HKSAR v. Wong Chi Fung and Others

DCCC 876, 885, 890 & 892/2020
(Consolidated)

[2021] HKDC 547

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 876, 885, 890 AND 892 OF 2020

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REASONS FOR SENTENCE

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Background

1.Relating to this incident, there are a total of 37 cases with 24 defendants. Orders of transfer were issued in October 2020.  The 4 defendants, together with Chu Hoi Dick Eddie (Chu) in DCCC 865/2020, were brought before the District Court on 3 November 2020.  All of them were represented by Mr Man of Messrs Ho Tse Wai & Partners.  The cases were further adjourned to 5 February 2021.

2.On 5 February, the 4 defendants together with Chu, through Mr Man, indicated their guilty plea, and the plea and sentence of these defendants was fixed for 30 April 2021.

3.All along, the proceedings were conducted in Chinese.  By a letter of 26 April 2021, Chu’s lawyer, Mr Man wrote to court that by now Chu changed his mind and would not plead guilty to the charge.  By another letter on the same day, Mr Man wrote to court that they have instructions to act for Chu and the other 4 defendants.  They have engaged Mr Graham Harris SC and Mr David Yuen of counsel to conduct mitigation on behalf of the defendants, and would request the hearing be conducted in English.

4.Because of the defence’s request, the proceedings are now conducted in English.

5.On 30 April Mr Harris SC represented all 5 defendants, and formally indicated that Chu decided not to plead to the charge.  The defence requested Chu’s case be adjourned to 11 June this year so that his case would be mentioned together with the other 19 defendants.  I approved the request.

6.In relation to the other 4 defendants, the Prosecution applied for a consolidation of these 4 cases.  The defence did not object to the application. Accordingly, the consolidated charge sheet was approved, that is to say, DCCC 876, 885, 890 and 892 of 2020 are now consolidated into one case.

7.All 4 defendants pleaded guilty to their respective charge and admitted the Summary of Facts as presented by the Prosecution.  I adjourned the sentence to 6 May.

The Summary of Facts

[note: the following brief facts are a concise version of the Summary of facts presented by the Prosecution]

8.On 23 April 2020, Tsoi Yiu Cheong, on behalf of the Hong Kong Alliance, submitted a notification to the Police making an application to hold a public meeting in Victoria Park from 9 am to 10 pm on 4 June 2020.

9.After careful consideration, the Department of Health advised against holding of any mass gathering events on 4 June 2020.

10.On 1 June 2020, pursuant to s 9 of the Public Order Ordinance Cap 245, the Commissioner of Police issued a notice to the Hong Kong Alliance prohibiting the holding of the proposed public meeting in the interests of public order, public safety and the protection of the rights and freedoms of others.

11.The Hong Kong Alliance did not appeal against the decision made by the Police to the Appeal Board on public meetings and processions.

12.From around 4 pm to 5 pm on 4 June 2020, the police set up 9 loud speakers’ device near or inside Victoria Park.  Through these loud speakers’ device, the police broadcast certain public announcements until around 10:30 pm on the day.  The announcements covered the following messages:-

(a) issuance of a notice prohibiting against holding of public meeting,

(b) participants would commit the offence of taking part in an unauthorized assembly

(c) the warning about the spread of Covid-19 in the community, and

(d) an appeal to the public that they should not participate in any unauthorized assembly and that group gathering was prohibited.

13.The Leisure and Cultural Services Department also broadcast announcement to remind the public that group gathering of more than eight people was not allowed in Victoria Park and the football pitches in Victoria Park were all closed.  No entry to these facilities was allowed.  Various notices were also posted inside Victoria Park that the football pitches were closed until further notice.

14.At about 6:25 pm on 4 June 2020, people started to gather at the water fountain plaza in Victoria park.  At about 6:36 pm, Lee Cheuk Yan (Lee) led a group of around 100 people heading towards the football pitches in Victoria Park.  Some reporters followed the group.

15.At about 6:44 pm, D1 and D2 together with other participants entered Victoria park via the entrance at the junction of Gloucester Road and Great George Street.

16.When Lee and other participants arrived at the north pavement near the football pitches No. 3 and 4, someone pulled away the mill barriers which were used to close the football pitches.  Participants entered the football pitches. The number of participants grew and most of them were wearing black clothes, and were also holding candles.

17.From about 7:09 pm to 8 pm, D1 to D4 sat together with others at football pitch No. 6.  They were wearing black clothes with candles in their hands.  Participants chanted political slogans.

