HKSAR v. WONG CHI FUNG AND ANOTHER

CACC 101/2021

[2022] HKCA 239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 101 OF 2021

(ON APPEAL FROM DCCC NO 876, 885, 890 & 892 OF 2020)

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REASONS FOR JUDGMENT

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

A. Introduction

1.  On 30 April 2021, the applicants together with two other defendants (D2 and D3) were convicted on their own pleas of one count of knowingly taking part in an unauthorized assembly, contrary to section 17A(3)(a) of the Public Order Ordinance, Cap 245 (“POO”) before HH Judge Stanley Chan (the “judge”). On 6 May 2021, the 1^st and 2^nd applicants were sentenced to 10 months’ imprisonment and 4 months’ imprisonment respectively. They now appeal against their sentences.

2.  At the hearing we allowed the 1^st applicant’s appeal against sentence and dismissed the appeal by the 2^nd applicant. We said we would give our reasons later. This we now do.

B.  Consolidated summary of facts (“CSoF”) admitted by applicants[1]

3.  On 23 April 2020, Hong Kong Alliance in Support of Patriotic Democratic Movements of China (“Hong Kong Alliance”) submitted a notification to the police applying to hold a public meeting in Victoria Park from 9 am to 10 pm on 4 June 2020 to “mourn the 31^st anniversary of the June 4^th Incident” with an estimated number of participants between 50,000 and 100,000.

4.  On 1 June 2020, the Commissioner of Police, based on the advice given by the Department of Health in a memo dated 28 May 2020 setting out its concern of the then coronavirus disease (“COVID-19”) situation, issued a notice prohibiting the holding of the proposed public meeting in reply to the said notification.

5.  The prevailing restriction at that time was that no group gathering of more than 8 people[2] were allowed in view of the highly contagious and potentially fatal nature of COVID-19.

6.  At no time did the Hong Kong Alliance appeal against the decision of the Commissioner of Police.

7.  On 4 June 2020, despite the police warnings, people started to gather inside the Victoria Park in the evening. At about 6:25 pm, Lee Cheuk Yan (“Lee”) led a group of about a hundred people and headed towards the football pitches which were closed, followed by reporters and members of the public. People flocked into football pitches nos.3 and 4 by pulling away the mills barriers.

8.  At about 6:44 pm, the 1^st applicant entered Victoria Park with others and from about 7:09 pm to 8:00 pm they sat inside football pitch no.6. Most people there were sitting or standing near to each other, wearing black clothes with candles in their hands, shouting various political slogans.

9.  The 1^st applicant was being interviewed by reporters twice, at about 7:12 pm and 7:51 pm. Lee had approached and chatted with the two applicants. A man also took photographs together with the 1^st applicant.

10.  Lee announced that the meeting would start at 8 pm after shouting various political slogans which were echoed by the crowd. After the meeting commenced, the 2^nd applicant and others passed a few bouquets of white flower to Lee and put some flowers on the ground. Other “rituals” were performed. The meeting was announced to finish at around 8:43 pm. At that time, there were around 20,000 participants. The meeting had caused road closure and traffic diversions along 3 streets in Causeway Bay between 7:33 pm and 9:14 pm, resulting in traffic obstructions in the vicinity. After the public meeting, some facilities inside Victoria Park were defaced.

11.  The unauthorized public meeting was broadcast live on the website of Hong Kong Alliance.

C.  Mitigation

12.  Mr Harris S.C. submitted that the present case was the first “protest-related” case with public health dimension. He stressed that the public meeting was at all times peaceful and orderly and that there was “no or minimal imminence or threat to a breach of the peace”: Secretary for Justice v Wong Chi Fung[3] and Secretary for Justice v Chung Ka Ho[4]. Neither was there any damage to property other than some graffiti. It was further submitted the inconvenience caused to the public was insignificant. Masks were worn by the applicants all along; efforts were made to keep groups of people within 8 persons to maintain social distancing and the applicants stayed only for 2 hours playing a relatively passive role. It was submitted that there was no reprehensible conduct which aggravated their criminality. Mr Harris S.C. also submitted that at the time of the public gathering “the turbulent times during the social unrest of 2019 had come and gone”.

D.  The judge’s reasons for sentence

13.  The judge noted that there was no appeal against the prohibition notice and the applicants knew full well that the assembly was unauthorised. He expressed that the wearing of face mask and social distancing did not entitle them to be placed in a special position to enjoy more freedom than others. Contrary to Defence submission, the judge did not find the applicants’ role passive. Rather, the judge found that the 1^st applicant as a political figure and 2^nd applicant being a District Councillor had made use of the social media to “advertise” their presence in the public meeting.

