A A

B B
DCCC 857-875, 877-884, 886-889, 891 & 893/2020 (Consolidated)

C
[2021] HKDC 1547 C

D D
IN THE DISTRICT COURT OF THE

E HONG KONG SPECIAL ADMINISTRATIVE REGION E

CRIMINAL CASE NOS 857-875,877-884, 886-889, 891 & 893 OF 2020

F F

G ---------------------------- G

HKSAR
H H
v
I LAI CHEE YING (D4) I

CHOW HANG TUNG (D13)

J J
HO KWAI LAM (D19)
K ---------------------------- K

L L
Before: Her Honour Judge Amanda J Woodcock in Court
M Date: 9 December 2021 M

Present: Ms Laura Ng, Senior Assistant Director of Public

N N
Prosecutions (Ag) and Mr Edward Lau, Senior Public
O Prosecutor (Ag), for HKSAR/Director of Public O

Prosecutions
P P

Q Mr Robert Pang, S.C., leading Mr Jeffrey Tam, Mr Ernie Q

Tung and Mr Joshua Ngai instructed by Robertsons, for the

R R
th
4 defendant
S Mr Y. L. Cheung, instructed by Ho Tse Wai & Partners, for S

the 13th defendant

T T

U U

V V
A A

B B
Miss Allison Wong, instructed by Ho Tse Wai & Partners,

C
for the 19th defendant C
Offences: [1] Incitement to knowingly take part in an unauthorized
D D
assembly（煽惑他人明知而參與未經批准集結） - D1-
E D13 E

[3] Knowingly taking part in an unauthorized assembly（明

F F
知而參與未經批准集結） - D1-D3, D5-D20
G G

--------------------------------------
H H
REASONS FOR VERDICT
I -------------------------------------- I

J J
1. This trial arises from a consolidated case that involved 20
K defendants. 17 defendants pleaded guilty before trial. The 4th, 13th and 19th K

defendants proceeded to trial.

L L

M 2. The 4th and 13th defendants face Charge 1, incitement to M

knowingly take part in an unauthorised assembly, contrary to Common

N N
Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and
O O
punishable under section 101I of the Criminal Procedure Ordinance, Cap

P
221. P

Q Q
3. On 4 June 2020 at Water Fountain Plaza, Victoria Park,

R
Causeway Bay, in Hong Kong they together with other defendants R
unlawfully incited other persons unknown to, without lawful authority or
S S
reasonable excuse, knowingly take part in a public meeting which took

T place in contravention of section 7 of the Public Order Ordinance, which T

U U

V V
A A

B B
was an unauthorised assembly by virtue of section 17A(2)(a) of the same

C
Ordinance. C

D D
4. The 13th and 19th defendants face Charge 3, knowingly

E taking part in an unauthorised assembly, contrary to section 17A(3)(a) of E

the Public Order Ordinance.

F F

G 5. On the same day, 4 June 2020, at Victoria Park, they G

together with the defendants named and others unknown, without lawful
H H
authority or reasonable excuse, knowingly took part in a public meeting
I which took place in contravention of section 7, which was an I

unauthorised assembly by virtue of section 17A(2)(a) of the Public Order

J J
Ordinance, “POO”.
K K

6. Charge 2, holding an unauthorised assembly only involved

L L
the 1st defendant, Mr Lee Cheuk Yan who pleaded guilty to this Charge as
M well as Charges 1 and 3 before trial. M

N N
Background
O O

7. For many years now the Hong Kong Alliance in Support of

P P
Patriotic Democratic Movements of China, “Hong Kong Alliance” has
Q submitted a notification to the Police to hold a public meeting in Victoria Q

Park on 4th June each year. On 23 April 2020, the 3rd defendant, Mr. TSOI
R R
Yiu Cheong Richard on behalf of the Hong Kong Alliance submitted a
S similar notification to the Police. The purpose of the public meeting was S

again to “mourn the anniversary of the June 4 th Incident” with an

T T
estimated number of participants between 50,000 and 100,000.
U U

V V
A A

B B

C
8. There was a liaison meeting between the Police and the C
representatives of Hong Kong Alliance including several defendants. The
D D
Department of Health were also consulted, by memo from the Police,

E exhibit P50, and advised in writing against holding any mass gatherings E

on 4 June 2020 in view of the coronavirus pandemic, exhibit P3.

F F

G 9. On 1 June 2020, the Commissioner of Police issued a notice G

to Hong Kong Alliance as required, prohibiting the holding of the

H H
proposed public meeting in the interests of public order, public safety,
I and the protection of the rights and freedoms of others. Hong Kong I

Alliance did not appeal that decision nor Judicial Review it.
J J

K 10. Despite the prohibition, the prosecution alleges that on 4 K

June 2020 members of Hong Kong Alliance and others including the 4 th
L L
and 13th defendants, incited others to take part in what would be an
M unauthorised assembly relating to the June 4th Incident. By 8pm that night M

there were approximately 20,000 people including the 13 th and 19th

N N
defendants gathered on the football pitches inside Victoria Park which
O were originally closed off to the public due to COVID-19. O

P P
11. Despite the prohibition, the Police did not take any
Q enforcement action on the day in Victoria Park nor make their presence Q

known. There were Police outside Victoria Park in Causeway Bay but
R R
again they took no enforcement action during the material time. The
S decision was made not to take any enforcement action to avoid any S

conflict arising between the Police and members of the public. During the
T T
afternoon, several roads near Victoria Park had to be closed off to traffic
U U

V V
A A

B B
for safety reasons and because of the obstruction caused by the number of

C
people present. C

D D

E The Issues E

F F
12. The issues raised include whether or not the defendants
G incited other persons unknown to take part in an unauthorised assembly G

and whether there was an unauthorised assembly that evening. It was

H H
submitted that the people who were present in Victoria Park were there
I for their own personal reasons and intentions; not convened or organised I

by the Hong Kong Alliance.

J J

K 13. There are constitutional challenges by all the defendants on a K

systemic level as well as an operational level. They will come into play if
L L
I find the prosecution has proved the Charges beyond reasonable doubt.
M M

14. The defence submits these offences should not carry a

N N
criminal sanction and/or the maximum sentence of 5 years that can be
O imposed is too severe to be proportional and constitutional. The defence O

submits that the sole legitimate aim for imposing criminal sanctions is to
P P
ensure the compliance with the notification system and therefore, the
Q restrictions arising from section 17A (3) are not rationally connected with Q

or are disproportionate to the legitimate aim if it were to be subjected to a

R R
4-step proportionality test.
S S

15. On an operational level, the defendants submit that they

T T
should not have been arrested later nor prosecuted, subjected to a trial and
U U

V V
A A

B B
possibly face a conviction for what turned out to be a peaceful public

C
meeting. C

D D
16. The 4th defendant submits that the decision of the

E Commissioner of Police to prohibit the public meeting can be challenged E

by him during the trial and it is submitted that the prohibition of the
F F
meeting was disproportionate; a constitutional challenge on an
G operational level. G

H H
The Prosecution’s Case
I I

17. It is the prosecution’s case that the Commissioner of Police

J J
took into account the advice of experts, the Department of Health. In
K view of the COVID-19 pandemic, the risk of a major community K

outbreak existed at the time and the Government’s response level of the
L L
“preparedness and response plan for novel infectious disease of public
M health significance” was at the highest level, an emergency level. Since M

January 2020, this response level remained at the highest level. This
N N
meant that the risk of an impact to health caused by the pandemic on the
O local population was high and imminent. O

P P
18. The Department of Health assessed the risks and set out their
Q considerations in their recommendation, exhibit P3. A mass gathering Q

event was not recommended. Public safety and the protection of the rights
R R
and freedoms of others must include public health considerations that
S directly affect the local population. S

T T

U U

V V
A A

B B
19. It is the prosecution’s case that the defendants deliberately

C
flouted the law and ignored the prohibition by the Police by inciting C
others and/or then knowingly took part themselves in an unauthorised
D D
public assembly in Victoria Park on 4 June 2020.

