 2).

Starting Point

78.  In assessing the appropriate starting point, I bear in mind that the incitement was not worded in such explicit terms as cases like 葉倩敏 (supra). However, in the light of the above mentioned aggravating factors, I am of the view that the appropriate starting is one of 35 months’ imprisonment.

Mitigation

Discount for Guilty Plea

79.  In HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, the Court of Appeal laid down guidelines in respect of the appropriate discounts for guilty pleas. The discount is determined by the time and stage of proceedings when the pleas were tendered.

80.  For the District Court, the Court of Appeal stated:

“An indication of a plea of guilty at Plea Day: one-third discount

222. We are satisfied that, subject to the overriding discretion of the judge in sentencing, a one-third discount from the starting point taken for sentence is to be afforded to those defendants who indicate at the Plea Day that they intend pleading guilty. That is to be the case whether that is done on the first of such hearing dates or on a subsequent Plea Day, necessitated in order to obtain adequate instructions and provide a defendant with appropriate advice. A lesser discount is to be afforded to a defendant who pleads guilty thereafter.

Plea of guilty at the first day of trial: 20% discount

223. If the plea of guilty is tendered at the first day of trial, subject to the judge’s overriding discretion in sentencing, the appropriate discount for sentence is 20% of that taken as the starting point.

An indication of a plea of guilty after the fixing of trial dates but before the first day of trial

224. Subject to the overriding discretion of the judge in sentencing, a defendant who gives the court or the prosecution an indication of a plea of not guilty at the Plea Day after which trial dates are fixed, who then indicated to the court or the prosecution before the first day of trial that he wishes to plead guilty, is to be afforded a discount between 25% and 20% of that taken as the starting point for sentence. In determining the appropriate discount to be afforded to the defendant in those circumstances, the judge will have regard to the time at which the indication was given and to all the other relevant circumstances…”

81.  In the same case, the Court of Appeal held that in cases committed for trial or sentence in the High Court, “the stage at which a discount of a full one-third is to be afforded to the defendant is at the stage of committal”. Those representing the defendant in such cases must advise a defendant of his options, so that he is in a position to make an informed choice. That does not require that a defendant is given an assessment of “the prospects of conviction or acquittal”. At issue only, is whether or not in his instructions the defendant acknowledges that he performed the acts, with the accompanying mental element, proof of which is required to establish the offence.

82.  No reasons were advanced by Counsel for D2 in his written submissions as to why a one-third discount would be appropriate. In his oral submissions, counsel for D2 suggested that the change of legal representation, followed by a plea bargain amounted to exceptional circumstances. Counsel for D3 suggested a late “plea bargain” amounted to “other relevant circumstances” that the Court of Appeal in Ngo Van Nam “would have in mind”.

Chronology of Events

83.  The prosecution has helpfully provided the court with a chronology of events. The defence has no quarrel with the facts stated in that Chronology, which is:

Date	Event	Related case number / Remarks
2021-07-07	Date of Offence
2021-08-18	D1-D4 arrested for the offence of “Advocating Terrorism”	D1-D4 remanded in custody
2021-08-19	D1-D4 charged with: (1)  Advocating terrorism; and (2)  Incitement to wound with intent (alternative charge)	D1-D4 remanded in custody
2021-08-19	D1-D4 first appeared before West Kowloon Magistrates’ Courts: -  No plea was taken for D1-D4; -  Mention date fixed for 2021-09-14 to report on progress of examination of digital devices; -  Case was adjourned to 2021-10-10 for further police enquiries; -  D4 granted bail by Acting Chief Magistrate Peter Law. Bail for D1-D3 was refused and they were remanded in custody; -  Prosecution applied to review bail decision. D4 also remanded in custody.	WKCC 3292/2021 D1-D4 remanded in custody
2021-08-20	D4’s bail review before the Hon Madam Justice Toh in the High Court. Hearing adjourned to 2021-08-27.	HCCP 446/2021 D1-D4 remanded in custody
2021-08-27	D4 granted bail by the Hon Madam Justice Toh and was released from custody	HCCP 446/2021 D4 on bail. D1-D3 in custody
2021-09-03	D1-D3 also applied for bail. Hearing set down for 2021-09-24.	HCCP 446/2021 D1-D3 in custody
2021-09-14	Mention at West Kowloon Magistrates’ Courts: -  No plea was taken; -  Report on progress of examination of digital devices; -  Case adjourned to 2021-10-10 for further police enquiries.	WKCC 3292/2021 D1-D3 in custody
2021-09-24	Bail review for D1-D3 heard by the Hon Madam Justice Toh. Bail granted and released from custody.	HCCP 446/2021 D1-D4 on bail.
2021-10-10	Hearing at West Kowloon Magistrates’ Courts fir transfer to the District Court: -  No plea was taken; -  Case was transferred to the District Court for “Plea Day” hearing on 2021-10-28.	WKCC 3292/2021
2021-10-28	Plea Day in the District Court: -  Case adjourned to 2022-01-20 for D1-D4 to apply for Legal Aid.	DCCC 917/2021
2022-01-20	Mention in the District Court: -  Case adjourned to 2022-03-24 for D1-D4 to seek legal advice and consider the papers.	DCCC 917/2021
2022-03-24	Case was adjourned to 2022-06-23 due to the Pandemic.	DCCC 917/2021
2022-04-13	Letter from D1 to the prosecution seeking to dispose of the case by way of an ONE / Bind Over. Suggestion rejected by prosecution by a letter dated 2022-06-08.
2022-06-23	Mention in the District Court: -  D3-D4 indicated that they will seek further legal advice and asked for an adjournment to make representations to the prosecution; -  Case adjourned to 1430 on 2022-08-11.	DCCC 917/2021
2022-07-07	Letter from Professor Albert Chen making representations on D1’s behalf, asking for case to be disposed of by way of an ONE / Bind Over. This was rejected by the prosecution by a letter dated 2022-08-05.
2022-07-20	Letter from D4 seeking to dispose of the case by way of an ONE / Bind Over. Suggestion rejected by the prosecution by a letter dated 2022-08-05.
2022-08-08	Letter from D1 proposing a further adjournment. D1 also enquired about the basis and facts for plea to the alternative charge. There had been subsequent discussions with D1 in respect of a plea to the alternative charge but no formal proposal was received by the prosecution.
2022-08-11	Mention in the District Court: -  Parties informed the court of possible new development and sought an adjournment; -  Before the hearing, there has been verbal discussions of a possible plea bargain; -  Case was adjourned to 1430 on 2022-10-20.	DCCC 917/2021
2022-10-20	Mention in the District Court: -  Parties informed the court of possible new development and sought an adjournment to facilitate discussions. The defendants indicated that they would approach the prosecution and/or require further time to consider their pleas and seek legal advice; -  The court directed that D1-D4 must indicate whether they will plead guilty or not guilty at the next hearing; -  Case adjourned to 1430 on 2022-12-06.	DCCC 917/2921
2022-12-06	Mention in the District Court: -  D1-D4 indicated not guilty pleas. PTR fixed on 2023-07-20 and trial set down for 2023-09-11 to 2023-09-20.	DCCC 917/2021
2023-07-05	Letter from D2 to court, indicating that he will plead guilty to Advocating Terrorism (Charge 1).
2023-07-18	Letter from D3 with plea proposal. Suggestion was rejected by the prosecution on 2023-07-19.
2023-07-19	Letter from D2 to the court stating that D2 will withdraw his indication to plead guilty.
2023-07-20	1st PTR in the District Court: -  Letter and indication of guilty plea from D2 withdrawn; D2’s legal team indicated they were professionally embarrassed and that a new legal team will be assigned to D2 by Legal Aid; -  D1-D4 maintained their not guilty pleas; -  Because of the change of legal team for D2, the court was unable to give directions. Case was adjourned to 2023-08-24 for a 2nd PTR. Court directed that the new legal team for D2 must be ready to assist on trial preparation at the 2nd PTR.	DCCC 917/2021
2023-08-04	Letter from D3, offering to plead guilty to the alternative charge (Charge 2). Offer was accepted by the prosecution.
2023-08-09	Letters from D2 and D4, offering to plead guilty to the alternative charge (Charge 2). Offer was accepted by the prosecution.
2023-08-24	2nd PTR in the District Court: -  D2-D4 indicated that they will plead guilty to the alternative charge (Charge 2); -  D1 maintained his not guilty plea but informed the court that there was a chance that he would also plead guilty like D2-D4. Counsel undertook to inform the court and the prosecution by 2023-08-29; -  Case adjourned for trial of D1 on 2023-09-11 to 2023-09-20 and for plea and sentence for D2-D4 on 2023-09-11.	DCCC 917/2021
2023-08-28	Letter from D1 to the prosecution offering to plead guilty to the alternative charge (Charge 2). Offer accepted by the prosecution. Subsequent directions given by the court for plea and sentence for all defendants.
2023-09-11	D1-D4 pleaded guilty to the alternative charge (Charge 2)

