HKSAR v. Lai Chee Ying and Others

DCCC 537/2020

[2021] HKDC 447

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 537 OF 2020

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REASONS FOR SENTENCE

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1.The 3 defendants pleaded guilty to one charge of knowingly taking part in an unauthorized assembly, contrary to section 17A(3)(a) of the Public Order Ordinance, Cap 245. An indication of their plea came a few days before their trial was due to commence.

2.The particulars are that on 31 August 2019, without lawful authority or reasonable excuse, all 3 defendants knowingly took part in a public procession which took place in contravention of section 13 of the Public Order Ordinance which was an unauthorized assembly by virtue of section 17A(2)(a) of the same Ordinance.

The Facts

3.All 3 defendants agreed the Amended Summary of Facts. By way of background, it was agreed that from June 2019 there were many violent incidents that erupted during certain protest events including confrontations between members of the public and members of the Hong Kong Police Force.

4.The Civil Human Rights Front, “CHRF” had submitted a notification of an intention to hold a public meeting and procession on 31 August 2019.  They intended to hold a public meeting at Chater Garden, Central and then a public procession from Chater Garden to the Liaison Office of the Central People’s Government in the HKSAR.  The subject matter of the meeting and procession was anti-government and a demand for universal suffrage.

5.In light of the ongoing prevailing social unrest and violent incidents in the preceding weeks and having regard to the interests of public order, public safety and for the protection of the rights and freedom of others, the Commissioner of Police prohibited the holding of the public meeting and objected to the holding of the public procession.  There was an appeal that was dismissed.

6.After that, there was a call on line and amongst netizens appealing to the public to gather at Southorn Playground in Wanchai at around 12:30 pm on 31 August 2019 to participate in a “Pray for Sinners” procession.  They were to assemble at 12:30 pm and start a procession at 1 pm.  It was erroneously announced that a religious procession did not need police notification or permission.

7.They were to walk from the playground along Hennessy Road to Queensway to Upper Albert Road and to Government House.  They would make stops to pray for “sinners” at the Chinese Methodist Church in Wanchai then the Police Headquarters as well as St John’s Cathedral before proceeding to Government House.  The Commissioner of Police never received any notification from any person or organisation either pursuant to section 8 or 13A of the Public Order Ordinance.

8.On 30 August 2019 the Regional Commander of Hong Kong Island held a press conference and explained the reasons why the CHRF public meeting and the public procession was prohibited.  He also corrected the rumour that a religious procession was exempted under the Public Order Ordinance.  This news report was widely broadcast and printed in at least 13 media outlets. Annex 1 of the Summary of Facts contains those details.

9.An unauthorized assembly did take place on 31 August 2019.  By 12:35 pm, the 2^nd defendant was videoed assembled together with large crowds at Southorn Playground and chanting political slogans; anti-government and anti-police slogans.  The police use an amplifier and gave a “level 2A” warning to the crowds whilst a yellow warning flag was raised and displayed with the warning printed on it for all to see.  The crowd was warned that the meeting was an unauthorized assembly and they may be prosecuted for a criminal offence.

10.Instead of dispersing, some members of the crowd approached the police with hostility and verbally abused as well as insulted those officers present.  In order not to escalate rising emotions and to avoid any conflict, these police officers withdrew and return to Police Headquarters to guard that building and monitor the situation.

11.By 1 pm the crowds had swelled inside the Playground and by then the other 2 defendants, the 1^st and 3^rd defendants were present.  During the whole day the 3 defendants were almost, at all times, together during the meeting and procession.  The 3^rd defendant was holding a placard and interviewed by a reporter in the Playground.  He said that he knew the police had banned all marches that day but they had a right to march.  They wanted to gather and protest for the 5 demands.

12.At 1:30 pm the procession began and the 3 defendants with a large number of participants marched to the Chinese Methodist Church and stayed there for a while blocking the carriageways of Johnston Road and Fenwick Street.  They then marched to the Police Headquarters and blocked the junction of Fenwick Street and Hennessy Road as well as Lockhart Road and Arsenal Street.  The 3^rd defendant had to resort to directing traffic and reminding the crowds to beware of vehicles.

13.A 2^nd warning was given from the steps of the Police Headquarters in light of the traffic disruption and crowds on the carriageways. The police gave another warning verbally and displayed a yellow flag.  Despite this the defendants and others continued to occupy the carriageways.  They did not disperse.

