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【九子判刑】法官陳仲衡判刑理由全文

2019/4/24 — 18:10

(編按:佔中九子案今日(24 日)判刑,陳健民、朱耀明、戴耀廷分別因為串謀公眾妨擾判囚 16 個月,其中朱耀明緩刑兩年,陳健民和戴耀廷即時入獄。陳健民和戴耀廷另外因為煽感公眾妨擾判監 8 個月,兩罪刑期同期執行。其他被告黃浩銘、邵家臻、鍾耀華和李永達都判入獄 8 個月,黃浩銘、邵家臻要即時入獄,鍾耀華和李永達緩刑兩年;案發時未滿 21 歲的張秀賢,就被判 200 小時社會服務令;而陳淑莊就因健康理由要緊急做腦部手術,押後到 6 月 10 日再宣判。西九龍裁判法院法官陳仲衡判刑理由全文轉載如下。)

DCCC 480/2017

[2019] HKDC 568

廣告

 

IN THE DISTRICT COURT OF THE

廣告

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 480 OF 2017

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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)

-------------------------------

 

Before: His Honour Judge Johnny Chan

Date: 24th April 2019

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 1st to 3rd defendants

Mr Robert Pang, SC, instructed by Ho, Tse, Wai & Partners, for the 5th defendant

Mr Hectar H Pun, SC, leading Mr Anson Y Y Wong, instructed by Kenneth Lam, assigned by the Director of Legal Aid, for the 6th defendant

Mr Dykes Philip John, SC, leading Mr Tam Chun Kit, instructed by Kenneth Lam, assigned by the Director of Legal Aid, for the 7th defendant

Mr Lawrence Lok, SC, leading Mr Chan Wai Yin Joe, instructed by Ho, Tse, Wai & Partners, assigned by the Director of Legal Aid, for the 8th defendant

Mr Edwin Choy, SC, leading Ms Senia Ng, instructed by Ho, Tse, Wai & Partners, for the 9th defendant

Offence:

[1] Conspiracy to commit public nuisance (串謀犯公眾妨擾罪) – D1-D3

[2] Incitement to commit public nuisance (煽惑他人犯公眾妨擾罪) – D1-D7

[3] Incitement to incite public nuisance (煽惑他人煽惑公眾妨擾罪) – D1-D7

[4] Incitement to commit public nuisance (煽惑他人犯公眾妨擾罪) – D8

[5] Incitement to incite public nuisance (煽惑他人煽惑公眾妨擾) – D8

[6] Incitement to commit public nuisance (煽惑他人犯公眾妨擾罪) – D9

 

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REASONS FOR SENTENCE

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The Verdict

1.  D1 and D2 stand convicted after trial of one count of “Conspiracy to Commit Public Nuisance” (Charge 1) and one of “Incitement to Commit Public Nuisance” (Charge 2).

2.  D3 stands convicted after trial of one count of “Conspiracy to Commit Public Nuisance” (Charge 1).

3.  D4 to D7 stand convicted after trial of one count of “Incitement to Commit Public Nuisance” (Charge 2) and one of “Incitement to Incite Public Nuisance” (Charge 3).

4.  D8 stands convicted after trial of one count of “Incitement to Commit Public Nuisance” (Charge 4) and one of “Incitement to Incite Public Nuisance” (Charge 5).

5.  D9 stands convicted after trial of one count of “Incitement to Commit Public Nuisance” (Charge 6).

The Facts

6.  The findings of fact are set out in the judgment. 

7.  After a contested trial, I found that the OCLP launched by D1 to D3 only developed into a conspiracy to commit public nuisance in September 2014 following the Decision on 31st August.  By then, D1 to D3 had given up all hope of attaining their advocated form of universal suffrage in the election of the Chief Executive of the HKSAR through lawful means, e.g. negotiation with the government, and decided to launch the civil disobedience part of the OCLP by commencing the Occupy Central movement at Chater Road on 1st October 2014.

8.  Originally, it was the plan of D1 to D3 to occupy the pedestrian precincts of Chater Road if a Letter of No Objection was issued by the Police. In the event that a Letter of Prohibition was issued, the occupy movement would go ahead at the planned location on 1st October 2014 and the participants, estimated to be in the region of several thousand people to 10,000 people, would sit and remain there after the public holidays and commence civil disobedience there.

