HKSAR v. Chan Ho Wun and Others

DCCC 534/2020

[2021] HKDC 645

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 534 OF 2020

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REASONS FOR SENTENCE

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1.The 1^st to 4^th defendants pleaded guilty to Charge 1, unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in an unauthorised assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Charge 2 was an alternative to Charge 1.

2.All 10 defendants pleaded guilty to Charge 3, organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance.

3.The 7^th and 10^th defendants pleaded guilty to Charge 4, knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance.  For the other 8 defendants, Charge 4 was ordered to be kept on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.

The Facts

4.The particulars of Charge 1 refer to a press conference held on 30 September 2019 by the first four defendants where they admit unlawfully inciting other persons unknown to, without lawful authority or reasonable excuse, knowingly take part in a public procession which was an unauthorised assembly.

5.The particulars of Charge 3 refer to all the defendants organising a public procession which was an unauthorised assembly on 1 October 2019, and the 7^th and 10^th defendants admitting they knowingly took part in that unauthorised public procession without lawful authority or reasonable excuse, Charge 4.  Full particulars of the offences are set out in the Amended Summary of Facts and admitted by all defendants on 17 May 2021.

6.The Commissioner of Police had prohibited the holding of public meetings and a public procession on 1 October 2019 by the Civil Human Rights Front, “the CHRF” and the 1^st defendant, its vice convenor.  The CHRF stated the purpose of the proposed meetings and procession to be “October 1 procession: 5 demands, not one less”.

7.The police put in writing in a letter of objection why they prohibited the holding of the public meetings and objected to the holding of a public procession.  It was made in the interests of public safety, public order and the protection of the rights and freedoms of others.  It was based on the numerous violent incidents arising from public meetings or processions organised by the CHRF and other organisations between June and September 2019.  They listed out those various incidents that turned violent in the letter.

8.The CHRF appealed that decision and on 30 September 2019 the Appeal Board confirmed the Commissioner’s decision; the appeal was dismissed.  It agreed that the events posed a serious threat and risk to members of the public and participants.

9.Shortly after the Appeal Board’s determination the CHRF held a press conference expressing their anger and disappointment at the Hong Kong Government’s refusal to let citizens express their views in a lawful manner.  The 1^st defendant was part of this press conference.

10.The Police Public Relations Branch held a press conference on the same day to explain the decision of the Commissioner of Police in detail.  It was widely broadcasted.  They urged the public not to participate in any unlawful public events on 1 October because there was a substantial risk of violence based on the escalation of violence and wanton destruction over the past 3 months.  They gave specific examples of recent violence.  They also shared details of the intelligence they had received relating to the public holiday, National Day, 1 October.  They used screenshots of intelligence and Internet messages to demonstrate their concern.

11.Their intelligence indicated hard-core rioters were planning many attacks on 1 October all over Hong Kong.  There was an appeal to kill police officers and suggestions to disguise themselves as police officers to kill others and blame the police.  There were calls to set fire to shopping malls to cause huge destruction.  There was a call to hurl petrol bombs into shopping malls and MTR stations as well as petrol stations.  There was a call for suicide bombers to carry out lethal attacks or rather those that were suicidal to volunteer for suicide missions.  The police stressed that their intelligence was good and the risks were very real.  They urged the public to stay at home for their own safety.  The transcript of that conference is Exhibit P39 A and B.

12.In the afternoon of 30 September, the 1^st to 4^th defendants held another press conference outside the Court of Final Appeal attended by many news media outlets and widely broadcasted.  They all jointly incited the public to join them and participate in an unauthorised public procession from Causeway Bay to Central on 1 October, the following day, notwithstanding the decision of the Commissioner and the Appeal Board.  The transcript and translation of that conference is Exhibit P26A and B.

13.The 1^st defendant posted on his Facebook page on the same day following that press conference to continue to incite the public to participate.  He posted more messages in the morning of 1 October 2019 inciting the public to join him and the 2^nd to 4^th defendants in Causeway Bay to march to Central.

14.Later, from about 12:20 pm all the defendants arrived at Great George Street in Causeway Bay with the last defendant, the 10^th defendant arriving at about 1:11 pm just as the defendants headed the procession with a banner and started to lead the way to Central.  The Summary of Facts set out what they did, who spoke to the press, what they said, what same sloganed T-shirts some wore and what chants were led by some and repeated by others before they set off.  All 10 defendants pleaded guilty to Charge 3 organising this unauthorised assembly together.

