Professional Documents
Culture Documents
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HKSAR
v
TAI YIU TING (D1)
CHAN KIN MAN (D2)
CHU YIU MING (D3)
SHIU KA CHUN (D5)
CHEUNG SAU YIN (D6)
CHUNG YIU WA (D7)
WONG HO MING, RAPHAEL
(D8)
LEE WING TAT (D9)
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Present: Mr Lui Tsz Ming Ira, SADPP and Mr Lau Tak Wai
Derek, Senior Public Prosecutor, for HKSAR / Director
of Public Prosecutions
Mr Steven M W Kwan, Mr Albert N B Wong, instructed
by Tang, Wong & Chow, for the 1 to 3 defendants
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The Verdict
The Facts
12. On 27 and 28 September 2014, D1, D2, D4, D5, D6 and D7 incited
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the people present at Tim Mei Avenue to occupy and obstruct the roads
in the neighbourhood of Tim Mei Avenue (Charge 2). D4 to D7 also
incited the people present at Tim Mei Avenue to incite others to do the
same (Charge 3). The details of what the relevant defendants had said are
set out in the judgment, which I shall not repeat.
Pier Street to occupy and obstruct the carriageway of Fenwick Pier Street
(Charge 4); he also incited the people present at Fenwick Pier Street to
incite others to do the same (Charge 5). The details of the incitements
made by D8 are set out in paragraphs 671-674 of the judgment, which I
shall not repeat.
2014.
17. I am aware that there were no tents and barricades on Harcourt Road
before the firing of tear gas on the night of 28 September 2014. It is not
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in dispute that tents and barricades were only set up by protestors on the
carriageways of Tim Mei Avenue and Harcourt Road afterwards.
18. The computer certificates, i.e. Exhibits P145-P147, show the effect
of the blockage of the roads in the neighbourhood of Central had on the
bus services.
D1
D2
D3
D6
D7
D8
D9
Mitigations
43. I shall not set out the mitigations made by counsel. I have the benefit
of the written submissions prepared by counsel.
R. v Roberts (Richard)
51. D2 has expressed no regret for what he had done in his evidence and
counsel’s mitigation.
52. D3 has expressed no regret for what he had done in his statement from
the dock and counsel’s mitigation.
53. D5 has expressed no regret for what he had done in his written
statement and counsel’s mitigation.
54. D6 has expressed no regret for what he had done in his statement from
the dock and counsel’s mitigation.
55. D7 has expressed no regret for what he had done in his statement from
the dock and counsel’s mitigation.
56. D8 has expressed no regret for what he had done in his written
statement and counsel’s mitigation.
57. D9 has expressed no regret for what he had done in his statement from
the dock and counsel’s mitigation.
58. By regret, I do not mean the defendants should give up their political
beliefs or their political demands, these are not the concerns of the
sentencing court. By regret, I mean the defendants should express regret
for the inconvenience and sufferings they had caused to the members of
the public who had been affected. It is an apology that the members of
the public rightly deserve from the defendants, but never received.
Civil Disobedience
62. For the incitements which were made the subject matters of complaint
of Charge 2 to Charge 6, if they were acted upon by the incitees, would
result in excessive damage or inconvenience.
63. For Charge 2 to Charge 6, though the relevant defendants branded the
occupy movement as a civil disobedience movement, by reason of the
excessive damage or inconvenience that would be caused if the
incitements were acted upon, the public nuisance that the relevant
defendants incited and/or incited others to incite does not fall within the
parameters of civil disobedience as recognized by the Court of Final
Appeal in Wong Chi Fung.
64. It is not in dispute that the Occupy Central movement had lasted for
some 79 days.
