HKSAR v. LEUNG TIN KEI AND OTHERS

[English Translation – 英譯本]

HCCC 408/2016

[2018] HKCFI 1329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 408 OF 2016

____________

____________

R E A S O N S   F O R   S E N T E N C E

Background

1.  The 1^st defendant (D1) and the 3^rd defendant (D3) in this case were, after trial, convicted by the jury unanimously of one count of riot, contrary to Section 19(1) and (2) of the Public Order Ordinance, Cap 245. D1 was involved in the 4^th count of the indictment, which was the riot that took place on Argyle Street, Mongkok, on 9 February 2016. D3 was involved in the 3^rd count of the indictment, which was the riot that took place on Portland Street between 8 February 2016 and 9 February 2016.

2.  Further, D1 pleaded guilty to one count of assaulting a police officer in the due execution of duty, contrary to Section 36(b) of the Offences against the Person Ordinance, Cap 212. Insofar as the former 5^th defendant (D5) is concerned, he, before the trial commenced, pleaded guilty to the 4^th count, which was about his involvement in the riot on Argyle Street, Mongkok, on 9 February 2016.

Relevant Facts of the Case

The Riot on Portland Street

3.  During the trial, the defence did not take much issue with this part of the evidence adduced by the prosecution.

4.  Briefly, at about 9:30 pm on Lunar New Year’s Day on 8 February 2016, officers of the Food and Environmental Hygiene Department (FEHD) witnessed 8 to 10 people who were wearing Hong Kong Indigenous (HKI) tracksuits assisting hawkers by wheeling their hawker trolleys from the back lane at Shui Hing Mahjong School to the pavement of Portland Street and Nelson Street.  The hawkers then began trading on the pavement and the roadway. Almost at the same time, FEHD officers standing guard outside Sa Store were being surrounded and scolded with foul language by about 100 people. Some of these people also assaulted one of the FEHD officers with hands and feet. The officer managed to leave the scene only when the police provided assistance.

5.  In addition, a hawker kept chasing and trying to push his cart containing boiling oil towards an FEHD officer who was filming at the scene. The FEHD officer eventually had to position himself between the poles of a road sign to avoid being chased any further.

6.  Given the situation at the scene, the FEHD officers left some time before 10 o’clock that night. When they were there, the officers had never tried to disperse, warn or ticket the hawkers.

7.  During the trial, that was referred to as the hawkers’ incident.

8.  Later that night, a taxi travelling along Portland Street, which was said to have hit a pedestrian, was stopped and surrounded by a crowd. According to witnesses, the size of the crowd surrounding the taxi was about 70 to 80 people with 10 of them wearing HKI outfits. The taxi driver said he pulled over because someone suddenly lay on the bonnet.  What happened next was his taxi was surrounded by dozens to a hundred people in the roadway. The police came and tried to handle the traffic incident after a report was made, but the crowd refused to let the police approach the taxi. The police had tried to use a loudspeaker to offer their explanation and advice to the crowd, hoping that the crowd would give way. However, WONG Toi-yeung spoke through a loud hailer, basically asking the police to leave the scene. Eventually, WONG Toi-yeung urged the crowd to make room for the taxi to reverse and leave Portland Street, but he also told the crowd to continue surrounding the police. The relevant video footage showed that the crowd followed his command and acted accordingly.  That was referred to in the trial as the taxi incident.

9.  After the taxi incident, a lot of people gathered on the roadway of Portland Street. Because of that, the police brought an elevated platform to Portland Street so that they could stand on top and make broadcasts, asking the crowd to return to the pavement. However, the crowd became very agitated upon seeing the elevated platform. They shouted at the police and threw at the police line various articles, including glass bottles, plastic bottles and flower pots. That was referred to in the trial as the elevated platform incident.  

