HKSAR v. LAU CHUN YUK AND OTHERS

[English Translation - 英譯本]

CACC 243/2021, [2023] HKCA 1098

ON APPEAL FROM [2021] HKDC 1096 & [2021] HKDC 1309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATIONS FOR LEAVE TO APPEAL

AGAINST CONVICTION AND SENTENCE

CRIMINAL APPEAL NO 243 OF 2021

(ON APPEAL FROM DCCC 361/2020)

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BETWEEN

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REASONS FOR JUDGMENT

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

1.  The four applicants (A1, A3, A4 and A5) were respectively the first, third, fourth and fifth accused at the trial. They were convicted of the following charges: charge 1 “riot” (against all four applicants); charges 2, 4, 5 and 6 “using facial coverings at an unlawful assembly” (respectively against A1, A3, A4 and A5); and charge 8 “possession of an offensive weapon or instrument fit for unlawful purposes” (against A5)[1]. The trial judge, Deputy District Judge Kathie Cheung (as she then was), sentenced each of them to a term of imprisonment of 4 years and 9 months. The four applicants were aggrieved and applied for leave to appeal against conviction in respect of charge 1 “riot” (A4[2]) and sentence (A1, A3 and A5). The applications were referred directly to the Court of Appeal for disposal.

Location of the offences

2.  All of the above offences took place “in the vicinity of the No.2 Bridge and Campus Circuit East near Jockey Club Postgraduate Hall I of the Chinese University of Hong Kong”.

3.  Campus Circuit East was located on campus at the Chinese University of Hong Kong (“CUHK”). On the stretch of road relevant to this case, there was a junction with a slip road (“the junction”). The junction, which led up a hillside (“the hillside”), was flanked by a small car park, the university sports field and tennis court(s) and Jockey Club Postgraduate Hall I of CUHK. On the other side of the road, not far from the junction and the car park, there was the No.2 Bridge (“No.2 Bridge”). No.2 Bridge started from Campus Circuit East, then straddled the MTR tracks and Tolo Highway, and finally connected to the Science Park.

4.  It was not disputed that the vicinity of No.2 Bridge and Campus Circuit East was a public place.

Primary facts

5.  Citing the relevant admitted facts, the trial judge pointed out[3]: on 11 November 2019, the police formed a checkline (“the police checkline”) at the location of the offences to prevent people from throwing objects off No. 2 Bridge, which may pose danger to others. The location in question was the side of No. 2 Bridge closer to Campus Circuit East and facing the hillside. The term “left side” or “right side” mentioned time and again in the Reasons for Verdict of the trial judge refers to the left front or right front when looking in the direction of the hillside from the checkline.

6.  In respect of the occurrence of the riot, she pointed out[4]:

“10. … between about 1:06 p.m. and 2:26 p.m., a “riot” took place at Campus Circuit East near the junction and No. 2 Bridge, namely more than three persons unlawfully assembled together, dressed in dark clothing, had masks or face coverings on and conducted themselves in a disorderly manner, which was likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace, and the persons assembled even actually committed a breach of the peace. Their acts included the following:

(1) they assembled and remained on the carriageway of Campus Circuit East, and barricaded the carriageway with bricks and miscellaneous objects;

(2) despite the fact that the police repeatedly issued verbal warnings and raised warning banners, the persons assembled still refused to disperse;

(3) they knocked on objects to make noises;

(4) through a loudhailer they signaled to the police that force would be used;

(5) further, using yellow plastic wheeled bins (hereinafter referred to as “yellow wheeled bins”) as cover, they charged at the police checkline four times and, among other things, threw hard objects and petrol bombs at the police:

(i) the first round of charging: between about 1:16 and 1:20 p.m., using yellow wheeled bins as cover, the persons assembled charged at the police checkline and threw approximately nine petrol bombs at the police. The police fired tear gas and forced those assembled unlawfully to retreat;

(ii) the second round of charging: between about 1:53 and 2:02 p.m., using yellow wheeled bins as cover, the persons assembled charged at the police checkline and threw approximately nine petrol bombs at the police. The police fired tear gas and forced those assembled unlawfully to retreat;

(iii) the third round of charging: between about 2:07 and 2:12 p.m., using yellow wheeled bins as cover, the persons assembled charged at the police checkline and repeatedly threw hard objects at the police. The police fired tear gas and forced those assembled unlawfully to retreat;

(iv) the fourth round of charging: between about 2:24 and 2:26 p.m., using yellow wheeled bins as cover, the persons assembled charged at the police checkline and threw five petrol bombs at the police. Then the police fired tear gas and took action to disperse them and make arrests.”

