HKSAR v. Chow Hang Tung

[English Translation – 英譯本]

HCMA 51/2022

[2024] HKCFI 479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 51 OF 2022

(ON APPEAL FROM WKCC NO 2595 OF 2021)

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BETWEEN

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JUDGMENT

A. Introduction

1.The appellant was charged with an offence of “incitement to knowingly take part in an unauthorized 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. On 4 January 2022, the appellant was convicted after trial by Magistrate Chan Wai Mun, Amy (“the magistrate”)  at West Kowloon Magistrates’ Courts and sentenced to 15 months’ imprisonment, with 10 months of which to run consecutively to the sentence imposed on her in another case by the District Court[1].

2.The appellant appealed against the conviction and sentence. After the hearing, this court allowed the appeal against the conviction, with the conviction quashed and the sentence set aside (without dealing with the grounds of appeal against the sentence at the hearing). The details are recorded in my judgment handed down on 14 December 2022[2], which will not be repeated here.

3.Subsequently, the respondent appealed to the Court of Final Appeal, and the appeal was allowed. The appellant’s conviction was restored and the case was remitted to this court for the appeal against the sentence to be determined.

B.   Facts of the case

4.On 27 April 2021, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (“the Hong Kong Alliance”)  notified the police its intention to hold a meeting in Victoria Park on the evening of 4 June 2021, and the subject matter was to commemorate the 32^nd anniversary of “June 4^th” (“the Victoria Park Meeting”).

5.On 27 May 2021, the police issued a Notice of Prohibition of Public Meeting under section 9 of the Public Order Ordinance to prohibit the Hong Kong Alliance from holding a public meeting in Victoria Park on the evening of 4 June 2021 for the reason of the COVID pandemic (“the Prohibition Order”).  The Hong Kong Alliance lodged an appeal to the Appeal Board on Public Meetings and Processions (“the Appeal Board”)  pursuant to section 16 of the said Ordinance. On 29 May 2021, the Appeal Board dismissed the appeal and confirmed the Prohibition Order.

6.On 29 May 2021, the Security Bureau announced that the police had prohibited the Victoria Park Meeting, and this decision of the police had been confirmed by the Appeal Board, and the meeting was therefore an unauthorized assembly which no one should take part in, advertise or publicise, or else it would be contravening the law. Later on the same day, the appellant published posts on her personal Facebook page and Twitter account, titled “Lighting a candle is not a crime. Stand one’s ground.” (Exhibits P6 and P7)

7.On 4 June 2021, the appellant further published an article in Ming Pao, entitled “Candlelight carries the weight of conscience, Hong Kong people persevere in telling the truth.” (Exhibit P8)

8.The appellant published exhibits P6, P7 and P8 (“the Posts and Article”), thereby inciting others to knowingly take part in an unauthorized assembly, and hence contravened the law.

C.   Reasons for sentence

9.The magistrate’s considerations for sentencing and reasons for sentence are as follows:

“4. The defendant had no criminal conviction record at the time of the offence.

5. The defendant published posts on the social media and wrote an article on a newspaper, which I hold to be deliberate and pre-meditated. She chose to publish her posts on 29 May 2021 on her personal Facebook page and Twitter account and her article in the newspaper further on 4 June 2021 in order to call on the people to participate in the assembly. She even appealed in her capacity as the vice-chairperson of the Hong Kong Alliance, saying that she herself would participate in the meeting. It was plainly her intention to incite more people to take part in the Victoria Park Meeting as soon as possible.

6. Even though the defendant believed in good faith that the Victoria Park Meeting carried historic meaning, whilst the police had issued the prohibition order and the Appeal Board had dismissed the appeal of the Hong Kong Alliance, she still insisted on encouraging and inciting others’ participation, thinking that the freedom of assembly was more important than public health. It can be seen that her incitement was arrogant and in flagrant disregard for the law.

