HKSAR v. CHAN HO WUN AND OTHERS

DCCC 535/2020

[2021] HKDC 1100

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 535 OF 2020

----------------------------

----------------------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

1.  The 1^st to 4^th defendants pleaded guilty to Charge 1, on 19 October 2019 they unlawfully incited other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.

2.  The 1^st to 3^rd, 5^th to 7^th defendants pleaded guilty to Charge 3, organising an unauthorised assembly on 20 October 2019, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.

3.  Charge 4, knowingly taking part in an unauthorised assembly for the same defendants was ordered to be kept on the court file and not to be dealt with unless there is leave of this Court or the Court of Appeal.

The Facts

4.  The defendants agreed the Amended Summary of Facts. On 14 October 2019 the 1^st defendant, the then vice convenor of the now disbanded Civil Human Rights Front (“CHRF”) submitted a “notification of the intention to hold a public meeting and procession” which set out the intention of the CHRF to hold a public meeting and then a public procession at and from Salisbury Garden in Tsim Sha Tsui on 20 October 2019.

5.  On 15 October 2019 there was a liaison meeting between the Police, the 1^st defendant and others. The application was then amended to only intend to hold a public procession and not a public meeting. 3 days later, the Police issued a letter of objection opposing the public procession in the interests of public safety, public order, and the protection of others’ rights and freedoms.

6.  On 18 October 2019 the Police held their daily press conference. The Police publically explained why they did not authorise this procession. They reiterated the known and obvious risk that there would be others amongst and near the procession who would be violent and create disturbances. The Police believed that the risk was high because of intelligence received. Hence, a letter of objection was issued.

7.  They warned the organisers and the public not to proceed with this unauthorised assembly along the proposed route. The Police said they took into account that violence was escalating and had become more intense since June 2019. They highlighted the fact that peaceful processions had been hijacked by rioters and turned into radical violent situations since June 2019.  

8.  The Police highlighted the damage to Police stations, government buildings, Legislator’s offices, targeted shops and banks as well as territory wide destruction of MTR property. This warning of similar violence being repeated on 20 October 2019 was ignored by the defendants, the organisation of the unauthorised procession went ahead and we saw on that route and around that route, during and after, many incidents of vandalism, criminal damage and violence as predicted.

9.  CHRF appealed against this objection and on 19 October 2019 after an Appeal Board hearing, that appeal was dismissed. On that same day, immediately after the appeal hearing the 1^st defendant held a press conference announcing a formal press conference for later that day at 4pm which was set up outside the Court of Final Appeal.

10.  The particulars of Charge 1 refer to that press conference held by the 1^st to 4^th defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.

11.  The Summary of Facts covered some of what the 1^st to 4^th defendants said during that press conference. They all stood holding a banner with the words “Five demands, not one less. No fear for civil disobedience”. The facts repeated some of what each defendant said during the press conference individually to unlawfully incite others to knowingly take part in a public procession the following day which they knew and reiterated was an unauthorised assembly.

12.  The press conference lasted around 30 minutes and was reported and broadcasted by various news media; see Tabs in the Prosecution’s Documentary Bundle 1.

Unauthorised assembly on 20 October 2019

13.  On 20 October 2019 all the defendants bar the 4^th defendant gathered together with a large crowd at Salisbury Garden. They all stood behind a different banner with the words “Five demands not one less”.

14.  The 1^st and 2^nd defendant took turns to speak through a loudhailer and shout various slogans such as but not limited to “no fear for civil disobedience”, “shatter the anti-mask law” and “I have the right to assembly, no permission from the Communist Party is required”. The crowds around them chanted and repeated the slogans in unison. The scenario was filmed, captured and broadcasted by various news media outlets and through the 1^st and 2^nd defendants Facebook pages.

15.  The 1^st defendant reiterated over the loudhailer that the procession from Salisbury Garden to West Kowloon Station was an unauthorised assembly and that there was a risk of criminal liability. He gave out phone numbers for people to utilise if they were arrested.

16.  At about 1:25pm, the 1^st to 3^rd defendants stepped forward to give a press interview. The 1^st defendant told the reporters that he and the others present were exercising their rights under Article 27 of the Basic Law to participate in a procession and they did not need the approval of the Police or the government. He encouraged more who were watching this press conference to come out and join their procession. He said that despite the risk, he was not afraid of being arrested or going to prison.

17.  After that press conference those 3 defendants rejoined the 5^th to 7^th defendant. They then all held the banner together and started the procession. A second even bigger banner followed directly behind them accusing the Police of “deliberate murder”. Thousands of protesters followed this banner party and participated in this procession.