E E

20. The decision by the Commissioner of Police to prohibit the

F F
holding of the proposed public meeting was widely broadcasted, printed
G and discussed in many media outlets. There were press conferences and G

interviews given by defendants in this case who were members of the

H H
Hong Kong Alliance as well as the 4th defendant. These are set out in
I exhibit P1, the Admitted Facts. I

J J
21. Other than those widely broadcasted interviews and media
K news reports, the prosecution says anybody in or near Victoria Park on 4 K

June 2020 must have known that anybody participating in a meeting in

L L
Victoria Park that night would be joining an unauthorised assembly or
M prohibited group gathering. It is admitted that the Police had set up many M

loudspeakers near or inside Victoria Park broadcasting from about 4pm

N N
until late in the evening, making continuous announcements and warning
O the public not to join any unauthorised assembly. O

P P
22. It was also admitted that the football pitches in Victoria Park
Q had been closed for some time because of the pandemic and no entry to Q

these facilities were allowed. They were in fact cordoned off by barriers
R R
which were knocked down by various people so that those gathering in
S Victoria Park that evening could enter and occupy those pitches. S

T T

U U

V V
A A

B B
23. What happened that day on 4 June 2020 in and around

C
Victoria Park including who was where and when, who said what and C
who went where was all recorded by either the Police or numerous media
D D
outlets and admitted by all parties. The video footage, transcripts and

E certified translations were all agreed. Facebook posts by various E

defendants including the 13th and 19th defendants were included in the
F F
Admitted Facts.
G G

24. The prosecution’s case is that the 1st to the 13th defendants in
H H
this consolidated case gathered together at the Water Fountain Plaza just
I inside the entrance of Victoria Park in a show of solidarity when the 1 st I

defendant gave a press interview at 6:25pm. What the 1st defendant, as the
J J
Chairman of Hong Kong Alliance, said and did amounted to inciting
K others to knowingly take part in an unauthorised assembly in Victoria K

Park that night.

L L

M 25. The defendants with him, including the 4 th defendant and the M

13th defendant, each lit a candle at the same time at 6:30pm and stood in 2
N N
rows together facing the press. They showed their support,
O encouragement and participation in the incitement by mirroring each O

other’s actions and then chanting slogans with the 1st defendant. When the
P P
1st defendant chanted “5 demands, not one less” the defendants all raised
Q a hand in unison with him. Q

R R
26. Their assembly at the Water Fountain Plaza was planned and
S timed for full press coverage. The 4 th defendant arrived by himself just S

before this group lineup and press conference. When he arrived he was
T T
nd st
shepherded by the 2 defendant who then called over the 1 defendant to
U U

V V
A A

B B
join them. They and all other defendants facing Charge 1 then gathered in

C
front of the Water Fountain Plaza not long before 6:30pm. What followed C
was the symbolic action of all the defendants lighting a candle and a
D D
speech. The 4th defendant then left at the end of this display of unity as

E the others set off on a slow march into Victoria Park. E

F F
27. The prosecution relies on what the 1st defendant said during
G this speech and prior to this speech to prove his intention to incite others G

to join him and other members of Hong Kong Alliance to flout the Police
H H
ban and enter the football pitches; to participate in an unauthorised
I assembly. I

J J
28. The 13th defendant is next to the 1st defendant during the
K press conference and when he led other defendants as well as a group of K

around 100 people to walk from the Water Fountain Plaza just after the
L L
6:30pm candle lighting ceremony to the football pitches. She, like other
M members of Hong Kong Alliance, was holding a candle as they walked. M

Video footage shows the 1st and 5th defendant, Chan Ho-wun, chanting
N N
slogans such as “5 demands, not one less” and “Hong Kongers, add oil”
O and “Oppose National Security Law”. Other slogans were shouted in O

Victoria Park and can be heard during the viewing of the video footage
P P
including “Liberate Hong Kong, revolution of our times” and “Fight for
Q freedom, stand with Hong Kong”. Q

R R
th
29. The group headed to the football pitches and the 13
S defendant can be seen pushing aside a barrier to facilitate entry into the S

football pitches. They went to football pitch number 6 which is where the
T T
Hong Kong Alliance would normally have erected a platform or a stage
U U

V V
A A

B B
for the annual June 4th vigil. Symbolically they sat down where the stage

C
would have been erected at about 7pm. The 13 th defendant was sat with C
other defendants together.
D D

E 30. The 19th defendant was seen sat with 7 other people in a E

group minutes after the 13th defendant sat down nearby. The 2 groups
F F
were close together and separated by mainly members of the press facing
G the 13th defendant and her group. At that time, because of COVID-19 G

pandemic measures, group gatherings were limited to 8 per group.

H H

I 31. The 19th defendant’s group comprised of 4 other defendants I

who were also later charged with the same offence, taking part in an
J J
unauthorised assembly but were dealt with in another consolidated case,
K DCCC876, 885, 890 and 892/2020. This group are seen sat with lit K

candles in Hong Kong Alliance candle cups. The 19 th defendant and some
L L
others in her group were holding bunches of white flowers.
M M

32. From about that time to 8:30pm when the 1 st defendant

N N
declared the vigil over, the 19th defendant remained in her group which
O was close to the main group of Hong Kong Alliance members. When they O

observed a minute of silence, she stood and observed a minute of silence.

P P
When there was a flower laying ceremony, consisting of white flowers
Q only, members of her group carried over white flowers to the main group Q

and lay them on the ground.

R R

S 33. The prosecution says the 13th and 19th defendants were S

knowingly taking part in an unauthorised assembly together and with

T T
other persons unknown without lawful authority or reasonable excuse.
U U

V V
A A

B B
The prosecution estimates from video footage and screenshots that by the

C
end of the vigil there were 20,000 people on the soccer pitches of Victoria C
Park.
D D

E 34. This unauthorised assembly was a public meeting convened E

and organised for the common purpose of mourning the 31st anniversary
F F
of June 4th Incident. The group through speeches and chants also
G expressed discontent against the Hong Kong Government, the G

Communist Party and its opposition to the National Security Law.

H H

I 35. The prosecution also rely specifically on what was I

undisputedly said by the 13th defendant and 19th defendant either during
J J
interviews, in public or written in their personal Facebook posts to show
K the 13th defendant incited others and both defendants knowingly took part K

in an unauthorised assembly.
L L

M PW1-Superintendant Chow Wing Yee, Josephine M

N N
36. PW1 was the delegated Superintendent by the Commissioner
O of Police to decide whether or not to approve the Hong Kong Alliance O

notification of 23 April 2020. Her evidence was she had to balance the
P P
rights and freedoms of Hong Kongers to hold public meetings but at the
Q same time she had to take into account any issues of public safety, public Q

order as well as the rights and freedoms of others. The pandemic at the
R R
time was very serious and she had to consider its impact on the public and
S the risk of a mass gathering. She examined the data relating to cases and S

deaths in March, April and May 2020.

T T

U U

V V
A A

B B
37. In order to do a risk assessment, she had to look not only at

C
open source information relating to the pandemic but also seek the C
recommendation of the Department of Health. In her view, public safety
D D
covers the lives and health of Hong Kong people. To protect the rights of

E others would also include considering their health. She considered the E

current gazetted prohibitions relating to group gatherings covering the 1st

F F
week of June 2020. Gatherings of more than 8 people at that time would
G have contravened this prohibition regulation under Cap 599. G

H H
38. She explained the reasons behind her decision to issue a
I Letter of Objection and prohibit the public meeting of the Hong Kong I

Alliance, exhibit P4. She took into account that Hong Kong Alliance
J J
could not verbalise what precautionary measures they could effectively
K arrange. During the liaison meeting, she asked this question repeatedly K

but did not get any direct answers. She gave evidence of the discussion
L L
during the liaison meeting. Hong Kong Alliance said they would verbally
M appeal to Hong Kong people to social distance and wear a mask. M

N N
39. PW1 received the recommendation from the Department of
O Health after the liaison meeting. At that time, she had not yet decided to O

issue a Letter of Objection. After she read the opinion from Dr Chen, she
P P
decided to prohibit the public meeting.
Q Q

40. On 4 June 2020 the Police had intelligence and also knew
R R
from news media that Hong Kong Alliance were still intending to hold a
S meeting in Victoria Park despite the Letter of Objection. She decided not S

to deploy police officers inside Victoria Park so as not to inflame

T T
emotions and ongoing tensions between the Police and some of the
U U

V V
A A

B B
public. She had some officers stationed outside in case there were any

C
unexpected incidents. She took into account there were participants in C
Victoria Park who were old, young, disabled and only children. She
D D
explained why she took no enforcement action that evening.

E E

41. In cross examination by Mr Robert Pang SC leading Mr

F F
Jeffrey Tam, Mr Ernie Tung and Mr Joshua Ngai, it was suggested that
G COVID-19 was stable and according to the numbers, waning. In May G

2020, the Government had allowed nightclubs, karaokes, bars and party
H H
rooms to resume business albeit with restraints and conditions. Groups of
I 8 were allowed to sit together in restaurants, up from groups of 4. I

J J
42. It was put to PW1 that she could have imposed conditions on
K Hong Kong Alliance such as mandatory masks and grids marked by chalk K

in Victoria Park to ensure social distancing. She agreed she did not take
L L
the initiative to ask the Department of Health what measures or
M conditions would be required to ensure any risk was mitigated. PW1 said M

she decided if conditions could not achieve public order, public safety
N N
and protect the rights and interests of others then she would prohibit that
O meeting. If those considerations were threatened and they were by O

COVID-19 then she had no choice but to prohibit any mass gathering.
P P

Q 43. It was suggested to her that she had decided to prohibit the Q

public meeting before she sought the advice of the Department of Health
R R
which she denied. She denied that the mention of an appeal by the Hong
S Kong Alliance in the Police memo to the Department of Health meant she S

had already decided.

