HKSAR v. LAI HIU TUNG

DCCC 294/2020

[2021] HKDC 1661

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 294 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of riot, contrary to section 19 (1)  and (2)  of the Public Order Ordinance, Cap 245.  While charge three possession of an offensive weapon is left in the court file, this Court ordered the charge not to be proceeded with without the leave of the court.

Summary of facts

A. Background

2.  On 29 September 2019, a public procession was organized by members of the public.  The procession started from Sogo Department Store Causeway Bay and ended at the Central Government Offices. (CGO), Harcourt Road, Admiralty.  The Commissioner of Police had not received notification of such procession or meeting.

3.  Between 1 pm and 2 pm, around 20,000 protesters gathered outside Sogo Department Store.

4.  Protesters ignored the police warnings that it was an unauthorized procession and they marched from Causeway Bay towards the CGO.

5.  At about 3:45 pm, around 200 to 300 protesters arrived at Harcourt Road outside the CGO.  They blocked the road with barriers and traffic cones, thus occupied the carriageways, flyovers of Harcourt Road.  Traffic was seriously disrupted.

6.  At about 4:05 pm, around 200 to 300 protesters congregated on the carriageways of Queensway outside Hong Kong Garden confronting the police checkline which was formed outside the United Center.  They set up an array of umbrellas in front of the police checkline to shield themselves, and kept hurling patrol bombs and hard objects at the police.  Some of them set fire underneath the foot bridge connecting Pacific Place and Queensway Plaza.  Police officers were out numbered and they retreated.  This group of protesters subsequently joined the group of protestors outside the CGO.

Mass arrest on Harcourt Road

7.  Starting from 4:20 pm, around 500 protesters who congregated on Tim Wa Avenue, the pavement near the CGO, carriageways and flyover of Harcourt Road, they began to hurl patrol bombs, bricks, stones and hard objects at the CGO.  Some petrobombs hit the water filled barricades and caused fire.

8.  Police gave repeated warnings and displayed warning flags to the protestors with no avail.  Teargas and blue colored dye were fired and discharged towards Harcourt Road.  However, the protesters remained outside CGO and continued to act violently.

9.  At around 4:48 pm, police officers came out from the CGO and arrested 44 persons in Harcourt Road.  Subsequent to the mass arrest, around 100 to 200 protesters retreated from Harcourt Road along Cotton Tree Drive towards Queensway.

B. Riot in the area of Queensway (Charge 1)

10.  At around 5 pm, around 100 to 200 protesters assembled on Cotton Tree Drive outside Far East Finance Center confronting the police.  The protestors built barricades with wooden boards and umbrellas.  They hurled patrol bombs, bricks and other objects at the police.  There were teargas being fired.  The police also repeated warnings of dispersal.

11.  At around 5:06 pm, the protesters on Cotton Tree Drive retreated back to Queensway where the police formed the checklines.  The protesters set barricades, hurled petrol bombs, bricks and hard objects and shining laser beams at the police.

12.  At all material times, around 500 protesters including D5 assembled together at the area of Queensway and conducted themselves in a disorderly, intimidating, insulting and provocative manner.  A breach of the peace was committed by the protesters and violence has been perpetuated.  Despite repeated warnings, the protesters did not desist or disperse.

B.1 Individual acts of D5

13.  The individual acts of D5 were captured on open-source videos.  Her acts are summarised as follows:-

Time	Location	Acts	Source
D5
1725 hours	Queensway (eastbound carriageway)	D5 assembled together with hundreds of protesters confronting the police.  D5 stood in the first few rows of the crowd and shielded herself behind an array of umbrellas.	Open-source video

The arrest

14.  At around 5:17 pm, the police checklines began to sweep forward along Queensway easterly direction. The protesters closest to the checklines retreated slowly while maintaining a distance of about 70 to 80 meters with the police checklines.  When they reached the area between United Center and Pacific Place, the police checklines went forward, D5 was subdued and arrested.

15.  At the time of arrest, D5 was wearing a yellow helmet, goggles, a 3M respirator with filters, and carrying a rucksack.