18.  When the banner party set off from Salisbury Garden many protesters left the procession route when they spilled over or diverted instead down Nathan Road adjacent to Kowloon Park Drive and Canton Road. This can be seen from aerial footage of the procession path; a large number of the procession left from Salisbury Garden but proceeded down Nathan Road instead.

19.  The Tsim Sha Tsui Police Station was on the corner of Nathan Road and Austin Road. The procession was later declared at an end at the corner of Austin Road and Canton Road. The Tsim Sha Tsui Police Station, not far away from the changed destination of the procession, was the scene of much violence.

20.  All 7 defendants led the crowd and at various times the 1^st, 2^nd and 5^th defendants used the loudhailer to shout slogans including but not limited to, “Five demands not one less”, “Liberate Hong Kong, the revolution of our times”, “No fear for civil disobedience” and “No rioters, only tyranny”. Those protesters behind the defendants repeated those chants.

21.  This unauthorised assembly was meant to proceed to the West Kowloon Station but was cut short by the defendants. When the defendants arrived at the junction of Austin Road and Canton Road, the 1^st defendant announced that the procession had come to an end. He told the crowds using a loudhailer that he himself, the 2^nd and 3^rd defendant held this procession. He thanked “comrades” for closing the Roads to allow this procession to proceed.

22.  In fact, in video footage they had stopped at this junction and spoke to the crowds and the press whilst stood in front of a group of black clad protesters who were in the process of destroying water barriers and railings and tying them all together in order to seal off the 4 vehicular lanes of Austin Road. Cars were unable to proceed. They were the backdrop of the last press conference.

23.  The 1^st defendant said the road up ahead was blocked by “comrades” so the procession would disperse here. The 1^st, 2^nd and 3^rd defendants then held another press conference at that road junction which was widely broadcast. They may have declared the public procession over but obviously, the procession stretched back a significant distance and it was announced that there were participants who had not even left the starting point, Salisbury Garden. This unauthorised procession did not start and end with the defendants; the procession had a head, body and tail. In this case the body had spread and spilled onto other Roads.

24.  In fact, at least an hour later, the 1^st, 2^nd and 3^rd defendants were still at the junction and filmed using a loudhailer to continue the chanting. The 1^st defendant also repeated the mobile phone number in case of arrest and the participants were told to walk towards the Yau Ma Tei as it was still safe in that direction.

25.  After the unauthorised procession began the roads from Salisbury Road, Kowloon Park Drive, Canton Road and Austin Road were blocked and obstructed as were those near or adjacent such as Nathan Road. Several MTR stations in Kowloon were closed even before the procession due to safety concerns.

26.  The prosecution relies on the evidence from footage from about the time the unauthorised procession started to show that there was violence and reprehensible conduct en route and on adjacent or parallel roads where the procession had spilled over. The prosecution relied on video footage of unlawful behaviour, criminal damage, arson and violence filmed to show that the anticipated risks had materialised.

27.  Incidents or acts highlighted by the prosecution were gleaned from hours of footage from several media outlets and a sample was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution. It contained remarks to explain the relevance of footage as well as a reference to the 3 prosecution bundles and tabs with transcripts and translations.

28.  At that time in 2019, this was becoming a now familiar pattern where there was incitement to participate in an unauthorized public assembly and then actual organisation of an unauthorised assembly accompanied by sporadic unrest and trouble which spiraled into chaos and violence.

29.  Essentially, undeterred by a Police ban and in direct defiance of law and order, thousands of people followed the banner party and marched in Kowloon that day. The route of the procession and adjacent roads was marred by familiar but ever more violent scenes of unrest where protesters threw petrol bombs at the Police and Police stations, set fires, vandalised specific shops, MTR stations, MTR property and Chinese banks as well as built makeshift barricades and blocked major roads.

30.  The Police eventually deployed teargas as well as its water cannon vehicle. The trouble in that area went on into the night.

Mitigation

31.  I have heard mitigation in full and been told of personal and professional backgrounds. I have either received written mitigation and supporting authorities in bundles in advance or received a letter of mitigation from the 5^th defendant acting in person. All Counsel have said all they can say on behalf of the defendants.  I don’t intend to repeat here all the mitigation and submissions put forward but I have taken it all into account.

32.  Counsel for the defence submit that these charges and facts do not call for a custodial sentence. They submit that the procession itself as led by the defendants forming a banner party was in itself peaceful with no immediate violent incidents or conflicts arising during it. The conflicts seen on CCTV or film footage were not related to the peaceful assembly nor can be attributed to the defendants. Those that incited others to participate the day before had only advocated a peaceful, non-violent and rational assembly.

