HKSAR v. Chung Kin Ping Allan

DCCC 842/2021

[2022] HKDC 320

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 842 OF 2021

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Reasons for Sentence

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1.The defendant has pleaded guilty to Charge 1, organising an unauthorised assembly, contrary to section 17A(3)(b)(i)  of the Public Order Ordinance, Cap 245. Charge 2, knowingly taking part in an unauthorised assembly was not dealt with and left on the court file; only to be dealt with in the future with leave of this Court or the Court of Appeal.

2.The particulars of Charge 1 states the defendant between 26 and 27 July 2019 organised a public procession which took place in contravention of section 13 of the Public Order Ordinance which was an unauthorised assembly by virtue of section 17A(2)(a)  of the same Ordinance. 

Summary of Facts

3.The Commissioner of Police prohibited the holding of a public meeting and procession on 27 July 2019 by the defendant. He gave the police a notice of intention on 23 July 2019 proposing meetings and a procession between Shui Pin Tsuen Playground and Yuen Long MTR Station in Yuen Long.  The purpose of the meeting and procession was to condemn a terrorist attack on people in Yuen Long MTR Station on 21 July 2019.  The subject matter was stated in the notice as anti-terrorism.

4.The full particulars of the offence are set out in the Amended Summary of Facts and admitted by the defendant, Mr Chung, on 11 April 2022.  He agreed and it is common knowledge that from June 2019, violence erupted during certain protest events all over the territory.  On the night of 21 July 2019, violence erupted in Yuen Long MTR Station. 

5.On 25 July 2019, the Commissioner of Police prohibited the holding of the said procession in the interest of public order, public safety and the protection of the rights and freedoms of others.  Taking into account certain widely reported incidents of violence and vandalism arising from and after the incident of 21 July 2019, the Police reasonably believed that any procession would escalate into violent confrontation, serious traffic disruption and the residents of Yuen Long being significantly affected. 

6.The Police had suggested to the defendant that he consider submitting an altered processional route and increasing the number of marshals proposed to maintain the safety and order of the procession but that was ignored.  This was especially pertinent because his proposed route covered Castle Peak Road, which is a major thoroughfare and includes the Light Rail track as well as its overhead high voltage cables.  This presented another imminent danger to participants. 

7.The Police took into consideration the social atmosphere and recent processions descending into chaos at that time which meant there was a likelihood that the defendant’s procession and meeting could get out of control and that the likely risks of violence escalating could not be tempered even if the Police had imposed more conditions. 

8.The defendant did appeal the decision of the Commissioner of Police to the Appeals Board, which after a hearing confirmed it on 26 July 2019.  The Appeal Board was of the opinion that the proposed procession could pose a serious threat to the public, the participants of the procession as well as affect public order and public safety.  The appeal was dismissed.  The defendant did not judicial review those decisions.

9.Immediately after that appeal was dismissed, the defendant held a press interview.  His interview was broadcasted by various media outlets and he said that despite the prohibition of the procession, he would himself at around the same time walk the same proposed route to Yuen Long MTR Station.  He specifically denied organising an unauthorised assembly but would, as a resident, welcome anyone who wanted to visit Yuen Long on that same day. 

10.On 27 July 2019 at the proposed starting point, the playground, the defendant was interviewed by the press again which was widely broadcasted by various media outlets.  Even before this press interview, there were hundreds of protesters gathered in or around this playground, which was situated next to Yuen Long Police Station.  The number of protesters gathered there increased as time went by. 

11.In that press conference, the defendant condemned the violence at the MTR station on 21 July 2019 as a terrorist attack organised by the “Peking Liaison Office”.  He said those present in Yuen Long that day should shout for help if they were attacked by either terrorists controlled by the Liaison Office of the Central People’s Government or the Police Force. 

12.The prosecution relied on and played numerous video recordings of the events of that day in Yuen Long, either incidents that occurred on the defendant’s proposed route or those outside of the proposed route but adjacent and close by.  It was footage of reprehensible conduct. Many were described in detail in the Amended Summary of Facts. 