7.  In respect of the issues of the arrests and exhibits, she pointed out[5]:

“11. Immediately after the fourth round of charging, the police fired tear gas and took action to disperse them and make arrests. The screenshots from the video footage (exhibit P11) showed the chronology of the riot in its entirety and part of the situation in which the police subdued or escorted the first to fifth accused during the dispersal operation.

12. Identity was an undisputed fact, namely it was not in dispute that at about 2:30 p.m., the first to fifth accused were arrested by the police.

13. As regards the exhibits seized from the various accused by the exhibit officer, a substantial part of the evidence was not in dispute …”

Specific allegations

8.  The prosecution targeted only the fourth round of charging, and the specific circumstances at the material time were described by the trial judge as follows. She specifically pointed out that immediately before that round of charging, no one else gathered behind the yellow wheeled bins or near the hillside[6]:

“16. The testimonies of the prosecution witnesses, the police video footage and the footage from the internet^[7], taken together, showed that between about 2:24 and 2:26 p.m. on the day in question, the protesters charged at the police checkline located on No.2 Bridge facing Campus Circuit East for the fourth time, namely around 20 to 30 black-clad protesters, using opened umbrellas and pushing green wheeled bins as cover, moved from somewhere at the left front of the police checkline to somewhere behind the five yellow wheeled bins directly in front of it. Most of them were wearing helmets, peaked caps, respirators, face scarves, etc. The protesters ignored the warnings issued by the police, closed in on the police checkline until they were about 25 metres in front of it and took cover behind the yellow wheeled bins, throwing petrol bombs and charging at the police checkline. Immediately before the launch of the fourth round of charging, no one gathered behind the yellow wheeled bins or near the hillside.”

9.  The trial judge also described as background the situation after 1:05 p.m. She pointed out that, apart from the protesters, the police witness did not see anyone who appeared to be a passer-by or bystander behind the yellow wheeled bins[8]:

“17. The field commander, Inspector Ngai Chun-kit (PW1), gave an account of the background of the case as follows. From about 12:05 p.m., the police formed a police checkline on No.2 Bridge facing Campus Circuit East. At about 1:05 p.m., PW1 noticed that there were 4 or 5 persons on the hillside directly opposite the checkline and 20 to 30 persons on the carriageway of the junction of Campus Circuit East at the left front of the checkline. They were wearing black clothes and masks, shielding their bodies with umbrellas and chanting slogans (such as “go away, cops” and “disband the police force”). Most of the persons (about 20 persons) on the carriageway of the junction of Campus Circuit East at the left front squatted down, pushed the large yellow wheeled bins out to somewhere directly in front of the police checkline, took cover behind the wheeled bins and threw stones, bricks and petrol bombs at the police. Between 1:05 p.m. and 2:25 p.m., some of the protesters behind the yellow wheeled bins went back from where they were to the left front of Campus Circuit East, then picked up bricks and stones and poured unknown liquid into glass bottles, and then returned to somewhere behind the yellow wheeled bins to attack the police checkline. Despite the fact that the police kept issuing warnings to the persons assembled and firing anti-riot rounds and tear gas to stop them, the crowd did not disperse and continued to attack the police. PW1 said that he did not see anyone who appeared to be a passer-by or bystander go anywhere behind the yellow wheeled bins.”

10.  As to the point that there was no one other than the protesters, the trial judge further stated in the later part of her Reasons for Verdict[9]:

“72. As I pointed out earlier, all the footage showed the protesters assembled to the left of the police checkline or yellow wheeled bins. The footage did not show anyone dressed in an outfit similar to those of the protesters walking from the right of the yellow wheeled bins towards the rear of the wheeled bins. Nor did the footage show anyone dressed in an outfit similar to those of the protesters walking from the hillside to somewhere behind the yellow wheeled bins. Therefore, any protester who was behind the yellow wheeled bins must have walked from the left to somewhere behind the yellow wheeled bins.”