7. I refer to the reasons for which the Appeal Board dismissed the appeal of the Hong Kong Alliance (see P4), and it was stated in P4: -

‘The pandemic remains serious currently. The number of infections in the neighbouring areas such as Taiwan, Japan and India was yet under control. The World Health Organisation has also pointed out that activities with massive crowd gatherings would intensify the spreading of the virus. There are still restrictions on gathering in force in Hong Kong, and the progress of vaccination seems to be less than satisfactory. Moreover, the Hong Kong Alliance has failed to convince the Appeal Board that the anti-virus measures suggested by them would be practicable.’

8. Having regard to the then grounds of dismissal by the Appeal Board, I am of the view that while the pandemic was yet under control, in view of the possible changes with the pandemic condition within a short time, and any indiscreetness might give rise to a new wave of epidemic at any time, which no one in Hong Kong would like to see. In such case, the previous effort made in fighting against and preventing the pandemic might be totally wasted. What the defendant did has ignored the citizens’ lives and safety and can hardly be described as not serious.

9. The defendant did not make any submission for mitigation in court but only expressed her political views on the June 4^th. She did not regret having published the posts on the social media and written the article in the newspaper. However, I bear in mind that the defendant’s political background and ideas would not be taken into account in sentencing.

10. The Court of Appeal pointed out in Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 657 at paragraph 108:

‘Generally speaking, the court will take into account the following factors in sentencing:

(1)  Protecting the public — protect the public from the adverse effects of the offence in question;

(2)  Meting out penalties — the sentence imposed ought to be commensurate with the offence committed, i.e. one that reflects the seriousness of the offence and the culpability of the offender;

(3)  Open condemnation — the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender;

(4)  Deterrence — prevent the offender from reoffending and prevent other people from committing the offence;

(5)  Compensation — the sentence may require the offender to give compensation to the victim of the offence as a form of remedy or recompense;

(6)  Rehabilitation and reform — one of the objectives of sentencing is the rehabilitation and reform of the offender; it is hoped that after serving the sentence, the offender will be law-abiding.

When faced with different offences or different facts, the court will consider whether a particular sentencing factor is applicable, and if so, how much weight it should be given. In deciding how much weight to be attached to a particular sentencing factor, the court will, generally speaking, consider the nature and seriousness of the offence, the seriousness of the facts surrounding the commission of the offence, the consequences of the offence, the offender’s motive for committing the offence, and the personal circumstances of the offender, etc. Even if it is for the same offence, if the facts and circumstances of the case are different, the weight given to the same sentencing factor by the court may be different. It is necessary for the court to fully and comprehensively assess all the circumstances of the case and the seriousness of the facts surrounding the commission of the offence, before giving proper weight to the applicable sentencing factors. A sentence that is commensurate with the case is then to be imposed on the offender.’

11. On the premise of protecting public health, and having regard to the gravamen of the offence of incitement at paragraph 34 in Secretary for Justice v Poon Yung Wai, CAAR 16/2020, apart from imposing an appropriate sentence on the offender, the court is also required to consider the deterrent element in sentencing, i.e. the sentence does not only have to prevent the offender from reoffending, but it also needs to deter others from copying the behaviour of inciting others to breach the law. A custodial sentence is inevitable.

12. Bearing in mind that the defendant was a first offender when the offence in this case was committed, and having regard to the factors above, I adopt a starting point of 12 months’ imprisonment. As the defendant is convicted after trial, there is no mitigation factor in the case.

13. The defendant is presently serving the sentence imposed by the District Court in another case. Initially I was mistaken that she had committed the offence in this case while on bail in the District Court case. After clarification, I realized that the said District Court case was proceeded by way of summons, involving no question of committing crime while on bail. However, in my view, this is only a technical issue. The defendant committed the offence in this case when the trial of the case fixed on 4 June 2020 was pending, meaning that she reoffended soon afterwards in 2021; therefore, I raise the starting point of 12 months by 3 months to a term of 15 months’ imprisonment.

14.  If both cases were dealt with together, the court would consider the totality principle. For fairness, it is ordered that 10 months out of the 15 months’ imprisonment in this case is to be served consecutively to the term of 12 months imposed in the District Court case.”