13.Thousands of protesters gathered and occupied the carriageways of the proposed route, which meant traffic was seriously disrupted.  The police station was targeted and forced to close its vehicular gate for safety reasons.  Thousands walked along the defendant’s route and occupied all the vehicular lanes of Castle Peak Road.  They obstructed the Light Rail service, which had to be suspended because protesters walked within the railway area. 

14.Political slogans and verbal abuse were shouted at the Police incessantly.  Those included “Black cops, Shameful”, “Hong Kong Police knowingly break the law”, “Liberate Hong Kong, revolution of our times” and “No rioters, only tyranny”. 

15.Roads were blocked by protesters setting up barricades facing police cordons.  The Police walked behind the procession to try and disperse the crowd.  Warnings were given by the Police with warning flags displayed almost continuously.  There were standoffs between the protesters and police where not only was abuse and insults hurled but physical objects including bricks, umbrellas and other hard objects.  During the day, the Police had to use tear gas on several occasions to disperse the crowd.  All warnings were ignored by the crowds. 

16.There were many specific incidents of note, for example, a police emergency vehicle was surrounded with officers inside and vandalised. Other police officers had to go to rescue it.

17.As I said, all these actions were caught on news footage and are part of the prosecution’s case to establish a context for the purposes of sentencing. 

18.By around 7 pm, hundreds of protesters finished the procession and remained in or around Yuen Long MTR Station in a standoff with the police.  Eventually the crowds dispersed at about 11 pm. 

19.There was specific footage of the defendant on several occasions standing in front of a large crowd of black-clad protesters. He was stood between that crowd and the police officers.  He tried to speak to both the police and the protesters.  He tried to calm the growing tension but essentially failed.  These exchanges were caught on the camera, some included in the Summary of Facts. 

20.The defendant held another press conference at around 9 pm inside Yuen Long MTR Station where he calculated about 288,000 people had participated and claimed the movement attracted that many participants.  He expressed gratitude to all those who showed up and to all those who provided assistance and supplies. 

21.He reiterated that the Police and terrorists had attacked Hong Kong citizens as well as members of the press.  He said the Police used force which was unlawful and that they should not serve the Beijing regime any longer.  He said the violence of 21 July 2019 was orchestrated by the Liaison Office of the Central People’s Government.  All of this was said to the press and broadcasted widely by various media outlets.  

22.The defendant admits knowingly organising an unauthorised public procession. Despite the decision by the Police to ban his procession, which was affirmed by the Appeal Board’s decision, he openly in a press conference appealed to members of the public to participate anyway in the name of “shopping” or “visiting” Yuen Long.

23.Thousands did participate in this unauthorised assembly and the risks identified by the Police became a reality.  There were real incidents of reprehensible conduct, serious violence and breaches of the peace as well as riots and incidents that arose in the course of that unauthorised procession and assembly.  Public order, public safety was endangered as well as the rights and freedoms of others and their property affected. 

Mitigation

24.I have heard full mitigation and have had the benefit of submissions prepared by counsel.  There is no need to repeat it or set it out here.  The defendant is now 42 years old, born in Hong Kong, educated abroad and single.  His father is a diabetic with other health issues that requires the care and attention of the defendant.  His mother passed away some years ago. 

25.Prior to his arrest for this offence, he was working in public relations and earning up to HK$60,000 each month.  He has 2 previous convictions dealt within the same court appearance.  In 2015, he was convicted twice of taking part in an unlawful assembly. 

26.I have been told in mitigation that he has dedicated himself to the welfare of animals, especially strays.  In 2017, he worked for a year at the Non-Profit Making Veterinary Services Clinic.  I have letters from colleagues from that clinic as well as friends who have known him for a long time or worked with him.  I have been appraised of his role as the chairperson of the Localists’ Regiment of Animal Protection. 

27.The defendant lived in Yuen Long and after the 21 July 2019 incident in the Yuen Long MTR Station, he wanted to hold a meeting and procession to raise awareness of that incident.  That is why he submitted a notice of intention to hold a meeting and procession on 27 July 2019. 

