HKSAR v. Koo Sze Yiu

[English Translation – 英譯本]

HCMA 185/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 185 OF 2013

(ON APPEAL FROM ESCC NO. 368 OF 2013)

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BETWEEN

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REASONS FOR JUDGMENT

Background

1.The appellant was charged with three counts of desecration of the national flag and one count of desecration of the regional flag.  The particulars of the offences were that the appellant, on 10 June 2012 in Hong Kong, desecrated the national flag by publicly and willfully defiling it and burning it (charges (1) and (2)), and that on 1 January 2013 in Hong Kong, desecrated the national flag and the regional flag by publicly defiling them (charges (3) and (4)).

2.The appellant pleaded not guilty to all the four charges, but were found guilty of all of them after trial by the magistrate.  The sentences passed were as follows:- charge (1): three months’ imprisonment; charge (2): four months’ imprisonment; one month of the sentence of charge (1) was to be served concurrently with that of charge (2); so the appellant had to serve six months’ imprisonment for charges (1) and (2). Charge (3): three months; charge (4): three months; they were to be served concurrently; the appellant had to serve three months’ imprisonment for charges (3) and (4).

3.The magistrate ordered that the whole of the six months’ imprisonment for charges (1) and (2) were to run consecutively to the three months’ imprisonment for charges (3) and (4), making a total of 9 months’ imprisonment.

4.The appellant appealed against these sentences.

5.After hearing, I allowed the appeal, set aside the sentences and resentenced the appellantin the following way:

Charge (1): one month; and charge (2): four months; they are to run concurrently, which means four months in total.

Charge (3): 1½ months; and charge (4): 1½ months; they are to run concurrently, which means 1½ months in total.

A half month of the sentences for charges (3) and (4) shall be served consecutively to those for charges (1) and (2), and the overall sentence is 4½ months.  The costs of the appeal shall be awarded to the appellant, to be taxed by a master if not agreed.

6.My reasons are set out below.

Prosecution case

7.The prosecution case was that the appellant committed the offences of desecrating of the national flag and desecrating of the regional flag on 10 June 2012 (incident (1)) and 1 January 2013 (incident (2)).

Incident (1)

8.The facts as found by the magistrate were as follows:

“6. According to the evidence of the witnesses and the video recording, on 10 June 2012 the defendant was present in a public meeting which was held outside the entrance to the Liaison Office of the Central People’s Government and was holding a flagpole in his hands. A national flag of China was attached to the flagpole. The central part of this flag was smeared with dirty marks. The defendant publicly displayed this smeared Chinese national flag. Furthermore, the defendant admitted that he had smeared the Chinese national flag. He said that on the day in question before the commencement of the procession and the meeting he smeared the Chinese national flag. The prosecution witnesses saw that later the defendant set fire to the flag by using a lighter. This scene was also shown on the video footage. A sergeant went forward and put out the fire by using a fire suppressant. However, the defendant, who was standing in a crowd of protesters, tried again to burn the Chinese national flag by using burning papers and a lighter. The police again put out the fire with a fire suppressant. The defendant remained in a crowd of protesters and made another move to burn the Chinese national flag. Finally the flag fell to the ground. In the course of these events, it appeared that the defendant had been burnt by some ignited objects. Ultimately, a major part of the Chinese national flag was destroyed by fire. The defendant admitted that he publicly burned the Chinese national flag. His reason for doing so was that he was unhappy about the Chinese government’s way of handling certain matters.”

Incident (2)

9.The facts as found by the magistrate were as follows:

“7. The second incident happened on 1 January 2013. The police saw that the defendant was a member of a procession at Chater Garden, and that he was holding a flagpole in his hands. Attached to the flagpole were a Chinese national flag and a Hong Kong regional flag, both smeared with black marks. Part of the regional flag was cut off so that part of the bauhinia petals was removed. The defendant was all the way holding the two flags in his hands when he was walking, and in that manner he walked until he reached the junction of Queen’s Road Central and Hollywood Road, Central, where he was stopped by the police, who warned him that he could not display the two defiled flags. He ignored the police and was arrested. The whole course of the events was video recorded by the police. In court the defendant admitted the content of the video recording. Subsequently, the defendant was taken to the police station. A record of interview was taken from him when he was under caution, in which he admitted that on the day in question he carried along with him the defiled Chinese national flag and the defiled Hong Kong regional flag and publicly displayed them. He also explained that he defiled the two flags with black paint. In giving evidence in court he elaborated and said that he defiled the national flag and the regional flag because he was unhappy with the Chinese government and the HKSAR government.”

