HKSAR v. Lai Chee Ying and Others

DCCC 536/2020

[2021] HKDC 457

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 536 OF 2020

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REASONS FOR SENTENCE

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1.I delivered my verdict on 1 April 2021 and convicted all defendants except D7 and D9 after trial of organising an unauthorised assembly under section 17A(3)(b)(i) and knowingly taking part in an unauthorised assembly under section 17A(3)(a) of the Public Order Ordinance, Cap 245, Charges 1 and 2.

2.D9 had indicated his intention to plead guilty to these 2 charges at the earliest opportunity and I convicted him after his plea on the 1^st day of trial.  His mitigation and sentence was adjourned until the end of the trial.

3.D7 indicated his plea of guilty to charge 2 after the trial was set down but before the 1^st day commenced.  The prosecution did not proceed with charge 1 and it was kept on the court file.  D7 was convicted of charge 2 on the 1^st day of trial.  His mitigation and sentence was adjourned until the end of the trial.

The facts

4.My findings of fact are set out in full in my verdict.  I do not intend to repeat the facts of the case nor my findings.

5.I found that the defendants had organised and knowingly taken part in a public procession from Victoria Park to Chater Road Central on 18 August 2019 when that public procession had been objected to by the Commissioner of Police and that objection upheld by a subsequent Appeal Board hearing.

6.I found the public procession constituted an unauthorised assembly by consisting of more than 30 people and being organised for a common purpose which was to “stop the police and gangsters from plunging Hong Kong into chaos, implement the 5 demands”.

7.All the defendants organized and formed the head of a procession carrying a long banner displaying the common purpose and led thousands of participants from Victoria Park at about 3pm to walk to Chater Road.  The timing of it and the route they took mirrored the public procession banned by the Commissioner of police.

8.I found the defendants deliberately defied the law and circumvented the ban by alleging they acted on the invitation and instructions of the organisers of the authorised public meeting in Victoria Park, the Civil Human Rights Front, the CHRF, to assist in their dispersal plan of participants.  The CHRF had described their method of dispersal of participants as a water flow meeting for the sole purpose of facilitating the ingress and egress of participants only.

9.I found the defendants had no reasonable excuse or lawful authority for taking part in an unauthorised assembly.  I found no evidence of police tacit consent or implied authority for the CHRF to handle the dispersal of participants in this manner.

10.I found it was not a dispersal plan implemented with the assistance of the defendants but a planned unauthorised assembly to challenge the authority of the Police.  It was planned in advance, announced in advance but those interviewed stopped short of admitting a plan to break the law.  Nevertheless, what was said very publicly before the 18 August and what was organised on 18 August was irrefutable evidence when viewed as a whole of a premeditated intention to commit these offences.

11.This intention was succinctly verbalised by a Hong Kong-based singer and actress interviewed by a news channel immediately after the banner was laid down by the defendants on Chater Road outside the Court of Final Appeal at what was declared as the end of the procession.  In exhibit P35, a media outlet “HK01” interviewed this participant in the procession at 4:48pm and she explained the procession was a way to get around the ban.

12.This interviewee said there was no choice but to use a different method if a public procession was not allowed.  She said it showed how flexible and elastic Hong Kong people were if banned.  It was not a public procession but only people leaving Victoria Park. She was not speaking for the defendants but it shows a participant knew it was not a dispersal plan for safety reasons.

13.I found the unauthorised assembly caused citywide traffic disruptions and road closures far beyond the vicinity of Victoria Park and the authorised public meeting.  The evidence I accepted which was not disputed showed road closures late into the evening that would have affected traffic and road users.  Many forms of public transport were either disrupted or diverted on both sides of the Harbour.

14.The Constitutional challenges on a systemic and operational level also failed.  There was no successful challenge to the constitutionality of section 17A or its sanctions.  There was no action taken on the day by the police that was excessive or without tolerance in mind.

15.I have heard full mitigation on behalf of all the defendants.  The reality is that for all of these defendants before me, bar none, their reputations and careers are well known to all in Hong Kong.  Many have provided me with a significant number of mitigation letters.  I have read and taken them into account. 

