HKSAR v. Au Nok Hin

CACC 84/2021

[2021] HKCA 1137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 84 OF 2021

(ON APPEAL FROM DCCC NO 536 OF 2020)

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REASONS FOR DECISION

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1.The applicant was convicted on his own plea of one charge of ‘organising an unauthorised assembly’, contrary to section 17A(3)(b)(i) of the Public Order Ordinance, Cap 245 (Charge 1) and one charge of ‘knowingly taking part in an unauthorised assembly’, contrary to section 17A(3)(a) of the same ordinance (Charge 2).  The sentencing judge (‘the judge’) imposed the respective terms of 10 months and 6 months’ imprisonment, to be served concurrently.  Having filed his notice of appeal against sentence, the applicant applied for bail pending appeal.  I refused his application. These are my reasons.

The Charges

2.The charges named nine individuals as co-defendants.  Including the applicant, all the named individuals were “well known figures”.[1] He and the others were alleged to have organised as well as knowingly taken part in a public procession from Victoria Park to Chater Road Central on 18 August 2019 when that public procession had been objected to by the Commissioner of Police (‘CP’).

Background

3.On 12 August 2019, an organisation called the Civil Human Rights Front (‘CHRF’) notified the CP of its intention to hold two public meetings and one public procession.  As amended, they comprised a public meeting that was expected to fill five football pitches in Victoria Park (10 am to 6 pm), a public procession from Victoria Park to the Chater Road Pedestrian Precinct (3 pm to 7 pm) and a second public meeting at the Chater Road Pedestrian Precinct itself (5 pm to 11.59 pm).  The purpose and subject matter of these proposed events were stated to be “to protest against the abuse of power by the police”.

4.The CP did not object to the holding of the first public meeting.  His objection to the public procession and prohibition of the second public meeting were however upheld by the Appeal Board on Public Meetings and Processions on the ground that “those events would pose a serious threat to members of the public including the participants of the concerned public meeting and procession, public order and public safety”.

The Judge’s View

(on the nature of the procession)

5.Of the true nature of the procession in question, this is what the judge said :[2]

“ 7. All the defendants organized and formed the head of a procession carrying a long banner displaying the common purpose [“stop the police and gangsters from plunging Hong Kong into chaos, implementing the 5 demands”] and led thousands of participants from Victoria Park at about 3 pm to walk to Chater Road. The timing of it and the route they took mirrored the public procession banned by the Commissioner of Police.

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

......

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

11. This intention was succinctly verbalised by a Hong Kong-based singer ….  In exhibit P35, a media outlet “HK01” interviewed this [singer] in the procession at 4:48pm and she explained the procession was a way to get around the ban.

12. .….. She was not speaking for the defendants but it shows a participant knew it was not a dispersal plan for safety reasons.

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

(on the relevant sentencing principles)

6.On what guidance there was in sentencing this case, she stated :[3]

“ 37. It is correct there are no prevailing guidelines or tariffs for sentences for the present charges. The great majority of the past cases … do either involve a bind over order or a financial penalty but none of those cases … stem from the social unrest and turmoil of 2019 or anything like it.

......

39. I have been referred to reasons for judgement arising from HKSAR v Chow Ting …, a bail application pending a magistracy appeal ... There, Barnes J refused bail pending appeal ... [The applicant in that case] had been sentenced to 10 months’ imprisonment for incitement to knowingly take part … and knowingly taking part in an unauthorised assembly.

……

41. The relevance of that case and the reasons for judgement is because the learned Magistrate referred to the sentencing considerations and factors set out in the Secretary for Justice v Wong Chi Fung 2018 2 HKLRD 699 ……

……

43. …… [Barnes J] agreed with the learned magistrate and found nothing wrong with her “drawing on” the sentencing factors in Wong Chi Fung when deciding a custodial sentence was appropriate for an unauthorized assembly ……

……

44. …… In the context of unlawful assemblies involving violence, it was held by the [Court of Appeal in Wong Chi Fung] that the sentencing court’s main consideration is the punishment of the offender, as well as deterring others from breaking the law in a similar manner. These are the weighty factors and the offender’s personal circumstances will not be regarded as significant mitigation …...

45. The Court of Appeal found it necessary to expound on the principles on sentencing in unlawful assemblies that involved violence. In paragraph 108 Poon JA, as he then was, set out the sentencing principles applicable to the charges …....

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

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

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

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

50. Although this case before me involves an unauthorised assembly on 18 August, if I take into account the overall circumstances, the social unrest witnessed from June 2019 that was as relentless as it was violent and disturbing then I find I can and should consider sentencing principles … set out by Poon JA in Wong Chi Fung ……”

(looking at the matter in the round)

7.Looking at the matter in the round, the judge concluded :[4]

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

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

57. The present case involved a direct challenge to the authority of the police, law and order. The Commissioner of Police had banned [the] public procession and a 2^nd public meeting … an explanation was given why consent was not forthcoming to the CHRF.