14.The 1^st defendant was interviewed by reporters outside the Police Headquarters and stated he had come out that day in order to express the view that they would continue to fight for “5 demands”.  He did not answer the question when asked if he was worried he may be arrested for participating in a procession.

15.In total on 4 occasions “Level 2B” warnings were given from the steps of the Police Headquarters with yellow flags raised at the same time.  The 3 defendants together with hundreds then walked towards Queensway and occupied at least 2 carriageways outside Pacific Place making it difficult for vehicles to pass.  Again the 3^rd defendant had to direct traffic and the crowds with the assistance of the 2^nd defendant.

16.The 1^st defendant was interviewed again and said he was participating in the procession to show that Hong Kong citizens would not be intimidated by the actions of the police.

17.In the video footage when the defendants reached the junction of Garden Road and Queensway, the 2^nd and 3^rd defendants can be seen shouting at participants to go to St John’s Cathedral first.  The crowds occupied the carriageways and affected traffic again.  As participants followed directions, there was chanting of political slogans. The 3 defendants were last seen stood together outside St John’s Cathedral at about 2:25 pm singing religious songs.

18.From there, the police did not allow the procession to proceed towards Government House.  Whilst others in the procession proceeded up Garden Road to attempt to go to Government House, the 3 defendants were no longer seen in the procession.  The procession was directed away by the police.

19.At that point the police issued another verbal warning and raised a yellow flag.  Whilst these warnings were given, the police again were subjected to abuse and insults by participants of the procession.  There was even an attempt by a woman to break through the police cordon line but was unsuccessful.

20.All of the news footage and interviews as well as the police videos of the meeting at Southorn Playground and the public procession are attached to the Summary of Facts in Annex 2.  All the relevant videos identifying the defendants, what they said to the press and what they said in speeches and slogans is in Annex 2. MFI-4 is a record of all of the video footage and what was played in open court.

21.It was admitted that during the public procession the crowds with the defendants walked on carriageways which caused serious disruption to the traffic.  Vehicles including public transport were stuck on many roads around Wanchai, Queensway as well as Garden Road and Lower Albert Road.  In fact, the traffic on Garden Road was affected until 8 pm that night.

22.The 1^st defendant, Mr Lai Chee Ying and the 3^rd defendant, Mr Lee Cheuk Yan were convicted by me on 1 April 2021 of organising and knowingly taking part in a public procession which was an unauthorized assembly on 18 August 2019, only 14 days before the unauthorized assembly of this charge.

Mitigation and background information of the defendants

The 1^st defendant

23.The 1^st defendant is now 73 years old and has no previous convictions.  He was born in the Mainland and came to Hong Kong as a teenager by himself.  He started from humble beginnings working as a handyman in a factory to become a self-made and successful businessman.  He founded the retail brand Giordano.  He sold his shares in that to focus on the media industry in the 1990s.  He had by then founded “Next Digital Ltd” which later listed on the Hong Kong Stock Exchange.

24.He is married with 6 children and many grandchildren.  In mitigation I have been urged to take into account that he has through his businesses made significant contributions to the media industry and the economy in Hong Kong.  His more advanced age has been stressed as well as several medical conditions controlled by medication.  Written mitigation is at MFI-1.

The 2^nd defendant

25.The 2^nd defendant is 72 years old and on the date of this offence had no previous convictions.  After he was convicted of this sole charge on his own plea, he discharged his legal team to mitigate for himself.  It was confirmed that his plea was unequivocal before I released his legal representation.  Despite this, his counsel did inform me in open court that he was a Justice of the Peace and had been awarded the Silver Bauhinia Star in 2009.  He is a married man with children.  He was a teacher and then an Assistant Professor at the University of Hong Kong.  He is still an Honorary Assistant Professor now after retirement.  It is also well-known he served several terms as a Legislator and was actively involved with the Democratic Party and other pro-democracy parties.

26.It appeared his legal team was discharged because he did not want to put forward any mitigation.  He did however want to make a statement.  He read out in court a statement pertaining to why he broke the law, it is marked MFI-2.  He pleaded guilty but would not plead for leniency because he had no remorse nor did anything wrong.