28.His best mitigation is his plea of guilty.  I am told he regrets his acts and is remorseful.  He did not intend to benefit in any way from organising an unauthorised assembly.  He was only hoping to promote a peaceful, loving and caring society.  He was naïve in thinking there would be no breach of the peace that afternoon.  He thought he would be embarking on “a peaceful walk”. 

29.It was submitted that he was not the only one who wanted to organise a meeting and procession that day. 2 other organisers, a Mr Kwan and a Mr Au also tendered notices of intention to the Police.  A local singer, Ms Denise Ho Wan-see made known on social media that she herself would be walking in Yuen Long that day and signing autographs as she walked.  It was submitted that he was not alone in wanting to draw attention to Yuen Long that particular week.  The point of this submission is that this means not all protesters in Yuen Long who participated in the unauthorised assembly on that day were there because of the defendant, therefore not all the blame should be laid at his doorstep. 

30.It was submitted that he tried to keep the crowd calm by appealing to them, it was suggested that the police presence may have been the reason behind public emotion being provoked, which led to conflicts and violence.  Much was made of the fact that the prosecution highlighted confrontations or acts of violence which were beyond or adjacent to the defendant’s exact proposed route. 

31.Much was also made of the fact that he was not charged until August 2021, which was 2 years after the event and his initial arrest.  The defence submitted that this delay meant the defendant was unable to gather evidence of others organising an unauthorised assembly at the same time or gather evidence as to why he himself deviated from his proposed route and went to the 2 villages that the Police had to either defend or guard. 

Principles of Sentencing

32.I agree with the prosecution’s proposition that this public order offence, organising an unauthorised assembly, is a pre-emptive offence and its gravamen lies in the number of participants involved which may cause disruption to public order and a breach of public peace.  I was referred to HKSAR v Wong Chi Fung and Another [2022] HKCA 239 at paragraph 28 where the Court of Appeal said:

“…, it is clear that the gravamen of both offences lies in the number of participants involved which may cause disruption to public order. … It is trite that a sentencing court is entitled to take account of the circumstances of the offence to assess its gravity, and the concept of “context” is not a new one. …”

33.That last sentence defines the meaning of “context” as the date, time, location and occasion of the offence.  The occasion here was to highlight and draw attention to the 21 July 2019 incident in the MTR station. This is the background of the event the defendant wanted to organise and went on to organise despite a police ban. There are aggravating factors, both the deliberate flouting of the law and the particular background of this event. 

34.The background of that event on 21 July 2019 meant that the unauthorised assembly organised days later related directly to a scenario which was a potential source of widespread violence.  It was a tinderbox scenario where it was not hard to see how the concerns of the Police would almost certainly come true.

35.I have been referred to Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 699 and find I can draw on the sentencing principles set out in that Court of Appeal authority but to keep in mind that this charge involves an unauthorised assembly whereas that authority involved an unlawful assembly. 

36.Even though the defendant faces a charge of organising an unauthorised assembly, if I take into account the overall circumstances and context behind this assembly as well as the social unrest witnessed from June 2019, that it was as relentless as it was violent and disturbing, then I find I can and should consider those sentencing principles such as protecting the public, meting out penalties, open condemnation and the principle of deterrence. 

37.The facts of this case affected members of the public who were not participating in this unauthorised assembly.  There was widespread traffic and public transport disruption.  

38.By identifying as a principle “meting out penalties”, the Court of Appeal were reiterating the obvious and that is any sentence imposed ought to be commensurate with the offence committed. One that reflects the seriousness of the offence and the culpability of the offender. The open condemnation factor is self-explanatory, the sentence ought to reflect social disapproval of the offence and the criminal conduct of the offender. 

39.The factor of deterrence serves as a warning to others and prevents the offender from reoffending.  The need for deterrent sentences cannot be limited to unlawful assemblies or more serious public order offences.  The need to consider a deterrent sentence will often depend on the prevailing circumstances at the time.  In fact, all sentencing principles applied to determine an appropriate sentence should take into account the prevailing tumultuous situation of 2019 as well as the specific tinderbox situation of Yuen Long that week. 