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

59. The fact that these particular defendants made a conscious decision to break the law and challenge public order in this manner during such volatile times was serious. That I find an aggravating factor or the gravamen of these facts I found proved ……

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

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

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

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

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

(final sentence)

8.Turning finally to the question of starting points, the following is what the judge said as regards Charge 1 :^[5]

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

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

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

And Charge 2 :^[6]

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

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

9.Specifically on the applicant (the 9th defendant), she said :[7]

“ 105. The 9^th defendant pleaded guilty at the earliest opportunity ... He is entitled to a discount of one-third ……

……

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

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

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

Grounds of Appeal

10.Mr Robert Pang SC had on behalf of the applicant filed six Draft Grounds of Appeal.  They can be found at the Annex to this judgment.  It was the submission of senior counsel that these grounds were all reasonably arguable and given the earliest date of release of the applicant (5 November 2021), the applicant should at least be granted bail under the time limb.   

Discussion

11.Given the nature of this application, my treatment of Mr Pang’s complaints would be brief.

(the Ziegler point)

12.This is a point on which Mr Pang laid great emphasis.  The thrust of his argument was that if he was correct, and Ziegler was indeed applicable to sentencing, then the judge had obviously missed it and the sentences she arrived at must be flawed and wrong in principle.  On further probing, however, Mr Pang conceded that unless they were shown to be questionable upon applying Ziegler, the sentences in this case would remain to be good and his application would fail.  

13.In broad terms, what Ziegler requires in a case of this kind is for the court to recognise that, notwithstanding his law breaking, a defendant’s right to freedom of expression and right to freedom of assembly were engaged, and that his conviction and sentence are in themselves an interference with those rights. On that basis, I have cross-checked this case with the factors which Ziegler identified as affecting sentence, in particular those that are referred to in paragraphs 72 to 78 of that judgment.  I was conscious of the need to be nuanced in approach and have taken into account such matters as the nature of the issues to which the procession was related, the extent to which the applicant and his co-defendants may have believed in the views they were expressing, the amount of support that those views had from the public and whether the applicant and his co-defendants had ascribed a symbolic meaning to the route of the proposed procession.  On the assumption that some of those factors were working to their favour, however, I was unable to see how given the location, duration and extent of actual interference with the rights of others, this was not a very bad case of unauthorised assembly.

14.From a wider perspective, the applicant had admitted to facts which allowed the judge to infer that the water-flow dispersal plan was but a cover.  Considering the repeated appeal that they openly made for people to support what they were organising, it is also clear that the applicant and his co-defendants were, to say the very least, unconcerned with causing the most serious and indiscriminate obstruction.  Yet, during the whole time, the police ban was only partial.  The CP had not objected to the first public meeting, expected to fill five football pitches, which for extra effect the organisers were determined to move out of Victoria Park and onto the streets.  It is also of note that unlike the defendant in Ziegler who contested guilt by claiming “lawful excuse”, the applicant had pleaded guilty to the charges, thus making it clear he was under no mistaken belief that he was properly exercising his rights (not that I think such a defence would succeed in Hong Kong).  I fail to see how an assessment of proportionality of sentence would go well for the applicant.

15.This disposes of Grounds 2 and 5.      

(the latent risk point)

16.It is stated in Ziegler, cross-referencing another European case, that “an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration if the individual remains peaceful in his own intentions or behaviour”.  By some extension, this was relied on by Mr Pang to advance the argument that the judge was wrong to take into account the social unrest of 2019 in sentencing the applicant. 

17.Had I felt the need to deal directly with this point, I would have found the meaning of the phrase “his own intentions or behaviour” worth exploring.  I would have asked whether during those trying months in Hong Kong anyone would fail to see the risk of having a large number of people gathering together for a political purpose, and whether the answer to that question may impact on how the courts would interpret the state of mind of someone who was involved in organising such an event, having regard to all the evidence.  Of equal importance would be the question of how Ziegler can be read consistently with the Court of Appeal’s decisions on “context”, with special regard to sentencing public order offences committed over a period of disturbance; decisions which derived their principles from English cases of the same genus.

18.In the event, I did not see the need to deal with any of those matters.  The police ban was based on public order considerations.  The Appeal Board had upheld it on the ground that the event “would pose a serious threat to members of the public ……”.  In pleading guilty, the applicant must be taken to have accepted the lawfulness of that ban in that it was rational, legitimate and no more than necessary to avert the identified threat.  In the circumstances, I fail to see how as a matter of context the inclusion of risks in assessing the overall culpability of the applicant would be open to criticism.  As a matter of fact, subject to different degrees of proportionality, I should think the same principle applies to those who were found guilty after trial in this case.        