27.His motivation was civil disobedience.  He wanted to protest against the Public Order Ordinance by means of civil disobedience.  He participated because the right of demonstration and procession is constitutionally guaranteed.  He also wanted to protest against the abuse of power by the police for prohibiting peaceful demonstrations and processions.  He therefore defied the law in the name of civil disobedience in a peaceful manner.  He had nothing to say in mitigation.

The 3^rd defendant

28.The 3^rd defendant is 64 years old and on the date of this offence had no previous convictions.  He was a politician and was a serving member of the Legislature for many years.  He founded and is still connected to the Labour Party.  He is now the General Secretary of the Hong Kong Confederation of Trade Unions and Vice-chairman of the Labour Party.

29.He graduated from the University of Hong Kong in 1978 with a civil engineering degree.  I have heard full mitigation, MFI-3, including a letter from the 3^rd defendant read out in open court.

30.He too admits he broke the law but his motivation was like the 2^nd defendant, civil disobedience.  He pleaded guilty but does not admit he has done anything wrong in affirming the rights of Hong Kong people to peaceful procession.  He too says he participated because the right of procession is constitutionally guaranteed.  He too defied the law in the name of civil disobedience in a peaceful manner.  I have read his letter and I know where he gets his inspiration from.

Mitigation

31.The 2^nd and 3^rd defendants do not express regret or admit wrongdoing because of their political beliefs or demands and are entitled to take or express this stance.  Their political beliefs or demands are not my concern in sentencing.  I have had the benefit of written submissions prepared by counsel and need not set it out here.

32.I do not agree with the submission in mitigation that they were just like any other participant that day answering a call to pray for sinners; that they were no different from any other person there.  The 3 defendants are well known and stood out from the crowd.  Protesters are seen following their directions as to traffic and route.

Civil Disobedience

33.The 2^nd and 3^rd defendants raise the concept of civil disobedience to justify their breaches of the law. This concept is recognised in the Courts of Hong Kong. The conscientious objections and genuine beliefs of a defendant may be taken into consideration as the motive for offending but the court will not evaluate the worthiness of any causes espoused by an offender. The weight to be attached to a motive will vary depending on the circumstances.

34.As the Court of Final Appeal said in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at para 75 that it is not the task of the courts to take sides on issues that are political or to prefer one set of social or other values over another. In any event, the act of civil disobedience here was not expressly directed towards section 17A of the Public Order Ordinance as an unjust law but was committed in the course of protesting against the government and the police over several issues.

Principles of Sentencing

35.There are no prevailing guidelines or tariffs for sentences for the present charge that existed at the time of the offence. The great majority of the past cases with a similar offence do either involve a bind over order or a financial penalty but none of those cases referred to stem from the social unrest and turmoil of 2019.

36.Public order offences have been established as an exception to the general principle that a deterrent sentence should not be passed on a person with a clear record and I have referred myself to page 13, lines 4-9 of R v Nguyen Quang Thong & Ors (1992) 2 HKCLR 10.  All defendants here had a clear record.

37.I have been referred to reasons for judgement arising from HKSAR v Chow Ting HCMA 374/2020, a bail application pending a magistracy appeal.  I thank the prosecution for a translation of those reasons.  There, Barnes J refused bail pending appeal for the applicant Chow Ting.  She had been sentenced to 10 months’ imprisonment for incitement to knowingly take part in an unauthorized assembly and knowingly taking part in an unauthorized assembly.

38.The facts of that case are set out in those Reasons for Judgement and involve large crowds of protesters gathering first in the vicinity of the Central Government Offices on 21 June 2019 before more crowds proceeded to besiege the Police Headquarters.  That was a day that ended in violence, conflict, damage to property, an attack on the police headquarters itself and its operation as well as severe traffic disruption until the early hours of the morning.

39.The relevance of that case and the Reasons for Judgement is because the learned Magistrate referred to the sentencing considerations and factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699; sentencing guidelines for offences of unlawful assembly.

40.Barnes J was only concerned with the application for bail pending appeal and not the appeal itself which is still to be heard but she did state the reasons why she found the applicant had failed to demonstrate that her appeal had a very high or reasonable prospect of success.  More importantly, and relied on heavily by the prosecution here is that she agreed with the learned Magistrate and found nothing wrong with her “drawing on” the sentencing factors in Wong Chi Fung when deciding a custodial sentence was appropriate and said it was clearly far from being wrong in principle.