D.   Grounds of appeal

10.Mr Johannes Chan SC (Hon)  and Mr Chris Ng, who then represented the appellant in the appeal, advanced the grounds that the magistrate had erred in finding the facts of the present case serious and had failed to give sufficient consideration to the appellant’s basic rights including the freedom of expression, resulting in the manifestly excessive sentence. Mr Robert Pang, SC and Mr Chris Ng who subsequently represented the appellant adopted the same grounds of appeal.

11.The magistrate was criticized for having cited Poon Yung Wai[3]. It was contended that although the present case also involved the offence of incitement, the facts were obviously less serious; nevertheless, a similar starting point of 15 months was adopted.

12.The appellant emphasised that Poon Yung Wai was about inciting others to take part in an unlawful assembly involving violence and therefore, the court was required to give sufficient consideration to deterrence and punishment in sentencing. Moreover, in Poon Yung Wai, the respondent targeted the police facility and made a direct challenge to the law enforcement performed by the police; and the content of the posts involved smearing the police officers, thereby stirring up in the readers dissatisfaction or even disgust for the police. Furthermore, the content of the respondent’s posts in question were all fabricated. The Court of Appeal found his culpability to be “extremely serious”, which demanded a sentence of sufficient punishment and deterrence.

13.The appellant submitted that the present case was about inciting others to take part in an unauthorised assembly involving no violence, and the facts were even related to the appellant’s exercise of the freedom of expression, speech and assembly. Freedom of expression is the cornerstone of a civil society. When an offence involved peaceful expression of opinion or even just peaceful venting of dissatisfaction, the court had to consider the chilling effect caused to the basic freedom by the sentence and to strike a balance with other purposes of sentence (such as punishment and rehabilitation)  before passing a proportionate sentence.

14.A series of precedents of the European Court of Human Rights[4] was cited by the appellant to emphasise that organizing a peaceful meeting, even if contrary to the law, in general should not receive a sentence of imprisonment so as to avoid creating chilling effect to the participants of peaceful protests.

15.The appellant pointed out that the purpose of punishment mainly dealt with what had happened in the past, for which the court mainly considered the circumstances at the material time; whereas deterrence and chilling effect were about the future, which required the court to assess the influence going to be caused by the punishment to society in future. In balancing the two, in view of the time lapse between the commission of the offence and the time of sentence, apart from considering the circumstances in society at the material time, the court had to take into account the change in the circumstances at the time of sentencing as well. The court must avoid the chilling effect brought by any over harsh sentence because a disproportionate sentence might undermine the protection for the freedom to express.

16.The appellant said that the influence caused by the pandemic to Hong Kong was receding at the material time, and the government also relaxed the pandemic preventive measures step by step. Hence the magistrate’s comment that the appellant’s behaviour ignored the safety of the public did not reflect the actual situation at that time.

17.The magistrate imposed the sentence on the basis of the risk of pandemic which could possibly be caused by mass gathering of people. However, having considered the societal and political circumstances at that time, there was absolutely no objective or reasonable factual basis for the magistrate to think that a large number of people would be called on by incitement. The number of participants in the previous June 4^th Meetings could not be comparable, in particular when the government had already issued a press release, and there was an obvious change in the gatherings in society after the promulgation of the National Security Law. Even the appellant herself estimated that “there would more likely be only three or four little ones, or even myself alone”[5]. As a matter of fact, the evidence showed that the incitement in question did not cause any influence on or adversely affect the public health on the day in question.

18.On the other hand, the subject matter of the appellant’s incitement was at the most only a peaceful gathering. Even though the court should not show its own stance about the appellant’s political belief, the court should consider the following matters: (1)  the June 4^th Meeting had been held in Hong Kong for over thirty years; (2)  there had been tens of thousands of participants each year before 2020; (3)  the June 4^th Meetings were peaceful gatherings having a special historical background and were different from other peaceful assemblies; (4)  Hong Kong was the only city within the territory of China where large-scale activities commemorating the June 4^th could be held, and the June 4^th candlelight vigil was already an iconic event symbolizing Hong Kong’s independent legal system under “One Country Two Systems”; and (5)  prosecution and conviction would create chilling effect to the peaceful gathering commemorating the June 4^th, which was different from any ordinary meetings, thereby scaring off the relevant organizations and the public from exercising their freedom for fear of future investigation or prosecution. The appellant said that these factors were totally left out in the magistrate’s consideration.