40.In Secretary for Justice v Wong Chi Fung [2018], Poon JA, as he then was, identified the inherent risk of large gatherings when he says that from experience, when large numbers of demonstrators gather together, emotions run high in the crowd who may become agitated so that the situation has 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.  This was a risk that was brought to this defendant’s attention by the Police.  I cannot believe considering the background of that 21 July incident and recent incidents from June 2019 that the defendant himself did not see the inherent risk. 

Reason for Sentence

41.The freedom of assembly, procession and demonstration are not absolute rights and are subject to restrictions that have been ruled constitutional.  Those freedoms are enjoyed subject to these restrictions, irrespective of a defendant’s politics or beliefs.  This case involved a direct challenge to the authority of the Police, law, and order. The Police gave a detailed explanation as to why they banned the defendant’s meeting and assembly.  They gave reasons and considerations that were entirely reasonable.  The risks were outlined for the defendant.  Yet despite them, the defendant went on to organise it nonetheless. 

42.The fact that the defendant made a conscious decision to break the law and challenge public order during such volatile times was serious.  I find that an aggravating factor or the gravamen of these facts admitted.  Actions have consequences for everyone irrespective of who they are and what they hope to achieve. 

43.It is an aggravating factor that he gave a press conference immediately after the Appeal Board upheld the decision of the Commissioner of Police and several press conferences on the material day. These were broadcast widely by various news outlets.  Moreover, I have no doubt that the defendant was expressing the direct opposite when he said he would walk his intended procession alone despite the ban.  He knew and expected others to join him and as can be seen from the video footage; Yuen Long was overrun by protesters.  The Police were completely outnumbered throughout the day.  The language that the defendant used during these press conferences can be described as provocative and inflammatory. 

44.I will also take into account the violence that can be seen not only on the proposed route of the defendant’s procession but in adjacent streets and areas as well.  I am sure the unauthorised procession moved beyond or overflowed from the proposed route to the MTR station to the 2 villages adjacent. 

45.Assemblies can be fluid and move in response to the size of the crowd, action by the Police or for other reasons.  The submission that I should only consider evidence of an unauthorised assembly on the defendant’s proposed route is over rigid.  Clearly, the procession proceeded down the defendant’s intended route but did spill over when it reached the MTR station to the 2 adjacent villages.  Even then, there is evidence that the defendant deviated from his own proposed route and went to both villages to try to mediate with protesters, facing up to the Police guarding the entrances to those villages. 

46.There was wanton destruction of public, personal and government property.  The Police were abused and pelted by projectiles. Many of the black-clad protesters were well prepared with weapons and homemade shields.  At times, the Police were so outnumbered that the use of tear gas and pepper spray was entirely justified and necessary.  The footage of a police cordon marching forward to rescue the police vehicle surrounded, trapped and damaged, showed how precarious and dangerous the situation was. 

47.The scale of the unauthorised assembly is relevant.  The video footage shows that there were so many protesters that Castle Peak Road and other side roads were blocked for hours.  The MTR and Light Rail trains were either suspended or seriously affected.  There was no vehicular access possible in that area. 

48.Taking into account the circumstances prevailing in Hong Kong at the time, an assembly and procession of that size posed an inherent latent risk of possible violence that did materialise. 

49.Defence counsel has made much of the fact that other people submitted notices to hold meetings and assemblies on the same day but were also rejected.  They did not appeal.  Other persons of note either said they would be in Yuen Long on that day or did turn up in Yuen Long with their own supporters.  This submission is that it would be unfair for the defendant to be held solely responsible.

50.That submission that there were others at the same time possibly committing the same offence is not a mitigating factor of weight.  The fact that others may have similarly applied to hold an assembly meeting on that same day in that area does not negate or mitigate this defendant’s culpability. 