The Defence Arguments

84.  The defendants were charged with both offences on 19 August 2021, The trial dates were fixed on 6 December 2022. D3 indicated that he would plead guilty to the alternative charge on 4 August 2023. D2 and D4 gave a clear indication of their pleas to the alternative charge on 9 August 2023. D1 only indicated that he would plead guilty to the alternative charge on 24 August 2023.

85.  In their initial written submissions, Leading Counsel for D1 and counsel for D4 asked for a 25% discount in line with the guidelines in Ngo Van Nam [See paragraph 46 of D1’s Mitigation Bundle and paragraph 16 of D4’s Mitigation Bundle]. However, Counsel for D2 and D3 argued that there were exceptional circumstances and asked for a one-third discount although their guilty pleas were only indicated long after trial dates were fixed [See paragraph 7 of D2’s Mitigation Bundle and paragraphs 72 to 74 of D3’s Mitigation Bundle].

86.  The matter was adjourned to 20 September 2023 for the parties to file full legal arguments (in relation to the discount for guilty plea and whether Charge 2 is an Excepted Offence).

87.  The Joint Submissions were filed by the defence on 18 September 2023. In those submissions, all the defendants submitted that the prosecution has the power to accept or reject a guilty plea to the alternative charge. They relied on Kirkwood v Coalburn District Co-operative Society Ltd [1930] JC 38. In that case, a company was charged with 2 offences, one of which was an alternative charge with a lighter penalty. The prosecution rejected the guilty plea to the lesser charge but the trial judge held that the defendant’s plea “ended the matter”. On the prosecution’s appeal, Lord Clyde held:

“This sharply raises the question whether a prosecutor is ever bound to accept a plea tendered by the accused, and, in particular, whether he is bound to accept a plea to the lighter of two alternatives in a complaint, to the effect of being compelled to give up a major alternative.

I do not think a prosecutor is ever bound to accept a plea, whether the charge be alternative or not, but is always entitled to insist on leading evidence before the jury and obtaining a verdict if he can… I do not think it makes any difference that the charge is an alternative one; and I do not think that, if the charge is alternative, the accused has any right to elide the major charge by the device of pleading to the minor one…”

88.  In the same case, Lord Blackburn held:

“… in a criminal case which contains two charges which are in fact alternative… the person charged cannot insist on being discharged by tendering a plea of guilty to the lesser charge. His plea must be accepted by the prosecutor before any effect can be given to it, and, if the prosecutor refuses to accept it, the case must go on, leaving the prosecutor to prove either the major offence charged, “or otherwise” the minor, if he is able to do so.” [See also R v Yeardley [2000] QB 374; HKSAR v Lee Wai Keung [2012] 1 HKLRD 663; R v Read [2014] EWCA Crim 687.

89.  I accept that proposition. However, the issue before this court is whether the defendants can “turn back the clock” and become entitled to a one-third discount by reason of a late “plea bargain”.

Discussion

90.  In the Joint Submissions, the defence explained the alleged reason for the timing of the plea bargain and asked for a discount of less than one-third but more than 25%:

(1)  The charge sheet contains the main charge of advocating terrorism and the alternative charge of incitement to wound with intent was signed and delivered on about 15 October 2021;

(2)  At that time, the issue of minimum sentence under the NSL had not yet arisen in HKSAR v Lui Sai Yu DCCC 401/2021;

(3)  The issue arose in the sentence of Lui Sai Yu on 22 April 2022;

(4)  The Court of Appeal’s decision in Lui Sai Yu was given on 30 November 2022. However, it was uncertain whether the matter would be taken further to the CFA;

(5)  The present trial was fixed on 6 December 2022 as it was impracticable to wait for a further Appeal to the CFA in Lui Sai Yu;

(6)  The certificate of points of law of great and general importance was only given by the Court of Appeal on 27 April 2023;

(7)  Having considered the possibility of a minimum sentence being imposed for charge 1, plea negotiations started on about 18 July 2023 and resulted in an agreement regarding D2-D4 just before the 2^nd PTR on 24 August 2023 and regarding D1 shortly after the 2^nd PTR;

(8)  The plea negotiation is unusual in this case because the defendants proposed to plead guilty to the alternative charge which alleges a greater offence in the sense that it carries a higher maximum sentence but without a minimum sentence.

91.  I agree that the alternative charge is the graver charge. Both the main charge (Charge 1: Advocating Terrorism) and the alternative Charge (Charge 2: Incitement to wound with intent) were in existence as early as 19 August 2021. The factual bases of both charges were the same. The main charge carries a maximum sentence of 10 years’ imprisonment whilst the alternative charge carries a maximum sentence of life imprisonment. Under the alternative charge, there is no provision for a minimum sentence. Under the main charge, if the offence committed by the accused were serious, Article 27 provides that the sentence shall be fixed term imprisonment of not less than 5 years and not more than 10 years together with a fine or confiscation of property. In other circumstances, the sentence shall be fixed-term imprisonment of not more than 5 years, short term detention or restriction together with a fine. In other words, judging by the maximum sentence, the defendants have pleaded guilty to the more serious charge.

92.  However, I disagree that the plea bargain only began on about 18 July 2023. Although the offer to dispose of the case by way of an ONE / Bind Over was wholly unrealistic in the light of the nature of the charge and all the aggravating factors, it is evident from the Chronology that negotiations for D1 began on 13 April 2022; for D4 on 20 July 2022 at the latest. Even if the court were to only consider the offer to plead to the alternative charge, there were indications of negotiations for a plea to the alternative charge by 11 August 2022.

93.  In HKSAR v Sae Lam Ekapoj [2018] HKCFI 2061, the indictment included a count of trafficking in dangerous drugs (count 1) and an alternative charge of being a tenant permitting premises to be used for unlawful trafficking of dangerous drugs (count 2). The alternative count was neither a common law or statutory alternative to trafficking in dangerous drugs. The prosecution informed the court about 3 months before trial that “there have been plea bargain and a guilty plea to count 2 would be accepted. In sentencing the defendant, the court stated:

“The plea to the alternative count was accepted by the prosecution… It was only after the case had been committed that the alternative charge appeared. The plea bargain then took place and the proposed plea was accepted by the prosecution.”