15.They all formed the head of the public procession by either holding the banner or walking behind those holding the banner.  This banner demanded the end of dictatorial rule and a return of power to the people.  They led thousands of participants from Causeway Bay, to Hennessy Road, through Wanchai, to Queensway, to Des Voeux Road Central and eventually arriving at the junction of Pedder Street and Chater Road.  All along the route they led the chanting of political slogans that were anti-police, anti-government, anti-China, calling for universal suffrage and for their 5 demands, not one less.

16.On Hennessy Road the 2^nd defendant announced a minute of silence to mourn National Day when they reached Wanchai MTR station.  There were police officers stationed on a footbridge on O’Brien Road to defend Wanchai MTR station from potential vandalism.  The police officers were abused with foul language by many protesters who clearly became emotional.

17.After a minute of silence and when the banner group moved off again past that footbridge, the 2^nd defendant can be seen pointing his finger at those police officers above and then holding up 5 fingers.  Many participants followed suit and continued to abuse those officers above.

18.Along this route led by the banner group the prosecution highlighted acts of vandalism and obstruction as well as the obvious fact that those roads and other roads connected to those roads were blocked off for traffic and transport.  Black clad protesters spray-painted the street, others moved barriers, traffic cones and bins to block and barricade several roads along the route of the procession.  Others vandalised public property.  These were all incidents filmed by media outlets before the banner group arrived in Central.

19.At 2:25 pm the whole banner group arrived in Central and then the 1^st, 2^nd and 3^rd defendants made speeches with the 4^th to 9^th defendants stood in close proximity.  These speeches are transcribed and translated at Exhibit P54A and B.  As those speeches finished a black clad protester is seen kicking and then throwing another traffic cone in front of a moving minibus at that same junction.  The protesters were thanked for their support and participation but not urged or told to disperse.  In fact, thousands continued to march past this junction towards the Liaison Office of the Central People’s Government. Traffic was seriously disrupted, vandals spray-painted public property, roads were barricaded on the way and many can be seen carrying long bamboo sticks.  They were met by a police blockade.

20.All the acts highlighted by the prosecution to show this procession was not peaceful and that there was violence and reprehensible conduct were all gleaned from hours of footage from several media outlets.  Much of this was played in open court; MFI-1 is a playlist of video footage relied on by the prosecution and played.

21.The prosecution also relies on video footage of unlawful behaviour, criminal damage, arson and violence filmed during the course of that public procession but after the head of the procession had reached its destination point in Central.  Obviously, the procession stretched back a significant distance and all its participants did not arrive at the same time at the finishing point.  This unauthorised assembly did not start and end with the defendants; the procession had a head, body and tail.

22.The body of the procession was still walking through Wanchai at 4:30 pm. Video footage captures bricks being thrown towards police stationed on a footbridge near the Police Headquarters and laser beam interference.  At about the same time groups of protesters gathered at Admiralty outside the Central Government Offices throwing petrol bombs.  There were petrol bombs thrown along or near the route of the public procession in Admiralty and Wanchai with explosions heard and fires raging.

23.The major roads and side roads from Causeway Bay to the Western Harbour Crossing were occupied by protesters causing serious disruption to traffic.  Over a hundred bus routes were affected and tram services suspended.  Vehicles were stuck on roads and unable to leave.

24.All shops and restaurants on the procession route were affected.  They were almost all closed.  Shops and restaurants in Causeway Bay and Wanchai rarely close on a public holiday in Hong Kong; their businesses suffered.

Principles of Sentencing

25.I adopt my principles of sentencing from both DCCC 536/2020 and DCCC 537/2020. I found there was a need in those cases for a deterrent and punitive approach in sentencing and that an immediate term of imprisonment was the only appropriate sentencing option.

26.I took into account HKSAR v Chow Ting HCMA 374/2020 where Barnes J, in that bail application, agreed the magistrate in sentencing the applicant to a term of imprisonment for the offence of incitement to knowingly take part in an unauthorised assembly and knowingly taking part in an unauthorised assembly could draw on sentencing factors set out in the Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 notwithstanding they were for offences of unlawful assembly.

27.Wong Chi Fung was an application for review for offences relating to unlawful assemblies.  The Court of Appeal held that the use or threat to use violence was an aggravating factor and the sentence must provide for both punishment and deterrence.  Deterrence is necessary to maintain public order.  Sentencing principles for unlawful assemblies involving violence were set out in paragraph 108 of that authority by Poon JA, as he then was.  