9.  I found that the planned occupy movement at Chater Road, if carried out, would amount to a public nuisance.  I found that D1 to D3 were parties to the conspiracy to commit public nuisance.

10.  Because of what happened at Tim Mei Avenue in late September 2014, the planned occupy movement at Chater Road did not take place.

11.  At around 1:36 a.m. on 28th September 2014, D1 to D3 announced the launch of the Occupy Central movement at the venue of the public meeting in progress at Tim Mei Avenue. I found that the conspiracy to commit public nuisance reached by D1 to D3 was modified, but not abandoned.  D1 to D3 remained parties to the conspiracy until 2nd December 2014, when D1 to D3 stated that they would surrender to the Police on the following day.

12.  On 27th and 28th September 2014, D1, D2, D4, D5, D6 and D7 incited 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.

13.  On 28th September 2014, D8 incited the people present at Fenwick 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.

14.  On 28th September 2014, D9 incited the people present at Harcourt Road to occupy and obstruct the carriageways of Harcourt Road (Charge 6).  The details of the incitement made by D9 are set out in paragraphs 711-723 of the judgment, which I shall not repeat.

15.  From 28th September to 2nd December 2014, public roads in the neighbourhood of Tim Mei Avenue were occupied by protestors with tents and barricades placed on the roads.  I accept as true and correct the evidence of PW6 Superintendent Yau Nai Keung as to what happened after 28th September up to 11th December 2014.  During the said period, sections of roads at Queensway, Rodney Street, Harcourt Road, Lung Wui Road, Fenwick Pier Street, Performing Arts Avenue, Cotton Tree Drive and Connaught Road Central were occupied by protestors.  Objects like plastic fences, mills barriers, garbage bins, bamboo sticks and road signs from construction sites were used to form barricades on some of the roads.

16.  The Police finally carried out clearance action on 11th December 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 28th September 2014. It is not 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.

Background information of the Defendants

D1

19.  D1 was born in Hong Kong.  Aged 54, he received education up to tertiary level. 

20.  He was a university professor before his arrest.

21.  He has no previous conviction.

D2

22.  D2 was born in Hong Kong.  Aged 60, he received education up to tertiary level.

23.  He was a university professor before his arrest.

24.  He has no previous conviction.

D3

25.  D3 was born in Hong Kong.  Aged 75, he received education up to tertiary level.

26.  He has no previous conviction.

27.  He was a pastor before his arrest.

D5

28.  D5 was born in Hong Kong.  Aged 49, he received education up to tertiary level.

29.  He has no previous conviction.

30.  He was a lecturer at the time of his arrest.

D6

31.  D6 was born in Hong Kong.  Aged 24, he received education up to tertiary level.

32.  He has no previous conviction.

33.  He was a university student at the time of his arrest.

D7

34.  D7 was born in Hong Kong.  Aged 26, he received education up to tertiary level.

35.  He has no previous conviction.

36.  He was a university student at the time of his arrest.

D8

37.  D8 was born in Hong Kong.  Aged 30, he received education up to master’s degree level.

38.  The Criminal Record Summary of D8 shows that:-

(1) In 2012, he was convicted of 1 count of “Holds/Convenes/Organizes/Forms/Collects/Assists in respect of an unauthorized public meeting/procession” and 1 count of “Taking part in unauthorized assembly”.

(2) In 2013, he was convicted of 2 counts of “Attempt assaulting/Obstructing/Molesting member of the legislative council going to being with or going from the precincts of the chamber of the legislative council”.

(3) In 2014, he was convicted of 1 count of “Taking part in an unlawful assembly.”

(4) In 2016, he was convicted of 1 count of “Taking part in an unlawful assembly.”

(5) In 2018, he was convicted of 1 count of “Contempt of Court.”

39.  He was an assistant at a District Councilor’s Office at the time of his arrest.

D9

40.  D9 was born in Hong Kong.  Aged 63, he received education up to degree level.

41.  He has no previous conviction.

42.  He was a chief research officer at the time of his arrest.

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)

44.  Counsel drew my attention to the recent decision of the Court of Appeal in England in R. v Roberts (Richard) EWCA Crim 2379; [2019] Env. L.R. 17.