Background information of the defendants

The 1^st defendant

16.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. His mitigation submitted is at MFI-10.

17.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.

The 2^nd defendant

18.The 2^nd defendant is 64 years old and has no previous convictions.  He graduated from the University of Hong Kong in 1978 with a bachelor of civil engineering degree. He was a politician and was a serving member of the legislature for many years.  

19.He founded and is still connected to the Labour Party.  He is now the general secretary of the Hong Kong Federation of Trade Unions and vice chairman of the Labour Party. His background and career in public service was provided to me in mitigation in open court.

The 3^rd defendant

20.The 3^rd defendant is 73 years old and she has no previous convictions.  She is a barrister and politician who devoted 18 years to public service and the legal functional constituency. She is also a well-known journalist and author in Hong Kong. After retirement from the legislative Council in 2012 she dedicated her time to fighting for racial equality, serving the underprivileged, ethnic minorities and in particular, seeking equitable education for ethnic minority children.

21.To pursue those aims and give her time to those causes, the 3^rd defendant has been a member and then Chair of the Executive Committee of Hong Kong Unison. I have had many letters of mitigation from highly respected members of the Hong Kong community. They make for impressive reading. Her mitigation submitted is at MFI-11.

22.She decided to discharge her legal representatives before mitigation and spoke for herself. I have taken on board all she has said. A copy of what she said is at MFI-11A.

The 4^th defendant

23.The 4^th defendant is now 65 years old.  He too has been a member of the legislative Council for 12 years.  He has many previous convictions, 17 in total with 3 similar to charges 1 and 2.  All his other criminal convictions involve offences of a similar nature and many relate to public order offences.  None of his previous convictions were offences motivated by greed, corruption, anger or dishonesty.

24.I have had sight of a radiologists report detailing the results of a calcium scoring and CT coronary angiography. There is no medical diagnosis obviously in this report but I have been told that two out of three heart blood vessels have blockages and he is on medication now. His mitigation submitted is at MFI-12.

The 5^th defendant

25.The 5^th defendant is now 66 years old and she has no previous convictions.  She is a former legislator with many years’ service as well as a founding member of the Labour Party. She was appointed a Justice of the Peace in 2014. She too has devoted years to public service and I have had sight of numerous letters containing details of her commitment and support of many diverse sectors of society, from education resources for underprivileged children to sexual inequality. Her mitigation submitted is at MFI-13.

The 6^th defendant

26.The 6^th defendant is now 69 years old and has no previous convictions.  He is a solicitor and founder of his own firm as well as a seasoned politician.  He too is a former district councillor and legislative councillor with over 20 years’ service and has been a core member of the Democratic party.

27.He has campaigned for democracy and human rights for nearly 40 years and it is stressed always in a peaceful, rational and nonviolent manner. In written submissions the full details of his long career and commitment to public service is set out succinctly. His mitigation submitted is at MFI-14.

The 7^th defendant

28.The 7^th defendant is now 67 years old, pleaded guilty to charge 2 and has no previous convictions.  He has served a lifetime of community and public service.  The mitigation bundle prepared is detailed and contains a chronology of his career as a teacher, district board member then a member of the legislative Council.  His contributions to Hong Kong and his campaigning for the underprivileged and minority groups are well-known.  I have read the many impressive letters written on his behalf by respectable members of Hong Kong society from all walks of life.

29.The defendant is not a man who advocates violence.  This is illustrated by a video of news footage of 1^st July 2019 (Annex 3 of his mitigation bundle MFI-15) where he tries to get between rioters trying to break the glass doors of LEGCO.  He opposed the attempt to enter the Legislative Council and tried to stop the crowds by standing in front of the glass doors but is bundled aside by black clad rioters.

The 8^th defendant

30.The 8^th defendant is 2 months’ shy of 83 years old and has no previous convictions.  He is a leading Senior Counsel and served as the Chairman of the Hong Kong Bar Association. He is infamous for his distinguished legal career and pro bono work. He served as a member of the Hong Kong Basic Law Drafting Committee. He was one of the longest serving members of the Legislative Council; a service of over 22 years.  