94.  Although the alternative count was not in the original indictment and was only added as a result of the plea bargain, the court did not accept the plea to the alternative charge was a timely plea and only gave a discount of about 24%.

95.  In HKSAR v Lam Kai Man [2020] 4 HKLRD 107, the indictment contained a count of rape and an alternative count of procurement of unlawful sexual intercourse by threat. The defendant pleaded guilty to the alternative count and not guilty to rape, which was accepted by the prosecution. Despite the withdrawal of the appeal against sentence, the Court of Appeal considered it necessary to “supplement what has been said in Ngo Van Nam in respect of the position in this jurisdiction where early pleas of guilty to lesser offences or alternative charges are offered by a defendant, which pleas either match the eventual verdict of the jury or are later accepted by the prosecution” [See paragraph 52].

96.  The Court of Appeal then laid down 4 principles:

“52. In light of these authorities to which we have referred, we consider that it is necessary to supplement what has been said in Ngo Van Nam in respect of the position in this jurisdiction where early pleas of guilty to lesser offences or alternative charges are offered by a defendant, which pleas either match the eventual verdict of the jury or are later accepted by the prosecution.

53. First, if a defendant wishes to plead guilty to a lesser or alternative charge, he should make a clear and unequivocal statement of his position in court and on the record. This should be done by formally entering a plea to the proposed charge on the court record, but it may also in certain circumstances be achieved by his legal representative stating, again formally on the court record, the defendant’s intention and the basis of his proposed plea.

54. Secondly, the defendant should adhere to his stated position for the remainder of the proceedings. By this, we do not in any way mean to limit the right of a defendant to a trial or to conduct his case in any way he sees fit. We are only concerned with how a court should assess a claim by a defendant to a sentencing discount as a result of his earlier offer of a plea of guilty.

55. Thirdly, we do not propose to close the door entirely on clear and unequivocal offers to plead guilty to lesser or alternative charges made in writing by the defendant’s legal representatives to the prosecution, which cannot for some good reason be entered formally on the record. However, the court should satisfy itself that there was good reason for the plea not being formally entered on the court record, and the onus will be firmly upon the defendant seeking the discount to show that he clearly and unequivocally offered the plea in question and the basis for the plea; and that such position had been adhered to for the remainder of the proceedings.

56. Finally, the extent of the discount will of course depend on the stage at which the proposed plea is clearly and unequivocally entered on the court record. Even then, it must be subject to the overriding discretion of the judge and the principles set out in Ngo Van Nam. However, that discretion must not be exercised in such a way as to compromise these principles.”

97.  It is trite law that guidelines are not strait jackets. However, they should only be departed from for good reason.

98.  The alternative charge was in existence at the outset (18 August 2021). Even according to the defence, the issue of whether there was a minimum sentence for the main charge only arose in the Lui Sai Yu case on 22 April 2022. In other words, between 19 August 2021 and 22 April 2022, there was nothing to prevent the defendants from plea bargaining or indicating their intention to plead guilty to the alternative charge.

99.  It is clear from Ngo Van Nam and Lam Kai Man that the discount to be accorded to a guilty plea depends on the stage when the indication of a plea was made.

100.  In their judgment in Ngo Van Nam, the Court of Appeal held at paragraph 201:

“Knowledge of the facts of the prosecution case and receipt of legal advice

201. As noted earlier, in the judgment of the Court of Appeal of England and Wales in R v Caley and that of Lord Justice Clerk Gill in Gemmell v HM Advocate in the High Court of Justiciary of Scotland, in determining what was the “first reasonable opportunity” for a defendant to indicate his guilt or what was “an early plea” respectively, a distinction was drawn between that stage of proceedings and the separate and different stage at which a defendant exercised his undoubted right to avail himself of the opportunity, “for his lawyers to assess the strength of the case against him and to advise him on it”. Of the different circumstances, Hughes LJ said “… the second depends on the evidence being assembled and served. The first, however frequently does not.” However, he acknowledged that “… there will certainly be cases where a defendant genuinely does not know whether he is guilty or not and needs advice, and/or sight of the evidence in order to decide.” Nevertheless, he went on to conclude:

‘Such cases aside, however, whilst it is perfectly proper for a defendant to require advice from his lawyers on the strength of the evidence (just as he is perfectly entitled to insist on putting the Crown to proof at trial), he does not require it in order to know whether he is guilty or not; he requires it in order to assess the prospects of conviction or acquittal, which is different.’” (My emphasis)

101.  In other words, the defendants only have to know whether they did the acts with the requisite mens rea to decide whether they should plead guilty to either of the charges. The strength of the prosecution’s evidence or the likely sentence are not part of that consideration.

102.  As was obvious from the explanation in the Joint Submissions, the only matter that the defence was concerned with was the possibility of a minimum sentence for the main charge. There was no suggestion that the defendants were unaware of what they were charged with or whether they were guilty of the offences. In those circumstances, there was no reason why an indication of a guilty plea could not be given earlier.

103.  In the Lui Sai Yu case, the appellant pleaded guilty to a charge of “incitement to secession, contrary to Articles 20 and 21 of the NSL (NSL20 and NSL 21 respectively). The sentences prescribed by NSL21 on a charge of incitement to secession fall into two bands or tiers. If the circumstances of the offence are “of a serious nature”, NSL provides that “the person shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years”. And if the circumstances of the offence are “of a minor nature”, the person “shall be sentenced to fixed-term imprisonment of not more than five years, short term detention or restriction.” The sentencing provisions are identical to those in the present case.

104.  Having considered the submissions made on the appellant’s behalf and having reviewed the agreed facts, Her Honour concluded that the circumstances of the offence were “of a serious nature” and thus fell within the upper band. While the Judge reviewed submissions in mitigation, she held that a deterrent sentence was required and that ‘the nature of this offence and seriousness of the facts means personal circumstances, mitigation put forward and previous good character carries little weight”. Her Honour held that a starting point of five years and six months’ imprisonment should be adopted. After hearing submissions from the prosecution, she concluded that NSL21 provided for a minimum sentence of five years and therefore confined the discount for the guilty plea to a reduction of six months, imposing a sentence of five years’ imprisonment. The appellant’s appeal against sentence was dismissed by the Court of Appeal.

105.  The appellant appealed to the Court of Final Appeal. In gist, the appellant argued that the legislative intention regarding serious NSL21 offences was “to lay down a range of starting points between the maximum of ten years and the minimum of five years” rather than to set five years’ imprisonment as the hard and fast minimum sentence for offences falling within that band. Having settled on the starting point, so it was contended, mitigating factors (such as a guilty plea) could be given full effect, resulting in a sentence falling below the five-year minimum.

106.  The Court of Final Appeal ruled that the argument was “an untenable argument… To suggest, as Counsel for this appellant did, that they are concerned merely with establishing starting-points for the purposes of sentencing exercise is to attribute a meaning which the language cannot bear” [See paragraph 64].

107.  In the present case, D1 began his “plea bargain” on 13 April 2022, offering to dispose of the case by way of an ONE / Bind Over. Representations were made by Professor Albert Chen on D1’s behalf with the same offer on 7 July 2022. On 20 July 2022, D4 followed suit.

108.  The appeal in Lui Sai Yu was concerned with the true construction of the “serious” band for sentence. Sentences under the “minor” band was obviously discretionary. The offers to dispose of the case by way of an ONE / Bind Over demonstrate that the legal representatives of those defendants and Professor Chen thought that the culpability in this case not only falls within the “minor” band, but was at the very lowest end of the spectrum. If they were correct, then the decision in Lui Sai Yu would be wholly irrelevant to the present case.