10.  An expatriate superintendent testified that a man near him was struck by a large concrete slab usually used for construction.  Moreover, a sergeant who was one of the officers in the police line but who did not have any contact with the crowd was struck on the neck by a brick, which resulted in injuries and bleeding. Other police officers testified that they were surrounded and hit by the crowd and once they fell, people kept kicking their heads. Further, there were witnesses saying that when the police line was advancing on Portland Street, many people in the crowd were carrying weapons such as wooden sticks, stones, glass bottles and other objects. The video footage produced revealed that most of the people in the front row were carrying home-made shields while some of them were wearing helmets. One could also see from the video footage that some of them were wearing armour and there was one holding a long pole. Liquid was splashed in front of the police line. Most of the people in the crowd were wearing face masks.

11.  During the stand-off, the police had raised warning banners at different stages and used a loudspeaker to advise people to leave.  However, while the police did not take any action after giving 334 warnings, the crowd charged forward towards the police line under the command of WONG Toi-yeung.  It was then about 1:45am.

12.  According to witnesses, about 500 people gathered on Portland Street that night. There were, however, just about a dozen police officers initially and based on what witnesses said, eventually the manpower the police could deploy that night was only about 300. During the stand-off, about 70 to 100 people also gathered at the rear of the police line at the junction of Shantung Street that joined Portland Street. The photographs produced showed that various objects were used to block the junction at Shantung Street in an attempt to stop traffic going to Portland Street and to contain the police there. Therefore, as pointed out by the expatriate superintendent in his evidence, in order to ensure that nothing would happen behind the police line, what the police did first was to disperse the crowd at Shantung Street.  

The Riot on Argyle Street

13.  Apart from denying having assaulted a police officer a second time on Argyle Street, at trial, most of the events relating to that count were not disputed by D1. As such, the relevant circumstances could be extracted from the summary of facts admitted by D5 in connection with the Argyle Street riot.

14.  To put it simply, people gathering on Portland Street on the night of 8 February and the early morning of 9 February 2016 were herded into Argyle Street when the police line advanced towards Argyle Street.  

15.  At about 2am that day, at least dozens of people were gathering on Argyle Street near the intersection with Portland Street and Shanghai Street. Various objects such as rubbish bins, pallets and traffic cones were put on the roadway to make barricades. People also blocked traffic by walking in the middle of the road, thus causing vehicles to reverse and leave.  Many people in the crowd were wearing face masks. Some of them were wearing HKI tops and holding shields. The number of people assembling there later increased to over 200.  They mainly gathered near the barricades and along both sides of the road.

16.  At that time, about 10 traffic police officers were trying to clear away the barricades and advising people there to leave, so that the road could be reopened.

17.  Suddenly, dozens of people dashed to the roadway and attacked a traffic police officer from behind. They also threw things at him. WONG Ka-kui, formerly D5 in this case, threw a styrofoam box at the officer but missed. Another man went forward and put his arms around the officer from behind, causing him to fall. At the same time, when a man was throwing articles at the officer, his hand touched D5, causing D5 to fall and land on the officer who was already on the ground. Other people nearby, who were also part of the crowd, then attacked that officer with sticks and threw things at him.  Eventually, that officer subdued D5 with the assistance of colleagues.

18.  According to the summary of facts agreed by D5, he admitted that upon arrest and under caution, he said to the arresting officer, “People came out, and I came out, too.  It was so chaotic, so many people were there.  And then I got arrested by you.”

19.  When D5 was subdued on the ground, the crowd had once withdrawn towards the direction of Portland Street, but before long, they again pushed towards the traffic police officers and hurled things like glass bottles and rubbish bins at the officers. As a result, the traffic police officers retreated towards Shanghai Street. When doing so, police officers tried to move forward to disperse the crowd but in vain. They were then attacked by the people assembling there who threw objects at the officers and chased them.  As a result, police officers continued to retreat towards Shanghai Street.  In the course of the retreat, a police officer tripped and fell onto the ground.  People then continuously assaulted him by throwing various objects such as pallets, rubbish bins and barriers at him. Other police officers tried to rescue their colleague but failed. Finally, in order to control the situation and to protect the police officer from being seriously injured, an officer fired two shots in the air after giving a warning.  At that point, the crowd then began to move back.

20.  In the Argyle Street riot, several police officers sustained injuries. The Medical Assessment Board was of the view that the assault on that day had caused two of them a 2% permanent disability and one of them a 1% permanent disability.

