HKSAR v Chow Hang Tung [2024] 4 HKLRD 481, [2024] HKCFI 479

Robert Pang SC and Chung Luen Chris Ng represented the appellant in HKSAR v Chow Hang Tung [2024] 4 HKLRD 481, [2024] HKCFI 479.

D was convicted after trial of inciting others to knowingly take part in an unauthorised assembly, contrary to the common law and s.17A(3)(a) of the Public Order Ordinance (Cap.245) (the POO), in relation to a proposed meeting at Victoria Park on 4 June 2021 (the Meeting) to commemorate the 32nd anniversary of the 4 June 1989 Tiananmen Square incident. She was sentenced to 15 months’ imprisonment. The Magistrate found D guilty based on the following facts. The Hong Kong Alliance in Support of Patriotic Democratic Movements of China (the Alliance), of which D was Vice Chairperson, notified the police of its intention to hold the Meeting. The police notified the Alliance that the Meeting was prohibited pursuant to s.9 of the POO for reason of the COVID-19 pandemic. The Alliance’s appeal to the Appeal Board on Public Meetings and Processions under s.16 of the POO was dismissed. On 29 May 2021, the Security Bureau announced that the Meeting was an unauthorised assembly which no one should take part in, advertise or publicise, or else it would be contravening the law. Later on the same day and on 4 June 2021 respectively, D published social media posts and an article in a mainstream newspaper which were found to have incited others to attend the Meeting. The Magistrate adopted a starting point of 12 months’ imprisonment, and considering that D committed the offence when the trial of another case against her was pending (which was a summons case involving a similar offence), enhanced the sentence by 3 months to a term of 15 months’ imprisonment, in which 10 months were to be served consecutively to the sentence in relation to the other case. D appealed to the Court of First Instance against the conviction and sentence. The appeal against the conviction was allowed, with the conviction quashed and the sentence set aside (see [2022] HKCFI 3692). The prosecution appealed to the Court of Final Appeal, and the appeal was allowed (see (2024) 27 HKCFAR 71). D’s conviction was restored and the case was remitted to the Court of First Instance for the appeal against sentence to be determined. D advanced grounds of appeal including that the Magistrate had erred in finding the facts of the present case serious and had failed to give sufficient consideration to her basic rights including the freedom of expression, resulting in a manifestly excessive sentence.

Held, dismissing the appeal, that:

• (1) D’s criticism against the Magistrate for failing to consider her basic right to the freedom of expression could not stand. The prohibition by the police was necessary and proportionate in view of the seriousness of the pandemic. D could not ask the Court to allow her appeal against sentence on the ground that the pandemic was not serious at the material time. Neither could D use the freedom of expression as a ground of appeal where the conviction of the offence proved that she had already crossed the line in law by acting unlawfully. The European cases cited by D were not concerned with a notification regime such as that in the POO, where there had already been an assessment by the authority of the application involving an in-built balancing of risk against the fundamental rights of the individual. The facts of this case were serious for the reasons set out at para.25 of this judgment. The Court fully agreed with the starting point of 12 months adopted by the Magistrate (Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 699, Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35, Secretary for Justice v Poon Yung Wai [2022] 4 HKLRD 1002, HKSAR v Lai Chee Ying (Unauthorised Assembly) [2023] 4 HKLRD 484 applied; HKSAR v Chow Hang Tung (2024) 27 HKCFAR 71 followed). (See paras.25, 28, 43-46.)
• (2) As regards the aggravating factors, the Court rejected D’s argument that the Magistrate was not justified to enhance the sentence because the other case of D was proceeded by way of a summons without involving any bail or undertaking made to the court. Since D had disregarded the law and reoffended by committing a similar offence, in such circumstances, there was nothing improper with the enhancement of 3 months (R v Kwok Chi Keung [1993] 2 HKCLR 294, HKSAR v Leung Ting Fung [2015] 1 HKC 290, HKSAR v Majid Muhammad (CACC 157/2015, [2017] HKEC 386), HKSAR v Wong Yun Fat [2017] 4 HKLRD 59 considered). (See paras.34-41, 47.)
• (3) The Magistrate, after considering the totality of sentence, properly ordered 10 months out of the 15 months to be served consecutively to the sentence relating to the other case. There was no justification for the Court to intervene with the sentence imposed by the Magistrate. (See paras.48-49.)

[The above is excerpted from the headnote to the report in HKLRD.]