SECRETARY FOR JUSTICE v. LAW WAI YAN

HCMP 2917 2922/2015, 2924 - 2932/2015 & 575/2018 (Heard together) [2018] HKCFI 2396 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NOs 2917 to 2922, 2924 to 2932 OF 2015 AND 575 OF 2018 _________________ IN THE MATTER of an application by the Secretary for Justice for leave to apply for an Order of Committal and IN THE MATTER of civil proceedings in HCA 2086/2014 _________________ BETWEEN SECRETARY FOR JUSTICE Applicant and SIEW YUN LONG Respondent in HCMP 2917/2015 (蕭雲龍) MAN FOR ON Respondent in HCMP 2918/2015 (文伙安) LAI YU SING Respondent in HCMP 2919/2015 (黎宇聲) LAW WAI YAN Respondent in HCMP 2920/2015 (羅慧茵) CHAN JEFFREY Respondent in HCMP 2921/2015 (陳子勳) & HCMP 575/2018 CHAN WAI FUNG Respondent in HCMP 2922/2015 (陳瑋鋒) CHU SUI YING Respondent in HCMP 2924/2015 (朱瑞英) YUNG YIU SING Respondent in HCMP 2925/2015 (翁耀聲) WONG KA YEE Respondent in HCMP 2926/2015 (黃嘉義) KONG KAM TO Respondent in HCMP 2927/2015 (江金桃) CHAN AO TIEN Respondent in HCMP 2928/2015 (陳遨天) CHAN PAK TAO Respondent in HCMP 2929/2015 (陳柏陶) CHAN WING WAH Respondent in HCMP 2930/2015 (陳榮華) LOU TIT MAN Respondent in HCMP 2931/2015 (劉鐵民) LEUNG HON LAM Respondent in HCMP 2932/2015 (梁翰林) _________________ (Heard together) Before: Hon Andrew Chan J in Court Dates of Hearing: 15, 18, 23, 28, 29, 30 and 31 May 2018; and 4, 5, 6, 13 and 25 June 2018; and 11, 12 and 13 September 2018 Date of Sentence: 26 October 2018 Date of Reasons for Sentence: 26 October 2018 REASONS FOR SENTENCE HCMP 2917/2015 Siew Yun Long The respondent in this case Mr ‍Siew Yun Long was at the material time 29 and has been working as a freelance documentary photographer since 2014. He was found guilty after trial. His acts and conducts on the material day had been described in my judgment handed down on 31 August 2018 to which I shall not repeat. Essentially Mr Siew was found to be present in the Area for an extended period of time, from 9:57 am to 3:10 pm. Apart from taking photographs and staging in the protest, he was not seen to be involved in any other activities. Mr Siew was not affiliated to any political party. He also enjoys a clear record. Given the limited role Mr ‍Siew played on the material day, a suspended sentence combined with a fine will be sufficient in his case. In view of the fact that Mr Siew was found guilty after trial, he will be fined a sum of $15,000 and given an imprisonment term of 6 weeks but suspended for 12 months. Mr Siew will have 3 months to pay the sum. In default, he will go to prison for 6 weeks. The effect of the sentence being suspended is that if Mr Siew during the suspension period, commits any offences which involve a breach of the peace, the 6 weeks’ custodial sentence imposed today may be activated and that he may be liable to serve the 6 weeks’ sentence. Hopefully, this serves as a sufficient deterrence. The effect of the sentence being suspended also applies to other respondents who are similarly given a suspended sentence below. HCMP 2918/2015 Man For On The respondent in this case Mr ‍Man For On was 53 at the material time and is currently unemployed. He worked as a skilled worker before June 2018. Mr Man has no political affiliation and enjoys a clear record. He was found guilty after trial. His acts and conducts on the material day had been described in my judgment handed down on 31 August 2018. In Mr Man’s case, he was found to be present in the Area for approximately 20 minutes, shortly before his arrest by the police. Apart from refusing to leave the Area, Mr Man was not involved in the organisation of the protest. He also did not struggle with the police when being arrested. Given the limited role Mr ‍Man played, a suspended sentence combined with a fine will be sufficient in his case. Since Mr Man was found guilty after trial, he will be fined a sum of $15,000 and given an imprisonment term of 6 weeks but suspended for 12 months. Mr Man will have 6 months to pay the sum. In default, he will go to prison for 6 weeks. HCMP 2919/2015 Lai Yu Sing The respondent in this case Mr ‍Lai Yu Sing was in his mid50s and a salesman at the material time. He left his employment soon after his arrest by the police. He has been living on his savings since then. Mr Lai admitted his liability. He was found to be present