HKSAR v. Leung Tin Kei and Others

[English Translation – 英譯本]

CACC 164/2018

[2020] HKCA 275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 164 OF 2018

(ON APPEAL FROM HCCC NO 408/2016)

________________________

BETWEEN

________________________

Before: Hon Poon CJHC, Chu and Pang JJA in Court

Date of Hearing: 9 October 2019

Date of Judgment: 29 April 2020

________________________

JUDGMENT

________________________

The Court of Appeal:

A. Introduction

1.8 February 2016 was the Lunar New Year Day. At around 9:30 pm in the evening, clashes occurred between the police and the public at Portland Street, Mongkok, Kowloon, which later spread to other places in the vicinity, including Portland Street, Argyle Street, Shantung Street, Fa Yuen Street and Soy Street. It was not until the early hours of the following day that the incident came to an end. After the incident, suspected offenders were charged with offences including riot and were tried before different courts. The present case was the only case tried before the High Court.

2.There were originally six defendants in the present case, who were Leung Tin Kei (1^st Applicant), Lee Nok-man, Lo Kin-man (2^nd Applicant), Lam Ngo-hin, Wong Ka-kui (3^rd Applicant) and Lam Lun-hing[1]:

(1) The 1^st applicant pleaded guilty to one count of assaulting a police officer[2], but not guilty to Charge 2 of incitement to riot (Portland Street[3]), Charge 3 of riot (Portland Street) and Charge 4 of riot (Argyle Street). Wong Toi-yeung was also an alleged offender in Charge 2, however, he breached the bail conditions, leaving Hong Kong before the commencement of the trial without coming back.

(2) Lee Nok-man and the 2^nd applicant pleaded not guilty to Charge 3.

(3) Lam Ngo-hin pleaded not guilty to Charge 1which was unlawful assembly (Portland Street) and Charge 3.

(4) The 3^rd applicant pleaded guilty to Charge 4 before the commencement of the trial, and the other charge of assaulting a police officer[4] was dropped with approval of the court; and therefore the 3^rd applicant did not participate in the trial[5].

(5) Lam Lun-hing pleaded not guilty to Charge 4 of riot (Argyle Street), Charge 5 of riot (Shantung Street) and Charge 6 of riot (Fa Yuen Street).

3.Between February and May 2018, the trial took place before A Pang J (the trial judge) and a jury of nine. After trial, on 18 May 2018, the jury returned the following verdicts:

(1) The 1^st applicant was found not guilty of Charge 2 and guilty of Charge 4 whilst no valid verdict was reached in respect of Charge 3;

(2) Lee Nok-man, no valid verdict was reached in respect of Charge 3;

(3) The 2^nd applicant was found guilty of Charge 3;

(4) Lam Ngo-hin was found not guilty of Charge 1, and no valid verdict was reached in respect of Charge 3;

(5) Lam Lun-hing was found not guilty of Charge 4, Charge 5 and Charge 6.

4.On 11 June 2018, the trial judge sentenced the 1^st applicant to 6 years’ imprisonment in respect of Charge 4 and 1 year’s imprisonment on the charge of assaulting a police officer, which were to run concurrently, making it a total term of 6 years’ imprisonment; the 2^nd applicant 7 years’ imprisonment in respect of Charge 3; and the 3^rd applicant imprisonment for 3 years and 6 months in respect of Charge 4.

5.The 1^st applicant had initially applied to the Court of Appeal for leave to appeal against conviction and sentence but abandoned the application in relation to conviction on 25 September 2019[6]. On 2 October 2019, the court wrote to inform the solicitors acting for the 1^st applicant that pursuant to s 39 of the Criminal Appeal Rules[7], his application for leave to appeal against the conviction of Charge 4 was deemed to have been dismissed by the Court of Appeal. The 1^st applicant now only applies for leave to appeal against sentence. The 2^nd applicant applies for leave to appeal against conviction and sentence in respect of Charge 3, and the 3^rd applicant applies for leave to appeal against the sentence in respect of Charge 4.

B. Prosecution case

6.The prosecution evidence consists of prosecution witnesses, and also video recordings taken by the police, staff of the Food and Environmental Hygiene Department (“FEHD”), the media, car camcorders, CCTV of shops nearby and general citizens. There was not much dispute on the prosecution case which can be summarized as below.

B1. The riot at Portland Street

B1.1 Development of the incident and violence involved

7.At around 9:30 pm on 8 February 2016, eight to ten people wearing Hong Kong Indigenous (HKI) outfits were assisting hawkers in pushing their hawker trolleys from the back lane of Shui Hing Mahjong School out to the pavement of Portland Street and Nelson Street, and after that the hawkers traded on the pavement and the roadway. Almost at the same time, FEHD staff standing guard outside the Sa Sa Store were being surrounded and scolded with foul language by about 100 people. One of the FEHD staff members was assaulted by someone with hands and feet and could not leave until eventually the police provided assistance. Furthermore, a hawker kept chasing after and trying to push his cart containing boiling oil towards an FEHD staff member who was filming at the scene. Eventually that FEHD man had to position himself between the poles of road signs to avoid being hit.

8.Given the chaotic situation at the scene, the FEHD staff finally left at some time before 10 o’clock. When they were there, they did not disperse, warn or ticket the hawkers.

9.Later that night, a taxi travelling along Portland Street, which was said to have hit a pedestrian, was stopped and surrounded by about 70 to 80 people, and ten of them were wearing HKI outfits. The taxi driver said he pulled over because someone suddenly lay on the bonnet of his taxi, and the taxi was then surrounded by dozens to one hundred people on the roadway. Upon receiving a report, the police came and tried to handle the matter, but the crowd refused to let them approach the taxi. The police had tried to use a loudspeaker to offer explanation and advice to the crowd, in the hope that the people would give way. However, WONG Toi-yeung spoke through a loud speaker, basically asking the police to leave the scene. Eventually, WONG Toi-yeung urged the crowd to make room for the taxi to reverse and leave Portland Street but that it was still to necessary to continue surrounding the police. The crowd followed Wong’s command and acted accordingly.

10.Since a lot of people had gathered on the roadway of Portland Street, the police arranged to bring an elevated platform into Portland Street so that they could stand on top to speak to the crowd, asking people to return to the pavement. However, the crowd became very agitated upon seeing the elevated platform. They kept on shouting at the police and even threw various objects, including glass bottles, plastic bottles and flower pots and so on at the police line. A sergeant was struck on the neck by a brick, resulting in injury and bleeding. Other police officers were also surrounded and assaulted by the crowd, and were even being kicked persistently on their heads after falling down. A man was struck by a large concrete slab usually used for construction and fell down.

11.The police moved their defence line forward. Many people in the front rows were holding home-made shields and some were wearing helmets. Many people in the crowd were holding weapons such as wooden rods, stones, glass bottles and other odd items. It can be seen from the video footage produced in court that some were in armour and holding long poles. Liquid was splashed in front of the police line. Most people in the crowd were wearing face masks.

12.The police put up warning banners at different stages and kept on advising people to leave with a loudspeaker. At around 1:45 am, the crowd charged towards the police line under Wong Toi-yeung’s command.

13.While some 500 people gathered on Portland Street that night, there were, however, just about a dozen police officers initially, and the police manpower eventually deployable was about 300 only. Meanwhile about 70 to 100 people also gathered behind the police line, ie at the junction of Shantung Street and Portland Street. The photographs produced in court showed that various objects were used to block the junction at Shantung Street in an attempt to stop traffic going into Portland Street so as to contain the police there. Therefore, the police first dispersed the crowd on Shantung Street to ensure that nothing would happen at the back of the police line.

B1.2 The 2^nd applicant took part in the riot

14.The 2^nd applicant appeared in Portland Street back at around 9 o’clock in that evening, assisting the hawkers to push hawker trolleys out to the pavement; and subsequently he together with others scolded the FEHD staff and obstructed the police in the investigation of the taxi incident. Police officers testified that they witnessed the 2^nd applicant twice throwing objects from the crowd to the police line. The footage produced in court also showed that the 2^nd applicant at later stages threw objects to the police line and picked up mud and sand from the ground to attack the police for a total of 11 times.

B2. The riot at Argyle Street

B2.1 Violence involved and the 3^rd applicant’s participation

15.After the police had advanced the defence line towards Argyle Street, the people assembled on Portland Street were driven away and dispersed to Argyle Street. At around 2 am on 9 February, at least dozens of people were still gathering on Argyle Street near the intersections with Portland Street and Shanghai Street. Various objects such as rubbish bins, pallets and traffic cones were placed on the roadway to put up barricades. People also moved to the middle of the road, which obstructed the traffic, and vehicles had to reverse and leave. Many people in the crowd were wearing face masks. Some were wearing HKI tops and holding shields. The number of people assembled there later increased to over 200. They mainly gathered near the barricades and the pavement on both sides of the road.

16.At that time, about 10 traffic police officers were trying to clear away the barricades on the roadway and advised people there to leave, so that the road could be reopened. Suddenly, dozens of people assembled dashed out to the roadway and attacked a traffic police officer from behind, throwing objects at him. The assailants included the 3^rd applicant who threw a styrofoam box at the officer but missed. The officer fell onto the ground upon being attacked. In the course of it, a man came into body contact with the 3^rd applicant who as a result fell and landed on the officer who was already on the ground. Other people assembled continued to attack the officer with rods and throw things at him. Eventually, that officer subdued the 3^rd applicant with the assistance of his colleagues.