109.  In August 2022, the defence began negotiations for a plea to the alternative charge. There are no provisions for a minimum sentence under that charge. The Court of Appeal’s decision in Lui Sai Yu was given on 30 November 2022. At that time, the trial dates in the present case have not been fixed (6 December 2022). As was admitted in the Joint Submissions, it was uncertain whether the appellant in Lui Sai Yu would take the matter further to the Court of Final Appeal. There was nothing to stop the defendants in the present case from giving an indication of a guilty plea prior to the hearing on 6 December 2022, when trial dates were fixed.

110.  The certificate of points of law of great and general importance in Lui Sai Yu was only given by the Court of Appeal on 27 April 2023. Even if the appellant in Lui Sai Yu were to succeed in his appeal, it would only mean that there was a minimum starting point (instead of a minimum sentence) of 5 years for the “serious” band for the main charge in the present case. The sentence for the “minor” band in the main charge would not be affected and the sentence for the alternative charge was discretionary. Even if the likely sentence is in any way relevant to the defendants’ decision, they already had sufficient information. All of the above means that the decision in Lui Sai Yu was irrelevant.

111.  The defence suggested that the decision whether the defendants pleaded guilty or not depended on the prosecution’s acceptance of the plea bargain. The learned author of Criminal Procedure: Trial on Indictment explained the procedure of plea bargains at VI [353]:

“Where the accused pleads guilty to a lesser alternative offence in full satisfaction of an indictment but that plea is rejected by the prosecution, the consequence of this course depends on whether the lesser alternative was pleaded on the indictment. If the lesser alternative charge to which the accused has tendered a plea of guilty is expressly pleaded in the indictment then the trial proceeds on the main charge. If the accused is acquitted on the main charge then he is sentenced on the charge to which he pleaded guilty.”

112.  In the present case, the alternative charge was expressly pleaded in the indictment. The prosecution can reject the plea to the alternative charge and insist on proceeding with the main charge. However, if the defendants were only convicted of the alternative charge after trial, they would be entitled to a discount for their guilty pleas. The discount would depend on the timing of their pleas. In other words, the defendants do not need the prosecution’s acceptance of the plea bargain to give a clear and unequivocal indication of their plea to the alternative charge.

113.  This was borne out by Ngo Van Nam:

“161. Of what constituted an early plea of guilty, Lord Justice Clerk Gill said:

‘We have become familiar in this court with the argument that the accused is justified in withholding an early plea yet invoking s 196 where there has been a delay in obtaining Crown disclosure, police statements, forensic reports and the like; or where investigations have been carried out by the defence. This is a specious argument. I repeat what I said in HM Advocate v Thomson (2006 SCCCR, p 271, para 27):

‘If an accused person has committed the crime charged, he can plead guilty to it at the outset and benefit from his plea by way of discount when the sentence is assessed; or he can defer pleading until he is sure that the Crown have a corroborated case, in the knowledge that a sentence discount may be reduced or refused altogether. That is the choice that he must make. He cannot have it both ways’’”

114.  By reason of all the above mentioned matters, I find that the defence submissions are wrong in fact and wholly devoid of merit. The court appreciates that these are very serious charges and the defendants are entitled to full consideration of their positions. However, the timing of an indication of a guilty plea was up to the defendants. If they decide to give a late indication, they have to accept the consequences of their decisions. The alleged “late plea bargain” does not amount to “exceptional circumstances” and does not take the discount for a guilty plea beyond the guidelines laid down in Ngo Van Nam. The appropriate discount for their guilty plea is 20% to 25%.

115.  The defendants have decided to give an indication of a guilty plea to the alternative charge at a very late stage of the proceedings, at which point most of the preparation for trial was complete and substantial amounts of time and taxpayers’ money had been expended (for example in the preparation of transcripts and translations). The appropriate discount is 20%.

Personal Background

116.  The court has been provided with voluminous bundles of mitigation letters written on their behalf. It is impossible for the court to repeat each of them here. In short, all 4 defendants were students with outstanding academic achievements, a good background and a bright future. They have continued with their academic pursuits after their arrests. I will take the mitigation letters into consideration in assessing sentence. Only the most basic personal background of the defendants will be set out below.

D1

117.  D1 was a 2^nd year student in the University of Hong Kong and was 19 years old at the time of the offence. He is now a 5^th year University Student and is expected to graduate on 30 June 2024 with first honours. He has a clear record.

118.  D1 lives with his parents. His father, aged 66 is a security guard and his mother, aged 60 is a clerk. They are both near retirement.

119.  D1 graduated from Ying Wah Secondary school. He obtained outstanding results in the HKDSE and was admitted to the University of Hong Kong to pursue a double degree of social sciences (Government and Laws) and Bachelor of Laws. He is expected to graduate in the summer of 2024.

D2

120.  D2 was born in November 2000. He is now 22 years old. At the time of the Offence, he was an Engineering student at the University of Hong Kong and had a clear record. He lived with his family. His father, aged 61 is a civil servant; his mother, aged 53 is a housewife and his sister, aged 23 is a student. D2 was married in February this year and is now living with his wife.

D3

121.  D3 was born in September 2002 and was an 18-year-old student in the University of Hong Kong at the time of the offence. He is now 21 years old.

122.  D3 was brought up in a single parent family. His father deserted the family; his mother is a clerk. D3 and his mother live with D3’s maternal grandmother who is 86 years old and they are the grandmother’s primary carers.

D4

123.  D4 was born in August 2002 and is now 21 years old. He has a clear record. He attained outstanding results in the DSE exams and was a 1^st year Bachelor of Arts student in the University of Hong Kong at the time of the offence.

124.  D4 was born and raised in a devout Catholic family. His father, aged 58, is a secondary school teacher. His mother is 56 years old and is a social worker. D4 has 2 elder brothers, aged 24 and 22 respectively. His eldest brother is a doctor and the other brother is a secondary school teacher.

125.  Incitement to wound with intent is a very serious offence. As explained above, there are a number of serious aggravating factors. Although the courts will normally give such weight as they can to the personal circumstances of the accused, such personal circumstances may “not weigh in the balance at all” when dealing with a serious offence: HKSAR v Mak Shing [2002] HKCU 1109 (CACC 322/2001, 18 September 2002, unreported).

126.  In HKSAR v Chan Lincoln [2021] 3 HKC 604, [2021] 2 HKLRD 226, [2021] HKCA 255 [30], the court stated “When public interest justifies deterrent sentence, neither youth nor personal background is a strong mitigating factor and/or pale into insignificance”. [See also Secretary for Justice v Wong Chi Fung and Ors [2018] 2 HKC 50, [2018] 21 HKCFAR 35, [2018] HKCFA 4].

127.  In such case, “the only way judges can demonstrate that society will not tolerate a particular type of conduct is by passing a sentence which truly reflects the abhorrence which right-minded members of the public have of the offender’s conduct”: R v Prime [1983] 54 Cr App R(S) 127, at 133. The rehabilitation needs of the defendants are of very low importance: HKSAR v Nawaz Ashanti [2019] 6 HKC 358, [2019] HKCA 459 [66].

128.  The nature of Charge 2 in the present case and the seriousness of the facts call for a deterrent sentence, both individually and generally. The defendants’ background and rehabilitation needs all pale into insignificance. A lenient sentence would only pass the wrong message to the rest of society.