33.  This is the 4^th trial arising from same or similar charges involving some repeat defendants concerning unauthorised assemblies on 4 different offence dates. It involved a total of 15 defendants arrested at the same time. Not all were charged in relation to all 4 offence dates. In this case, for example, the 2^nd, 3^rd, 4^th and 6^th defendants were involved in 3 of the 4 cases and the 1^st and 7^th defendants in 2 of the 4 cases.

34.  The Prosecution had wanted all 15 defendants to be tried together. The defence suggested splitting it into 4 separate trial hearings relating to the 4 offence dates and the first trial of 9 defendants would involve constitutional challenges. It was agreed to deal with the 4 offence dates in that manner.

35.  In what can be described as the first trial DCCC 536/2020, 7 of the 9 defendants were convicted after trial of unauthorized assembly offences committed on 18 August 2019 and sentenced on 16 April 2021. 2 of the 9 defendants pleaded guilty before trial.

36.  In the 2^nd trial, all the 3 defendants in DCCC 537/2020 pleaded guilty to knowingly taking part in an unauthorized assembly on 31 August 2019 after a plea bargain with the Prosecution and were also sentenced on the 16 April 2021.

37.  In the 3^rd trial, DCCC 534/2020 all 10 defendants pleaded guilty according to a plea bargain to similar charges of inciting, organizing and knowingly taking part an unauthorised assembly on 30 September and 1 October 2019 and were sentenced on 28 May 2021.

The 1^st defendant

38.  The defendant was the vice convenor of the CHRF at the time of these offences. He is now 25 years old. Mr Pun SC has emphasized his previous clear record at the time of these offences and his youth being relevant to mitigation. The defence bundle MFI-2 relates to mitigation put forward on behalf of both the 1^st and 2^nd defendants together.

39.  The 1^st defendant is now serving an 18-month term of imprisonment imposed on 28 May 2021 after a plea in DCCC 534/2020 to one count of incitement to knowingly take part in an unauthorised assembly and one count of organising an unauthorised assembly. Identical charges to this case, the date of those offences being 30 September and 1 October 2019 respectively.

The 2^nd defendant

40.  In DCCC 536/2020 and DCCC 534/2020, I heard full mitigation on behalf of the 2^nd defendant. He has many similar convictions almost all offences arising from the Public Order Ordinance. I had mitigation letters from all walks of life who admire him, are indebted to him and support him. I heard details of his health condition then and now, it would appear this is being addressed and will be treated if necessary.

41.  I take into account again his long-term commitment to social injustices and the need to raise public awareness of it. He is well-known for his concern for the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups.

42.  I was furnished with a list of judicial review applications made by this defendant over the years. It has been highlighted that the 2^nd defendant was motivated by a desire to help others or improve the legislative process.

43.  In mitigation for both the 1^st and 2^nd defendants, Mr Pun has said all he can say on their behalf and referred me to Director of Public Prosecutions v Ziegler (2021) 3 WLR 179. It was submitted that this decision is applicable to sentencing; I should consider the proportionality of the sentence in the context of whether such sentence was necessary.

44.  It has been submitted I should according to that authority in particular paragraphs 71 – 78 take into account certain factors relevant to assessment of proportionality, for example, the duration of the protest and the extent of the actual interference on the rights of others.

45.  I have taken into account mitigation heard for these offences and previous mitigation from the most recent similar cases. I have taken into account the sentences I imposed in those cases.

46.  The 2^nd defendant was sentenced to 18 months’ imprisonment in DCCC 536/2020 after trial and the same in DCCC 534/2020 after he pleaded guilty. 4 months of that last sentence was ordered to run consecutively to DCCC 536/2020.

The 3^rd defendant

47.  Similarly, for the 3^rd defendant I heard mitigation and received letters written on her behalf in DCCC 536/2020 and DCCC 534/2020. I took into account then, as I do today, her family background, career and her public service as a Legislator for many years. I was told of her work ethic and dedication to over 150 bills committees during her time in that role.

48.  I have read and taken on board a letter written by the 3^rd Defendant herself and it demonstrates her commitment and dedication to those less fortunate and in genuine need of help and support.

49.  The 3^rd defendant was sentenced to 8 months’ imprisonment in DCCC 536/2020 on 16 April 2021 after trial and 14 months’ imprisonment in DCCC 534/2020 on 28 May 2021 after she pleaded guilty. I ordered the sentences to be served concurrently.