Apprehension of A4

11.  The following is the course of arrest of A4[10]:

“31. After the protesters had charged at the police checkline for the fourth time, the police fired tear gas and the protesters fled. At that time, police constable 14404 (PW10), who was in a position slightly to the right of the centre of the police checkline, and other police officers were advancing. Upon seeing that two uniformed police officers had intercepted the fourth accused, PW10 came to their assistance (at the location near the triangular road sign as shown in MFI-20). PW10 reckoned that he first saw the fourth accused after the police had been advancing for about half a minute. When PW10 first saw the fourth accused, he was approximately 10 metres away from the fourth accused.

32. When PW10 went up to assist, he noticed that the fourth accused was wearing a black T-shirt, a pair of blue jeans and a pair of blue sports shoes. The fourth accused was wearing a respirator (exhibit P40) over his mouth, leaving only his eyes and the area above the eyes uncovered, and the hood (exhibit P41) that he was wearing covered his mouth and nose as well as the respirator. The fourth accused was also wearing a pair of blue swimming goggles (exhibit P39) around his neck and chin. He was wearing a pair of black arm sleeves (exhibit P42) which covered his forearms as well as elbows, a 3M black and grey glove (exhibit P43) on his right hand and a labour glove (exhibit P44) on his left hand. Among the persons arrested during the operation on the day in question, the fourth accused was the only one who had blond hair.”

12.  During the subsequent formal search, the police further found from A4’s trouser pocket(s) and grey and black rucksack three masks, a towel, a retractable umbrella, three bottles of saline solution, a roll of adhesive tape and a jacket, as well as his mobile phone and personalized Octopus card.

Prosecution case

13.  The prosecution had no direct evidence to show that A4 or other applicants had participated in charging at the police checkline. The prosecution brought against them was based on the locations where they were visually locked onto or intercepted and other circumstantial evidence.

Defence’s stance

14.  All of the four applicants were students of CUHK and had a clear record.

15.  A1 and his witness were the only two defence witnesses in this case. Their evidence had no bearing on the case of the others and we shall not refer to it here.

16.  To put it simply, the defence’s stance on the allegation of “riot” was as follows[11]:

“53. As far as the first charge is concerned, it was not disputed that there was a riot at the scene of the offences; the defence only disputed whether the accused ‘participated’ in the riot …”

Verdict of the trial judge

17.  The trial judge pointed out that since there was no evidence the same group of protesters carrying out all four rounds of charging on that day, the prosecution only focused on the fourth round of charging itself. She found, based on the footage taken from the police and the internet, that a riot occurred during the fourth round of charging in “the area between the rear of the yellow wheeled bins and the hillside”[12].

18.  The trial judge reminded herself that she could not draw the inference that the applicants participated in the riot based merely on their dark-coloured outfits. Nevertheless, she expressly pointed out that this was evidence that could be taken into consideration in making her findings. The trial judge made it clear that since the prosecution did not rely on the police witnesses’ allegations that the applicants had run away, she would not use them as evidence showing that the latter committed the offences[13].

19.  As regards the defence’s various challenges directed against the police witnesses, the trial judge accepted the latter’s explanations or noted that some of the criticisms or matters relating to the criticisms were immaterial and peripheral. She accepted all the police witnesses as honest and reliable witnesses and gave full weight to their evidence[14].

20.  We turn finally to the core findings of the trial judge. She has thus far dealt with A1’s case, and it is time to apply the same approach for the purpose of reaching the conclusion that the other applicants were guilty[15]:

“99. The prosecution had no evidence to show that any of the second to fifth accused actually committed any acts of breach of the peace. The circumstantial evidence against the second to fifth accused relied upon by the prosecution was similar to that against the first accused, namely the four of them were also intercepted shortly after the commencement of the police dispersal operation, their physical positions at the time were not far away from the area where the riot took place (“the riot area”), and each of them was then wearing an outfit and protective gear similar to those of the protesters at the scene.

100. Although I cannot be certain when the second to fifth accused arrived at the riot area or its vicinity, I am sure that at the time of the riot, the accused were all present within the riot area as they were all intercepted within a short time after the commencement of the dispersal operation and the locations where they were first seen were in close proximity to the riot area.