in the Area shortly before his arrest despite repeated warnings given. Apart from refusing to leave the Area, Mr Lai was not involved in the organisation of the protest. He was not affiliated to any political party and has a clear record. Given the limited role played by Mr Lai, he will be fined a sum of $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Mr Lai will have 6 months to pay the sum. In default, he will go to prison for 1 month. HCMP 2920/2015 Law Wai Yan The respondent in this case Ms ‍Law Wai Yan was 25 and worked in the media industry at the material time. She left the industry in 2017 and is now working as a chef in London. Her average monthly income after tax is HK$13,000. Ms Law admitted her liability. She was found to be present in the Area shortly after 12 noon and between 2 pm and 3 pm before her arrest. Other than refusing to leave the Area, Ms Law was not involved in the organisation of the protest. She did not resort to any violence or struggle with the police. Ms Law has a clear record and was not affiliated to any political organisation. Given the limited role played by Ms Law, she will be fined a sum of $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Ms Law will have 3 months to pay the fine. In default, she will go to prison for 1 month. HCMP 2921/2015 and HCMP 575/2018 Chan Jeffrey The respondent in this case Mr ‍Chan Jeffrey was at the material time 42 and is currently a recipient of comprehensive social benefits due to his mental conditions. Mr Chan admitted his liability. He was found to be present in the Area between 10:10 am and 3:05 pm. Apart from taking photographs and videos and refusing to leave the Area, Mr Chan was not engaged in any other activities. He has a clear record and was not affiliated to any political organisation. He was not involved in the organisation of the protest. Given the limited role played by Mr Chan and his personal circumstances, he will be given an imprisonment term of 1 month but suspended for 12 months with no additional financial penalty. HCMP 2922/2015 Chan Wai Fung The respondent in this case Mr ‍Chan Wai Fung was 17 and a student at the material time. Currently he is working as a waiter on parttime basis, making several thousand dollars a month. Mr Chan admitted his liability. He was found to be present in the Area shortly before his arrest. Mr Chan was not affiliated to any political party and has a clear record. He was also not involved in the organisation of the protest. Given the limited role played by Mr Chan, he will be fined $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Mr Chan will have 6 months to pay the sum. In default, he will go to prison for 1 month. HCMP 2924/2015 Chu Sui Ying The respondent in this case Ms Chu Sui Ying was 41 and a social worker at the material time. Currently she is unemployed but actively looking for jobs in the social service industry. Ms Chu admitted her liability. She was found to be present in the Area between 11:47 am and 3:10 pm. Whilst being present in the Area, she spoke to the crowd and questioned the involvement and / or the legality of the police in the clearance operation. Essentially Ms Chu challenged the authority of the police and refused to leave the Area despite being asked to do so on a number of occasions. Having said that, Ms Chu did not resort to any violence. Nor did she put up any resistance when being arrested by the police. Ms Chu was not affiliated to any political party and has a clear record. Given the limited role played by Ms Chu, she will be fined $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Ms Chu will have 6 months to pay the sum. In default, she will go to prison for 1 month. HCMP 2925/2015 Yung Yiu Sing The respondent in this case Mr Yung Yiu Sing was 19 and a social work student of the Hong Kong College of Technology at the material time. He now works for a non-governmental organisation as an officer on a parttime basis, earning $4,000 a month on average. He was found guilty after trial. Mr Yung was found to be present in the Area between 9:54 am and 3:10 pm. He was seen holding a loudhailer and assisting others to make broadcast to the crowd throughout the day. Mr Yung has a clear record and was not affiliated to any political party. In mitigation, it