T T

U U

V V
A A

B B
44. PW1’s answer to that question was that she anticipated an

C
appeal in case the public meeting was prohibited as was usually the case C
and since they are heard very quickly after a decision is given, she wanted
D D
the Department of Health to be ready to provide an expert witness to

E attend an Appeal Board hearing. E

F F
PW2 - Dr Chen Hong
G G

45. This doctor is a consultant with the Department of Health,

H H
the infection-control branch and gave evidence relating to her
I recommendation to the Police, exhibit P3. She was tendered for cross I

examination. At their request, she provided a general statement to the

J J
Police on the risks to public health of a mass gathering taking place at the
K material time. She was asked about the specific risk to public health. She K

explained the reasons behind her recommendation.

L L

M 46. It was her evidence and she agreed that the number of M

COVID-19 cases had slowed down by the end of May 2020; she
N N
attributed it to social distancing being implemented and effective.
O However, she said there were still asymptomatic cases in the community O

and the Department of Health could not locate their origins; they were
P P
worried about a 3rd wave hitting the territory.
Q Q

47. She herself had in the past attended “June 4th vigils” in
R R
Victoria Park and she knew from personal experience what the crowds
S were like. She was of the view that even if all possible precautionary S

measures were implemented she still would not have recommended a

T T
mass gathering proceed. She explained why and the risks that existed.
U U

V V
A A

B B

C
PW3 - Mr Chau Yin Fung C

D D
48. Mr Chau was a manager from the Leisure and Cultural

E Services Department, “LCSD”. As far back as 29 June 2019 his E

Department received an application from Hong Kong Alliance to use the

F F
facilities in Victoria Park for a public meeting from 31 May to 4 June
G 2020. He explained that the Department would not process this type of G

application until 2 to 3 months before the event dates.

H H

I 49. The pandemic meant from early 2020 many of the LCSD I

and Victoria Park facilities were closed including football pitches,

J J
children’s playgrounds, basketball, handball and volleyball courts. These
K facilities were cordoned off by mill barriers and notices explaining that K

COVID-19 had closed those facilities. They were not opened again until
L L
long after 4 June 2020. He told the applicant from Hong Kong Alliance
M that COVID-19 had meant processing of all applications was suspended M

and venues temporarily closed until further notice.

N N

O 50. He was in Victoria Park on 4 June 2020 because he O

anticipated a public meeting going ahead anyway. Security guards were

P P
posted around the facilities that were closed to warn members of the
Q public not to gather in breach of the law. Despite appeals to the public, no Q

one dispersed. Guards were ignored and he could see that crowds invaded
R R
all the football pitches. The crowds dispersed after 11pm and he inspected
S the grounds to find some graffiti on walls and on the surface of the S

pitches relating to June 4th Incident.

T T

U U

V V
A A

B B
PW4 and PW5

C C
51. The last 2 prosecution witnesses were Police Officers. PW4
D D
was in charge of traffic control around Victoria Park in Causeway Bay

E and he decided by late afternoon that the Police had to close off a few E

roads because of the crowds in the area obstructing traffic. Exhibit P52 is
F F
a map showing which roads were closed to vehicles. They became
G pedestrian only areas for safety reasons. They were later reopened at G

9:14pm after the crowds dispersed.

H H

I 52. PW5 was tasked to estimate the crowds that evening and he I

estimated that there were approximately 20,839 people at around 8pm on

J J
all the soccer pitches in Victoria Park. His statement, exhibit P53 was
K read into the record in which he explains his methodology in calculating K

that estimate from sequential screenshots of video footage of the pitches.

L L

M The Defence Case M

N N
The 4th Defendant
O O

53. The 4th defendant is facing only Charge 1 and his case is that
P P
what he said and did in the 15 minutes he was at the Water Fountain
Q Plaza in Victoria Park on 4 June 2020 cannot amount to incitement. What Q

he said or did was not to persuade or encourage another to participate in

R R
an unauthorised assembly. His mere presence as a prominent outspoken
S public figure was insufficient to amount to and prove the elements of S

incitement.
T T

U U

V V
A A

B B
The 13th Defendant

C C
th
54. The 13 defendant elected to give evidence and stressed
D D
several times that as the Vice Chairperson of Hong Kong Alliance, she

E took responsibility and held herself accountable for the speeches and E

actions taken by Hong Kong Alliance irrespective of whether she was the
F F
speaker or not.
G G

55. Her case is that Hong Kong Alliance did not incite others to
H H
participate in an unauthorised assembly because there was no
I unauthorised assembly that night. The proposed meeting was prohibited I

by the Police and no longer existed any more. The Hong Kong Alliance
J J
planned an online vigil but also planned for their own members to hold a
K commemoration in Victoria Park and as long as they did not exceed 50 K

people then they were not breaking the law.

L L

M 56. The 13th defendant gave evidence that once inside in Victoria M

Park she could not see much beyond her own group of 20 to 30 people as
N N
she was surrounded by reporters. She did not know if those people
O outside of her own circle were there because of Hong Kong Alliance or O

for their own reasons. Hong Kong Alliance cannot be held responsible for
P P
however many other people were present at Victoria Park who may have
Q come for their own personal reasons. She could not have stopped others Q

entering the football pitches just as she would not have stopped friends of
R R
th
Hong Kong Alliance such as the 4 defendant appearing or joining them.
S S

57. Hong Kong Alliance had contingency plans ready if the

T T
Commissioner of Police prohibited their meeting. They would hold an
U U

V V
A A

B B
online meeting and appeal to the public to light a candle wherever they

C
were in Hong Kong so that “flowers blossom” all over the territory. They C
would hand out candles to the public for this purpose. She herself was at
D D
a street booth in the afternoon of 4 June 2020 outside Victoria Park

E distributing candles and leaflets. She is heard announcing that Hong E

Kong Alliance members would still enter Victoria Park to commemorate

F F
June 4th Incident.
G G

58. The 13th defendant’s case is simply that there was no

H H
unauthorised meeting that night in Victoria Park therefore she could not
I have knowingly taken part in one. The reasoning was that the notified I

meeting once banned by the Police no longer existed and no one else
J J
applied or notified the Police of another meeting so therefore any meeting
K in Victoria Park that night could not be labelled as unauthorised. They K

were not there physically for a meeting, only to light a candle. Lighting a
L L
candle in Victoria Park in a private gathering of Hong Kong Alliance
M members and friends of less than 50 was not an unauthorised assembly. M

N N
59. She went further and said no authorisation was necessary to
O enter Victoria Park to light a candle. Therefore, she did not knowingly O

take part in an unauthorised meeting because there was no unauthorised

P P
meeting that night.
Q Q

60. The 13th defendant did explain why Hong Kong Alliance
R R
would, in her own words, “of course” choose Victoria Park to light a
S candle because the candlelight vigil had been held there for 30 years. S

Victoria Park had a strong symbolic meaning because it represented a

T T
defiance to authorities and represented resistance to the lies of the regime.
U U

V V
A A

B B
She described themselves as survivors of the 1989 movement and

C
therefore would insist on lighting a candle in Victoria Park. C

D D
61. In cross examination by the prosecution, the 13 th defendant

E agreed that the Alliance was determined to hold the June 4 th vigil E

annually. She said it was their right, their freedom and their plan.
F F

G 62. She agreed that when the 1st defendant gave a speech at G

6:25pm on 4 June 2020 at the Water Fountain, she was stood next to him
H H
and that everyone in the 2 lines were there to support him. She said they
I were not there just to support him but there was “a common action I

amongst us.”
J J

K 63. She agreed that Hong Kong Alliance was encouraged by the K

turnout at Victoria Park because, despite the prohibition by the Police,

L L
people still came out to commemorate 4 June 1989. Even though there
M was no official Hong Kong Alliance event people still chose to come into M

Victoria Park. She said Hong Kong Alliance’s intention was for people to
N N
go everywhere all over Hong Kong as well as Victoria Park.
O O

64. She agrees that she did in the afternoon of 4 June at Great
P P
George Street shout using a loudhailer, telling the public that the
Q candlelight vigil in Victoria Park could not be banned. She explained she Q

meant candle light could not be banned. Lighting a candle was not an
R R
assembly. She explained when she was asking people to join a vigil, she
S was referring to a vigil online for Hong Kongers and a vigil in Victoria S

Park for people in “our circle”.