45.  In Roberts (Richard), the appellants protested against oil exploration by fracking. The acts of public nuisance committed by the appellants consisted of climbing into and sitting on top of the cabs of lorries delivering drilling equipment for use in fracking.  The actions under complaint lasted between two and half and three and a half days, with the result that one carriageway of the road was blocked, and substantial disruption was caused to thousands of people.

46.  The appellants were sentenced to 15- months and 16-months imprisonment.

47.  Mr. Pang SC drew my attention to the following paragraphs of the judgment:-

“32. ……But the essential approach to sentencing by looking at harm and culpability and with the three aims of sentencing in mind (punishment, deterrence and rehabilitation) remain in play. The motivation of an offender can go to increase or diminish culpability. It forms no part of a court’s function to adjudicate, even sub silencio, on the merits of controversial issues but it is well established that committing crimes, at least non-violent crimes, in the course of peaceful protest does not generally impute high levels of culpability.

…..

34. Paragraph 89 echoes the understanding that the conscientious motives of protestors will be taken into account when they are sentenced for their offences but that there is in essence a bargain or mutual understanding operating in such cases. A sense of proportion on the part of the offenders in avoiding excessive damage or inconvenience is matched by a relatively benign approach to sentencing. When sentencing an offender, the value of the right to freedom of expression finds its voice in the approach to sentencing.

…..

36. Miss Brimelow QC’s research suggests that peaceful protestors have not been imprisoned since 1932 for the commission of offences associated with their protest. That may well be right, but it reflects the operation of the consideration of the factors identified in Margaret Jones, rather than a hitherto unspoken rule of law. We have also considered R. v Jones (Annwen) [2006] EWCA Crim 2942. The appellants were convicted on their guilty pleas of obstructing a train contrary to s. 36 of the Malicious Damage Act 1861, which carries a maximum sentence of two years’ imprisonment. One appellant received a community order which was reduced to a conditional discharge and another a suspended sentence reduced to a community order. They caused disruption and inconvenience for a total of about seven hours. This case also demonstrates the intensely fact specific nature of sentencing in civil disobedience cases, both having regard to the offending and the offender, but nonetheless sensitive to the underlying context.

37. The long-established recognition in the United Kingdom of the value of peaceful protest, echoed in Lord Hoffmann’s remarks, is a manifestation of the importance attached by the common law to both the right to protest and free speech: see, e.g., Hubbard v Pitt [1976] 1 Q.B. 142 at 174D and 178 per Lord Denning MR; Bonnard v Perryman [1891] 2 Ch. 269 at 284 per Lord Coleridge CJ (sitting with Lord Esher MR. Lindley, Bowen and Lopes LJJ); McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 A.C. 277 at 297 per Lord Steyn; R v Shayler [2003] 1 A.C. 247 at [21] per Lord Bingham; Redmond-Blake v DPP [2000] H.R.L.R. at [20] per Sedley LJ. In a free society all must be able to hold and articulate views, especially views which many disagree. Free speech is a hollow concept if one is only able to express “approved” or majoritarian views. It is the intolerant, the instinctively authoritarian, who shout down or worse suppress views with which they disagree.

38. That importance of freedom of speech and association is reflected by the ECHR in arts 10 and 11, the first guaranteeing the right to freedom of expression, the second freedom of assembly. Both are qualified rights. Freedom of speech may be subject to “such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society…for the prevention of disorder or crime, [or] for the protection of the reputation or rights of others.” A similar, although not identical, qualification applies to art. 11.

