HKSAR v. Tai Yiu Ting and Others
Read the full judgment text of CACC 128/2019 on BabelCite. This Court of Appeal judgment was delivered on 30 April 2021.
1. In this matter, we shall refer to the applicants generally and, where necessary, to individual applicants by their trial designations.
Cited by 5 cases · Cites 9 cases
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CACC 128/2019 [2021] HKCA 630 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 128 OF 2019 (ON APPEAL FROM DCCC NO 480 OF 2017) ________________________
________________________ Before: Hon Macrae VP, M Poon J and A Pang J in Court Dates of Hearing: 2, 3 and 4 March 2021 Date of Judgment: 30 April 2021 ________________________ J U D G M E N T ________________________ Hon Macrae VP (giving the Judgment of the Court): A. Introduction 1.In this matter, we shall refer to the applicants generally and, where necessary, to individual applicants by their trial designations. 2.In March 2013, D1, D2 and D3 (who were also referred to at trial and in this appeal as “the Trio”) initiated or launched a campaign[1], which would lead to a mass protest movement known as the “Occupy Central Movement”[2], resulting in the actual occupation of Central commencing in the early hours of 28 September 2014. The three applicants were jointly charged with conspiracy to commit public nuisance[3] (Charge 1). Together with D4, D5, D6 and D7, they were further jointly charged with incitement to commit public nuisance[4] (Charge 2); and incitement to incite public nuisance[5] (Charge 3). D8 faced two charges: incitement to commit public nuisance (Charge 4) and incitement to incite public nuisance (Charge 5); whilst D9 faced a single charge of incitement to commit public nuisance (Charge 6). In respect of these various charges, all applicants pleaded not guilty and stood trial together before HH Judge Johnny Chan (“the judge”) in the District Court. 3.On 9 April 2019, the judge convicted the applicants of the respective charges they faced; save that D1 and D2 were acquitted of Charge 3, and D3 was acquitted of Charges 2 and 3. 4.On 24 April 2019, the judge dealt with the sentencing of all applicants, save for D4, who was separately sentenced on 10 June 2019, and passed sentences ranging from immediate imprisonment to suspended terms of imprisonment to a Community Service Order. D1 and D2 were each sentenced to 16 months’ imprisonment; D3 also received 16 months’ imprisonment, but the term was suspended for 2 years; D4, D7 and D9 received sentences of 8 months’ imprisonment suspended for 2 years[6]; D5 and D8 were each sentenced to 8 months’ imprisonment; while D6 was made the subject of a Community Service Order. 5.All applicants have sought leave to appeal against their convictions, whilst D1, D2, D5 and D8 originally sought leave to appeal against their sentences as well. However, D2 and D5 have since abandoned their applications in respect of sentence, which had already been formally dismissed prior to the hearing of this appeal[7]. 6.Given the complexity of the facts and issues in the case, the number of grounds of appeal (some of which involved questions of law only and did not, therefore, require leave to appeal) and the fact that there were altogether nine applicants, each separately represented (save for D2 and D3, who were jointly represented), the applications for leave to appeal against both conviction and sentence were ordered to be heard at the same time as the hearing of the appeals before this Court. Accordingly, a 3-day appeal hearing was fixed to commence on 24 February 2020. 7.Unfortunately, owing to the General Adjourned Period occasioned by prevailing public health concerns, the original hearing had to be vacated and was subsequently re-fixed, in consultation with the diaries of counsel, to 2, 3 and 4 March 2021. Having heard arguments from the parties on those dates, this Court indicated that it would reserve judgment on all matters of which it was seized. This is the judgment of the Court on both conviction and sentence, and the reasons therefor. B. The background to the Occupy Central Movement 8.At a press conference on 27 March 2013, D1, D2 and D3 formally announced a campaign, which was aimed at achieving their advocated form of universal suffrage for the election of the Chief Executive of Hong Kong in 2017. A critical stage of the campaign involved the launch of the Occupy Central Movement, pursuant to which some areas in Central were to be occupied, or obstructed, by a large number of protestors. 9.On various occasions between April and October 2013, the Trio, either individually or collectively, continued to introduce their campaign to the public[8]. These included their joint participation in a radio programme on 30 April 2013; in a deliberation at the University of Hong Kong on 9 June 2013; at a public gathering in Chater Garden, Central on 1 July 2013; and, by D3 on his own, at a street forum between June and October 2013[9]. 10.On 31 August 2014, the so-called “831 decision”[10] was announced, and a number of protests were held in its wake. In particular, two public meetings (not the subject of any police objection) were held at Tim Mei Avenue between 26 and 27 September 2014[11], which were not organised by the applicants; while another meeting (the subject of a police objection) was to be held in Central from 1 to 3 October 2014[12], pursuant to a notification to the police filed by D3 on 18 September 2014[13]. As events developed, this particular meeting did not take place, at least in the way it was originally intended. 11.Between 26 and 27 September 2014, a large number of protestors assembled at, and in the vicinity of, Tim Mei Avenue[14]. It may be noted that Tim Mei Avenue forms part of Central and Western District, one of the four districts on Hong Kong Island[15], according to the official guide produced by the Survey & Mapping Office of the Lands Department of the Hong Kong Government. The following ensuing events are relevant to the issues before us.
12.It was against the background of these events that, in the early hours of 28 September 2014, the Trio appeared on the main stage at Tim Mei Avenue. A formal declaration that the Occupy Central Movement had commenced was made by D1 at 1:36 am on 28 September 2014[23]. It was as a result of the words (or statements, speeches and utterances, as the judge also termed them) used to address the protestors by, or in the presence of, D1, D2, D3, D4, D5, D6 and D7 at Tim Mei Avenue between 27 and 28 September 2014, that Charges 2 and 3 arose. 13.It was as a further result of the words used by D8 to address protestors at Fenwick Pier Street, and those by D9 to address protestors at Harcourt Road, on 28 September 2014, that Charges 4, 5 and 6 also arose. C. The prosecution case C.1. Charge 1 (against D1, D2 and D3) 14.Charge 1 averred that, between a day in March 2013 and 2 December 2014, the Trio conspired together and with other persons to cause public nuisance through the unlawful obstruction of public places and roads in, or in the neighbourhood of, Central. 15.The following events were of particular relevance to the prosecution case in respect of Charge 1:
C.2. Charges 2 and 3 (against D1 to D7) 16.The prosecution alleged that, between 27 and 28 September 2014, D1, D2, D3, D4, D5, D6 and D7 acted as members of a joint enterprise to incite those protesting at Tim Mei Avenue to remain and demonstrate for a prolonged or indefinite period of time; and to call upon more people to come to obstruct the public places and roads at, and in the neighbourhood of, Tim Mei Avenue. 17.Pausing here, it is relevant to note that on the first day of trial, namely, 19 November 2018, the prosecution were requested by the defence to clarify certain terms contained in Charges 2 and 3, namely:
18.In relation to Charge 3 (and Charge 5), both of which alleged an offence of “incitement to incite”, there had been legal argument at an earlier pre-trial review hearing as to: (i) whether such an offence existed at common law and was applicable in Hong Kong; and if so, (ii) whether the offence was constitutional. By a written ruling (“the 13 February 2018 ruling”), the judge held, with detailed reasons being given, that both questions should be answered in the affirmative[36]. In his Reasons for Verdict, the judge also set out the actus reus and mens rea which were required to be established for proof of the offence[37]. 19.In order to establish the acts of incitement in Charges 2 and 3, the prosecution pointed to the words spoken by the relevant applicants, via the public address system (“the PA system”), while they were on the main stage at Tim Mei Avenue on 27 and 28 September 2014. Albeit not an exhaustive list, the following are examples of some of the things said:
C.3. Charges 4 and 5 (against D8); and Charge 6 (against D9) 20.The prosecution alleged that, by his utterances made between 3:42 pm and 4:07 pm on 28 September 2014, D8 had incited those present at Fenwick Pier Street to cause a public nuisance and to incite more people to do the same. The prosecution also alleged that, between 3:13 pm[48] and 5:52 pm on the same day, D9 had appeared at Harcourt Road and used a loudspeaker to address those present, inciting them to walk out into the road and sit there so as to carry out civil disobedience; besiege the entrance on Harcourt Road; and occupy the six carriageways of Harcourt Road. 21.The prosecution pointed to the following particular events of 28 September 2014:
22.The prosecution also adduced three computer certificates (Exhibits P145-147) prepared by three different public bus companies to show the extent of the effect of the disruption to their services by the occupation[55]. D. The defence case D.1. The legal challenges 23.In the proceedings before the judge, there were challenges as, indeed, there were before us, to the appropriateness and/or constitutionality of the charges in question[56]. It was contended by the defence that:
D.2. Other common defences 24.Apart from the challenges against the appropriateness and constitutionality of the charges, the main lines of defence at trial may be summarised as follows:
D.3. The defence evidence 25.None of the defendants, save for D2, elected to give evidence at trial. Nevertheless, six defence witnesses were called on behalf of D2, and one on behalf of D6, thus making eight defence witnesses in all. 26.In his evidence, D2 maintained that the objective of the Occupy Central Movement was not to paralyze Central, or the financial hub of the city[64]. He made reference to an answer to that effect, which he had given to the press on 27 March 2013 (Exhibit P100, p 603)[65], and also to two articles published in a newspaper on 4 March (Exhibit D2-3) and 23 August 2013 (Exhibit D2-5) respectively[66], in which he advocated “proportionate” disruption. In his view, with a turnout of some 10,000 participants, the Government would surely accede to the wishes of people[67]. He considered it would be sufficient if the campaign could successfully arouse public attention[68]. D2 further adduced the following documents, inter alia, at trial[69]:
27.D2 maintained that the Trio only contemplated remaining on Chater Road for a few days[70]. As things turned out, he and D1 remained at the occupied area from 27 September to 27 October 2014, whilst D3 returned home because of ill health. On 28October 2014, D1 and D2, who were both University professors, decided to resume their teaching duties, and to fade out of the movement[71]. E. The Reasons for Verdict E.1. The legal challenges 28.In respect of the appropriateness and constitutionality of the charges, the judge made the following rulings (in summary):
E.2. The common lines of defence 29.The judge also dealt with the main lines of defence (summarised in para 24 supra), which we set out in turn as follows:
E.3. Charge 1 30.In respect of Charge 1, the judge determined that a conspiratorial agreement to commit public nuisance had been reached by the Trio when Exhibit D3-1 was submitted to the relevant authority on 18 September 2014. He found that, although the conspiracy agreement was implemented with modifications when the announcement of the commencement of the occupation was made on 28 September 2014[86], the modified agreement remained an unlawful agreement “to cause public nuisance to the public through the unlawful obstruction of public places and roads in or in the neighbourhood of Central”[87], which covered Tim Mei Avenue and Harcourt Road in Admiralty[88]. The judge held that the Trio did not in fact withdraw from the Occupy Central Movement until they announced their intention to do so on 2 December 2014[89]. 31.The judge found that it was the Trio’s intention to merge their supporters with those protesting at Tim Mei Avenue. Accordingly, they must have appreciated, given the large number of protestors, that any clearance action by the police would inevitably take considerable time. Furthermore, causing the protestors to remain and fortify the defence of Tim Mei Avenue would also mean that the overall occupation of public places and roads in or in the neighbourhood of Central would last longer, and for an indeterminate period of time[90]. 32.The judge found that a turnout of several thousand to 10,000 protestors (which was the Trio’s estimate) would be more than enough to give rise to a substantial disruption to the public[91]. The judge considered that it would be unreasonable for the Trio to plan and call for an occupation “even for just a few days”, let alone the two days stated in the original notice[92]. Applying the reasonableness test to these facts, the judge said it was unnecessary for the Trio to achieve civil disobedience by calling for the occupation of the entire carriageway[93], although he accepted and took into account the importance of the objectives of the Occupy Central Movement[94]. 33.The judge specifically described the assertions of D2 as to how the Occupy Central Movement would develop, and what it hoped to achieve, as “unrealistic” and “naïve”, holding[95]:
34.In the result, the judge convicted D1, D2 and D3 of Charge 1. E.4. Charges 2 and 3 35.At the outset of his analysis of Charges 2 and 3, the judge found[96]:
In respect of D2 and D3, the judge also said that, although neither of them had actually uttered inciting words themselves, the question was whether, under the doctrine of joint enterprise, the speeches made by D1, D4, D5, D6 and D7 could be used against them[97]. 36.Given his findings relating to the cordoning off of Tim Mei Avenue (see para 29(b) supra), the judge found that the prosecution case had partly failed, insofar as it alleged any incitements aimed at causing public nuisance at Tim Mei Avenue[98], as opposed to in the neighbourhood of Tim Mei Avenue. The judge also reminded himself that the incitees in Charge 2 and 3 were the “persons present at Tim Mei Avenue” but not other persons, such as those watching the incitements on live broadcast[99]. 37.The judge set out in detail the statements made by the relevant defendants on the main stage (which he described as a “command centre” for giving directions to people in the Occupy Central Movement)[100]. He explained why those statements, made either individually or jointly, constituted Charges 2 and/or 3, resulting in obstructions to public places and roads in the neighbourhood of Tim Mei Avenue[101], bearing in mind also the advocated purpose of the Occupy Central Movement[102]. 38.The judge further reminded himself of the requisite mens rea applicable tothe offences of incitement to commit public nuisance and incitement to incite public nuisance[103]. He considered that what was said by one defendant in the presence of another defendant might constitute the means of knowledge available to the latter[104], and hence a common intention; whilst also finding, on the basis of their individual liability, that D1, D4, D5 and D7 each had the requisite mens rea to commit Charge 2, and D5, D6 and D7 each had the requisite mens rea to commit Charge 3.
39.With regard to D5, having noted his claim that civil disobedience was a “fight in relays”[109], the judge found that it was his intention that the Occupy Central Movement should last as long as possible[110]. As a matter of credibility, the judge also noted that, contrary to his claimed intention to be arrested after a few days of the protest, D5 did not in fact surrender to the police until 3 December 2014[111]. The judge further found that Exhibits D2-9, D2-10 and D2-11 did not assist D5 (or the other applicants in respect of Charges 2 and 3); noting, in particular, that D5 had given no evidence to suggest he was aware of the contents of Exhibit D2-9[112]. 40.In respect of D6, the judge found that he was inciting an occupation for a prolonged period, as opposed to a “limited period of time”, given that the purpose of the Occupy Central Movement was to make the then Chief Executive give an explanation of matters relating to the 831 Decision[113]. The judge also found that, while Tim Mei Avenue was already full, the fact that D6 incited people to “over-cram” the nearby carriageways was tantamount to inciting them, unreasonably and unlawfully, to occupy (and continue occupying) the areas beyond the ambit of Tim Mei Avenue[114]. 41.The judge made a finding, which was not merely relevant to Charges 2 and 3, but to all other charges as well, that the computer certificates (Exhibits P145-147) showed that “over-cramming” the neighbourhood of Tim Mei Avenue (as well as Fenwick Pier Street and the six carriageways of Harcourt Road) would result in the suffering of common injury by common members of the public[115]. 42.In the result:
E.5. Charges 4 and 5 43.The judge found that the statements made by D8 were directed at those present in Fenwick Pier Street, and his voice could be heard by those within its audibility range[120]. He considered that D8’s intention was to cause the carriageway of Fenwick Pier Street to be occupied for an indefinite period of time and that such intention was made known to his audience[121]. The judge held that what D8 said amounted to the incitements in question. 44.The judge further found that D8’s reaction to the appearance of PW5’s fire engine amounted to an unreasonable use of Fenwick Pier Street. He said, inter alia[122]:
45.The judge held that not only would the resulting obstruction to traffic and inconvenience to the public be so serious that it would exceed the bounds of reasonableness[123], it was also the intention of D8 that those he incited would act upon his incitements[124]. In the result, the judge convicted D8 of both Charges 4 and 5. E.6. Charge 6 46.The judge found that D9 had incited those in Harcourt Road to occupy the road by his speeches, which were heard by those within the audibility range of his loudspeaker[125]; and that both D9 and his target audience knew what obstruction would be caused by their conduct[126]. 47.The judge thought that the occupation incited by D9 was a tactic to “counter-besiege” the police for an indefinite period[127]. Such a tactic would inevitably result in obstruction of more public places and roads[128], on an extensive scale[129]. At the time of the incitement, D9 knew that crowds were blocking the westbound and eastbound traffic of Harcourt Road; while there were over 10,000 protestors at Tim Mei Avenue[130]. 48.The judge pointed out that the so-called “exclusion plan” of the police was “a necessary and proportionate measure” to deal with a threat made by D1 to occupy the CGO. It would have been irresponsible of the police to have taken the threat lightly. Accordingly, it was “reasonable and lawful” for the police to prohibit the protestors’ access to the CGO[131]. 49.In the result, the judge convicted D9 of Charge 6. F. The Reasons for Sentence 50.As noted earlier, the sentencing appeals now only concern D1 and D8. D1 was of good character: D8 was not. 51.The judge was referred to several cases involving public nuisance, including the magistracy appeal decisions of HKSAR v Pearce [2006] 3 HKC 105, HKSAR v Pearce [2009] 5 HKLRD 1 and HKSAR v Chow Pit Keung and Ors (Unrep., HCMA 610/2009, 17 March 2010); and the English Court of Appeal decision of R v Roberts (Richard) & Ors [2019] 1 Cr App R (S) 48. Nevertheless, he found that the seriousness of the instant case far exceeded that of any of the cited cases[132]. 52.The judge said he bore in mind the peaceful and non-violent nature of the offences, as well as the defendants’ underlying motive for committing the same, which was not one of greed, lust, anger or monetary reward[133]. On the other hand, he noted that neither defendant had expressed regret for the inconvenience and sufferings caused to other members of the public[134]. 53.In respect of the conspiracy entered into by the Trio, the judge said that whilst protestors should behave with a sense of proportion and not cause excessive damage or inconvenience, the Trio either lacked a sense of proportion or adopted a wholly wrong test or yardstick to make such an assessment[135], noting in particular that D2 did not consider the matter of proportionality until 18 November 2014[136]. 54.In respect of the incitement charges, the judge considered that if the incitements were acted upon by the incitees, they would inevitably result in excessive damage or inconvenience; and that the resulting public nuisance did not fall within the parameters of civil disobedience[137]. 55.The judge found that the occupation of Fenwick Pier Street, which had been incited by D8, was serious and was intended to last for an indefinite period of time. As it turned out, the road continued to be occupied by a huge number of protestors and was not cleared until 11 December 2014[138]. 56.In view of the obviously extensive and necessary investigation that was required into the case, the judge was of the view that there was no unreasonable delay in prosecution; and that any delay which may have resulted was acceptable[139]. 57.The judge therefore adopted the following starting points:
58.The only basis upon which the judge was prepared to reduce the sentences of all defendants, save for D8, was for what he described as their “positive good character”. For that reason alone, he gave D1 a two‑month discount in respect of the starting point on Charge 1, and a one‑month discount from the starting point of Charge 2. 59.Accordingly, the judge imposed a sentence of 16 months’ imprisonment on D1 in respect of Charge 1, and 8 months’ imprisonment for Charge 2, before ordering both sentences to run concurrently with each other, thus making an overall sentence of 16 months’ imprisonment. 60.In respect of D8, the judge imposed sentences of 8 months’ imprisonment for both Charges 4 and 5, ordering the two sentences to run concurrently with each other, thus making an overall sentence of 8 months’ imprisonment. G. Grounds of appeal G.1. Grounds of appeal against conviction (generally) 61.We now turn to the grounds of appeal, of which there are a total of 42 substantive grounds of appeal against conviction alone, leaving aside those grounds which address sentence. It is true that some of the grounds are common to various applicants, although they have been pleaded in rather different ways, with sometimes very different emphasis. Given the multitude of grounds of appeal and the different ways that individual applicants have advanced, in some cases, similar grounds on paper, we have endeavoured to summarise them. That summary is not exhaustive; however, we have tried to set out the essence of the pleaded grounds, conscious that some of the grounds were not argued orally by an individual applicant but the arguments of others were adopted on that particular ground; and some of the grounds were later elaborated upon in oral submissions, with some applicants adopting the arguments of other applicants, while others developed their own arguments in respect of similar grounds. This judgment would be extremely lengthy and repetitive if we were to set out every ground advanced by each applicant seriatim both in writing and orally. As will become clear, when we discuss the various grounds, we have chosen, like Mr Tam, to address the main, or key, aspects of the accumulated submissions. G.2. Grounds of appeal against conviction (individually) G.2.1. D1’s grounds of appeal against conviction (Grounds 1-8) 62.Mr Eric Cheung, with him Mr Randy Shek and Mr Jason Kung, all of whom acted for D1 at the appeal before us but not the trial, criticised the judge for wrongly holding that Charges 1 and 2 had satisfied the requirements of legal certainty, and for failing to apply the proportionality test to the offences or considering the “chilling effect” that might be caused by the premature arrest or prosecution of a person planning or advocating a peaceful assembly (D1’s Ground 1). 