41.Wong Chi Fung was an application for review for offences relating to unlawful assemblies.  In the context of unlawful assemblies involving violence, it was held by the court that the sentencing court’s main consideration is the punishment of the offender, as well as deterring others from breaking the law in a similar manner.  These are the weighty factors and the offender’s personal circumstances will not be regarded as significant mitigation.  The Court of Final Appeal endorsed those observations in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35.

42.The Court of Appeal found it necessary to expound on the principles on sentencing in unlawful assemblies that involved violence.  In paragraph 108 Poon JA, as he then was, set out the sentencing principles applicable to the charges.  Particularly, in paragraph 127 he stressed that the sentence imposed must be appropriate to the punishment of the offenders but also takes into account the factor of deterrence on the basic premise that public order must be maintained and reflects the gravamen of the offence of unlawful assembly.

43.In paragraph 135 he identified facts relevant and pertinent to unlawful assembly offences involving violence.  But before that Poon JA discussed not only unlawful assembly involving violence but also unlawful assembly involving no actual violence.

44.In the judgement of Secretary for Justice v Chung Ka Ho CAAR 4/2020 the Court of Appeal said at paragraph 53 it could be seen from Wong Chi Fung that cases that warrant the courts serious treatment include an unlawful assembly without actual violence, which could become imminent, given the overall circumstances.  Essentially, the Court of Appeal said it is artificial and unreasonable to divide unlawful assemblies by violence when passing sentence; it all depends on the actual circumstances in each case.  Equally, the Court of Appeal did not say deterrent sentences should not be imposed in the absence of actual violence.

45.The Court of Appeal in Chung Ka Ho at paragraph 55 point out that the factors identified by Poon JA in paragraph 135 in Wong Chi Fung can if adjusted, apply equally to unlawful assemblies with no violence.  Therefore, it is not right to suggest that the judgement in Wong Chi Fung is solely applicable to unlawful assembly involving violence.

46.Although Wong Chi Fung involved an unlawful assembly involving violence, Barnes J saw nothing wrong with the magistrate drawing on the sentencing considerations because the charges in both Wong Chi Fung and Chow Ting were contrary to the Public Order Ordinance.  Secondly the maximum penalty for those offences in those cases were the same.  Thirdly both cases were of a similar nature in that they involved crowd gatherings and lastly those demonstrations and gatherings arose from social issues.

47.Although this case before me involves an unauthorized assembly on 31 August, if I take into account the overall circumstances, the social unrest witnessed from June 2019 that was as relentless as it was violent and disturbing then I find I can consider sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung. I too can draw on the sentencing principles in that authority but bear in mind this charge involves an unauthorised not an unlawful assembly.

48.The facts of this case and offence affected the public; members of the public not participating.  There was traffic disruption and carriageways were blocked.  By listing as a principle “meting out penalties”, the Court of Appeal were reiterating the obvious and that is any sentence imposed ought to be commensurate with the offence committed.  One that reflects the seriousness of the offence and the culpability of the offender.  The open condemnation factor is self-explanatory, the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender.  

49.The factor of deterrence serves as a warning to others and prevents the offender from reoffending. The need for deterrent sentences cannot be limited to an unlawful assemblies or more serious public order offences. The need to consider a deterrent sentence will often depend on the prevailing circumstances at the time. In fact, all sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation of 2019.

50.The fact I draw on the aforesaid sentencing principles does not mean I am retrospectively imposing a more severe sentence based on new sentencing guidelines from the Court of Appeal in Wong Chi Fung.

Reasons for Sentence

51.This unauthorized procession was peacefully but we know from experience, in particular in those volatile months in 2019 that when a large number of demonstrators gather, emotions are likely to run high which means those situations have an inherent risk of breaking out into violence.

52.It is a serious factor that despite that risk and knowing the Commissioner of Police had banned all meetings and processions of the CHRF that day and why, the defendants went to join with others in Southorn Playground to participate in a procession and ignore the ban and reasons for it.

53.An unauthorized assembly was planned in advance to protest against the government and the police, calling it a “Pray for sinners” march.  All 3 defendants made a conscious decision to take part in it and to then deliberately ignore all the police verbal warnings and flags telling them to disperse or face prosecution.

54.It was deliberately provocative and inflammatory, in light of the prevailing social unrest and previous attacks on the Police Headquarters to specifically march there.  The Police Headquarters was not a church so the insinuation according to the theme and route of the procession was that the police were sinners.