39. There is no doubt that direct action protests fall within the scope of arts 10 and 11: e.g. Mayor of London (On behalf of the GLA) v Hall [2011] 1 W.L.R. 504; Mayor, Commonalty and Citizens of London v Samede [2012] 2 All E.R. 1039. From time to time the Strasbourg Court has considered the question of the proportionality of a sentence imposed for crime committed in the course of peaceful protest. The principles in play were recently restated in Taranenko v Russia (App. No. 19554/05). At [81] the court noted that in Steel and others v the United Kingdom (1999) 28 E.H.R.R. 603 short terms of imprisonment were proportionate in connection with interfering with a grouse shoot and breaking into a construction site to impede engineering work. At [85] the court recorded that in Barraco v France (App. No. 31684/05) a suspended sentence of imprisonment, together with a fine, was a proportionate sanction for a protest which resulted in the severe slowing-down of traffic on a motorway. Reference was made also at [83] to Drieman and others v Norway(App. No. 33678/96) which concerned direct action against whaling by Greenpeace where a fine was considered to be proportionate; and at [84] to Lucas v the United Kingdom (App. No. 39013/02) where detention for a few hours following arrest for wilful obstruction of the highway and then a fine was proportionate. At [87] the Strasbourg Court said:

“An analysis of the Court’s case-law … reveals that the Contracting States’ discretion in punishing illegal conduct intertwined with expression or association, although wide, is not unlimited. It goes hand in hand with European supervision by the Court, whose task is to give a final ruling on whether the penalty was compatible with Article 10 or 11. The Court must examine with particular scrutiny the cases where sanctions imposed by the national authorities for non-violent conduct involve a prison sentence.”

43. The Strasbourg jurisprudence does not support the proposition that detention is necessarily disproportionate for the conduct with which these appeals are concerned. On the contrary, the Strasbourg Court has accepted as proportionate both immediate sentences of imprisonment and suspended sentences in cases where the conduct in question caused less harm and was less culpable. In this way, the ECHR marches with the common law. The underlying circumstances of peaceful protest are at the heart of the sentencing exercise. There are no bright lines, but particular caution attaches to immediate custodial sentences.

….

45. Custody is only appropriate if the court considers that the offence (alone or in combinations with one or more other offences) is so serious that neither a fine nor a community sentence can be justified: s. 152 Criminal Justice Act 2003. That judgment must be made in the light of all the circumstances. In our view, having regard to the good character of these appellants and the underlying motivation for their criminal behaviour, even taking into account the widespread disruption for which they were responsible, the custody threshold was not crossed. Miss Brimelow QC developed detailed submissions on the precise extent of the disruption for which, either alone or combined with the coincident behaviour of others, these appellants were responsible (Ground 3). We consider that the judge, having heard all the evidence, was in an unrivalled position to evaluate that question. We are unpersuaded by an exercise of picking through bits and pieces of the evidence, that he was wrong.

…..

52. When these sentiments are added to the features already referred to, we are reinforced in our view that a custodial sentence was not called for in these cases. A community sentence, with a punitive element involving work (or perhaps a curfew) would have met the justice of the case. As has often been remarked, a community sentence is a serious penalty. Moreover, if the terms of a community sentence are not complied with, the offender may be resentenced. No complaint could be made about that; and if the original sentence was appropriate there would be no legitimate complaint if non-compliance led to a custodial sentence. The same would be true were a suspended sentence appropriately imposed, a further offence committed, and the sentence then activated.” (Emphasis added)

48.  Mr. Leung SC drew my attention to paragraph 35 of the judgment:-

“35. The succeeding paragraphs emphasise the limits of an appeal to legal justification in the offending behaviour. But Lord Hoffmann’s dicta do not support the proposition that there is a bright line between custody and non-custody in such cases. It should not be overlooked that public nuisance is a serious offence, the commission of which would suggest that the protestor in question has not kept his side of the bargain adverted to by Lord Hoffmann.”

49.  The “sentiments” referred to in paragraph 52, which reinforced the English Court of Appeal’s view that a custodial sentence was not called for, were the sentiments of regret expressed by each of the appellants and summarized in paragraphs 49 to 51 of the judgment.  The English Court of Appeal, in paragraph 48, reckoned that the appellants, in their respective pre-sentencing reports, expressed regret for what they had done and two of them recognised that their actions, i.e. the extended duration of protest with its widespread impact, were unreasonable and irresponsible.  It was on that basis that they asked to be sentenced.

50.  In the present case, D1 has expressed no regret for what he had done in his closing submissions and counsel’s mitigation.

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.