51.In any event, it was this defendant who publicly said via press conferences that he was going to defy the police ban and the Appeal Board’s decision.  On the day, it was the defendant who stood at the start of his proposed banned procession route and spoke to the press again.  It was he who placed himself between the Police and protesters.  It was he who at times tried to mediate between the Police and the protesters.  There was no evidence that other failed applicants gave press conferences which involved provocative and inflammatory language against the Police as well as covertly encouraged others to participate in an unauthorised assembly. 

52.In mitigation, it has been submitted that the defendant himself participated peacefully and should not be held accountable for anything unlawful or illegal that happened out of his sight or off the intended procession route.  I find this submission carries little weight when one considers the tumultuous proceeding month and the raison d’être behind the procession itself; a violent incident. 

53.It is hard to accept the submission that the defendant was naïve and thought his “walk” would be peaceful.  No one could have realistically have said after witnessing the scenes of unrest and violence in June and July 2019 that they believed the protest to highlight the Yuen Long MTR Station incident on 21 July 2019 would be peaceful. 

54.When I consider the number of participants in and around the proposed procession route, I find it unnecessary to define what violent acts or breaches of the peace can be attributed to participants of the unauthorised assembly as organised by the defendant.  I find it can be so attributed and he as the organiser is not blameless.  It is often inevitable that processions will spill over from an intended route when roads are jam-packed. The evidence shows that the line between peaceful assembly and conduct which disrupts public order was crossed several times that long day. 

55.I do not find that his actions of standing between the protesters and the Police and communicating with the Police any indication on his part of a serious attempt to avert violence successfully.  In fact, he can be heard in one video challenging the Police by repeatedly asking what they were doing there.  In any event, it did not appear that he had much influence over the protesters gathered in front of those particular police cordons.  

56.I also see no merit in the submission that there was a delay in prosecuting the defendant.  2 years is not a long time considering that the assembly was on a large scale.  There was much evidence to consider with over 160 hours of video evidence alone.  Legal advice would have been required and at that particular time, the workload for all relevant departments was very heavy.  There was no intentional delay.  But more importantly, I see no prejudice or unfairness suffered by the defendant. 

57.He is not a man with a clear record.  In fact, he has previous convictions of public order offences.  He cannot say that he did not know of the consequences of his actions, especially when he mentions welcoming an arrest during one of his press conferences so that he could enjoy representing himself in court on the day. 

58.I have reminded myself that the starting point for this offence must be commensurate with the offence committed.  Deterrent sentences must prevail here and therefore personal individual mitigation does not carry much weight unless exceptional.  I do not find any mitigation submitted exceptional. 

59.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.  To arrive at an appropriate starting point, I have taken into account the facts, mitigation put forward, the defendant’s plea of guilty at the earliest opportunity and the sentencing principles I have highlighted. 

60.I have also taken into account relevant and what I consider aggravating factors such as the context behind the unauthorised assembly on that day in that location which I described as a tinderbox situation.  I have taken into account the number of protesters that day, the widespread obstruction caused, the violence and damage seen all in the course of many hours. 

61.A particularly aggravating factor is the number of press conferences held by the defendant and the provocative and inflammatory language he used which was widely broadcasted. 

62.Lastly, he made a conscious decision to defy the police ban and flout the law knowing, I am sure, that the inherent risk of social unrest was bound to be realised. 

63.I have been referred to recent sentences imposed by myself for this exact offence relating to unauthorised assemblies on various dates in 2019 during the social unrest.  None of those sentences were for an unauthorised assembly to highlight or condemn the 21 July 2019 Yuen Long MTR incident. 

64.As I have already said and I stress again, the week after that incident in Yuen Long itself was tense and to fill the same area with emotional protesters was to ignite a potential source of social discord.  These facts are peculiar to this case. 

65.Accordingly and after careful consideration, I find a starting point of 24 months’ imprisonment appropriate.  The defendant indicated his plea at the earliest opportunity and is entitled to a full discount. 

66.After that discount is applied, the defendant is sentenced to 16 months’ imprisonment.