101. My analysis in respect of the first charge against the first accused is applicable to the second to fifth accused. To put it simply, I am of the view that it is impossible that the accused only arrived at the riot area or its vicinity immediately before the dispersal operation. Regardless of when they arrived and whether or not they heard the warnings given by the police, if they did not intend to be party to it, they would, as a matter of fact, have sufficient time to leave the scene earlier, that is, before or during the fourth round of charging (i.e. the riot), and dissociate themselves from the protesters. However, the fact is that they chose to remain at the scene and were eventually intercepted within a short time after the police launched the dispersal operation. Further, the outfits and protective gear that they wore at the time were similar to those of other protesters at the scene. I am sure that at the time of the riot, the four accused and other protesters assembled within the riot area and among them, some threw petrol bombs or hard objects at the police, and that the common purpose of the four accused and other protesters assembling must be to charge at the police checkline, and to obstruct the police officers from enforcing the law by sheer weight of numbers. Under the circumstances, I am of the view that the only irresistible inference must be that all four accused intended and did by their presence at the scene encourage other protesters to commit acts of breach of the peace, including throwing petrol bombs. I find that they all participated in the riot.”

Sentencing at first instance

(Mitigation)

21.  The mitigation advanced by the defence can be summarized as follows: each of the applicants had a clear record; there was no evidence that the riot was premeditated; the riot area was confined to No.2 Bridge and the junction with Campus Circuit East; the riot was small in scale, involving only a few dozen people; there was no evidence as to the duration of the applicants’ participation; there was no evidence of the applicants playing the role of a leader or a person who called on others to join in, or committing acts of breach of the peace personally; there was no evidence of the applicants throwing objects onto the MTR tracks or Tolo Highway, or vandalising other public facilities; the riot did not cause serious loss or damage to property.

(Allocation of sentences)

22.  The sentences for the two offences referred to as “using facial coverings” and “possession of an instrument” for short were respectively three months’ and six months’ imprisonment, all of which were to be served concurrently with the sentence for the offence of “riot”; see below for the sentencing for the latter.

(Sentencing for riot)

23.  The trial judge noted that riot is a serious offence which carries a maximum sentence of up to 10 years’ imprisonment. Citing HKSAR v Yeung Ka Lun [2019] 1 HKC 296 (at paras 58-61), she pointed out that the relevant sentence must be one of both personal and general deterrence with no exception for offenders of a young age and with a good background[16].

24.  Citing HKSAR v Tang Ho Yin [2019] 3 HKLRD 502 (at para 24), the trial judge pointed out: “The gravity of the offence of riot is not to be judged merely by what the individual did (or did not do), but by what the group to whose number he lent his support did …”[17]. She listed the 12 factors which may affect sentence as identified by the Court of Appeal in HKSAR v Leung Tin Kei [2020] 4 HKLRD 428[18].

25.  Having briefly stated the facts and sentences in the two cases of Yeung Ka Lun and Tang Ho Yin (four years nine months and four years six months respectively) and that in sentencing, the court should not over-focus on the riot in question and lose sight of the related disturbances that took place in the same area during the same period of time as articulated in Tang Ho Yin, the trial judge made the following observations. The thrust of which was that in all the relevant circumstances of the day in question, sentencing in the present case must not consider only the circumstances surrounding the fourth round of charging[19]:

“31. There was no evidence in this case that at or during the time of the first to third rounds of charging, any of the accused was already present at the scene. As there was widespread media coverage (including online live broadcast) of the incident of charging at the police, it is impossible that the five accused were unaware of the situation at the scene. However, by specifically wearing dark clothes, masks or face coverings, or even putting on other protective gear, they must have intended to participate in these acts of confrontation and charging or encourage other protesters at the scene to charge at the police. Although there was no evidence that they had already joined in the unlawful assembly or riot in question sometime after 1 p.m., it was apparent that there was a continuous inflow and outflow of protesters participating in the assembly, and that the joining in of each individual protester was sufficient to lend support to other protesters’ continued confrontation with and charging at the police, and as a result, such confrontation and charging lasted for more than an hour instead of coming to an end after the first confrontation and charging. This reflects the seriousness of the facts as a whole. Therefore, in sentencing, I should not merely focus on the situation at the time of the fourth round of charging.”