31.He has devoted much time and effort in serving the public and his constituency.  He, like all the defendants here, is committed and dedicated to democracy and human rights. His mitigation submitted is at MFI-14.

The 9^th defendant

32.The 9^th defendant is now 33 years old and had no previous convictions at the time of the offence.  I repeat he indicated his plea of guilty at the very earliest opportunity.  He was a district councillor for 8 years and briefly a member of the Legislative Council as well as a lecturer in many tertiary educational institutions in Hong Kong.  There are many letters of mitigation from friends and colleagues; they stress his public and community service should not be ignored. Many stress his peaceful, non-violent approach and principles. It is submitted his academic and social achievements are especially noteworthy as he is only 33 years old.

33.His substantial efforts in pursuing a career in academia and politics appear to be fading with his recent conviction of assaulting a police officer and other pending criminal charges. In his own mitigation letter he explains why he pleaded guilty, why he will no longer seek a career in politics and how he will seek to rebuild his life away from political activism. His mitigation submitted is at MFI-16.

Mitigation

34.I have heard full mitigation in open court and have the benefit of submissions prepared by counsel and need not set it out here.  

35.All defendants submit that these charges and facts do not call for a custodial sentence.  There are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies.  It has been suggested that previous cases with similar charges have attracted financial penalties.

36.The call for a financial penalty is supported by the submission that the procession was peaceful with no violent incidents or conflicts arising. Severe sanctions are inappropriate and disproportionate. The disruption to the roads and public transport system was not severe nor wholly related to the unauthorised assembly.  Much of the traffic congestion around Victoria Park was related to the authorised public meeting.

Principles of Sentencing

37.It is correct there are no prevailing guidelines or tariffs for sentences for the present charges. The great majority of the past cases with similar offences do either involve a bind over order or a financial penalty but none of those cases I have been referred to by the defence stem from the social unrest and turmoil of 2019 or anything like it.

38.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 of R v Nguyen Quang Thong & Ors (1992) 2 HKCLR 10.  All defendants here but the 4^th defendant had a clear record.

39.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 unauthorised assembly and knowingly taking part in an unauthorised assembly.

40.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.

41.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.

42.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.  

43.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 for an unauthorized assembly and said it was clearly far from being wrong in principle.

44.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.

45.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.

46.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.

47.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.

48.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.

49.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.

50.Although this case before me involves an unauthorised assembly on 18 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 and should 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 these charges involve an unauthorised not an unlawful assembly.

51.The facts of this case and offences affected the public; members of the public not participating.  There was widespread traffic and public transport disruption.  By identifying 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.  

52.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 assembly 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.

53.The fact that 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

54.I repeat here as I said in my verdict that the Basic Law guarantees freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional. Those freedoms are enjoyed subject to those restrictions irrespective of a defendant’s politics. The common purpose of the procession as well as the politics and stance of any participant that day on 18 August 2019 are irrelevant to sentencing just as they were irrelevant to the legal issues that arose during the trial.

55.This unauthorised procession did proceed 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 latent risk of breaking out into violence.

56.We know from the prosecution witnesses that the police were most concerned that unruly elements may be present amongst peaceful protesters who would seize the opportunity to achieve the very objective of inciting or brewing violence. The police then decided to be invisible so as not to provide an opportunity or an excuse for conflict.

57.The present case involved a direct challenge to the authority of the police, law and order.  The Commissioner of Police had banned a public procession and a 2^nd public meeting but authorised a meeting in Victoria Park.  In a police conference an explanation was given why consent was not forthcoming to the CHRF.  

58.Yet, despite that and the risk above, the defendants went on to organise it; all defendants were well known figures that together as the head of a procession were guaranteed to draw a crowd and followers. Influential people can draw a crowd and can wield a certain influence.

