HKSAR v. Li Chi Wang
Read the full judgment text of HCMA 266/2022 on BabelCite. This High Court CFI judgment was delivered on 28 July 2023.
1. The appellant was charged with an offence of “behaving in a noisy or disorderly manner in a public place”, contrary to section 17B(2) of the Public Order Ordinance, Cap 245 of the Laws of Hong Kong. He pleaded not guilty and was convicted after trial by Magistrate Ms Winnie Lau (“the magistrate”) sitting at the Eastern Magistrates’ Courts and sentenced to 7 months’ imprisonment. He appealed against the conviction and sentence.
Cited by 1 case · Cites 11 cases
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[English Translation – 英譯本] HCMA 266/2022 [2023] HKCFI 1794 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 266 OF 2022 (ON APPEAL FROM ESCC 2480/2020) ____________
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JUDGMENT A. Introduction 1.The appellant was charged with an offence of “behaving in a noisy or disorderly manner in a public place”, contrary to section 17B(2) of the Public Order Ordinance, Cap 245 of the Laws of Hong Kong. He pleaded not guilty and was convicted after trial by Magistrate Ms Winnie Lau (“the magistrate”) sitting at the Eastern Magistrates’ Courts and sentenced to 7 months’ imprisonment. He appealed against the conviction and sentence. B. Particulars of offence 2.In the particulars of offence, it is alleged that the appellant did, on 24 May 2020, at a public place at the junction of Canal Road East and Hennessy Road in Causeway Bay, Hong Kong, behave in a noisy and disorderly manner or use threatening, abusive or insulting words, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused[1]. B.1. Prosecution case 3.The magistrate recounted the prosecution case in her Statement of Findings:
B.2. Defence case and stance 4.The appellant exercised his right and elected not to give evidence or call any witness. It was said that the production of the evidence of Incident 1 was objected at trial because Incident 1 was not relevant to the incident for which the charge was brought (Incident 3), and such production might wrongly reflect that the appellant tended to commit the offence and so on. The magistrate hence dealt with it by way of the alternative procedure; the appellant did not give evidence or call any witness in respect of the special or general issues. 5.The approach of the appellant’s defence was brought out through the cross-examination and submissions, including:
C. Appeal against conviction 6.Mr Anthony Lai and Mr Stephen Keung, acting for the appellant, basically advanced two grounds of appeal, alleging that the conviction was not safe or satisfactory.
D. Ground of appeal (1) D.1. Appellant’s submissions 7.It was first submitted for the appellant on the point of a breach of the peace is likely to be caused and then on the intent to provoke a breach of the peace. “A breach of the peace is likely to be caused” 8.The appellant submitted that the most crucial point in the factual background of the present case was that throughout the 1.5 hours (from Incident 1 occurred around 1530 hours to the time when the appellant was handcuffed around 1705 hours) during which the whole incident had lasted, even if it was accepted that the appellant had behaved in a noisy and disorderly manner and used abusive and insulting words, plus the actual law enforcement acts (as opposed to giving warnings only) carried out by the police, including subduing the male wearing a cap, taking the appellant into the area enclosed by Cordon Line 3 and arresting him, there was only a pure gathering involving no words or slogans of violence (compared with, for example, “valiant”) and no actual violence (e.g. “snatching arrestees” or throwing odd objects such as water bottles, etc.) took place. 9.In other words, in law, one reasonable possibility not being ruled out was that the threats of violence at that time was not imminent, and there was a mere possibility but no real risk of violence (HKSAR v Chow Nok Hang[2]). Conversely, if the prosecution’s stance was that the threat of violence was then ready but had yet broken out only because of the police deployment, then when would it break out? Or might the answer be simply not having such ability, and therefore the people assembling at the scene could only argue verbally? 10.The appellant contended that the magistrate had not only failed to give sufficient consideration on the non-violent situation which lasted for a long time as mentioned above, but instead regarded the discontent with the police as the imminent and actual threat of violence. In law, the freedom of expression and the relevant restrictions must be given generous and narrow interpretation respectively, meaning that views which were disagreeable, unpopular, distasteful and even offensive or views which might be critical of persons in authority (going further than discontented emotion) also needed to be tolerated and able to be conveyed (Chow Nok Hang[3]). 11.It was submitted that abuse directed at the police in the presence of third parties did not ipso facto constitute incitement to those third parties to violence (HKSAR v Li Wai Kuen[4]). As submitted for the appellant whose appeal was allowed by the Court of Appeal in that case, although the reaction of the spectators showed that they supported the appellant’s abuse to the police officer, there was no evidence that what he said was likely to provoke them to attack the constable or to contend among themselves. It was true that the constable said he thought there might be a riot, but the risk (even if there was a real possibility) might likely be caused by the crowd’s disapproval of the constable’s action (proper though it was) rather than the insulting words spoken to that police officer by the appellant. 