26.  The trial judge then went on to set out the eight items applicable to the fourth round of charging, apparently based on the 12 sentencing factors in Leung Tin Kei[20]:

“32. As regards the riot in the present case, my observations are as follows:

(1) The number of people assembled at the scene cannot be regarded as very large. There were about a few dozen people who assembled in the riot area;

(2) Despite the fact that the police repeatedly issued verbal warnings and raised warning banners, the persons assembled still refused to disperse, and they even said to the police that force would be used;

(3) The persons assembled all wore dark clothes, masks or face coverings and put up umbrellas; it was apparent that they knew their acts were unlawful and intended to cover up their identities with masks and umbrellas and evade legal liability;

(4) The five accused in this case also wore dark clothes, masks or face coverings and other protective gear, including shin guards, arm sleeves and gloves. The third accused was even holding a black wooden plank, the second accused was then in possession of a metal hammerhead and a screwdriver and the fifth accused was in possession of a spanner. All these indicate that they came prepared;

(5) The riot lasted for more than an hour, during which the protesters charged at the police checkline four times and threw a total of approximately 23 petrol bombs and other miscellaneous objects at the police. Although the fourth round of charging lasted for only two minutes or so, the protesters had, within this short span of two minutes, launched a fierce attack on the police, including throwing five petrol bombs and other miscellaneous objects at the police checkline. It was shown in the footage that there were raging flames at the scene, that there was dense smoke everywhere and that the ground was littered with miscellaneous objects, and as pointed out by the prosecution, the said place was virtually a battlefield;

(6) Although there was no evidence in this case that ultimately, there was serious damage to property, it was obvious that throwing petrol bombs and hard objects must have, to a certain extent, caused damage to the surroundings of the scene;

(7) There was no evidence in this case that these acts of charging resulted in heavy casualties. Nevertheless, I cannot overlook the risk to the personal safety of those present at the scene posed by such acts of charging, especially throwing petrol bombs; and

(8) There was no evidence in this case that the five accused played the role of a leader or a person who called on others to join in. Nor was there evidence in this case that the five accused actually participated in the acts of violence. Nevertheless, the Court of Appeal has made it clear that the gravity of the offence of riot lies not only in what an individual did, but also in what the entire group to which he was a party did.”

27.  Based on the above sentencing principles and factors, the trial judge took the view that an immediate custodial sentence was the only sentencing option for charge 1 “riot” and the appropriate starting point was five years’ imprisonment. However, in view of their background such as their young age and clear record, the trial judge exercised “the widest discretion” and reduced the sentences of all the applicants by three months to four years and nine months’ imprisonment (the original A2 who committed the offences in the present case while she was on bail was sentenced to 4 years and 11 months’ imprisonment)[21].

28.  The trial judge specifically noted[22]:

“36. The defence suggested that the fact that in the present case, the accused actually admitted most of the prosecution case and thereby saved a lot of court time and resources can be regarded as a mitigating factor. However, I am of the view that the facts agreed by the accused were basically what was shown in the footage taken by the media or the police. I cannot see any reason why they would disagree with what was shown in such footage. Therefore, I do not consider this a valid mitigating factor. I shall not give any discount on sentence for this reason.”

Application in relation to conviction

(Ground of appeal)

29.  Mr Siu Bunn Poon, counsel who also represented A4 at trial, put forward a ground of appeal on behalf of A4:

“1. The trial judge, on an improper basis and/or in the absence of any basis, wrongly inferred that the fourth applicant intended and did by his presence at the scene encourage other protesters to commit acts of breach of the peace:

Particulars

(a) The above inference was based not on clear findings of primary facts but on inference upon a series of inferences.

(b) In any event, in view of all the evidence and circumstances of this case, the above inference was not the only reasonable and irresistible inference.”

(Essence of the submissions)

30.  In respect of particular (a), citing the following passages of the judgment of the Court of Final Appeal in Winnie Lo v HKSAR (2012) 15 HKCFAR 16, Mr Poon stressed[23]:

“115. There are three requirements for drawing such an inference. First, it must be grounded on clear findings of primary fact. Secondly, the inference must be a logical consequence of those facts. Thirdly, beyond being logical (since more than one inference might logically be drawn), in a criminal case the inference must be “irresistible”, that is, it must be the only inference that can reasonably be drawn on the basis of those facts.