50.  Defence counsel has asked me to take into account the fact that the concurrent sentence order meant that the 14 months ran from the date it was imposed. He does make an erroneous submission in his written mitigation Bundle MFI-3 that what I had intended was for that 14 months to run from the 16^th April 2021 and not from the date it was imposed. There was no such intention voiced nor is that possible. A concurrent order means that they are served at the same time, not that the latter sentence is backdated to the same starting date of the earlier sentence.

51.  If a court finds it appropriate, a sentence imposed can run concurrently to any other sentence presently being served; it means that it will run at the same time regardless of the dates they are imposed or the dates when the sentences come to an end. Sentences run from the day they are imposed. When and on what date an offender is released after serving any sentence will of course be decided and calculated by the Correctional Services Department and take into account matters such as time served on remand before sentence and good behaviour.

The 4^th defendant

52.  I heard mitigation put forward on behalf of the 4^th defendant in both DCCC 536/2020 and DCCC 534/2020. I have considered the submissions made then and now, a biography and list of authorities; here in MFI-4. Miss Wong has said all she can say on behalf of the 4^th defendant. It has been urged upon me to give weight to the fact that the 4^th defendant only incited others to take part in a peaceful procession. At no time did he advocate or incite any violence or reprehensible conduct therefore, none of it should be attributed to him or the other defendants.

53.  The 4^th defendant committed this offence as an act of civil disobedience against the prohibitions imposed by the Public Order Ordinance he perceived to be unconstitutional. He openly acknowledged when speaking to the press that there would be non-peaceful protesters participating and present, describing them as “valiant”, he expressed his hope that the peaceful and non-peaceful would join hands to create a large crowd who didn’t need to cause injury in order to continue a movement of civil disobedience. Although he was acknowledging the predicted risk of violence erupting, it was suggested he was distinguishing the peaceful from the violent and advocating peaceful, rational and non-violent behaviour.

54.  It was submitted that the motive and intention of all the defendants for inciting a peaceful assembly as an act of civil disobedience is weighty mitigation. It was also stressed that a peaceful demonstration does not lose its character as such simply because of an outbreak of isolated violence; para 118 of Kwok Wing Hang v Chief Executive in Council (2020) 23 HKCFAR 518.

55.  Moreover, it was stressed that the 4^th defendant should only be sentenced on the basis of the facts relevant to his culpability as reflected in the charge of which he is convicted. I should also take into account the significant public service performed by the 4^th defendant in the past and his clear record at the time of this offence.

56.  Lastly I was urged to consider a suspended sentence but if I found it necessary to impose a custodial sentence then I should consider any sentence to run concurrently to those presently served.

57.  The 4^th defendant was sentenced to 12 months’ imprisonment suspended for 24 months on 16 April 2021 for organising and also taking part in an unauthorised assembly in DCCC 536/2020. He then pleaded guilty to incitement to knowingly take part in an unauthorised assembly and organising it. He was sentenced to a total of 18 months’ imprisonment in DCCC 534/2020 on 28 May 2021.

The 5^th defendant

58.  The 5^th defendant is 32 years old. He is not a man with a clear record. He has 9 previous convictions that in the main, relate to Public Order offences. None of his previous convictions were offences motivated by greed, anger, corruption or dishonesty. His last conviction before this offence was on 24 April 2019, incitement to incite public nuisance and he was sentenced to a total of 8 months’ imprisonment for 2 charges. He was only released from that term of imprisonment on 3 October 2019; 18 days for the commission of this offence.

59.  He did not want to put forward any mitigation in relation to his background, career or personal life. It is a known fact that he was a social activist and former Chairman of the League of Social Democrats. However, he did read out a letter in mitigation entitled “Lest we forget the 5 demands; civil disobedience is morally justified”. His letter is marked MFI-6 and has a translation.

60.  I don’t intend to repeat its contents but he explained his actions and motive. He is not ashamed of his actions nor remorseful. He continues to believe in civil disobedience.

The 6^th defendant

61.  The 6^th defendant acted in person when it came to mitigation. I have also considered his previous mitigation, submissions from his then Counsel and his biography submitted in DCCC 537/2020 and DCCC 534/2020. His biography is also submitted again here as MFI-7 and filed in MFI-4.

62.  He too explained why he committed the same offence in this case and in those 2 other earlier cases in 2019. He went back in time to explain how he saw Hong Kong change after the handover in 1997. He had assisted in drafting the Basic Law prior to the handover. He explained why he has lost his confidence in the Hong Kong Government and lamented the loss of freedom of press and assembly.