28.Poon JA identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions will run high and the crowd may become agitated so that these situations have the inherent risk of breaking out into violence.  There will be those who seek to instigate violence from volatile situations, therein lies the risk that cannot be ignored.

29.The Court of Appeal in the later judgement of Secretary for Justice v Chung Ka Ho (2020) HKCA 990 found the sentencing factors in Wong Chi Fung not only applicable to unlawful assembly involving violence.  In paragraph 54 it is made clear that it is unreasonable to divide unlawful assemblies by violence when passing sentence.  Even if there is no actual violence, the court should take into consideration the threat and imminent risk of violence and actual breach of peace caused by criminal acts.

30.That court said at paragraph 56, “To conclude, there is absolutely no basis to say that the decision in Wong Chi Fung solely applies to an unlawful assembly involving violence. The decision in Wong Chi Fung never held that cases not involving actual violence should not be given a strong punitive and deterrent sentence. All have to depend on the actual circumstances of each case.” (Quoted from the English translation prepared by the Prosecution in their List of Authorities, MFI-10)

31.The actual circumstances of this case involves an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession.

32.As far as the incitement charge is concerned, I have taken into account the recent authority of Secretary for Justice v Poon Yung Wai (2021) HKCA 510. The Court of Appeal found on those facts that an incitement to unlawful assembly involving violence called for a severe and deterrent immediate custodial sentence. Here, there was incitement to take part in an unauthorised assembly with peace advocated but I have taken on board the discussion in that authority and drawn from it; the gravamen of this offence can, depending on certain factors, attract a punitive and deterrent sentence.

33.Since preserving public order is important and deterrence a consideration, I have also taken into account the prevailing circumstances at the time some defendants incited others to take part in and all organised together that unauthorised assembly. The context in which a crime is committed is of relevance to assessing its gravity and the culpability of offenders.

34.When these offences were committed in the present case, the social unrest from June 2019 had escalated over the ensuing months and became relentless, increasingly violent and disturbing.  There was social unrest, protesting and violent eruptions almost every day by and during the month of September. Some of them were riots or violent unlawful assemblies of large-scale and lengthy durations. On 29 September 2019, the day before Charge 1, approximately 200 petrol bombs were thrown by protesters.  All sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation in Hong Kong at that time.

35.Therefore, in my view, the sentencing principles such as protecting the public, meting out penalties, open condemnation and deterrence as set out by Poon JA in Wong Chi Fung are applicable to all these charges.  Meting out penalties will be commensurate with the offence committed and the facts.  One that reflects the seriousness of the facts and the culpability of each offender.

Reasons for Sentence

36.The Basic Law and the Bill of Rights both guarantees the right of assembly and right of expression for Hong Kong residents. However, these rights are not absolute and are subject to restrictions imposed by law. The 3^rd defendant in this case has previously challenged the constitutionality of those restrictions imposed by law. That challenge was ultimately considered by the Court of Final Appeal and the statutory requirement for notification was ruled constitutional; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229.

37.Many other jurisdictions in the world have the same or very similar requirements. These freedoms are enjoyed subject to those restrictions and irrespective of a person’s politics. I add here that the politics, beliefs, opinions of any of the defendants and the strength of their convictions are irrelevant to sentencing.

38.I have taken into account what each of the 1^st to 4^th defendants said in their press conference on 30 September to incite members of the public to come out in droves the following day to participate in a procession banned by the Police. A reading of the transcript shows they know a procession is subject to restrictions and when those restrictions were imposed, that is when the Police refused to issue a letter of no objection, then they called on others to join them to defy the police and ignore the law by declaring they were only exercising their right to a peaceful procession.

39.The content and tone of the conference and Facebook posts was that they had the right to peaceful procession and did not need the Police approval to demonstrate and repeated it over and over again. They did call for a peaceful, rational and non-violent procession but how naive and unrealistic was that considering what was happening on a daily basis was the opposite. This is not with hindsight. The risk was very real every day at that time. In fact, even the 2^nd defendant prefaced it with “This time, we will demonstrate in a peaceful, rational and nonviolent manner.” (Page 4 of P26B translation).

40.I have also taken into account what each defendant is recorded as saying when interviewed either on the 30 September or 1 October 2019. It was publicly said by many and over and over again that their rights have been suppressed, the law is unfair and they have been deprived of their freedom. By saying it over and over again does not make a statement come true or mitigate the circumstances.