63.Mr Cheung argued that the efforts of the three alleged co-conspirators were insufficient to form a conspiracy to commit, as opposed to incitement to commit, public nuisance (D1’s Ground 2). 64.It was further contended that the evidence was insufficient to establish a causative link between the agreement as planned by D1, D2 and D3 and the causing of a public nuisance (D1’s Ground 3). 65.Mr Cheung criticised as wrong in law the judge’s finding that the modified agreement reached by the Trio on 28 September 2014 amounted to a conspiratorial agreement that corresponded to the one reached on 18 September 2014 (D1’s Ground 4). His alternative, or fall-back, position was that the judge had wrongly allowed two conspiracies to proceed under the umbrella of a single charge (D1’s Ground 5). 66.Mr Cheung complained that the judge had failed to give sufficient regard to the real objective of the campaign when deciding whether D1 had the necessary mens rea for committing Charge 1 (D1’s Ground 6). 67.He emphasised that the persons who were incited in Charge 2 were confined to those who were already present and obstructing at Tim Mei Avenue, which obstruction was judged to be insufficient to constitute a public nuisance; as evidenced by the acquittal of D1 on Charge 3. Accordingly, he argued that the most that those who were incited in Charge 2 could do in acting upon D1’s incitement was to maintain the status quo by remaining where they were and continuing to obstruct at and in the neighbourhood of Tim Mei Avenue, which similarly should not have constituted a public nuisance (D1’s Ground 7). 68.Finally, Mr Cheung submitted that there was insufficient evidence to show that the occupation was intended to last a prolonged or indefinite period of time. He argued that political chants such as “Over‑cram Admiralty” and “Over-cram Central” were rhetorical exhortations or flights of fancy, which should not be interpreted too literally (D1’s Ground 8). G.2.2. D2’s and D3’s grounds of appeal against conviction (Grounds 1-4) 69.Mr Steven Kwan, with him Mr Albert Wong, who acted for D2 and D3 at trial and, together with Ms Zoe McCoy, before us on appeal, argued that there were flaws in the judge’s analysis when he convicted D2 and D3. It was contended that the judge was wrong to find it unreasonable for the Trio to plan an occupation “even for just a few days” and to reject D2’s forecast, based on the history of the Anti-National Education protests in 2012, that the government would at some stage of the occupation accede to the wishes of the demonstrators (D2 and D3’s Ground 1). 70.It was also submitted that insufficient consideration had been given to D2’s evidence that the objective of the Occupy Central Movement was only to cause sufficient disruption in order to arouse public attention (D2 and D3’s Ground 2). 71.Mr Kwan further argued that the judge was wrong to accept the prosecution’s contention that Tim Mei Avenue and Harcourt Road in Admiralty were public places and roads in the neighbourhood of Central[140]. This erroneous finding of the geographical location of the charges led to the unsafe convictions of the incitement charges against D2 and D3 (D2 and D3’s Ground 3). 72.Since D2’s final ground of appeal is akin to Ground 8 of D1’s appeal, it is not therefore repeated here (D2 and D3’s Ground 4). G.2.3. D4’s grounds of appeal against conviction (Grounds 1-3) 73.Mr Ching Y Wong SC, with him Ms Fiona Nam and Ms Adgie Chan, who acted for D4 both at trial and this appeal, argued that Charges 2 and 3 lacked concise, accurate and informative particulars as to the meaning of “in the neighbourhood of Tim Mei Avenue” and, accordingly, the defence was not properly informed as to what the prosecution case was (D4’s Ground 1). 74.He further argued[141] that the judge had failed to make sufficient findings on the fault elements of incitement; in particular, whether those doing the inciting and those being incited had the respective knowledge that the commission of the incited act would be tantamount to committing a public nuisance; or, at the risk of oversimplifying the argument, whether the incitees knew the consequences, and whether the incitors knew that they knew the consequences (D4’s Ground 2). 75.Mr Wong’s final ground of appeal was that the convictions were unsafe and unsatisfactory (D4’s Ground 3). G.2.4. D5’s grounds of appeal against conviction (Grounds 1-6) 76.Mr Robert Pang SC, with him Mr Timothy Lam, who acted for D5 both at trial and this appeal, argued that the judge had wrongly found that an unreasonable obstruction had been caused. He submitted that the reasonableness of the obstruction should be determined on the basis that the more important the issue, the more it could be expected that there should be “give-and-take” within the community (D5’s Ground 1). He contended that an indefinite period of occupation could also have been a short one, which might not necessarily have resulted in a public nuisance (D5’s Ground 2). 77.The judge was further criticised for appearing to accept D5’s intention to have himself arrested following his surrender to the police, but not ultimately acting on his own words[142] (D5’s Ground 3). 78.It was further argued that the judge had failed sufficiently to consider Exhibits D2-9, D2-10 and D2-11, which suggested that the Occupy Central Movement had a short intended duration, and had been embraced by a large number of the public in Hong Kong; accordingly, he erroneously determined that encouraging people to take part in the movement was sufficient to amount to an incitement to commit or incite a public nuisance (D5’s Ground 4). By the same token, the words uttered by D5 might not have been sufficient to show that he had committed the actus reus with the requisite mens rea (D5’s Ground 5). 79.Finally, it was argued that the offences in Charges 2 and 3 lacked sufficient certainty as to the legal elements to be proved (D5’s Ground 6). This argument is akin to D1’s Ground 1 and D4’s Ground 2. G.2.5. D6’s grounds of appeal against conviction (Grounds 1-6) 80.Mr Hectar Pun SC, with him Mr Anson Wong, who acted for D6 both at the trial and this appeal, challenged the 13 February 2018 ruling of the judge that the common law offence of incitement to incite is applicable in Hong Kong and constitutional (D6’s Ground 1). 81.He also argued that the judge was wrong to conclude that the obstruction in question was not warranted by law, when the holding of, and participating in, a public meeting at Tim Mei Avenue from 26 to 27 September 2014 had been lawful (D6’s Ground 2). 82.Since there was at least a reasonable doubt that those incited might only remain at Tim Mei Avenue for a limited period of time, they may not have committed a public nuisance or incited another to commit a public nuisance (D6’s Ground 3). 83.Mr Pun argued, in similar vein to D6’s Ground 2, but with more focus on the application of the reasonableness test, that the obstruction did not exceed the bounds of reasonableness and that the public meeting was a peaceful one, which did not constitute a public nuisance (D6’s Ground 4). 84.Akin to D4’s Ground 2 and D5’s Ground 6 supra, Mr Pun argued that the evidence was insufficient to establish the requisite mens rea by the incitors and incitees (D6’s Ground 5). 85.Finally, it was submitted that the judge had erred in finding that a joint enterprise involving D6 had been established (D6’s Ground 6). G.2.6. D7’s grounds of appeal against conviction (Grounds 1-6) 86.Mr Philip Dykes SC, with him Mr Jeffrey Tam, who acted for D7 both at trial and this appeal, submitted that the common law offence of public nuisance, in the context of civil disobedience, did not meet the requirements of legal certainty. In particular, the offence was not adequately accessible, and was contrary to Articles 27, 28 and 39 of the Basic Law[143] (D7’s Ground 1). 87.It was contended that the judge was wrong in the 13 February 2018 ruling to rely on what were said to be the obiter remarks of the Court of Appeal of England and Wales in R v Mohammed Sirat (1986) 83 Cr App R 41, in support of his finding that the offence of incitement to incite existed at common law (D7’s Ground 2). 88.Mr Dykes submitted that the correct approach to the mens rea for an offence of incitement to incite, if it existed, should be that the defendant must intend the commission of the principal offence (D7’s Ground 3). In support of this ground, he relied on the recommendations in the report of the Law Commission for English and Wales (Law Com No. 300/2006) entitled Inchoate Liability for Assisting and Encouraging Crime. 89.Further to D7’s Ground 1, Mr Dykes emphasised that public nuisance required proof of a common injury to the public. However, this could only be ascertained after the commission of the act concerned (D7’s Ground 4). 90.Mr Dykes complained that the judge had made numerous erroneous findings of fact (D7’s Ground 5), which may be identified as:
91.It was also submitted that the judge was inconsistent in his factual findings as to why obstruction to the traffic was caused by the incitements of D7 and why such obstruction, if limited to part of the carriageway, would be more acceptable to the public. 92.Finally, it was contended that inappropriate charges were brought by the prosecution, yet accepted by the judge, who should have stayed the common law charges (D7’s Ground 6). This was in fact the ground particularly addressed by Mr Dykes in his oral arguments before this Court. It was argued that there was a perfectly proper statutory offence, namely section 4(24) of the Summary Offences Ordinance, Cap 227, which would have catered for the facts of the present case, without resorting to the inappropriate common law offences of inciting to commit or to incite public nuisance. G.2.7. D8’s grounds of appeal against conviction (Grounds 1-3) 93.Mr Lawrence Lok SC, who acted for D8 at trial and now appears with Ms Naomi Chan at this appeal, submitted that the judge erred in the 13 February 2018 ruling by finding that “incitement to incite” was a valid, constitutional charge. He contended that Charge 5 was superfluous, since the allegation had been subsumed in Charge 4 (D8’s Ground 1). 94.He argued that the prosecution had failed to establish that, in exercising his constitutional rights guaranteed under Articles 27 and 39 of the Basic Law[144], D8 had done so without lawful excuse in the sense that what he did was an unreasonable, intolerable and substantial one to the public in terms of extent, duration, time, place and purpose (D8’s Ground 2). 95.Mr Lok also argued that the judge was wrong to find that the traffic inconvenience to Fenwick Pier Street was substantial, bearing in mind that D8 had never told people to sit there for a long time, nor had he caused anyone to block the way of the fire engine (D8’s Ground 3). G.2.8. D9’s grounds of appeal against conviction (Grounds 1-6) 96.Mr Edwin Choy SC, with him Ms Chow Hang Tung, counsel for D9 both at trial and this appeal, submitted that the common law offences of causing public nuisance and incitement to cause public nuisance were both unconstitutional, since they infringed the constitutional rights to freedom of opinion, expression, speech, assembly and demonstration guaranteed under Articles 27 and 39 of the Basic Law[145], and Articles 16 and 17 of the Bill of Rights[146] contained in the Hong Kong Bill of Rights Ordinance, Cap 383 (D9’s Ground 1). Accordingly, it was also unconstitutional to charge D9 with such offences (D9’s Grounds 2 and 3). 97.Mr Choy further echoed Mr Dykes’ argument that the judge had been wrong not to hold that the use of the common law offences was improper when there were other appropriate statutory offences which could have been brought instead (D9’s Ground 3). 98.Mr Choy submitted that the conviction of D8 was the result of the lack of independent applications of the reasonableness test (propounded in Yeung May Wan v HKSAR) and the proportionality test[147] (D9’s Ground 4). It was also contended that the judge (i) failed to note that the reasonable test and the proportionality test involved an assessment of the acts of different actors (the applicants versus the Government); (ii) wrongly held that it was reasonable and lawful for the police to implement the “exclusion plan”; and (iii) wrongly disregarded the concept of civil disobedience (D9’s Ground 5). 99.Finally, Mr Choy argued that the judge had made a number of erroneous findings of fact against D9 in respect of the occupation of six carriageways of Harcourt Road (D9’s Ground 6), namely:
G.3. Grounds of appeal against sentence (D1 and D8 only) 100.Both Mr Shek, for D1 in respect of his sentence appeal, and Mr Lok, for D8, argued that, when passing sentence, the judge had failed sufficiently to consider the non-violent or peaceful nature of the occupation. Furthermore, the judge had not given sufficient consideration to the fact that the offences were committed by the applicants in the lawful exercise of their constitutional rights. Mr Shek submitted, inter alia, that whilst D1 had openly claimed to leave the occupation by 28 October 2014 and lost control of the movement at some stage, the judge nevertheless wrongly sentenced him on the basis that he was responsible for the entire occupation up until 2 December 2014. 101.By way of a Notice of Motion dated 10 December 2019, Mr Shek sought leave to adduce a 4th Affidavit of D1, affirmed on 29 November 2019, and certain exhibits attached thereto. By this affidavit, D1 maintained that, in early October 2014, he had expressed his regret to the public for the inconvenience caused by the Occupy Central Movement; but nevertheless, it did not occur to him that the expression of such regret would be given consideration by the judge in sentencing. Accordingly, he had not sought to adduce until this appeal some open source video footage showing his earlier expressions of regret. 102.Mr Lok submitted that the judge was wrong to find that where the incitements by D8 were acted upon by those incited, very serious and indefinite obstruction would occur. H. Respondent’s submissions H.1. Respondent’s submissions on conviction 103.Mr William Tam SC, Acting Director of Public Prosecutions, with him Mr Ira Lui and Mr Derek Lau, for the respondent, submitted, in respect of D7’s Ground 6 and D9’s Ground 3, that absent any suggestion that the applicants were deprived of their right to a fair trial, the Court should be slow to interfere with the prosecuting authority’s decision to prefer the charges it saw fit[148]. 104.On the constitutional challenges against the offence of public nuisance, Mr Tam submitted that the judge was correct in applying Rimmington and Yeung May Wan v HKSAR in the context of a peaceful demonstration; and in consequence, holding that when a reasonable balance was struck between the competing rights and interests of the individuals, the offence did not amount to a disproportionate restriction on their fundamental rights. It was also submitted that the judge had been right to decide that the offence of ‘incitement to incite’ existed at common law, both in the United Kingdom and in Hong Kong; and correctly identified the legal elements to be proved for the incitement offences in question[149]. It was submitted in respect of D4’s Ground 2 that the judge had properly found the elements of the incitement charges (save those on which D1, D2 and D3 were acquitted) to be established[150]. 105.Despite some overlap in the grounds of appeal[151], it was submitted that they essentially came down to the same argument, that the judge had failed to apply the proportionality principle and the reasonableness test to the facts of the case. However, Mr Tam contended that the judge had properly carried out a balancing exercise in reaching the conclusion he did. In support of this contention, he relied on the decision of the Queen’s Bench Division of England and Wales in DPP v Ziegler [2019] 2 WLR 1451. 106.In respect of D1’s Grounds 2, 3, 4, 5 and 6, Mr Tam submitted that in light of the estimated number of participants and the fact that 3 October was a working day, the Occupy Central Movement, if carried out as planned, would inevitably result in public nuisance[152]. He emphasised that the original and modified conspiracy agreements, as described by the judge, were very similar and shared one key objective, namely, the intended occupation of the public places and roads in or in the neighbourhood of Central; accordingly, there could be no uncertainty or room for misunderstanding regarding the basis of Charge 1[153]. 107.He argued in respect of D1’s Grounds 7 and 8, and D2 and D3’s Ground 4, that whoever the applicants were addressing their words to, the intended effect of such words had to be considered in the circumstances in which they were uttered by the applicants, as well as their knowledge and common intention. The judge’s findings could not be impugned in this regard[154]. 108.In respect of D4’s Ground 1, Mr Tam submitted that the meaning of “in the neighbourhood of Tim Mei Avenue” in Charges 2 and 3 would be obvious from Exhibit P20 and should be understood in the context of a continuous gathering at Tim Mei Avenue at the time[155]. 109.Of D5’s Ground 2, it was said that the likely duration of the occupation could be discerned from the scale of the occupation which D5 was inciting; whilst of D5’s Ground 3, Mr Tam submitted that whether D5 had a genuine intention to surrender to the police at the time of the incitement could properly be inferred from his later conduct[156]. 110.In respect of D5’s Ground 4, Mr Tam argued that since D5 did not testify at trial, there was no evidence to show that he was aware of the contents of the defence exhibits adduced by D2[157]. In any event, so far as D5’s Ground 5 was concerned, the judge’s findings as to guilt did not depend on any obstruction eventually caused by the incitees, but on D5’s intention at the time he incited them[158]. 111.In respect of D6’s Grounds 2, 3 and 5, Mr Tam submitted that the suggested loopholes in D6’s convictions had to be seen in the light of the judge’s other findings of fact which led to his conclusion that D6 was intending a prolonged occupation that was unreasonable and not warranted by law[159]. When the events involving D6 on the main stage were considered as a whole, the criticism levelled at the judge’s finding under D6’s Ground 6 was unwarranted[160]. 112.With regard to the criticisms in D7’s Ground 5 of the judge’s factual findings against D7, Mr Tam submitted that the judge had carefully considered the target audience who would be hearing D7’s speeches, and held that the incitements were heard only by those “within the audibility range” of the PA system, as opposed to everyone. He argued that the cordoning off of Tim Mei Avenue carriageway by the police was irrelevant, since D7 was inciting an occupation beyond the ambit of Tim Mei Avenue. The firing of tear gas went to the effect of the incitement, which was not an element of the offence, and was thereby also irrelevant[161]. 113.So far as the criticisms in D9’s Ground 6 of the judge’s factual findings against D9 were concerned, Mr Tam submitted that D9 elected not to give evidence so as to provide a basis for contradicting the otherwise unimpeachable findings that his unambiguous speeches were audible within the audibility range of his loudspeaker; and that they were clearly directed at those in Harcourt Road in order to ensure that they remained on the carriageways as long as the Occupy Central Movement was in progress. Mr Tam also submitted that, for the offence of incitement, it was unnecessary to prove that the incitees in fact acted upon the incitement[162]. 114.In his oral response before this Court, Mr Tam sensibly approached the accumulated grounds of appeal of the applicants by identifying, and endeavouring to answer, various “key issues” which were common to them. We found his structured approach to these issues and, indeed, his lucid submissions, extremely helpful; and, as will be seen, we have adopted an expanded version of the same approach in resolving this appeal. H.2. Respondent’s submissions on sentence 115.Mr Tam submitted that the judge had addressed many of the issues now raised in his Reasons for Sentence. The essence of his response was that those who had been found to have unreasonably impinged on the rights of others could not then use the exercise of their constitutional rights as mitigation of their conduct. He contended that the judge had rightly considered the seriousness of the instant offences in the context of civil disobedience, and was in fact lenient in affording a two-month reduction of the overall sentence of D1 for what he described as “positive good character”. 116.Mr Tam objected to D1’s application to adduce fresh evidence. He submitted that neither of the sentences received by D1 and D8 was manifestly excessive or wrong in principle. I. Discussion I.1. Discussion as to conviction 117.There are, as we have said, a total of 42 substantive grounds of appeal against conviction. Given that there is a large measure of overlap between the grounds of appeal of the various applicants dealing with matters of law, whose arguments have been either adopted or adapted, explicitly or implicitly, by other applicants, it will be convenient if we identify the essential grounds being put forward and endeavour to address them. We can group the arguments into six main issues. I.1.1. The first main issue 118.The first main issue concerns the propriety of the conspiracy charge (Charge 1). The judge’s determination that although there was an agreement between the Trio in March 2013, the criminal conspiracy to commit public nuisance formed on or about 18 September 2014, which was then modified on 28 September 2014, has led to the complaint that there were in effect two different conspiracies involved in a single charge being tried. 119.We regard this argument as misconceived. In terms of form, there was nothing ambiguous, duplicitous or uncertain about Charge 1. It alleged a single, global conspiracy between March 2013 and 2 December 2014 by the Trio and with others to cause nuisance to the public through the unlawful obstruction of public places and roads in or in the neighbourhood of Central. In terms of substance or proof, the judge found that the conspiracy was not in fact effected until on or about 18 September 2014, and it then continued through until 2 December 2014[163]. The question of when the conspiracy was formed was a matter of fact for the judge, as the hypothetical jury, to determine. It did not mean that there were two (or more) conspiracies. 120.As for the fact that instead of occupying Chater Road in Central, the conspiracy began with an occupation of Tim Mei Avenue, which is plainly in or in the neighbourhood of Central, we do not regard this as anything other than an implementation of the original conspiracy. Certainly, that was what the Trio intended it to be, and that is what it clearly was. As the judge put it, “the original plan was only modified, but not abandoned, by the Trio when they announced the launch of Occupy Central at 1:36 am on 28 September 2014”[164]. 121.A case we have found persuasive in its reasoning, and useful on its facts, is the decision of the Supreme Court of New South Wales in R v Saffron (1988) 17 NSWLR 395. The applicant and another man (Anderson) were alleged to have defrauded the Commonwealth of Australia of income tax by taking cash from the receipts of five restaurant and nightclub businesses, and by keeping false books of account. The agreement was allegedly made when the conspirators became interested in the first business, an establishment known as the “Venus Room”, and the agreement was then implemented in respect of that business and, subsequently, four others. 122.The applicant’s argument was that the conspiracy charged was one which, by virtue of the dates averred in the charge, could only have related to the Venus Room business and its profits, and that the extension or continuation of the conspiracy in respect of the other four businesses could only have been the result of further agreements to pursue a similar tax evasion system in respect of each business. It was suggested that the evidence was as consistent with the existence of separate conspiracies as with one conspiracy. The Court of Appeal’s answer was[165]:
123.Similarly, in the present case, the judge found that the conspiracy as charged was entered into on or about 18 September 2014, and the agreement was, as particularised, “to cause a nuisance to the public through the unlawful obstruction of public places and roads in or in the neighbourhood of Central”. Chater Road was not mentioned in the charge, nor was Tim Mei Avenue. However, once one accepts that Tim Mei Avenue is in the neighbourhood of Central, which it manifestly is, then the objective of conspiring to cause a public nuisance in or in the neighbourhood of Central was still the same: all that happened was that the actual obstruction and resulting public nuisance was caused in one road rather than another road in or in the neighbourhood of Central. 124.As Saffron makes clear, whether there is one or more conspiracies is a matter for the jury. Here the judge, as jury, made specific findings on this issue[166]:
125.The judge then went on to deal with D2’s evidence that there were four major areas of difference between the movement the Trio had planned to commence on 1 October and the one they in fact announced to begin at 1:36 am on 28 September 2014; namely, as to (i) theme; (ii) management and leadership; (iii) organisational methods; and (iv) composition of participants. Suffice it to say, the judge gave cogent reasons why he did not accept there were any real differences[167]. 126.In our view, the judge carefully and fully addressed this issue, which was a matter for him to determine, and found that there was only ever one conspiracy, which commenced on or about 18 September 2014. We agree. I.1.2. The second main issue 127.The second main issue is whether there were sufficient details agreed upon by the conspirators at the time of the so-called “modified agreement” to constitute a conspiracy to cause a public nuisance. This question also engages an issue common to the incitement charges as well, which is whether an obstruction which is unreasonable, and therefore unlawful, can be agreed upon or incited beforehand. It is argued that an unreasonable obstruction can only be assessed afterwards, but not in advance. 128.Mr Cheung placed considerable reliance on the judgment of the English Court of Appeal in Ineos Upstream Ltd v Persons Unknown [2019] 4 WLR 100, where the claimants, who were involved in “fracking” sought, inter alia, injunctions on a quia timet basis to restrain potentially unlawful acts of protest before they occurred. The Court saw certain problems with the orders made by the judge, amongst which were:
With respect to the Court, we query why the reasonableness or unreasonableness of an anticipated obstruction of public roads by thousands of people in, or in the neighbourhood of, an area such as Central Hong Kong cannot, in appropriate circumstances, be assessed in advance. The case before us would suggest that it plainly can be, and was. 129.One must remember that the gestation period of the Occupy Central Movement had been some 18 months before the announcement of its commencement was actually made. During that period, the preliminary stages of deliberation, authorisation and negotiation had been completed. The scale of the occupation was anticipated to be between 3,000 and 10,000 people but, more importantly, the Trio and all of the other applicants could see with their own eyes the sheer scale and success of the occupation of Tim Mei Avenue, well before the announcement to “over‑cram” Central and Admiralty was made at 1:36 am on 28 September 2014. As the judge found, the Trio clearly “wanted to ride with the tide of events”[168] as they were unfolding. 130.Not surprisingly, the judge found that the Trio knew exactly what would happen, and they intended it to happen[169]:
To suggest, in the circumstances of this particular case, that the applicants could not have known, or could not have intended, the consequences of their actions in advance is to surrender reality and common sense to an abstract and theoretical notion of the reasonable exercise of individual rights. We cannot accept the argument that the applicants, having planned the Occupy Central Movement for some 18 months, and having seen how events had unfolded in Tim Mei Avenue, did not knowingly conspire to commit, or incite, a public nuisance. 131.Given this analysis, we should also deal with a different but connected argument, advanced by Mr Choy, that the judge erred in holding that the reasonableness test had subsumed within it a consideration of proportionality[170], and thereby failed to determine, by adopting the “no more than necessary” test or at all, whether the implementation of the “exclusion plan” was proportional to achieving any legitimate aim[171]. In our view, it is perhaps more significant to look at what the judge actually considered throughout his examination of whether “the right balance [had been] struck between the competing rights of the protestors in a peaceful demonstration and the rights of other members of the public without infringing the exercise of the constitutionally protected rights of the protestors”[172]. We would observe that the judge appeared to accept PW2’s evidence of the need to close Tim Mei Avenue for the legitimate purpose of enabling the public meeting to be conducted and carried on safely[173], and explained why, in the context of the mass demonstration contemplated, the “exclusion plan” was not only “reasonable and lawful” but a “necessary and proportionate measure” to counter the imminent threat to occupy CGO[174]. We do not accept this criticism of the judge’s findings. I.1.3. The third main issue 132.The third main issue we must address is whether the facts in the present case showed, and the prosecution should accordingly have charged, a conspiracy to incite rather than a conspiracy to commit public nuisance, since, it is argued, three men in the form of the Trio could not themselves cause a public nuisance. However, it is somewhat artificial to suggest that only three persons were involved who could cause the public nuisance. The reality is that there had been a significant gestation period before the announcement of the commencement of the actual occupation, in which much effort and resources had gone into the planning of the Occupy Central Movement, vast numbers of people were anticipated and a huge impact was expected to result. Indeed, the impact had already been clearly evident in the events at Tim Mei Avenue. The Trio had piloted the Occupy Central Movement from its inception in March 2013. It is, with respect, fanciful to suggest that they could not conspire to cause a public nuisance, when it had never been the Trio’s agreement to cause an obstruction by themselves alone. The conspiracy in Charge 1 to which they were parties, as found by the judge, had all along been that thousands of people at least would be involved in the eventual occupation. The Trio, as the principal organisers of the Occupy Central Movement, must have known that the consequences of such occupation would be far-reaching and would inevitably cause a public nuisance. 133.In the English case of R v Stockli [2018] 1 WLR 5609, there were seven defendants who had been jointly charged with exactly the same offence; namely, conspiracy to cause a public nuisance. The nuisance concerned was an illegal rave party in a disused London Fire Brigade building, without the permission of the owners, which had caused substantial disturbance to local residents and considerable violence and disorder in the vicinity of the building. The seven defendants were involved in the organisation of the rave: one was responsible for ordering the printing of some 10,000 flyers or leaflets; another was responsible for spreading word of the event (the venue of which was to remain secret until the night in question); another was the disc jockey; and the remaining four were responsible for conveying the music equipment and drinks to the building. It was alleged that “each defendant, by being involved in the organisation, must have appreciated that there was a real risk that, if the event happened as planned, it would create noise (from music and from the crowd of people attending) of such volume as to endanger the comfort of local residents”[175]. 134.The judge at trial had, for reasons we shall discuss in another connection shortly[176], stayed the proceedings in the Crown Court and the prosecution duly appealed to the Court of Appeal against his ruling. No issue was ever taken that those organising the illegal rave could not by their mere number, or by their mere function of ordering the printing of leaflets, spreading the word or bringing equipment and drinks to the building, have been guilty of conspiring to cause a public nuisance. Nor was it suggested that the basis of the Crown case against the seven defendants qua organisers of the event was misconceived. Burnett LJ (as Burnett LCJ then was), giving the judgment of the Court, ruled that the prosecution of the defendants was not an abuse of the process, nor an assault on the integrity of the criminal justice system. Accordingly, he overturned the stay of proceedings and ordered the trial to resume[177]. I.1.4. The fourth main issue 135.It may be convenient if we deal at this juncture with an allied issue, which is the fourth main issue, raised by those charged with incitement to commit public nuisance and incitement to incite public nuisance. It is argued that the relevant applicants could, and should, have been charged with a substantive obstruction offence under section 4(28) of the Summary Offences Ordinance, dealing with nuisances committed in public places. Section 4(28) reads:
136.Reliance for this submission was placed on the judgment of Lord Bingham of Cornhill in Rimmington, at [30]:
137.The argument that the common law offence should not have been used when there was a statutory alternative was also dealt with in Stockli. In that case, it had been suggested on behalf of the defendants, again in reliance on Rimmington, that it was wrong for the prosecution to pursue a charge of conspiracy to cause a public nuisance, when there was a clear statutory alternative under section 136 of the Licensing Act 2003. Burnett LJ’s response to this argument was[178]:
138.To paraphrase Burnett LJ’s judgment in Stockli, a charge under section 4(28) of the Summary Offences Ordinance was never aimed at combatting the organisation of an illegal obstruction of the magnitude in question in this case. It would not have reflected the seriousness and extent of the offending, nor would such a charge have given the courts adequate powers to sentence the applicants. Put simply, such an offence was not a realistic or suitable alternative to the common law offence of public nuisance on the facts of this case. Moreover, it is important to remember, as Lord Bingham put it in Rimmington[179], that “central to the content of the crime (of public nuisance) was the suffering of common injury by members of the public by interference with rights enjoyed by them as such”. It was with that same feature of the offence in mind that Wright J decided in a magistracy appeal, namely, HKSAR v Pearce (2009) 5 HKLRD 1, that there was good reason for prosecuting the appellant under the common law offence rather than an obstruction offence under the Summary Offences Ordinance, because[180]:
139.We therefore reject the argument arising under the third main issue that the prosecution should have charged an offence of conspiracy to incite rather than a conspiracy to cause a public nuisance; and we further reject the proposition, under the fourth main issue, that conduct on this scale and of this seriousness in its impact and effect on the public, could adequately have been dealt with by a substantive offence without recourse to the common law offence of causing a public nuisance. I.1.5. The fifth main issue 140.It will be recalled that in Rimmington, the appellants had argued that[181]:
Having surveyed relevant authority on the origins and application of the offence, Lord Bingham disagreed and determined that the common law offence of public nuisance was nevertheless “clear, precise, adequately defined and based on a discernible rational principle”[182]. 141.Rimmington has been followed by the Court of Final Appeal in Leung Tsang Hung v Incorporated Owners of Kwok Wing House (2007) 10 HKCFAR 480. In the light of what must be considered high authority in the United Kingdom and Hong Kong, the argument was refined before us to suggest that the common law offence of public nuisance was nevertheless legally uncertain when considered in the context of a lawful assembly. This brings us to the fifth main issue to be addressed, namely, legal certainty. 142.If one accepts, as we must, that the offence of causing a public nuisance per se passes the test for legal certainty, then the applicant’s residual room for manoeuvre is significantly narrowed and ultimately hangs upon the question of whether the applicants knew or must have known that the obstruction was unreasonable and thereby unlawful, in the context of civil disobedience. The principles applicable to the question of legal certainty in criminal offences have been summarised by Sir Anthony Mason NPJ on behalf of the Court of Final Appeal in Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386, at [61]-[62]:
143.It may be remembered that Lord Bingham in Rimmington, at the outset of his judgment, acknowledged that “interference with the use of a public highway or a public navigable river provides the best and most typical example” of socially objectionable conduct falling outside the law of private nuisance[183]. His conclusion that the offence of public nuisance was legally certain must, therefore, be taken to have had the question of demonstrations on public highways firmly in mind. Moreover, nowhere in any of the other judgments in Rimmington was it suggested that the offence might be legally uncertain in a particular permutation of the offence, such as a lawful demonstration. It should not be forgotten, of course, that we are not here dealing with a demonstration for which any permission had been given by the police. Nevertheless, the question remains: what makes the use of a public highway a public nuisance and how can one know when a particular use incurs criminal liability? 144.A judgment we have, with respect, found particularly helpful in answering this question is that of Stock JA (as Stock NPJ then was) in the Court of Appeal decision of HKSAR v Yeung May Wan & Others (2004) 3 HKLRD 797, at [88]-[89]:
Stock JA’s reasoning was approved by the Court of Final Appeal in the subsequent appeal to that Court, Yeung May Wan & Others v HKSAR[184]. The majority in the Court of Final Appeal went on to say[185]:
145.The judge in the case before us was clearly aware of these important principles, for he said in terms[186]:
146.Having specifically reminded himself of the passage in Yeung May Wan & Others v HKSAR in the Court of Final Appeal to which we have just referred, the judge then continued[187]:
147.The judge then applied the reasonableness test to the facts of the present case[188], and concluded, in a passage we have already cited[189] on the issue of knowledge[190]:
148.We should emphasise that the judge made specific findings in the passage above (as italicised), and elsewhere in his judgment, that the Trio knew what the consequences of their actions would be before they announced the commencement of the occupation on 28 September 2014. The test approved by the House of Lords in Rimmington was that “the defendant is responsible for a nuisance which he knew, or ought to have known (because the means of knowledge were available to him), would be the consequences of what he did or omitted to do”[191]. Plainly, the judge found that test to be fulfilled. To our mind, that disposes of any residual argument that the applicants may not have known that what was being caused or incited was anything less than a public nuisance entailing an unlawful obstruction of the highway. I.1.6. The sixth main issue 149.The sixth main issue concerns the question of whether the common law offence of ‘incitement to incite’ should form part of the common law of Hong Kong. There is no doubt that incitement is an offence under English (and Hong Kong’s) common law. Accordingly, it has been held by the English Court in R v Mohammed Sirat that one may, in consequence, also commit the offence of incitement to incite. Mohammed Sirat was considered with apparent approval by this Court in R v Kong Yue Kwai [1996] 4 HKC 709. There is a useful commentary on the offence by Sir John Smith in the Criminal Law Review report of R v Sirat [1986] Crim LR 245, at 246:
150.The judge was addressed on the legality and constitutionality of the offence of ‘incitement to incite’ and gave a comprehensive ruling[192], well before the commencement of the trial proper, to the effect that the offence was both justiciable and constitutional under Hong Kong law. We agree with his conclusions and see no reason why the offence should not exist under our common law. Since this argument was not pursued with any great vigour during oral argument in this appeal, we do not propose to say any more on the question. I.1.7. The remaining grounds of appeal 151.The resolution of these six main, or key, issues will dispose of the central thrust of the legal arguments of all applicants in this appeal. Lest there be any doubt on the matter, we reject all of the applicant’s grounds of appeal as to law. For example, the complaint that the prosecution had failed to prove the necessary mens rea of the offences, which the judge dealt with, in our view, correctly and at great length, is without substance when the arguments under the fifth main issue fall away. 152.There remain the factual grounds of appeal, which we have earlier mentioned, and which we have examined with care. However, realistically, without the benefit and context of the legal arguments which underpin them, and which we have rejected, they cannot sensibly advance this appeal on behalf of any of the applicants. The trial proper, apart from preliminary arguments, took 22 days, involved 9 defendants, and engaged the services of 8 Senior Counsel and 12 junior counsel. There were a significant number of issues of fact and law for the judge to resolve. This was an onerous task for any judge sitting alone, yet it is abundantly clear from his detailed and comprehensive reasoning, as well as his handling of the trial and the rulings before and during the trial, that he was fully conversant with both the law and the relevant facts. We see no error at all in his reasoning, nor do we accept that he has overlooked an important piece of evidence in his resolution of this case. We do not regard any of the factual complaints as reasonably arguable. 153.In conclusion, we find no reasonably arguable grounds of appeal against conviction on any of the grounds advanced before us and refuse leave to appeal. It follows that the appeals against conviction by each of the applicants must, accordingly, be dismissed. I.2. Discussion as to sentence 154.We turn to the remaining question of the two appeals against sentence. We were treated to a lengthy but comprehensive submission from Mr Shek on behalf D1, with which Mr Lok for D8 associated himself, dealing with a number of cases in England and Wales and the European Court of Human Rights. However, other than reminding us of the importance of allowing a citizen to demonstrate peacefully and not “discouraging him and other opposition supporters, as well as the public at large, from attending demonstrations and, more generally, from participating in open political debate”[193], it is important that we decide this matter in the context of Hong Kong; mindful of what Lord Bingham described as the central content of the crime of public nuisance; namely, “the suffering of common injury by members of the public by interference with rights enjoyed by them as such”[194]. 155.The judge expressly bore in mind that “the underlying motivation for committing Charge 1 was to fight for the form of universal suffrage that D1 to D3 advocated and to protect the arrested student leaders. Their motive was not one of greed, lust, anger or monetary reward”[195]. However, he considered that the public nuisance which D1, D2, D5, D6 and D7 had incited those at Tim Mei Avenue to commit “was very serious, in terms of the number of carriageways obstructed, the duration of the obstruction, the number of participants and the common injury caused to the public”[196]. 156.On the latter, and vital, element of common injury in the present case, the judge said[197]:
157.In our judgment, these remarks were mild. This was no mere demonstration in Central in support of a cause that exceeded its original remit: it was a determined and sustained effort to paralyze the main arterial roads in the very centre of Hong Kong for weeks on end in order to pressure the Government into changing its mind, and which went far beyond a matter of inconvenience for ordinary citizens going about their business and trying to earn their living. 158.As we have said, the judge presided over the trial which lasted from arraignment to sentence for some 22 days. However, there were numerous pre-trial reviews and preliminary arguments mounted, resulting in the case in fact spanning well over a year. The judge was in the best position to determine the overall seriousness of this matter and the respective roles and culpability of the defendants, having listened to the evidence and heard submissions from the parties. 159.We have had regard to the evidence sought to be admitted at the appeal on behalf of D1 on a de bene esse basis but we do not think it would make the slightest difference to the outcome of this appeal. Accordingly, we are not prepared to admit it. Furthermore, whatever the judge may have said about D1 and others’ lack of regret or apology “for the inconvenience and sufferings they had caused to members of the public who had been affected”[198] was more than outweighed by the generous discount of 2 months’ imprisonment, which he gave for D1’s positive good character. 160.We do not regard the appeals against sentence by either D1 or D8 to be reasonably arguable and leave is likewise refused and the appeals dismissed. J. Conclusion 161.The applications for leave to appeal against both conviction and sentence are refused. All appeals against both conviction and sentence are, accordingly, dismissed. 162.Finally, we should like to commend the judge for the comprehensiveness and clarity of his Reasons for Verdict in this case which, despite their necessary length, have greatly assisted this Court in dealing with the issues which fell to be considered. As may readily be seen from the papers and the available transcript, he conducted a difficult trial with no less than 20 counsel representing 9 defendants with consummate patience, fairness and ability.