17.After the 3^rd applicant had been subdued, the crowd once moved back, but before long, they again pushed towards the traffic police and hurled things such as glass bottles and rubbish bins at the officers. The traffic police tried to disperse the crowd but did not succeed, and on the contrary they were being chased after and driven away and had to retreat. In the course of it, a police officer tripped and fell onto the ground, who was then under persistent attack by the crowd, and objects such as pallets, rubbish bins and barriers were thrown at him. Other officers tried to stop the attack on the said officer, but in vain. Finally, in order to control the situation and to protect his colleague from being seriously injured, an officer fired two shots in the air after giving a warning. It was not until then that the crowd began to move back.

18.In the Argyle Street riot, several police officers sustained injuries. The Medical Assessment Board found that the assault on that day had caused two officers 2% permanent disability and one officer 1% permanent disability.

B2.2 1^st applicant’s participation

19.The basis on which the 1^st applicant was prosecuted for Charge 4 included the facts he admitted in respect of the offence of assaulting a police officer. According to the facts admitted by the 1^st applicant, after the 3^rd applicant had been subdued, when the crowd further advanced towards the traffic police officer and threw objects, the 1^st applicant was one of the people assembled there, and he threw the lid of a rubbish bin at the police. Subsequently, a sergeant drew his baton and, together with several other police officers, tried to disperse the crowd and gave verbal warnings. However, the crowd just ignored the police and continued to dash forward and threw objects at them. When the sergeant tried to stop a person who was holding a brick in his hand, he suddenly felt great pain on his left ear and then fell down. The crowd including the 1^st applicant continued to assault the sergeant who was on the ground. The 1^st applicant threw a plastic bucket at the sergeant, kicked him with his right foot and struck his back with a wooden pallet and then ran away. After the incident, the Medical Assessment Board found that the sergeant suffered 2% permanent disability as a result of the assault.

20.The prosecution case further stated that after assaulting the sergeant, the 1^st applicant stayed on Argyle Street near Portland Street and Shanghai Street, and he punched a police officer in plainclothes. Another police officer went up to warn the 1^st applicant but he paid no heed. Eventually, with the assistance of his colleagues, that officer subdued the 1^st applicant by using a baton and put him under arrest. The 1^st applicant did not admit having assaulted the police officer. However, the jury having unanimously found him guilty of taking part in the riot on Argyle Street, the trial judge found that in relation to the riot as a whole, the further assault on the police officer was a collateral matter and did not affect his sentence.

C. Defence case

21.The 1^st applicant elected to give evidence. In relation to Charge 4, he said that on Argyle Street he attacked the sergeant because he saw him waving the baton and that a protester was being pressed on the ground. He said that the attack was his action in isolation, having nothing to do with other people assembled, and that he had not taken part in the riot. He denied having attacked another police officer before his arrest. The 1^st applicant called a witness for his defence, whose evidence, however, was not relevant to this leave application.

22.The 2^nd applicant also elected to give evidence. He admitted he was present on Portland Street at the material time but was only taking photographs, and he therefore denied he was the one who had thrown objects as alleged by the prosecution and shown in the footage.

D. Directions given by the trial judge

23.The directions given by the trial judge to the jury lasted for five days[8]. Since only the 2^nd applicant applies for leave to appeal against conviction, and it was on the ground that the judge had erred in law in her directions on the common purpose in respect of the offence of unlawful assembly, this court is required to briefly discuss the directions given by the trial judge only in this regard.

24.The trial judge explained to the jury the elements of the offences of unlawful assembly and riot pursuant to the provisions under ss 18 and 19(1) of the Public Order Ordinance[9] and the relevant law. The provisions in relation to unlawful assembly under s 18 are as follows:

“18. Unlawful assembly

(1) When 3 or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or 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, they are an unlawful assembly.

(2) It is immaterial that the original assembly was lawful if being assembled, they conduct themselves in such a manner as aforesaid.

…”

S 19(1) provides:

“When any person taking part in an assembly which is an unlawful assembly by virtue of section 18(1) commits a breach of the peace, the assembly is a riot and the persons assembled are riotously assembled.”

25.A few days before the trial judge gave directions to the jury, she prepared a set of written directions on the law, explaining the elements of each charge and the relevant law, which was passed to counsel for both sides for consideration. After hearing submissions from both sides, the trial judge revised the written directions and then gave it to the jury, and she gave directions accordingly[10].

26.The trial judge said in the written directions:

“Unlawful assembly (Charge 1)

1. When 3 or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or 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, they are an unlawful assembly.

2. In respect of the first charge of unlawful assembly that D4 faces, you must be sure that the prosecution has proved each and every item in the following (ie (1), (2), (3) and (4)(i), or (1), (2), (3) and (4)(ii)) before you can find D4 guilty of the first count of unlawful assembly:

(1) at the time and the place referred to in Charge 1, 3 or more than 3 persons including D4 assembled together;

(2) D4 at that time assembled together with those people for the common purpose of conducting themselves in a disorderly, intimidating, insulting or provocative manner (conduct in such manner); and

(3) D4 at that time did conduct himself in one or more than one of such manner; and

(4) (i) D4 and those persons at that time, assembled together, conducted themselves in such manner with the intention of causing a breach of the peace; or

(4) (ii) Conduct in such manner were likely to cause any person reasonably to fear that the persons so assembled would commit a breach of the peace, or would by such conduct provoke other persons to commit a breach of the peace.

3. It is immaterial that the original assembly was lawful if being assembled, the persons assembled conduct themselves in such manner as aforesaid.

4. ‘Conduct in a disorderly manner’ and ‘conduct in an intimidating, insulting or provocative manner’ have no particular definition in law, but carrying the general meaning of daily usage. They should be considered based on the time, venue and circumstances where the conduct in question took place according to the usual meaning. In this case, after considering all the evidence, you, on the basis of the facts found, have to decide if D4 has conducted himself in any of the aforesaid manner at the time and location referred to in the charge.

5. The phrase ‘breach of the peace’ denotes deliberate use of or threat of violence is involved. Where harm is actually done or is likely to be done to a person or in his presence to his property, or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance, there is ‘breach of the peace’.

6. If after considering all the evidence in this case, you are not sure of the matters mentioned in para 2, then you must find D4 not guilty of Charge 1. In other words, the prosecution must prove the relevant matters so that you are sure before you can find D4 guilty of Charge 1.

…

Riot (Charge 3 and Charge 4)

1. In relation to these two charges, the prosecution alleges that the defendant acted not only by himself but committed the offence in question jointly with the defendants referred in the charges. Where a criminal offence is committed by two or more persons, even if each of them may play a different part, but where they are acting together as part of a joint plan or agreement to commit the offence, each one of them is guilty.

2. The words ‘plan’ and ‘agreement’ do not mean that there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment. Nothing needs be said at all. It can be made with a nod and a wink, or a knowing look, or it can be inferred from the behaviour of the parties. The essence of the joint culpability for a criminal offence is that each defendant shares a common intention to commit the offence and played his part in it (however great or small) so as to achieve that common object. In other words, the prosecution alleges in this case that in respect of Charge 3 and Charge 4, the defendant concerned committed the offence of riot together with other defendants particularized in the charges.

3. However, you have to bear in mind that mere presence at the scene of crime is not enough to prove guilt. But if you are sure that a particular defendant was at the scene, deliberately by his mere presence tried to and did encourage the others to use violent or threaten to use violence; or if you are sure that his presence at the scene was for playing his role in achieving the purpose of committing riot as jointly agreed by him and other defendants, then he is guilty. Therefore, Charge 3 and Charge 4 should be dealt with as follows: after considering the facts related to a particular defendant, you must be sure of each of the following matters before you can find that particular defendant guilty of a particular offence of riot against him:

(1) the defendant did take part in an unlawful assembly (see the definition of unlawful assembly) at the time and place specified in the charge; and

(2) that particular defendant when taking part in the unlawful assembly

(i) deliberately and did by his presence encourage the others to use violence or threaten to use violence; or

(ii) alone or jointly with other defendant(s) deliberately used violence or threatened to use violence; and

(3) that defendant at that time intended to cause a breach of the peace (see the aforesaid); and

(4) There was then in fact a breach of the peace.

4. If after considering all the evidence, you are not sure of any one of the above four items, you must find that particular defendant not guilty of the offence of riot concerned. In other words, the prosecution must prove all the above four items so that you are sure before you can find that particular defendant guilty of the offence of riot concerned.

…”

27.In directing the jury, the trial judge first pointed out the prosecution case[11]:

“As to Charge 3, it is the prosecution case that D1, D2, D3 and D4 all took part in the riot on Portland Street. According to the prosecution, at that time these four defendants were in a joint enterprise, including that D1 and D2 charged on the police line, and D4 first stood at the forefront of the crowd, teaching others how to hold or how to use the shields, and also charged on the police line. As to D3, the prosecution mainly alleges that he repeatedly threw objects from the crowd towards the police line.

The prosecution said that although the acts of these four defendants are not identical, and although their individual behaviour was sufficient to prove their respective participation in the riot on Portland Street, putting it further, the prosecution says that on that day they in fact had a common purpose of conducting themselves together in riotous manner on Portland Street. They acted together, which is the reason why it was seen from the video footage that D2 echoed what Wong Toi-yeung and D1 had said, that D1 to D4 were all standing among the forefront rows in the crowd, that D2 was also holding a HKI shield, and that D4 taught people of the forefront row how to use the shields and he communicated and talked with Wong Toi-yeung. In any event, the prosecution says that they four obviously took part in the Portland Street riot. Moreover, D2 also admitted after arrest that he had held up the police with the shield.”

