Read the full judgment text of DCCC 857/2020 on BabelCite. This District Court judgment was delivered on 15 September 2021 before A J Woodcock.
Criminal law – Public Order Ordinance (Cap 245) – unauthorized assembly – incitement to take part in unauthorized assembly – knowingly taking part in unauthorized assembly – sentencing – COVID-19 pandemic – public health risk – deterrence – proportionality – DPP v Ziegler – totality principle – suspended sentence – concurrent sentence Facts: On 4 June 2020, the Commissioner of Police prohibited a proposed public meeting at Victoria Park to commemorate the June 4 Incident, citing the Department of Health's advice against mass gatherings during the COVID-19 pandemic. The Hong Kong Alliance did not appeal. Lee Cheuk Yan (D1) and Ho Chun Yan (D2) held a press conference declaring the vigil would proceed, accused the Police of using the pandemic as an excuse, and appealed to the public to join in groups of eight. Defendants distributed candles and leaflets outside Victoria Park, entered closed football pitches, and led a growing crowd of around 20,000 people by 8pm with little social distancing. The assembly caused road closures and traffic chaos around Victoria Park and breached the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation prohibiting gatherings of more than eight people in public places. Legal issues and holdings: Whether immediate custodial sentences were appropriate for unauthorized assembly and incitement offences committed during a public health crisis – Yes. The court drew on Secretary for Justice v Wong Chi Fung (2018) 2 HKLRD 699 and the discussion in Secretary for Justice v Poon Yung Wai (2021) HKCA 510, and found that a punitive and deterrent sentence was appropriate given the blatant disregard for public health risks. A public health risk was a serious risk to public order and safety, just as the threat of violence could be. Whether the proportionality principles in DPP v Ziegler (2021) 3 WLR 179, as summarised in HKSAR v Au Nok Hin CACC 84/2021, required reduction of custodial sentences – The court applied the Ziegler test, recognising that defendants' rights to freedom of expression and assembly were engaged, but found that the obstruction to roads and transport, and the risk to public safety during a pandemic, made the unauthorized assembly very serious. Whether suspended sentences were appropriate for the 8th, 12th and 14th defendants – Yes. Considering their advanced ages, clear records, significant public service backgrounds, and in D14's case health issues, the court imposed suspended sentences. How the totality principle should apply to defendants already serving sentences for similar offences – The court ordered concurrent sentences to run alongside existing sentences to ensure fairness, avoiding double punishment for similar or the same conduct. Outcome: After a full one-third discount for guilty plea, the 2nd, 5th and 6th defendants were each sentenced to 10 months' imprisonment (concurrent on Charges 1 and 3), with D2's and D5's sentences ordered to run concurrently with sentences they were presently serving. The 9th and 11th defendants were each sentenced to 8 months' imprisonment. The 8th and 12th defendants were each sentenced to 8 months' imprisonment suspended for 18 months. The 14th defendant was sentenced to 4 months' imprisonment suspended for 12 months. The 15th, 16th, 18th and 20th defendants were each sentenced to 6 months' imprisonment for Charge 3, with the sentences of D15, D16 and D20 running concurrently to existing sentences. The court distinguished between defendants with more active incitement roles (D2, D5, D6) and more passive roles, applied three-month uplifts for defendants on court bail at the time of the offence, and warned D8, D12 and D14 that any imprisonable offence during the suspension period would result in activation of the suspended terms.
Legal issues: Appropriateness of immediate custodial sentences for unauthorized assembly during a public health crisis · Application of Ziegler proportionality to public health risk cases · Suspended sentences for elderly defendants with clear records and public service · Application of totality principle to defendants already serving similar sentences
Outcome: 12 defendants sentenced to immediate custodial terms (with some suspended) for incitement to knowingly take part in an unauthorized assembly and/or knowingly taking part in an unauthorized assembly arising from the June 4, 2020 Victoria Park vigil during the COVID-19 pandemic; 3 defendants received suspended sentences.
Cited by 34 cases · Cites 5 cases