2024.08.18

Jimmy Lai, Margaret Ng, and five other pro-democracy figures appealed to the Court of Final Appeal regarding their conviction in the “flowing-style assembly case” from August 18, 2019. On Monday (12th), the court upheld their convictions for “participating in an unauthorized assembly” (see detailed report). Initially convicted, they were sentenced to 8 to 18 months in prison, with three receiving suspended sentences. Despite successful appeals regarding the conviction for “organizing an unauthorized assembly” at the High Court, which reduced their sentences, the sentences for participating in the assembly were not decreased.

Article 17A of the Public Order Ordinance stipulates that the maximum prison sentence for “unauthorized assembly” following a prosecution is five years; through a summary procedure, the maximum is three years. Records show that from the 1997 handover to just before the anti-extradition law amendment movement in June 2019, at least 35 individuals were charged with “unauthorized assembly,” with none receiving a prison sentence.

Post-June 2019, the penalties significantly stiffened, with over 85% receiving prison terms; excluding those with suspended sentences, the average imprisonment reached 11 months. The judgments post-anti-extradition law movement, including the 8.18 flowing-style assembly case, often cited the appellate judgment from the “6.21 Police Headquarters Siege case” of 2019, noting that the courts could apply deterrent sentences reflecting the widespread unrest of that year.

In the final judgment for the 8.18 case, David Neuberger, one of the non-permanent overseas judges, noted that the ultimately peaceful nature of the 8.18 march was a significant factor in sentencing. However, legal commentator Edward Wong pointed out that this opinion, being in the minority and incidental, does not bind future sentencing in similar cases (see detailed report).

35 people prosecuted for “unauthorized assembly” between 1997 and 2019

Court records reviewed by “The Witness” show that from 1997 to just before the anti-extradition law amendment movement in 2019, at least 35 individuals were prosecuted for “unauthorized assembly,” involving six protest marches.

The earliest case occurred in 2002 when “Long Hair” Leung Kwok-hung and others held a rally in Chater Garden, Central, and were charged with “holding an unauthorized public assembly.” This case ultimately appealed to the Court of Final Appeal (later frequently cited as the 2005 “Leung Kwok-hung case”), which affirmed the constitutionality of the no-objection notice system.

Other involved protests include a 2002 demonstration supporting Leung Kwok-hung by Liu Shanqing and Andrew To Kwan-hang, the 2006 anti-WTO protest by Korean farmers, post-Tiananmen vigil marches to the Liaison Office in 2011 by Bobo Ip Po-lam, Eddie Chu, and others, a 2011 protest against the financial budget, and the July 1st march of 2011.

Unauthorized Assembly Cases Before 2019

Case	Defendants	Number of Defendants	Charges (partial)
2002 Chater Garden Rally	Leung Kwok-hung, etc.	3	Holding an unauthorized public assembly, assisting in holding an unauthorized public assembly
2002 Support for Leung Kwok-hung, etc.	Liu Shanqing, etc.	2	Holding and assisting in holding an unauthorized public assembly
2006 Anti-WTO Korean Farmers Demonstration	Yang Kyung-Kyu, etc.	14	Unauthorized assembly
2011 Post-Tiananmen Rally March	Bobo Ip Po-lam, etc.	6	Illegal assembly, holding an unauthorized assembly
2011 Anti-Financial Budget Bill March	Yip Ho-yee, etc.	4	Assisting in organizing an unauthorized assembly, participating in an unauthorized assembly
2011 July 1st March	Melody Chan, etc.	6	Unauthorized assembly, illegal assembly

Before the 2019 anti-extradition law amendment, penalties for those involved in cases tried under “unauthorized assembly” typically resulted in good behavior bonds or fines, while those charged with “illegal assembly” might receive suspended sentences.

Before the 2019 amendment to the extradition law, those involved in cases that were tried under the charges of “unauthorized assembly” and the Public Order Ordinance’s Section 18 “illegal assembly” were generally given suspended sentences or fines. Before June 2019, 8 individuals were charged simultaneously with “unauthorized assembly” and “illegal assembly,” while the remaining 27 were charged only with “unauthorized assembly.”

Among the 27 charged only with “unauthorized assembly,” 5 were convicted after trial, 2 pleaded guilty, and 1 was acquitted. In the Anti-WTO Han Dongfang case, 14 were acquitted, and in other cases, 5 were discharged without evidence and dealt with by signing good behavior bonds.

Of the 7 convicted, 3 were ordered to sign a bond of 500 HKD with a good behavior period of 3 months; others received fines ranging from 500 HKD to 2000 HKD. Of the 8 defendants charged with both “unauthorized assembly” and “illegal assembly,” 4 received suspended sentences for the “illegal assembly,” while fines were imposed for the “unauthorized assembly.”

Reviewing judgments compiled before 2019, there were no instances where immediate imprisonment was considered for “unauthorized assembly” alone.