116. As was stated in Nina Kung v Wong Din Shin:

… any such inference must be properly grounded in the primary facts found. The court guards against indulging in conjecture under the guise of drawing an inference where the primary evidence does not logically and reasonably justify the particular inference in question.

117. And, as Lord Diplock pointed out in Kwan Ping Bong v R:

The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling — one (and the only one) that no reasonable man could fail to draw from the direct facts proved.”

31.  Mr Poon went on to say that since A4 was intercepted in the vicinity of the riot area shortly after the commencement of the dispersal operation, it was open to the trial judge to infer that A4 was present in the vicinity of the riot area before the commencement of the dispersal operation, but nothing more. Drawing other inferences, such as that A4 had already stayed in the riot area for a long time, that he had sufficient time to leave but did not do so and that he stayed in the riot area intending by his presence at the scene to encourage others to riot, is piling inference upon inference, which is impermissible.

32.  In respect of particular (b), Mr Poon asserted that mere presence in the vicinity of the riot area was not sufficient to constitute encouraging others to riot, and yet apart from that, there was no other evidence in relation to A4, such as his words and conduct, as at the time before his arrest. As for A4’s clothing and equipment, they were in fact not very different from those of the reporters at the scene, and there was evidence that he was holding a camera in his hand at the time of his arrest, and thus it is possible that he was taking photos or filming. In any event, A4 was a student of CUHK, and the trial judge could not have ruled out the possibility that he was just looking on briefly or merely passing by.

(Analysis and discussion)

33.  At the hearing, this Court had referred to HKSAR v Chiu Yu Man CACC 577/1999 (date of judgment: 12 October 2000). In that case, the Court of Appeal pointed out[24]:

“ It was submitted by Mr Plowman that the judge was not entitled to draw an inference based on another inference because an inference must be drawn against “direct facts proved”. In support, he cited the passage in R v Kwan Ping-bong to which we have earlier referred. Plainly, the case cannot be authority for the proposition that Mr Plowman advanced. Once an inference has been drawn from primary facts, further inference or inferences can be drawn from that inference provided that the inference drawn is equally compelling and the only reasonable inference that can be drawn.”

34.  As against the observations in Winnie Lo, it is apparent that the above passage is more directly on point and instantly distinguishable from the former case, and furthermore, there is no discernible flaw in logic. Having looked at the judgment in Chiu Yu Man, Mr Poon accepted this Court’s view. However, even leaving aside Chiu Yu Man, it is difficult for Mr Poon’s complaint to be established because he avoided mentioning a number of inferable facts in the case, resulting in the basis of his argument being too narrow and completely departing from reality.

35.  The primary facts that were skipped over by him but referred to by the trial judge include: first, by the time of the fourth round of charging, the disturbance had been going on for one and a half hours, during which, apart from the protesters who were carrying petrol bombs and other objects back and forth between Campus Circuit East and the yellow wheeled bins, there were no passers-by or bystanders behind the yellow wheeled bins. That was the testimony of the field commander of the police, and was also a finding of fact of the court; second, immediately before the fourth round of charging, no one gathered behind the yellow wheeled bins or near the hillside, and there were only 20 to 30 black-clad protesters behind the yellow wheeled bins. That was an indisputable image on the video recording of the scene; third, at the time of his arrest, A4 was fully equipped, with a retractable umbrella and three bottles of saline solution in his rucksack. That was also a fact admitted by the defence.

36.  The above-mentioned three primary facts or findings of fact, taken individually or together, actually formed a solid basis for the trial judge to infer that A4’s original position was within the riot area, and that he could not have been just passing by, and instead he participated in the riot on purpose. This has nothing to do with drawing an inference upon an inference. As a final submission, Mr Poon pressed the point that A4’s clothing and equipment were similar to those of the reporters, but what was shown on the video recording of the scene was a different matter. In terms of appearance and equipment, reporters wearing a vest with the bright-coloured word PRESS on it and holding high a camera with a telephoto lens or at least a mobile phone with a retractable stick were completely different from A4. Given that A4 was a student of CUHK and that he did not give evidence, the assertion that he was taking photos or filming in his capacity as a bystander is simply unfounded conjecture.