21.  Insofar as the prosecution’s case against D1 regarding the riot on Argyle Street was concerned, apart from relying on the summary of facts admitted by D1 in relation to the offence of assaulting a police officer, the prosecution also called witnesses to testify at the trial. The witnesses testified that later that day, D1 punched a plainclothes police officer. Another officer then went over to D1 and warned him, but D1 ignored him. Subsequently, with the assistance of his colleagues, the officer used his baton to subdue D1 and arrested him. Although D1 denied having assaulted the police a second time, the evidence on this second assault paled into insignificance as the jury unanimously found that D1 did take part in the riot on Argyle Street after hearing the evidence given by the witnesses as to what happened on Argyle Street that night.  Thus, the second assault would not materially affect the sentence.

The Offence of Assaulting a Police Officer Admitted by D1

22.  According to the summary of facts admitted by D1, when the crowd advanced towards the traffic police officers on Argyle Street and threw objects like glass bottles and rubbish bins, D1 first threw the lid of a rubbish bin at the police. Then, in the course of the police’s retreat to Shanghai Street, Sergeant 10985 drew his baton and, together with other police officers, issued warnings to the crowd and tried to disperse the crowd.  However, the crowd ignored the warnings. They continued to dash forward and threw objects at the police. When Sergeant 10985 tried to stop a person who was holding a brick in his hand, the sergeant suddenly felt great pain in his left ear and he fell down. While on the ground, Sergeant 10985 was continuously assaulted by the crowd. D1 was the one who threw a plastic bucket at the sergeant and kicked the sergeant with his right foot. D1 further struck the back of the sergeant with a wooden pallet and he then ran away. The Medical Assessment Board assessed that the assault had caused a 2% permanent disability to the sergeant.

23.  The summary of facts admitted by D1 also revealed that after D1 had assaulted Sergeant 10985, he still stayed on Argyle Street near Portland Street and Shanghai Street.

Defendants’ Background and Mitigation

D1

24.  D1 is single, now 27 years old.  He was born in Mainland China and came to settle in Hong Kong in 1992.  He was educated in Hong Kong. At the material time, he was a student of the University of Hong Kong and had a clear record. Subsequently, as mentioned above, he admitted the offence of assaulting a police office before the trial commenced.

25.  During mitigation, Mr Choy for D1 submitted to the court letters written by D1’s family members, schoolmates, friends, former members of the Hong Kong Legislative Council, religious figures, foreign scholars and members of the UK House of Lords. All of them have nothing but praise for D1, describing him as a young man who is kind, intelligent, insightful, caring and responsible. Regarding the events in this case, they essentially stated that he acted out of character due to provocation.  References were made in some of the letters to D1 being forced to commit the offences in this case in order to rescue a young woman from being treated violently by the police. However, this account of rescuing an innocent woman is obviously inconsistent in a material way with the evidence examined by the jury, their verdict, and the undisputed video footage produced.

26.  Mr Choy, in mitigation for D1, submitted that D1 was a responsible and passionate young man, not an ordinary criminal.  His transgression had nothing to do with personal gain but was driven by his ideological convictions.

27.  Further, since the jury could not reach a valid verdict in relation to the count of riot on Portland Street against D1 and they also acquitted him of the count of incitement to riot on Portland Street; and since the relevant police officers testified that at that time they did not know there were traffic officers removing obstacles from Argyle Street, Mr Choy submitted that there was no basis for the court to find that D1 participated in the riot on Argyle Street with premeditation.

28.  Regarding the offence of assaulting a police officer to which D1 pleaded guilty, Mr Choy submitted that the sentence should run concurrently with that of the offence of riot.

D3

29.  D3 was born on the Mainland and later moved to Hong Kong.  He grew up in Hong Kong and was educated up to secondary school.  He used to work as a clerk in a law firm and as a waiter in a restaurant.  He is single, now 31 years old.  At the material time, he had a clear record.