28.After that, the trial judge briefly summarized the facts related to each defendant. In relation to Charge 3, she said as follows[12]:

“D3 [2^nd applicant] has also admitted that he was arrested by the police in Mongkok at around 3 am on 9 February, however, he said that what the police witness Chan Po Wa said about seeing him throw objects twice was not true. He told you that on that night he was only taking photos and video at the scene, that he never threw anything towards the police line, and that he was alone throughout that night and never acting jointly with other defendants as described by the police. As to the footage or screen capture concerned, D3 also said that it was misidentification when the prosecution alleged that he was the person who had thrown objects for 11 times and had picked mud from the ground and thrown it at the police. He said that he indeed had had conversation with Chan Po Wa, but after that he moved to the rear area of the crowd to avoid misunderstanding, moreover, during his conversation with Chan, he already told Chan that he was not the one who had thrown objects, he therefore said that he had never thrown anything as shown in the footage or capture at the front of the crowd. Simply speaking, regarding the person shown in the footage or capture, it was only because someone was so similar to him in terms of clothing, equipment and appearance that the prosecution witness made a wrong identification. This is D3’s case in respect of Charge 3.”

29.When the trial judge directed the jury on the elements of each charge and on the law, she referred to the written directions and made certain supplements[13]. In relation to the common purpose of the offence of unlawful assembly, apart from repeating the contents of the written directions[14], she also said [15]：

“As to the second element, namely D4 and those assembled together with him had a common purpose of conducting themselves in a disorderly manner, etc, I would say, in short, in general, when I say ‘conduct in a disorderly manner’, it includes conducting in a disorderly manner, or in an intimidating, insulting or provocative manner. Simply speaking, as you know, I have written it down there. In relation to this point, I would draw your attention to this: the main point is whether D4 and those people who assembled together with him had a common purpose which was conducting themselves in such manner, namely disorder and so on in the manner of conduct. In other words, if only others intended to conduct themselves in such way, and D4 himself might just have no such purpose in common jointly with those people of conducting themselves in such manner, then the proof of the common purpose fails. On this point, the prosecution also has to rely on the circumstances in question on that night to prove that D4 and those assembled together with him did have a common purpose of conducting themselves in a disorderly and so on manner, while the defence said that D4 were then acting alone and just did not have any common purpose with anyone.”

30.One of the elements of riot is that the defendant took part in an unlawful assembly at the time and place particularized in the charge, which had been dealt with in the trial judge’s explanation on unlawful assembly and therefore was not be repeated[16].

E. Sentence imposed by the trial judge

31.Before passing sentence, the applicants mitigated before the trial judge.

(1) The 1^st applicant was born in Mainland China and in 1992 came to settle in Hong Kong and receive education. At the material time, he was a student of the University of Hong Kong and had a clear record. At the time of sentence, he was 27 and single. In mitigation, the senior counsel acting for the 1^st applicant submitted a number of letters written by people including his family members, friends, former members of the Hong Kong Legislative Council, scholars and members of the UK House of Lords. They described the 1^st applicant as a young man who was kind, intelligent, insightful, caring and responsible. It was emphasised that the 1^st applicant was not an ordinary criminal, and his transgression of the law had nothing to do with personal gain but was driven by his ideological convictions. It was also submitted that there was no evidence in the case suggesting that the 1^st applicant had taken part in the riot on Argyle Street with premeditation, and counsel urged the court to order the sentences in respect of Charge 4 and the offence of assaulting a police officer be run concurrently.

(2) The 2^nd applicant was born in the Mainland and later moved to Hong Kong. He grew up in Hong Kong and was educated up to secondary school. He used to work as a clerk in a law firm and as a waiter in a restaurant. At the time of sentence, he was 31 years old and single, and previously had a clear record. In mitigation, counsel for the 2^nd applicant submitted letters written by his family members, friends, ex-employer and council members, which described him as kind and caring, saying that he dedicated to environmental protection, he cared about society and the poor, and on this occasion he transgressed the law only on the spur of the moment. The letters also mentioned that the 2^nd applicant could not stop blaming himself upon realizing that his father has unfortunately had cancer. Counsel also indicated that the 2^nd applicant had only thrown objects, water bottles and mud and sand without participating in any arson or brick throwing, thereby his involvement was less serious. He committed the offences because of having cumulative bias and rage against the police, but he now realized that the police were only performing their duties. He was very remorseful for what he had done and asked the court to pass a lenient sentence as far as possible.

(3) The 3^rd applicant was born in Hong Kong and was educated up to secondary school. At the time of sentence, he is single and 27 years old. He used to work as an electrical technician and had no previous criminal record. In mitigation, counsel for the 3^rd applicant submitted letters written by the applicant himself, his family members, girlfriend and ex-employer, which described him as a man who took his family responsibilities seriously, and was caring and responsible. His ex-employer also expressly said that he was willing to employ the 3^rd applicant again upon his release from prison. His counsel indicated that he had pleaded guilty before trial, that he was only passing by Argyle Street that night and committed the crime on the spur of the moment, what he did was merely throwing a styrofoam box, and that he knew nothing at all about the subsequent turn of events since he was arrested at a very early stage. Counsel also submitted that his circumstances were special and asked the court to impose a lenient sentence as far as possible.

E1. General considerations

32.The defence submitted that the present case happened against a particular social and political background, and therefore the three applicants were different from criminals in general. The trial judge referred to cases such as R v Caird & Others (1970) 54 Cr App R 499, p 506; R v Pilgrim (1983) 5 Cr App R(S) 140, p 145; and Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 657, para 120, saying that the court would not allow anyone to resort to violence in dealing with disputes regarding people’s livelihood, politics and so on, or take the law into their own hands.

33.The trial judge pointed out that at the outset, no FEHD or police officer had driven away any hawkers. The police presence was merely for handling a traffic incident, and reinforcements were sent for only because people were causing obstruction. The police kept advising the crowd and sent officers to try to liaise in the hope of settling the matter in a peaceful way. While the police did not advance, the crowd still actively charged forward towards the police to unleash themselves with violence, which then triggered the violent behaviour on other streets. The trial judge found that the background of the incident was no mitigating factor, otherwise a wrong message would be conveyed to the community, thinking that one might resort to violence for any discontent against the government or the current situation.

34.In respect of the suggestions made by defence counsel that the individual acts of the applicants, when comparing with the incident as a whole, were relatively minor, the trial judge referred to Caird (paras 507 and 508) and said that the offence of riot derived its gravity from being one of those assembled to pursue an unlawful purpose by weight of numbers, and it was a wrong approach to take the acts of any individual participant in isolation as the basis of sentencing.

35.Furthermore, the trial judge referred to HKSAR v Leung Ka Lun [2018] HKCA 146. The applicant in the case acted in concert with the people assembled to confront the police. The crowd attempted in various ways to harm the police, including throwing bricks dug up from the ground and other objects at the police who were in execution of duty. Although there was no direct evidence showing that the applicant had thrown bricks at the police, the Court of Appeal found his acts indicated his endorsement and participation in the offence concerned. The Court of Appeal, in para 63 of the judgment, held that the starting point of five years adopted by the judge in respect of the offence of riot in that case was appropriate.

36.The trial judge has referred to cases such as Yeung Ka Lun (para 60), Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 (para 120), and R v Dixon-Jenkins (1985) 14 A Crim R 372, p 379, emphasising that a deterrent sentence was warranted in the present case. It was also her view that although the 1^st applicant was a university student, his identity could not be used as a basis for mitigating the sentence, see Caird (pp 508 and 509).

E2. Charge 3 – 2^nd applicant

37.The trial judge took into consideration that there were some 500 people gathering on Portland Street, and that the crowd confronted the police for almost four hours, threw objects at the police line, splashed liquid in front of the police line and put up resistance by holding weapons, and also that a police officer was persistently kicked on his head after being pushed to the ground. Moreover, the case happened in a very crowded area of the city on the night of Lunar New Year Day. The violence involved caused extreme danger to the safety of citizens. In the course of it, someone was hit by a concrete slab thrown out, immediately fell onto the ground and lost consciousness. Someone was injured and bled as a result of being struck by a brick. The trial judge found the violence on Portland Street to be of large scale and extremely serious.

38.The video footage produced in court clearly showed that the majority of the people gathering on Portland Street wore face masks, and the trial judge found that they would not have to dress in such way if they were not acting with premeditation in an attempt to cover up their identities. Most of the people standing in the forefront row were holding home-made shields, and some were wearing goggles and helmets. The video footage also showed that some people changed to put on armour in the course of it. Moreover, at the initial stage, people gathered and placed obstacles behind the police line in an attempt to encircle the police officers. The trial judge found that the riot on Portland Street was premediated, and even if it was not the case at the outset and the crowd only gathered spontaneously or acted to support the hawkers in response to the appeal on the Internet, she was sure that subsequently the violent behaviour of the crowd became organized and planned. She referred to R v Parvais Najeeb & Others [2003] 2 Cr App R (S) 69 to support her point.

39.Having considered all the circumstances, the trial judge held that the 2^nd applicant had been actively taking part in the riot of Charge 3, and found 7 years’ imprisonment an appropriate starting point for sentence.