19.The appellant suggested that in the light of the above principles, the starting point adopted and the overall sentence imposed by the magistrate were manifestly excessive.

20.The appellant also submitted that the magistrate had initially misconceived that the present case happened while the appellant was on bail and thus enhanced the sentence by raising the starting point from 12 months to 15 months. After clarification, the magistrate realized that the other case was a summons case, and the appellant committed the offence in the present case when the trial of the other case was pending, and hence the present case did not involve any commission of crime while the appellant was on bail.

21.The appellant submitted that, be that as it might, the magistrate did not remove the 3 months’ enhanced imprisonment, and the appellant was eventually sentenced to 15 months’ imprisonment, in which 10 months were to be served consecutively to the sentence that she was serving in relation to the District Court case.

22.The appellant submitted that, in the magistrate’s view, the issue of being on bail was only a technical one, which was a misconception of the nature of bail.  It was submitted that everyone should be presumed innocent unless and until being found guilty, and mere prosecution could not be the reason to enhance the sentence of a defendant. Commission of crime while being on bail was a reason for sentence enhancement because bail was a promise between the defendant and the court, by which the defendant was willing to undertake by his/her own recognizance or by way of surety to be of good behaviour and not to breach the law while on bail, but that defendant broke such undertaking. The other case of the appellant was proceeded by way of a summons involving no bail or undertaking to the court. There was no legal basis for the magistrate to enhance the sentence or order the sentence to run consecutively to that in another case[6].

23.The appellant submitted that the sentence imposed by the magistrate was manifestly excessive considering it either individually or accumulatively.

E.   Respondent’s response

24.Mr William Tam SC, DDPP and Mr Edward Lau, SPP (Ag)  acting for the respondent responded to the grounds of appeal.

25.The respondent submitted that in view of the legal principles laid down by the Court of Appeal in Poon Yung Wai and Wong Chi Fung, since there were at least 12 items of serious fact in the present case, the appropriate sentence should place emphasis on punishment and deterrence:

(a)  The appellant openly incited others on the internet which had a wide coverage. The post on Facebook alone has attracted at least 604 replies by emoji and 286 shares on one day[7], and the appellant even expressed that “it may be more than this.”[8] Her Twitter account had more than 9000 followers[9]. The Court of Appeal indicated earlier in Poon Yung Wai: “It is common knowledge that messages posted on the internet can be circulated rapidly and widely. The respondent, in choosing to incite others by such means … His conduct aggravated his culpability.”[10]

(b)  Apart from Facebook and Twitter, the appellant also published an article in a mainstream newspaper in Hong Kong, openly inciting others to breach the law.  Ming Pao, both its printed and online versions, was a very widely circulated mainstream newspaper, having tens of thousands of readers. The appellant at trial also agreed that the said paper “was very widely circulated”;[11]

(c)  The appellant by picking the special dates, that is, the very day of 4 June and the day before, to openly incite others to participate in the meeting, obviously intended to draw more attention so as to achieve what she said, “wish very very much to see the presence of a sea of candlelight continue in the Victoria Park”;[12]

(d)  The appellant committed the offence by pre-meditation and planning.  She published posts consecutively on Facebook and Twitter only two hours after the issuance of the government press release, and even deliberately published her article in a newspaper on 4 June to incite more people to participate in the meeting;

(e)  The appellant, being a public figure, openly incited others to breach the law, thereby creating an extremely strong rallying effect to a large number of would-be participants, which was an aggravating factor in the present case;[13]

(f)  If a massive number of people went to Victoria Park to participate in the meeting upon incitement, an extremely high risk would be brought to the public health. The COVID-2019 was highly contagious and potentially fatal. As pointed out by the experts from the Health Department, in their opinions, there were globally over 7,800,000 confirmed cases and more than 160,000 fatalities. The pandemic in Hong Kong at that time remained at the response level of “emergency”, indicating that the virus would cause serious and wide infections and an imminent risk of community outbreak persisted.