14.  The judge further took into account the scale and duration of the unauthorised assembly and the extent of disruption caused. He said that both applicants lack remorse given their political belief and conviction.

15.  The judge noted that the maximum sentence for unauthorised assembly was the same as that of unlawful assembly (s 17A(3)(a) and s 18 of Public Order Ordinance Cap 245). The judge further made the observation that the repercussions and impact of the 2019 turmoil still lingered on at the time of the present offence. Taking into account the special day on which the event was held, the judge was of the view that the potential risk of unruly elements making use of any opportunity to incite and encourage violence could not be underestimated or ignored.

16.  He concluded that a sentence which should reflect the culpability of the applicants and at the same time deter like-minded people was called for. He adopted 15 months and 6 months as starting point for the 1^st and 2^nd applicant respectively, and reduced that by one-third to reflect their guilty pleas. The judge observed that the 1^st applicant was, at the time of sentence, serving 4 months’ imprisonment of an offence of similar nature, he remarked that “an accused person should not get more discount if he committed more similar offences”[5]. The present sentence was ordered to be served consecutively.

E.  The applicants’ grounds of appeal against sentence

17.  5 grounds were advanced on behalf of the applicants. Grounds 1, 2, 2A and 3 were common to both applicants and Ground 2B is unique to the 1^st applicant:

˗  Ground 1:  the judge erred in sentencing on the basis of an uncharged offence, that is, using the sentencing principles applicable to an ‘unlawful assembly’to taking part in an ‘unauthorised assembly’;

˗  Ground 2:  the judge erred in sentencing the applicants taking into account the risk of violence, which was not part of the factual matrix agreed by the parties;

˗  Ground 2A: Disparity in sentence between the sentences passed by the judge and the sentences of other defendants passed by HH Judge Woodcock[6];

˗  Ground 2B: In respect of the 1^st applicant, the judge failed to approach totality of sentence properly;

˗  Ground 3:  The judge has, by ignoring the benevolent motive of the applicants and the peaceful nature of the gathering, passed a deterrent sentence which was both unnecessary and manifestly excessive in the circumstances of the present case.

18.  In his written submission,Mr Kwan advocated for suspended sentences for both applicants but conceded during the hearing that immediate custodial sentence for the 1^st applicant was inevitable and the appeal by the 2^nd applicant was purely academic as she had already served the whole of her sentence.

F.  The respondent’s reply

19.  Mr William Siu, SADPP (Ag.), makes the following replies in respect of the various grounds of appeal raised by the applicants:

F1.  Grounds 1 and 2: Sentence on the basis of unlawful assembly and of factual matrix not agreed by parties.

20.  The judge did not err in applying the sentencing principles on unlawful assembly to the present offence and in fact, authorities on unlawful assembly were relied on by senior counsel in the court below during mitigation. Both offences are pre-emptive in nature.

21.  Similarly, it was senior counsel who addressed the court as to the potential threat and risk of violence in his written mitigation at paragraphs 4 and 5. The judge was entitled to take that into account and a Newton hearing was not called for.

22.  The judge was correct in considering the “context” of the present case, that is, the unprecedented 2019 social unrest and the risks of violence involved.[7] It was indeed accepted by senior counsel that the present case was a “protest-related” case with an additional dimension of public health.[8]

F2.  Ground 2A: Disparity in sentence

23.  The respondent submitted that:-

(1)  The only consideration for this court is whether the sentence passed on the applicants were appropriate.[9] Even though other co-defendant might have received a more lenient sentence before another judge, they were not entitled to pray in aid the windfall of the lenient sentence;[10]

(2)  Furthermore, given the fact that the 1^st applicant was a repeated offender and committed the present offence whilst on bail, the respondent submitted that his circumstances were entirely different from that of D16 and D18. The defendants (D8, D12 and D14) that counsel compared the 2^nd applicant to had decades of public and community service. The respective sentences of 10 and 4 months against the 1^st and 2^nd applicants are entirely proper and appropriate.