E3. Charge 4 – 1^st and 3^rd applicants

40.The trial judge also pointed out that whilst there was no confrontation between the crowd and the police on Argyle Street, the crowd did deliberately block the carriageway and suddenly attacked a traffic police officer from behind for no reason. At that time, the officer was merely clearing obstacles, and he was unprepared and not equipped with any anti-riot gear. The video footage showed about 200 people in the crowd, which far outnumbered the police at the scene. Many people in the crowd were wearing masks, while some were also holding shields. They kept on frantically attacking the officer who had fallen down and was lying unconsciously on the ground. Apart from applying fists and kicks, they also threw objects like pallets on the officer, completely disregarding his loss of ability to defend himself. A sergeant was under persistent attack even after falling onto the ground as a result of previous attack, the 1^st applicant among others threw a plastic bucket on him, kicked him and hit his back with a wooden pallet. The officer who finally fired shots described that the crowd had completely lost their mind. The video footage showed that after the officer had fired shots, some people paused for a while but then moved forward again, disregarding the warnings and potential danger involved. Moreover, witnesses also pointed out that at the junction of Portland Street and Fife Street near Argyle Street, people assembled had set fire to burn objects in order to obstruct the police. The fact that three police officers sustained 1% to 2% permanent disabilities did illustrate how serious the situation was.

41.After considering the above circumstances, the trial judge found that the violence on Argyle Street was large in scale, organized and extremely serious, and an appropriate starting point should be 6 years’ imprisonment.

42.The trial judge found that although the jury had not reached a valid verdict against the 1^st applicant in respect of the offence of riot on Portland Street, he was already present on Portland Street shortly after 9 o’clock that night, witnessed the escalation of the events throughout and was aware that the crowd charged the police line on Portland Street. Whilst the police were pushing forward and the crowd was moving into Argyle Street, the 1^st applicant even stayed on Argyle Street and took the initiative to attack the sergeant repeatedly. The trial judge found that the 1^st applicant had actively taken part in the riot on Argyle Street, and a starting point of 6 years’ imprisonment was appropriate. Although the 1^st applicant disputed the allegation against him for further attacking the police officer before being arrested, the trial judge found whether he further attacked the officer had no bearing on the sentence by viewing the matter as a whole.

43.The trial judge found that the 3^rd applicant was already arrested shortly after the riot started and his participation was limited, and hence lowered the starting point from 6 years’ imprisonment to one of 4 years and 6 months.

E4. Final term of sentence

44.The trial judge found that the 1^st and 2^nd applicants were convicted of Charge 4 and Charge 3 respectively after trial, they hence were not entitled to the reduction in sentence for guilty plea, and their personal circumstances and background of committing the offences were not mitigating factors, they were therefore sentenced to imprisonment for 6 and 7 years respectively. As to the 1^st applicant, since Charge 4 of riot and Charge 6 of assaulting a police officer arose from the same set of facts, the sentences of the two charges were ordered to be run concurrently, and hence the 1^st applicant was sentenced to a total term of 6 years’ imprisonment.

45.The 3^rd applicant pleaded guilty only after the case had been listed for trial, the trial judge gave him a discount of about 23% only, and as his personal background did not similarly constitute any mitigating factor, he was hence sentenced to imprisonment for 3 years and 6 months.

F. 2nd applicant’s application for leave to appeal against conviction

F1. Arguments of both sides

46.Mr Lau of counsel acting for D2 said that one of the ingredients of riot was unlawful assembly. The trial judge directed the jury that in dealing with the offence of riot, it was necessary to consider whether the 2^nd applicant had taken part in an unlawful assembly at the time and place particularized in the charge, and whether the 2^nd applicant and those assembled together had a common purpose which, according to the trial judge, was conducting themselves in a disorderly, or threatening, insulting or provocative manner (conduct in the prescribed manner). Mr Lau said that under the common law, elements of unlawful assembly included a common purpose shared among the people assembled together, and this element has been preserved under s 18(1) of the Public Order Ordinance; and therefore the people assembled together must have conducted themselves in the prescribed manner to achieve a common purpose for the offence of unlawful assembly to be established. Mr Lau cited Secretary for Justice v Leung Kwok Wah [2012] 5 HKLRD 556 (paras 21 and 22) to support his contention. He asserted that conduct in the prescribed manner and having a common purpose were two separate elements of unlawful assembly; and therefore the common purpose could not be conducting in the prescribed manner itself but must be another purpose other than that, such as obstructing a police officer in his execution of duty or occupying main traffic thoroughfare. It was on this basis that Mr Lau said since the trial judge had misunderstood the prerequisite of having a common purpose in unlawful assembly, she failed to correctly direct the jury to consider if the 2^nd applicant and others had any common purpose while conducting themselves in the prescribed conduct and confused the mens rea required in the offence of unlawful assembly[17].

47.Mr David Leung, DPP representing the respondent did not agree that other than conducting in the prescribed manner, people assembled had to have another common purpose.

48.Mr Leung had referred to page C267 of the Public Order Bill 1967 in his written submissions, stating that the legislature intended to replace the common law requirement of having a common purpose by introducing ss 18 and 19 of the Public Order Ordinance[18], but he did not pursue on this point. In view of cases such as Leung Kwok Wah, Mr Leung accepted that the common law requirement of having a common purpose was preserved under s 18(1). He submitted that according to the related precedents (such as Leung Kwok Wah (para 22) and HKSAR v Leung Tin Kei [2018] HKCFI 2715 (para 45)), the common law requirement of having a common purpose still existed, which nevertheless, should be correctly understood as: the precedents required the conduct of the people assembled to be corporate in nature, namely having sufficient nexus; and the common purpose in fact meant the requirement of corporate nature.

49.Mr Leung, DPP also emphasised that purpose was not the same as motive. Even under common law, the common purpose shared by the people assembled could purely be jointly conducting in the relevant manner without any other purpose needed. Mr Leung referred to Tse Chung v R [1967] HKLR 452 (pp 455 and 456) to support his argument.

50.Finally, Mr Leung said that in any event, the trial judge had in fact repeatedly mentioned the respective stances of the prosecution and defence on the riot charges, ie Charges 3 and 4, and pointed out expressly that the element of corporate nature could not be established if the defendants did not share a common purpose of conducting themselves in the prescribed manner; as a whole, the directions given by the trial judge was sufficient and appropriate.

F2. Our views

F2.1 Common purpose under the common law

51.Unlawful assembly was originally a common law offence, and the ingredients were (i) the offenders’ actus reus of being or coming together, and (ii) the mens rea involved in the intention of fulfilling a common purpose in such a manner as to endanger the public peace. Both ingredients have to be co-existent. See R v John McKinsie Jones & Others (1974) 59 Cr App R 120, p 127[19] for the relevant legal principles.

52.Under the common law, the common purpose for which people assemble together conduct in a way endangering the peace of public may be lawful, or unlawful, or even purely for breaching the public peace with no other purpose. In Tse Chung, McMullin J in pp 455 and 456 or the judgment explained:

“... There is, [Mr Gunston] says, no evidence to show that he demonstrated a common intention with the other persons in the crowd. Mr. Gunston went, however, a step further and said that evidence which merely showed that an assembly of persons jeered and threw stones at the police would not of itself show riot or unlawful assembly. I do not think that this is a correct contention. Even if there be lacking evidence to show some direct intention to accomplish an unlawful object evidence to show that an assemblage of persons, whether it has a common object or any object at all, was engaged in offering violence to the police, or indeed to members of the public, is sufficient evidence to show that the assembly is an unlawful one. This would be true even if the assembly had met for a possibly laudable purpose and even if they had been asked to disperse for no good reason. If instead of dispersing they decided to vindicate their legal rights by retaliating violently against those who had asked them to disperse, they would thereby demonstrate a determination to prosecute their purpose, whether it be lawful or unlawful, by means unlawful in themselves and any members of the crowd who by their actions demonstrate a disposition do so would be parties to an unlawful assembly. More so is this the case where a crowd of persons assembled show a common determination to cause a breach of the peace by resisting the officers of the law.”

53.The offence of riot was originally also a common law offence having common purpose being one of the ingredients. In Caird, Sach LJ of the English Court of Appeal said in pp 504 and 505:

“… Unlawful assemblies and riotous assemblies take many forms. … The moment when persons in a crowd, however peaceful their original intention, commence to act for some shared common purpose supporting each other and in such a way that reasonable citizens fear a breach of the peace, the assembly becomes unlawful. … The assembly becomes riotous at latest when alarming force or violence begins to be used.”

54.Sachs LJ particularly emphasised that riot derived its gravity from achieving their common purpose by acting in numbers：

“It is the law – and, indeed, in common sense it should be the case – that any person who actively encourages or promotes an unlawful assembly or riot, whether by words, by signs or by actions, or who participates in it, is guilty of an offence which derives its great gravity from the simple fact that the persons concerned were acting in numbers and using those numbers to achieve their purpose.”

55.It is to be noted that for the offences of unlawful assembly and riot, purpose does not mean motive. In the report “Criminal Law – Offences Relating to Public Order” published by the UK Law Commission on 24 October 1983, there is the following explanation:

“6.24 It is, however, important to clarify the concept of common purpose. Purpose in this context does not mean motive: the individual motives of participants in a riot are irrelevant. … Nor does the element of purpose mean that there must be proof of some prior plan or agreement upon the action to be taken. In most instances the common purpose of the group will be a matter of inference from their actual conduct… Thus, for example, if the rioters are attacking the police or resisting their efforts to restore order, or trying to occupy a police station, the common purpose may be identified accordingly and specified in such terms of the indictment. To this extent, the offence requires an accurate assessment of what the rioters are actually doing, but this, we believe, imposes no undue difficulty, and indeed, is no more than is required for any other offence. Of course, there may be on occasion other evidence of a common purpose, such as evidence of prior planning, which if available would clearly be admissible towards establishing it. But on some of these occasions it may be possible to bring charges of conspiracy to commit a riot or to commit other offences against the person or property.