65. Counsel submitted that given the fact that the general public could
learn about the Occupy Central movement through various means of mass
media and given the public’s perception of and reaction to the use of tear
gas by the Police on 28 September 2014, it is impossible to ascertain from
th
67. I reckon the effect of the use of tear gas had on the movement in that
more people participated in the movement after the use of tear gas on
28 September 2014. As I pointed out in paragraph 392 of the judgment,
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the use of tear gas was something that D2 had in mind when he addressed
the people at Tim Mei Avenue in the early hours on 28 September
th
2014. In my judgment, it was not the use of tear gas, but the impact that
the use of tear gas had on the occupy movement that the defendants did
not foresee. As I pointed out in the judgment, tear gas was used at around
6 p.m. on 28 September 2014 after all the incitements had been made.
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occupation of public places and roads by protestors. Yet they did not
withdraw from the Occupy Central movement that was causing
inconvenience to the public until their announcement to withdraw on
2 December 2014.
nd
70. D1 in one of his speeches made to the people at Tim Mei Avenue,
emphasised the various touching moments in the occupy
movement. However, the other side of the story was that as the
participants were fuelling the movement with their passions, the
movement was also causing excessive inconvenience and suffering to
many members of the public, as the computer certificates of the three bus
companies show.
71. Mr. Pang SC submitted “Whilst this Court has also found unrealistic
the suggestion that the police would be able to arrest all protestors within
one or two days or that the Government would forthwith move to
introduce universal suffrage should tens of thousands turn out to occupy
central…”, referring to paragraphs 275 and 276 of the judgment.
72. In fact, in both paragraphs 275 and 276, I was addressing the question
of the time that would take the Police to arrest all the protestors and the
time that would take the authorities to respond to the political demands.
74. I accept the information provided by the Prosecution. The Police had
arrested a total of 1,003 persons in connection with the Occupy
Movement. A total of about 335 investigation reports, about 300 witness
statements, about 1,133 videos (including 859 videos and 274 open-
source videos) and about 80 items of non-video exhibits were submitted
by the Police to the Department of Justice.
75. On the material before me, given the very extensive and necessary
investigation undertaken by the Police, it cannot be said that there has
been an unreasonable delay, through no fault of the defendants, which
contribute to their punishment. I am satisfied that the delay in the present
case has not resulted in unfairness to D1 to D3 and D5 to D9.
Background of D1 to D3 and D5 to D9
76. Though D1 and D2 do not invite the Court to consider their personal
background, from the information placed before me, including the
evidence of Cardinal Zen and the fact that they each had a hitherto clear
record, I am prepared to accept D1 and D2 as persons of positive good
character.
78. I am also aware of the age and the health condition of D3.
80. D8 does not have the benefit of a clear record. I have considered the
criminal record of D8, I shall not impose a heavier sentence on D8 on
account of his criminal record.
81. D9 is now 63 years old, retired now and lives on his savings, he had
a hitherto clear record. It should be noted that he had served Hong Kong
through various public offices he held for over 30 years since 1985. To
me, D9 is a person of positive good character.
Charge 1
83. I have borne in mind that the public nuisance that D1 to D3 conspired
to commit did not involve acts of violence.
84. I have also borne in mind the underlying motivation for committing
Charge 1 was to fight for the form of universal suffrage that D1 to D3
advocated and to protect the arrested student leaders. Their motive was
not one of greed, lust, anger or monetary reward.
85. The public nuisance that D1 to D3 conspired to commit and the one
that actually occurred was very serious, in terms of the number of the
carriageways obstructed, the duration of the obstruction, the number of
participants and the common injury caused to the public. In my judgment,
the seriousness of the present case far exceeded the seriousness of the
sentencing cases on public nuisance placed before me, e.g. HKSAR v
Pearce [ 2006] 3 HKC 105, HKSAR v Pearce [2009] 5 HKLRD
1, HKSAR v Chow Pit-keung and Ors (HCMA 610/2009 and R v Roberts
(Richard).
86. I have borne in mind the positive good character of D1 to D3 and the
underlying motivation for their committing Charge 1. In my judgment,
neither a fine nor a community service order can adequately reflect the
seriousness of Charge 1. A custodial sentence is the only appropriate
form of punishment.