63.  He reiterated how much he loved Hong Kong but would keep fighting for what he believed. He wanted the “One Country, Two Systems” constitutional principle to work. He did not believe in violence and only advocated peaceful social movement. He committed the offence of organising this unauthorised procession as an act of civil disobedience.

64.  The 6^th defendant was sentenced to 8 months’ imprisonment suspended for 12 months for knowingly taking part in an unauthorised assembly in DCCC 537/2020 on 16 April 2021. He then pleaded guilty to organising an unauthorised assembly and was sentenced to a total of 14 months’ imprisonment in DCCC 534/2020 on 28 May 2021.

The 7^th defendant

65.  Mr. Paul Harris SC has said all he can say on behalf of the 7^th defendant as he did in DCCC 534/2020 when the 7^th defendant pleaded guilty to organising an unauthorised assembly on 1 October 2019 and was sentenced to 14 months’ imprisonment. I have taken into account written mitigation from that past case as well as what Mr Harris has added to or reiterated in mitigation for this present case.

66.  In particular, I have read about his change in career path to follow his conscience to help the disadvantaged sector in Hong Kong. He is not a man with a clear record; he has 6 previous convictions but like D5, they relate mainly to Public Order offences and he was not motivated by greed, dishonest or corruption.

67.  I have read the previous letters written by family, friends and those who have known him through or benefited from his support and commitment to the underprivileged in Hong Kong.

68.  I have an up-to-date medical report relating to the 7^th defendant’s 96-year-old great grand aunt who before sentencing DCCC 534/2020 had moved in with and was under the care of the 7^th defendant. Her mental state appears to have deteriorated since May 2021 as has her gait and she is now confined to a wheelchair. Her health is deteriorating and the doctor opined that his remand since May 2021 “has created a great negative impact on the quality of life of this old lady”.

69.  I have been urged to take her into account especially as he, the 7^th defendant is the only family and support she has in Hong Kong. I also have an up-to-date letter from the 7^th defendant’s brother. He confirms that their great grand aunt has become more anxious and is unsettled due to the 7^th defendant’s absence.

70.  In mitigation, I have been urged to consider the fact that this unauthorised assembly on 20 October 2019 was smaller in number than those in DCCC 534/2020 and DCCC 536/2020. The 7^th defendant’s role as an organiser was limited; he did participate as a member of the banner party but did not chant slogans during the procession. He did not talk to the press or actively encourage participants to join them. I am urged to consider a suspended sentence in this case. Alternatively, if an immediate custodial sentence is imposed then consider a concurrent sentence.

Principles of sentencing

71.  Public order offences have been established as an exception to the general principle that a deterrent sentence should not be passed on a person with a clear record and I have referred myself to page 13 of R v Nguyen Quang Thong & Ors. [1992] 2 HKCLR 10. At the time of these offences all but the 2^nd, 5^th and 7^th defendants had clear records.

72.  I adopt my principles of and reasons for sentencing from DCCC 536/2020, DCCC 537/2020 and DCCC 534/2020. Although I may be repeating what I said in the previous 3 connected cases, it is necessary as not all defendants in this case were involved in the others. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.

73.  I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.

74.  Wong Chi Fung was an application for review for offences relating to unlawful assemblies.  The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence.  Deterrence is necessary to maintain public order.  Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.

75.  Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence.  There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.

76.  The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho [2020] HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence.  In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violent ones and non-violent ones for the purposes of sentencing.  Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence.

77.  The Court of Appeal said at paragraph 56 (quoted from the English translation),

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

78.  The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account Wong Chi Fung and the inherent and expected risk which materialized as was expected by the defendants.

79.  As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.

80.  Since preserving public order is important and deterrence a consideration, I have taken into account the prevailing circumstances at the time some defendants incited others to take part in and all but the 4^th defendant organised that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.

81.  The social unrest from June 2019 had escalated and became relentless, increasingly violent and disturbing.  There was social unrest, protesting and violent eruptions almost every day by and during the months of September and October 2019. Some were riots or violent unlawful assemblies of a large-scale and of lengthy durations. All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.

82.  In mitigation I was referred to Director of Public Prosecutions v Ziegler (2021) 3 WLR 179 as being applicable to sentencing; I should consider the proportionality of the sentence in the context of whether such sentence was necessary.