6.25 It should finally be noted that the common purpose may be of any character: it is irrelevant whether the purpose stated is of a lawful or unlawful character, although in most instances it is to be expected that, having regard to the requirement of unlawful violence, the purpose itself will be unlawful…”

The above remarks of the UK Law Commission are also applicable to the common purpose in respect of unlawful assembly.

F2.2 Common purpose under the statutory offences

56.On 7 November 1967, the Public Order Ordinance came into effect, and unlawful assembly and riot became statutory offences.

57.Since defendants in an unlawful assembly assemble to commit crime jointly, it has its corporate nature. In Leung Kwok Wah, Lam J (as he then was) of the Court of First Instance discussed in details the ingredients of the crime of unlawful assembly. In respect of the corporate nature of the offence, Lam J said as follows:

“16. The ingredients of the offence are set out in sub-section (1). The magistrate analyzed it by reference to three ingredients at para 8 of the Case. Subject to what I shall say below, I am happy to adopt those three ingredients for analyzing the offence,

(a) Assembled together;

(b) Conduct themselves in a disorderly or provocative manner;

(c) Intended or 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.

17. On the first ingredient, I am of the view that the way in which it was stated at para 8(a) of the Case does not sufficiently reflect the requirement of joint responsibility for the conducts which are put forward as the second ingredient of the charge. The sub-subsection refers to ‘conduct themselves’, not simply ‘assembled together’. In The Queen v To Kwan-hang, [1995] 1 HKCLR 251 at p 254, Macdougall V-P emphasised this additional aspect of the offence,

‘… where three or more persons conduct themselves in one of the manners described in the sub-section, it is they, not other members of their group who do not so conduct themselves, who became an unlawful assembly.’

18. In other words, the unlawful assembly is made up of those conducting themselves in the prescribed manner. If there was only one person out of those assembled together who conducted himself in the prescribed manner, he could not be guilty of this offence.

19. Further, if more than three persons amongst those assembled together conducted themselves in the prescribed manner, it is still necessary to consider whether in so conducting themselves they could be described as acting as an assembly. The sub-section provides for this consideration when it stipulates that these people ‘are an unlawful assembly’. This view is reinforced by the third ingredient (the so-called breach of the peace ingredient, as elaborated below) of the offence. In one possible limb of this ingredient, the question that has to be asked is whether the conducts of the defendants are ‘likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace’. Hence, the conducts of the defendants had to be assessed together to see whether this criterion can be satisfied. There must be sufficient nexus between the conducts of these defendants to justify having them considered together. And the fear required is that such persons so assembled, viz acting together, will commit a breach of the peace.

20. I will call this the corporate nature of the offence under Section 18. This corporate nature is one of the distinguishing features between this offence and the offence under Section 17B of the [Public Order Ordinance].

21. Thus, if three persons in a lawful assembly committed acts of the prescribed nature at different parts of the place of assembly for different purposes, sparking off different incidents, involving and affecting entirely different mix of persons, there would not be sufficient nexus to turn these independent acts into an unlawful assembly of those three persons. If the event takes place at a public place, they may each be guilty of an offence under Section 17B. But these would be separate offences, and the fact that they have been in the same lawful assembly prior to their respective commission of the Section 17B offences would not, without the necessary nexus, turn those offences into one single offence of unlawful assembly under Section 18。

22. This was highlighted by James LJ in R v John McKinsie Jones (1974) 59 Cr App R 120 at p 127,

‘The ingredients of the offence [of unlawful assembly under the common law] are (i) the actus reus of being or coming together — the assembly, and (ii) the mens rea involved in the intention of fulfilling a common purpose in such a manner as to endanger the public peace. Those ingredients have to be co-existent.’

This was said in respect of the common law offence. In the context of an offence under Section 18, there is a need to adjust the mens rea aspect to take account of the objective limb of the third ingredient discussed below. However, I consider that the requirement of having a common purpose in acting in the statutorily prescribed manner remains good law in dealing with a charge under Section 18.”

58.We agree with Lam J’s analysis and conclusion. According to the true construction of s 18(1), the actus reus that constitutes unlawful assembly must have corporate nature to satisfy the requirement of offenders being jointly responsible. The offenders must have assembled together and conducted themselves in the manner prescribed in the ordinance when assembling. The offenders must have a common purpose so that the court can regard them as assembling to act together. Therefore, the requirement of having a common purpose is still applicable to s 18(1). In other words, the common law requirement of having a common purpose remains an ingredient of the offence of unlawful assembly under s 18(1).

59.In this regard, the stances of both sides are the same. The only difference between the two sides is that based on the understanding of Lam J’s words in paras 21 and 22 in Leung Kwok Wah as cited above, Mr Lau asserted that people committed the offence of unlawful assembly must have a common purpose other than conducting themselves in the manner prescribed in s 18(1), and therefore if the offenders’ purpose was only conducting themselves in the manner prescribed in s 18(1) but had no other common purpose, no unlawful assembly was constituted; whilst Mr Leung suggested that although s 18(1) preserved the common law requirement in proving common purpose, there was no stipulation of having a common purpose other than conducting in the prescribed manner.

60.In our view, Mr Lau’s contention is completely wrong in law.

61.Since s 18(1) preserves the common law requirement of having a common purpose, the common purpose referred to in the section must be the same as that under the common law. According to the precedents cited above, under the common law, the common purpose for which the people assembled conducted themselves in a way endangering the public peace may be a lawful purpose, or unlawful, or even purely for a breach of the public peace and no other purpose is required. Therefore, even if the offenders just had the common purpose of conducting themselves in the prescribed manner, it is sufficient to satisfy the requirement of common purpose under s 18(1).

62.Mr Lau has not cited any other precedent to support his contention apart from Leung Kwok Wah, he nevertheless has misunderstood that case. In Leung Kwok Wah, Lam J held that the common purpose required by the common law remained an ingredient of the offence under s 18(1). Since the common law did not require the offenders to have a common purpose beyond carrying out the actus reus, Lam J naturally would not have found that the common purpose which fulfilled s 18(1) must be a common purpose beyond conducting themselves in the prescribed manner. In fact, in dealing with counsel’s submissions, Lam J has in para 83 of his judgment emphasised that the necessary nexus could be satisfied by having a common purpose.

63.As to the facts, what constitutes the common purpose under s 18(1) has to depend on the actual factual circumstances of the case.

F2.3 Conclusion

64.In the present case, it is the stance of the prosecution that the 2nd applicant and the other offenders who committed Charge 3 had the common purpose of conducting themselves in a manner prescribed in the ordinance and that this was permitted in law. In respect of common purpose, the trial judge has given directions in details to the jury according to the facts and the stance of the prosecution of the present case correctly with no mistake in law. In the light of the above reasons, we find the 2^nd applicant’s grounds of appeal against conviction fail, and leave to appeal is refused.

G. General principle applicable to the sentence of riot offence

65.Before dealing with the leave application against sentence, we first reiterate the principles applicable to the sentence of the offence of riot.

G1. Rule of law and public order

66.The Court of Appeal earlier on dealt with two appeals against sentence, which also originated from this riot which happened in Mongkok:

(1) In Yeung Ka Lun, the applicant had taken part in the riot on Soy Street and set fire on and thereby damaged a taxi. He was charged with offences of riot and arson and convicted after trial. The District Judge adopted starting points of 5 years and 4 years 3 months respectively in the sentence of riot and arson, and sentenced him to imprisonment for 4 years 9 months and 4 years 3 months respectively in respect of the two charges, which were to run concurrently. The applicant applied to the Court of Appeal for leave to appeal against conviction and sentence but the Court of Appeal refused the application.

(2) In HKSAR v Tang Ho-yin [2019] 3 HKLRD 502, the appellant admitted taking part in the riot on Shantung Street. The District Judge adopted a starting point of 5 years and gave him a one-third discount for his guilty plea, which was further reduced by 6 months in the light of his medical condition, and finally sentenced him to 2 years and 10 months’ imprisonment. The appellant appealed on the ground that the starting point of 5 years’ imprisonment was manifestly excessive. The Court held that the starting point of 4½ years’ imprisonment was appropriate but a one-third discount for guilty plea should have resulted in 3 years’ imprisonment. The Court of Appeal did not accept the appellant’s medical condition as a mitigating factor, finding the discount of 6 months not really necessary, but ultimately decided not to interfere with the original sentence of 2 years and 10 months.

The Court of Appeal discussed the sentencing principles on the offence of riot in both cases, see paras 51-63 in Yeung Ka Lun and paras 22-33 in Tang Ho Yin.

67.In Yeung Ka Lun, Yeung VP said:

“59. This court must emphasise that Hong Kong, being a society governed by rule of law, and a peaceful and tranquil community, definitely does not tolerate the severe violent behavior that took place out of no reason in the present case…”

68.In Tang Ho-yin, Macrae VP has also said:

“22. For any society that has as its cornerstone the rule of law, public order is an essential constituent element which serves to promote the safe, equitable and lawful functioning of that society. That is not to say that its citizens cannot articulate their views, ventilate their grievances and demonstrate their objections emphatically and openly within the law. However, if they transgress the law in so doing and imperil that essential constituent element, then the rule of law will inevitably suffer. As the English Court of Appeal in Caird declared, in the context of a case of a riot in Cambridge in 1970：

‘… this Court feels it necessary to advert to the clear line that exists between the freedom of citizens to assemble peaceably in a permissible place to express their views in a lawful manner, a right which the courts always safeguard, and the unlawful act of doing something which threatens a breach of the peace.’