41.During the press conference on 30 September when there was incitement there was anger because of the decision of the Police and the Appeal Board. The defendants were angry and frustrated that the Police objected to CHRF’s public meetings and procession on National Day.

42.I do not agree with the submission that the defendants, all well versed in the Public Order Ordinance and the law, honestly believed the prohibition on holding a procession without police permission breached their constitutional right of freedom of assembly.

43.In the context in which these offences were committed, it was naive to believe a rallying call for peaceful and rational behaviour would be enough to ensure no violence. The submission that this honest belief explains their actions, that their moral culpability is relevant and their intent to organise a peaceful assembly was genuine carries little weight.

44.I note that no defendant ever addressed the reasons for the Police objection and the Appeal Board’s decision. They did not refute them or counter them. They did not make any mention of the intelligence received by the police which directly related to unruly elements planning violence on that same day. The Police publicly put on record their intelligence and what was on the Internet for all to see yet particularly the first 4 defendants did not see it necessary to address this despite their incitement other than to say their procession would be peaceful and non-violent. I repeat, I find that often repeated statement was naive and unrealistic.

45.All defendants have stressed that they intended the procession to be peaceful and submitted that they cannot be held accountable for anything unlawful or illegal that happened out of sight or after they arrived at the final destination and declared the procession over. However, they organised the unauthorised assembly and 4 of them emotively encouraged and incited people to participate in it. Actions have consequences for everyone irrespective of who they are.

46.These charges involve an unauthorised assembly but it does not mean I cannot take into account the criminal and violent acts committed by those who were with the unauthorised assembly and procession. The evidence shows that the line between peaceful assembly and conduct which disrupts or threatens to disrupt public order was crossed.

47.The fact there was criminal damage, acts of violence, weapons carried, roads blocked and fires started on or along the route of the procession and carried out by participants or people in the vicinity of the procession is evidence I can consider and evidence it was not peaceful. Public order was affected and the inherent real risk of violence erupting where there were large crowds gathered did materialise.

48.The fact that the defendants made conscious decisions to break the law and challenge public order in this manner during such volatile times is a serious factor.

49.After careful consideration of the above principles, factors and relevant evidence directly related to this unauthorised assembly as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.

50.I do not find a term of imprisonment appropriate or impose a term of imprisonment because of or for participating in a peaceful assembly. In any event, the facts show it was not peaceful and the defendants must have been well aware of the very real risk that that line would be crossed as it had so very often in those months and even days before. Despite this, the real risk was ignored and public order jeopardised.

51.What this also means for the motive put forward by several defendants, that they committed the offences as acts of civil disobedience, is that it does not carry significant weight. The submission that their behaviour is a form of civil disobedience is not a significant mitigating factor here. To conform to civil disobedience, the facts must show the acts were peaceful and non-violent.

Mitigation

52.At the time of these offences, all the defendants except for the 3^rd, 7^th and 10^th defendants had clear records. The 10^th defendant has one previous conviction for taking part in an unlawful assembly in 1993.  The 7^th defendant had 2 previous convictions and was in breach of a suspended sentence imposed on the 11 September 2019 for 2 counts of inciting others to take part in an unlawful assembly contrary to section 18 of the Public Order Ordinance.  This sentence was imposed 3 weeks before he committed these offences under the same Ordinance.  The 3^rd defendant has many previous convictions, 17 in total.  They all involve offences of a similar nature and many relate to public order offences.  None of these previous convictions mentioned above were offences motivated by greed, corruption, anger or dishonesty.

53.Since this offence all but the 1^st, 7^th, 9^th and 10^th defendants have been convicted by me in either DCCC 536/2020 or DCCC 537/2020 for either organising an unauthorised assembly and/or taking part in an unauthorised assembly on 18 August 2019 and 31 August 2019 respectively, only weeks before the commission of these offences here.

54.The 2^nd, 3^rd, 4^th, 6^th and 8^th defendants were convicted after trial in DCCC 536/2020 and the 2^nd, 5^th and 8^th defendants pleaded guilty in DCCC 537/2020.  The 2^nd and 8^th defendants were involved in both cases.

55.The facts of this case and those 2 cases cannot be compared. In my view, the prevailing tumultuous situation in Hong Kong was even more volatile by 1 October 2019.

56.I have heard full mitigation on behalf of all the defendants.  Many have provided me with a significant number of mitigation letters and biographies relating to their careers and public service.  I have read and taken them into account.