B.2 Taking part in the riot in the area of Queensway

16.  At all material times, D5 riotously assembled together with other persons unknown in the area of Queensway, Admiralty.  She individually and jointly took part in the riot formed by herself and other persons unknown. 

CCTV footages

17.  CCTV footages from various sources in Harcourt Road and in the area of Queensway captured the individual acts of D5 and they formed part of the summary of facts.

Mitigation

18.  The defendant was 28 at the time of arrest.  She has a clear record.  She is now 30 and is currently separated from her husband.

19.  She now lives with her parents, father is a construction site worker, mother is a housewife. The defendant is the main carer of her mother who had cancer operation in 2018. The defendant obtained a bachelor degree from the University of Tasmania in 2018.  She provided half of her earnings to her family for financial support.  She also visited her grandmother regularly in Mainland China before the COVID-19 pandemic.

20.  The defence provided me with a large number of mitigating letters from her headmaster, previous teachers, school friends, colleagues and social worker.  I have read them all and do not propose to recite them.  They all have written good words on her behalf to plead for leniency.  From all these letters, this Court came to know that the defendant is a well-liked person amongst her school friends and colleagues.  She is a mature person with a kind heart, she is helpful to others.  She also participates in charity activities and voluntary works.

21.  She is an active participant in marine environmental protection activities.  She has completed the scuba instructor examination in May this year.  She planned to support her parents’ livelihood by working as a diving instructor while continuing to promote the mission of a clean marine environment.

22.  In 2015 the defendant travelled to the remote part of China to become a volunteer mental for “Peer China”.

23.  The defendant said that since this incident she was regretful for her impulsive behavior.  She knew that she has to face a long term of imprisonment, she was sorry for what she did, this incident had added emotional and financial burden to her family.  She still wishes to look after her family after her discharge from prison and to contribute back to society.

24.  There is a medical report to tell me that the defendant has suffered head injury, she was hospitalized for three days and was discharged without any follow up treatments.

Sentence

25.  The maximum sentence for an offence of riot is 10 years.

26.  According to the case of HKSAR v Leung Tin Kei [2018] HKCFI 1329, the Court of Appeal set out the factors to be considered in sentencing for the offence of riots.  The court also said that since the background and facts involved in each case of riots are different, each case has to be considered separately, so the sentences in other cases do not provide much guidance, the court in sentencing should apply appropriate principles and pay regard to the actual circumstances of individual cases, and then imposed a proper sentence.

27.  The defence said that in the present case the demonstration was originally started as a march, it was only subsequently developed into confrontation with the police.  The riot took place at the spot and was not planned in advance.

28.  In fact, the march from Sogo to CGO was an unauthorized one.  The Commissioner of the Police had not been notified.

29.  At 3:45 pm, the protestor arrived at CGO.  At 4:48 pm, there was a mass arrest of 44 persons. In between this time, the protestors kept hurling petrol bombs, bricks, stones and hard objects at the police.

30.  The Harcourt Road incident started from 4:20 pm to 4:48 pm.

31.  The Queensway riot started from 5 pm to 5:06 pm.  The Queensway riot in which D5 was involved was plainly part of an ongoing incident in Harcourt Road.  At 5 pm, outside the Far East Finance Centre, at 5:06 pm, the riot took place on the carriageway of Queensway.

32.  In both 5 pm and 5:06 pm, the protestors built barricades, hurled petrol bombs, bricks and hard objects at the police.

33.  To build barricades required man powers.  Petrol bombs were also used by the protestors. They are something that required certain degree of preparation and knowledge to make them.  They also required special types of liquid and materials.

34.  At the time of arrest, D5 was wearing helmet, goggles and a 3M respirator with filters.

35.  Clearly, the helmet served to protect her head, goggles to prevent the tear gas to get into her eyes and the mask with filter can help to prevent the tear gas chemical to get into her respiratory system.  D5 anticipated tear gas might be used.  She equipped herself to participate in riot.