T T

U U

V V
A A

B B
65. The 13th defendant agreed the Water Fountain press

C
conference attended by the 1st to 13th defendant to light a candle at C
6:30pm was preplanned. A message was sent to the press to notify them
D D
that there was such an arrangement; at 6:30pm there would be a candle

E lighting ceremony and a slow walk into Victoria Park together as a group. E

However, she denied it was a call and incitement to other people to

F F
persist with their right to assembly and come into Victoria Park.
G G

66. The prosecution suggested she left her group after they
H H
arrived at the football pitches and before the commencement of the
I program; she walked around as seen in video footage. She agreed she was I

curious to see how many people had come and said she did see a lot of
J J
people on pitches holding candles but was not sure if they were attending
K a vigil. She suggested they were perhaps there in Victoria Park to join the K

Hong Kong Alliance on-line meeting.

L L

M 67. She disagreed that everything the 1st defendant said and did M

in Victoria Park was directed at those crowds present such as leading

N N
them in song or to observe a minute of silence. She said it was leading or
O directing those participating in an online meeting not everyone in Victoria O

Park.
P P

Q The 19th Defendant Q

R R
th
68. The 19 defendant said she knew that the Police had banned
S the notified meeting of Hong Kong Alliance. She admits she was first at S

Great George Street at a Demosisto party street booth in the afternoon

T T
and then entered Victoria Park football pitch number 6 by about 7pm. She
U U

V V
A A

B B
herself mourned June 4th Incident her own way and was not there for the

C
same reasons as members of the Hong Kong Alliance. She was not a C
political figure but a very ordinary person in Hong Kong. She had
D D
nothing to do with Hong Kong Alliance therefore she was not gathered

E there taking part in a public meeting they had convened or organized if E

they indeed had done so.

F F

G 69. The 19th defendant said she was there that night to resist the G

prohibition of the Police. She was there to resist the authorities. She went
H H
there because she believed the authorities were using the pandemic as an
I excuse. She thought it was wrong that the Hong Kong Alliance had their I

annual event taken away from them. She felt the real purpose behind the
J J
ban was that the Police were trying to scare people from entering Victoria
K Park that night. She had heard Hong Kong Alliance talk about “flowers K

blossoming” across the territory but she thought they were not organising
L L
this at Victoria Park and that no one would go to Victoria Park to
M commemorate and that nothing would be done to commemorate. If she M

had known the crowds in Victoria Park were commemorating June 4 th

N N
Incident, then she would not have gone.
O O

70. When asked in cross examination if she was there to join the
P P
June 4th vigil irrespective of her views on Hong Kong Alliance she said
Q she never mourned 4 June because she disagreed that 4 June needed to be Q

mourned. She thought action needed to be taken to keep alive the

R R
democratic movement of 1989. She believed the spirit of 1989 should
S continue. In any event, she said that she disagreed that there was a vigil in S

Victoria Park there that night and if there were crowds mourning 4 June
T T

U U

V V
A A

B B
in an unauthorised meeting then she had nothing to do with that crowd

C
and did not care what they did. C

D D
71. The 19th defendant was asked if she was not mourning why

E did she take white flowers which are a symbol of mourning into Victoria E

Park and then take them away. She said she wanted to see if she would be
F F
arrested like those in China would be arrested for commemorating or
G mourning the anniversary of 4 June by holding candles and white flowers G

on the street in public. She said there was only one place in the world
H H
where people would be arrested for holding lit candles and flowers on 4
I June and that was in China so she wanted to see if she would also be I

arrested here in Hong Kong.

J J

K 72. What she meant was she was testing the Police and the K

authorities and not mourning the date or incident by being there in

L L
Victoria Park with a lit candle and holding white flowers. In exhibit P40 a
M copy of her personal Facebook page, she posted a photo of herself that M

night at 7:56pm shielding a lit candle and holding white flowers with
N N
others.
O O

73. She said that the proximity of her group of 8 and the group
P P
led by the 1st defendant, Lee Cheuk Yan with other members of the Hong
Q Kong Alliance including the 13th defendant was not close, nor planned Q

and merely a coincidence. She said when she entered Victoria Park she
R R
could not remember who she entered with but they walked to football
S pitch number 6 because she knew that there were many people about to S

enter the park behind them so it would become very crowded. They did
T T
not choose this football pitch or choose to be close to the main group
U U

V V
A A

B B
because this pitch was symbolic for the stage or platform of Hong Kong

C
Alliance being erected there annually. Her actions were not symbolic nor C
a show of solidarity with Hong Kong Alliance and their purpose.
D D

E 74. It was the 19th defendant’s evidence that she did not sing E

songs nor follow the commemoration program as set out by Hong Kong
F F
Alliance. She did not observe a minute of silence although she did stand
G and was silent but only because others around her were silent. She had G

white flowers with her when she entered Victoria Park and sat down in
H H
her group of 8 but has no recollection of what happened to them. She did
I not bring them to lay down to commemorate and participate in a June 4 th I

vigil. She held a candle but says she did not even know how to use the
J J
Hong Kong Alliance candle cup; in fact, she had one but burnt it by
K accident. All this said to show she was not there with Hong Kong K

Alliance but in her own personal capacity and therefore not participating
L L
in an unauthorised assembly if any.
M M

75. In cross examination she was taken through her Facebook

N N
post, exhibit P40 posted whilst still in Victoria Park just before 8pm. She
O posted photographs of herself and of the crowd. She also wrote that it was O

the first June 4th vigil with “no big platform” in 30 years. She referred to
P P
chants as well as songs associated with the June 4 th vigil. She ended her
Q post with this comment “In the first June 4 th vigil with no approval, Q

candlelight still fills the soccer pitches. Hong Kong people, will not allow
R R
our will to be suppressed.”
S S

76. She however disagreed with the certified translation of “no

T T
big platform” as well as the word “vigil”. Even though Hong Kong
U U

V V
A A

B B
Alliance had referred to this being the first vigil in 30 years without their

C
usual stage or platform built on that soccer pitch, she herself was not C
referring to a physical stage but says she meant “decentralised” as used
D D
by scholars in a political sense. She disagreed that her reference to the

E “first June 4th vigil” meant a vigil in the literal sense. She disagreed she E

was referring to the event as a June 4th vigil but explained she meant it
F F
was the meeting notified but not approved by the Police.
G G

77. The 19th defendant agreed she referred to candlelight in her

H H
post and agreed a lot of people were holding lit candles but abstrusely
I said whether this meant it was a candlelight vigil she could not say. She I

clarified this answer and said if she says a vigil did not exist that night
J J
how could she be participating in it; although she lit a candle she was not
K participating in a vigil. She did not know if others were holding a candle K

to participate in a vigil because she could not speak for them.

L L

M 78. The Prosecution, in closing submissions, MFI-12 M

summarised in full both the 13th and 19th defendants’ evidence as well as
N N
the evidence of the prosecution witnesses.
O O

Defence Submissions
P P

Q 79. Mr Pang for the 4th defendant doubts the evidence and Q

particulars for Charge 1 prove Hong Kong Alliance were inciting the
R R
public to attend a candlelight vigil inside Victoria Park on 4 June 2020.
S Their plan made public earlier and repeated at that press conference at the S

Water Fountain was to urge people to take part in an online rally not to
T T
physically gather in Victoria Park. Therefore, the elements of incitement
U U

V V
A A

B B
have not been proved. MFI –13, his closing submissions set out the legal

C
principles and authorities relating to the definition and elements of C
incitement.
D D

E 80. Mr Pang submits that the defendant’s presence and conduct, E

even if he was there to support Hong Kong Alliance was not evidence of
F F
inciting others to commit a specific criminal offence. Even if he was
G supporting Hong Kong Alliance, the subject matter of that press G

conference was an online rally. He himself was not a committee member.

H H
The committee member’s plan to enter Victoria Park themselves was not
I a plan to hold a public assembly. Their plan was not a notifiable meeting I

and therefore “not subject to the notice of prohibition”.