F3.  Reply to Ground 2B and 3: Failure to approach totality of sentence properly and manifestly excessive sentences

24.  The respondent submitted that the judge was fully justified in imposing a wholly consecutive sentence for the 1^st applicant because the present case was an entirely different case from the two other cases for which he was already serving sentences of imprisonment. The first two cases targeted the police and the face covering regulation respectively but lacked the dimension of public health which added to the culpability of the 1^st applicant in the present case. The 1^st applicant committed the three cases within one year and the present offence while on Court’s bail.[11] The respondent identified 13 aggravating features in the present case. Offences against public order have long been recognized by the Court as an exception to the general principle that a deterrent sentence should not be passed on a man of clear record.[12]

G.  Discussion and analysis

25.  We will first deal with the grounds for which leave has been refused all together.

26.  Whilst the offences of unlawful assembly and unauthorized assembly are set out in different parts of the Public Order Ordinance, Cap 245 and the differences between unlawfulness and unauthorization was repeatedly stressed by Mr Kwan, one must not lose sight that the Ordinance aims at maintaining public order involving mass gathering. Contrary to Mr Kwan’s submission, senior counsel for the applicants in the court below did mitigate on the basis that this was a protest-related case with an additional dimension involving public health issues[13]. Counsel relied on rather than distinguished the cases of Wong Chi Fung[14].

27.  Mr Kwan submitted that sentences of the two offences should not be on a par and it was wrong for the judge to import the sentencing principle from unlawful to unauthorized assembly simply because they both attract the same maximum sentence. It was contended that the cases relied on by the respondent which were heard by a judge of the Court of First Instance and a single Justice of Appeal (Chow Ting[15], Au Nok Hin [16] and Shum Lester[17]) involved applications for bail and the reasons for rulings were not binding authorities and should not be relied on.

28.  However, it is clear that the gravamen of both offences lies in the number of participants involved which may cause disruption to public order. Both are pre-emptive offences which aim at nipping in the bud the risk of any breach of public peace. It is trite that a sentencing court is entitled to take account of the circumstances of the offence to assess its gravity, and the concept of “context” is not a new one. Neither is it unique to the offence of unlawful assembly. What is meant by “context” is the date, time, location and occasion of the offence: see paragraph 79 of Chung Ka Ho[18], paragraph 34(2) of Secretary for Justice v Law Man Chung[19], and paragraph 41 of Secretary for Justice v Kung Yat Kan, Clifford[20].

29.  Although the present offence took place on the date to commemorate June 4^th, various political slogans originated and used in the massive disorders in 2019 were chanted by the participants: see paragraph 18 of the Consolidated Summary of Facts. Around 20,000 people flocked in to football pitches in the Victoria Park. We noted the observation by Pang JA in Shum Lester[21]:

“11. … A quick look at that period will show that the highly challenging times of 2019/2020 were coming to an end but hardly over. For example, a teashop was attacked in a politically motivated case of criminal damage on May 13, just three weeks before the meeting (SJ v Chow Kin Nok CAAR 1/2021). Closer still was the “Three Suspensions 2.0” causing widespread disturbances on May 27. And on July 1 a man was arrested for causing an incident with his motorcycle which led to the first ever prosecution under the National Security Law (HKSAR v Tong Ying Kit HCCC 280/2020). That is the “context” against which all the sentences in this case must be considered”.

30.  Therefore, it was not rocket science that the risk of disorders triggered off by the massive gathering as it stood on the day of the offence was real rather than merely apparent. To say that the massive disorder in 2019 had “come and gone” by then was an oversimplified understatement. The fluidity of the circumstances cannot be underestimated: “there is not a simple dichotomy between peaceful and violent protesters as people’s behaviour may change depending on the circumstances and the influence from others around them” (Kwok Wing Hang and 23 Others v. Chief Executive in Council and Another[22]). Given the pre-emptive nature of the offence the judge was entitled to take into account the potential risk of violence as “Hong Kong was and is still suffering from the volatility of public order and political turmoil in 2019”[23] without any Newton hearing. Similarly, as the pandemic and its contagiousness plodded on from 2020 to date, the utmost concern from the public health point of view during a pandemic is the risk to public health. We were told by the respondent that as at 27 May 2020, a total of 1,067 cases had been recorded. With the 20,000 participants gathered in football pitches for a prolonged period of time, even with face masks on but without strict implementation of suitable measures or social distancing, posed serious risk to public health. The fact that there was no outbreak of either violence or the pandemic occasioned by the assembly was purely fortuitous. All these reflect the pre-emptive nature of the offence.

31.  We now turn to the ground of disparity, totality and manifestly excessive sentence (Grounds 2A, 2B and 3). There were a number of aggravating features in the present case. As said in paragraphs 29 and 30 above, the volatility of public order turmoil in 2019 was hardly over. There was the additional public health risk dimension. The massive gathering had caused traffic to be disrupted, facilities in the Victoria Park were defaced. Active roles were taken by the applicants who each had a public profile. The 1^st applicant was interviewed twice by reporters. The 2^nd applicant was then District Councillor. Photographs taken were uploaded to social media advertising their participation in the unauthorized assembly. By their action, they were deliberately flouting the law with premeditation. The purpose was clearly to actively encourage others to join them to take part in the unauthorized assembly which could have a serious risk ramification.