87. All things taken into consideration, bearing in mind the protest in
question was a peaceful one and the widespread disruption caused, in my
judgment, a starting point of 18 months’ imprisonment is appropriate.
88. D1 to D3 is each given 2 months’ reduction for their positive good
character, that would bring the sentence down to 16 months’
imprisonment.
92. In the case of D3, I am impressed and touched by his over 30 years’
dedication to the society, particularly persons in need (e.g. drugs addicts
and HIV-carriers) and his commitment to social justice. I am also
concerned about his age, he is now 75 years old, and the effect of an
immediate prison term would have on his health in the light of the medical
reports placed before me.
94. I have borne in mind that the public nuisance that D1, D2, D5, D6
and D7 advocated was peaceful and non-violent in nature.
95. I have also borne in mind the underlying motivation for committing
Charge 2 was to fight for the form of universal suffrage that the defendants
advocated and to protect the arrested student leaders. Their motive was
not one of greed, lust, anger or monetary reward.
96. The public nuisance that D1, D2, D5, D6 and D7 incited the persons
present at Tim Mei Avenue to commit was very serious, in terms of the
number of the carriageways obstructed, the duration of the obstruction,
the number of participants and the common injury caused to the
public. The seriousness of the present case far exceeded the seriousness
of the sentencing cases on public nuisance placed before me, e.g. HKSAR
v Pearce [2006] 3 HKC 105, HKSAR v Pearce [2009] 5 HKLRD
1, HKSAR v Chow Pit-keung and Ors (HCMA 610/2009 and R v Roberts
(Richard).
97. D6 was only 20 years and 5 months’ old at the time of the offence.
98. In Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421,
the Court of Final Appeal held that where “a defendant is just under the
age of 21 when he commits the offence, the fact that he has turned 21
shortly thereafter and before conviction or sentence should be taken into
account by the sentencing court” (Paragraph 74) and “for the purposes of
s. 109A, it is the defendant’s age at the date of sentence that is
relevant However, if a young person has turned 21 years of age between
the date of offending or conviction and the date of sentence, the fact of
his youth will be a powerful factor in determining the appropriate sentence
for him.” (Paragraph 76)
100. I have before me the sentencing reports for D6. I would not repeat
the contents of the pre-sentencing reports, suffice to say that the
interviewing officer spoke favourably of D6. The interviewing officer
recommended D6 be placed under a probation order for 2 years. He also
opined that D6 is a suitable candidate to be placed under a community
services order.
101. I have borne in mind the contents and the recommendations of the
pre-sentencing reports.
102. D6 was a student and was 20 years and 5 months old at the time of
the offence, thus he was a young offender in September 2014 for the
purpose of the Criminal Procedure Ordinance.
103. Given the nature of the offence, the background of D6 including his
motivation for committing the offence, his young age and lack of
experience in life, in my judgment, D6 deserves a chance be given to
him. Justice is best served by a non-custodial sentence in the case of
D6. In my judgement, a Community Services Order, which has a penal
element in it, is preferable to a Probation Order given the seriousness of
the case. All things taken into consideration, in my judgment, a
Community Services Order for 200 hours of unpaid work is appropriate
for D6.
104. For the reasons given, for Charge 2, I place D6 under a Community
Services Order, D6 has to perform a total of 200 hours of unpaid work
under the supervision of a probation officer within a period of 12 months
who shall also provide counselling and guidance to D6.
105. I have borne in mind the positive good character of D1, D2, D5 and
D7 and the underlying motivation for their committing Charge 2. In my
judgment, neither a fine nor a community services order can adequately
reflect the seriousness of Charge 2. A custodial sentence is the only
appropriate form of punishment.
106. All matters taken into consideration, bearing in mind the protest in
question was a peaceful one and the widespread disruption caused, in my
judgment, a starting point of 9 months’ imprisonment is appropriate.
107. Each of D1, D2, D5 and D7 is given 1 month’s reduction for their
positive good character, that would bring the sentence down to 8 months.