J J

K 81. Mr Cheung for the 13th defendant submits the 13th defendant K

and Hong Kong Alliance disseminated a message that there would be an

L L
online vigil or rally for the public and that the members of Hong Kong
M Alliance would enter Victoria Park physically in their personal capacity M

only. Upon a reading of speeches made and interviews given, there was
N N
no evidence of incitement of others to join them and Charge 1 cannot be
O proved beyond reasonable doubt. O

P P
82. The submission was that their own group by themselves, was
Q not a meeting and therefore not unauthorised. Their group by themselves Q

was not a notifiable meeting for the purposes of complying with

R R
regulations in the POO. If there were other people in Victoria Park other
S than their group, they were not there with Hong Kong Alliance nor were S

they the responsibility of Hong Kong Alliance, therefore, there was no

T T
th
unauthorised meeting for the 13 defendant to knowingly participate in.
U U

V V
A A

B B

C
83. Miss Wong for the 19th defendant says according to the C
definition of a public meeting in section 2 of the POO, the prosecution
D D
have not proved there was any public meeting convened or organised in

E Victoria Park that night. The prosecution had to prove that the E

unauthorised public meeting was the meeting notified to the police and
F F
prohibited.
G G

84. The 19th defendant, however, was not there as part of that
H H
meeting notified but prohibited. She was there for her own personal
I reasons therefore she was not participating in that particular meeting I

prohibited. Her proximity to the other defendants on football pitch no. 6

J J
was irrelevant and insignificant.
K K

85. Even if the Court found that the prohibited meeting of Hong
L L
Kong Alliance was convened and unauthorised, there were other people
M including herself with different views and for a different purpose also M

present in Victoria Park that night. The prosecution cannot prove they
N N
were all there for the one and same prohibited unauthorised meeting. If
O the prosecution cannot prove she was there for that prohibited meeting, O

then the elements of Charge 3 have not been proved. This submission was
P P
also adopted by the 13th defendant.
Q Q

86. In final submissions, the prosecution made it clear that in

R R
relation to Charge 3 the unauthorised assembly particularised does mean
S the Hong Kong Alliance’s public meeting notified but subsequently S

prohibited as well as what was a spontaneous meeting of more than 50

T T
people of which the police were not notified pursuant to the Public Order
U U

V V
A A

B B
Ordinance. The prosecution’s case is that Hong Kong Alliance held and

C
conducted an unauthorised meeting and had always intended to hold one C
regardless of whether or not they had authority to do so.
D D

E 87. The prosecution accepts that there may have been other E

people in Victoria Park that night for their own purposes but their case is
F F
that there was a large unauthorised meeting held by the 1 st defendant of
G Hong Kong Alliance and it was a June 4th vigil. The 13th and 19th G

defendants were by their conduct and proximity to the 1st defendant and
H H
Hong Kong Alliance committee members clearly participating in that
I vigil. I

J J
My Findings
K K

88. As I indicated earlier, I will first determine on the facts

L L
proved if the prosecution has proved beyond reasonable doubt all the
M elements of the offences. They do not fall or stand together. The M

defendants themselves do not fall or stand together.

N N

O 89. I have taken into account that on the date of the offence, 4 O

June 2020, all defendants on trial had clear records. I have considered the
P P
good character directions in relation to both credibility and propensity.
Q Q

90. The 4th defendant elected not to give evidence. That is his
R R
right and no adverse inference can be drawn against him. The fact that he
S did not give evidence proves nothing, one way or the other. It does S

nothing to establish his guilt. However, this means that there is no

T T
evidence from the defence to undermine, contradicted or explained the
U U

V V
A A

B B
evidence presented by the prosecution. I referred myself to Li Defan v

C
HKSAR (2002) 5 HKCFAR 320. C

D D
91. I have considered the oral as well as written submissions of

E the prosecution, MFI-12, the 4th defendant, MFI -13, 13th defendant, MFI E

-14 and the 19th defendant, MFI-15. It is simply not practical in the course
F F
of these Reasons for Verdict for me to attempt to cover every aspect of
G the evidence of the witnesses; to identify individually and discuss every G

argument or submission made by individual counsel for the prosecution

H H
and the defence. That I do not mention a particular piece of evidence,
I transcript, video recording, translation, submission or authority submitted I

does not mean that I have not considered it or factored it into my decision
J J
making.
K K

Charge 1 - the 4th and 13th defendants

L L

M 92. I have considered the elements of the incitement charge and M

legal principles I have been referred to, in particular by Mr Pang. A

N N
person is guilty of incitement to commit an offence if he incites another
O to do or cause to be done an act or acts which, if done, will involve the O

commission of the offence or offences by the other and he intends or

P P
believes that the other, if he acts as incited, shall or will do so with the
Q fault required for the offence or offences. Q

R R
93. It is the prosecution’s case that the unlawful act was to
S participate in an unauthorised public meeting inside Victoria Park on 4 S

June 2020. It is their case that the 1st to 13th defendants incited others
T T
when they gathered to line up at the Water Fountain Plaza at 6:25pm in a
U U

V V
A A

B B
group to face the press together. The video footage, exhibit P21 shows the

C
4th defendant arriving to be greeted by the 1st and 2nd defendants before C
they and other defendants grouped together to light a candle at 6:30pm to
D D
start proceedings.

E E

94. I am sure the 4th defendant arrived when he did for the sole
F F
purpose of or in order to participate in this press conference and candle
G lighting ceremony at 6:30pm. He can be heard suggesting to the 1st G

defendant when they should start lighting candles. He stood with the
H H
group during the 1st defendant’s speech and chanted slogans with them in
I unison. The 4th defendant left as soon as the speeches were over and the I

others began to walk inside Victoria Park.

J J

K 95. Clearly he was there to support Hong Kong Alliance and did K

lend his support to their aim and that was, in my findings, to hold an
L L
unauthorised assembly despite the police ban and incite others to join
M them. He is a prominent public figure known to publicly share similar M

views as Hong Kong Alliance.

N N

O 96. Apple Daily online news ran an interview with the 4 th O

defendant dated 2 June 2020 at 2:20am, exhibit P10, where he is quoted

P P
as saying “if you are not intimidated by them, you should come out and
Q continue to mourn in your own way or at Victoria Park.” He said it was Q

important to light the candle to indicate their refusal to fade into oblivion
R R
on the night of 4 June. He said he would still walk into Victoria Park that
S night to mourn. He makes several references to the significance of S

candlelight on 4 June. This was the day after the widely reported ban by
T T

U U

V V
A A

B B
the police. This gives an indication of why he was present at the Water

C
Fountain on 4 June 2020. C

D D
97. As usual and as anticipated, when the 4th defendant did

E arrive at Victoria Park he was surrounded and followed by photographers E

and reporters. His presence at that press conference was a deliberate act
F F
to rally support for and publicly spotlight the unauthorised assembly that
G followed. He need not use words of incitement to intend to incite others. G

H H
98. He was interviewed later that evening after attending a
I church service to commemorate the date and said he was encouraged and I

inspired by the large turnout of those who did enter Victoria Park that
J J
night. That was immediately after the press conference he attended which
K I find was for the purpose of inciting others without lawful authority or K

reasonable excuse, to knowingly take part in an unauthorised assembly.

L L

M 99. The 13th defendant was the Vice Chair of Hong Kong M

Alliance at the material time. She stood with the 1 st defendant and the
N N
other 11 defendants also charged with inciting to light a candle at
O 6:30pm, to support the 1st defendant whilst he made a speech and chant in O

unison with him after his speech. I have no doubt what was said before
P P
and during this speech showed an intention by Hong Kong Alliance to
Q hold an unauthorised assembly in Victoria Park despite the police ban. Q

There is a transcript of the 1st defendant’s speech at that time which

R R
clearly indicates that Hong Kong Alliance were appealing to people to
S light candles all over the territory but also to come into Victoria Park to S

do the same. He appealed to “friends” to light candles “not only in

T T
Victoria Park but also anywhere” around the territory.
U U

V V
A A

B B

C
100. In fact, what the 1st defendant and other defendants said C
before this press conference and after the vigil was declared at an end
D D
clearly indicated an intention to defy the police ban. As an example, the

E 6th defendant gave a press conference from the Legislative Council, E

exhibit P11, that afternoon which was very inflammatory; he accused the
F F
police, the Government and the LCSD of suppression. He specifically
G says the Hong Kong Alliance will not give in to the Government or the G

police ban. He then referred to going to Victoria Park himself after that
H H
press conference.
I I

101. After the 1st defendant announced the end of the meeting in
J J
Victoria Park he can be heard saying at about 8:40pm that despite the
K police ban “as usual, our candlelight blossoms everywhere at Victoria K

Park”. He made several references to many Hong Kongers lighting

L L
candles with Hong Kong Alliance inside Victoria Park.
M M

102. The 13th defendant handed out candles and leaflets near the
N N
Water Fountain Plaza in Victoria Park before the 6:30pm press
O conference and can be heard at about 5:40pm repeatedly making appeals O

to the public with a microphone to collect a candle whilst making

P P
reference to an online vigil. However, she also made many references to
Q participating in the commemoration vigil that night without mentioning Q

from where. She did make reference to the Hong Kong Alliance going
R R
inside Victoria Park and lighting candles saying they would not let the
S candlelight at Victoria Park extinguish. S

T T

U U

V V
A A

B B
103. A reading of the 13th defendant’s own Facebook post,

C
exhibit P38, clearly makes reference to those that will definitely join her C
in Victoria Park that night. She does not specifically appeal or invite
D D
people to join her but implicitly that intention is there. She signs off with

E “see you tonight”. E

F F
104. I am sure the prosecution has proved beyond reasonable
G doubt from the evidence admitted that what was said and done as a group G

gathered at the Water Fountain Plaza was an intention by the 4th and 13th
H H
defendants and others to unlawfully incited others to knowingly take part
I in an unauthorised assembly in Victoria Park that evening. The elements I

of the offence have been proved.

