HKSAR v. Tai Yiu Ting

CACC 128 /2019

[2019] HKCA 938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMININAL APPEAL NO 128 OF 2019

(ON APPEAL FROM DCCC NO 480 OF 2017)

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Before: Hon Macrae VP in Court

Date of Hearing: 15 August 2019

Date of Decision: 15 August 2019

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D E C I S I O N

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Introduction

1.In 2013, the applicant (D1) (Tai Yiu Ting), together with D2 (Chan Kin Man) and D3 (Chu Yiu Ming), launched and subsequently participated in the “Occupy Central with Love and Peace” or “Let Love and Peace Occupy Central” campaign, which has come to be more commonly known as the Occupy Central Movement.  The three of them were jointly charged with an offence of conspiracy to commit public nuisance^[1] (Charge 1).  They, together with D4 (Chan Tanya), D5 (Shiu Ka Chun), D6 (Cheung Sau Yin) and D7 (Chung Yiu Wa), were also jointly charged with an offence of incitement to commit public nuisance^[2] (Charge 2), and a further offence of incitement to incite public nuisance^[3] (Charge 3).  D8 (Wong Ho Ming, Raphael) alone faced a charge of incitement to commit public nuisance (Charge 4) and a charge of incitement to incite public nuisance (Charge 5).  D9 (Lee Wing Tat) alone faced a charge of incitement to commit public nuisance (Charge 6).

2.The nine defendants pleaded not guilty to the charges against them and stood trial before HH Judge Chan (“the judge”) in the District Court.  On 9 April 2019, following a trial which lasted 18 days, the defendants were convicted of the charges which they respectively faced; save that D3 was acquitted of Charge 2, and D1, D2 and D3 were acquitted of Charge 3.  On 24 April 2019, D1, D2 and D3 were sentenced to 16 months’ imprisonment, although the sentence imposed on D3 was suspended for 2 years.  D5, D7, D8 and D9 were sentenced to 8 months’ imprisonment, the sentences on D7 and D9 being suspended for 2 years.  D6 was given a Community Services Order for 200 hours.  Owing to her medical condition, the sentencing of D4 was adjourned and, on 10 June 2019, she was sentenced to 8 months’ imprisonment suspended for 2 years.

The procedural history

3.Between 30 April 2019 and 2 July 2019, the defendants all filed Form XI Notices applying for leave to appeal (D1’s Notice being filed on 3 May 2019). Whilst all of them are seeking to appeal against conviction, only D1, D2, D5 and D8 have sought leave to appeal against sentence.

4.On 4 July 2019, I gave all of the defendants a 42-day deadline (which falls on 15 August 2019, namely today) to file Perfected Grounds of Appeal and to apply for documents and transcripts necessary for the appeal, further directing that the applications for leave to appeal against conviction and/or sentence be heard at the same time as the hearing of the appeals before the full Court.  Since none of the applicants had complied with the Court’s order, save for D1 who has filed perfected grounds of appeal against conviction and sentence, and on the application of some of those representing the other applicants, I issued a further direction yesterday that the applicants must file their Perfected Grounds of Appeal against Conviction and/or Sentence, agree on the Appeal Index (which is to be filed by legal representatives for D1), and make application(s) for necessary transcripts within 14 days from 14 August 2019; or from the date of notification of the assignment of solicitors and counsel by the Legal Aid Department (where applicable), whichever is the latest.  I also indicated that no further extensions would be given.

5.On 13 August 2019, I invited all parties to indicate their availability for a 3-day appeal between 17 February 2020 and 3 April 2020.  As a result of the answers I have received from all parties, including the respondent, I am able to set down the appeal for three days on 24, 25 and 26 February 2020.  I am grateful to leading counsel for D1 accommodating those dates, which were not originally agreeable.

6.In respect of the specific application before me today, the legal representatives of D1 applied on his behalf, by way of letter dated and received on 10 July 2019, for bail pending appeal in the present case and an expedited hearing for that application.  On the same day, I fixed the hearing for today and directed D1’s legal representatives to file, inter alia, a bail summons and a supporting affidavit, both of which were duly filed on 22 July 2019. 

The prosecution case

7.By Charge 1, it was alleged that, between an unspecified date in March 2013 and 2 December 2014, D1, D2 and D3 conspired together and with other persons to cause a public nuisance through the unlawful obstruction of public places and roads in, or in the neighbourhood of, Central, in Hong Kong. 

8.Charges 2 and 3 concerned the “Occupy Central with Love and Peace” or “Let Love and Peace Occupy Central” campaign launched by D1, D2 and D3 between 27 and 28 September 2014 at Tim Mei Avenue, Admiralty, in Hong Kong where protests were held and protestors in large numbers assembled.  At 1:36 am on 28 September 2014, D1 addressed the crowd and stated, inter alia, that the campaign would begin with occupying the Central Government Offices[4]. Whilst Charge 2 alleged that the defendants incited the people at Tim Mei Avenue to commit a public nuisance, Charge 3 alleged that the defendants incited the people at Tim Mei Avenue to incite other people to follow them. 

The defence case

9.D1 elected not to give evidence or to call any witness on his behalf. The lines of defence put forward at trial may be briefly summarised for present purposes as follows:

a.   The prosecution had preferred charges against the defendants, which were inappropriate and/or unconstitutional[5]. 

b.   There was no obstruction caused by the words of the defendants, nor was there common injury to the public or a significant section of the public[6].

c.   Since the area in question had been cordoned off by the police, it was not possible for the defendants to have committed Charges 2 and 3[7].

d.   The extensive and prolonged occupation of roads and public places was the result of the improper use of tear gas by the police[8].

e.   The offences in question were committed in pursuance of a civil disobedience movement[9].