32.  An immediate custodial sentence is warranted. That said, we are not persuaded that there was disparity between the sentence of the 2^nd applicant and that of D8, D12 and D14 who received suspended sentences from HH Judge Woodcock. We echo the principle that it is not necessarily wrong in principle to impose an immediate sentence of imprisonment on one offender, and a suspended sentence on a co-defendant, if there are substantial differences in their culpability or in the mitigating circumstances, or both.[24] The starting point of 6 months adopted for the 2^nd applicant is the same as that for D8, D12, and D14. However, it has been shown that all these other defendants had contributed decades of service in the public or their own sector, and the present offence was, for each of them, a single fall from grace. Furthermore, the 2^nd applicant’s role in the meeting was markedly different. She took an active role in that (i) she passed a few bunches of white flowers to Lee and later put down the flowers on the ground; and (ii) her photos at scene were also uploaded on social media advertising her presence in the meeting. Thus, the 2^nd applicant’s role and mitigating circumstances are substantially different from those of D8, D12, and D14. As conceded by Mr Kwan, the sentence has been fully served by the 2^nd applicant and this is a purely academic exercise.

33.  The circumstances of the 1^st applicant is somewhat different. Mr Kwan compared the 1^st applicant to that of D16 and D18 and other defendants sentenced by HH Judge Woodcock with starting point ranging from 6 to 9 months. It is submitted that even with the features of the 1^st applicant’s similar previous record and commission of the present offence whilst on bail, that would not warrant a starting point as high as 15 months.

34.  Apart from sharing some common features with the 2^nd applicant, the 1^st applicant had the additional distinctive aggravating features of being interviewed by reporters twice at the unauthorized gathering; and being a third time offender of public order offence committing the present offence whilst he was on bail. We are of the view that the appropriate starting point should be 12 months and given his plea, a sentence of 8 months.

35.  Turning now to the issue of totality, Mr Kwan submits that at the time of sentencing, the 1^st applicant was already serving a total sentence of 17.5 months for WKCC 2289/2020 (13.5 months)[25] and ESCC 2097/2020 (4 months)[26] consecutively. The judge, by stating that D1 was currently serving a 4-month imprisonment[27], seemed not to have regard to the total of 17.5 months sentence he was then serving. Had the judge considered all the sentences as if all 3 cases had been heard together, a notional overall starting point of 42.5 months for 3 offences committed within a year defies the principle of totality and is manifestly excessive.

36.  The judge said this in relation to totality:

“52. … He committed the present offence in June 2020. D1 is currently serving a 4-month imprisonment term after he was convicted of the offences of taking part in an unauthorized assembly and using facial covering. As such, he is a repeat offender. I have considered the totality principle and take the view that an accused person should not get more discount if he committed more similar offences. That is a wrong message to the public. Accordingly, I order that the present sentence should run consecutively to the sentence that D1 is serving at the moment.”

37.  In HKSAR v Wong Cheung[28], the Court of Appeal, quoting R v Tong Hoi-fung [29], said:

“20. Where the defendant committed more than one offence of a similar nature at different times, it is right for the Court to impose a sentence higher than when there had been only one offence. However, the sentence should not add up the sentences of the various charges, instead he should approach this matter as if the multiple charges have been dealt with together and on that basis, arrive at an appropriate total sentence.”

38.  Whilst the judge is perfectly entitled to adopt a higher starting point for reasons above, what he should not have done was to order the present sentence of the 1^st applicant to run wholly consecutively because of the fact that he was a repeated offender as that should already have been factored and reflected in the starting point. By sitting back and looking at totality, it is clear that by ordering the 10 months to run consecutively to the 17.5 months’ sentence that he was already serving, the overall sentence would have been 27.5 months had the 3 cases been dealt with together. That would necessarily mean a global starting point of 42.5 months, which would seem to us to be excessive and wrong in principle.

39.  To achieve a just result, a partially consecutive sentence would take into account totality and reflect the different culpability. We are of the view that 6 months out of the 8 months should run consecutively to the other sentences.

40.  For the above reasons, we refuse to grant leave and dismissed the appeal against sentence by the 2^nd applicant. We grant leave on ground 2B and 3 in respect of the 1^st applicant and allowed the appeal to the extent as stated in paragraphs 34 and 39.