J J

K 105. The 13th defendant’s evidence was a weak attempt to deflect K

the truth and intention to publicly and openly defy the police ban. The
L L
undisputed and admitted evidence does not support her attempt to try and
M contradict or misrepresent it. I am sure the prosecution can prove beyond M

reasonable doubt that the 4th and 13th defendant committed Charge 1
N N
despite their clear records at that material time.
O O

106. As the offence of incitement is for preventative purposes, an

P P
incomplete or attempted crime is sufficient to amount to incitement.
Q However, in this case I am sure, after considering the evidence and Q

submissions that there was an unauthorised public assembly in Victoria

R R
Park despite an objection to it by the Commissioner of Police.
S S

Charge 3 - the 13th and 19th defendants

T T

U U

V V
A A

B B
107. Both the 13th and 19th defendants face Charge 3. Both admit

C
knowing the Hong Kong Alliance meeting had been banned. Both gave C
evidence why they were in Victoria Park and why they were not part of
D D
any unauthorised assembly. I reject their evidence as frankly nonsensical.

E They were both at times evasive and abstruse for the purposes of being E

provocative and argumentative. I repeat, even the admitted facts do not

F F
support the evidence given by either defendant. Their evidence was a
G poor attempt to either negate or repudiate evidence that was G

overwhelming and undisputed.

H H

I 108. I find an unauthorised assembly was held by Hong Kong I

Alliance who announced in advance they would still be proceeding into

J J
Victoria Park to hold a vigil despite the police ban. From the evidence of
K news footage, it is clear that many people followed them in. Barriers were K

torn down around the football pitches and they were occupied by
L L
thousands of people. By 8pm there were an estimated 20,000 people.
M M

109. So much of what the 1st defendant did, with the 13th
N N
defendant beside him showed that they intended to hold a candlelight
O vigil and commemorate the date. So much of what he said showed that O

they knew there were many people in Victoria Park with them and for the
P P
same reason. He referred to “friends” in Victoria Park and “friends
Q behind him” and “friends here”. When he appealed to “friends here” to Q

observe a minute of silence, it is quite clear from the news footage that
R R
many people did observe a minute of silence. He referred to them
S occupying the whole Victoria Park to continue to commemorate. He S

shouted many slogans that were repeated at volume.

T T

U U

V V
A A

B B
110. The 13th defendant can be seen at 7:40pm before the program

C
started walking around the football pitches with another person weaving C
amongst groups of people sat on the ground. Her evidence that she could
D D
not see or hear beyond her own group was clearly an attempt to evade

E questions about the many thousands of people in Victoria Park and on the E

pitches.
F F

G 111. I also reject the 19th defendant’s evidence that she was there G

for her own purpose and definitely not there to commemorate the date
H H
with Hong Kong Alliance. I reject the submission that she did not come
I within the meaning or interpretation or definition of “meeting” as set out I

in section 2 of the POO.

J J

K 112. Taking into account the facts agreed, the news footage of the K

19th defendant’s movements, actions and position inside Victoria Park in

L L
relation to her proximity to the Hong Kong Alliance committee members,
M her Facebook post including photos attached, as well as her carrying a M

bunch of white flowers and a lit candle, I am sure she was there to
N N
commemorate the date, participate in the vigil as planned by Hong Kong
O Alliance as well as protest against the police ban. The reality was, any O

intention to come out and participate in the candlelight vigil in Victoria

P P
Park that night was an act of defiance and protest against the police.
Q Q

113. At 7:56pm that evening, whilst sat on a football pitch inside

R R
Victoria Park very close to the Hong Kong Alliance group, she posted
S photographs and a comment on her Facebook page. She referred to what S

was going on in Victoria Park as “first June 4 th vigil with “no big
T T
platform” in 30 years”. She referred to the “flowers of freedom” song
U U

V V
A A

B B
played which is known to be associated with this vigil. She mentioned

C
chants of “Liberate Hong Kong, revolution of our times” associated with C
the social unrest from 2019. She ended her post with “today, in times of
D D
the National Security Law, mourning is resisting. In the first June 4 th vigil

E with no approval, candlelight still fills the soccer pitches. Hong Kong E

people, will not allow our will to be suppressed”.

F F

G 114. This post is accompanied by a photograph of her stood next G

to another with both cradling a bunch of white flowers as well as holding

H H
a lit candle in a Hong Kong Alliance candle cup. Both are shielding the
I candle to prevent it extinguishing. I

J J
115. The 19th defendant objected to the certified translation of
K “vigil” and “big platform” however, I find no fault in the certification as K

confirmed by my qualified interpreter. She said she put quotations around

L L
“no big platform” to indicate she meant decentralised in the political
M sense. Even if that was her intention behind the quote, a plain and literal M

reading of the rest of the post indicates she was participating in the
N N
banned June 4th vigil by holding a candle amongst enough other people to
O fill all the football pitches. Her evidence that despite her reference to O

candlelight she did not know if all those people holding candles were
P P
participating in the June 4th vigil is neither here nor there; I am sure that
Q the majority were there for that reason. Q

R R
116. Much was made of the statutory definition of “meeting” and
S that it was incapable of covering “decentralised” political actions which S

were not organised or convened by one particular organiser but

T T
spontaneous and self-initiated by individuals. I can deal shortly with this
U U

V V
A A

B B
submission; I am sure from the evidence proved by the prosecution that

C
the 19th defendant was indeed knowingly participating in an unauthorised C
assembly intentionally held by Hong Kong Alliance.
D D

E 117. I am sure there was a public meeting that night in Victoria E

Park that was subject to an objection by the Commissioner of Police

F F
which became an unauthorised assembly. I am sure the prosecution can
G prove beyond reasonable doubt from the evidence proved and admitted G

that both the 13th and 19th defendants were knowingly taking part in that
H H
unauthorised assembly which took place in contravention of section 7 of
I the POO, which was an unauthorised assembly by virtue of section I

17A(2)(a) of the same Ordinance. All the elements of charge 3 are

J J
proved.
K K

118. In conclusion, I find the 4th and 13th defendants both guilty of
L L
Charge 1 and the 13th and 19th defendants both guilty of Charge 3.
M M

Constitutional Challenges
N N

O 119. On 1 September 2021 as directed, the 4th defendant filed O

written submissions on his systemic constitutional challenge whilst the

P P
13th defendant by letter from her solicitors raised certain issues relating to
Q the decision of the Commissioner of Police and submitted that to impose Q

criminal liability on a peaceful demonstration is a disproportionate

R R
restriction of a defendant’s right to freedom of assembly, demonstration
S and speech. The 19th defendant indicated she adopted both their S

submissions.
T T

U U

V V
A A

B B
Systemic Proportionality Challenge

C C
th
120. The systemic constitutional challenge raised by the 4
D D
defendant was raised by him in a recent “unauthorised assembly” case,

E HKSAR v Lai Chi Ying and others, [2021] HKDC 398. In that case there E

was a systemic challenge by the 4th defendant to the constitutionality of

F F
section 17A(3)(a) and section 17A(3)(b)(i) of the POO.
G G

121. In this case, the same challenge is raised as to whether

H H
criminalising the participation of an unauthorised assembly as provided
I for in section 17A (3) amounts to a disproportionate restriction on the I

right of freedom of assembly and procession protected under Article 27

J J
of the Basic Law and Article 17 of the Hong Kong Bill of Rights
K Ordinance, Cap 383 which corresponds to Article 21 of the International K

Covenant on Civil and Political Rights.