12.It can been seen from the above legal principle that discontent was not equal to threat of violence when the magistrate considered if a breach of the peace was likely to be caused, and the objective environment at the material time (including the above long duration and non-violent circumstances) must be taken into account, and it was for the court to determine rather than the witnesses in the present case or police officers at the scene to make judgment. In this regard, the magistrate erred in relying on the subjective judgment made by the police officers at the scene and their evidence in response. 13.It was submitted that even the cases of protest themselves might be classified into different levels of violence: from the serious ones involving substantive violence (constituting riot) to minor ones involving pure possibility (constituting lawful assembly), and could not be generalized. Conversely, if any behaviour (irrespective of its objective circumstances) had to be magnified for examination to see if any criminal liability was involved only because of having happened during a protest, and as a result, for example, the people in the protest who regarded themselves as having been unlawfully treated by the police worried that they might “incite” others, and hence they gave up reasoning with the police and turned out to be forced to accept liability and leave the complaint and pursuit of the case until later at the expense of time and effort. In such case, the interpretations of free expression and the relevant restrictions might become over narrow and generous respectively. 14.It was also submitted that whether the appellant’s act of continuously arguing with the police was lawful and reasonable should not depend on whether the police had given any warning. The police, of course, had their own duties and significance, and it did not follow that those people who disagreed with the police action and even argued with them should be criminally liable. The gravamen of the charge in the present case was preventing the outbreak of public disorder (Chow Nok Hang[5]) rather than anything detrimental to the efficiency of the police in executing their duties. 15.As to whether the male having a proof of identity was, as held by the magistrate, trying to stop the male wearing a cap being subdued, the appellant said this was obviously not the only reasonable inference because the male wearing a cap had repeatedly raised his hands before the police had any contact with him, which was a gesture going in line with his words rather than getting ready for being held back by his “fellows”. Furthermore, since the police seemed to have subdued the male wearing a cap without any warning in advance, the fact that the male having a proof of identity put out his hand could be an attempt to grab any person (irrespective of his identity) to avoid the latter from getting injured, or a shout to stop any action having the risk of causing injury (no matter by whom or to whom), which were neutral and natural acts. Finally, whether any person who displayed a proof of identity to show his/her identity, face or occupation, for example reporters or humanitarian paramedics, was taking part in unlawful activity at the scene was itself doubtful. As such, the magistrate erred in taking this as the evidence showing the real and imminent risk of violence. In any event, this matter was only a very small part of the whole incident, not only was it not caused by the appellant, it did not lead to any actual violent confrontation. “Provoke a breach of the peace with intent” 16.The appellant submitted that although all of what the appellant had said and done had lasted for quite some time, it involved no direct incitement to others to behave violently, such as attacking the police or snatching any arrestee from the police. Had the appellant really intended to do so, he could have well before then directly called on others to charge at the police, to save him and so on. There was not sufficient evidence to prove that his intent must be provoking others to breach the peace. The appellant [said it] must be stressed that even if he intended to let his complaints against the police be heard by other people, and even hoped that others would agree and support his discontent, such intention was not equivalent to that of provoking others to use violence. 17.Going one step further, what the appellant had done was merely reasoning with the police (as opposed to merely abusing) because what he argued for was not absolutely unreasonable:
18.It was said for the appellant that in the present case, the abuse on the police, whether by the appellant or other people, were not sufficient to constitute inciting others to use violence. Even if the appellant did really carry out incitement, it would only be inciting others to support him criticising the police and/or to criticize the police by themselves. The various acts performed by the appellant upon which the magistrate relied just aligned with such possibility. The appellant at most only took advantage of the crowds’ momentum to defeat the police verbally, whilst he did not (and even dared not) put things into action, not to mention using violence. D.2. Response from the Respondent 19.Ms Kathy Sum, Public Prosecutor, acting for the respondent has adopted the written submissions prepared by Mr Ivan Cheung, ADPP and herself. Here is her submission in response to the ground of appeal (1). A breach of the peace is likely to be caused 20.The respondent submitted that the magistrate first recounted the circumstances and environment at the material time on the pavement on both sides under the Canal Road Flyover and in the area around the intersections of Canal Road East and Canal Road West with Hennessy Road (collectively called “in the vicinity of the scene”), which had been continuously chaotic and tense up to 1640 hours. Quite a lot of people were gathering at the scene, expressing discontent, venting negative emotion to the police and blockading roads. The police, therefore, had to repeatedly raise the warning flags and take action to control the situation. 21.The magistrate has considered the following evidence which were relevant:
22.The respondent said that the magistrate found what the appellant did and said at the material time fell within the meaning of behaving in a noisy and disorderly manner and using abusive and insulting words under the relevant ordinance[10]. This finding seemed to have been accepted by the appellant at the appeal stage and did not dispute anymore. In fact, as far as the appellant’s behaviour was concerned, including that he rushed out from the crowd to front of the cordon line in Zone C, loudly shouted out insulting and provocative words such as saying the police were “rubbish”, raised his arms at times, subsequently continued to loudly challenge the law enforcement action taken by the police when he was within the cordoned area, and deliberately raised his identity card to challenge the police constable about the need for producing his identity card to him, he was definitely behaving in a noisy and disorderly manner, and what he said was clearly abusive and insulting. Undoubtedly, the magistrate’s findings in this regard was sensible and reasonable. 23.The respondent said that taking into account the continuously chaotic and tense atmosphere in the vicinity of the scene, the magistrate considered that what the appellant had done and said must have aggravated the negative emotion of the crowds who were dissatisfied with the police and gathered at the scene, intensified their anger and agitation, and pushed the very chaotic circumstances to continue or even deteriorate (the magistrate made such analysis and inference from various circumstances in the case in a number of paragraphs[11]). 24.The respondent submitted that the magistrate’s analysis in this aspect was objectively supported by video footage recording what happened at the scene:
25.The appellant repeatedly stated at trial and in the appeal that what the appellant had said involved no wording of applying violence by himself or suggesting others using violence, and hence his conduct would not cause any breach of the peace. As pointed out by the magistrate at paragraph 37xx of her Statement of Findings, people were different in the ability to control their emotion. Some people were relatively weak in controlling themselves in this aspect and might be easier got triggered into using violence in the state of agitation, which might just happen in the split of a second. The magistrate has also considered what had happened on that day as a whole, including the series of law enforcement actions taken by the police, the appellant’s subsequent allegations against the police for arbitrarily arresting and attacking the citizens and using pepper spray and his persistent challenges made against the police enforcement, all of which when adding up together, must, on the factual level, bring about a real and imminent risk of provoking the crowds at the scene to resort to violence, object to the police law enforcement and finally breach the peace of society[13]. 26.In HKSAR v Luk Ping Yat (transliteration of陸冰溢) [14], Alex Lee J cited what Rebeiro PJ has said in Chow Nok Hang, namely even if the defendant himself had not applied violence or threatened to use violence, he might still have committed the offence under section 17B(2)[15]. 27.The appellant pointed out that throughout the whole incident happened on that day (from Incident 1 to the time when the appellant was handcuffed), no real violence had ever occurred, and therefore the threat of violence at that time was not imminent nor was there any real risk of it. However, the appellant seemed to have ignored the continuously chaotic and tense situation in the vicinity of the scene, and that many people had kept on gathering together, and the police had to applied force to control the situation, including using tear gas and pepper spray. The relationship between the police and the citizens was very tense at that time. The appellant has tried to play down the turmoil on that day by saying “there were only words and slogans not involving violence” and “pure gatherings”, whereas forgotten that the objective evidence in the case, such as what was shown by multiple video footage, was just the opposite. 28.In addition, the appellant also said that under the police deployment, the people at the scene simply could not threaten to use force and could only contend verbally. The appellant referred to Luk Ping Yat, saying that as pointed out by A Lee J in the case, whether the scene was a police “closely monitored demonstration” and whether the protestors had been under effective control of the law enforcement officers were proper factors for consideration. The respondent submitted that A Lee J further pointed out in paragraph 31 of the judgment:
29.In objectively considering whether there was an imminent and real risk of likely causing a breach of the peace at the scene, the magistrate was certainly entitled to consider the discontent of the crowd at the scene with the police, because this was the very reason that those gathered at the scene would “wilfully insult the police who were in execution of their duties, put up stiff resistance and even apply violence on them”. Naturally, the magistrate could consider the evidence as a whole, including the subjective judgment of and the response given by the police officers at the scene so as to understand the actual circumstances and atmosphere at the material time. The appellant’s complaint could not stand. 30.The respondent said that the magistrate had in the Statement of Findings clearly explained that one of the reasons for convicting the appellant was that his “agitated words and behaviour were not caused by his discontent and/or disagreement with the police, but by his intention to act against the police and challenge them in enforcing the law, and he did further incite and provoke the discontent of the people at the scene against the police with intent” [16]. The respondent suggested that the appellant had spoken out of context, being unfair to the magistrate. 31.The respondent also said that the appellant’s complaint was unrealistic and disregarded the occurrences of “snatching arrestee” from time to time among various incidents during the social event. Irrespective of the capacity in which this male having a proof of identity (the magistrate called this person “the male wearing goggles” in the Statement of Findings[17]) at the scene at that time, he was certainly not a police officer, and in such case, while he was getting close and putting out his hands to a person who had just been subdued and detained by the police, what he did would certainly be regarded by the police officers and other people at the scene as “snatching the arrestee”; which was disturbing the order in less serious cases, or causing harm to the police officer and leading to riotous situation in more serious ones. It was not improper for the magistrate to take into account what was shown by the footage as one of the objective evidence in considering the actual circumstances at the material time. 32.The respondent referred to HKSAR v Chan Ho Lun (transliteration of陳浩倫) [18]，in which the appellant was convicted for the offence of “behaving in a noisy manner in a public place”. The prosecution case alleged that when the police officers were clearing the obstacles on the road, the appellant, who was standing by the side, scolded loudly and called upon the crowds at the scene to surround the police officers, which attracted a lot of passers-by to get around to watch, and some people even applauded and booed with clapping hands. The appellant appealed against the conviction. After the appeal conducted before Andrew Chan J by way of a rehearing, it was held that the evidence was sufficient to support the conviction and the appeal was dismissed. Therefore, it could be seen that the behaviour of repeatedly and continuously scolding the police officers and inciting people to obstruct the police in law enforcement could be supportive elements of the charge in the present case. Intended to provoke others into a breach of the peace 33.In respect of the appellant’s intention, it was said on his behalf that he had no intention to incite the people at the scene to any violent act but only to reason with the police; or he at the most incited others to support him to criticise the police and/or incited others to criticise the police together. At trial, the appellant elected not to give evidence, which was of course his right to do so. This, however, also meant the [appellant] had no evidence to reflect his state of mind, and the court had to draw inference from the objective evidence. 34.The respondent submitted that the magistrate had analysed the evidence in the case in detail before holding that the appellant had provoked and incited discontent with the police among the people at the scene with intent at the material time. She supported her analysis and conclusion with the following matters:
35.The appellant’s complaints had been properly dealt with by the magistrate at trial. In short, the magistrate did not agree that the appellant had merely reasoned with the police at the material time, which was inconsistent with his actual behaviour. Had the appellant merely reasoned with the police and expressed his discontent, he would not have put out his hands to make a gesture of surrendering to PW3’s arrest and insultingly called them rubbish afterwards. There was no need to do so. These were completely irrelevant to expressing his discontent with the police law enforcement at the scene. In addition, had the appellant really only reasoned with the police, why would he had not expressed his dissatisfaction to PW2 when the latter tried to understand the matter with him, but instead repeatedly questioned PW2 if he had breached the law and said he would leave if there was no