18.At about 7:12 pm, D1 was interviewed by a reporter and later Lee was seen chatting with the defendants.  A man even took photos with D1 and D2.

19.At about 7:54 pm, Lee used a loudhailer to shout various political slogans which were echoed by the crowd.  Lee announced that the meeting would start at 8 pm and he also gave a speech.

20.At about 8 pm, D3, D4 and Chu passed a few bouquets of white flowers to Lee.  D4 together with others put the flowers on the ground.  At that time, there were around 20,000 participants.

21.Lee led the crowd to mourn and to give a minute of silence.  Thereafter, Lee together with the participants chanted political slogans and a video was played.  Political songs were sung.  There were some other activities held to commemorate the June 4^th incident.

22.At about 8:43 pm, Lee announced the meeting was finished and the crowd started to leave the football pitches.  As captured in the media footage, there were around 20,000 people participating in the public meeting inside Victoria Park at the material time.

23.The unauthorized public meeting was broadcast live on the website of the Hong Kong Alliance.  The program of this meeting was the same as the program posted on the Hong Kong Alliance’s online poster.  Songs and video clips played during the meeting were available on the Hong Kong Alliance’s live broadcast on the internet.

24.Subsequently, certain words and phrases in relation to the June 4^th incident were posted or written on the ground and on some facilities inside Victoria Park [see photos at Annex A to the Prosecution bundle].

25.Between 7:33 pm and 9:14 pm, as there was a large crowd entering and leaving the Park, the police had to implement road closure and traffic diversions which caused certain road traffic obstructions in the vicinity.

26.Various videos from open source, videos from the police and CCTV footages captured the incident at Victoria Park that night.  The relevant footage and the screen shots can be found at Annex B to K to the Prosecution bundle.

Mitigation

27.The defence submitted 3 mitigation bundles.  It was said since 1990, candlelight vigils have been held at Victoria Park on June 4^th each year.  The 2020 vigil was peaceful.  The defence said “by then, the turbulent times during the social unrest of 2019 had come and gone.”  The inconvenience to the public was minimal.  Road closures and traffic diversions were limited to a few streets in Causeway Bay area.  The period of time for which D1 and D2 stayed inside the park was relatively short.

28.It was also said the defendants played a passive role at the vigil.  The defence submitted that there was no or minimal imminence or threat to a breach of the peace, and it was a case which can be categorized as being at the less serious end of the spectrum for this kind of offence.  The defence urged the court not to hand down any immediate custodial sentence.

29.Personal biography of each and every defendant was provided.

30.D1 Wong is currently 24 years old and is single.  He was a graduate of the Hong Kong Open University.  He was a community officer or community development officer for two LegCo members at different times from September 2016 to December 2019.  He had a criminal record starting from August 2016.

31.D2 Shum was born in the United States and is aged 27.  He was married.  He was a graduate of the Chinese University of Hong Kong.  In November 2019, he was elected as a District Councilor.  In June 2021, it was said he gave up his US citizenship.  He had one criminal record back in 2018.

32.D3 Yuen is aged 27 and single.  She was a graduate from the City University of Hong Kong.  She was elected as a District Councilor in November 2019.  D3 had a clear record.

33.D4 Leung is aged 26 and single.  She graduated from the Hong Kong Polytechnic University.  She was also elected as a district councilor in Nov 2019.  D4 had a clear record.  The defence submitted a mitigation letter from the chairman of the Kwun Tong District Council urging the court to pass a lenient sentence.

Sentence

34.All 4 defendants are represented by Mr Harris SC, an experienced criminal silk. Upon legal advice, they pleaded guilty to the charge against them.  They admitted that the assembly on the day of the offence was unauthorized and they accepted their culpability.  In my view, given the strength of the evidence against them, that is a wise decision.  As the usual practice, they can get the full 1/3 discount in sentence.

35.The Basic Law guarantees freedom of assembly and procession for HK people.  But it is established that such freedom and rights are not absolute and are subject to restrictions, regardless of the status of the participants and the purposes of the assembly.

36.The facts of the case are straight forward.  On 1 June 2020, the Commissioner of Police issued a notice to the Hong Kong Alliance, prohibiting the holding of any public meeting in Victoria Park on 4 June 2020.  The Hong Kong Alliance did not appeal against the decision.  The prohibition notice was lawful and valid. 

37.All 4 defendants, being the participants, knew full well that the public meeting on 4 June 2020 was unauthorized.  From the video footage, at certain stage of the public meeting, the defendants sat on the ground in a group.  They wore black T shirts, some of the T shirts bore special design [see the photos attached to the mitigation bundle].  D1 was seen being interviewed and having photos taken.  Each of the defendants posted their photos onto their respective social media sites [see the photos in the defence bundle].