30.  In mitigation, Mr Lau for D3 submitted letters written by D3’s family members, friends, ex-employer and members of the Legislative Council. They all described D3 as a kind and extremely caring person although he was rather rude in his manner and language. They also said that D3 was dedicated to protecting the environment, that he cared about society and the poor, and that this transgression was only committed on the spur of the moment. Further, upon realizing that his father unfortunately has cancer, D3 could not stop blaming himself.

31.  During mitigation, Mr Lau added that D3’s behaviour at the material time was caused by cumulative prejudice and anger towards the police, but he had since realized that police officers were also ordinary citizens performing their duties. Therefore, he is very remorseful for what he did that day.

32.  Mr Lau also pointed out that, at the time, D3 only threw various water bottles, mud and sand.  He did not participate in any arson or brick throwing. Mr Lau therefore submitted that D3’s involvement in the offence was less serious, and asked the court to impose a lenient sentence as far as possible.

WONG Ka-kui, Formerly D5

33.  D5 was born in Hong Kong and was educated up to secondary school. He is single, now 27 years old.  He used to work as an electrical technician and had a clear record at the material time.

34.  In mitigation, Mr Iu for D5 submitted to the court letters written by D5 himself, his family members, girlfriend and ex-employer. They all described D5 as a man who cared about his family and was caring and responsible. His ex-employer also said that he was willing to employ D5 again upon his release from prison.

35.  Mr Iu submitted that D5 had already pleaded guilty before trial, that he was only passing by Argyle Street that night and committed the transgression on the spur of the moment, and what he did was merely throwing a styrofoam box.  Most importantly, Mr Iu said, D5 knew nothing at all about the subsequent turn of events since he was arrested at a very early stage. Mr Iu therefore submitted that D5’s circumstances were special and asked the court to impose a lenient sentence as far as possible. 

Sentencing Considerations

36.  First of all, although defence counsel submitted in mitigation that this case took place against a particular social and political background and that the defendants in this case were different from ordinary criminals, in R v Caird & Others [1970] Cr App R 499, a riot case in the UK, LJ Sachs of the UK Court of Appeal made the following observation:

“Before now turning to individual sentences, it is appropriate first to mention certain general points which have been much canvassed. First, it should be observed that a plea in mitigation of “provocation” made at one stage by Mr Myers was very properly withdrawn shortly after having been put forward. This Court could not entertain a political plea of that sort in the circumstances of this case as constituting mitigation, whatever other views it may have on it. Any suggestion that a section of the community strongly holding one set of views is justified in banding together to disrupt the lawful activities of a section that does not hold the same views so strongly or which holds different views cannot be tolerated and must unhesitatingly be rejected by the courts. When there is wanton and vicious violence of gross degree the Court is not concerned with whether it originates from gang rivalry or from political motives. It is the degree of mob violence that matters and the extent to which the public peace is being broken.”

37.  Further, in dealing with an appeal against sentence in R v Pilgrim [1983] 5 Cr App R(S) 140, another riot case in the UK, CJ Lord Lane pointed out at page 145 that “One of the principal objects of the criminal law in any civilised society is to prevent people taking the law into their own hands.”  In other words, the law only distinguishes between those who abide by it and those who break it.

38.  If anyone breaks the law, the court has a duty to sentence him according to the criminal act committed by him. The court will not allow anyone to resort to violence to deal with disputes regarding people’s livelihood, politics, etc.  As pointed out by Poon JA in Secretary for Justice v. Wong Chi Fung and Others [2017] 5 HKC 116, "The participants of an assembly will lose the protection of the law on exercising their right to assembly once they overstep the bounds laid down by the law, and they shall have to bear the consequences and be sanctioned by the law.  The offenders cannot say that the law deprives them of or suppress their freedom of assembly and expression by sanctioning them.  The reason is that the law has never allowed them to exercise these freedoms through unlawful means or ways."

39.  From the above HK and UK cases, it is clear that violence, by its nature, goes contrary to the principles of rational discussion and mutual respect espoused by a civilized and diversified society.