Academic Achievements

129.  The defendants were all outstanding students and have continued in their academic pursuits after they were arrested. However, being a good student is not a mitigating factor, as one cannot by virtue of his education claim preferential treatment. In addition, courts should, in each case, give proper weight to the public interest and not simply regard the welfare of the defendants as the paramount consideration: R v Caird [1970] 54 Cr App R 499.

130.  The court appreciates that it is heartbreaking for the defendants’ family, friends and teachers to see these defendants being sentenced to a substantial term of immediate imprisonment. The sentences may even result in financial pressure for some families. However, this is not a mitigating factor. As was stated by the Court of Appeal in 香港特別行政區 訴 楊家倫 (Yeung Ka Lun) [2018] HKCA 146 (CACC 130/2017, 18 April 2018):

「60. 本庭認同原審法官的說法，要對有關罪行判處具阻嚇性的刑罰，對犯案滋事者迎頭棒喝，防止同類事件再次出現，否則社會要付出慘痛代價，有違公眾及執法人員的利益。

61. 對於一名出身自良好家庭及有良好教育的年輕人處以長期監禁的刑罰，對他個人，其家庭、甚至社會都是悲劇，但法庭必須堅決打擊本案所顯示的罔顧法紀及漠視社會秩序和執法人員安危的犯罪行為。」

Clear Record

131.  In Ngo Van Nam, the Court of Appeal dealt with the factors subsumed in the discount given for a guilty plea:

“129. Of the discount from the starting point taken for sentence, over and above the one-third discount, afforded to the respondent, in the judgment of this court, Yeung JA said:

‘The Court of Appeal have repeatedly emphasised that the one-third discount “is usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time.” …’

130. …

‘In our judgment, … Only in exceptional cases should a discount of more than one-third be given for a timely plea.’”

132.  In fact, a clear record is subsumed in the discount given for a guilty plea. In Sentencing in Hong Kong (10^th Ed), it was said:

“[7-6] Credit for a clear record is, however, by no means a given. Much will depend upon the nature of the offence and the position of the offender. In HKSAR v Law Num Chun [2014] 6 HKC 606, 617, Luann VP said:

[T]he principle is that good character is not a factor relevant generally to determining the starting point to be taken for sentence in serious criminal offences for which a deterrent sentence is required…

[7-14] The practice of the courts in recent times has been to give the accused who pleads guilty a sentencing discount of one-third: HKSAR v Lo Chi Yip and Anor [2000] 3 HKLRD 270, 277, [2000] HKCU 607, [20]. However, much depends on the timeliness of the plea, with the full discount being awarded for a plea at the earliest opportunity, and a lesser discount attaching to pleas entered at a later stage: HKSAR v Ngo Van Nam [2016] 5 HKC 231, [2016] 5 HKLRD 1. The accused who pleads guilty at the outset will receive a full discount irrespective of whether he has a criminal record, is caught red-handed or is genuinely remorseful. Since the ‘one-third rule’ has solidified into principle, there is no scope for a further discount, save in exceptional circumstances, such as where assistance is provided to the authorities. In HKSAR v Yan Wai Ming [2003] HKCU 264 (CACC 417/2002, 26 February 2003, unreported), Stuart-Moore VP said:

In the days before the discount of one-third on timely pleas of guilty became standard practice, previous good character used to be one of many factors which judges would take into account in deciding what discount to give on a plea of guilty. The one-third discount is usually, as we have said on numerous occasions, to be taken as the high watermark of the discount unless there are very special factors to be taken into account.

[7-15] in Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 751, 757, [2001] HKCU 1103, [20], Stock JA said that the ‘lack of previous convictions will often be subsumed in the credit given for a plea of guilty’. In Secretary for Justice v Lee Cho Keung and Ors [2004] 4 HKC 179, 189, the court noted that ‘the established course is now to view the presence of good character as part and parcel of the one-third discount given upon a plea’. The ‘element of good character is normally taken as being included in the one-third discount for a plea of guilty’: Secretary for Justice v Tso Tsz Kin [2004] 2 HKC 139, 144. In HKSAR v Cheng Kelly Kit Yin [2014] 4 HKLRD 34, [2014] HKCU 1441, Barma J said ‘the one-third discount for a plea of guilty is the discount to be afforded even to those with clear record’ [16]. In Secretary for Justice v Cheng Tsz Hin [2020] 1 HKC 576, [2020] 1 HKLRD 1057, [2020] HKCA 45, a judge who awarded a two-month sentencing discount to an accused who had been convicted of dangerous driving causing death for his clear record and perfect driving record was held to have erred… a clear record is not, of itself, a ground for suspending a sentence of imprisonment: Secretary for Justice v Mong Hon Ming [2009] 3 HKC 481, 493.

[7-16] The judge who granted an accused who pleaded guilty an additional discount of three months’ imprisonment ‘to take account of her … good character’, was said to have erred in Secretary for Justice v Chan Wan Fun [2007] 1 HKC 423, 428, [2006] 3 HKLRD 577, 582. The discount for a guilty plea already has ‘built into it an allowance for good record where there is one’: HKSAR v Yung Wai Siu [2001] 1 HKLRD 277, 279, [2001] HKCU 108, [8]. The withholding of an additional discount for a clear record ‘has not been a valid ground of appeal for a considerable time’: HKSAR v Yan Wai Ming [2003] HKCU 264 (CACC 417/2002, 26 February 2003, unreported). In this context, a clear record is not so much a mitigating factor as a ‘neutral feature in the case’: HKSAR v Wen Zelang [2006] 4 HKLRD 460, 465, [2006] HKCU 1554, [22].

[7-17] In HKSAR v Wong King Wai [2008] 2 HKC 614, 622, Stuart-Moore ACJHC said:

‘Personal circumstances including a clear record may, of course, have a bearing on mitigation for offences which are comparatively minor in nature. However, for serious offences we have indicated time and time again that, with the introduction of the ‘one-third rule’ which in usual circumstances provides a discount of a third of the prison sentence that would normally have been imposed after trial following timely pleas of guilty, there should be no further discount for a clear record unless evidence of positive good character is forthcoming.’”

133.  The relevance of good character is related to the circumstances of the accused. Good character sometimes refers to no more than an absence of previous convictions, and this is not a basis for an additional discount: HKSAR v Wong Kam Shing, Jackie [2010] 4 HKC 580. At other times, it may refer to something altogether more positive. Good character can be recognised as a factor in mitigation ‘where positive good character is shown by, for example, the provision of unpaid service to the community, as opposed merely to the absence of a criminal record’: Secretary for Justice v Tso Tsz Kin [2004] 2 HKC 139, 144. The mere absence of criminal convictions must not be confused with positive good character, and the simple discharge of duties in a proper manner ‘does not constitute what is to be regarded as positive good character’: HKSAR v Leung Ping Nam [2007] 5 HKC 413, 427; HKSAR v Chung Ka Hung [2010] HKCU 738 (CACC 349/2008, 31 March 2010, unreported)… Much however, depends on the circumstances of the case, and ‘military service even in the most difficult circumstances does not lead automatically to lenient sentencing for crimes committed later in life’: Attorney General’s Reference; R v Gregson [2020] EWCA CA Crim 1528, [2020] All ER (D) 156 (Nov)…

“[7-23] If the court decides that the offence is such as to require a deterrent sentence, it may be necessary to select a higher starting point. The clear record of the accused will not, that is, affect the starting point for sentence: HKSAR v Lam Ying Yu [2014] 2 HKLRD 895, [2014] HKCU 820. In such circumstances, perhaps because of the magnitude or prevalence of the offence and the need for deterrence, the personal circumstances of the accused will count for little. In Re Applications for Review of Sentences [1972] HKLR 370, 406, Huggins J said:

‘Of course there will be classes of cases where the public interest so manifestly calls for a deterrent sentence that only the most exceptional circumstances relating to the offender could outweigh the need to deter others, but we must never rule out that such exceptional circumstances may arise.’

