HKSAR v. Lau Chun Yuk and Others
Read the full judgment text of CACC 243/2021 on BabelCite. This Court of Appeal judgment was delivered on 5 September 2023 before Pang JA, Maggie Poon JA, Anthea Pang JA.
Criminal law – riot – using facial coverings at unlawful assembly – possession of offensive weapon – appeal against conviction and sentence – riot at No.2 Bridge and Campus Circuit East near Chinese University of Hong Kong on 11 November 2019 – four rounds of charging at police checkline – approximately 23 petrol bombs thrown – applicants arrested shortly after dispersal operation began – whether trial judge improperly drew inference upon inference in finding applicant participated in riot – whether starting point of five years for riot was manifestly excessive – whether trial judge erred in refusing sentence discount for agreeing to prosecution case – Court of Appeal follows HKSAR v Chiu Yu Man in holding that further inferences may be drawn from primary inferences provided the chain of reasoning remains compelling and the only reasonable inference – distinguishes Winnie Lo v HKSAR – primary facts including absence of bystanders behind yellow wheeled bins, disturbance lasting one and a half hours, applicant's full equipment and unique blond hair formed solid basis for inference of participation – starting point of five years held not wrong on basis of Choy Ka Fai comparable sentencing principle – four consecutive rounds of charging reflecting persistence and high degree of unity – location at No.2 Bridge straddling MTR tracks and Tolo Highway posed real threats to public order – absence of police injuries was fortuitous – refusal of sentence discount for agreeing to prosecution case was within trial judge's discretion where agreed facts were shown on video – all applications and appeals dismissed – conviction and sentences of 4 years and 9 months' imprisonment affirmed.
Legal issues: Whether trial judge's inference of A4's participation in the riot was properly grounded · Whether 5-year starting point for riot offence was manifestly excessive · Whether trial judge erred in refusing sentence discount for agreeing to prosecution case
Outcome: All applications and appeals of the four applicants dismissed; convictions and sentences affirmed. A4's application for leave to appeal against conviction refused. A1, A3 and A5's applications for leave to appeal against sentence refused.
Cited by 33 cases · Cites 10 cases
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[English Translation - 英譯本] CACC 243/2021, [2023] HKCA 1098 ON APPEAL FROM [2021] HKDC 1096 & [2021] HKDC 1309 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL APPLICATIONS FOR LEAVE TO APPEAL AGAINST CONVICTION AND SENTENCE CRIMINAL APPEAL NO 243 OF 2021 (ON APPEAL FROM DCCC 361/2020) __________________ BETWEEN
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_________________ REASONS FOR JUDGMENT _________________ Hon Pang JA (giving the Reasons for Judgment of the Court): 1.The four applicants (A1, A3, A4 and A5) were respectively the first, third, fourth and fifth accused at the trial. They were convicted of the following charges: charge 1 “riot” (against all four applicants); charges 2, 4, 5 and 6 “using facial coverings at an unlawful assembly” (respectively against A1, A3, A4 and A5); and charge 8 “possession of an offensive weapon or instrument fit for unlawful purposes” (against A5)[1]. The trial judge, Deputy District Judge Kathie Cheung (as she then was), sentenced each of them to a term of imprisonment of 4 years and 9 months. The four applicants were aggrieved and applied for leave to appeal against conviction in respect of charge 1 “riot” (A4[2]) and sentence (A1, A3 and A5). The applications were referred directly to the Court of Appeal for disposal. Location of the offences 2.All of the above offences took place “in the vicinity of the No.2 Bridge and Campus Circuit East near Jockey Club Postgraduate Hall I of the Chinese University of Hong Kong”. 3.Campus Circuit East was located on campus at the Chinese University of Hong Kong (“CUHK”). On the stretch of road relevant to this case, there was a junction with a slip road (“the junction”). The junction, which led up a hillside (“the hillside”), was flanked by a small car park, the university sports field and tennis court(s) and Jockey Club Postgraduate Hall I of CUHK. On the other side of the road, not far from the junction and the car park, there was the No.2 Bridge (“No.2 Bridge”). No.2 Bridge started from Campus Circuit East, then straddled the MTR tracks and Tolo Highway, and finally connected to the Science Park. 4.It was not disputed that the vicinity of No.2 Bridge and Campus Circuit East was a public place. Primary facts 5.Citing the relevant admitted facts, the trial judge pointed out[3]: on 11 November 2019, the police formed a checkline (“the police checkline”) at the location of the offences to prevent people from throwing objects off No. 2 Bridge, which may pose danger to others. The location in question was the side of No. 2 Bridge closer to Campus Circuit East and facing the hillside. The term “left side” or “right side” mentioned time and again in the Reasons for Verdict of the trial judge refers to the left front or right front when looking in the direction of the hillside from the checkline. 6.In respect of the occurrence of the riot, she pointed out[4]:
7.In respect of the issues of the arrests and exhibits, she pointed out[5]:
Specific allegations 8.The prosecution targeted only the fourth round of charging, and the specific circumstances at the material time were described by the trial judge as follows. She specifically pointed out that immediately before that round of charging, no one else gathered behind the yellow wheeled bins or near the hillside[6]:
9.The trial judge also described as background the situation after 1:05 p.m. She pointed out that, apart from the protesters, the police witness did not see anyone who appeared to be a passer-by or bystander behind the yellow wheeled bins[8]:
10.As to the point that there was no one other than the protesters, the trial judge further stated in the later part of her Reasons for Verdict[9]:
Apprehension of A4 11.The following is the course of arrest of A4[10]:
12.During the subsequent formal search, the police further found from A4’s trouser pocket(s) and grey and black rucksack three masks, a towel, a retractable umbrella, three bottles of saline solution, a roll of adhesive tape and a jacket, as well as his mobile phone and personalized Octopus card. Prosecution case 13.The prosecution had no direct evidence to show that A4 or other applicants had participated in charging at the police checkline. The prosecution brought against them was based on the locations where they were visually locked onto or intercepted and other circumstantial evidence. Defence’s stance 14.All of the four applicants were students of CUHK and had a clear record. 15.A1 and his witness were the only two defence witnesses in this case. Their evidence had no bearing on the case of the others and we shall not refer to it here. 16.To put it simply, the defence’s stance on the allegation of “riot” was as follows[11]:
Verdict of the trial judge 17.The trial judge pointed out that since there was no evidence the same group of protesters carrying out all four rounds of charging on that day, the prosecution only focused on the fourth round of charging itself. She found, based on the footage taken from the police and the internet, that a riot occurred during the fourth round of charging in “the area between the rear of the yellow wheeled bins and the hillside”[12]. 18.The trial judge reminded herself that she could not draw the inference that the applicants participated in the riot based merely on their dark-coloured outfits. Nevertheless, she expressly pointed out that this was evidence that could be taken into consideration in making her findings. The trial judge made it clear that since the prosecution did not rely on the police witnesses’ allegations that the applicants had run away, she would not use them as evidence showing that the latter committed the offences[13]. 19.As regards the defence’s various challenges directed against the police witnesses, the trial judge accepted the latter’s explanations or noted that some of the criticisms or matters relating to the criticisms were immaterial and peripheral. She accepted all the police witnesses as honest and reliable witnesses and gave full weight to their evidence[14]. 20.We turn finally to the core findings of the trial judge. She has thus far dealt with A1’s case, and it is time to apply the same approach for the purpose of reaching the conclusion that the other applicants were guilty[15]:
Sentencing at first instance (Mitigation) 21.The mitigation advanced by the defence can be summarized as follows: each of the applicants had a clear record; there was no evidence that the riot was premeditated; the riot area was confined to No.2 Bridge and the junction with Campus Circuit East; the riot was small in scale, involving only a few dozen people; there was no evidence as to the duration of the applicants’ participation; there was no evidence of the applicants playing the role of a leader or a person who called on others to join in, or committing acts of breach of the peace personally; there was no evidence of the applicants throwing objects onto the MTR tracks or Tolo Highway, or vandalising other public facilities; the riot did not cause serious loss or damage to property. (Allocation of sentences) 22.The sentences for the two offences referred to as “using facial coverings” and “possession of an instrument” for short were respectively three months’ and six months’ imprisonment, all of which were to be served concurrently with the sentence for the offence of “riot”; see below for the sentencing for the latter. (Sentencing for riot) 23.The trial judge noted that riot is a serious offence which carries a maximum sentence of up to 10 years’ imprisonment. Citing HKSAR v Yeung Ka Lun [2019] 1 HKC 296 (at paras 58-61), she pointed out that the relevant sentence must be one of both personal and general deterrence with no exception for offenders of a young age and with a good background[16]. 