40.  In any event, even if, as alleged by the defence, the violent incidents that night took place against a particular social and political background, it was undisputed by the parties that at the material time, no FEHD or police officers had driven away any hawkers, and initially the purpose of the police presence was merely to handle a reported traffic incident. The police subsequently sent reinforcements because more people were gathering and causing an obstruction. Yet, the police kept offering advice to the crowd and sent officers to contact WONG Toi-yeung, hoping that the matter could be settled peacefully. Nevertheless, as shown in the undisputed video footage, before the police advanced after the 334 warnings, the crowd, after hearing what WONG Toi-yeung said, had already taken the initiative to charge forward towards the police line on Portland Street, which then triggered the violent behaviour in other streets.

41.  In this connection, I would like to point out that in Pilgrim, a case involving racial conflict, the trial judge said:

“I accept also, it is very difficult for people like the rest of us to understand the prejudice and insults that you sometimes have to bear because of your colour, but the revenge you took on that night of June 1 on totally innocent people is, in my judgment, out of all proportion to anything you could properly be said to have suffered before and I entirely reject any suggestion that has been put forward to suggest that you are justified in any way in what you did.”

42.  Similarly, the facts in this case showed that the riot on Portland Street that night started with a crowd gathering on the road, refusing to let the police handle the traffic incident. The crowd then vented on police officers with retaliatory violence. As admitted by Mr Lau for D3 during mitigation, D3’s behaviour that night was caused by cumulative prejudice and anger towards the police. Mr Choy also confirmed he was not saying that the violence involved in this case could be justified. Therefore, I am of the view that the background of the incidents in this case cannot be taken as a mitigating factor; otherwise, the community may get the wrong message that they can resort to violence when they are not satisfied with the government or the current situation.

43.  Further, in Caird mentioned above, Sachs LJ also pointed out that when considering the appropriate sentence, the court had to emphasize that an offender’s status as a student, when compared with an ordinary citizen, should not be a ground for preferential treatment. A defendant’s educational background could not be used as a basis for a reduction in sentence.  LJ Sachs reiterated at pages 508 and 509:

“ …He most certainly cannot by virtue of his education claim preferential treatment – as, for instance, to receive lighter punishment than one less well educated.

It is against that background that the individual sentences have to be considered by the Court with that deep anxiety which accompanies the really painful duty of dealing with young men of previous good character and coming from the surroundings of which the Court has been informed. The Court is naturally conscious of the particular consequences which may be suffered by each applicant and of the grief unfortunately caused to his family. …

…The Court has felt bound in each case to give proper weight to the public interest and not simply to regard the welfare of the defendant as the paramount consideration. …

…One thing is clear, however, that no one can claim to escape a proper length of custodial sentence by virtue of social background or of education.”

44.  In the present case, defence counsel also tried to suggest that the individual acts of the defendants, in contrast to all that took place that night, were relatively less serious. However, in Carid, LJ Sachs made the observation at pages 507-508 as follows:

“Those who choose to take part in such unlawful occasions must do so at their peril. … Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who, by weight of numbers, pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers. …Over and over again it was submitted on behalf of the applicants that their individual acts should be regarded as if they had been committed in isolation. … In the view of this Court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.”

45.  Therefore, in deciding the starting points for the respective offences in this case, I would consider the extent of the overall violence involved, not the defendant’s individual acts in isolation.

46.  As Yeung VP pointed out in HKSAR v YEUNG Ka Lun [2018] HKCA 146 citing Pilgrim, “What a court has to pay regard to is the level of violence used, the scale of the riot or affray as described by the witnesses, the extent to which it is premeditated, or, on the other hand, spontaneously arises, and finally the number of people engaged in its execution.” In that case, Yeung VP also pointed out that “a deterrent sentence is warranted for this type of offence.”

47.  In respect of the necessity of imposing a deterrent sentence in cases involving violence, the Court of Final Appeal in Secretary for Justice v. Wong Chi Fung [2018] HKCFA 4, which was a case concerning unlawful assembly, cited Starke J in R v Dixon-Jenkins (1985) 14 A Crim R 372 at page 379:

“There are large groups in present-day society of sincere, earnest but wrong-headed people who, because their convictions are so strong, or because they pretend their convictions are so strong, will stop at nothing in order to impose those views on the community, and this, in my opinion, just like hijacking, is calculated to become contagious, and if at the first step, the courts do not show that such conduct, however well intended, will not be tolerated in this community, then it is unlikely that such behaviour will be stopped in its tracks. I therefore am of the opinion that this is just the case where general deterrence has an overriding effect on the resulting sentence.”