[7-27] … the existence of a clear record in a sufficiently serious case can never of itself be enough to save an accused from an immediate sentence of imprisonment: Securities and Futures Commission and Choy Wai Zak [2003] 1 HKC 30, 35. In HKSAR v Cheung Sing Hoi (HCMA 1334/2001, 8 March 2001, unreported), [9], Toh DHCJ said that ‘whilst it is true that the court would hesitate before sending someone with a clear record to prison for most offences, this is the type of offence where a clear message should be sent out to those who are thinking of making false allegations that they cannot get away with them’. In other words, previous good character is not a bar to the imposition of a deterrent sentence if the gravity of the offence justifies it: HKSAR v Chan Mo Kong [1998] 1 HKLRD 678, 680, [1998] HKCU 2659, [8].”

134.  Counsel for the 4 defendants listed some alleged public service. I do not view the attendance of the flag raising ceremony, summer schools, mock trials, Boy Scouts and competitions as public service.

Remorse

135.  Counsel asserted that all the defendants have reflected on their conduct and are extremely remorseful. I disagree. D2 to D4 attended an informal meeting where a letter of Apology was drafted. This was subsequently read out in a press conference. D2 to D4 also immediately tendered their resignation from the HKUSUC.

136.  In fact, D1 has tried to hide behind the need for impartiality throughout the investigation and these proceedings. Despite making his predisposed stance crystal clear at the outset of the 3^rd meeting, he tried to blame the other Union Councillors for the Motion and the Resolution. D1 attended the informal meeting, but stated in his 3^rd video-recorded interview that he paid no attention to what was said and left the meeting early. Counsel conceded that D1 never apologised or attended the press conference, again on the pretext of maintaining neutrality. His attempts to shirk responsibility and blame others have pervaded his mitigation.

137.  Despite apologising and resigning from the HKUSUC, this is what D2 said in his mitigation letter:

「無容置疑，自社會事件以來，很多市民因警察濫暴濫權、選擇性執法，或使用過份武力鎮壓示威者，而不滿警察的執法手段，甚至痛恨及仇視警員。我不能否認當時我亦有類似的情緒。在梁健輝先生刺警然後自殺的事件發生後，很多同學及市民長久以來對警察的不滿得到了宣洩，認為警察終於得到其應有的報應，因而對梁先生產生同情……我一向為人直率，忠於自己，因此我希望向你坦誠相對。於我而言，社會運動中的警民衝突已經給香港帶來難以磨滅的創傷，昔日的社會和諧和警民關係已經回不去了。社會重回安定，但這個地方的傷痕，卻未能撫平；失去了的人心，亦難以挽回。即使兩年已過，我也無法違心地說，我突然由當初討厭警察變得十分支持警察；我也無法違心地說，警察完全沒有濫捕濫權，責任存在示威者一方。……」

138.  Since June 2019, Hong Kong experienced an unprecedented period of violence and chaos. Schools had to be suspended, public facilities were destroyed, police officers and anyone who dared to disagree with the protesters were attacked. Yet, even now, D2 can only blame the police. Unless D2 witnessed the incidents, he does not know the full circumstances behind the arrests. In this court’s experience in hearing those cases, the police only took action after repeated attempts at persuading the protesters failed.

139.  Although the court is doubtful about D1 and D2’s remorse, it would not affect their sentence. Remorse is already subsumed in the discount for a guilty plea. As was held in Ngo Van Nam:

“Factors of mitigation subsumed in a one-third discount

200. In contrast to the approach in sentencing in Scotland and Australia, as evidenced in the judgments of the courts of those jurisdictions, in Hong Kong to a considerable extent this court has elided the difference between the utilitarian value of a plea of guilty and the subjective factor of remorse. So, other than in exceptional circumstances, the remorse of a defendant who pleads guilty is taken to be subsumed in the discount if one-third afforded for a plea of guilty. As noted earlier, this court has used the phrase the “high water mark” in a number of judgments in reference to the one-third discount to describe the fact that remorse is subsumed in that discount…”

Family Circumstances

140.  In their mitigation letters, D1 mentioned that his parents are elderly and near retirement. D3 spoke about his grandmother who is elderly and fragile.

141.  The learned authors of Sentencing in Hong Kong (10^th Ed) said:

“[30-130] Family circumstances are often prayed in aid in mitigation by convicted persons. However, ‘family hardship which is usually attendant upon the conviction is to be viewed as a part of the price an accused must pay for the crime’: HKSAR v Li Kwok Ching [2005] HKCU 1702 (HCMA 1132/2005, 30 November 2005, unreported). Those who commit offences should keep in mind ‘the principle that the adverse effect of imprisonment upon an offender’s family is not a factor normally to be taken into account’: HKSAR v Chan Kin Chung [2002] 4 HKC 314, 321. Family circumstances, in any event, ‘are matters which a wise man would take into consideration before he commits an offence and not after’: HKSAR v To Yiu Cho [2009] 5 HKLRD 309, 311, [2009] HKCU 1122.

[30-131] … In HKSAR v Shum Chung Wai [2002] 2 HKLRD 81, 87, the court said ‘This court has said many times that family circumstances should be disregarded, particularly when sentences for serious offences are concerned’.”

Medical Condition

142.  Counsel stated that D4 previously suffered a serious injury to his nose; he still has breathing difficulties and is still on medication and requires regular follow up. The medical report produced as Annex 6 (p 16) of D4’s Mitigation Bundle shows that his condition is stable and he can hardly be described as of ill health.

143.  The learned authors of Sentencing in Hong Kong (10^th Ed) stated:

“[30-174] The ill health of an accused ‘is not a licence to commit crime’: Clarkson v R [2007] 171 A Crim R 1, 49.

[30-175] In Yip Kai Foon v HKSAR [2000] 1 HKC 335, 339, [2000] 3 HKCFAR 31, 35, Li CJ said: ‘Under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity’…

[30-176] The objective criminality of particular offences will often be such that the sentence of imprisonment which is otherwise appropriate is necessary, irrespective of health factors: HKSAR v Tong Fuk Sing [1999] 3 HKC 332, 336 [1999] 3 HKLRD 710. The Correctional Services Department operates ‘excellent’ medical facilities: HKSAR v Wong Chi Choi [2005] HKCU 1443 (HKMA 628/2005, 6 October 2005, unreported). In HKSAR v Woo Shun Cheong and Anor [1998] HKCU 2082 (CACC 120/1998, 10 December 1998, unreported), an aged offender who complained of ill health was told that his condition could be ‘adequately dealt with in prison’.

[30-177] In HKSAR v Tam Yuen Tong [2007] 1 HKLRD 894, 896, [2007] HKCU 165, McMahon J made the point that ‘as a matter of reality most prisoners receive medical attention in prison of an equal or better standard than they would otherwise receive. In HKSAR v Chan Kau Tai [2008] 3 HKC 78, 89, [2008] 4 HKLRD 404, it was noted that the accused who needed a liver transplant was being attended to in the custodial ward of Queen Mary Hospital and was ‘in good hands’. Save in the rarest of cases, a prisoner’s medical condition is not a matter to which this court will have regard for mitigation of a proper sentence’: R v Ho Mei Lin [1996] 4 HKC 491, 493.”