was submitted that the T-shirt Mr Yung wore was designed by the Social Work Department of his college whereas the loudhailer was on loan from the Hong Kong Federation of Students. The role played by Mr Yung was not confined to mere presence. He assisted others in making broadcast to the crowd which in turn caused wholly unnecessary delay in the clearance operation. It is however accepted that when being arrested, Mr Yung did not put up any resistance. Bearing in mind the sentences imposed on others who had committed similar activities, Mr Yung will be fined $15,000 and given an imprisonment term of 2 months but suspended for 18 months. Because of his limited financial resources, Mr Yung will have 10 months to pay the sum. In default, he will go to prison for 2 months. HCMP 2926/2015 Wong Ka Yee The respondent in this case Ms Wong Ka Yee was 53 at the material time and presently works as an osteochiropractic manipulative provider on part-time basis. She manages to make several thousands each month. Ms Wong admitted her liability. She was found to be present in the Area between 2:38 pm and 3:09 pm. She also has a clear record and was not affiliated to any political organisation. Ms Wong was also not involved in the organisation of the protest. Given the limited role played by Ms Wong, she will be fined $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Ms Wong will have 6 months to pay for the sum. In default, she will go to prison for 1 month. HCMP 2927/2015 Kong Kam To The respondent in this case Ms ‍Kong Kam To was 52 and a housewife at the material time. Ms Kong lives on her daughter’s $4,000 contribution each month. Ms Kong admitted her liability. She was found to be present between 11:47 am and 3:08 pm and refused to leave despite repeated warnings. This is however not the first time that Ms Kong has found herself in trouble with the police. Ms Kong has one assaulting police officer record back in 1996 when she was fined $500 in the Magistrate’s Court. Having said that, there was no allegation of her using any violence on the material day. Ms Kong was also not involved in the organisation of the protest. Nor was she affiliated to any political party. Given the limited role played by Ms Kong, she will be fined a sum of $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Ms Kong will have 6 months to pay the sum. In default, she will go to prison for 1 month. HCMP 2928/2015 Chan Ao Tien The respondent in this case Mr ‍Chan Ao Tien was 22 and a student at the material time. Currently he is a teacher, earning $16,000 a month. Mr Chan admitted his liability. He was found to be present between 2:33 pm and 3:06 pm and refused to leave despite repeated warnings. Mr Chan was not affiliated to any political organisation. Nor did he resort to any violence on the material day. Mr Chan has a clear record and was not involved in the organisation of the protest. Given the limited role played by Mr Chan, he will be fined $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Mr Chan will have 3 months to pay the sum. In default, he will go to prison for 1 month. HCMP 2929/2015 Chan Pak Tao The respondent in this case Mr ‍Chan Pak Tao was 25, a casual worker at the material time. Mr Chan was found guilty after trial. His acts and conducts on the material day had been described in my judgment handed down on 31 August 2018. Essentially Mr Chan was found to be present in the Area for an extended period of time and refused to leave despite repeated warnings. Mr Chan was not affiliated to any political organisation. Nor did he resort to any violence on the material day despite the gear that he was wearing. He has a clear record. Given the limited role that played by Mr Chan, he will be fined $15,000 and given an imprisonment term of 6 weeks but suspended for 12 months. Mr Chan will have 3 months to pay the sum. In default, he will go to prison for 6 weeks. HCMP 2930/2015 Chan Wing Wah The respondent in this case Mr ‍Chan Wing Wah was 45, a transportation worker at the material time. Due to ill health, Mr Chan currently lives on $3,660 social benefit from the Social Welfare Department. Mr Chan admitted his liability. He was found to be present in the Area between 11:44 am and 3:09 pm and refused to leave despite repeated warnings. Mr