Starting Points

48.  The Court of Appeal did not lay down any sentencing guideline for the offence of riot. However, in Yeung Ka Lun, the Court held that the starting point of 5 years adopted by the trial judge for the offence of riot was appropriate. The Court of Appeal pointed out that the applicant not only acted in concert with the people assembled at the scene to confront the police officers who attended the scene on instruction to carry out their duties, the crowd also took various measures, including throwing bricks dug up from the ground and other objects at the police, in an attempt to harm the police officers who were carrying out their duties. Although there was no direct evidence showing that the applicant had thrown bricks at the police officers, the behaviour of the applicant showed that he endorsed the offence and took part in it.  The Court of Appeal also remarked that the case in hand undoubtedly involved an extremely serious contravention of the law and the Court was determined to crack down on such criminal conduct which showed no respect for law and order or the safety of the law enforcement officers.

Starting Point for the Offence of Riot on Portland Street (the 3^rd count)

49.  In light of the aforesaid and taking into account the factors mentioned in Pilgrim by the Court of Appeal in Yeung Ka Lun, I take the view that the violence involved in the 3^rd count was large in scale and extremely serious. According to witnesses, the number of people gathered at that time was as many as 500. The crowd not only confronted the police on Portland Street for almost four hours, they also disregarded the police’s repeated advice and announcements and kept throwing at the police line various objects, including stones, bricks, concrete slabs for construction use, glass bottles, plastic bottles, rubbish bins and flower pots etc. Some people splashed liquid in front of the police line and held metal poles to put up resistance. A police officer also testified that after he had been pushed to the ground, people kept kicking his head.

50.  Further, this case happened on the night of Lunar New Year’s Day in a very crowded area of the city.  The violence involved definitely endangered the safety of Hong Kong citizens. In fact, one witness testified that after he had been struck by a brick, he bled and was injured although he had no contact with the crowd. The expatriate superintendent also pointed out that someone immediately fell onto the ground and lost consciousness after being hit by a concrete slab.  All this showed that the violent behaviour in this case was extremely injurious.

51.  In fact, two senior police officers who were in command at the scene testified that they had never before come across such a violent situation during their careers as police officers.

52.  Apart from the foregoing, the video footage also showed that many people scolded the police officers wantonly, thus stirring up the emotions of the people present at the scene and causing the situation to heat up.

53.  As to the degree of premeditation mentioned in Pilgrim, the video footage produced clearly showed that the majority of the people gathering at Portland Street wore face masks.  That night was the night of Lunar New Year’s Day, there was no need for them to dress like that on such a joyful day if they were not acting with premeditation in an attempt to cover up their identities. Besides, most of the people standing in the front row were holding home-made shields. Some were wearing goggles and helmets. The video footage also showed that some people put on their armour in the meantime.  Moreover, as mentioned before, at the initial stage, people already gathered and placed obstacles at the junction of Shantung Street and Portland Street in order to occupy the carriageway, block vehicles from entering, and encircle the police officers on Portland Street.

54.  All this offending behaviour clearly showed that the riot on Portland Street that night was premediated. Even if that was not the case and even if the crowd only gathered spontaneously or they were only there to support the hawkers in response to HKI’s appeal on the Internet, I am sure that the behaviour of the crowd at the later stage clearly demonstrated that the riot was organized and planned.  The situation was similar to what LJ Rose mentioned in R v Parvais Najeeb & Others [2003] 2 Cr App R (S) 69 at page 415：

“As the hours passed, we have no doubt that there were clear signs of organization among the rioters … In consequence, what had initially, no doubt, been spontaneous became marked by premeditation: hence those rioters who covered their faces because of what they intended to do and those who left the scene but later returned after changing clothing or having a meal.”