59.The fact that these particular defendants made a conscious decision to break the law and challenge public order in this manner during such volatile times was serious.  That I find an aggravating factor or the gravamen of these facts I found proved.  Actions have consequences for everyone irrespective of who they are. This is more so when I have a duty in sentencing to ensure public order.

60.In addition, I take into account the background behind the commission of these offences. I take into account my finding that the unauthorised assembly was premeditated with prior planning to thwart the police ban.  It was made known that there was a plan to circumvent the ban despite calling the procession a dispersal plan or water flow meeting.  There were many prior calls publicly for as many people as possible to jam pack Victoria Park and to participate in this water flow meeting.  It was no coincident that the dispersal plan mirrored the timing and route of the banned procession.

61.The scale of the unauthorised assembly is relevant; the procession from Victoria Park to Chater Gardens was on a massive scale and long-lasting. That is notwithstanding I accept there would have been disruptions in the vicinity of Victoria Park from the authorized public meeting. Moreover, as I have noted above, taking into account the circumstances prevailing in Hong Kong at that time, a procession of that size posed an inherent latent risk of possible violence.

62.Therefore, the procession may have been peaceful but there was a significant degree of disruption to roads for hours and public transport routes that stretched across the harbour.

63.As a result, and after careful consideration of the above principles and factors as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.

64.The fact all but the 7^th and 9^th defendant were convicted after trial as well as being a premeditated and direct challenge to law and order when emotions were running so high in Hong Kong means a community service order would not be appropriate.

65.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 there 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…”

66.I have taken into account the facts, the mitigation and all submissions put forward on behalf of all defendants. I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.

67.Having said that, where applicable and because it was a peaceful assembly, the positive good character of some defendants, the even more significant and worthy public service from others will be taken into account. It is impossible to list the individual significant commitment and contributions of some to the law, society, children, the underprivileged, minority groups, education issues, sexual and racial equality but it is weighty.

68.I also say here that I intend to make the sentences for Charges 1 and 2 concurrent for every defendant in light of the facts, close nature of the charges and totality principle.

Charge 1 – Starting Point

69.To arrive at an appropriate starting point for charge 1, organising an unauthorised assembly, I do differentiate between some of the defendants. I made it clear in my verdict that the evidence showed that the 2^nd, 4^th and 9^th defendant appeared at press conferences, either immediately after the CHRF appeal was dismissed or the following day, 17 August 2019, in Victoria Park and were very vocal. I won’t repeat what they said but I found they encouraged crowds to come to “jam pack” Victoria Park and insinuated there would be a procession out of there despite the police ban. What they and in particular, the 4th defendant had to say almost amounted to a rallying cry.

70.After all relevant factors are taken into consideration, in my judgement, for the 2^nd, 4^th and 9^th defendant a starting point of 18 months’ imprisonment is appropriate.

71.For the remaining defendants, in my judgement, a starting point of 15 months’ imprisonment is appropriate.

Charge 2 - Starting Point

72.I find all defendants equally culpable in knowingly taking part in this unauthorised assembly. It is true some walked in silence, some replied to political slogans and others took the lead to chant those slogans but I do not differentiate between them for the purposes of this offence.

73.After all relevant factors are taken into consideration, in my judgement, a starting point of 12 months’ imprisonment is appropriate.

Reductions

74.I am aware that a clear record is not significant mitigation where public order offences are concerned nor are personal mitigating circumstances where deterrent sentences are to be imposed. Nevertheless, in light of the more advanced ages of most of the defendants here and their public service to Hong Kong, I cannot ignore this type of mitigation altogether.

The 1^st defendant

75.I have considered his age, clear record and health issues. The 1^st defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.

76.Therefore, the 1^st defendant is sentenced to 12 months’ imprisonment for charge 1 and 9 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.

The 2^nd defendant

77.I have considered his age and clear record. For that, the 2^nd defendant is given a three-month reduction from the 18 months and 12 months of charges 1 and 2 respectively.

78.From information provided today, 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 2^nd defendant a further discount of 3 months.

79.Therefore, the 2^nd defendant is sentenced to 12 months’ imprisonment for charge 1 and 6 months’ imprisonment for charge 2, to be served concurrently; a total of 12 months’ imprisonment.