55.Their decision to participate and their decision to ignore the numerous police warnings, because of who they are, may have encouraged others to participate and believe they can break the law with impunity.  People can be influenced by their peers to adopt certain behaviour and follow certain actions. Influential people can draw a crowd and can wield a certain influence.

56.This is why after careful consideration of the above principles and factors; I find an immediate term of imprisonment the only appropriate sentencing option. This offence was committed deliberately and intentionally at a time when there were incidents of social unrest almost daily. They chose to participate in yet another unauthorised assembly with a significant crowd when they must have known the chances were high of more violence erupting.

57.The background and facts of this case call for a custodial sentence. I have referred myself to Wong Chi Fung at paragraph 172 where what Pang JA said is applicable to this case and the circumstances that were prevailing in Hong Kong at that time. That is even though the charge was more serious. I quote;

“172. I agree with the judgements of Yeung VP and Poon JA. The more one feels about an issue, the more one wishes to press one’s point and the more one desires that there should be progress in the matter. This is all very understandable. However, if in the course of advocating one’s demand, one is given to the position that some long and well established law is but an unreasonable restriction on the right to freedom of expression, plus indulging one in the self-satisfaction of having broken the law as one pleases, that is not a situation which would on any ground enable the courts to pass unduly lenient sentences. An offender who is inflicted with such an attitude not only breaks the law in conduct, but in his mind too he harbours contempt and regards himself as being above the law. With respect to controversial matters of public debate where emotions are easily stirred, the grave consequences of such an attitude gaining ground are self-evident. …”

Starting Point and Sentence

58.I have taken into account all mitigation put forward on behalf of the defendants and although the 2^nd defendant did not put forward any personal mitigation for the court to consider, I did have information placed before me pertaining to his positive good character.

59.I have borne in mind the offence, facts of the case and the relevant sentencing principles referred to above in particular deterrence. I stress the fact this offence was committed deliberately and intentionally at a time when there were frequent and prevailing incidents of social unrest and violence. It was a direct challenge to law and order despite a ban from the Commissioner of Police.

60.After all matters are taken into consideration including the fact the procession was peaceful, in my judgement, the starting point of 12 months’ imprisonment is appropriate.

61.All defendants indicated their pleas less than a week before their trial commenced. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% to the starting point for their pleas. This reduces the starting point to a sentence of 9 months’ imprisonment.

62.That discount for a guilty plea has an allowance for a clear record built into it. Unless there is more, such as evidence of positive good character then, there should be no further discount for a clear record. All the defendants here had a clear record at the time of the offence.

The 1^st defendant

63.The 1^st defendant is 73 years old. I have heard mitigation relating to that and his health. I will give the 1^st defendant a further reduction of one month for these factors which would bring the sentence down to 8 months’ imprisonment.

64.I can see no reason to reduce that sentence any further. Therefore, I sentence the 1^st defendant to 8 months’ imprisonment.

The 2^nd defendant

65.The 2^nd defendant is 72 years old. I will give the 2^nd defendant a further reduction of one month for that factor. This brings his sentence down to 8 months’ imprisonment.

66.He wants no leniency from this court as he says his actions were to protect his right of assembly and an act of civil disobedience. Certainly the civil disobedience was non-violent. I have taken account what he said in MFI-2 but much of his statement and grievances relate to what happened in Hong Kong after he committed this offence.

67.Other than his service as a Legislator for many years, the 2^nd defendant is known for his dedication to education and social work especially at the grassroots level. His Silver Bauhinia Star Award under the honours system of Hong Kong means he was recognised for either taking a leading role in public affairs or voluntary work over a long period of time for the good of Hong Kong.

68.I find that award to be evidence of exceptional public service and commitment therefore, that fact as well as his age gives me a valid reason to suspend that 8-month term of imprisonment.

69.I sentence the 2^nd defendant to 8 months’ imprisonment suspended for 12 months.

70.The 2^nd defendant is warned that if he is convicted of an offence punishable by imprisonment in the following 12 months from today then he will almost certainly serve this term of 8 months.

The 3^rd defendant

71.The 3^rd defendant is 64 years old. From information received, I have considered his commitment and contribution to public service especially where the welfare of workers is concerned. Such service deserves recognition and for that I give the 3^rd defendant a further discount of 3 months.

72.I can see no reason to reduce that sentence any further. Therefore, I sentence the 3^rd defendant to 6 months’ imprisonment.