57.Most defendants submit that these charges and facts do not call for a custodial sentence and if they did then a suspended sentence would be appropriate. It has been highlighted that there are no guidelines or tariffs for sentencing these charges involving unauthorised assemblies.  It has been stressed that the 1^st to 4^th defendants advocated for a peaceful, rational and non-violent public procession.  They did not intend any violence or reprehensible conduct.  When the procession ended, meaning when they as the head of the procession arrived at the finishing point in Central, there had been no violent incidents attributable to the procession.

58.It was stressed that none of the defendants were present during and certainly did not instigate or condone any of the violence seen on the video footage shown in open court.  It has been submitted that the disruption to the roads and public transport system was not so severe and the scale of the procession was large but not as large as past unauthorised processions such as in DCCC 536/2020.

59.I have reminded myself that the starting point for each charge must be commensurate with the offence committed. Deterrent sentences must prevail here and therefore; personal individual mitigation may not carry much weight unless exceptional.

60.The 1^st to 4^th defendant committed both Charges 1 and 3 and I differentiate their roles from the other defendants. They incited others to join an unauthorised assembly they organised. In light of the necessity of a deterrent sentence, positive good character, previous clear record or personal exceptional mitigation carries little weight.

61.In any event, the 2^nd, 3^rd and 4^th defendants are offenders who were involved most recently in DCCC 536 and/or DCCC 537/2020, only weeks before 30 September 2019. In that same vein and for the same reason, that also applies to the 5^th, 6^th and 8^th defendants as well. Their previous good character and personal individual mitigation carries little weight in this case.

Charge 1 - Starting Point

62.To arrive at an appropriate starting point for charge 1, inciting others to knowingly take part in an unauthorised assembly, I have taken into account several factors. That includes the means of incitement and the number of people covered; the 1^st to 4^th defendants arranged a premeditated press conference outside the Court of Final Appeal with many media outlets present to ensure maximum publicity. Then the effects of incitement were amplified by the 1^st defendant’s Facebook posts.

63.I have taken into account what each of these 4 defendants said during it to incite others. They made it clear they needed large numbers to come out and since the meeting point was Causeway Bay with a finishing point in Central then it was foreseeable that that whole area would be paralysed. The route of the march included Wanchai and Admiralty which had been the scene of many recent violent clashes. The inherent risk of violence breaking out was high.

64.As I have indicated above, I have taken into account that each defendant then went on to commit charge 3, organising that unauthorised assembly. Their culpability is higher than the other defendants in this case.

65.After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate.

Charge 3 - Starting Point

66.I find the other defendants, the 5^th to 10^th defendants, equally culpable in organising this unauthorised assembly. It is true some spoke to the press, some walked in front of others holding the banner, some replied to political slogans, others took the lead to chant the slogans whilst others did very little except be with the core group of organisers.

67.After all relevant factors are taken into consideration, in my judgement, a starting point of 24 months’ imprisonment is appropriate for the 1^st to 4^th defendants.

68.For the 5^th to 10^th defendants I take a starting point of 18 months’ imprisonment.

Charge 4 - Starting Point

69.The 7^th and 9^th defendants pleaded to charge 4, knowingly taking part in this unauthorised assembly. In light of the facts, close nature of the charges and totality principle I intend to make sentences for charges 3 and 4 concurrent.

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

71.All defendants indicated their pleas before their trial commenced but after trial dates were set. I have taken into account the authority of HKSAR v Ngo Van Nam (2016) 5 HKLRD 1 and apply a discount of 25% or just under to the starting point for their pleas.

The 1^st defendant

72.The defendant is now 25 years old and at the time of the offence was the vice convenor of the CHRF.

73.The 1^st defendant chose to represent himself in mitigation and read out a letter in open court. He reiterated that he committed the offences but had committed no wrongdoing. He committed the offences as acts of civil disobedience. His letter is marked MFI-2.

74.After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 1^st defendant to 18 months’ imprisonment for each charge.

The 2^nd defendant

75.I have a letter from the 2^nd defendant explaining his ideals, intentions and commitment. I have taken into account the other 6 mitigation letters and their contents. They reiterate his long dedication to public service, in particular the welfare of workers and labour rights. I have considered everything said in mitigation as well as all the mitigation material in MFI-3.

76.After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 2^nd defendant to 18 months’ imprisonment for each charge.