The 3^rd defendant

80.I have considered her age of 73, clear record as well as her exceptional and obvious commitment over decades to public service. Not only is she a person of positive good character, but an altruist; her dedication to the community when a legislator and in her retirement is worthy of note. I am impressed by the letters referring to her lifelong dedication and contributions.

81.Against that background of her age and exceptional public service, I find there to be valid reason and justification to suspend the terms of imprisonment I have imposed. I first reduce the 15 months of charge 1 and 12 months of charge 2 by 3 months.

82.After that reduction is applied, the 3^rd defendant is sentenced to 12 months for charge 1 and 9 months for charge 2. Both to be served concurrently. Both those sentences are suspended for 24 months.

83.Therefore, the 3^rd defendant is sentenced to a total of 12 months’ imprisonment suspended for 24 months.

84.The 3^rd defendant is warned that if she is convicted of an offence punishable by imprisonment in the following 24 months from today then she will most certainly serve this twelve-month term of imprisonment.

The 4^th defendant

85.I have considered his age and health. It appears his ailment is under control with medication; I am not informed otherwise. The 4^th  defendant has a good number of previous convictions; he does not have the benefit of a clear record. However, I have considered the nature of his previous convictions and do not impose a heavier sentence on the 4^th defendant on account of his criminal record.

86.What it does mean is that I see no reason to reduce the sentences any further. Therefore, for the reasons given, the 4^th defendant is sentenced to 18 months’ imprisonment for charge 1 and 12 months’ imprisonment for charge 2, to be served concurrently; a total of 18 months’ imprisonment.

The 5^th defendant

87.I have considered her age and clear record. The 5^th defendant is given a three-month reduction from the 15 months and 12 months of charges 1 and 2 respectively.

88.From the information I have, she too can be described as a person of positive good character. By that I mean she has devoted many years to public service and I have had sight of letters containing details of her commitment. Such commitment does deserve recognition and I reduce the sentences by a further 4 Months.

89.Therefore, the 5^th defendant is sentenced to 8 months’ imprisonment for charge 1 and 5 months’ imprisonment for charge 2, to be served concurrently; a total of 8 months’ imprisonment.

The 6^th defendant

90.I take into account the 6^th defendant is nearly 70 years old with a clear record. Like so many others here, he has had a long history of public service and can be described as a person of positive good character. His biography sets out his long career and commitment to the community. I accept the submission he has always acted in a peaceful, rational and nonviolent manner. Even though he has been physically attacked twice in 2006 and 2019 for his politics he did not let it deter him.

91.Again, his commitment does deserve recognition and although his service and therefore positive good character may not be as notable and exceptional as the 3^rd and 8^th defendant, I find there to be valid reason and justification to suspend the terms of imprisonment I have imposed.

92.For that and his age, I first reduce the 15 months of charge 1 and 12 months of charge 2 by 3 months. After that reduction is applied, the 6^th defendant is sentenced to 12 months for charge 1 and 9 months for charge 2. Both to be served concurrently.

93.Both these sentences are suspended for 24 months. Therefore, the 6^th defendant is sentenced to a total of 12 months’ imprisonment suspended for 24 months.

The 7^th defendant

94.The 7^th defendant pleaded guilty to charge 2 only. It was not at the earliest opportunity and I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and will apply a discount of 25% to the starting point of 12 months for his plea. This reduces the starting point to 9 months’ imprisonment.

95.That discount for a guilty plea has an allowance for a clear record built into it. Unless there is more, then there should be no further discount for a clear record. However, I will give the 7^th defendant a further 1-month reduction for his age.

96.Not only is he a person of clear record but also of positive good character. He showed uncompromising dedication to the community as a legislator. I am impressed by the so many letters referring to his lifelong commitment and contributions. He has worked tirelessly for so many different causes and different groups ranging from women’s groups, the elderly, the blind, the rehabilitation of prisoners to assistance for children with special educational needs and even successfully campaigning for the presence of doctors in hospital delivery rooms at night to ensure the safety of mothers in labour and newborns.