The Court continued:

‘… it cannot be too plainly stated or too widely known that the moment when men join in an attempt to overpower the police who are performing their protective duties, that line has been considerably overstepped, and every person joining in the mob effort for that purpose is committing a grave crime even if he is not identified as having committed some specific assault or some specific piece of malicious damage.’ ” [20]

69.As said by the two Vice Presidents, this court must emphasise that riot involves a breach of, or threat to breach, public order and peace by corporate use of violence, and has the effect of causing immediate and extremely serious impact on the rule of law.

70.Rule of law has been implemented and respected in Hong Kong, which is a place widely recognised to be an advanced region governed by rule of law. Rule of law is the cornerstone of the success in Hong Kong, which protects its citizens so that they can completely and fully enjoy various freedoms and rights under the law and confirming the status of Hong Kong as an advanced and civilized region as well as an international financial centre. If the civilization and freedom possessed by Hong Kong is to be protected to ensure continuous development and advancement, rule of law, as the core value, must be indispensable.

71.Rule of law is extremely rich in its contents, involving inter-relating legal concepts of various aspects. One of an integral element of rule of law is that citizens must abide by the law [21]and exercise various freedoms and rights within the ambit of the law. In HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837, Ribeiro PJ in para 38 of his judgment mentions that the law allows a line to be drawn between peaceful demonstrations and conduct which disrupts or threatens to disrupt public order, as well as conduct which interferes with the rights and freedoms of others, and this court explained in para 117 in the judgment of Wong Chi Fung:

“The restriction of ‘not to disrupt or threaten to disrupt public order or breach of peace’ is intended to protect public order; whereas the restriction of ‘not to unlawfully interfere with the rights and freedoms of others’ is intended to give respect and protect the lawful rights and freedoms of others. Both are the hallmarks of a civilized society where the rule of law reigns.”

72.The law must ensure the protection of public order and peace from violent influence, otherwise rule of law will be undermined; this court has explained the reasons in Wong Chi Fung [& Others]:

“118. Society is prone to descend into anarchy if public order is not preserved; once such a situation arises, the harm done to both the society and its citizens cannot be understated. For the society as a whole, preserving public order is indispensable to societal safety and public peace. Lawlessness in anarchic situations undermines social stability and hampers continuous development of a society. For the general public, preserving public order helps create a safe and stable social environment to enable individuals to exercise their rights (including human rights of which the freedom of assembly and expression is one), express their views and pursue their goals. In fact, the above-mentioned rights themselves will be lost in situation of anarchy if public order is not preserved. That is exactly the rationale underlying Article 17 of the Hong Kong Bill of Rights in only safeguarding peaceful assembly: the legal protection of the right of assembly is effective only in a society where public order is preserved. Because preserving public order is so important to the society and the general public, the law must always remain vigilant to ensure that the public order in Hong Kong is not under threat. That does not mean that the law is only concerned about public order, or that it will ignore the rights and freedoms enjoyed by citizens in accordance with law, lest the society is likely to descend into a suppressed state, which would impede Hong Kong’s development and progress and deprive its citizens of their various freedoms and rights. The law must give consideration to both, and to strike a balance between the right of assembly and the need to preserve public order. That balance is embodied in the basic premise that assemblies must be held peacefully without disrupting or threatening to disrupt public order, or without involving any violence or threat to use violence.”

G2. Punitive and deterrent sentence – immediate imprisonment

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: see Wong Chi Fung, paras 122-128; Caird, p 511; R v Blackshaw & Others [2012] 1 Cr App R (S) 114, paras 4-6; Tang Ho-yin paras 22-23. As Yeung VP have stressed in Yeung Ka Lun:

“60. We agree with the trial judge in that the offence in question calls for a deterrent sentence to give a definite clear warning to the offender and prevent the occurrence of similar incidents, or otherwise, the community will have to pay painfully which would be against the interests of the public and those who enforce the law.

61. Imposing a long term of imprisonment on a well-educated young man having a good family background is tragic to him, his family and even to the community, however, the court must be determined in combatting the criminal behaviour demonstrated in the present case: ignoring the law and disregarding public order and safety of law enforcement officers.”

74.In Wong Chi Fung, the Court of Final Appeal in para 120 specifically pointed out that in view of the circumstances now prevailing in Hong Kong including increasing incidents of protests involving violence, it is now necessary for the court to emphasise deterrence and punishment in sentencing in unlawful assembly involving violence. In this context, the Court of Final Appeal finds that the comments expressed by Starke J in the Court of Criminal Appeal in Victoria in R v Dixon-Jenkins (1985) 14 A Crim R 372 at p 379 are apposite:

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

The view of the Court of Final Appeal and Starke J’s comment are both applicable to the offence of riot which is similar to but more serious than unlawful assembly.

75.According to the principles established in the applicable precedents, the court would impose punitive and sufficiently deterrent sentence on people who commit riot, and an immediate custodial sentence is in general the inevitable choice of sentence.

G3. Offender’s rationale

76.In Wong Chi Fung [& 2 Others], after discussing the relevant precedents, the Court of Appeal emphasised in paras 131 and 132 that the offender’s rationale behind in a case of unlawful assembly involving violence is not a mitigating factor:

“131. When an offender used violence or, worse, engaged himself in wanton and vicious violence, even if he claimed he committed the offence out of deeply held moral or political convictions, that would not constitute a mitigating factor in favour of a lenient sentence. The major factor for the court to consider is the degree of violence, and the extent to which public peace was affected: Caird, per Sachs LJ at p.506. The rationale behind this is that, in a civilized society where the rule of law prevails, there must exist some lawful ways or means by which people can promote their idea or advocate their cause; hence the pursuit of their idea or cause must not be used as an excuse for resorting to unlawful violence. Likewise, it is not open to offenders to use the excuse of “being compelled by circumstances” to resort to violence. This so-called compulsion does not amount to a mitigating factor in favour of a lenient sentence. If these two excuses were to be accepted as mitigating factors or reasons for a lenient sentence, self-righteous individuals would feel free to do whatever they want, since they would need to bear insignificant or, in their eyes, even negligible legal consequences. In that case, public order is prone to collapse.

132. In addition, what the offenders think of people holding different views is no excuse for using violence on those people. As Sachs LJ emphasised:

“Any suggestion that a section of the community strongly holding one set of views is justified in banding together to disrupt the lawful activities of a section that does not hold the same views so strongly or which holds different views cannot be tolerated and must unhesitatingly be rejected by the courts.”

And then, the Court of Appeal reiterated in para 134:

“134. … for cases of unlawful assembly involving violence, the main consideration in sentencing is for the offenders to be punished, and for others to be deterred from violating the law by breaking and disrupting public order in like manner. As to the offender’s personal circumstances, regardless of how honourable he perceives his motive or reason for committing the crime to be, or whether he thinks the other offenders are more culpable than he is, they will, generally speaking, not be regarded as a strong mitigating factor in favour of imposing a lenient sentence.”

77.The view of the Court of Appeal in Wong Chi Fung is also applicable to the offence of riot.

G4. Factors to be considered in sentencing

78.The gravamen of the offence of riot is the participants acting in large numbers use their numbers to achieve their common purpose with violence: refer to Caird, pp 504 and 505; Blackshaw, para 9 and Wong Chi Fung [& 2 Others], paras 123-127. In Tang Ho-yin, para 24, Macrae VP particularly pointed out:

“Three important principles may be derived from these two authorities (Caird and Blackshaw): firstly, 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; secondly, the offence may be aggravated by the commission of other crimes during the course of the riot; thirdly, those who resort to the company and association of others in order to inflict widespread violence and destruction must be strongly deterred. Of course, not all riots are the same in terms of scale and seriousness, as the facts and sentences passed on the various applicants in Caird and Blackshaw to some extent demonstrate. In some, the disturbances are caused by rival groups or gangs, in which the police find themselves trying to keep order: in others, the police are themselves the target of group aggression. In identifying the seriousness of the riotous behaviour with which a particular court is concerned, the Court in Pilgrim considered that:

‘What the Court has to pay regard to is the level of violence used, the scale of the riot or affray as described by the witnesses, the extent to which it is premeditated, or on the other hand spontaneously arises, and finally the number of people who are engaged in its execution.’ ”

79.Generally speaking, the factors to be taken into account when passing sentence on the offence of riot include:

(1) whether the riot was spontaneous or premediated; if it was the latter, how detailed and precise the plan was;

(2) the number of people engaged in the riot;

(3) the degree of violence used by the rioters, including whether weapons were used and, if so, what kind and quantity of weapons;

(4) the scale of the riot, including the time, location, the number of places and the area in which the riot took place;

(5) the duration of the riot, including whether the riot was prolonged; and whether it still went on despite repeated warnings by the police or public officers;

(6) the harm caused by the riot: for example, whether there was any loss or damage to properties and, if so, to what extent; whether anyone was injured and, if so, the number of injured persons and the degree of injury;

(7) the imminence and gravity of threat that was caused by the riot;

(8) the nature and extent of nuisance caused to the public by the riot;

(9) the impact caused by the riot on the relationship among community groups;

(10) burden caused to public expenditure by the riot;

(11) the offender’s role and degree of participation; for instance, apart from taking part in the riot, whether he had arranged, led, summoned, incited or advocated others to take part in the riot; and

(12) whether the offender committed any other crimes during the course of the riot.

See para 135 in Wong Chi Fung [& Others] and para 121 in Wong Chi Fung; and make reference to para 62 in Yeung Ka Lun and para 24 in Tang Ho-yin.

80.Since the background and facts involved in each case of riot are different, each case has to be considered separately, so the sentencing 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 impose the proper sentence, see Yeung Ka Lun, para 58.