(g)  A massive crowd meeting, as in the previous years, with long hours of gathering, singing, chanting of slogans and speeches would facilitate the transmission of the virus, intensifying the risk to public health;

(h)  The appellant openly incited others to meet at the Victoria Park without any anti-pandemic measure arranged, which was a complete disregard of the safety of the public including the people who participated in the meeting upon incitement. The Health Department could not possibly trace the origin should somebody unfortunately got infected in the meeting, and in such case, the virus would further spread in society, endangering the safety of the participants themselves and their families and friends;

(i)  In any event, regarding the pandemic preventive measures, as the Appeal Board pointed out, the Hong Kong Alliance was simply unable to put forward any practicable measure to prevent the spreading of the virus;

(j)  The Victoria Park, being in Causeway Bay and Tin Hau, was in the busy city centre. Crowds going in, gathering and departing would cause extremely high risk of spreading the virus to the citizens and residents nearby;

(k)  The appellant committed the present offence while the trial of another case about the June 4^th Meeting in 2020 was pending. She was a recidivist, which was another aggravating factor;

(l)  Most importantly, the appellant being a barrister with legal knowledge committed the offence in blatant defiance of the law. She disregarded the Commissioner’s decision and the determination of the Appeal Board, openly incited others to break the law, ignored the institution and the law, and was completely reckless as to the extremely high risk that her behaviour would bring to the public.

26.The appellant contended that the facts in the present case were obviously less serious than those in Poon Yung Wai but the starting point (12 months)  was just similar to the 15 months adopted in Poon. On this point, the respondent submitted that the gravity of the present case was just similar to, or even higher than, that of Poon Yung Wai: (1)  Poon involved the posts on Facebook only, but the present case involved, other than Facebook, the posts on Twitter and a highly circulated mainstream newspaper as well; (2)  comparing with the defendant in Poon who had put only two posts on Facebook, the appellant in the present case published the posts and an article consecutively even with obvious premeditation; (3)  while the defendant in Poon was not a public figure, the appellant’s publicity would certainly create greater rallying effect; (4)  Poon did not happen in the context of COVID-2019, the incitement in that case did not put the public at tremendous life-threatening risk to their health.

27.The appellant submitted that the present case was related to the exercise of the freedom of speech, expression and assembly by the appellant. Several cases of the European Court of Human Rights were cited in support, which suggested that harsh sentence should be avoided to prevent any possible chilling effect; otherwise, the protection for the freedom of expression would be undermined.

28.On this point, the respondent referred to Wong Chi Fung, and submitted that the Court of Final Appeal had already pointed out that if the conviction of a defendant proved that she had already crossed the line in law by acting unlawfully, a plea for leniency at such stage by exercising the constitutional rights was weak:

“The fact of a conviction of the offence will necessarily mean that the offender has crossed the line separating the lawful exercise of his constitutional rights from unlawful activity subject to sanctions and constraints. In such a case, there is little merit in a plea for leniency on the basis that the offender was merely exercising constitutional rights since, by definition, he was not doing so at the time when the offence of was committed”[14] (emphasis underlined)

29.As regards the appellant’s allegation that no evidence has ever shown that her incitement had created adverse influence on public health, the respondent pointed out that the Court of Appeal rejected such argument earlier in Poon Yung Wai, for the following reason:

“(1)  [T]hey ignored the gravamen of the offence of incitement in preventing the commission of crime. The respondent committed the offence of inciting others to unlawfully assemble when he posted the posts in question. The Court should assess his culpability against the then circumstances, including factors such as the context, the place and individuals targeted, the modus operandi, and the risk of undermining law and order. The incitement to an unlawful assembly which would involve violence at the San Uk Ling Holding Centre, if acted on, would aggravate the respondent’s culpability, but that it did not come to fruition would not mitigate his culpability. This Court’s view can find support in Divin, where against the backdrop that riots had broken out in a number of cities and districts in England, which had been widely reported by the media in Scotland, the appellants incited others to take part in a riot in Scotland by means of Facebook. The High Court of Justiciary stressed at [20] of its judgment that even though riots had not spread to Scotland, the appellants’ culpability was quite high irrespective of the terms they used or the responses posted by members of the public. The same applies in the present case.”[15] (emphasis underlined)

30.The respondent said that the appellant’s incitement, if resulted in a major epidemic breakout in the community, would aggravate her culpability; whereas a result of no breakout would not mitigate her culpability or become a strong mitigating factor.