97.Against that exceptional background and the biography provided, I find there to be a valid reason and justification to suspend the term of imprisonment I have imposed.

98.Therefore, for Charge 2, the 7^th defendant is sentenced to a total of 8 months’ imprisonment suspended for 12 months.

99.The 7^th defendant is warned that if he is convicted of an offence punishable by imprisonment in the following 12 months from today then he will most certainly serve this 8-month term of imprisonment.

The 8^th defendant

100.The 8^th defendant is nearly 83 years old. Not only is he a person of positive good character but his dedication to the community as a legislator is without doubt and well-known. I am impressed with the biography prepared which demonstrated his commitment to work for and his devotion to the betterment of Hong Kong.

101.Against that background of his age and exceptional public service, I find there to be valid reason and justification to suspend the terms of imprisonment I have imposed. I first reduce the 15 months of charge 1 and 12 months of charge 2 by 4 months to reflect his age.

102.After that reduction is applied, the 8^th defendant is sentenced to 11 months for charge 1 and 8 months for charge 2. Both to be served concurrently. Both those sentences are suspended for 24 months.

103.Therefore, the 8^th defendant is sentenced to a total of 11 months’ imprisonment suspended for 24 months.

104.The 8^th defendant is warned that if he is convicted of an offence punishable by imprisonment in the following 24 months from today then he will most certainly serve this 11-month term of imprisonment.

The 9^th defendant

105.The 9^th defendant pleaded guilty at the earliest opportunity to both charges. He is entitled to a discount of one-third and after that discount is applied, the starting points are reduced to 12 months for charge 1 and 8 months for charge 2.

106.He is a young man who unlike most of the defendants here was only beginning to develop his career; in particular, a career in academia. He tells me that that dream will be hard to pursue now in light of his present circumstance and recent convictions.

107.Although he is only 33 he has already served as a district councillor for 8 years. There are many letters of mitigation from friends and colleagues who stress his contributions to public and community service so far should not be ignored.

108.I agree. The 9^th defendant is given a further 2 months’ discount to reflect and recognise that contribution.

109.Therefore, he is sentenced to 10 months’ imprisonment for charge 1 and 6 months’ imprisonment for charge 2, to be served concurrently; a total of 10 months’ imprisonment.

Conclusion

110.Charge 1

1^st defendant sentenced to 12 months’ imprisonment.

2^nd defendant sentenced to 12 months’ imprisonment.

3^rd defendant sentenced to 12 months’ imprisonment.

4^th defendant sentenced to 18 months’ imprisonment.

5^th defendant sentenced to 8 months’ imprisonment.

6^th defendant sentenced to 12 months’ imprisonment.

8^th defendant sentenced to 11 months’ imprisonment.

9^th defendant sentenced to 10 months’ imprisonment.

111.Charge 2

1^st defendant is sentenced to 9 months’ imprisonment.

2^nd defendant sentenced to 6 months’ imprisonment.

3^rd defendant sentenced to 9 months’ imprisonment.

4^th defendant sentenced to 12 months’ imprisonment.

5^th defendant sentenced to 5 months’ imprisonment.

6^th defendant sentenced to 9 months’ imprisonment.

7^th defendant sentenced to 8 months’ imprisonment, suspended for 12 months.

8^th def sentenced to 8 months’ imprisonment.

9^th def sentenced to 6 months’ imprisonment.

112.Charges 1 and 2 to be served concurrently for the 1^st, 2^nd ,4^th, 5^th, 9^th defendants.

A total of 12 months for 1^st defendant and 2^nd defendant.

A total of 18 months for 4^th defendant.

A total of 8 months for 5^th defendant.

A total of 10 months for 9^th defendant.

113.Charges 1 and 2 to be served concurrently for the 3^rd, 6^th and 8^th defendants and suspended for a term of 24 months.

A total of 12 months suspended 24 months for the 3^rd and 6^th defendants.

A total of 11 months suspended for 24 months for the 8^th defendant.