83.  As summarised by Pang JA in HKSAR v Au Nok Hin CACC 84/2021 in his reasons for refusing bail pending appeal from a sentence imposed by myself in DCCC 536/2020, I quote paragraph 13,

“In broad terms, what Ziegler requires in a case of this kind is for the court to recognise that, notwithstanding his law breaking, a defendant’s right to freedom of expression and right to freedom of assembly were engaged, and that his conviction and sentence are in themselves an interference with those rights. …”

84.  It has been submitted I should according to that authority take into account certain factors identified in paragraphs 71-78 as relevant to the assessment of proportionality, for example, the duration of the protest, whether the obstruction was targeted at the object of the protest, the importance of the precise location to the protesters and the extent of the actual interference on the rights of others.

85.  If Ziegler is applicable to sentencing, on the facts and the evidence before me, in my view, a deterrent sentence involving a term of imprisonment here would still be proportionate. The insignificance of the actual procession route to the protesters, the long duration, obstruction and reprehensible conduct including the extent of actual interference with the rights of others and property belonging to others serves to prove this unauthorised assembly was very serious.

Reasons for sentence

86.  As I have said before, the Basic Law and the Bill of Rights guarantees freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional. Here, restrictions were applied in the interests of public safety, public order, and the protection of others’ rights and freedoms.

87.  I reiterate again, many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. The common purpose of the procession on 20 October 2019 as well as the politics, beliefs, stance and opinions of any of the defendants are irrelevant to sentencing.

88.  In relation to charge 1, I have taken into account what each of the 1^st to 4^th defendants said in the press conference to incite members of the public to join them in defying the Police ban and flouting the law.

89.  In addition, the 1^st and 2^nd defendants published posts on their Facebook pages making the same appeal. They appealed to the public to not only join their procession but to jam pack Yau Ma Tei, Tsim Sha Tsui and Mong Kok; areas outside of the proposed route. There was no concern for causing the most serious and indiscriminate obstruction in one of the busiest areas of Hong Kong.

90.  The call was for an unauthorised assembly in the name of civil disobedience and in the name of a number of causes ranging from disbanding the Police, making 5 demands of the Government and defying the facemask law.

91.  During the press conference outside the Court of Final Appeal the 4^th defendant did call for peaceful procession. He also at the same time said that there would be violence by certain people he called “valiant protesters”. He said he hoped that those valiant protesters and peaceful protesters could join forces together to continue the civil disobedience movement.

92.  That is an acknowledgement that there would be trouble erupting in and around the procession the following day.  In reality, by the end of October 2019 how could anyone have not seen the risk materializing. The latent risk I have previously considered relevant to sentencing in the other related cases was in this case essentially a certainty.

93.  During the press conference there may have been an emphasis on maintaining peace in numbers despite or in spite of the presence of violent protesters but in my view, in such volatile times this was essentially paying lip service to the expression. They deliberately turned a blind eye to public order being jeopardised.

94.  In mitigation it has been submitted that the defendants intended the procession to be peaceful and should not be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over.

95.  Those submissions carry little weight when one considers the tumultuous months and open acknowledgments during the press conferences.

96.  The submission that the defendants as organisers cannot be blamed for the violence or other punishable acts on and around the route of the procession when they openly acknowledge that it was going to happen and take place carries little weight. No defendant took any measures to avoid it erupting.

97.  Not only was there acknowledgement of the violence to come on the 19^th October 2019 but also on the day of the unauthorised assembly. The 1^st defendant said from the outset he knew some friends would “take other actions” and hoped everyone would be safe. Clearly he meant actions that were other than peaceful and non-violent. What other explanation could there be for that comment.

98.  When the banner group arrived at the junction of Canton Road and Austin Road, more speeches were made before the defendants dispersed. Reference was made to “comrades” who could be seen behind the banner group still building blockades that blocked off roads causing huge obstruction to traffic.

99.  The 1^st defendant at the end of the procession thanked his “comrades” for blocking roads so they could march and avoid vehicles. He asked the participants to thank the “comrades” for doing “something that they may not dare or were not willing to do and for protecting the peaceful, rational, and non-violent crowd”. He even had the participants clap to support the “comrades”.

100.  When I consider the obstruction affecting so many, the violence and destruction captured on film in and around the route of the procession that took place during and long after the banner party declared the procession at an end, I find it unnecessary to define what violent acts or breaches of the peace can be attributed to participants of the procession. I find it can be so attributed and the defendants as organisers are not blameless.

101.  It was inevitable that when the procession spilled over the proposed route and covered the streets of Salisbury Road, Canton Road, Kowloon Park Drive, Nathan Road and Austin Road which essentially surround Kowloon Park and were jam packed full of protesters, the protesters spread further up Nathan Road towards Mong Kok Police Station with specific shops and banks on the way targeted for vandalism by some.