L L

M 122. The 4th defendant submits that section 17A (3) should be M

struck down as unconstitutional as it fails to satisfy the proportionality

N N
analysis. If the predicate offence is found to be unconstitutional, the 4 th
O defendant cannot therefore be guilty of incitement to commit an O

unconstitutional offence. All defendants submit that to impose criminal

P P
sanctions for participation in a peaceful unauthorised assembly would
Q disproportionately restrict the right to freedom of assembly. Q

R R
th
123. The 4 defendant also submits that the maximum term of
S imprisonment of 5 years that could be imposed for a breach is too severe; S

so severe it is disproportionate. So severe it has a chilling effect on those

T T
that wish to exercise their right to freedom of assembly.
U U

V V
A A

B B

C
124. The 13th defendant challenges the decision of the C
th
Commissioner of Police. She submits the prohibition of the June 4 vigil
D D
on the grounds of public health was neither prescribed by law nor

E proportionate; therefore, ultra vires and unconstitutional. The prohibition E

of the public meeting on the grounds of public health is not prescribed by

F F
law nor derived from authority provided for by section 9 (1) of the POO.
G G

125. Section 9 (1) provides that the Commissioner of Police may

H H
prohibit the holding of any public meeting notified under section 8 where
I he reasonably considers such prohibition to be necessary in the interests I

of national security or public safety, public order or the protection of the

J J
rights and freedoms of others.
K K

126. At the same time, it was submitted that alternatives to a

L L
complete ban had not been considered; a complete ban was a
M disproportionate restriction. There was a failure on the part of the M

Commissioner of Police who had a positive duty to facilitate peaceful

N N
assemblies.
O O

127. The 13th defendant also submits the prohibition of the public
P P
meeting was politically motivated as was the subsequent arrest and
Q prosecution of the 13th defendant. The aim was to eliminate dissenting Q

voices and opposition leaders as well as suppress the memory of the June
R R
th
4 Incident. This was not put to any witness.
S S

128. Courts recognise certain constitutional guaranteed rights are

T T
absolute and never subject to a proportionality analysis. Where
U U

V V
A A

B B
guaranteed rights are not absolute, the law can create restrictions limiting

C
such rights. Courts can question those restrictions and it will do so by C
subjecting them to a proportionality analysis.
D D

E 129. For the sake of brevity and because the argument is identical E

I adopt my reasons and findings from Lai Chee Ying and others 2021. I
F F
found I was bound by precedent and there were no grounds for a
G constitutional systemic challenge to section 17A (3) on the ground that G

this challenge was precluded by the authority of Leung Kwok Hung v

H H
HKSAR (2005) 8 HKCFAR 229. That decision held the notification
I scheme under the POO was constitutional, including section 17A. That I

offence creating section must have been in the purview of the Court of
J J
Final Appeal and I was bound by it.
K K

130. I adopt my paragraphs 216 to 253 and 260 to 282 in Lai

L L
Chee Ying and others 2021. I found then and I find again here in this case
M no grounds to challenge the imposition of criminal sanctions nor the M

provision of sanctions itself.

N N

O 131. Accordingly, this challenge on a systemic level fails and I O

find that the subject offence under section 17A (3) is constitutional.
P P
This
Q Is Public Health Part of Public Safety? Q

R R
th
132. The 13 defendant submits that the decision to prohibit the
S public meeting was based on public health grounds as a result of the S

pandemic arising from COVID-19. Since public health has nothing to do

T T
with national security or public safety, public order or the protection of
U U

V V
A A

B B
the rights and freedoms of others then the decision must be ultra vires and

C
not prescribed by law. C

D D
133. The prosecution’s case was that in the context of the POO,

E the concept of public safety would include the risks and threats posed to E

the lives, physical integrity or health of the public. Equally, the concept
F F
of protecting the rights and freedoms of others would include the same.
G G

134. COVID-19 was declared a pandemic in March 2020. The

H H
pandemic is an epidemic of an infectious disease that has spread
I worldwide and affected millions of people. In Dr Chen’s memo to the I

police she points out there is ample evidence that mass gatherings can
J J
amplify the spread of infectious diseases. COVID-19, a threat in the form
K of a pandemic, was a different threat to public order, public safety and the K

protection of the rights and freedoms of others from, for example, certain
L L
violence and destruction arising from serious social unrest but
M nonetheless still a threat. M

N N
135. Clearly it was prudent of the Police to seek the advice of the
O Department of Health as to their view of mass gathering events at that O

material time. A situation that affects the safety of Hong Kongers as well
P P
as their rights and freedoms to be protected from a pandemic must be
Q considered by the Commissioner of Police. In fact, he would be negligent Q

to ignore a pandemic and the advice of the Department of Health. I find

R R
th
there is no basis for the 13 defendant to argue that the Commissioner of
S Police’s decision to prohibit the public meeting notified was not S

prescribed by law.
T T

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A A

B B
Operational Proportionality challenge

C C
136. All defendants challenge the merits of the decision of the
D D
Commissioner of Police. It was submitted that on an operational level, the

E Police had unnecessarily prohibited the public meeting and the E

unnecessary prohibition had the effect of disproportionately encroaching

F F
on the right and freedom of assembly.
G G

137. It was also submitted that to later arrest, prosecute and

H H
possibly convict and sentence the defendants for either inciting peaceful
I assembly or taking part in one is in violation of and disproportionate to I

the constitutional guarantees and rights of those defendants. This violates

J J
the principle of tolerance and proportionality on an operational level.
K K

138. The defendants point out that the pandemic was not severe at
L L
the material time, the number of cases of COVID-19 were decreasing at
M the material time and therefore the decision to prohibit the public meeting M

was disproportionate.
N N

O 139. The defence also submits that the Police should have O

explored and proposed precautionary conditions for the organisers to

P P
implement so as to facilitate the public meeting and the exercise of the
Q defendants’ constitutional rights to freedom of peaceful assembly. Q

R R
140. The prosecution argues that it is not open to any of the
S defendants to challenge the merits of the decision of the Commissioner of S

Police in a criminal trial. That should have been resolved by an appeal to

T T

U U

V V
A A

B B
the Appeal Board or a Judicial Review. Moreover, that decision itself is

C
not an essential element of the subject offence under section 17A (3). C

D D
141. The prosecution submits that there are in fact, no arguable

E grounds for a challenge on an operational level. I have referred myself the E

Court of Appeal in Leung Kwok Hung v Secretary for Justice (No. 2)

F F
(2020) 2 HKLRD 771 which I believe lays down guidelines for an
G operational challenge. G

H H
142. An operational proportionality challenge was raised in Lai
I Chee Ying and others 2021 and I rely on my decision there and quote I

myself from paragraph 285,

J J

K “285. …in the lead up to these guidelines the Court of K

Appeal (in Leung Kwok Hung (No. 2) 2020) first considered
L relevant authorities on the permissible restrictions on the L

fundamental rights of demonstration and expression.

M M

286. That prohibition on Face Covering Regulation

N N
came into being because, as the Court of Appeal observed
O “since June 2019, Hong Kong has experienced serious social O

unrests and public disorder marked by protests, escalating

P P
violence, vandalisms and arson across the territory. It is a dire
situation that has not been seen in the last 50 years.” Paragraph
Q Q
1.

R R
287. The Court of Appeal made it clear when either
S measures that interfered with freedom of assembly or S

enforcement action taken by authorities were to be subject to a

T T
proportionality requirement then, that proportionality analysis

U U

V V
A A

B has to be applied on 2 different levels. I quote the paragraphs B

identified as the guidelines;

C C

D “182. Thus, the proportionality analysis has to D

be applied on 2 different levels:
E (1) examining the systemic proportionality by E

reference to the legislation or rules in question;

F F
(2) examining the operational proportionality by
reference to the actual implementation or enforcement of the
G G
relevant rule on the facts and specific circumstances of a case
H at the operational level. H

I 183. In these appeals, it should be emphasised I

that we are only concerned with the first level of challenges. It

J J
remains for the court to assess the proportionality on the
second level on the facts and circumstances in a particular case
K K
if a charge is brought against a person.
L L

184. The Strasbourg Court continued at (155) –

M M
(157) in Kudrevicious v Lithuania to identify the need to have
measures to restrict conducts causing disruption to ordinary life
N N
to a degree exceeding that which is inevitable for peaceful

O demonstration and assembly. At (155), the Court alluded to 2 O

important mindsets for striking the balance:
P (1) on the one hand, the public authorities have to P

show a degree of tolerance;

Q Q
(2) on the other hand, demonstrators should comply
with the regulations in force.”
R R

S 288. The operational challenge is explained at para 182(2). S

What is to be operationally proportional is the actual
implementation or enforcement if there is any, on the facts and
T specific circumstances of a case. This must be read in T

U U

V V
A A

B conjunction with paragraph 181 and the Court of Appeal B

references to Kudrevicius v Lithuania (2016) 62 EHRR 34.
C C
289. In para 181, it refers to a scenario when a
demonstration has not been authorised. It summarises some
D general observations from Kudrevicius; D

“181. ...Whilst acknowledging that it is essential to

E E
have a system of prior notification, the absence of prior
authorisation does not give carte blanche to the authorities in
F taking enforcement actions. Such actions would still be subject F
to proportionality requirement. The Court highlighted that
though there could be special circumstances which justify the
G G
holding of spontaneous demonstrations without prior
notification, such exception must not be extended to the point
H where the absence of prior notification of a spontaneous H
demonstration can never be a legitimate basis for crowd
dispersal.”
I I
290. In my view, the Court of Appeal is referring to
J
enforcement action against a demonstration on the day, here J
with specific reference in the last line to crowd dispersal.
Public authorities have to show a degree of tolerance in what
K action they decide to take at the time. Some level of disruption K
can be inevitable in any demonstration so just that fact alone
does not justify an interference with the right to freedom of
L L
assembly hence, a tolerant approach is required.”