(Conclusion)

37.  A4’s ground of appeal is not a reasonably arguable ground of appeal. It is not even a ground of appeal that should be raised. Accordingly, we refuse A4’s application for leave to appeal against conviction and dismiss his appeal.

Application in relation to sentence

(Grounds of appeal)

38.  Ms Ferrida Chan of counsel and Mr Billy Yau of counsel, who were not defence counsel at trial, each put forward two grounds of appeal on behalf of A1, A3 (Ms Chan) and A5 (Mr Yau). The grounds they put forward overlap completely:

I. The starting point of five years’ imprisonment for the offence of “riot” adopted by the trial judge was manifestly excessive.

II. The trial judge erred in refusing to reduce the sentence for the applicants’ agreeing to a substantial part of the prosecution case.

(Essence of the submissions)

39.  The essence of the submissions of the two counsel Ms Chan and Mr Yau can be summarized as follows.

40.  The Court of Appeal reiterated in HKSAR v Choy Ka Fai [2011] 2 HKLRD 150 (at para 24): “for offences which involve comparable facts in nature and gravity, comparable sentences should be imposed”, which is a principle that “should not be neglected unless there are otherwise sufficient reasons”.

41.  Both Yeung Ka Lun and Tang Ho Yin were cases to which the trial judge had made reference. The facts of those two cases were far more serious than the present ones, and yet the trial judge equated the starting point for the present case with those for the said two cases (five years) without explanation. Clearly, this was contrary to the principle set out in Choy Ka Fai.

42.  The facts in Yeung Ka Lun were far more serious than those of the present case because the incident occurred in a densely populated downtown area; there was direct evidence showing that the accused in that case placed burning tinder on the rear wheel of a taxi near the fuel tank; plainly, the purpose of doing so was, among other things, to cause greater chaos at the scene.

43.  The facts in Tang Ho Yin were far more serious than those of the present case because the riot in question was one of the several riots in the same district, and the whole incident of the disturbances in the district lasted for several hours; the riot in question involved 100 to 200 protesters whereas there were only 60 or so people on the police side; the protesters attacked the police who, as a result, not only failed to disperse the protesters, but also had to retreat along the road; during which the protesters chased, assaulted and/or hurled objects at the police officers, causing some of them to fall down, and ultimately, 29 people were injured, some of whom were hospitalized; there was evidence that the accused in that case hurled objects at the police.

44.  In other words, taking into consideration various factors, whether they be factors such as the location of the offences, the number of rioters or the number of injured police officers, the present case was far less serious than the said two cases, and the same starting point should not be adopted.

45.  Finally, the two counsel Ms Chan and Mr Yau contended: A1, A3 and A5 agreed to almost the whole of the prosecution case, for example the identity, the place of arrest, the personal belongings found upon search, the relevant chain of exhibits, etc.; the argument they put forward was mainly about the meaning of reasonable excuse under the ordinance referred to as “ the mask law” for short; quite a number of decided cases show that if the defence confines the issue to the interpretation and application of the law, the accused may generally be given a certain degree of discount on sentence.

(Analysis and discussion)

46.  It was stressed in Choy Ka Fai: for cases involving comparable nature, facts and gravity, comparable sentences should be imposed. The emphasis of this statement is on the word “comparable”. However, being comparable may not necessarily be the same as having the same characteristics and a comparable quantity of the same characteristics. For example, case A occurs in a busy downtown area and so does case B; case A involves petrol bombs and so does case B; there are a certain number of people injured in case A and there are also a certain number of people injured in case B, and so forth. In the process of evaluating whether or not they are comparable, the presence and quantity of the same characteristics are naturally factors to be considered, but they are by no means the only considerations. To put it at its simplest, how can 50 people with contusions, bruises and sprains compare to a person who was hit by a brick and thus in a coma for several days? What if 10 out of those 50 people suffered serious fractures? Unless the appellate court is of the view that the outcome is plainly wrong and cannot stand, the trial court is in the best position to make a decision.