The sentence

10.As I have mentioned, D1 was convicted of Charge 1 and Charge 2 only, but acquitted of Charge 3, the judge finding that there was insufficient evidence to prove that charge.

11.In respect of Charge 1, the judge adopted a starting point of 18 months’ imprisonment, which he reduced by 2 months for D1’s positive good character, resulting in a sentence of 16 months’ imprisonment.  In respect of Charge 2, the judge considered a starting point of 9 months’ imprisonment.  Giving D1 a one-month discount for his positive good character, the judge passed a sentence of 8 months’ imprisonment, ordering that it should run concurrently with the sentence on Charge 1.

12.In the result, the total term of sentence imposed upon D1 was 16 months’ imprisonment.

Grounds of appeal and the present application for bail pending appeal

13.In his Form XI, D1 originally advanced six initial grounds of appeal against conviction and sentence settled by leading and junior counsel.  Four of those initial grounds were related to his appeal against conviction: two concerned the appeal against sentence.

14.As indicated, Perfected Grounds of Appeal against both Conviction and Sentence have now been filed on D1’s behalf (dated 14 August 2019) by different leading and junior counsel, namely Mr Johannes Chan SC and Mr Eric Cheung, both of whom appear for D1 in the present application.  It is not necessary for me to go into those grounds of appeal in any depth at this stage.  Suffice it to say, there are eight grounds of appeal against conviction and one ground of appeal against sentence, all of which are similar in theme but necessarily more elaborate and specific than the initial grounds of appeal.

15.Mr Chan has made clear in his written and oral submissions that the present application is being sought on the time basis alone.  He has submitted that, since the earliest date of discharge of D1 is 14 March 2020, it is highly probable that D1 will have completely or substantially served his sentence by the time his appeal is heard.  Since I have now fixed the dates of the appeal for late February 2020, he is plainly correct in that submission.

Respondent’s position

16.Mr David Leung SC, DPP, on behalf of the respondent, has informed the Court in his written submissions that:^[10]

“Without conceding that any of the issues raised on behalf of the Applicant in his application for leave to appeal is reasonably arguable, the Respondent does not object to the Applicant’s application for bail pending appeal on the ground that if bail is not granted, there is a real possibility that the Applicant may have served all or at least a substantial part of his 16-month sentence by the time the application for leave to appeal is heard.”

Mr Leung further accepts that there is no substantial risk of absconding should D1 be granted bail pending appeal^[11].

17.Nevertheless, notwithstanding the entirely proper position adopted by the respondent, the applicant is still a convicted person and it must be a matter for the court as to whether bail pending appeal should be granted in the circumstances of the case. 

Consideration

18.D1 was sentenced on 24 April 2019 to an overall term of 16 months’ imprisonment, or 64 weeks’ imprisonment.  Assuming the customary reduction for good behaviour (approximately one-third of his sentence), the maximum period of his incarceration would be some 42 to 43 weeks.  D1 has, up to today, been in custody for 16 weeks, which accounts for 38% of the sentence to which one may assume he will be subject with remission.  Accordingly, the remaining part of his sentence is some 26 to 27 weeks.

19.Bearing in mind the number of defendants, the anticipated length of the appeal and the volume of the appeal papers, amongst which the Reasons for Verdict comprise 268 pages alone, it has not been possible to accommodate this appeal before next year.  As I have just indicated, the earliest (and only) dates for the appeal when all parties and the Court are available are 24, 25 and 26 February 2020, by which time D1 will have completed almost all of his current sentence of imprisonment.

20.Nevertheless, Mr Chan recognises that although the fact that a sentence is likely to be substantially served by the time the appeal is heard may be a weighty factor in favour of bail pending appeal being granted, it is by no means conclusive.  As Bokhary JA (as he then was) explained in R v Lee Chi Ching[12]:

“… even when the matter is approached essentially on [the time] basis, the appeal’s chances of success still remain for consideration. For if the appeal were hopeless, an application for bail pending the same would, in truth, be tantamount to an abuse of process. And even where the appeal, although not hopeless, is very weak, the danger of the appellant absconding would, in the nature of things, normally fall to be considered very grave”.

21.I have examined D1’s grounds of appeal against conviction and, although argument has not been joined in this application on the question of whether they (or the grounds of appeal against sentence) are reasonably arguable, I would not describe them as hopeless.  Moreover, the respondent accepts that there is no substantial risk of absconding on the part of D1.

22.Bearing the above considerations in mind, in particular that D1 will have served most of his existing sentence by the time the appeal comes on for hearing, I am prepared to grant him bail pending appeal on the following terms and conditions:

(1)   D1 shall provide cash bail in the sum of $100,000;

(2)   He shall surrender all of his travel documents, except his Identity Card, and is prohibited from leaving Hong Kong without the prior permission of the Court; and

(3)   He shall reside at the address reported to both the Court and the respondent.

Mr David Leung SC, DPP, Mr Ira Lui SADPP (Ag) and Mr Derek Lau SPP, of the Department of Justice, for the Respondent

Mr Johannes Chan SC, instructed by and Mr Eric TM Cheung, solicitor advocate, of Ho, Tse, Wai & Partners, for the Applicant