19.This disposes of Grounds 3 and 4.

(the Chow Ting case)

20.This constitutes the subject matter in Ground 1.  It was, with respect, completely misguided.  All that the judge did was to use the case of Chow Ting as an example for the proposition that, if sufficiently egregious, offences concerning unauthorised assembly can also be met with an immediate custodial sentence.  I have not the slightest doubt that this proposition is correct.

(the wrap-up point) 

21.This is Ground 6.  As pointed out by the judge, past sentences are of no relevance if their contexts and factual matrices were different.  I do not find the sentences in this case to be either wrong in principle or manifestly excessive.

Conclusion

22.Upon application of the relevant principles (see p 257, para 3-119, Archbold Hong Kong 2021), I am not satisfied that this is an appropriate case to grant bail pending appeal, be it under the merits or time limb or both.  The applicant’s application is refused.

Mr Robert Pang, SC leading Ms Agnes Kwong, instructed by M/s Ho Tse Wai & Partners, for the Applicant

Mr William Siu, SADPP (Ag.) and Mr Edward Lau, SPP (Ag.) of Department of Justice, for the Respondent

ANNEX

DRAFT PERFECTED GROUNDS OF APPEAL

AGAINST SENTENCE

1. The Learned Judge erred in relying on HKSAR v Chow Ting, HCMA 374/2020 (unreported) and SJ v Wong Chi Fung [2018] 2 HKLRD 699 as authority for sentencing principles applicable to the present case :-

a. Wong Chi Fung sets out the sentencing guideline for unlawful assemblies involving violence, those guidelines ought not be applied on cases of peaceful unauthorized assemblies;

b. Chow Ting concerned an application for bail pending appeal, the background and circumstances of which are vastly different to the present case;

c. Both Chow Ting and Wong Chi Fung involved not only breach of the peace, but actual violence to varying degree and led to injuries, the material facts in both cases are much more serious than that of the present case and ought not be used as a reference for sentencing.

2. The Learned Judge erred by failing to have regard to the fundamental rights and protections accorded by Articles 16 and 17 of the Bill of Rights, and Article 27 of the Basic Law of the Hong Kong SAR protecting the freedom of expression, assembly, procession and demonstration.

a. The rights are engaged when the Applicant organized and took part in peaceful demonstration.

b. No restrictions may be placed on such rights other than those which are necessary in a democratic society in the interests of national security or public safely, public order (ordre public) protection of public health or morals or the protection of the rights and freedoms of others.  (Art. 17 BoR)

c. “Restrictions include arrest, prosecution, conviction and sentence.

(DDP v Ziegler [2021] 3 WLR 179 at 198 [§57])

d. The Court is therefore required to consider the proportionality of the sentence in the context of whether such sentence was necessary for the reasons allowed.

e. The Learned Judge failed to make any assessment of proportionality.

3. The Learned Judge erred by taking into account the social unrest which was described as relentless, violent and disturbing.  Social unrest is not a factor which should be taken against the Applicant.  Nor should unconnected violence on other occasions be taken against the Applicant in sentencing for the present offences.

(Reasons for Sentence §50)

4. The Learned Judge erred in taking into consideration the “latent risk” of violence as an aggravating factor (Reason for sentence, §§55-61) :

a. The Applicant stressed at all times that any procession should be a peaceful one, which it in fact turned out to be;

b. To sentence the Applicant on the basis of the “latent risk” of the unlawful acts of others would be to hold the Applicant responsible for acts of others which he did not call for but actively discouraged.

5. The Learned Judge placed undue weight on the disruption of traffic and public transport while failing to consider that a large number of the population were entitled to and did exercise their right to use the streets as the venue for the peaceful assembly which is protected under Art. 17 of the BoR and Art. 27 of the Basic Law.

6. The immediate custodial sentence of imprisonment of 10 months is manifestly excessive and wrong in principle :

a. The Court failed to place sufficient weight on the fact that the procession proceeded and ended peacefully because of the peace keeping efforts of the defendants, including the Applicant;

b. The Applicant never advocated or threatened violence, there was also no actual violence throughout the whole procession;

(SJ v Wong Chi Fung (2018) 21 HKCFAR 35 at 91 §125)

c. ‘The great majority of the past cases with similar offences do either involve a bind over order or a financial penalty’ (§37, Reasons for sentence), the Applicant’s sentence should be one other than immediate custody.

[1] Reasons for Sentence: Para 58.

[2] Reasons for Sentence: the relevant paragraphs.

[3] Ditto.

[4] Ditto.

[5] Ditto.

[6] Ditto.

[7] Ditto.