36.  In D5’s rucksack, there were 2 pair of gloves, one pair was an ordinary one, the other one was a pair of heavy duty gloves with black marks on it.  This pair of gloves was made with very strong and thick material; they can be used to pick up some hot items without the hands being burnt.  There is no evidence to suggest that D5 had used those gloves prior to the arrest.  She might or might not use them for herself or might keep them for others to use. 

37.  To this extend, I do not agree with the defence that the Queensway riot was spontaneous, I ruled that it was pre-meditated.

38.  The defence also emphasized that D5 was standing in the front row of the protesters and shielding herself with an umbrella, there was no direct evidence of provocation or other violent behavior done by D5 towards the police or other bystanders.  D5 was not a leader in the present incident.

39.  However, as the court in Tang Ho Yin (2019)  HKLRD 502 said that: -

“the gravity of the offence of riot is not to be judged merely by what the individual did (or did not do), but what the group to whose number he lent his support did.”

40.  In the judgment of R v Caird & Others [1970]54 Cr App R 499, the court said that: -

“it is a wholly wrong approach to take the acts of any individual participator in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence”.

41.  That means to isolate D5’s action from the riotous behaviour can be unrealistic and misleading.

42.  Therefore, in considering an appropriate sentence, I consider the extend of the overall violence involved not D5’s individual acts in isolation.

43.  In order to consider the capability of D5, it is necessary to look at the background leading up to the Queensway riot.  As I have referred to previously to the Harcourt Road incident which was part of the ongoing riot developed into Queensway riot.

44.  D5 admitted to the Summary of Facts that there were around 500 protestors assembled at the area of Queensway and conducted themselves in a disorderly, intimidating, insulting and provocative manner.

45.  Around 100 to 200 protestors assembled outside the Far East Finance Centre confronting the police.  This was a large scale of riot.

46.  The protestors used petrol bombs, bricks, hard objects and shining laser beams at the police. The level of violence was extremely serious.  Anyone can foresee that the consequences of using petrol bombs, bricks, and hard objects can be disastrous when use as weapons.  They can set fire to objects, to kill and to cause serious injuries to people and to cause damage to property.  The purpose of shining laser beams was to hurt the eyes of the police so that they could not carry out their duties at the scene.

47.  The protestors also set up barricades along Queensway, they took control of this part of the area.  It was an important road in the centre of Hong Kong Island.  It is also one of the importance central business districts in Hong Kong.

48.  Within that area, there are high end shopping malls, 5 stars hotels and commercial buildings. The High Court building is also located there.  Businesses of all kind were seriously affected.  D5 was in the middle of road of Queensway.  She knew that traffic was seriously disturbed. 

49.  There was no evidence to suggest that there were any police suffered any injuries or there was any damage to any property.

50.  D5 knew she was one of the rioters.  She equipped herself with helmet, mask, goggle to hide her face.  She knew that would add difficulties for police to investigate.  She was in the front row with others confronting the police checkline, she knew what the police was coming to them for as there was a previous arrest of 44 persons.

51.  21 months has gone since the arrest of D5, during this period of time, she has reflected upon herself and confessed that it hurts her deeply that she has to face up a long period of imprisonment.  She is prepared to accept the consequence.  That consequence comes with a price that she will not be able to look after her parents.

52.  D5 shows her remorse by indicating her guilty plea at the earliest opportunity.

53.  As said in the judgment of Leung Tin Kei that:-

“73. In order to protect public order from being harmed by violence and the rule of law from being damaged as a result, the court in imposing sentence for the offence of riot must reflect the determination of the law in protecting public order, and to convey a clear message to society and the public that the law does not condone any unlawful damage or disruption of public order by violence…”

54.  When I pass sentence on the defendant, I bear in mind of all mitigating factors which have been said on her behalf.  I also bear in mind that sentence of riot offence carries an element of deterrence.

55.  Having considered all the factors before me, I consider that a proper starting point is one of 4 years and 9 months imprisonment and it is appropriate in the present case, I reduce it to 3 years 2 months by 1/3 discount, I further reduce another 6 months to give credit to her charity works.

56.  The defendant is ordered to serve a term of 2 years and 8 months imprisonment.