55.  Given that the riot at Portland Street was of such a large scale with much organisation and involved serious violence, the court has to impose a deterrent sentence. The evidence adduced at trial showed that D3 appeared on Portland Street as early as 9 o’clock that night to assist the hawkers in pushing hawker carts from the rear lane of Shui Hing Mahjong School to the pavement. Later, D3, together with other people, scolded FEHD officers. They also followed the instruction of WONG Toi-yeung in the taxi incident.  Then, on two occasions, D3 was witnessed by police officers to have disregarded the warnings given by the police and threw objects from the crowd to the police line.  The video footages also showed that D3 had, at a later stage, again thrown objects at the police line for a total of 11 times and picked up mud and sand from the ground to attack the police. D3 was all along at the scene during the riot on Portland Street.  He ignored the advice and took part in the riot actively.  Having considered all the relevant circumstances, I am of the view that the appropriate starting point for the offence of riot at Portland Street in respect of which D3 has been convicted is 7 years’ imprisonment.

Starting Point for the Offence of Riot at Argyle Street (the 4^th count)

56.  Similarly, based on the sentencing considerations mentioned in Pilgrim, I take the view that the degree of violence in the riot on Argyle Street was also extremely serious. Although there was no confrontation between the crowd and the police on Argyle Street, the crowd did deliberately block the carriageway with various objects to obstruct traffic. Further, the riot on Argyle Street involved a sudden and unprovoked attack on a lone traffic police officer from behind. At the time, the officer was merely clearing the obstacles on the road. Moreover, he was not equipped with any riot gear, namely, helmet or shield. As could be seen from the video footage, since the officer was unexpectedly attacked by the crowd, he was not in a state of preparedness at that time. Further, the video footage showed that the number of people in the crowd was ten times more than that of the police officers at the scene. Yet, the crowd mercilessly and frantically kept attacking the police officer who had fallen to the ground.  Apart from applying fists and kicks, they also threw objects like pallets at the police officer, totally disregarding that the police officer had already lost the ability to defend himself. As described by the officer who eventually fired warning shots, the crowd had completely lost its mind, so worrying about the safety of his colleague, he had to fire two warning shots. In fact, the video footage showed that after the officer had fired shots, some people paused just for a while and they then moved forward again, disregarding the warning and the potential danger.

57.  According to the facts admitted by D1 in respect of the offence of assaulting a police officer and also the evidence of the sergeant concerned, at the time of the attack, the sergeant was waving his baton in an attempt to stop someone who was holding a brick and charging at the police on Argyle Street.  However, when the sergeant fell to the ground, he was attacked by the people assembled there. Amongst others, D1 threw a plastic bucket at the sergeant, kicked the sergeant and hit his back with a wooden pallet.

58.  The degree of the violence involved in the riot on Argyle Street was demonstrated not only by the fact that the officer mentioned above was attacked for no reason when he tried to reopen the road and that the police officers kept being chased and attacked when they were trying to leave the scene, but also by the fact that 3 police officers sustained 1% to 2% permanent disabilities as a result.

59.  Moreover, witnesses pointed out that at the junction of Portland Street and Fife Street near Argyle Street, people assembled had set fire to burn various objects, saying that they would like to set up barricades to obstruct the police.

60.  It can be seen from the above that the violence on Argyle Street was also large in scale, organized and serious. There were approximately 200 people and most of them were wearing face masks and some were holding shields.

61.  Having considered all the circumstances, including the great disparity in number between the people taking part in the riot on Argyle Street and only about 10 traffic police officers at the scene, the unprepared traffic police being attacked for no reason, the degree of violence used by the crowd and the scale of the riot etc., I am of the view that the appropriate starting point is 6 years’ imprisonment.

62.  However, regarding D5, I accept Mr Iu’s submission that his circumstances were special because he only took part in the riot on Argyle Street at a very early stage and his participation was very limited.  Subsequent acts of rioting took place after his arrest. Therefore, having considered all the relevant circumstances, I am of the view that for the offence of riot on Argyle Street admitted by D5, the starting point could be reduced from the said 6 years to 4½years.