102.  In the Amended Summary of Facts, it was agreed that several MTR stations in the area were vandalised that day. The repair cost to Tsim Sha Tsui and East Tsim Sha Tsui stations was approximately HK$350,000.00. Damage and loss to 3 Best Mart 360 shops on Nathan Road and Chatham Road South cost $1,776,968.00. The cost to repair the damage to 4 branches of Bank of China totaled $5,057,862.00. The forced cancellation of activities to be held in the Hong Kong Cultural Centre that day meant a loss of revenue of $113,253.00. The total cost here is $7,298,083.00. The cost of damage to Government property has not been included.

103.  These charges do involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts public order was crossed.

104.  After a careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.

105.  The motive put forward by the defence, that they committed the offences as acts of civil disobedience to justify their breaches of the law does not carry significant weight. This concept is recognised in the Courts of Hong Kong. However, to conform to civil disobedience, the facts must show the acts were peaceful and non-violent.

106.  Despite the submissions that the defendants’ beliefs were genuine and they held conscientious objections, when I consider the facts of the offences, their consequences as well as the need for deterrence, the weight I would attach to their motive is not significant. Moreover, the act of civil disobedience here was not expressly directed towards section 17A of the Public Order Ordinance as an unjust law but was committed in the course of protesting against the Government and the Police over several issues.

Starting point – Charge 1

107.  After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly during that tumultuous period as well as submissions in mitigation, I repeat, an immediate term of imprisonment is the only appropriate sentencing option.

108.  To arrive at an appropriate starting point for Charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. A premeditated press conference was organised by the 1^st to 4^th defendants outside the Court of Final Appeal to ensure maximum publicity in front of many media outlets. Then, the 1^st and 2^nd defendants amplified the incitement in their Facebook posts.

109.  I have taken into account what each defendant said during the press conference. They made it clear they wanted large numbers to come out. What they proposed as a procession meant they knew the whole Tsim Sha Tsui area would be jam packed and paralysed. They acknowledged there would be others there who would be non-peaceful; trouble makers intent on violence.

110.  The 1^st, 2^nd and 3^rd defendants went on to organise that unauthorised assembly the following day. The 4^th defendant was not present. The culpability of these defendants is higher than the other defendants who jointly organised it.

111.  After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.

Starting point - Charge 3

112.  I find the other defendants, that is the 5^th to 7^th defendants equally culpable in organising this unauthorised assembly. It is true that within this banner group leading the procession some chanted slogans, some wore masks and some only replied to chants but I do not differentiate their roles for the purpose of sentencing.

113.  After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1^st to 3^rd defendants.

114.  A starting point of 18 months’ imprisonment is appropriate for the 5^th to 7^th defendants.

Discount after plea

115.  All defendants indicated their pleas at most, a few weeks before this trial was due to commence. Certainly, long after sentences imposed in DCCC 536/2020, DCCC 537/2020 and DCCC 534/2020. I have taken into account the authority of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. According to that authority, 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 date, after which trial dates are fixed, who then indicates before the first day of trial that he or she wishes to plead guilty, is to be afforded a discount between 25 and 20% of that taken as the starting point for sentence. Here, I apply a discount of between 25 and 22% to the starting points.

116.  Accordingly, I reduce the starting point of 24 months for the 1^st to 4^th defendants facing Charge 1 to 18 months’ imprisonment.

117.  I reduce the starting point of 24 months for the 1^st to 3^rd defendants facing Charge 3 to 18 months’ imprisonment.

118.  I reduce the starting point of 18 months for the 5^th to 7^th defendants facing Charge 3 to 14 months’ imprisonment.

The totality principle/concurrent and consecutive sentencing

119.  The importance of the totality principle is to ensure fairness to any defendant. Courts must achieve a just and balanced sentence that will not punish a defendant twice for the same or similar conduct and crush him. I have to consider the overall criminality and culpability of each individual defendant to come to a fair sentence.

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

121.  Here, although there were 4 separate hearings for similar offences committed on 6 separate dates between 18 August and 20 October 2019, many of the defendants were involved in more than one hearing. If they had all been heard together or closer together then I would have ensured proportionality of punishment in what would be a multi-charge case. As it is, sentence dates range between 16 April and today, 1 September 2021.