arrest? Obviously, it was not the appellant’s intention to express discontent, but instead he tried to provoke the discontented mood against the police among the crowds, inciting them to act aggressively. D.3. My considerations 36.I completely agree with the respondent’s submissions and arguments. As cited by the respondent, Ribeiro PJ said in Chow Nok Hang that a person may provoke a breach of the peace without any violence or threat of violence on his part, and it suffices that the natural consequence of his conduct is violence from some third party[22]. Although the appellant said that the incident had lasted for one hour odd and no violence occurred, it is my view that the magistrate had given sufficient consideration to all relevant circumstances and what the appellant had said and done before convicting him of having behaved in a noisy or disorderly manner. The appellant did provoke a breach of the peace with intent, and his disorderly behaviour and words were likely to cause a breach of the peace. The magistrate’s verdict is completely sensible and reasonable, and there is no reason for this Court to intervene. I do not agree with the appellant’s allegation that the magistrate just relied on the subjective feeling of the police officers at the scene. She has made objective assessment. Furthermore, the ordinance concerned is pre-emptive in nature, preventing the occurrence of any violent incident. 37.This ground of appeal fails. E. Ground of appeal (2) E.1. Appellant’s submissions 38.The appellant submitted that at trial the prosecution initially only relied on PW3’s testimony to prove the occurrence of Episode 2 of Incident 3A (which happened around 1640 hours according to PW3’s testimony) and placed no reliance on Episode 1 of Incident 3A. Episode 1 (happened around 1632 to 1633 hours according to Clip P15) was brought out when the video footage was played during PW3’s cross-examination by the defence. It was the defence’s stance at trial that only Episode 1, and not Episode 2 as described by PW3, had happened, because the police had subdued the male wearing a cap with force and used pepper spray under the Canal Road Flyover at the junction of Canal Road East and Hennessy Road. The appellant challenged such action of the police and complained, which also led to PW3’s intervention and issue of warning to the appellant. Although PW3 admitted that save and except 1657 hours which was the actual time of arrest, the timing of other events was only estimates, he did not agree that Episode 2 had not happened and even said that Episode 1 shown by P15 had happened before the Episode 2 described by him, and he on that day did not know about the occurrence of Episode 1[23]. 39.According to Clip P15, Episode 1 happened immediately after the police had subdued the male wearing a cap with force and used pepper spray. What the appellant said in Episode 1 roughly was recorded in P15B[24]:
40.As to Episode 2, PW3’s testimony was the only evidence. According to him, the appellant said as following, “Police, stop arbitrarily arresting citizens, attacking citizens and using pepper spray. The police are all refuse and not human being.”[25] 41.In Item 76 of P3A [26], when the appellant was under the police investigation within the cordoned area, he did explain his own behaviour, “I was there all along, and only said that pepper spray was being used arbitrarily there, and told them to stop. What was the incitement[?] Inciting the police to use pepper spray[?]” 42.It was submitted that PW3’s version was inherently improbable with reference to the overall chronology. If what PW3 said was correct, i.e. it was between 1632 and 1633 hours that the appellant uttered the above words in P15B roughly to the police officer after the police had subdued the male wearing a cap with force and used pepper spray; however, after a while, around 1640 hours, the appellant again became emotionally agitated, “put up a fuss” and complained against the police for “arbitrarily arresting the citizens, attacking the citizens and using pepper spray”. Nevertheless, except using force and pepper spray between 1632 and 1633 hours, the police just did not use force or pepper spray again. Why would he have suddenly become emotionally agitated and uttered the words in Episode 2 some time after the conclusion of Incident 1? This was inherently improbable. However, the magistrate failed to correctly consider that if PW3’s version was true (i.e. both Episodes 1 and 2 did happen), whether it would be inherently probable in the incident as a whole. Instead of it, she only focused on PW3 and failed to notice that the occurrence of Episode 1 was not suspicious[27]. On the other hand, the magistrate considered that what the appellant had said under Item 76 (the magistrate seemed to have mistakenly referred to it as Item 71 in the Statement of Findings) of P3A was yet tested by cross-examination, and the wording in the complaint described above and that in P15B were different, and hence the excuse under Item 76 in P3A was not credible[28]. However, the appellant was not an audio recorder, and it was not surprising that he was not able to repeat what he had said before verbatim with 100% in accuracy, and there was no significant difference semantically because using pepper spray was by itself one kind of force. As a whole, his reaction in Incident 1 was obviously a result of the police application of force in subduing the male wearing