H. Each applicant’s application for leave to appeal against sentence

81.Undoubtedly, according to the evidence in the present case, including the footage of some video produced in the hearing which this court has viewed, the riotous offence the applicants were involved in was of extreme severity.

H1. Charge 3

82.The factors which the trial judge had considered regarding the overall facts of Charge 3 can be seen in paras 49-54 of the reasons for sentence and the summary in paras 37-39 above. We agree with the trial judge’s view. Undoubtedly, the riot involved in Charge 3 was large in scale, lasted for a long period of time, had large numbers of offenders and was premeditated to a certain extent. The case happened in Mongkok which was a busy area with lots of passers-by. The flows of people were then even heavier because it was the night of Lunar New Year Day. The incident must have caused very great danger and threat to public order and personal safety and property of the general public. The rioters targeted at the police in their attacks, and using their vast numbers to attack police officers by extreme violence out of no reason. In addition, quite a number of rioters frantically scolded the police and even stirred up the emotion of the crowd gathered at the scene, making the situation escalate and continue.

83.In relation to the 2^nd applicant’s participation, the trial judge in para 55 of the reasons for sentence says:

“...The evidence adduced at trial showed that D3 [2^nd applicant] already appeared on Portland Street as early as 9 o’clock that night to assist the hawkers in pushing hawker carts from the rear lane of Shui Hing Mahjong School to the pavement. Later, D3 together with other people scolded FEHD officers. They also followed the instructions of WONG Toi-yeung in the taxi incident. Then, on two occasions, D3 was witnessed by police officers to have disregarded the warnings given by the police and threw objects from the crowd to the police line. The video footage also showed that D3 had, at a later stage, again thrown objects at the police line for a total of 11 times and picked up mud and sand from the ground to attack the police. D3 was all along at the scene during the riot on Portland Street. He ignored the advice and took part in the riot actively. Having considered all the relevant circumstances, I am of the view that the appropriate starting point for the offence of riot at Portland Street in respect of which D3 has been convicted is 7 years’ imprisonment.”

84.Mr Lau argued that the starting point of 7 years was excessive. He submitted that comparing with the starting point in Yeung Ka Lun, the sentence on the 2^nd applicant was manifestly excessive because although the riot in the present case had lasted longer, no arson was involved; and although the 2^nd applicant had thrown objects and mud at the police line for a number of times and should be liable for the corporate action, his violent behaviour was obviously less serious than what was involved in Yeung Ka Lun. However, as stated above, the background and facts of the riot offence depend on each individual case, the sentence in other cases do not provide much guidance. Mr Lau also said that the trial judge has gone too far to find the riot premeditated simply by drawing inference from the fact that the participants were wearing masks. He argued that even if the participants had tried to cover their identities, no adverse inference should be drawn beyond all reasonable doubt. We do not agree Mr Lau’s arguments. Viewing from the objective evidence in the case, the trial judge had sufficient evidential basis to find that the riot happened on that night was premeditated.

85.We are of the view that the trial judge applied appropriate sentencing principles and correctly relied on the facts of Charge 3 and the 2^nd applicant’s circumstances in imposing the sentence. The starting point of 7 years adopted was not manifestly excessive.

H2. Charge 4

86.The factors which the trial judge had considered regarding the overall facts of Charge 4 are seen in paras 56-61 of the reasons for sentence and the summary in paras 40-41 above. We agree with the trial judge’s view in that Charge 4 is a riot of extremely serious nature. She has said in paras 62 and 63 in the reasons for sentence:

“62. However, regarding D5 [3^rd applicant], I accept Mr Iu’s submission that his circumstances were special because he took part in the riot on Argyle Street only at a very early stage and his participation was very limited. Subsequent riotous acts took place after his arrest. Therefore, having considered all the relevant circumstances, I am of the view that for the offence of riot on Argyle Street admitted by D5, the starting point could be reduced from the said 6 years to 4½years.

63. As for D1 [1^st applicant], I bear in mind that the jury did not reach a valid verdict concerning the offence of riot against him on Portland Street. However, he did not dispute that he was already present on Portland Street shortly after 9 o’clock that night, and he did not dispute that he had been present during the hawkers’ incident, the taxi incident and the elevated platform incident. As such, D1 witnessed throughout the escalation of the events and was aware that the crowd had charged the police line on Portland Street. After that, when the police pushed the police line forward, the crowd went to Argyle Street. Yet, he continued to stay on Argyle Street and took part in the riot on Argyle Street. He also took the initiative to repeatedly attack the sergeant who fell to the ground when attempting to stop a person who was holding a brick. At that time, there were other people who also attacked the sergeant. It is clear that D1 actively took part in the riot on Argyle street. Having considered all the relevant circumstances, I am of the view that the above starting point of 6 years is appropriate for the offence of riot on Argyle Street in respect of which the jury found D1 guilty.”

H2.1 1st applicant

87.Mr Lok SC representing the 1^st applicant has put forward six grounds of appeal.

(1) The 1^st applicant was not convicted of Charge 3, the trial judge, however, still considered his presence on Portland Street and his knowledge of the development of the incident in sentencing. This was wrong in principle, rendering the separated prosecution of riots on Portland Street and Argyle Street meaningless. Staying behind at the scene with knowledge of the development of the incident did not necessarily mean participation in the riot. The trial judge should not have rashly jumped to the conclusion that the 1^st applicant had all along prepared to participate the riot and hence enhanced the sentence, in particular that the 1^st applicant was found not guilty on Charge 3 in the subsequent second trial.

(2) The appearance of the traffic police on Argyle Street which resulted in confrontation was out of the 1^st applicant’s expectation, and there was no premeditation. The trial judge has also said that the Argyle Street riot involved the crowd’s suddenly unjustifiable attack on the traffic police officers from behind, which however was eventually found to be organised and premeditated because the crowd had put on masks, goggles, helmets and armour, etc. Mr Lok SC argued that those items were for self-protection or covering up their identities, which could not be regarded as weapons. Hence the trial judge just had no evidential basis to conclude that those items meant the riot was planned. The trial judge has also overlooked the fact that the 1^st applicant was already under arrest back at 2:08 am, and had taken part in the Argyle Street riot during the first eight minutes only. As to the trial judge’s reference to R v Parvais Najeeb & Others to support her finding that the Portland Street riot was organised and planned, Mr Lok SC said that Parvais was different from the present case in that the riot in Parvais lasted for 12 hours with evidence of its scale, namely telephone communications discussing how to attack the police, burn vehicles and make incendiary bombs, etc.

(3) Act(s) of arson would be an important factor in sentencing if they were involved in the riot. However, in the present case, the prosecution did not rely on the arson incident on Fife Street to support the allegation of the 1^st applicant’s riotous behaviour in Charge 4, and the fire was set on by other people assembling at another location at 2:18 am, which had nothing to do with the 1^st applicant. The trial judge should not have regarded it as part of his criminal liabilities.

(4) The trial judge found the 1^st applicant’s personal behaviour on Argyle Street had no bearing on the sentence, which was a misunderstanding of Caird. It was stated in Caird that individual conduct was not an exculpatory factor but should be duly considered in sentencing so as to decide if the sentence on individual offender was appropriate. According to cases such as R v Keys (1987) 84 Cr App R 204 and R v Parvais Najeeb & Others, it was wrong for the trial judge to apply the most serious circumstances of the riot (including the most violent behaviour and the number of people at the peak period at the scene, etc) against the 1^st applicant in sentencing.

(5) The defendant’s motive and reason for committing the crime should be considered in sentencing although not much weight would be accorded. The 1^st applicant’s original intention was to protect local culture and he had no bias or rage against any particular group. By giving no consideration, the trial judge failed to conform with precedents such as R v Parvais Najeeb & Others and Wong Chi Fung.

(6) In Yeung Ka Lun, arson was involved and the Court of Appeal found that a starting point of 5 years’ imprisonment was appropriate, whilst in Tang Ho-yin, which only involved throwing bricks at the police, the Court of Appeal found 4 years and 6 months an appropriate starting point. By comparison with them, the 6 years’ imprisonment in the present case is utterly excessive.

88.With respect, this court cannot accept the grounds of appeal (1), (2), (4) to (6) put forward by Mr Lok SC.

89.Firstly, the riot on Argyle Street was not a single incident but was a continuation of the earlier riot on Portland Street. Right from the beginning of the riot, the participants had targeted their attack at the police officers who enforced law at the scene. They committed the crime with a certain degree of premeditation. Prior to that, the police had dispersed the rioters, driving them away from Portland Street to the vicinity, and some participants of the Argyle Street riot were dressed and equipped in a way same as or similar to those who had participated the previous Portland Street riot, it must be the reasonable inference that these people had taken part in the previous Portland Street. Having planned the crime in advance, they subsequently continued to assemble on Argyle Street, took part in the riot and attacked the police who enforced law at the scene. Under such circumstances, there was sufficient evidence to support and it was reasonable for the trial judge to say that they had committed the crime with premeditation.

90.Secondly, as the analysis above indicates, the participants’ attack on the traffic police officer at the scene when the Argyle Street riot happened was not a single incident by chance. The 1^st applicant had already been present at the scene back at the beginning of the Portland Street riot, and having witnessed the development of incident, he must be aware of the aforesaid situation. Therefore, having taken part in the riot on Argyle Street and attacked the police, it is hard for the 1^st applicant to argue that the presence of the police officer and the subsequent confrontation were out of his expectation. On the contrary, it must be the reasonable inference that he should have expected possible attack by the participants of the riot at the scene on the police coming to enforce the law. Further, it could not be said that 1^st applicant’s sentence has been enhanced because of his mere presence during the Portland Street riot. His presence throughout from the outset up till the arrest is only the factual context of Charge 4 that he had committed, which the trial judge could and should take into consideration.