24.Citing HKSAR v Tang Ho Yin [2019] 3 HKLRD 502 (at para 24), the trial judge pointed out: “The gravity of the offence of riot is 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 …”[17]. She listed the 12 factors which may affect sentence as identified by the Court of Appeal in HKSAR v Leung Tin Kei [2020] 4 HKLRD 428[18]. 25.Having briefly stated the facts and sentences in the two cases of Yeung Ka Lun and Tang Ho Yin (four years nine months and four years six months respectively) and that in sentencing, the court should not over-focus on the riot in question and lose sight of the related disturbances that took place in the same area during the same period of time as articulated in Tang Ho Yin, the trial judge made the following observations. The thrust of which was that in all the relevant circumstances of the day in question, sentencing in the present case must not consider only the circumstances surrounding the fourth round of charging[19]:
26.The trial judge then went on to set out the eight items applicable to the fourth round of charging, apparently based on the 12 sentencing factors in Leung Tin Kei[20]:
27.Based on the above sentencing principles and factors, the trial judge took the view that an immediate custodial sentence was the only sentencing option for charge 1 “riot” and the appropriate starting point was five years’ imprisonment. However, in view of their background such as their young age and clear record, the trial judge exercised “the widest discretion” and reduced the sentences of all the applicants by three months to four years and nine months’ imprisonment (the original A2 who committed the offences in the present case while she was on bail was sentenced to 4 years and 11 months’ imprisonment)[21]. 28.The trial judge specifically noted[22]:
Application in relation to conviction (Ground of appeal) 29.Mr Siu Bunn Poon, counsel who also represented A4 at trial, put forward a ground of appeal on behalf of A4:
(Essence of the submissions) 30.In respect of particular (a), citing the following passages of the judgment of the Court of Final Appeal in Winnie Lo v HKSAR (2012) 15 HKCFAR 16, Mr Poon stressed[23]:
31.Mr Poon went on to say that since A4 was intercepted in the vicinity of the riot area shortly after the commencement of the dispersal operation, it was open to the trial judge to infer that A4 was present in the vicinity of the riot area before the commencement of the dispersal operation, but nothing more. Drawing other inferences, such as that A4 had already stayed in the riot area for a long time, that he had sufficient time to leave but did not do so and that he stayed in the riot area intending by his presence at the scene to encourage others to riot, is piling inference upon inference, which is impermissible. 32.In respect of particular (b), Mr Poon asserted that mere presence in the vicinity of the riot area was not sufficient to constitute encouraging others to riot, and yet apart from that, there was no other evidence in relation to A4, such as his words and conduct, as at the time before his arrest. As for A4’s clothing and equipment, they were in fact not very different from those of the reporters at the scene, and there was evidence that he was holding a camera in his hand at the time of his arrest, and thus it is possible that he was taking photos or filming. In any event, A4 was a student of CUHK, and the trial judge could not have ruled out the possibility that he was just looking on briefly or merely passing by. (Analysis and discussion) 33.At the hearing, this Court had referred to HKSAR v Chiu Yu Man CACC 577/1999 (date of judgment: 12 October 2000). In that case, the Court of Appeal pointed out[24]:
34.As against the observations in Winnie Lo, it is apparent that the above passage is more directly on point and instantly distinguishable from the former case, and furthermore, there is no discernible flaw in logic. Having looked at the judgment in Chiu Yu Man, Mr Poon accepted this Court’s view. However, even leaving aside Chiu Yu Man, it is difficult for Mr Poon’s complaint to be established because he avoided mentioning a number of inferable facts in the case, resulting in the basis of his argument being too narrow and completely departing from reality. 35.The primary facts that were skipped over by him but referred to by the trial judge include: first, by the time of the fourth round of charging, the disturbance had been going on for one and a half hours, during which, apart from the protesters who were carrying petrol bombs and other objects back and forth between Campus Circuit East and the yellow wheeled bins, there were no passers-by or bystanders behind the yellow wheeled bins. That was the testimony of the field commander of the police, and was also a finding of fact of the court; second, immediately before the fourth round of charging, no one gathered behind the yellow wheeled bins or near the hillside, and there were only 20 to 30 black-clad protesters behind the yellow wheeled bins. That was an indisputable image on the video recording of the scene; third, at the time of his arrest, A4 was fully equipped, with a retractable umbrella and three bottles of saline solution in his rucksack. That was also a fact admitted by the defence. 36.The above-mentioned three primary facts or findings of fact, taken individually or together, actually formed a solid basis for the trial judge to infer that A4’s original position was within the riot area, and that he could not have been just passing by, and instead he participated in the riot on purpose. This has nothing to do with drawing an inference upon an inference. As a final submission, Mr Poon pressed the point that A4’s clothing and equipment were similar to those of the reporters, but what was shown on the video recording of the scene was a different matter. In terms of appearance and equipment, reporters wearing a vest with the bright-coloured word PRESS on it and holding high a camera with a telephoto lens or at least a mobile phone with a retractable stick were completely different from A4. Given that A4 was a student of CUHK and that he did not give evidence, the assertion that he was taking photos or filming in his capacity as a bystander is simply unfounded conjecture. (Conclusion) 37.A4’s ground of appeal is not a reasonably arguable ground of appeal. It is not even a ground of appeal that should be raised. Accordingly, we refuse A4’s application for leave to appeal against conviction and dismiss his appeal. Application in relation to sentence (Grounds of appeal) 38.Ms Ferrida Chan of counsel and Mr Billy Yau of counsel, who were not defence counsel at trial, each put forward two grounds of appeal on behalf of A1, A3 (Ms Chan) and A5 (Mr Yau). The grounds they put forward overlap completely:
(Essence of the submissions) 39.The essence of the submissions of the two counsel Ms Chan and Mr Yau can be summarized as follows. 40.The Court of Appeal reiterated in HKSAR v Choy Ka Fai [2011] 2 HKLRD 150 (at para 24): “for offences which involve comparable facts in nature and gravity, comparable sentences should be imposed”, which is a principle that “should not be neglected unless there are otherwise sufficient reasons”. 41.Both Yeung Ka Lun and Tang Ho Yin were cases to which the trial judge had made reference. The facts of those two cases were far more serious than the present ones, and yet the trial judge equated the starting point for the present case with those for the said two cases (five years) without explanation. Clearly, this was contrary to the principle set out in Choy Ka Fai. 42.The facts in Yeung Ka Lun were far more serious than those of the present case because the incident occurred in a densely populated downtown area; there was direct evidence showing that the accused in that case placed burning tinder on the rear wheel of a taxi near the fuel tank; plainly, the purpose of doing so was, among other things, to cause greater chaos at the scene. 43.The facts in Tang Ho Yin were far more serious than those of the present case because the riot in question was one of the several riots in the same district, and the whole incident of the disturbances in the district lasted for several hours; the riot in question involved 100 to 200 protesters whereas there were only 60 or so people on the police side; the protesters attacked the police who, as a result, not only failed to disperse the protesters, but also had to retreat along the road; during which the protesters chased, assaulted and/or hurled objects at the police officers, causing some of them to fall down, and ultimately, 29 people were injured, some of whom were hospitalized; there was evidence that the accused in that case hurled objects at the police. 44.In other words, taking into consideration various factors, whether they be factors such as the location of the offences, the number of rioters or the number of injured police officers, the present case was far less serious than the said two cases, and the same starting point should not be adopted. 