a cap (the clip(s) and screenshot(s) showed that the male wearing a cap was pulled by the police officer from the pavement down to the roadway and then subdued on the ground) and use of pepper spray because they absolutely aligned chronologically. This was also inherently probable, but the magistrate failed to analyse it properly. E.2. Respondent’s response 43.The respondent said that the appellant had already advanced such argument for this ground of appeal at trial. Having considered PW3’s testimony as a whole and the circumstances shown by the footage of the scene, the magistrate was of the view that since the scene was noisy, and the direction and focus of PW3’s view were towards the people gathering at the scene, it was not surprising that PW3 did not see the appellant and did not notice the occurrence of Episode 1 of Incident 3A[29]. 44.The magistrate did consider the same argument which was also raised by the appellant at trial as well, namely the defence’s allegation that what PW3 said was inherently improbable with reference to the overall chronology. In brief, it was the magistrate’s view that Clip P16 could not reflect that the appellant suddenly got emotionally agitated having calmed down for a few minutes after 1633 hours. In view of the factors such as the focus and angle of the filming of P16 and the quality of the sound recorded, the magistrate came to the view that although it was not recorded in Clip P16, it did not mean that the appellant had not spoken or not spoken loudly after 1633 hours[30]. Therefore, the appellant’s complaint that it was inherently improbable for him to get agitated suddenly out of the blue in several minutes after uttering the words in P15B was based on a false premise. Since the appellant elected not to give evidence (which was of course his right), there was no evidence before the court to directly show whether he had or had not spoken within those few minutes, and the court could consider only the evidence adduced. 45.In relation to the appellant’s complaint against the magistrate for rejecting his explanation, as the magistrate has pointed out, what the appellant said in Item 76 of P3A was not tested, and the magistrate was entitled to make a factual finding on the credibility of the said explanation. The appellant argued that there was not much semantic difference between the words in P15B and those in Item 76, however, he had obviously alleged the police for “hitting someone arbitrarily” in P15B and even repeated this allegation thrice. Had he uttered the words in P15B because of the police’s use of pepper spray, why would he have only complained in Item 76 that the police had used pepper spray arbitrarily with no mention at all of his previous allegation that the police had hit someone arbitrarily[31]? 46.In any event, as pointed out by the magistrate, even if the words uttered by the appellant in P15B were related to the fact that the male with a cap was subdued by the police and the use of pepper spray, the utterance of such words at an earlier stage only reflected the manner in which the appellant challenged the police law enforcement, which was consistent with PW3’s allegation that the appellant shouted and scolded the police officers escorting the arrested persons on the bus lane[32]. E.3. My considerations 47.I fully agree with the respondent’s submissions and arguments. The magistrate, as trier of the facts, enjoyed the advantage of listening to and watching how the witnesses (in particular PW3) gave evidence. There was nothing wrong that she was satisfied with PW3’s testimony. No “inherently improbability” as alleged by the appellant existed in PW3’s evidence. 48.This ground of appeal fails. E.4. Conclusion on the conviction 49.I find that the prosecution has proved beyond all reasonable doubt that the appellant has committed the offence as charged. 50.The appeal against conviction is dismissed. F. Reasons for sentence 51.This Court first set out the reasons for sentence of the magistrate in the following:
F.1. Appellant’s submissions Wrong in principle 52.The appellant said that the magistrate found the present case serious. However, in fact, in sub-paragraph (i) (the intention to provoke the people at the scene to be discontented with the police led to actual violence), sub-paragraph (ii) (the appellant’s behaviour consisted of not only verbal provocation and venting of emotion) only explained how his behaviour constituted the offence, and should not be regarded as an aggravating factor itself, and sub-paragraph (iv) (the appellant’s knowledge of the circumstances at the scene) was the premise on which the intent of “provoking” a breach of the peace was constituted, and was therefore also an element of the charge only and should not be regarded as an aggravating factor (in HKSAR v Chan Cheung Oi[33]: regarding the element constituting “dangerous driving” as an aggravating factor is a double counting of punishment). 53.It was submitted for the appellant that the gravamen of the charge in the present case was preventing the breach of public order, and on analysis of the elements of the charge, a more accurate expression would be preventing the occurrence of actual violence, and therefore the elements of the charge required “the intent to provoke a breach of the peace” or “being likely to cause a breach of the peace”. 