Impact of Social Conditions

144.  “Being compelled by circumstances” is not a mitigating factor: R v Caird [1970] 54 Cr App R 499 and Secretary for Justice v Wong Chi Fung & 2 Others [2018] 2 HKLRD 699. Action against the police for their alleged brutalities and misconduct generally is also not a mitigating factor: HKSAR v Leung Tin Kei (Chinese) [2019] 1 HKLRD 1330; R v McCormack [1981] VR 104; R v Poynter ex parte Attorney General (Qld) [2006] QCA 517; R v Carling [2016] EWCA Crim 1947 at paragraph 20.

145.  Further, these 4 defendants are highly intelligent individuals. As pointed out above, the purported discussion of the Incident is beyond the functions and business of the HKUSUC. This was a cogent reason for not dealing with the Incident at the HKUSUC. The defendants were perfectly prepared to make use of the terms of the HKUSUC Constitution when it suited them, but ignored them when the terms were against their stance.

Conduct after Arrest

146.  The defence submitted that the defendants have continued to work hard after their arrest and have attained outstanding academic achievements. In Sentencing in Hong Kong (10^th Ed), the learned authors said:

“[30-62] The way in which the accused has conducted himself since he committed the offence may sometimes affect sentence. If there is ‘clear evidence of rehabilitation’ this may have relevance: FGC v Western Australia [2008] 183 A Crim R 313, 341, [2008] WASCA 47; R v Wong Hung Biu (CACC 579/1988, 9 March 1989, unreported)…

[30-63] A discount, however, is by no means a given, as where the offence involves a serious sexual assault… Absent a ‘character change or moral conversion’, the mere absence of criminality by an accused over the years since the offence may not avail him: HKSAR v Yasmin [2017] HKCU 3086 (CACC 360/2016, 1 December 2017, unreported). Something more substantial will normally be required.

[30-64] in R v Tutty [1998] 3 NZLR 165, 168, Thomas J said:

“… He may have faced up to and acknowledged his problem, demonstrated genuine remorse, obtained counselling or treatment where necessary, or in some other way sought to reform himself and atone for his earlier misdeeds… He may have made amends in many ways and be able to show that he has led an exemplary life since his early offending… While in such circumstances the need for deterrence in the case of the offender him or herself may have diminished or disappeared altogether, the need for a sentence which will serve as a general deterrent to such offending remains. So too, the need for a sentence to mark society’s denunciation and abhorrence of such offending is unaffected.”

147.  Bearing in mind the seriousness of the facts of the present case and the gravamen of the offence, the principle enunciated in R v Tutty is applicable in the present case.

Youth

148.  In Secretary for Justice v Wong Chi Fung and Ors [2018] 2 HKC 50, [2018] 21 HKCFAR 35, [2018] HKCFA 4, it was said that the ‘age of an offender, whether youth or advanced age, is always a relevant mitigating factor in sentencing’.

149.  However, youth is not a panacea, especially when the nature and facts of the case are serious. In Sentencing in Hong Kong (10^th Ed), it was pointed out that:

“[30-25] Youth notwithstanding, the court must keep in mind the classical principles of sentencing which, apart from rehabilitation, include retribution, deterrence and prevention: Attorney General v Fong Ming Yuen [1989] 1 HKC 327, [1989] 2 HKLR 177, 180. The interests of the community as a whole must also be considered: Attorney General v Law Ying Cheung [1981] HKC 161, 163. This means, for example, that the youth of the accused who commits a serious robbery, will count for little: R v Chung Man Kit [1990] 1 HKC 87, 89. Like considerations apply to the young offender who trafficks in a dangerous drug: Secretary for Justice v Ko Fei Tat [2002] 4 HKC 59, 64… In HKSAR v Bayanmunkh [2012] 2 HKC 233, 238, McWalters J said that the courts were at pains ‘to make it clear that no special consideration will be accorded to the young, the aged, the ill or disadvantaged or the financially impoverished who are recruited to become drug couriers’.

[30-26] in Re Applications for Review of Sentences [1972] HKLR 370, 417, it was explained that: ‘The personality, youth or personal circumstances of the offender may pale into insignificance because of the magnitude or prevalence of the offence in question’. If serious crimes are committed by young persons, they cannot expect to turn their age to their advantage upon conviction. The courts, instead, must be prepared to ‘steel themselves, unless there are particularly powerful and peculiar contrary reasons attaching to the circumstances of the offender and his involvement in the offence, to the imposition of substantial prison terms’: HKSAR v Law Ka Kit and Ors [2003] 2 HKC 178, 187.”

150.  It was obvious even to a child that honouring a criminal who chose to launch a vicious and cold-blooded attack on a law enforcement officer is extremely wrong. The defendants in the present case were 18 to 21 at the time of the offence. They were young but not of extreme youth. They are highly intelligent individuals who possessed abilities to think critically. They chose to glorify the Incident in the most public and formal manner. Having regard to the facts of the case, their youth is of very little significance to sentencing.

Retraction

151.  There is no dispute that in the early hours on 9 July 2021, D2 held a press conference where he read out a “letter of apology issued by HKUSU. He stated that the Resolution was inappropriate and that the HKUSU did not intend to promote any illegal or unlawful behaviour and that “as a gesture of apology”, the Resolution will be withdrawn and the members of the Executive Committee of the the HKUSU will resign immediately. The press conference was filmed and broadcasted live on Facebook and YouTube platforms of CAMPUS TV.

152.  D1 did not apologise or attend the press conference. He convened the 4^th Meeting where the Motion and the Resolution were rescinded. D2 to D4 did not attend the meeting, allegedly because of private matters. D3 thanked D1 and others for all that he has learnt and wished “HKUSU and our dear city all the best”. D4 also thanked D1 and said he was so “deeply sorry for all my inability and cowardice”. The resolution in respect of D2’s resignation as the president of the Executive Committee of the HKUSU was passed; his letter stating that “the ups and downs that we have gone through has made this journey a remarkable one yet with regret”. The proceedings of the 4^th Meeting were filmed and broadcasted live by CAMPUS TV on its Facebook and YouTube platforms.

153.  Defence counsel relied on HKSAR v Lam Ka Sin [2021] 2 HKLRD 32 and submitted that the swift rescission of the Motion and the Resolution was the most powerful mitigation.

154.  In that case, the defendant pleaded guilty to a charge of conspiracy to launder money. She agreed to process a cheque through her bank account for a fee. After the agreement, she changed her mind and had to be forced to process the cheque. The cheque was defective on its face and could not be processed. The defendant then withdrew from the arrangement and a new cheque was negotiated through someone else’s bank account. The court held that “… Where a person agrees to engage in criminal conduct but because of some reason or intervening factor decides not to continue to be involved, this is a matter that clearly reflects on the gravity of the offence and the culpability of the offender. The appellant’s withdrawal from the arrangement provided strong support that she was forced to go through with this arrangement… Mr Lin conceded that there was support for the appellant’s claim that she was forced to go through with the arrangement, and that this was a matter favourable to the appellant…”.

155.  Firstly, I have to point out that the appellant was forced to take part in the money laundering but cheque could not be processed. She then changed her mind and withdrew from the arrangement. In the present case, the offence was completed and there was no suggestion that the defendants committed the offence under duress.