45.Finally, the two counsel Ms Chan and Mr Yau contended: A1, A3 and A5 agreed to almost the whole of the prosecution case, for example the identity, the place of arrest, the personal belongings found upon search, the relevant chain of exhibits, etc.; the argument they put forward was mainly about the meaning of reasonable excuse under the ordinance referred to as “ the mask law” for short; quite a number of decided cases show that if the defence confines the issue to the interpretation and application of the law, the accused may generally be given a certain degree of discount on sentence. (Analysis and discussion) 46.It was stressed in Choy Ka Fai: for cases involving comparable nature, facts and gravity, comparable sentences should be imposed. The emphasis of this statement is on the word “comparable”. However, being comparable may not necessarily be the same as having the same characteristics and a comparable quantity of the same characteristics. For example, case A occurs in a busy downtown area and so does case B; case A involves petrol bombs and so does case B; there are a certain number of people injured in case A and there are also a certain number of people injured in case B, and so forth. In the process of evaluating whether or not they are comparable, the presence and quantity of the same characteristics are naturally factors to be considered, but they are by no means the only considerations. To put it at its simplest, how can 50 people with contusions, bruises and sprains compare to a person who was hit by a brick and thus in a coma for several days? What if 10 out of those 50 people suffered serious fractures? Unless the appellate court is of the view that the outcome is plainly wrong and cannot stand, the trial court is in the best position to make a decision. 47.The second point stressed in Choy Ka Fai is: for sentencing in respect of comparable cases, no distinction can be drawn unless there are otherwise “sufficient reasons”. By reverse application of this to the circumstances in the present case, it raises the question whether cases that superficially appeared to be different were in fact equally bad, so that there were sufficient reasons for arriving at the same sentence. The answer to this question, in our view, is in the affirmative. It is at least a conclusion that the trial judge was entitled to reach. As she pointed out in her Reasons for Sentence, the riot in question was only one of the four related rounds of charging. In other words, it was not a single outbreak during the disturbances in the same district, but a continuous disturbance broke out at the same place, which, coupled with its single and express purpose, was fully capable of reflecting the participants’ persistence and high degree of unity. If the protesters involved in each of the four rounds of charging were different, it would provide a better indication of a considerable degree of coordination among them. Launching wave after wave of attacks on the police in an organized way was one of the factors which greatly increased the seriousness of the present case. 48.It is true that no police officers sustained injuries in the present case. However, the violence used by the protesters was of considerably high intensity. As referred to by the trial judge, during the whole incident of the disturbances which lasted for about 90 minutes, they threw a total of 23 petrol bombs. During the fourth round of charging which lasted for as short as two minutes, they threw five, or an average of about one every 25 seconds, not counting other items such as stones, bricks and miscellaneous objects. The trial judge’s description of the scene as “raging flames”, “dense smoke everywhere” and “virtually a battlefield” is therefore an apt description, which also matches the images on the video recording this Court viewed. Against that background, no one on the police side was injured, presumably, simply because the checkline was not routed, otherwise, there would probably be a recurrence of the episode in Tang Ho Yin if they were pursued and attacked. 49.Another point which was not touched upon by the trial judge but should by no means be neglected is the location of the offences. As stated above, No.2 Bridge was a bridge straddling the railway and trunk road leading to New Territories North, and the police formed a checkline there for the purpose of preventing people from throwing objects off the bridge. As a matter of fact, it was confirmed on behalf of the applicants at the hearing that miscellaneous objects had been thrown from the bridge onto Tolo Highway on the day before the offences. That being the case, it is not difficult to imagine why the protesters wanted to attack the police checkline at a corner of a university campus where the flow of people was relatively light. However, even leaving aside any conclusion that might be reached, there were in fact sufficient reasons for the court to make a finding as to the serious threats to public order, such as serious traffic accidents and paralysis of traffic between the north and south of the territory, posed in the event that the checkline collapsed. At that time, namely at a time when public order was in serious disarray, such threats were real and not remote. 