122.  The decision to set down 4 hearings was correct for many reasons but it is a shame that at least some of the defendants did not indicate their decisions to plead to the third and fourth trials after the conclusion of the first trial to bring their pleas up earlier because it means that over 4 months has passed since I imposed the sentences of the first and second trials that affects three of the defendants here. 3 months has passed since I imposed the sentences for the third that affects six of the defendants here.

123.  I certainly did not nor could have sentenced in DCCC 536/2020, DCCC 537/2020 and DCCC 534/2020 on the basis that in the future related hearings I may again convict some of those defendants involved either after trial or on a plea. I could not take those other charges to be dealt with in the future into account.

124.  Nevertheless, and despite it being somewhat difficult to calculate, the objective to ensure an appropriate proportionality between all the multiple offences committed over the summer of 2019 and the sentences imposed is very much alive.

125.  Where relevant to each defendant here, I will take into account what sentences I imposed, when and whether any were part consecutive or concurrent. I will also take into account the time already served in those 3 earlier sentences as they affect each defendant. I obviously take into account the mitigation of each individual defendant. Equally I take into account the charges they faced and face here in the 4 cases, for example, this is the 1^st offence of inciting an unauthorised assembly for the 3^rd defendant but the 2^nd offence of inciting an unauthorised assembly for the 1^st, 2^nd and 4^th defendants on divers dates.

126.  If I had dealt with the sentences for the multiple offence dates together or close together, I am sure I would have considered it appropriate to make partly consecutive sentences to reflect multiplicity and culpability. I aim to achieve that in this sentencing exercise without being oppressive or unfair.

Conclusion

The 1^st defendant

127.  I sentence the 1^st defendant to 18 months’ imprisonment for Charges 1 and 3. I find these appropriate sentences but I will reduce these sentences by 2 months, to 16 months to reflect and take into account time served already in DCCC 534/2020.

128.  Therefore, the 1^st defendant is sentenced to 16 months’ imprisonment for Charges 1 and 3 to be served concurrently; a total of 16 months’ imprisonment.

129.  I order this term of imprisonment to run concurrently to the term of imprisonment imposed in DCCC 534/2020.

The 2^nd defendant

130.  I sentence the 2^nd defendant to 18 months’ imprisonment for Charges 1 and 3. I find these appropriate sentences but I will reduce these sentences by 2 months, to 16 months to reflect and take into account time served already in DCCC536 and 534/2020.

131.  Therefore, the 2^nd defendant is sentenced to 16 months’ imprisonment for Charges 1 and 3 to be served concurrently; a total of 16 months’ imprisonment.

132.  I order this term of imprisonment to run concurrently to the term of imprisonment imposed in DCCC 536/2020 and DCCC 534/2020.

The 3^rd defendant

133.  I sentence the 3^rd defendant to 18 months’ imprisonment for Charges 1 and 3. I find these appropriate sentences but I will reduce these sentences by 4 months, to 14 months to reflect and take into account time served already in DCCC 536/2020 and DCCC 534/2020.

134.  Therefore, the 3^rd defendant is sentenced to 14 months’ imprisonment for Charges 1 and 3 to be served concurrently; a total of 14 months’ imprisonment.

135.  I order this term of imprisonment to run concurrently to the term of imprisonment imposed in DCCC 536/2020 and DCCC 534/2020.

The 4^th defendant

136.  I sentence the 4^th defendant to 18 months’ imprisonment for Charge 1. I find this an appropriate sentence but I will reduce this sentence by 2 months, to 16 months to reflect and take into account time served already in DCCC 534/2020.

137.  Therefore, the 4^th defendant is sentenced to 16 months’ imprisonment for Charge 1. I order this term of imprisonment to run concurrently to the term of imprisonment imposed in DCCC 534/2020.

The 5^th defendant

138.  I sentence the 5^th defendant to 14 months’ imprisonment for Charge 3.

The 6^th defendant

139.  I sentence the 6^th defendant to 14 months’ imprisonment for Charge 3 but I will reduce this sentence by 3 months, to 11 months to reflect and take into account time served already in DCCC 534/2020.

140.  Therefore, the 6^th defendant is sentenced to 11 months’ imprisonment for Charge 3. I order this term of imprisonment to run concurrently to the term of imprisonment imposed in DCCC 534/2020.

The 7^th defendant

141.  I sentence the 7^th defendant to 14 months’ imprisonment for Charge 3 but I will reduce this sentence by 2 months, to 12 months to reflect and take into account time served already in DCCC 534/2020.

142.  Therefore, the 7^th defendant is sentenced to 12 months’ imprisonment for Charge 3. I order this term of imprisonment to run concurrently to the term of imprisonment imposed in DCCC 534/2020.