31.The appellant submitted that the June 4^th Meetings held over the previous years were all peaceful, carrying their own special meaning, and prosecution and conviction would scare off the relevant organization and the public from exercising their freedom. On this point, the respondent submitted that there was no threat of COVID-2019 when the June 4^th Meetings were held in or before 2019. As the magistrate pointed out, the court would not consider the appellant’s political background and ideas in sentencing.  What the court had to weigh was the context in which the appellant committed the offence and the risk brought by her incitement. Even if her behaviour brought no serious outbreak in the community, the court was still entitled to impose a deterrent sentence so as to deter others from breaching the law knowingly.

32.The respondent quoted the judgment of Pang JA who dealt with a case relating to an unlawful June 4^th Meeting in 2020:

“In my judgment, it is both clear and irrefutable that the threat posed by the pandemic was serious, that the applicants were bent on pursuing their own agenda regardless, that they did so at the expense of the health and safety of the entire community, and that by congregating and implicitly encouraging others to congregate in large numbers they were also creating a huge public order risk amidst a highly volatile situation. The fact that there was no … subsequent upsurge in covid-19 cases as a result was entirely fortuitous. The applicants do not have any valid complaint about the deterrent sentences that had been meted out”[16] (emphasis underlined)

33.The respondent submitted that, taking what were stated above as a whole, and having considered the various serious facts in the present case and the maximum sentence of three years’ imprisonment for the offence, the starting point of 12 months adopted by the magistrate was not manifestly excessive.

34.As to the appellant’s complaint that the magistrate raised the starting point on the ground that she had committed the present offence while the trial of another case was pending, the respondent submitted that, committing a crime while being on bail was an aggravating factor, but this was not merely because the defendant had breached the undertaking made to the court; more importantly, the defendant was shown to have disregarded the law and reoffended repeatedly.

35.The respondent cited HKSAR v. Leung Ting Fung & Anor[17], in which the Court of Appeal said:

“29. … It has long been recognised that the fact that offences are committed whilst on bail is an aggravating feature of those offences which entitles the judge to enhance his sentencing starting point for them.

30.  The reason it is an aggravating feature is because, in terms of the offence, it demonstrates a serious disregard for the law and, in terms of the offender, it evidences a persistence in offending. Both of these matters add to the culpability of the offender and like any aggravating feature should be dealt with by an enhancement of the starting point.” (emphasis underlined)

36.It was submitted that even if it did not involve any undertaking made to the court, and it was, for example, during police bail that an offence was committed, it was still an aggravating factor. The respondent also cited what the Court of Appeal pointed out in HKSAR v. Majid Muhammad[18]:

“23. There is no doubt that the commission of an offence whilst the defendant is on bail in respect of another alleged offence is a seriously aggravating factor in the commission of an offence which a judge may reflect in enhancing the starting point for sentence. That is so whether or not bail is granted by the police or by a court. It may be that the commission of an offence committed whilst on bail granted by a court is to be viewed more seriously, given that it is a public undertaking to the community through the court.” (emphasis underlined)

37.Further, in HKSAR v. Wong Yun Fat[19],the Court of Appeal reiterated the above legal principle:

“48. It is clear from the authorities that even if the bail is only police bail the fact that the bailed person committed an offence whilst on bail is still to be regarded as an aggravating factor. The issue is not whether the sentence should be enhanced but, rather, by how much it should be enhanced.” (emphasis underlined)

38.The respondent submitted that the reason for which the commission of an offence whilst on bail was regarded as an aggravating factor was not solely because the defendant concerned had breached the undertaking made to the court but that defendant had disregarded the law and reoffended.  Therefore, in unilaterally claiming that she did not commit the offence while on court bail, the appellant just ignored the fact of her flagrant disregard for the law and repeated offending, and what she said just could not stand.