Chan was not affiliated to any political organisation. Nor did he resort to any violence on the material day. He also has a clear record. Given the limited role played by Mr Chan and his personal circumstances, he will be given an imprisonment term of 1 month but suspended for 12 months with no additional financial penalty. HCMP 2931/2015 Lou Tit Man The respondent in this case Mr ‍Lou Tit Man was 69, unemployed at the material time. Mr Lou was born an orphan in Philippine. He came to Hong Kong at the age of 11. At the age of 19, Mr Lou became a street sleeper. Since then, he had been doing odd jobs till his 50’s. Currently he is receiving assistance from non-governmental organisations and the church. He was found guilty after trial. His acts and conducts on the material day had been described in my judgment handed down on 31 August 2018. Essentially Mr Lou was seen to be present in the Area throughout the day. As mentioned in my judgment, his involvement was deep and extensive, beyond mere presence. Mr Lou was seen standing on an elevated platform in the middle of Arygle Street and holding a yellow banner demanding universal suffrage when broadcast was being made to the crowd. He was also seen in rendering assistance to the seemingly organiser of the protest in the removal of the elevated platform. After its removal, Mr Lou was seen returning to the Area and continuing his defiance by standing at the forefront of the police check line till his arrest by the police. Despite his extensive involvement, it is however accepted that Mr Lou did not engage himself in any unlawful and violent act. Nor did he put up any resistance when being arrested by the police. The role played by Mr Lou was similar to Mr ‍Cheng Kam Mun. Unlike Mr ‍Cheng Kam Mun, Mr Lou was found guilty after trial. The appropriate starting point for his sentence therefore is set at 4 1/2 month imprisonment. In view of his age and unblemished record in the past, his sentence can be adjusted slightly downwards to one of 4 months’ imprisonment. Other than that, I do not see any other mitigating factors. As such, Mr ‍Lou is sentenced to 4 months’ imprisonment for the contemptuous acts he committed on the material day. HCMP 2932/2015 Leung Hon Lam The respondent in this case Mr ‍Leung Hon Lam was 17 and a student at the material time. He is now studying higher diploma in civil engineering at the Hong Kong Institute of Vocational Education. Mr Leung admitted his liability. He was found to be present in the Area shortly before his arrest. Mr ‍Leung has a clear record and was not affiliated to any political party. He was not involved in the organisation of the protest. Given the limited role played by Mr Leung and his personal circumstances, he will be given an imprisonment term of 1 month but suspended for 12 months with no additional financial penalty. Costs The respondents do pay to the applicant the costs of and occasioned by these proceedings including all costs reserved on an indemnity basis, with certificate for 3 counsel. The respondents’ own costs, except Mr Lai Yu Sing, be taxed in accordance with Legal Aid Regulations. (Andrew Chan) Judge of the Court of First Instance High Court Mr Victor Dawes, SC, Mr Jin Pao, SC, Mr Derek Chan, SC and Mr Lavesh Kirpalani, instructed by Department of Justice, for the Applicant Mr Hectar Pun, SC and Mr Deng Jundi Earl, instructed by Messrs JCC Cheung & Co, assigned by Director of Legal Aid, for the Respondents in HCMP 2917, 2920, 2921/2015 and 575/2018 Mr Lawrence Lok, SC and Ms Christine Yu, instructed by Messrs Ho, Tse, Wai & Partners, assigned by Director of Legal Aid, for the Respondents in HCMP 2918, 2925, 2928, 2929, 2932/2015 Ms Sabrina Leung, instructed by Messrs Sanny Kwong & Co, for the Respondent in HCMP 2927/2015 Ms Jacquelyn Ng, instructed by Messrs Sanny Kwong & Co, for the Respondent in HCMP 2930/2015 Mr Albert Wong, instructed by Messrs Kenneth Lam, assigned by Director of Legal Aid, for the Respondents in HCMP 2922, 2926/2015 Mr Wong, Yuyat, Anson, instructed by Messrs Kenneth Lam, for the Respondent in HCMP 2924/2015 Mr Wong, Yuyat, Anson, instructed by Messrs Bond Ng Solicitors, assigned by Director of Legal Aid, for the Respondent in HCMP 2931/2015 The Respondent in HCMP 2919/2015 appeared in person