Mr William Tam SC, Acting DPP, Mr Ira Lui ADPP and Mr Derek Lau SPP, of the Department of Justice, for the Respondent Mr Eric TM Cheung, solicitor advocate, Mr Randy Shek and Mr Jason Kung, instructed by Ho, Tse, Wai & Partners, for the 1st Applicant (re: Conviction & Sentence) Mr Steven Kwan, Mr Albert NB Wong and Ms Zoe McCoy, instructed by Tang, Wong and Chow, for the 2nd Applicant (re: Conviction) and the 3rd Applicant (re: Conviction) Mr Ching Y Wong SC, Ms Fiona Nam and Ms Adgie NK Chan, instructed by C&Y Lawyers, for the 4th Applicant (re: Conviction) Mr Robert Pang, SC and Mr Timothy Lam, instructed by Ho, Tse, Wai & Partners, for the 5th Applicant (re: Conviction) Mr Hectar Pun SC and Mr Anson Wong Yu Yat, instructed by Kenneth Lam, Solicitors, assigned by the Director of Legal Aid, for the 6th Applicant (re: Conviction) Mr Philip Dykes SC and Mr Jeffrey Tam, instructed by Kenneth Lam, Solicitors, assigned by the Director of Legal Aid, for the 7th Applicant (re: Conviction) Mr Lawrence Lok SC and Ms Naomi ST Chan, instructed by Ho, Tse, Wai & Partners, assigned by the Director of Legal Aid, for the 8th Applicant (re: Conviction & Sentence) Mr Edwin Choy SC and Ms Chow Hang Tung, instructed by Ho, Tse, Wai & Partners, for the 9th Applicant (re: Conviction) [1] The campaign comprised four stages: (1) the signing of the covenant, (2) deliberation, (3) citizen authorisation and (4) the act of civil disobedience (Reasons for Verdict, para 2); or, according to the defence, (1) deliberation, (2) authorisation, (3) negotiation and (4) occupation (Reasons for Verdict, para 159). [2] It was also called “Occupy Central with Love and Peace” (“OCLP”) or “Let Love and Peace Occupy Central”. [3] Contrary to Common Law and section 159A of the Crimes Ordinance, Cap 200 and punishable under section 159C of the Crimes Ordinance, Cap 200 and section 101I of the Criminal Procedure Ordinance, Cap 221. [4] Contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. [5] Ibid. [6] Because of her medical condition, D4 was not sentenced until 10 June 2019. [7] D2 filed a Notice of Abandonment on 13 January 2021; and D5, on 8 February 2021. [8] Reasons for Verdict, para 4. [9] Reasons for Verdict, para 334. [10] The decision of the National People’s Congress Standing Committee on 31 August 2014 on issues relating to the election of the Chief Executive of the HKSAR by universal suffrage in 2017 was known as the “831 decision”. [11] One held by a Lai Man Lok of Scholarism on 26 and 27 September 2014, and the other by a Wong Jun Ian of the Civic Party on 26 September 2014: Reasons for Verdict, paras 9-10. The subsequent request of Wong Jun Ian to continue the public meeting until 28 September 2014 was, however, not acceded to by the police: Reasons for Verdict, para 15. [12] It may be noted that 1 October 2014 was a Wednesday and public holiday; and 2 October 2014 a Thursday and also a public holiday: Reasons for Verdict, para 351. [13] Reasons for Verdict, para 7. [14] Exhibit P144 is a topographical map of the area in September 2014, which is not in the Appeal Bundle. [15] The four districts on Hong Kong Island are: Central and Western, Wan Chai, Eastern and Southern. [16] Reasons for Verdict, paras 11 and 318. [17] Reasons for Verdict, para 319. [18] The East Wing Forecourt of the CGO may be referred to as “Civic Square”. [19] Reasons for Verdict, para 12. [20] Reasons for Verdict, para 14. [21] Reasons for Verdict, para 13. [22] Reasons for Verdict, para 14. [23] Reasons for Verdict, para 185. [24] Reasons for Verdict, para 341. [25] Reasons for Verdict, para 350. [26] Reasons for Verdict, para 166. [27] Exhibit D3-1 is an English translation of the notice: Appeal Bundle A3, pp 594-597. [28] The particulars included:
[29] Reasons for Verdict, para 349. [30] Reasons for Verdict, para 390. In particular, D1 said the occupation had “developed into something completely different from the Occupy Central Movement [and] was quickly replaced by the Umbrella Movement….”: Reasons for Verdict, para 373. [31] Admitted Facts II, para 34: Appeal Bundle I, p 53. [32] Transcript, Appeal Bundle A5, Tab 52, p 1099L-N, S-T. [33] Transcript, Appeal Bundle A5, Tab 52, p 1100P-Q. As a side note, it is not apparent from the court’s record that there was any discussion as to the meaning of “in the neighbourhood of Central”; however, in the respondent’s written submissions, at para 48, it is submitted that “Prior to the trial, the Prosecution had made clear to the Defence that the locations ‘in or in the neighbourhood of Central’ alleged in Charge 1 included relevant sections of Harcourt Road, Tim Mei Avenue and other neighbouring roads. There could be no misunderstanding by the Defence”. [34] Transcript, Appeal Bundle A5, Tab 52, p 1101I-O; Reasons for Verdict, para 321. [35] Transcript, Appeal Bundle A5, Tab 53, p 1106D-F. [36] HKSAR v Tai Yiu Ting & Others (Unrep., DCCC 480/2017, 13 February 2018), paras 55-56 (Appeal Bundle A3, Tab 16) [37] Reasons for Verdict, paras 82-83. The judge held that:
[38] The judge found that the words spoken amounted to an incitement under Charge 3: Reasons for Verdict, para 618. [39] The judge found that the words spoken amounted to an incitement under Charge 2: Reasons for Verdict, para 527. [40] The judge found that the words spoken amounted to an incitement under Charge 2: Reasons for Verdict, para 540. [41] The judge found that the words spoken amounted to an incitement under Charge 3: Reasons for Verdict, para 618. [42] The judge found that the incitements might be made to those watching the live broadcast only, and hence were not covered by Charge 2 (Reasons for Verdict, paras 633-635). [43] The judge found that the words spoken amounted to incitements covered by both Charges 2 and 3 (Reasons for Verdict, paras 553 and 658). [44] The judge found that those words might aim to incite the persons at Harcourt Road to continue their pre-existing occupation, hence were not made to the persons present at Tim Mei Avenue, ie the incitees particularised in Charges 2 and 3 (Reasons for Verdict, paras 546-547, 551). [45] The judge found that the repeated utterances to “keep coming” might not actually target at the persons present at Tim Mei Avenue, ie the incitees particularised in Charges 2 and 3 (Reasons for Verdict, paras 550-551). [46] The judge found that the incitements might target those watching the live broadcast and hence were not covered by Charge 2 (Reasons for Verdict, paras 633-635). The same incitements were also not covered by Charge 3 (Reasons for Verdict, para 625). [47] The judge found that the incitements might target those watching the live broadcast and hence were not covered by Charge 2 (Reasons for Verdict, paras 633-635). The same incitements were also not covered by Charge 3 (Reasons for Verdict, para 628). [48] The subject matters of Charge 6 were the speeches made by D9 at Harcourt Road only, not Fenwick Pier Street at 3:09 pm: Reasons for Verdict, paras 709-710. [49] The witness statement of Chief Superintendent Dover (Exhibit P156) was adduced into evidence by way of section 65B of the Criminal Procedure Ordinance, Cap 221. It may be noted that the witness was sometimes also referred to by the judge as “Senior Superintendent Dover”: Reasons for Verdict, paras 740-741. [50] Reasons for Verdict, paras 671-674. [51] PW5, an Assistant Divisional Officer of the Fire Service Department, was on board the fire engine. [52] Reasons for Verdict, paras 120-122 and 691-692. [53] Reasons for Verdict, para 694. [54] Reasons for Verdict, para 140. [55] Reasons for Verdict, para 58. [56] Reasons for Verdict, para 30 [57] The exercise of the right of peaceful assembly, whether under the Basic Law or under the Hong Kong Bill of Rights Ordinance, Cap 383, may be subject to restrictions provided two requirements are satisfied, namely (1) the restriction must be prescribed by law (“the ‘prescribed by law’ requirement”); and (2) the restriction must be necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others (“the necessity requirement”). The necessity requirement involves an application of a proportionality test. Here, in applying the proportionality test, the Court will have to examine whether the limited restriction by the prohibition on the right of peaceful assembly is proportionate to the aims sought to be achieved thereby. The proportionality test should be formulated in these terms:
See Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, paras 17 and 33-38. [58] Reasons for Verdict, para 309. [59] Reasons for Verdict, para 32. [60] Reasons for Verdict, para 33. [61] Reasons for Verdict, para 34. [62] Reasons for Verdict, para 35. [63] Reasons for Verdict, para 36. [64] Reasons for Verdict, para 262. [65] Reasons for Verdict, para 263. [66] Reasons for Verdict, paras 262 and 266. [67] Reasons for Verdict, para 277. [68] Reasons for Verdict, para 268. [69] Reasons for Verdict, paras 170-172. [70] Reasons for Verdict, para 168. [71] Reasons for Verdict, para 202. [72] Reasons for Verdict, paras 281, 284. [73] Reasons for Verdict, para 292. [74] The judge noted that the House of Lords in Rimmington had held that the common law offence of public nuisance met the requirement of certainty; and that the decision in Rimmington was applied by the Court of Final Appeal in Leung Tsang Hung v Incorporated Owners of Kwok Wing House (2007) 10 HKCFAR 480 in a civil context: Reasons for Verdict, para 298. [75] Reasons for Verdict, para 304. [76] Reasons for Verdict, para 306. [77] Reasons for Verdict, para 316. The judge also found that the absence or presence of a Notice of Prohibition per se was only one of the factors to be considered in determining the question of reasonableness: Reasons for Verdict, paras 414-415. [78] Reasons for Verdict, pp118-267. [79] Reasons for Verdict, para 306. [80] Reasons for Verdict, paras 325-326. [81] Reasons for Verdict, paras 331 and 332. [82] Reasons for Verdict, para 393. [83] Reasons for Verdict, para 392. [84] Reasons for Verdict, paras 261 and 273. [85] Reasons for Verdict, para 360. [86] Reasons for Verdict, paras 403-404. [87] Reasons for Verdict, para 373. [88] Reasons for Verdict, para 377. [89] Reasons for Verdict, para 204. [90] Reasons for Verdict, paras 358 and 389. [91] Reasons for Verdict, para 350. [92] Reasons for Verdict, para 358. [93] Reasons for Verdict, paras 385-386. [94] Reasons for Verdict, para 360. [95] Reasons for Verdict, paras 276-277. [96] Reasons for Verdict, para 409. [97] Reasons for Verdict, para 637. [98] Reasons for Verdict, para 517. As a result of that finding, the judge said the argument as to whether Civic Square was a private premises or a public place was academic: Reasons for Verdict, para 611. [99] Reasons for Verdict, para 631. [100] Reasons for Verdict, paras 468, 483 and 487. [101] The judge noted that some of the incitements were not covered in Charge 2. See, for example, Reasons for Verdict, para 635. [102] Reasons for Verdict, para 524. [103] Reasons for Verdict, paras 565-566. [104] Reasons for Verdict, para 418. [105] Reasons for Verdict, paras 526 (D1) and 539 (D4). [106] Reasons for Verdict, paras 580-581. [107] Reasons for Verdict, paras 597 (D5) and 617 (D6). [108] Reasons for Verdict, para 657. [109] Reasons for Verdict, paras 461, 558 and 591. [110] Reasons for Verdict, para 592. [111] Reasons for Verdict, para 562. [112] Reasons for Verdict, para 175. [113] Reasons for Verdict, para 608. [114] Reasons for Verdict, para 609. [115] Reasons for Verdict, paras 381 (Charge 1); paras 525, 538, 579 (Charge 2); paras 595, 615 (Charge 3); para 697 (Charges 4 and 5); and para 751 (Charge 6). [116] Reasons for Verdict, para 662. [117] Reasons for Verdict, para 641. [118] Reasons for Verdict, para 665. [119] Reasons for Verdict, para 642. [120] Reasons for Verdict, paras 675-676. [121] Reasons for Verdict, para 683. [122] Reasons for Verdict, para 695. [123] Reasons for Verdict, para 696. [124] Reasons for Verdict, para 702. [125] Reasons for Verdict, paras 728-729. [126] Reasons for Verdict, para 731. [127] Reasons for Verdict, paras 738 and 746. [128] Reasons for Verdict, para 747. [129] Reasons for Verdict, para 748. [130] Reasons for Verdict, para 744. [131] Reason for Verdict, para 741. [132] Reasons for Sentence, paras 85, 96, 124 and 136. [133] Reasons for Sentence, para 84. [134] Reasons for Sentence, para 58. [135] Reasons for Sentence, para 60. [136] Reasons for Sentence, para 61. [137] Reasons for Sentence, para 63. [138] Reasons for Sentence, paras 66 and 124. [139] Reasons for Sentence, para 75. [140] Reasons for Verdict, para 377. [141] D4’s Skeleton Submissions, paras 5.2-5.3. [142] It was an admitted fact that D5 only surrendered himself to Central Police Station on 3 December 2014: Admitted Facts II, para 34. That said, D5 had declared in a public gathering on 1 July 2013 that “We will be arrested. We will then make a second move. We will then submit to arrests peacefully. We will have surrendered ourselves, we will not defend. We (will) stretch out a pair of hands, (as if saying) make the arrests if you please. Let us chant together, (c) Occupy Central. Civil Disobedience. Occupy Central. Civil Disobedience. Arrest me if you please. I myself will bear the consequence. I myself will bear the consequence (.) Let’s keep this as a record. Thank you everybody, thank you to the Trio.” See Reasons for Verdict, paras 559-562. [143] Article 27 of the Basic Law states that “Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.” Article 28 of the Basic Law states that “The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.” Article 39 of the Basic Law states that “The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.” [144] See footnote 143 supra. [145] See footnote 143 supra. [146] Article 16 (Freedom of opinion and expression) stated that:
[147] See Leung Kwok Hung, footnote 57 supra, and the four-step proportionality test laid down in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 at [134]-[135]. [148] Respondent’s submissions, paras 35-37. [149] Respondent’s submissions, paras 24-34 (vis-à-vis D1’s Ground 1; D5’s Ground 6; D6’s Ground 1; D7’s Grounds 1, 2, 3 and 4; D8’s Ground 1; and D9’s Ground 1 and 2). [150] Respondent’s submissions, para 57. [151] For examples, D2 and D3’s Grounds 1 and 2, D5’s Ground 1, D6’s Ground 4, D8’s Grounds 2 and 3, and D9’s Grounds 4 and 5. [152] Respondent’s submissions, paras 46-47. [153] Respondent’s submissions, paras 48-49. [154] Respondent’s submissions, paras 50-53. [155] Respondent’s submissions, paras 54-56. [156] Respondent’s submissions, para 59. [157] Respondent’s submissions, para 60. [158] Respondent’s submissions, para 61. [159] Respondent’s submissions, paras 62-63. [160] Respondent’s submissions, para 64. [161] Respondent’s submissions, paras 67-69 and 71. [162] Respondent’s submissions, paras 76-78. [163] Reasons for Verdict, para 404. [164] Reasons for Verdict, para 374. [165] Saffron, at 426B-G. [166] Reasons for Verdict, para 185. [167] Reasons for Verdict, paras 186-195. [168] Reasons for Verdict, para 393. [169] Reasons for Verdict, para 401. [170] Reasons for Verdict, para 312. [171] Written submissions of D9, paras 29 and 30. [172] Reasons for Verdict, para 316. [173] Reasons for Verdict, paras 318 and 322. [174] Reasons for Verdict, para 741. [175] Stockli, at [3]. [176] See infra, at para 137. [177] We understand the trial resumed in June 2018: six of the defendants pleaded guilty; the seventh defendant pleaded not guilty and was acquitted by the jury. [178] Stockli, at [43]-[46]. [179] Rimmington, at [6]. [180] Pearce, at [27]. [181] Rimmington, at [32]. [182] Ibid., at [36]. [183] Rimmington, at [6]. [184] Ibid, at [36]. [185] Ibid., at [44]. [186] Reasons for Verdict, para 278. [187] Reasons for Verdict, para 315. [188] Reasons for Verdict, para 385. [189] See supra, at para 130. [190] Reasons for Verdict, para 401. [191] Rimmington, at [39]. [192] AB, pp 448-470. [193] Razvozzhayev v Russia and Ukraine, Udaltsov v Russia, (Unrep., ECtHR, Application No 75734/12, 19 November 2019), at [297]. [194] Rimmington, at [6]. [195] Reasons for Sentence, para 84. [196] Reasons for Sentence, para 96. [197] Reasons for Sentence, paras 69-70. [198] Reasons for Sentence, para 58. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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