39.The respondent pointed out that the appellant in the other case was involved in the June 4^th Meeting in 2020, in which she was charged with an offence of “incitement to knowingly take part in an unauthorized assembly” and an offence of “knowingly taking part in an unauthorized assembly”[20]. The appellant was convicted after trial and sentenced to 12 months’ imprisonment in total.

40.The present case involved the June 4^th Meeting in 2021 of a similar nature, and the appellant also faced the charge of “incitement”, showing that she just disregarded the law and committed the same offence repeatedly. The Court of Appeal pointed out earlier in R v. Kwok Chi-keung[21] that:

“time and time again that where there are more than one offence of a similar nature committed at different times it is right for the court to award a higher sentence than if there had been only one offence. The reasons for this should be obvious. Not only must those who commit one offence be discouraged from entertaining the erroneous notion that if they commit further offences they will be liable to no greater punishment than that which they would receive for a single offence, but that justice requires that the greater degree of criminality manifested by repeated breaches of the law be visited by a more severe punishment than that inflicted for a single offence” (emphasis underlined)

41.Therefore, even though the appellant was not on court bail when committing the offence, having considered her disregard for the law and reoffending, the magistrate was justified to raise the starting point to 15 months.  In fact, by ordering 5 months in the term of the present case to be served concurrently with her sentence in respect of the case relating to the June 4^th case committed in 2020, the magistrate was generous. The issue of manifestly excessive sentence was just out of question.

F.   My considerations

42.Having considered the submissions made for the appellant and the respondent, I fully agreed with the latter’s reasoning and submissions.

43.As regards the criticism against the magistrate for failing to consider the appellant’s basic right to the freedom of expression, the Court of Final Appeal held in the appeal of the present case, at paragraph 179, that the prohibition by the police was necessary and proportionate in view of the seriousness of the pandemic:

“179 … Bearing in mind that some 40,000 to 60,000 participants were expected to gather for some hours, it is perfectly understandable that the CP reasonably failed to be convinced that the organizers could effectively ensure that such conditions would be complied with and that they would provide an acceptable level of safety in the circumstances of the prevalent pandemic. The CP had a wide margin of discretion. The prohibition was, in my opinion, plainly a proportionate and legitimate measure.” [22] (emphasis underlined)

44.The appellant could not ask this court to allow her appeal against sentence on the ground that the pandemic was not serious at the material time, and just like what was pointed out in Wong Chi Fung as cited by the respondent, neither could the appellant use the freedom of expression as a ground of appeal.

45.As to the European cases cited by the appellant, the Court of Appeal pointed out earlier in HKSAR v. Lai Chee Ying and Others[23]:

“106. With respect to the applicants’ reliance on the European authorities to which we were taken, they are not concerned with a notification regime such as our own, where there has already been an assessment by the authority of the application, involving an in-built balancing of risk against the fundamental rights of the individual; and an ensuing demonstration or assembly, which is in defiance of the authority’s determination, and thereby unlawful…”

46.I fully agree with the starting point of 12 months adopted by the magistrate.

47.As regards the aggravating factors, the appellant said that the magistrate was not justified to enhance the sentence because the other case of the appellant was proceeded by way of a summons without involving any bail or undertaking made to the court, which I do not accept. Since the appellant has disregarded the law and reoffended by even committing a similar offence while “on bail”, in such circumstances, there was nothing improper with the enhancement of three months.

48.The magistrate, after considering the totality of sentence, properly ordered 10 months out of the 15 months to be served consecutively to the sentence relating to the other case.

49.There is no justification for me to intervene the sentence imposed by the magistrate.

G.   Conclusion

50.In the light of the above reasons, the appellant’s appeal against sentence is dismissed.

Mr Tam Yiu Ho, William, SC, Deputy Director of Public Prosecution and Mr Lau Wan Cheung, Edward, Senior Public Prosecutor (Acting)  of the Department of Justice, for the respondent.

Mr Robert Y. H. Pang, SC and Mr Chung Luen Chris Ng, instructed by Cheng & Co, for the appellant.

Translated by the Court Language Section of the Judiciary and vetted by Ms Jenny Chung, Solicitor.