59.  Furthermore, in paragraph 34, the Court of Appeal in England emphasized the importance of a sense of proportion on the part of the offenders in avoiding excessive damage or inconvenience, which was lacking in the present case.  D1 to D9 obviously did not keep their side of the bargain adverted to by Lord Hoffmann.

Civil Disobedience

60.  All along D1 to D3 branded the OCLP they planned as a civil disobedience movement.  In paragraphs 256 to 278 of the judgment, I have pointed out even D1 to D3 had in mind the concept of proportionality when they were considering the impact of the occupy movement would have on the traffic, the test/yardstick they used was totally wrong in that the threshold they set was whether the area would be paralyzed by the occupation.    They considered that the impact of the occupation would be acceptable as long as Central (the financial hub) would not be paralyzed.  What Lord Hoffmann called for in R v Jones (Margaret) is that protestors should behave with a sense of proportion and not to cause excessive damage or inconvenience.

61.  It was only until 18th November 2014 that D2 spoke of proportionality in line with Lord Hoffmann’s statement in R v Jones (Margaret).

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.

The Duration of the Occupation and Apportionment of Responsibility

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 28thSeptember 2014, it is impossible to ascertain from the evidence the number of days of occupation that could be attributed to the incitements made by the relevant defendants.  Likewise, it is impossible to ascertain from the evidence the number of people who joined the Occupy Central movement because of the incitements.  Counsel also submitted that a clearance action could have been carried out by the Police at a much earlier time, the Police did not have to wait until December 2014 to clear the protestors.

66.  In a case like the present one, it is not possible to apportion responsibility by the number of days of the occupation that a defendant should be held responsible or the number of people successfully incited by a defendant.  The truth is, for the relevant defendants convicted of the incitement charges, at the time of the making of the incitement(s), the defendant concerned intended the incitement would result in a public nuisance, and as a matter of fact, a public nuisance did happen in the end.  For D1, D2, D4 to D7, the roads in the neighbourhood of Tim Mei Avenue were occupied and obstructed as they incited; for D8, Fenwick Pier Street was occupied and obstructed as he incited; and for D9, Harcourt Road was occupied and obstructed as he incited.  The relevant defendant(s) called for a large number of people to participate and a large number of people did participate in the occupy movement.  D1, D2, D4 to D7 called for the over-cramming of roads in the neighbourhood of Tim Mei Avenue, in the end roads in the neighbourhood of Tim Mei Avenue were over-crammed.  D8 and D9 respectively called for the occupation of Fenwick Pier Street and Harcourt Road, in the end these two roads were occupied. The relevant defendants intended that the public nuisance they incited should last for an indefinite period.  As it turned out, the roads were only cleared on 11th December 2014.

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 28th September 2014.  As I pointed out in paragraph 392 of the judgment, 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 28th September 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 28th September 2014 after all the incitements had been made.

68.  For the conspiracy charge, as I said in paragraph 390, D1 to D3 witnessed how the events developed after the use of tear gas on 28th September 2014, D1 to D3 witnessed the extensive and continued 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 2nd December 2014.

69.  At the material times, the 9 defendants just looked up to their aspirations and looked forward to the universal suffrage they wanted to achieve.  They failed to notice the ordinary folks who needed to use the carriageways in question to travel to work to make a living.  The martyrdom the defendants exhibited was a contorted one in that the price that each of them was prepared to pay also had to be borne by the ordinary folks. Whilst the defendants were prepared to break the law and accept legal consequences to the extent the charges to be laid would meet their expectation, the excessive damage and inconvenience caused by the obstruction had to be borne by many others.

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. 

73.  Paragraph 523 echoes paragraph 276, it reads:-

“523. In my judgment, the reference to “the arrival of genuine universal suffrage” in Hong Kong in the incitement shows that the occupation was intended to be for an indefinite period. As discussed, it would take time for the Government to consider and respond to the demand for constitutional reform.”

Alleged Delay in Prosecution

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.

77.  I am impressed by the mitigating letters submitted for D3.  They testify to the service provided by D3 to Hong Kong in the past 39 years, i.e. since 1980.  I also take into consideration the character evidence given by Cardinal Zen.  D3 is a person of positive good character.

78.  I am also aware of the age and the health condition of D3.

79.  On the information placed before me, I accept D5, D6 and D7 as persons of positive good character.

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.