M M
143. Indisputably, on 4 June 2020 the Police took no enforcement
N N
action. PW1 gave her reasons for this decision. There was no restriction

O therefore upon the exercise by any defendant of their rights or freedom of O

procession and freedom of assembly that day. There is nothing to subject
P P
to an operational proportionality challenge. However, it does not follow
Q that there cannot or will not be any action taken later by the authorities in Q

the form of arrests and prosecutions.

R R

S 144. The decision to prosecute remains the sole authority of the S

Department of Justice according to the Basic Law; there were no grounds

T T
raised to justify an interference with that decision.
U U

V V
A A

B B

C
145. I adopt what I said from paragraph 291 to 310 in that same C
case, Lai Chee Ying and others 2021. For the sake of brevity again, I will
D D
not repeat my reasons. I am sure the Court of Appeal did not mean in

E Leung Kwok Hung (No.2) 2020 at paragraph 183 that a charge or the E

decision to prosecute is open to an operational proportionality challenge

F F
and the decision to prosecute should be examined.
G G

146. In Leung Kwok Hung (No.2) 2020 no criminal charge or

H H
conviction was the subject of that appeal therefore, they were only
I concerned with the 1st level of challenge and that was a proportionality I

analysis examining the systemic proportionality by reference to the

J J
legislation or rules in question. The court would only examine the 2 nd
K level, the operational proportionality if charges are brought against a K

person which was not the situation in that appeal. Hence, their remark
L L
that it remains for the court in another case to assess the proportionality
M on the 2nd level on the facts and circumstances when a charge is brought M

against a person.
N N

O 147. I agree with the prosecution’s submission that there are no O

matters relied on by the defendants that constitute arguable grounds for

P P
an operational proportionality challenge. I agree with the interpretation
Q that any subsequent arrest and decision to prosecute are not matters to be Q

subject to that challenge.

R R

S 148. In paragraphs 302 to 310 in Lai Chee Ying and others 2021 I S

dealt with the same submission as here that the decision to arrest and
T T
decision to prosecute the defendants should be subject to a proportionality
U U

V V
A A

B B
analysis. The systemic challenge has failed and the relevant sections

C
constitutional. The subsequent arrest of the defendants was therefore C
lawful. If the propriety and lawfulness of an arrest is questioned, that will
D D
be dealt with on the facts during the course of the criminal trial and not

E by a constitutional challenge. The same principle applies to the E

submission that a conviction would be disproportionate.

F F

G 149. The 4th defendant has relied on a recent appeal from the G

Supreme Court of the United Kingdom, Director of Public Prosecutions

H H
v Ziegler (2021) 3 WLR 179 a case concerning the obstruction of roads
I and highways. There the Court considered the conduct and intention of I

the appellants in an evaluation of proportionality. Did their actions cause

J J
or prevent disorder; was the conduct reasonable. A defence was raised in
K that authority. K

L L
150. I have considered that authority and find I can distinguish it
M because the nature of those charges in that authority were very different M

from the offences under section 17A of the Public Order Ordinance. I
N N
also made a similar distinction in Lai Chee Ying and others 2021 and I
O adopt my paragraphs 263 and 264. O

P P
Merits of the Decision of the Commissioner of Police
Q Q

151. The 4th defendant challenges the reasonableness of the

R R
decision of the Commissioner of Police in banning the public meeting. In
S final submissions it is stated that he accepts that whether the S

Commissioner was right or wrong in objecting to the public meeting

T T
cannot be challenged as laid down by the decision of Leung Kwok Hung
U U

V V
A A

B B
2005. He goes on to say however, the reasonableness of that decision is a

C
relevant consideration for this Court when considering whether a C
conviction is a justifiable infringement on the constitutional rights,
D D
paragraph 34 of MFI-13.

E E

152. Much was made of the police memo to the Department of

F F
Health. Much was made of the evidence and opinion of Dr Chen as well
G as the statistics as to the number of COVID cases in January to May 2020 G

referred to in exhibit D2.

H H

I 153. Mr Pang for the 4th defendant says that he would have been I

unable to appeal to the Appeal Board after the Letter of Objection from
J J
the Commissioner of Police because the 4th defendant had no locus standi.
K Similarly, the same would apply to the 4th defendant launching a Judicial K

Review. Mr Pang says that his only recourse in challenging the merits of
L L
that decision is during the criminal trial and in his defence of Charge 1.
M M

154. The prosecution’s position is that to argue the merits of the

N N
decision to prohibit the public meeting or to deny that COVID-19 was the
O real reason behind the decision are not constitutional challenges on the O

subject offence on either a systemic or operational level. I agree with this

P P
position.
Q Q

155. It is not open to the defendants to challenge to the merits of

R R
the decision during the trial. Firstly, the issue should have been resolved
S by the Appeal Board according to the statutory mechanism for aggrieved S

parties and then a Judicial Review.

T T

U U

V V
A A

B B
156. The prosecution’s case is that, in any event, on a true

C
construction of the POO, the validity and merits of the Commissioner’s C
decision is not an essential element of the subject offence under section
D D
17A (3) and therefore, it is unnecessary for this Court to consider. I also

E agree with this position. E

F F
157. I was referred to an authority for the proposition that it was
G not open to a defendant in a criminal trial to challenge the validity of a G

statutory or regulatory order unless there were no other avenues available

H H
to him to appeal the order, HKSAR v Sky Wide Development Ltd (2013) 1
I HKLRD 613. In that authority the defendants challenged the validity of a I

building demolition order during their trial when the Buildings Ordinance
J J
provided a statutory mechanism for an avenue for appeal which was not
K utilised. K

L L
158. It would make no sense if only those named in the
M Notification submitted under the POO could appeal to the Appeal Board M

yet the 4th defendant, being someone who incited others to participate in
N N
an unauthorised assembly was able to effectively appeal it during a
O criminal trial instead. O

P P
159. After considering submissions from both the defence and the
Q prosecution, I do not find it open to the 4 th defendant in this trial to Q

challenge the merits of the decision of the Commissioner of Police. It is

R R
not relevant to the elements of either Charge 1 or Charge 3. It is
S unnecessary for the purposes of this trial to determine whether the ban of S

the public meeting was justified, reasonable or proportionate.

T T

U U

V V
A A

B B
160. However, I will add that even if it was relevant and I should

C
consider the merits of the decision then I would, without hesitation, rule C
against the defence. The Department of Health’s opinion and
D D
recommendation was very clear. The numbers of COVID cases from

E April 2020 had decreased because Dr Chen contributed that to the E

concerted efforts of the whole community in maintaining social

F F
distancing amongst other effective measures. That did not mean Hong
G Kongers were safe from COVID-19. G

H 161. I would have given weight to Dr Chen’s evidence that even H

if all possible precautionary measures were implemented in Victoria Park

I I
during a public meeting of between 50,000 and 100,000 people, she
J would still be of the same professional opinion that a mass gathering of J

that nature of which she had had prior personal experience, would be a
K K
risk to public health at that material time.
L L

Conclusion
M M

N 162. After a careful consideration of the submissions, I find no N

O
matters raised by any of the defendants can constitute arguable grounds O
for an operational proportionality challenge. Accordingly, the
P P
constitutional challenge of section 17A (3) of the Public Order Ordinance

Q
on an operational level must fail. Both constitutional challenges on the Q
systemic and operational level have failed.
R R

S Summary S

T T

U U

V V
A A

B B
163. I have found after trial the prosecution able to prove beyond

C
reasonable doubt that on 4 June 2020, the 4th and 13th defendants together C
with others unlawfully incited other persons to that lawful authority or
D D
reasonable excuse, knowingly take part in a public meeting which was an

E unauthorised assembly. E

F F
164. I have also found after trial the prosecution able to prove
G beyond reasonable doubt that on the same day the 13th and 19th defendants G

knowingly took part in an unauthorised assembly as defined in section

H H
17A(2)(a) of POO in Victoria Park without lawful authority or reasonable
I excuse. I

J J
165. I did go on to consider constitutional challenges. The
K systemic challenge failed for the sole reason that this Court is bound by K

the decision made by the Court of Final Appeal in Leung Kwok Hung
L L
2005. The constitutionality of section 17A was decided in that authority
M and a binding precedent. M

N N
166. Similarly, I found the operational challenge failed for the
O sole reason that there were no matters relied upon by the defendants that O

could constitute good and arguable grounds for an operational

P P
proportionality analysis as envisaged by the Court of Appeal in Leung
Q Kwok Hung (No. 2) 2020. Q

R R
167. Accordingly, and despite the clear records of all 3
S defendants, I find the 4th and 13th defendants guilty of Charge 1. I find the S

13th and 19th defendants guilty of Charge 3.

T T

U U

V V
A A

B B

C C

D D
(A J Woodcock)

E District Judge E

F F

G G

H H

I I

J J

K K

L L

M M

N N

O O

P P

Q Q

R R

S S

T T

U U

V V