91.Thirdly, it has been clearly explained in precedents that the 1^st applicant’s ideological convictions which procured his commission is not a strong mitigating factor in law. In fact, even if the 1^st applicant’s original intention was to protect local culture, his participation in the riot and his riotous behaviour were not in proportion to his ideological convictions and cannot be accepted as a factor to mitigate his sentence in respect of Charge 4 and his unjustifiable severe violent attack on the police officer.

92.Fourthly, what the court mainly considers is the 1^st applicant’s criminal liability in the case, and the local and overseas precedents on sentencing do not provide much guidance.

93.In respect of the ground of appeal (3), the 1^st applicant contended that the trial judge erred in taking into account the arson incident at the junction of Fife Street and Portland Street (“Fife Street arson”) in the sentence of Charge 4. The starting point in respect of Charge 4 was discussed in paras 56-61 of the reasons of sentence. The trial judge in para 56 first said that pursuant to the sentencing considerations mentioned in R v Pilgrim, the degree of violence in the riot on Argyle Street was extremely serious. She further described what had happened on Argyle Street, including the attack by a large crowd on the traffic police officers who were clearing obstacles on the road, the facts related to the offence of assaulting a police officer which the 1^st applicant had admitted and the relevant evidence. She also pointed out in para 58 that the gravity of the riotous behaviour could be seen from the injuries sustained by the police officer who had been attacked. She went on to say in paras 59-61:

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

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

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

94.Mr Lok SC submitted that the Fife Street arson happened 10 minutes after the 1^st applicant had been arrested and was done by other people assembled at another place, therefore, although the trial judge had to consider the overall violence in determining the starting point in sentencing, it was wrong and unfair to regard the Fife Street arson as the behaviour relevant to the 1^st applicant as a whole in the Argyle Street riot, and thereby took it into account in his sentence.

95.Mr Leung, DPP submitted that what happened after the 1^st applicant’s arrest might also be considered, and the trial judge was also required to consider the scale and degree of violence in the Argyle Street riot as a whole in sentencing. He also pointed out that in the light of gravity of the attack on the police and the violent behaviour happened on Argyle Street, a starting point of 6 years was not manifestly excessive.

96.There was no dispute between the 1^st applicant and the respondent that the trial judge had to consider the overall circumstances and violent behaviour in the riot involved in the charge in deciding the starting point in sentencing. For this ground of appeal, the key issue is whether the Fife Street arson was a part of the Argyle Street riot in Charge 4.

97.The prosecution brought four charges of riot in respect of the series of incidents happened in Mongkok from the night on 8 February to the early morning on 9 February, namely Charges 3 to 6 in the 4^th amended indictment, and the respective locations were Portland Street, Argyle Street, Shantung Street and Fa Yuen Street in sequence.

98.Charge 4 alleges that the 1^st applicant, 3^rd applicant and D5 at trial took part in the riot on Argyle Street. Since the 3^rd applicant admitted the Charge 4, the prosecution submitted the summary of facts in relation to the charge, in which paras 3 to 8[22] described what happened during the incident, and it can be seen that the riot in Charge 4 happened in the section of Argyle Street between Portland Street and Shanghai Street and that the Fife Street arson was not part of the incident. Moreover, in paras 10 to 16 of the summary of facts which explained the basis of Charge 4, the content of paras 10 to 12 were as follows:

“Basis of the Charge

10. At the material time, starting from around 2 am on 9 February 2016 to the time before [the 3^rd applicant] was subdued by the police, a large crowd was assembling in the area between Portland Street and Shanghai Street. People participated the above assembly conducted themselves in various ways including:

(a) forcibly occupied the roadway of Argyle Street between Portland Street and Shanghai Street;

(b) obstructed police officers who was in execution of duties in resuming the road traffic to normal;

(c) attacked PC 7763.

11. The aforesaid assembly in para 10 above was an unlawful assembly, and participants committed a breach of the peace, which constituted riot (hereinafter called “the said riot”). At the material time in this case, [the 3 applicant] I together with other people participated the said riot.

12. After [the 3^rd applicant] had been subdued by the police, the riot resulted in consequences including people assembled still continued the riot and the incidents described in paras 6-8 above happened, causing injuries to police officers in execution of duties, including SPC 46000, Sgt 10985 Man Kam Kei, PC7763 and PC 5619 of Traffic West Kowloon”.

Sgt 10985 mentioned in para 12 is the police officer involved in the charge of assaulting a police officer to which the 1^st applicant pleaded guilty.

99.This summary of facts was prepared for the 3^rd applicant’s guilty plea on Charge 4, but it expressly stated the prosecution case in respect of this charge and the basis on which prosecution was brought. Moreover, in addition to the 3^rd applicant’s behaviour, it also covered the behaviour of the 1^st applicant and others. Therefore, this summary is helpful in determining the key issue related to this ground of appeal. There are two points worth noting:

(1) The prosecution alleged that the location where Charge 4 happened was the section of Argyle Street between Portland Street and Shanghai Street;

(2) The prosecution did not include the Fife Street arson as part of the incident in Charge 4 or the basis of the charge.

100.At trial, the prosecution in the closing submission made no mention of the Fife Street arson when describing the violent behaviour involved in Charge 4^[23] and the 1^st applicant’s behaviour[24]. After dealing with the violent behaviour happened in Argyle Street[25], the prosecution, in accordance with the chronology, pointed out that when assaults on police officers, etc took place in Argyle Street, “a bit away from Argyle Street” in Fife Street, there was arson[26], which could be seen from the video footage captured by the camcorder of the private car of prosecution witness PW 147[27].

101.When the trial judge summarized to the jury the prosecution case of Charge 4[28] and the violent behaviour relied upon in allegations against the 1^st applicant[29], the Fife Street arson was not mentioned. When the judge summarized the evidence of prosecution witnesses, it was only in recounting the evidence of Inspector Mak Ling Fung [30] (PW3) and PW147[31] that the Fife Street arson was mentioned.

102.From the above analysis, the Fife Street arson incident was not included as the prosecution basis of Charge 4 at the trial, the overall facts of the charge or the prosecution case against the 1^st applicant. This arson incident was not part of the Argyle Street riot in Charge 4.

103.It is true that the trial judge had to consider the overall circumstances and degree of violence of the riot involved in the charge, and what happened after the 1^st applicant’s arrest was not something which could not be considered. However, since the Fife Street arson did not happen at the location referred to in Charge 4, and nor was it part of the prosecution case or prosecution basis in respect of the said charge, the trial judge should not have taken into account what was caused by other people assembled at another location after the 1^st applicant’s arrest in considering the starting point of the sentence in respect of Charge 4.

104.Having said that, in view of the riotous situation on Argyle Street, including that the assembly of crowd, the unjustifiable attack on police officers with no anti-riot gear from behind while there was no confrontation and the severity of violence used, the starting point of 6 years for the sentence of Charge 4 cannot be said to be manifestly excessive to require this court to intervene.

105.In conclusion, the 1^st applicant’s application for leave to appeal against the sentence in respect of Charge 4 is allowed and treated as the appeal proper. In the light of the reasons stated above, this appeal against sentence made by the 1^st applicant is dismissed.

H2.2 3rd applicant

106.Mr Chan submitted on behalf of the 3^rd applicant that since he had already been arrested at the early stage of the riot, he should not be held liable for what happened afterwards as a participant, and although the trial judge had reduced the starting point to one of 4 years and 6 months, it was still manifestly excessive. Mr Chan similarly referred to Yeung Ka Lun, arguing while no one was charged with arson in the present case, the sentence on the 3^rd applicant was by comparison too harsh.

107.Mr Chan also submitted that the riot in the present case arose because the young people had been misled by some western ideas, wrongly thought they were acting righteously by protesting against the government. And the 3^rd applicant, although having been misled by western ideas, realised his misdeed and admitted the guilt frankly, the trial judge however did not give any discount in his sentence for his good record. Mr Chan suggested to this court that since young people committed crime because of being blinded by improper political propaganda, further appropriate discount could be given to those who regretted and pleaded guilty.

108.In our view, in respect of the 3^rd applicant’s culpability, a starting point of 6 years is appropriate and not manifestly excessive. Further, as said before, other precedents do not provide much guidance. The trial judge has sufficiently considered all the mitigating factors put forward for the 3^rd applicant, including being arrested at an early stage, and given appropriate discount in the sentence. Commission of crime upon being influenced by other people or improper thoughts is not a ground for further reduction in sentence.

H3. Conclusion

109.In the light of the above reasons, the 1^st applicant’s application for leave to appeal is allowed and treated as the appeal proper, but the appeal is dismissed. The applications for leave to appeal made by the 2^nd and 3^rd applicants are refused.

Mr Lawrence Lok, SC and Mr Joe Chan, instructed by Sanny Kwong & Co, for the First Applicant (D1).

Mr Lawrence Lau, instructed by Bond Ng Solicitors, assigned by the Director of Legal Aid, for the Second Applicant (D3).

Mr Chan Siu-Ming, instructed by JCC Cheung & Co., assigned by the Director of Legal Aid, for the Third Applicant (D5).

Mr David Leung, SC, DPP, Ms Vinci Lam, DDPP, Mr Ivan Cheung, SPP and Mr Douglas Lau, PP, of the Department of Justice, for the Respondent.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.