Defence case

10.As pointed out by the magistrate, at the trial the appellant repeatedly stated that the evidence given by the prosecution witnesses was correct and that the video recording was a correct record of the course of events.  When he gave evidence himself he accepted what the prosecution witnesses said.  Actually he fully agreed with the evidence of the prosecution witnesses.

11.The appellant at his closing speech submitted that the evidence of the prosecution witnesses and the video recording showed that what he did was entirely proper.  His defence was that he did not acknowledge the flag which was described by the prosecution as the national flag to be the national flag; however, he admitted that he had violated the law about the Hong Kong regional flag.

Appellant’s background and mitigation submission

12.The appellant claimed that he was a social campaign activist.  His monthly income is $6,000 to $10,000.  He is married.  He and his wife have a son, who is 13 years old. His wife lives in Henan province.  He is the financial mainstay of his family.  Every month he remits $5,000 to $6,000 to his wife to meet living expenses.

13.The appellant had been brought to court seven times and had been involved in a total of 13 offences, including obstructing a police officer in the execution of his duty, resisting arrest, disorderly conduct, contempt of Legislative Council etc.. One of the offences was the same offence as the one in charge (4): desecration of the regional flag, for which he was sentenced in 2002 and the sentence was $3,000 fine or 10 days’ imprisonment.  He also had been found to have been in breach of a binding over order and in breach of a suspended sentence.

14.When it came to mitigation, the appellant bluntly told the magistrate that “to beg for leniency is not my style”.  He said he knew that “by deliberately defacing the regional flag, deliberately defiling the national flag and deliberately burning the national flag” he “will certainly go to jail”.  He told the magistrate that he did not need to have sympathy with him, pity him or be merciful to him.  He even avowed that even if he was sent to jail, he would commit the same kind of offence again after he was released.

Reasons for sentence

15.After considering the appellant’s background and mitigation submission, the magistrate cited HKSAR v Ng Kung Siu & Another (1999) 2 HKCFAR 469 and commented that the appellant’s conduct of desecrating the national flag and the regional flag not only was an insult to the flags which were symbols generally accepted by the public, but was also a violation of the rules which were supported and approved by the people.

16.The magistrate said that the appellant’s act of setting fire to the national flag in a public meeting with over 20,000 participants would definitely create a risk that the safety of the people present there might be endangered.  He remarked that however lofty the appellant’s purpose might be, the court could not condone such conduct of the appellant’s which disrupted the peace and put the safety of the people present in danger, and that such conduct had to be condemned.

17.The magistrate imposed the following sentences in respect of the charges:

“17. For the first charge: defiling the national flag, the court uses three months’ imprisonment as the starting point. The defendant pleaded not guilty. No discount can be given. The second charge: burning the national flag is more serious. After consideration, the court uses four months’ imprisonment as the starting point. The defendant is convicted after trial. There can be no discount. As for the third charge: defiling the national flag and the fourth charge: defiling the regional flag, the court uses three months’ imprisonment as the starting points for each of them. The defendant is convicted after trial and is not entitled to any discount. The court is aware that the defendant committed the third charge: defiling the national flag and the fourth charge: defiling the regional flag when he was on bail in relation to the first charge: defiling the national flag and the second charge: burning the national flag, but three months’ imprisonment is still used as the starting point without increasing it in any way.”

18.Having decided on the terms for all the charges, the magistrate made the following concluding remarks:

“Conclusion

20. Having taken into account the above factors and because the first charge: defiling thenational flag and the second charge: burning the national flag were committed during the same incident, one month’s imprisonment for the first charge shall run concurrently with the four months’ imprisonment for the second charge. For the first and the second charges, the defendant has to serve six months’ imprisonment. As for the third charge: defiling thenational flag and the fourth charge: defiling theregional flag, they were committed during the same incident and the national flag and the regional flag in question were at the same time attached to the same flagpole, the three months’ imprisonment for each of these two charges shall run concurrently with each other. For the third and the fourth charges, the defendant is to serve three months’ imprisonment.

21. On the other hand, since the first charge and the second charge were committed during an incident and on a day different from the incident and the day of offence related to the third charge and the fourth charge, I consider that the six months’ imprisonment for the first charge and the second charge has to be served consecutively to the three months’ imprisonment for the third charge and the fourth charge, thus making a total sentence of nine months’ imprisonment for the four charges.”

19.For the above reasons, the magistrate sentenced the appellant to nine months’ imprisonment.

Additional evidence

20.The respondent’s representative, Senior Assistant Director of Public Prosecutions Mr. Francis Lo, applied for producing to the court in the form of additional evidence record of sentences passed in previous cases about desecrating of national flag and of regional flag.  The appellant did not object and I granted the application.