54.It was contended that the magistrate was wrong to think that the present case and HKSAR v Ma Hei Yuk[34] “did not differ much”. In that case, at an occupied area of the Occupy Movement, the defendant threw two bottles of thinner onto the ground and thereby smashed them, and then he further took out another glass bottle and a lighter, and even said “let’s go to hell together”, resulted in being assaulted by 3 or 4 supporters of the Occupy Movement and got injured. The defendant, who was found to have odour of alcohol, said under caution, “I found the people occupying Central too annoying. I just wanted to scare them.” Obviously, that defendant’s behaviour was very dangerous. Thinner was highly inflammable and volatile. In case fire was started, dreadful consequence could have been resulted, and it would definitely cause serious casualties and loss of property. The glass bottles in the case even looked similar to petrol bombs. In addition, one of the elements of the charge was the intent to provoke or likely to cause a breach of the peace “by other people”. This actually happened in that case because the defendant was assaulted, by which the gravamen of the charge was established fully. It was understandable that the Court of First Instance adopted 9 months imprisonment as the starting point. 55.On the contrary, in the present case, no actual violence occurred nor did the appellant directly ask or encourage others to use violence or threaten to use violence, and no inflammable substance was involved. It differed quite a lot from Ma Hei Yuk. Manifestly excessive 56.It was submitted that the sentence imposed by the magistrate was manifestly excessive and far more than the sentences imposed in the precedents. The appellant referred to the cases below, indicating that some also involved actual violent behaviour leading to casualties or damage of property, and the gravamen established was much more serious than that in the present case:
57.The appellant contended that the starting point adopted by the magistrate was also higher than the sentence imposed in even more serious cases of unlawful assembly. In Secretary for Justice v Chung Ka Ho[40], on Halloween in 2019, around 10:30 pm, 400 to 500 protestors assembled at Lyndhurst Terrace, participating in an unauthorized assembly, and blockaded the roadway. Most of the protestors were dressed in dark colours and had their faces covered with masks or scarves. They raised pre-printed slogans, and kept on making hand gestures, shouting slogans, scolding the police with abusive language and projecting laser beams at them. Some protestors even blocked the roadway with miscellaneous items and objects. The respondent picked up two sandbags from the roadside and threw them to the middle of the roadway, which was a few metres in front of the protesting crowd. The Court of Appeal considered that the case happened on a special day at a high risk location, but took a starting point of 6 months only. F.2. Respondent’s submissions 58.The respondent said that the maximum sentence for the charge in the present case was 12 months imprisonment, and there was no guideline for the sentence. It was clear that the gravamen of the offence in the case was preventing the peace in society from being breached and going worse, for example, passing sentence in respect of the charge in the present case before any unlawful assembly or even riot actually took place. The only main difference between the charge in the present case and unlawful assembly was that the former had no requirement for a gathering of three persons. 59.The respondent said that the magistrate was entitled to consider the appropriate sentence by taking into account the gravity of the case, including the circumstances in society at that time (the present case happened when the social events relapsed after a slight decline of the pandemic severity, and the work on the Hong Kong National Security Law was said to have commenced by the State), the persistence of the appellant’s behaviour (the appellant definitely did not act out of character but repeated his acts continuously), and the real risk of having a breach of the peace at the scene (there were a lot of people who were antagonistic to the police at the scene). 60.The respondent said that apart from considering Ma Hei Yuk on the principle as correctly pointed out by the magistrate, the court might also take into account Secretary for Justice v Law Man Chung[41]. At the stage of sentencing after trial in the case, the prosecution also submitted Law Man Chung to the magistrate, but she considered that the charges were different, nevertheless, the sentence imposed by the magistrate was in line with the principle affirmed by the Court of Appeal in the case, namely in passing sentence for whatever offence, the court was required to consider all facts of the case and determine the defendant’s culpability based on the overall circumstances and various related details. 