47.  The second point stressed in Choy Ka Fai is: for sentencing in respect of comparable cases, no distinction can be drawn unless there are otherwise “sufficient reasons”. By reverse application of this to the circumstances in the present case, it raises the question whether cases that superficially appeared to be different were in fact equally bad, so that there were sufficient reasons for arriving at the same sentence. The answer to this question, in our view, is in the affirmative. It is at least a conclusion that the trial judge was entitled to reach. As she pointed out in her Reasons for Sentence, the riot in question was only one of the four related rounds of charging. In other words, it was not a single outbreak during the disturbances in the same district, but a continuous disturbance broke out at the same place, which, coupled with its single and express purpose, was fully capable of reflecting the participants’ persistence and high degree of unity. If the protesters involved in each of the four rounds of charging were different, it would provide a better indication of a considerable degree of coordination among them. Launching wave after wave of attacks on the police in an organized way was one of the factors which greatly increased the seriousness of the present case.

48.  It is true that no police officers sustained injuries in the present case. However, the violence used by the protesters was of considerably high intensity. As referred to by the trial judge, during the whole incident of the disturbances which lasted for about 90 minutes, they threw a total of 23 petrol bombs. During the fourth round of charging which lasted for as short as two minutes, they threw five, or an average of about one every 25 seconds, not counting other items such as stones, bricks and miscellaneous objects. The trial judge’s description of the scene as “raging flames”, “dense smoke everywhere” and “virtually a battlefield” is therefore an apt description, which also matches the images on the video recording this Court viewed. Against that background, no one on the police side was injured, presumably, simply because the checkline was not routed, otherwise, there would probably be a recurrence of the episode in Tang Ho Yin if they were pursued and attacked.

49.  Another point which was not touched upon by the trial judge but should by no means be neglected is the location of the offences. As stated above, No.2 Bridge was a bridge straddling the railway and trunk road leading to New Territories North, and the police formed a checkline there for the purpose of preventing people from throwing objects off the bridge. As a matter of fact, it was confirmed on behalf of the applicants at the hearing that miscellaneous objects had been thrown from the bridge onto Tolo Highway on the day before the offences. That being the case, it is not difficult to imagine why the protesters wanted to attack the police checkline at a corner of a university campus where the flow of people was relatively light. However, even leaving aside any conclusion that might be reached, there were in fact sufficient reasons for the court to make a finding as to the serious threats to public order, such as serious traffic accidents and paralysis of traffic between the north and south of the territory, posed in the event that the checkline collapsed. At that time, namely at a time when public order was in serious disarray, such threats were real and not remote.

50.  In summary, it is our judgment that it was indeed not wrong for the trial judge to adopt a starting point of five years for the riot in question. As to whether the applicants should be given some discount on sentence for their admission of most of the facts, that was basically a matter within the discretion of the trial judge, and an appellate court would be slow to interfere. Further, in respect of the reason given by the trial judge for not giving any discount, this Court not only considered it reasonable but also noted that the respondent submitted that A1 had asserted that he had never been present in the riot area and that A3 had spent a lot of time cross-examining on immaterial issues and so on. In any event, in a case where the factual basis is relatively narrow and there is supporting video recording of the scene, for a defendant who, in order to avoid being cross-examined, is unable to adduce positive evidence to challenge the version put forward by the prosecution, agreeing to most of the prosecution case may be the only option.

(Special mention)

51.  Before we conclude, we would like to make a special mention. The applicants had, in their written submissions, cited the sentencing at first instance in another No.2 Bridge riot case of the District Court (HKSAR v 陳起行 (Chan Hay Hang) (transliteration) [2021] HKDC 874 ) as the pivot of the application of Choy Ka Fai in support of the proposition that the starting point in the present case was too high, but were ultimately dissuaded. This Court pointed out previously on many occasions, and further reiterated this year in Secretary for Justice v Tong Kin Pong and two others [2023] HKCA 896 (date of Reasons for Judgment: 25 August 2023): sentencing at first instance, which has not gone through appeal, is not binding on courts of the same level, nor is it of any reference value to the appellate court, and therefore should not be relied upon by the legal profession as a basis for appeal.

(Conclusion)

52.  The grounds of appeal put forward by A1, A3 and A5 are not reasonably arguable grounds of appeal. Accordingly, we refuse their applications for leave to appeal against sentence and dismiss their appeals.

(Overall decision)

53.  All the applications and appeals of the four applicants are dismissed, and the conviction and sentences are affirmed.

Translated by the Court Language Section of the Judiciary and vetted by Mr P Y Lo, Barrister-at-law.