38.Defence counsel submitted that the defendants had observed the social distancing and put on masks in view of the pandemic.  However, I think counsel omitted to mention one important factor.  That is, from the very beginning, the public meeting was unauthorized.  The fact that the participants wearing masks and/or maintaining any kind of social distancing cannot exonerate their culpability.  Literally speaking, the defendants and other participants were saying to the public at large that they could enjoy more ‘freedom’ than others. On the other hand, the footage shows that there was a large crowd of people gathering in Victoria Park, not to mention the fact that the movement of the crowd would certainly generate traffic obstructions, health hazard and other risks factors. 

39.Defence counsel also submitted that this incident was a continuation of the 30-year odd candlelit vigil on June 4.  There was no act of violence, nor any damage to property.  There was no reprehensive conduct.  The 4 defendants did not intend, encourage or incite others to do so.  It was submitted that the inconvenience caused to the public was insignificant.  This incident was the first time the objection was based on public health consideration.  Defence counsel urged the court to give full credit to the plea at first opportunity.

40.Defence counsel said that the defendants played a passive role at the public meeting.  Obviously that is not the case as D1 and D2, being political figures, had their political purposes to serve.  D2, D3 and D4 at that time were also District Councilors.  At certain point in time, the defendants stood in a group and took a group photo, and they were not submerged in the crowd [see the photos provided by the defence].  Undoubtedly, they occupied a special status, and they used the social media to ‘advertise’ their presence in the public meeting.

41.In SJ v Wong Chi Fung [2018] HKCFA 4, a case that D1 in this case was also involved, the Court of Final Appeal endorsed the Court of Appeal’s sentencing principles and the list of factors relevant to a decision on the appropriate sentence for unlawful assembly.  The CFA also said it was right for the Court of Appeal to send the message that unlawful assemblies involving violence, even the relatively low degree of violence, would not be condoned and might justifiably attract sentences of immediate imprisonment in the future, given the gravamen of the offence involving the instigation of a risk and a fear of a breach of the peace due to the number of protesters involved.  The CFA also promulgated specifically that it is not the role or function of the courts of HKSAR to enter into any other political debate.  Instead the duty of the courts is, through an independent judiciary, to administer the law of the HKSAR and to adjudicate on the legal issues raised in any case according to the law.

42.In the CA judgment of that case, Poon JA [as he then was] provided a comprehensive approach to tackle the offence of unlawful assembly under the heading of H3 and deliberately designated another heading of H4 [starting from para 128 to 134 of the judgment] to deal with issues relating to ‘Disrupting public order with violence’.  The CA made it clear, at para 123, that: “In sentencing, the court will consider the gravamen of the offence with which an offender is charged.  The gravamen of the offence of unlawful assembly is the participants’ acting in large numbers and using those large numbers to achieve their common purposes.”  The Court of Appeal further ruled, at para 125 to 126, that, “the fact that the offenders were trying to achieve their common goal by sheer numbers, is a characteristic common to all offence of massive public disorder. …  when a large number of demonstrators are gathered, emotions are likely to run high, or the crowd may even become agitated, so that these situations have the inherent risk of breaking out into violence.  Occasionally, unruly element may also be present, who would seize the opportunity to achieve the very objective of fomenting violence.  Such risks cannot be overlooked… It follows that the provision on unlawful assembly under s 18 is a necessary preventive measure, designed to nip in the bud the serious consequences which may arise from a breach of the peace or possible breach of the peace.”

Accordingly, the CA stressed, at para 127, that:

“On the basic premise that public order must be maintained, and taking into account the gravamen of the offence of unlawful assembly, the court, in passing sentence, not only has to impose a penalty that is appropriate to the punishment of the offenders, but it also has to take into account the factor of deterrence. That is to say, a sentence must not only seek to prevent the offenders from reoffending, but also to give a warning to deter others from violating the law by breaking and disrupting public order in like manner.”

43.In the case SJ v Chung Ka Ho [2020] HKCA 990, Pang JA made it clear that the gravamen of the offence is preemptive so that damages, if any, to social peace can be eradicated at an early stage and a sentencing court has to accord the element of deterrence with priority [see para 52 to 56 of the judgment].  In that case, the defendant, aged 24, pleaded guilty to the offence of unlawful assembly and originally was sentenced to a community service order of 120 hours.  The Court of Appeal allowed the review of sentence and imposed an imprisonment term of 3 months.