63.  As for D1, I bear in mind that the jury did not reach a valid verdict concerning the offence of riot against him on Portland Street.  However, he did not dispute that he was already present on Portland Street shortly after 9 o’clock that night, and he did not dispute that he had been present during the hawkers’ incident, the taxi incident and the elevated platform incident. As such, D1 witnessed throughout the escalation of the events and was aware that the crowd had charged the police line on Portland Street. Then, when the police pushed the police line forward, the crowd went to Argyle Street. Yet, he continued to stay on Argyle Street and took part in the riot on Argyle Street.  He also took the initiative to repeatedly attack the sergeant who fell to the ground when the sergeant was attempting to stop a person who was holding a brick.  At that time, there were other people who also attacked the sergeant.  It is clear that D1 actively took part in the riot on Argyle street. Having considered all the relevant circumstances, I am of the view that the above starting point of 6 years is appropriate for the offence of riot on Argyle Street in respect of which the jury found D1 guilty.

Starting Point for the Offence of Assaulting a Police Officer Admitted by D1

64.  Although the Court of Appeal did not lay down any sentencing guideline for the offence of assaulting a police officer, the relevant authorities all indicate that assaulting a police officer in the due execution of his duty is a serious offence, which generally warrants an immediate custodial sentence. In HKSAR v Chan Pak Yeung [2018] 2 HKLRD 386, which was submitted to the court by Mr Choy, Barnes J considered that it was appropriate for the magistrate to adopt a starting point of 9 months as the appellant in that case had thrown plastic water bottles at a police officer twice. Barnes J also pointed out that “the court must send out a strong message: the court does not condone or tolerate assaults on police officers in the due execution of their duties; the sentence must be one of deterrence.”

65.  In HKSAR v L [2015] 3 HKLRD 721, the applicant and his co-accused brandished metal pipes at and assaulted a police officer by kicking him, the Court of Appeal considered a starting point of 18 months adopted by the trial judge was not inappropriate.

66.  The facts of the offence of assaulting a police officer admitted by D1 in the present case are clearly serious. Having considered all the relevant circumstances, I consider 18 months’ imprisonment an appropriate starting point for this offence.

Sentencing the Defendants

67.  Although the letters submitted and the mitigation advanced by the defence counsel might have revealed to the court another side of the defendants, some of their words and deeds that night were also captured on camera.

D3

68.  The present case involved serious violent behaviour.  As D3 was convicted after trial, he is not entitled to the reduction in sentence given for a guilty plea. The court has sympathy for the fact that his father has unfortunately fallen ill. However, as stated above, D3’s personal circumstance is not a mitigating factor in offences as serious as this.  Therefore, for the 3^rd count in respect of which D3 was convicted, he is sentenced to 7 years’ imprisonment.

D1

69.  Likewise, D1 was convicted of the 4^th count of riot after trial.  As such, he is not entitled to the reduction in sentence given for a guilty plea. As I pointed out above, according to the relevant sentencing principles, his personal circumstances and the background for his commission of the offence are not powerful mitigating factors. Therefore, for the 4^th count in respect of which D1 was convicted, he is sentenced to 6 years’ imprisonment.

70.  For the offence of assaulting a police officer which D1 admitted, the principles laid down in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 concerning the discount given on a guilty plea are applicable.  As the prosecution only added this charge after the committal proceedings and after the listing of this case, D1 did not have a chance to plead guilty at any earlier stage. As such, I would regard D1 as having pleaded guilty to this charge at the earliest opportunity and I am going to give him the full one-third discount. 18 months being the starting point, the sentence is 12 months’ imprisonment after a one-third reduction.

71.  Since the offence of riot and the offence of assaulting a police officer arose from the same set of facts, and having considered the totality principle, I order the sentences of these two offences to run concurrently.  D1 is therefore sentenced to imprisonment for 6 years in total for these two offences.

D5

72.  As for the offence of riot admitted by D5, Ngo Van Nam is also applicable. Since D5 only pleaded guilty after the listing of the case, he is not entitled to the full one-third discount. However, I would give him a discount of about 23%. Apart from this, his personal background does not constitute a mitigating factor in offences as serious as this. Therefore, I order that D5 be sentenced to imprisonment for 3½ years for the offence of riot at Argyle Street, which he admitted.