61.The appellant presently relied on making comparison with other cases involving similar charges, and many of them had been submitted for the magistrate’s consideration. The facts of many of these cases were not comparable to the present case in terms of seriousness. In short, the respondent noted that the charges in these precedents did not, as in the present case, happen against a background involving a long duration social event consisting of violent and unlawful elements, with a large scale demonstration actually proceeding at the scene, and it was under such circumstances that the appellant deliberately challenged the police with the intent to provoke a breach of the peace, whereby in fact provocation of a breach of the peace was likely to be resulted. The facts involved in the present case were very serious indeed and, as indicated by the magistrate, similar to those in Ma Hei Yuk (in which the appellant threw two bottles of thinner on the ground among the crowds of supporters of the Occupy Movement in Mongkok, followed by taking out another bottle of thinner and a lighter[)], and after appeal, the court considered 9 months’ imprisonment as the appropriate starting point. Although the present case did not involve any inflammable substance such as thinner and lighter, in comparison, the appellant here encouraged and was supported by a large number of people at the scene. By adopting 8 months’ imprisonment as the starting point, the magistrate did properly reflect the difference between the two cases. F.3. My considerations 62.There is no guideline for the sentence of the charge in the present case. The court has to consider all the circumstances in order to impose a proper sentence. The circumstances in each case are different, and other precedents may not be of much help in the consideration of the sentence in the present case. 63.The elements of the charge are that a person at a public place behaved in a noisy or disorderly manner with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused. 64.What did that defendant say and do? What were all the circumstances at the material time? How did he provoke others to breach the peace with intent? Or how was his behaviour likely to cause a breach of the peace[?] These are absolutely what the court has to consider in imposing the sentence. Therefore, I do not agree with the appellant that the magistrate was wrong in principle in sentencing. 65.Although I fully agree with the seriousness in the facts of the present case as pointed out by the magistrate, in my view, under all the circumstances of this case, a starting point of 8 months’ imprisonment is manifestly excessive. I think that an appropriate starting point is 6 months. 66.The starting pointing in sentencing is the sentence which a person with a clear record should receive after trial. The appellant had no criminal record, but no further discount should be given for it. 67.However, as the magistrate has correctly pointed out and considered, the appellant has served the community for a long time, and he can be said to have positive good character in this regard, for which I think that he may have a reduction of one month. F.4. Conclusion of appeal against sentence 68.In the light of the above reasons, I allow the appellant’s appeal against sentence with the sentence of 7 months’ imprisonment set aside and substituted with 5 months’ imprisonment.
Ms SUM Ka Ki Kathy, Public Prosecutor of the Department of Justice, for the Respondent Mr Anthony LAI and Mr KEUNG Pit Chun Stephen, instructed by O Tse & Co, for the Appellant Translated by the Court Language Section of the Judiciary and vetted by Mr Justin Yuen, solicitor. [1] Page 6 in the Appeal Bundle [2] (2013) 16 HKCFAR 837, paragraph 79 of the judgment [3] See paragraphs 31 to 33 of the judgment [4] [1973-1976] HKC 346, see page 348H-I of the judgment [5] See paragraph 4 of the judgment [6] Page 264 of the Appeal Bundle [7] Paragraph 37vix of the Statement of Findings [8] Paragraph 37xx of the Statement of Findings [9] Paragraph 37xvi of the Statement of Findings [10] Paragraph 37xviii of the Statement of Findings [11] Paragraphs 37xviii to 37xxi, 37xxiv, 37xxx and 37xxxii of the Statement of Findings [12] Paragraph 37xxx of the Statement of Findings [13] Paragraph 37xx of the Statement of Findings [15] See paragraph 79 of the judgment, and the original text reads: “79．However, a person may provoke a breach of the peace without any violence or threat of violence on his part: “... it suffices that his conduct is such that the natural consequence of it is violence from some third party”. That third party need not be the person provoked or a by-stander, it could, for instance, be a member of the provoker’s group. The actual or feared harm must be unlawful and, where the harm is anticipated, there must be a real risk and not the mere possibility of such harm. Moreover, the anticipated harm must be imminent.” [16] Paragraph 37xxiii of the Statement of Findings [17] Paragraph 37xxxiv of the Statement of Findings [19] Paragraph 37xxi of the Statement of Findings [20] Paragraph 37xxiii of the Statement of Findings [21] Paragraphs 37xxv to xxviii of the Statement of Findings [22] See paragraph 79 of the judgment [23] Paragraphs 143 to 147 of the Gist of evidence, at pages 436 to 438 of the Appeal Bundle [24] Page 283 of the Appeal Bundle [25] Paragraph 123 of the Gist of Evidence, at page 433 of the Appeal Bundle [26] Page 189 of the Appeal Bundle [27] Paragraphs 37i to 37vi of the Statement of Findings [28] Paragraph 37xi of the Statement of Findings [29] Paragraphs 37i to 37iv of the Statement of Findings [30] Paragraph 37viii of the Statement of Findings [31] Paragraph 37xi of the Statement of Findings [32] Paragraph 37x of the Statement of Findings [33] [2017] 2 HKLRD 448 [34] [2016] 1 HKLRD 1477 [35] [2014] 5 HKLRD 683 [36] [2013] 1 HKLRD 1008 [37] ESCC 2357/2016 [38] [2006] 3 HKC 105 [39] HCMA 89/2003 [40] [2021] 2 HKLRD 1354 [41] [2002] 4 HKLRD 941 |
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