The 3^rd defendant

77.I have considered submissions, medical details and the many mitigation letters from all walks of life who admire him, are indebted to him and support him. The contents of the letters illustrate his long-term genuine commitment to social injustice and the need to raise public awareness of it. He has involved himself with the welfare of migrant workers, refugees, the homeless, the elderly and other underprivileged groups. I have been furnished with a list of judicial review applications made by the 3^rd defendant over many years. In submissions, it is explained that he committed these offences as acts of civil disobedience.

78.I have a letter from the 3^rd defendant himself. He has pleaded guilty but admits no wrongdoing. He explains why despite knowing he was breaking the law, he nevertheless made a public appeal for others to participate in this unauthorised assembly. He explains his commitment and long-term fight for democracy and justice. However, he does not attempt to justify his actions. He accepts full responsibility for the consequences of his actions.

79.I have taken into account his mitigation bundle, MFI-4. I have been asked to take into account the sentences I imposed in DCCC 536/2020 and DCCC 537/2020. However, other than the fact some defendants are repeat offenders, it is not appropriate to compare the cases albeit the offences are similar. I have been urged not to make the 3^rd defendant liable for offences committed by assembly participants or onlookers acting independently.

80.After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 3^rd defendant to 18 months’ imprisonment for each charge.

The 4^th, 5^th and 9^th defendants

81.I have considered the submissions, biographies and list of authorities in the mitigation bundle, MFI-5. It has been urged upon me to give weight to the fact that the 4 defendants who incited others stressed publicly that the procession must be peaceful. I should also take into account that on the whole, the procession was peaceful and sentence on that basis. The reprehensible conduct was not incited by either the 4^th, 5^th or 9^th defendants.

82.It was submitted that the defendants committed these offences because they honestly believed that the Police were abusing their power to object to peaceful demonstrations and depriving the defendants of their constitutional right to peaceful assembly.

83.It has been submitted that although the 4^th and 5^th defendant were involved in similar offences only in August 2019 and were repeat offenders, all offences arose from the social unrest in 2019 which was ongoing. It is submitted that their criminality overlapped and that their motives for committing these offences repeatedly were common and consistent. I was urged to continue to suspend any term of imprisonment for the 4^th and 5^th defendant and suspend any sentence of imprisonment against the 9^th defendant.

84.I have a statement from the 5^th defendant who says he pleads guilty but does not admit any wrongdoing because he was participating in an act of civil disobedience. He sets out his personal views. It was submitted on behalf of all the 3 defendants that their motive, their acts of civil disobedience are relevant to sentencing.

85.I have now been given further detail of the 4^th defendant’s lesser-known public office appointments to further demonstrate his public service. He was given a suspended sentence by me in DCCC 536/2020 where I considered his mitigation, background, public service and commitment to the community was such that it justified suspending a term of imprisonment.

86.However, this is a repeat offence with an additional charge and more serious factors in a very short period of time in even more tumultuous times and I no longer find a suspended sentence appropriate. After a discount of 25% or 6 months is applied to the starting point of 24 months for both Charges 1 and 3, I sentence the 4^th defendant to 18 months’ imprisonment for each charge.

87.The 5^th defendant was given a suspended sentence by me in DCCC 537/2020 where I considered the facts of that case, his previous clear record, background, public service and Silver Bauhinia Star Award.

88.Similarly, I no longer find a suspended sentence appropriate under the circumstances. After I rounded down the discount of 25% applied to the starting point of 18 months for charge 3, I sentence the 5^th defendant to 14 months’ imprisonment.

89.The 9^th defendant was not involved in either of those 2 previous cases. He is now 61 years old, married with 2 children. I have been appraised of his distinguished public and community services, including a Silver Bauhinia Star Award in 2007. It was awarded for his distinguished public and community service, in particular for his contribution to the development of information technology. He has served on no less than 24 statutory or advisory boards, committees and councils. He is a long-term District Board member, was a Regional Council and later a Legislative Council member.

90.After I rounded down the discount of 25% applied to the starting point of 18 months’ for charge 3, I sentence the 9^th defendant to 14 months’ imprisonment.

91.I find his mitigation, long public service and award gives me a valid reason to find it appropriate to suspend his sentence for 24 months. In addition, he played a very passive role in organising this unauthorised assembly. He was first seen half an hour before the procession started and was stood with the 1^st to 3^rd defendant when they gave a press conference at the beginning and at the end. He walked behind those holding the banner during the procession and was not interviewed nor vocal during it.