44.It is also worthy to mention that the case of Wong Chi Fung related to the offence occurred in September 2014 which was well before the unprecedented social turmoil of 2019.  The present case occurred in June 2020 when the repercussions and impact of the 2019 turmoil still lingered on, and the risks factors cannot be underestimated.

45.In the present case, it is clear that what the defendants did were deliberate and premeditated.  They openly defied the law, knowing that they had no lawful authority for taking part in an unauthorized assembly, despite all the public announcements broadcast by the police.  The offence was committed on 4 June 2020.  As I mentioned earlier, I cannot disregard the fact that Hong Kong was and is still suffering from the volatility of public order and political turmoil in 2019.  Emotion can run high and unruly elements can take advantage of any opportunity to incite and encourage violence.  That is especially the case when the event was held on a special day. This is a potential risk factor that cannot be underestimated or ignored.

46.I also have to consider the scale of the unauthorized assembly on the date of the offence.  The video footages together with the screenshot photos [see the screenshot photos C to J attached to the Prosecution bundle] depict a large crowd of around 20,000 participants gathering on the football pitches.  With such a crowd, it is not difficult to see the extent of disruptions to the traffic and other people in the vicinity when the participants entered and later exited Victoria Park.

47.The only mitigating factor for all 4 defendants is their guilty plea, for which they can get 1/3 discount in sentence.  They have their political belief and conviction, as such, there is no sign of any remorsefulness from any of the defendants.

48.Defence counsel has suggested that a community service order is justified especially for D3 and D4.  The CA in the case of Wong Chi Fung abovementioned [at para 146 and 147] made it clear that,

“The court has always considered genuine remorse as a precondition for receiving a community service order. If no genuine remorse is demonstrated, the court would normally refuse to make a community service order.

Genuine remorse means that the offender acknowledges that he has committed an offence and shows remorse for what he has done and caused.

If the offender considers that his prosecution is, in itself, not justified and maintains that particular view even upon conviction, that would be a clear indication that he is still refusing to accept what he has done is unlawful. In that case, the court will not accept his claim of genuine remorse, for such a claim contradicts his stance that the prosecution was unjustified.”

49.I bear in mind that the defendants were charged with unauthorized assembly, not unlawful assembly, but the maximum sentence under both provisions, namely s 17A(3)(a) and s 18 of Cap 245, is the same. I am also of the view that the sentence should reflect the element of deterrence, not just to reflect the culpability of the defendants who committed the offence on the day, but also to deter people from offending and re-offending in future.

50.Taking all factors into account, I sentence the defendants as follows:-

D1 Wong

51.He is aged 24 and had a total of 6 convictions, with 3 similar, since August 2016.  It is to be noted that D1 committed the present offence while on court bail when D1 was charged with offences relating to unauthorized assembly in Aug 2019 [Court reference WK/2289/2020].  That is an aggravating factor.  I consider the sentencing principles promulgated by the CA in the case of Wong Chi Fung.  I adopt a starting point of 15 months’ imprisonment.  With his guilty plea, I reduce the sentence to 10 months.

52.D1 was last discharged in July 2019.  He committed the present offence in June 2020.  D1 is currently serving a 4-month imprisonment term after he was convicted of the offences of taking part in an unauthorized assembly and using facial covering.  As such, he is a repeat offender.  I have considered the totality principle and take the view that an accused person should not get more discount if he committed more similar offences.  That is a wrong message to the public.  Accordingly, I order that the present sentence should run consecutive to the sentence that D1 is serving at the moment.

D2 Shum

53.He is 27 years old and got married in 2020.  He had one conviction of contempt of court in 2018 and was sentenced to one month’s imprisonment which was suspended for 12 months.

54.He was elected in 2019 as a district councilor and assumed office in 2020.  Similarly, D2 will have 1/3 discount in sentence because of his plea.  I adopt a starting point of 9 months’ imprisonment and reduce the sentence to 6 months.

D3 Yuen

55.She is aged 27 and had a clear record.  Similarly, she was elected as a district councilor in 2019 and assumed office in 2020.  I will give her 1/3 discount because of her plea.  I adopt a starting point of 6 months’ imprisonment and reduce it to 4 months.

D4 Leung

56.She is aged 26 and had a clear record.  She was pursuing her career in accounting.  She assumed the office of district councilor in 2020.  Because of her plea, she will have 1/3 discount in sentence.  I adopt a starting point of 6 months’ imprisonment and reduce it to 4 months.