Then the defendant was asked to join and the 1st defendant said he will look for the hammer and the 2nd defendant said if he does not come out, he will go to his place and borrow the hammer. And then the 1st accused said take a look at the bushes near the memorial wall as people like to hide hammers there.
Then follows the documentation on the CCTV tapes which was produced as P12. And one can see that both defendants walking through the shopping malls early in the morning and the story is picked up in the recordings made on the video-recorded interview of the 2nd defendant. And the place that we saw that he picked that up was on the road outside the town hall and that was marked on the sketch.
So it is clear that on that morning, both the 1st and 2nd accused were out with others whom they called 手足 to participate in this unlawful assembly resulting in a breach of the peace. It was evident from the photos and videos, which the police had painstakingly put together, that his group proceeded to throw bricks on the road, bricks and stones on the road, bricks that they had dug up from the side of the road and they threw them outside the North District Town Hall on that morning.
Then some concerned citizens, and they are the unsung heroes in this incident, decided of their own accord to remove the obstruction on the road. And they are ordinary people, ordinary residents of the community in Sheung Shui who did not want to see the roads blocked. So like Mr X, Ms Or, and the fireman, Mr Tang, they selflessly and courageously decided to go down to the street to move the stones and bricks and put them to the side of the road.
They did not, in anyway, provoke the group of people of which the 1st and 2nd defendants were part of and you can see from the videos taken from the bystanders by the police which were shown in court that whilst Mr X and Ms Or were removing the bricks to the side of the road, they were being obstructed by these young persons. Although at that time, violence did not break out but by their presence, they were intimidating these group of citizens who were trying to move the bricks to the side of the road and one could see that once these bricks and stones were moved to the side of the road, then the group of young people threw those stones back on the road and then Mr X and Ms Or would continue with removing it to the side of the road.
And then this continued for a time. There was no pushing or shoving as can be seen on the videos. And even when Mr X was blocked by a black-clad youth, he would move around him and carried the bricks to the side of the road. So there was no provocation whatsoever from these citizens who were moving the bricks to unblock the road.
Then the action of the group in black escalated when they returned in a larger formation and some were carrying umbrellas and started to hurl bricks and stones at the civilians who were trying to remove the bricks from the road and that is when the violence started.
As a result, the civilians then provoked by this hurled the bricks and stones back and things then devolved into mayhem which led to a very tragic consequence of the death of the deceased who was just standing by the side of the road and I could see from the video that was taken by a bystander that he was hit on the head. And in fact, what was very heart-rending was the fact that during the trial, the deceased’s telephone was still on and recording even after he fell onto the road after being hit by the brick. Then the whole thing resulted in chaos and Mr X was subsequently assaulted.
Now, of course, both defendants have been acquitted of the manslaughter charge in relation to the deceased and to the wounding of Mr X. The defence was that they were acting in self-defence. So I respect the jury’s decision on this. However, it does not lessen the tragic consequences of this riot. And that is why this riot is considered to be a very serious one.
And as far as both defendants are concerned, I accept that they were very young, one was 16 at the time, one was nearly 16 and I have read the many mitigation letters submitted. And I have no doubt that these two young men were well liked by their teachers and people who knew them and I accept that they had lacked the necessary adult guidance at the time when they needed it most, that is in their formative years as one defendant had lost his father and the other as a result of divorce.
Each then grew up with mothers who may not have the necessary skill or time to guide them properly on their way. So when the clarion call came through the social media to participate in these destructive activities, they went along, not being able to see the serious consequences that can result from their action. I accept that both are now remorseful for what they had done and hopefully this will begin the reformation, and guiding them back onto the right road.
Destruction of the city that we all love cannot be a force for good. And this city was built on the blood, sweat and tears of the many people who had gone before us and therefore we really have to appreciate that destroying the city is no way forward.
Now, in one of the cases submitted by the prosecution, that is Secretary for Justice v Wong Chi Fung in 2018, the Court of Final Appeal at paragraph 119 said this, that:
“The Court of Appeal was justified in holding that, ‘In sentencing cases of disrupting public order, especially those which involve violence, the court must bear in mind the importance of preserving public order.’ Similarly, it was within its proper function as a court of review to hold that, ‘On the basic premise that public order must be maintained, and taking into account the gravamen of the offence of unlawful assembly, the court, in passing sentence, not only has to impose a penalty that is appropriate to the punishment of the offenders, but it also has to take into account the factor of deterrence.’
In short, it was appropriate for the Court of Appeal to say that in the circumstances now prevailing in Hong Kong including increasing incidents of unrest and a rising number of large scale public protests, it is now necessary to emphasise deterrence and punishment in large-scale unlawful assembly cases involving violence. And in this context, the Court of Final Appeal refers to the sentiments expressed by Starke J in the Court of Criminal Appeal in Victoria in the case of R v Dixon-Jenkins in 1985 14 A Crim R 372.”
And the quotation is this:
“There are large groups in present-day society of sincere, earnest but wrong-headed people who, because their convictions are so strong, or because they pretend their convictions are so strong, will stop at nothing in order to impose those views on the community, and this, in my opinion, just like hijacking, is calculated to become contagious, and if at the first step the courts do not show that such conduct, however well intended, will not be tolerated in the community, then it is unlikely that such behaviour will be stopped in its tracks. I therefore am of opinion that this is just the case where general deterrence has an overriding effect on the resulting sentence.