82.  Though D1 to D3, D5 to D7 and D9 are all persons of positive good character, in my judgment, the over 3 decades of public service to Hong Kong by D3 and D9 makes them stand out from the other defendants.

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.

89.  I can see no reason to reduce the sentence any further.

90.  For the reasons given, I sentence D1 to D3 each to 16 months’ imprisonment.

91.  In the case of D1 and D2, I can see no humanitarian ground, exceptional circumstances or any valid reason to suspend the imprisonment sentence.  They have to serve the sentence immediately.

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.

93.  In my judgment, justice is best served by a suspension of the 16 months’ imprisonment.  I suspend the 16 months’ imprisonment for 2 years.

Charge 2 (D1, D2, D5, D6 and D7)

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)

99.  I ordered that a Probation Officer’s Report and a Community Services Order Report be prepared for D6 before sentence.

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.

108.  I can see no reason to reduce the sentence any further.

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.

113.  For the reasons given, the 8 months’ sentence of D7 is suspended for 2 years.

Charge 3 (D5, D6 and D7)

114.  What is said about Charge 2 applies equally to Charge 3.

115.  For the same reasons, on Charge 3, 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.

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.

117.  Each of D5 and D7 is given 1 month’s reduction for their positive good character, that would bring the sentence down to 8 months.

118.  I can see no reason to reduce the sentence any further.

119.  For the reasons given, on Charge 3, I sentence D5 and D7 each to 8 months’ imprisonment.

120.  For the same reasons, I suspend the 8 months’ imprisonment of D7 for a period of 2 years.

121.  In the case of D5, I can see no humanitarian ground, exceptional circumstances or any valid reason to suspend the imprisonment sentence.  He has to serve the sentence immediately.

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).

125.  I have borne in mind the underlying motivation for D8 committing Charge 4 and the peaceful nature of the public nuisance incited.  In my judgment, neither a fine nor a community service order can adequately reflect the seriousness of Charge 4.  A custodial sentence is the only appropriate form of punishment.

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.

127.  I can see no mitigating factor to reduce the sentence of 8 month’s imprisonment.

128.  For the reasons given, on Charge 4, I sentence D8 to 8 months’ imprisonment.

129.  I can see no humanitarian ground, exceptional circumstances or any valid reason to suspend the imprisonment sentence.  D8 is to serve the sentence for Charge 4 immediately.

Charge 5 (D8)

130.  What is said about Charge 4 applies equally to Charge 5.

131.  For the same reasons, I adopt a starting point of 8 months’ imprisonment.  There is no mitigating factor to reduce the sentence.

132.  For the reasons given, on Charge 5, I sentence D8 to 8 months’ imprisonment.

133.  I can see no humanitarian ground, exceptional circumstances or any valid reason to suspend the imprisonment sentence.  D8 is to serve the sentence for Charge 5 immediately.

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).

137.  I have borne in mind the underlying motivation for D9 committing Charge 6 and the peaceful nature of the public nuisance incited.  In my judgment, neither a fine nor a community service order can adequately reflect the seriousness of Charge 6.  A custodial sentence is the only appropriate form of punishment.

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.

140.  I can see no mitigating factor to further reduce the sentence of 8 month’s imprisonment.

141.  For the reasons given, on Charge 6, I sentence D9 to 8 months’ imprisonment.

142.  D9 is now 63 years old.  He has dedicated over 30 years to public service, i.e. more than half of the time since his birth.  The long years of public service of D9, in my judgment, is very impressive.  Taken into consideration the nature of the offence, the background of D9 including his motivation for committing Charge 6 and his age, it is time to recognise D9’s long years of public service by suspending his 8 months’ imprisonment for 2 years.

143.  For the reasons given, the 8 months’ imprisonment of D9 is suspended for 2 years. 

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.

146.  The sentences for the offences of “Incitement to commit public nuisance” (Charge 2) and “Incitement to incite public nuisance” (Charge 3) I passed on D5, D6 and D7 should also run concurrently with each other, so are the sentences for Charge 4 and Charge 5 that I passed on D8.

  

( Johnny Chan )
District Judge

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