156.  The present case is more analogous to Secretary for Justice v Mong Hon Ming [2009] 4 HKLRD 298. In that case, the defendant, who was the chief editor of Eastweek magazine pleaded guilty to publishing an obscene article. The magazine published on the cover and the inside page of the Entertainment section, semi-nude photographs of a well-known actress in distress and under compulsion taken by her kidnappers years earlier. An accompanying article claimed it was in the public interest to warn young girls about the dark side of the entertainment industry. The defendant based his plea on vicarious liability and falsely claimed that he had been in the Mainland at the time of the publication. The Magistrate adopted a 9-month starting point and reduced it to 6 months for plea, he then suspended the sentence for 2 years given the mitigation and the defendant’s “failure to supervise and scrutinise”. The Secretary for Justice applied for a review of sentence. At the hearing, the defendant adduced an office memorandum showing that he was at work 4 days before the photographs were published. The application for review was granted. It was held that:

(1)  This was, of its kind, a uniquely serious offence calling for condign punishment… The very idea that any responsible member of the press would contemplate publishing, under the guise of public interest, a story of this kind, illustrated by photographs of a half-naked woman, taken when she was a victim of abuse, almost defied belief and showed that scant regard was paid to her dignity and feelings.

(2)  Further, the defendant’s remorse was extremely shallow, whilst his admission of guilt in the press became eventually, more than six years later, an admission of guilt in court, this only occurred after exhausting all legal manoeuvres. Even then, however, the defendant had tried to avoid any moral blame by advancing false mitigation, which had seriously misled the Magistrate.

157.  In his judgment, the court stated that:

“37. … there was no honest purpose in printing the article… In doing this, Eastweek and others, including its chief editor, showed that they paid scant regard for the dignity and feelings of a woman who was, at the time she was photographed, in a state of undress and was the victim of abuse. Not surprisingly, there was a public outcry and only after this occurred was an apology printed in the newspapers.

38. The apology itself is not without interest. It was written in terms which accepted that the article was “totally wrong” and stated that the publishers would “punish those who were responsible and account to the public”. However, it is difficult to see that any punishment was in fact carried out having regard to the respondent’s reinstatement only a few months later under the new management which took over Eastweek. Nonetheless, we recognise, at least to an extent, the fact that the respondent had at least come clean and admitted his wrongdoing when attaching himself to the apology in the press.

39. This being said, in the light of what has now emerged, it appears that the respondent’s remorse was shallow. Whilst it is true that the admission of guilt made by the respondent in the newspaper became eventually, over six years later, an admission of guilt in court, this came about only after all legal manoeuvres had been exhausted. Even then, however, the respondent was not prepared to face up to reality or put a truthful account of his involvement in this publication before the court. Instead, he falsified his account by trying to avoid any moral blame by saying that he was thousands of kilometres away at the time of the publication.”

158.  The chaos and violence since June 2019 placed Hong Kong under international scrutiny. Although normality was restored after the NSL was enacted, the international scrutiny did not stop. It was in this context that the defendants committed the present offence. They decided to utter the inciting words in the most formal manner, purporting to represent the highest educational institution in the city, knowing full well that the proceedings would be published to the public both locally and internationally across all the social media platforms of the HKUSUC, UNDERGRAD and CAMPUS TV. In committing the offence, not only did they pay absolutely no regard to the condition of the Police Officer, his family and the effect of the Resolution on public law and order, they in fact glorified the violence. It was wholly foreseeable that the Resolution would attract wide media coverage. What the defendants did not expect was the public outcry that followed.

159.  The Government issued public statements condemning the defendants’ conduct. On 8 July 2021: the Security Bureau issued statements to the public condemning HKUSUC for beautifying and treating as heroic LEUNG’s blatant violence of attempting to murder the Police Officer. On the same day, the HKU also condemned the Resolution for “glorifying violent attacks”. There was of course a possibility of criminal liability and disciplinary action by the University against the defendants [See Annex 5 counters 5 to 8]. The publications across social media also attracted some angry emojis. The apology was only issued and the Motion and the Resolution rescinded in this context.

160.  During the 3^rd Meeting, D2 and D3 suggested that the Government was trying to suppress any activities to mourn Leung and change the “truth”. D2 said:

「…即係梁烈士佢身重不治，咁政權唔單止將佢嘅行為定義為孤狼式恐怖襲擊，更加將所有嘅悼念情況都定性係犯法…」

161.  D3 said:

「…可能而家呢一年…，歷史都被篡改，開始被篡改嘅時候…係呢件事發生咗都只係七日喇，咁即係香港警方佢都已經開始係用種種嘅理由去扼殺香港人去悼念喇，或者係講番真相嘅一啲嘅行動…希望做到最少嘅嘢都係至少去銘記番個真相…」（my emphasis)

162.  During the press conference, the media asked D2 whether they were under pressure from the University, he replied:

「記者：其實校方有冇就住呢件事喺呢一日同你哋接觸過或者有冇要求過你哋做咩嘢行動先可以補救返呢？

D2：我哋呢個係自己去構思嘅行動嘅…咁我哋個目的都係想…我哋都覺得自己係辜負咗市民嘅期望，咁我哋都想喺度藉呢個機會對於投票俾我哋嘅…投票信任我哋嘅同學喇、香港大學學生…香港大學嘅學生同埋甚至乎係社會大眾嘅期望，我哋都有辜負到嘅，咁呢度係我哋係致歉嘅。

記者：阿同學，…想問一問…學委會主席…李國章…對事件都有睇法、校方都有睇法。…擔唔擔心今次呢個嘅決議會帶嚟一啲學生裏面嘅層面…嘅後果？同埋…都有提到話要用國安法…或者法律嗰方面嚟去作追究…你哋擔唔擔心有呢個後果？有啲咩嘢準備呢？

D2：…呢個我唔能夠評論太多，我亦都會唔會揣測太多…

記者：學生會個層面呢？即係…唔關心…學籍上面或者紀律聆訊咁樣？

D2：…我哋唔能夠選擇太多，同埋…其他學生成員嘅言論，我哋唔能夠評論太多。

記者：咁校方有冇施壓啊？

D2：對於學生以外嘅人嘅言論，我哋唔能…唔會評論太多。」

163.  D2’s answers gave the impression that the HKUSUC members were only tendering the apology, rescinding the Motion and Resolution and resigning as a result of the consequences and pressure and does little to mitigate the damage that was done.

164.  The defendants’ alleged remorse was very shallow. D1 never apologised or attended the press conference, as was pointed out above, he has been trying to shift the blame on the other Council members and hiding behind the alleged need for impartiality. Although their resignation has not yet taken effect, D2 to D4 did not attend the 4^th Meeting. D3 only wished “our dear city all the best”. D4 apologised for all his ‘inability and cowardice”. Counsel suggested that the alleged cowardice was the lack of courage to face the music at the 4^th meeting. However, that does not explain the word ‘inability”.

165.  In my judgment, the Apology, resignations and retraction of the Motion and Resolution is of little mitigation value.

Sentence

166.  As explained earlier, in view of the grave nature of the offence and the seriousness of the facts of this case, the appropriate starting point is 35 months’ imprisonment. The defendants indicated their guilty plea only at a very late stage, shortly before the trial. The appropriate discount is 20%. The sentence is reduced to 28 months’ imprisonment. The court understands that the defendants were 18 to 21 at the time of the offence. They are now all over 21. However, it was the defendants who chose not to plead guilty at the earliest opportunity, but instead tried to negotiate a plea bargain that was wholly unrealistic. Although they are not significant mitigating factors, I further reduce the sentence by 4 months on account of the defendants’ youth and renunciation of the Motion and Resolution. They are each sentenced to 24 months’ imprisonment.