21.The additional evidence consisted of seven cases which were set out in a table.  The time range was from 1998 to 2011.  The appellant was involved in one of these cases.

22.It can be seen from these cases that where the national flag or the regional flag was desecrated by defiling it, usually the offenders received non-custodial sentences such as binding over to keep the peace or a fine.  However, in cases of burning the national flag or the regional flag, the sentences imposed were different terms of imprisonment, which were respectively seven days and three months but suspended for two years.

Grounds of appeal

23.Mr. Martin Lee SC, leading Mr. Joseph Lee, appealed against the sentences on the grounds that they were excessive and/or wrong in principle.  It was submitted on behalf of the appellant that judging from the facts of this case, the sentences imposed for each of the charges were manifestly excessive and so was the overall sentence.  It was also argued that an exceptional reduction should have been given to the appellant because he had mounted no challenge at all to the prosecution case.

My considerations

24.I have taken into account the facts of the two incidents from which this case arose and the appellant’s background, particularly the fact that he had been brought to court seven times before and had been involved in a total of thirteen offences, one of which was the same offence as the one in charge (4).  On top of that, he had already been fined as a result of his previous desecration of the regional flag.  He had also been found to have disobeyed a binding over order and had a record of breaking the law during the period of suspension of a previous sentence.  An immediate custodial sentence was unavoidable.  The questions were whether the starting points chosen by the magistrate were manifestly too high, and whether the ultimate sentence was manifestly excessive.

25.Having considered the facts, the appellant’s background, his previous convictions and the decided cases submitted in the form of additional evidence, I came to the conclusion that the starting point of three months for charge (1) was manifestly too harsh, and that the appropriate starting point should be one month imprisonment.

26.The offence of burning the national flag involved in charge (2) was clearly much more serious than the offence of defiling the national flag involved in charge (1).  I agreed with the finding made by the magistrate that the appellant’s conduct at the material time created a risk that the safety of the people present there might be endangered, therefore it warranted a sentence more severe than that for defiling the national flag.  In previous cases of burning the national flag or the regional flag,only seven days’ imprisonment or three months’ imprisonment, which was suspended, was imposed, but in the light of the appellant’s previous convictions and his conduct in his case, I affirmed the starting point of four months used by the magistrate.

27.In my view, charges (1) and (2) concerned the same flag and the guilty acts involved in the two offences committed by the appellant were parts of a series of acts, so the prison terms should run concurrently, and should not be dealt with in the way the magistrate did (i.e. part of a sentence was ordered to be served consecutively).  The total sentence for incident (1) should be four months’ imprisonment.

28.As for charges (3) and (4), the fact that the appellant committed offences on bail which were the same offences as those for which he was granted bail was an aggravating factor in relation to incident (2).  The magistrate should not have used the same starting point (but I have pointed out that the starting point of three months was manifestly too high).  I considered that the appropriate starting point was 1½ months.

29.Similarly, the acts on which charges (3) and (4) were based were parts of the acts done in the same incident.  Besides, the national flag and the regional flag were attached to the same flagpole.  I affirmed the magistrate’s decision to order the sentences to run concurrently.

Total sentence

30.Owing to the fact that magistrate used an excessively high starting point in respect of charge (1), even though he adopted the same starting point for charges (3) and (4), when he worked out the total sentence, he arrived at the term of nine months. In all the circumstances of this case, an immediate custodial sentence of nine months was evidently too harsh.

31.Having taken into account the totality principle, I found that the appropriate sentence was five months’ imprisonment.

Appellant had not wasted court’s time

32.Although the appellant did not plead guilty, he did not challenge the prosecution case at all.  Indeed, he frankly admitted that he had acted in the way alleged by the prosecution.  He not only had not wasted court’s time, but also rendered the prosecution against him by the prosecutor and the making of findings by the magistrate “easy”.  In my judgment, the appellant was entitled to a discount of ½ month on the sentence.

33.It is true that the appellant was unrepresented at the trial and that he told the magistrate not to have sympathy with him and stated outright that he would commit the same kind of offence again after he was released.  I found it understandable that the magistrate did not consider or have regard to this aspect.

Conclusion

34.For the above reasons, I allowed the appeal and varied the sentence of the appellant to imprisonment of a term of 4½ months in total.

Costs

35.The appellant’s appeal was successful and his sentence was reduced.  I did not see any reason for not exercising my discretion to award him costs, and I ordered that the appellant be awarded the costs of this appeal, to be taxed by a master if not agreed.

Mr. Martin Lee, SC and Mr. Joseph Lee, instructed by Messrs. JCC Cheung & Co., for the Appellant

Mr. Francis Lo, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the HKSAR

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.