The 6^th defendant

92.Although I sentenced the 6^th defendant to a term of imprisonment in DCCC 536/2020 and heard mitigation on that occasion, I now have more details, more letters and in particular a letter from the 6^th defendant herself to consider, MFI-6. I have taken into account her personal letter which sets out her family background, upbringing and how and why she has come to cherish the freedom of expression and freedom of assembly for Hong Kong. She laments the lack of trust between the administration and the public; she sees reconciliation as necessary to move forward.

93.It was stressed that the 6^th defendant was a Legislative Councillor and in between 1998 and 2016 she was involved in over 150 bills committees which demonstrates her dedication and work ethics. I have received a list of those Bills gazetted. I have received 2 more letters from people of different backgrounds who speak on her behalf.

94.After I rounded down the discount of 25% applied to the starting point of 18 months for charge 3, I sentence the 6^th defendant to 14 months’ imprisonment.

The 7^th defendant

95.Written mitigation and authorities for the 7^th defendant are exhibited at MFI-7. It includes a letter from the 7^th defendant, his brother, the Chairperson of United Filipinos in Hong Kong, a Professor from Hong Kong University and a doctor who cares for his great grand aunt living with the 7^th defendant.

96.In submissions, in part B, it was said it was essential to recognise that the defendants were not acting in contemptuous disregard of the law when assessing their moral culpability. Mr Paul Harris SC goes on to state that the defendants did not deliberately embark on a campaign of civil disobedience and that as the 2^nd defendant said in that press conference they believed that the notification required under the Public Order Ordinance was unconstitutional. Mr Harris describes it as their honest belief.

97.It was submitted I could not make the defendants liable for the incidents of violence seen in Wanchai and Admiralty after the defendants arrived at the finishing point of the unauthorised assembly. As I have said above I am of the view I can take it into account and it certainly meant the assembly itself was not peaceful. I have of course not taken into account the incidences of violence in other areas of Hong Kong such as Kowloon and the New Territories.

98.It was submitted that the 7^th defendant’s role on the day in organising and in participating was more akin to a peripheral role. I was also asked to consider his social activism comes from a desire to make a difference to Hong Kong’s socio-political system.

99.I have been asked to take into account the fact he is the only relative caring for a 96-year-old great grand aunt who is not in good health. Whilst I have sympathy, her old age and health conditions were well known to the 7^th defendant when he committed these offences and committed them while serving a suspended sentence.

100.After I rounded down the discount of 25% applied to the starting point of 18 months for charge 3, I sentence the 7^th defendant to 14 months’ imprisonment for charge 3.

101.After I applied the discount of 25% to the starting point of 12 months for charge 4, I sentence the 7^th defendant to 9 months’ imprisonment for charge 4.

The 8^th defendant

102.Mr Graham Harris SC for the 8^th defendant submitted in mitigation that the likely term of imprisonment to be imposed could be suspended on the facts of this case especially as there is no sentencing guideline for unauthorised assembly. He has urged me to consider the 8^th defendant’s role was minor and that he never had any intention for others to be violent or destructive. He accepts there was some coincidental violence resulting from this unauthorised assembly but any punishment meted out to the 8^th defendant should be proportionate to his own actions.

103.I have been asked to consider his background, family, health issues and commercial success. I have been reminded to take into account the totality principle with reference to the sentences I recently passed in DCCC 536/2020 and DCCC 537/2020, mitigation bundle is MFI-8.

104.After I rounded down the discount of 25% applied to the starting point of 18 months for charge 3, I sentence the 8^th defendant to 14 months’ imprisonment for charge 3.

The 10^th defendant

105.The 10^th defendant’s mitigation bundle, MFI-9, contains his biography, mitigation and 8 letters from many people from different walks of life; friends, colleagues and those he has helped in his dedication to public service. He has been a District Councillor, politician and former vice chairman of the Democratic Party.

106.I note in March 2020 he resigned from his position and duties in the Democratic Party after a joint petition from his very own colleagues. This arose from his criticism of local restaurants for discriminating against Mainland Chinese customers during the COVID pandemic. He had called for a wider definition of race discrimination to cover prejudices and injustice against mainlanders which prompted the petition.

107.He currently works as a community organiser for the Society for Community Organisations, SoCo and I have a letter from a Director describing his dedication and work for the underprivileged and grassroots community. I am also impressed by a letter from an associate professor at the Chinese University of Hong Kong, Rev. Dr. Tobias Brandner who speaks of his deep commitment and passion for the poor, underprivileged and prison inmates. He is described as humble with great concern for those at the margins of society.

108.After I rounded down the discount of 25% applied to the starting point of 18 months for charge 3, I sentence the 10^th defendant to 14 months’ imprisonment for charge 3.