50.In summary, it is our judgment that it was indeed not wrong for the trial judge to adopt a starting point of five years for the riot in question. As to whether the applicants should be given some discount on sentence for their admission of most of the facts, that was basically a matter within the discretion of the trial judge, and an appellate court would be slow to interfere. Further, in respect of the reason given by the trial judge for not giving any discount, this Court not only considered it reasonable but also noted that the respondent submitted that A1 had asserted that he had never been present in the riot area and that A3 had spent a lot of time cross-examining on immaterial issues and so on. In any event, in a case where the factual basis is relatively narrow and there is supporting video recording of the scene, for a defendant who, in order to avoid being cross-examined, is unable to adduce positive evidence to challenge the version put forward by the prosecution, agreeing to most of the prosecution case may be the only option. (Special mention) 51.Before we conclude, we would like to make a special mention. The applicants had, in their written submissions, cited the sentencing at first instance in another No.2 Bridge riot case of the District Court (HKSAR v 陳起行 (Chan Hay Hang) (transliteration) [2021] HKDC 874 ) as the pivot of the application of Choy Ka Fai in support of the proposition that the starting point in the present case was too high, but were ultimately dissuaded. This Court pointed out previously on many occasions, and further reiterated this year in Secretary for Justice v Tong Kin Pong and two others [2023] HKCA 896 (date of Reasons for Judgment: 25 August 2023): sentencing at first instance, which has not gone through appeal, is not binding on courts of the same level, nor is it of any reference value to the appellate court, and therefore should not be relied upon by the legal profession as a basis for appeal. (Conclusion) 52.The grounds of appeal put forward by A1, A3 and A5 are not reasonably arguable grounds of appeal. Accordingly, we refuse their applications for leave to appeal against sentence and dismiss their appeals. (Overall decision) 53.All the applications and appeals of the four applicants are dismissed, and the conviction and sentences are affirmed.
Ms Ferrida Chan, instructed by Kenneth Lam, Solicitors, for the 1st Applicant (re: Sentence) The 3rd Applicant appeared in person (re: Conviction) Ms Ferrida Chan, instructed by Kenneth Lam, Solicitors, for the 3rd Applicant (re: Sentence) Mr Siu Bunn Poon, instructed by Ho Tse Wai & Partners, for the 4th Applicant (re: Conviction) The 5th Applicant appeared in person (re: Conviction) Mr Billy Yau, instructed by Ivan Tang & Co., for the 5th Applicant (re: Sentence) Mr William Siu, SADPP (Ag.) and Mr Herbert Cheng, Public Prosecutor, of the Department of Justice, for the Respondent Translated by the Court Language Section of the Judiciary and vetted by Mr P Y Lo, Barrister-at-law. [1] The original second applicant (A2), who was the second accused at the trial, was also convicted of the three charges (charges 1, 3 and 7), but she withdrew her application for leave to appeal against conviction as early as 2022. [2] A3 and A5 also withdrew their applications for leave to appeal against conviction in court. [3] Reasons for Verdict, para 6. [4] Reasons for Verdict, para 10. [5] Reasons for Verdict, paras 11 - 13. [6] Reasons for Verdict, para 16. [7] Exhibit P4 (PV-M097-3), playback time: 00:35-04:19; exhibit P5, playback time: 01:02:09-01:05:40; screenshots of items (52) to (59) of exhibit P11. [8] Reasons for Verdict, para 17. [9] Reasons for Verdict, para 72. [10] Reasons for Verdict, paras 31 and 32. [11] Reasons for Verdict, paras 53 - 55. [12] Reasons for Verdict, para 56. [13] Reasons for Verdict, para 57. [14] Reasons for Verdict, para 96. [15] Reasons for Verdict, paras 99 - 101. [16] Reasons for Sentence, paras 25 and 26. [17] Reasons for Sentence, para 27. [18] Reasons for Sentence, para 28. [19] Reasons for Sentence, para 31. [20] Reasons for Sentence, para 32. [21] Reasons for Sentence, paras 33, 34 and 39. [22] Reasons for Sentence, para 36. [23] At paras 115 - 117. [24] At page 23. |
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