109. For the reasons given, on Charge 2, I sentence D1, D2, D5, and D7
each to 8 months’ imprisonment.
110. In the case of D1, D2 and D5, I can see no humanitarian ground,
exceptional circumstances or any valid reason to suspend the
imprisonment sentence. In the case of D5, I am sure he would receive
proper treatment for his type 2 diabetes and diabetic maculopathy. D1,
D2 and D5 have to serve the term of imprisonment immediately.
111. In the case of D7, he was a student and was 22 years old at the time
he committed Charge 2, he was very much a young man, though not a
young offender for the purpose of the Criminal Procedure Ordinance.
112. Given the nature of the offence, the background of D7 including his
motivation for committing the offence, his relatively young age and lack
of experience in life, in my judgment, D7 deserves a chance be given to
him. Justice is best served by suspending the prison term of D7.
116. For the same reasons, all matters taken into consideration, bearing
in mind the protest in question was a peaceful one and the widespread
disruption caused, in my judgment, a starting point of 9 months’
imprisonment is appropriate for Charge 3.
Charge 4 (D8)
122. I have borne in mind that the public nuisance that D8 advocated was
peaceful and non-violent in nature.
123. I have also borne in mind the underlying motivation for committing
Charge 4 was to fight for the form of universal suffrage that the D8
advocated and to protect the arrested student leaders. The motive of D8
was not one of greed, lust, anger or monetary reward.
124. The public nuisance that D8 incited the persons present at Fenwick
Pier Street to commit was very serious, in terms of the duration of the
obstruction, the number of participants and the common injury caused to
the public. On the other hand, only the carriageway of Fenwick Pier
Street was involved in Charge 4. In my judgment, the seriousness of the
present case far exceeded the seriousness of the sentencing cases on public
nuisance placed before me, e.g. HKSAR v Pearce [2006] 3 HKC
105, HKSAR v Pearce [2009] 5 HKLRD 1, HKSAR v Chow Pit-keung and
Ors (HCMA 610/2009 and R v Roberts (Richard).
126. All matters taken into consideration, bearing in mind the protest in
question was a peaceful one and the widespread disruption caused, in my
judgment, a starting point of 8 months’ imprisonment is appropriate.
Charge 5 (D8)
Charge 6 (D9)
134. I have borne in mind that the public nuisance that D9 advocated was
peaceful and non-violent in nature.
135. I have also borne in mind the underlying motivation for committing
Charge 6 was to fight for the form of universal suffrage that the D9
advocated and to protect the arrested student leaders. The motive of D9
was not one of greed, lust, anger or monetary reward.
136. The public nuisance that D9 incited the persons present at Harcourt
Road to commit was very serious, in terms of the duration of the
obstruction, the number of participants and the common injury caused to
the public. Whilst only the carriageways of Harcourt Road were involved
in Charge 6, one should note however that Harcourt Road was a major
thoroughfare connecting the districts of Wanchai, Admiralty and
Central. In my judgment, the seriousness of the present case far exceeded
the seriousness of the sentencing cases on public nuisance placed before
me, e.g. HKSAR v Pearce [2006] 3 HKC 105, HKSAR v Pearce[2009] 5
HKLRD 1, HKSAR v Chow Pit-keung and Ors (HCMA 610/2009 and R
v Roberts (Richard).
138. All matters taken into consideration, bearing in mind the protest in
question was a peaceful one and the widespread disruption caused, in my
judgment, a starting point of 9 months’ imprisonment is appropriate.
139. D9 is given one month’s reduction for his positive good character,
which would bring his sentence down to 8 months.
Totality
144. I agree with Dr McCoy SC’s submissions that the sentences for
Charge 1 and Charge 2 for D1 and D2 should run concurrently with each
other.
145. I order that the 16 months’ imprisonment for Charge 1 and the 8
months’ imprisonment I imposed on D1 and D2 shall run concurrently
with each other. D1 and D2 each has to serve a total term of 16 months’
imprisonment.
( Johnny Chan )
District Judge