Now, in the same case in paragraph 121, the Court of Final Appeal endorsed the Court of Appeal’s list of factors relevant to a decision on the appropriate sentence for unlawful assembly involving violence and there are eight points: Whether the violent acts were spontaneous or premeditated; if it was the latter, how detailed and precise the plan was. Now, there was some premeditation in that on that morning, the 2nd accused was in fact discussing with the 1st accused as to digging up or using hammers to answer the call of the social media and that is what they did, so there was some form of premeditation, however, I would accept that it was not lengthy premeditation.
Then the second item that is relevant is the number of people involved in the violent acts. The third, the degree of violence, including whether weapons were used and, if so what kind and quantity of weapons. I do accept what Mr Polson says there was no armour, they did not arm themselves with any offensive weapons in the sense of petrol bombs, etc. However, the violence was really, as Mr Polson said, initially to damaging the government property.
Now, then the fourth item to consider is the scale of the violence, including the location, the number of places and the area in which violence took place. Now admittedly, this was a small area in the community just outside the North District Town Hall.
The duration of the violence, including whether the violent act was a prolonged one, and whether it still went on despite repeated warnings by police or public officers. Now that is not existing here because there were no police around the area. However, as I have said earlier the matters escalated but it was not for a long time, admittedly.
The sixth item to consider is the consequences of the violent act, whether there was any loss or damage to properties and people injured and unfortunately in this case apart from the damage to properties, there was a death that resulted.
So the seventh is even if there was no loss or damage to properties, nor any injury, what imminence and gravity of threat was caused by the violent acts.
And eighth, the offender’s role and degree of participation; for instance, apart from taking part in the unlawful assembly, or using violence, whether he had arranged, led, summoned, incited, or advocated others to take part in the unlawful assembly or use violence. And as I have said in this case, one can see some form of arrangement between the 2nd and the 1st defendant through their WhatsApp.
So then we go on. The next important case is the case of Tang Ho Yin and in that case, it is 2019, the Court of Appeal where it was reiterated the three sentencing principles.
Firstly, the gravity of the riot was not to be judged merely by what the individual did or did not do, but by what the group to whose number he lent his support did. So that is to consider what the group did rather than what individual persons like the 1st and 2nd defendants did.
Secondly, the offence might be aggravated by the commission of other crimes in the course of the riot. And thirdly, those who resort to the company and association of others in order to inflict widespread violence and destruction must be strongly deterred.
So of course the Court of Appeal recognised that not all riots were the same in terms of scale of seriousness. So each individual case has to be looked at individually.
And of course we have the case of Leung Tin Kei in 2020 and in that case, the Court of Appeal had said at paragraph 34:
“In respect of the suggestions made by the defence counsel that the individual acts of the applicants, when comparing with the incident as a whole, were relatively minor, the trial judge referred to Caird (paragraphs 507 and 508)...”
And that was an appeal case in 1970.
“...and said that the offence of riot derived its gravity from being one of those assembled to pursue an unlawful purpose by weight of numbers, and it was a wrong approach to take the acts of any individual participant in isolation as to the basis of sentencing.”
So that is what the Court of Appeal had said. And that case is worth reading because the Court of Appeal discussed the sentencing principle in offences of riot in Yeung Ka Lun and Tang Ho Yin. And finally, the Court of Appeal said at paragraph 73:
“In order to protect public order from being harmed by violence and the rule of law from being damaged as a result, the court in imposing sentence for the offence of riot must reflect the determination of the law in protecting public order, and to convey a clear message to society and the public that the law does not condone any unlawful damage or disruption of public order by violence.”
And the Court of Appeal then endorsed what Yeung VP and the Court of Appeal has stressed in the case of Yeung Ka Lun at paragraph 60:
“We agree with the trial judge in that the offence in question calls for a deterrent sentence to give a definite clear warning to the offender and prevent the occurrence of similar incidents, or otherwise, the community will have to pay painfully which would be against the interests of the public and those who enforce the law.”
So really, what the court recognises is the fact of the destruction that can be caused to the community as a whole. And I also wish to refer to the same case in Leung Tin Kei where the Court of Appeal emphasised what was said in the case of Wong Chi Fung. At paragraph 132 in Wong Chi Fung:
“In addition, what the offenders think of people holding different views is no excuse for using violence on those people. As Sachs LJ emphasised in the case of Caird:
Any suggestion that a section of the community strongly holding one set of views is justified in banding together to disrupt the lawful activities of a section that does not hold the same views so strongly or which holds different views cannot be tolerated and must unhesitatingly be rejected by the courts.”
So these are words of wisdom and they are not just words, they are principles upon which a strong community, law-abiding communities adhere to.
So it is therefore clear that deterrence is absolutely necessary for offences of this nature and the age and background of an individual defendant pales into insignificance against the gravity of riots and the necessary deterrence.
And as I have said in this case, there was some premeditation, not a lot. And the actions of the defendants and others can be seen in the videos played in court, their presence at the scene and their participation.
I therefore consider that having considered the background to this offence that an appropriate starting point sentence of 6 years is appropriate in the circumstances.
However, after saying all that I do take into account that both defendants were young and it is possible that because of their age and their lack of proper adult supervision, they lack the clarity or vision to anticipate the disastrous consequences of their act.
And I take into account the fact that they have a clear record and as I have said, the background reports made by the probation officer indicate that these two young men, with the support of their families, could go on to become constructive citizens of Hong Kong and I encourage that and so I will reduce the sentence to one of 5½ years.
So I will sentence each accused to 5½ years.