109.After I applied the discount of 25% to the starting point of 12 months for charge 4, I sentence the 10^th defendant to 9 months’ imprisonment for charge 4.

110.I find his mitigation and long public service gives me a valid reason to find it appropriate to suspend his sentence for 24 months. His one previous conviction, although similar was 28 years ago. In addition, he played a passive role in organising this unauthorised assembly. He was first seen just as the procession started off and he walked behind those holding the banner during the procession. He was not interviewed nor vocal during it. He did point to the right upon arrival in Central to indicate the banner group turn right but he was not the only one who made this gesture. He was not seen again after this nor appeared to be with the banner group when they declared the procession at an end.

111.Charge 1

1^st defendant sentenced to 18 months’ imprisonment.

2^nd defendant sentenced to 18 months’ imprisonment.

3^rd defendant sentenced to 18 months’ imprisonment.

4^th defendant sentenced to 18 months’ imprisonment.

112.Charge 3

1^st defendant sentenced to 18 months’ imprisonment.

2^nd defendant sentenced to 18 months’ imprisonment.

3^rd defendant sentenced to 18 months’ imprisonment.

4^th defendant sentenced to 18 months’ imprisonment.

5^th defendant sentenced to 14 months’ imprisonment.

6^th defendant sentenced to 14 months’ imprisonment.

7^th defendant sentenced to 14 months’ imprisonment.

8^th defendant sentenced to 14 months’ imprisonment.

9^th defendant sentenced to 14 months’ imprisonment suspended for 24 months.

10^th defendant sentenced to 14 months’ imprisonment suspended for 24 months.

113.Charge 4

7^th defendant sentenced to 9 months’ imprisonment.

10^th defendant sentenced to 9 months’ imprisonment suspended for 24 months.

Conclusion and the Totality Principle Considered

114.Charges 1 and 3 to be served concurrently for the 1^st defendant. A total of 18 months’ imprisonment.

115.Charges 1 and 3 to be served concurrently for the 2^nd defendant, a total of 18 months’ imprisonment. He is currently serving a 12-month term of imprisonment for DCCC 536/2020 and I ordered 2 months of the six-month term of imprisonment of DCCC 537/2020 to be served consecutively to DCCC 536/2020, a total of 14 months’ imprisonment. I now order 6 months of this 18 months sentence to be served consecutively to DCCC 536/2020. A total of 20 months’ imprisonment.

116.Charges 1 and 3 to be served concurrently for the 3^rd defendant, a total of 18 months’ imprisonment. He is currently serving an 18-month sentence for DCCC 536/2020. I order 4 months of today’s sentence to be served consecutively to that sentence. A total of 22 months’ imprisonment.

117.Charges 1 and 3 to be served concurrently for the 4^th defendant, a total of 18 months’ imprisonment.

118.The 5^th defendant only faces charge 3 and is sentenced to a total of 14 months’ imprisonment.

119.The 6^th defendant only faces charge 3 and is sentenced to a total of 14 months’ imprisonment. She is currently serving an 8-month sentence for DCCC 536/2020. I order 4 months of today’s sentence to be served consecutively to that sentence. A total of 12 months’ imprisonment.

120.Charges 3 and 4 to be served concurrently for the 7^th defendant, a total of 14 months’ imprisonment. He agrees he is in breach of a suspended sentence from magistracy case WKCC 3654/2017 imposed on 9 September 2019. I now activate that 14-day sentence and order it to run consecutively to today’s sentence. A total of 14 months and 14 days imprisonment.

121.The 8^th defendant only faces charge 3 and is sentenced to a total of 14 months’ imprisonment. He is currently serving a 12-month term of imprisonment for DCCC 536/2020 and I ordered 2 months of the eight-month term of imprisonment of DCCC 537/2020 to be served consecutively to DCCC 536/2020, a total of 14 months’ imprisonment. I now order 6 months of this 18 months sentence to be served consecutively to DCCC 536/2020. A total of 20 months’ imprisonment.

122.The 9^th defendant only faces charge 3 and is sentenced to a total of 14 months’ imprisonment suspended for 24 months.

123.Charges 3 and 4 to be served concurrently for the 10^th defendant, a total of 14 months’ imprisonment suspended for 24 months.

124.The 9^th and 10^th defendant are warned that if they commit an offence punishable by imprisonment in the following 24 months from today and are convicted then they will most certainly serve this 14-month term of imprisonment.