Before 2019, verdicts and sentences in cases involving convictions:

Cases Involving Only Unauthorized Assembly

• 2002 Chater Garden Rally: Leung Kwok-hung, Fung Ka-keung, Lo Wai-ming
  • Verdict: Convicted after trial
  • Sentence: Bond of 500 HKD, good behavior for 3 months
• 2002 Support for Leung Kwok-hung et al.: Liu Shanqing, Andrew To Kwan-hang
  • Verdict: Convicted after trial
  • Sentence: Fine of 500 HKD
• 2011 Anti-Financial Budget Bill Rally: Raphael Wong Ho-ming, Andrew To Kwan-hang
  • Verdict: Guilty plea
  • Sentence: Fines between 1000 to 2000 HKD

Cases Involving Both Illegal Assembly and Unauthorized Assembly

• 2011 Post-June 4th Rally March: Bobo Yip Po-lam, Icarus Wong
  • Verdict: Convicted after trial
  • Sentence: Illegal assembly: Imprisonment for 4 weeks, suspended for 1 year; Unauthorized assembly: Fine of 3000 HKD
• Same as above: Eddie Chu Hoi-dick, Chu Kong-wai, Lee Sai-hung, Hung Hiu-han
  • Verdict: Convicted after trial
  • Sentence: Fines
• 2011 July 1st March: Raymond Wong Yuk-man
  • Verdict: Convicted after trial
  • Sentence: Illegal assembly: Imprisonment for 6 weeks, suspended for 14 months, Unauthorized assembly: Total fine of 4800 HKD; on appeal, illegal assembly sentence changed to a fine of 4800 HKD
• Same as above: Albert Chan Wai-yip
  • Verdict: Convicted after trial
  • Sentence: Illegal assembly: Imprisonment for 5 weeks, suspended for 1 year, Unauthorized assembly: Total fine of 4800 HKD; on appeal, illegal assembly charge changed to a fine of 4800 HKD

After June 2019: At least 75 people charged, 85% imprisoned, average sentence 11 months

Post the 2019 anti-extradition law amendments, according to “Court Line” statistics, at least 75 people have been charged with crimes related to unauthorized assemblies. This includes cases of “incitement to unauthorized assembly,” such as Shiu Ka-chun being charged for inciting an unauthorized assembly on the day of June 4, 2021, which ultimately did not take place.

Out of these 75 charged, apart from Pun Ho-chiu (known as “Occupy Mong Kok Painter”), who was also charged with criminal destruction and multiple assaults on police in the surrounding police headquarters case, and Tam Tak-chi, who was charged with multiple incitement offenses, the rest were not charged with any violent-related offenses or illegal assembly.

Excluding 2 individuals (Nathan Law, Sunny Cheung) who were absent from hearings, 16 were convicted after trial, and 57 pleaded guilty, resulting in a 100% conviction rate. Eighty-five percent, or 63 individuals, received immediate imprisonment; 10 were given suspended sentences. Excluding those with suspended sentences, the average length of imprisonment was 11 months.

Before 2019, verdicts and sentences in cases involving convictions: (incomplete)

Case	Defendant	Charges	Verdict	Sentence	Notes
6.21 Surround Police HQ	Pun Ho-chiu	One count of participating in unauthorized assembly, one count of criminal destruction, 7 counts of assaulting police	Convicted after trial	Total of 21 months in prison	Sentencing for unauthorized assembly starts at 10 months
Same	Joshua Wong, Ivan Lam, Agnes Chow	Incitement, organizing, and participating in unauthorized assembly	Guilty plea	7 to 13.5 months in prison
8.18 Flowing-water Assembly	Jimmy Lai, Margaret Ng, Martin Lee, and others	Organizing and participating in unauthorized assembly	Convicted after trial, appeal to final court failed	Initial sentences ranged from suspended sentences to 18 months, appeal reduced to 5 to 12 months except for those with suspended sentences
Same	Leung Yiu-chung	Organizing and participating in unauthorized assembly	Admitted to participating, organizing charge archived	8 months in prison, suspended for 12 months
Same	Au Nok-hin	Organizing and participating in unauthorized assembly	Guilty plea	10 months in prison
10.1 Hong Kong Island March	Figo Chan Ho-wun, Lee Cheuk-yan, Leung Kwok-hung, Albert Ho	Incitement, organizing, and participating in unauthorized assembly	Admitted to incitement and organizing, participating charge archived	18 months in prison	Some sentences run concurrently with other unauthorized assembly cases
Same	Yeung Sum, Cyd Ho, Avery Ng, and others	Organizing and participating in unauthorized assembly	Admitted to organizing, participating charge archived	Suspended to 14 months in prison	*Avery Ngalso admitted both charges
2020 June Fourth Victoria Park Rally	Chow Hong-tung, Jimmy Lai, Gwyneth Ho	Incitement and/or participating in unauthorized assembly	Convicted after trial	6 to 13 months in prison
Same	Andrew Wan, Cheung Man-kwong, Mak Hoi-wah, and 21 others	Incitement, participating and/or organizing unauthorized assembly	Guilty plea	Suspended to 14 months in prison	*Some sentences run concurrently with other unauthorized assembly cases
2021 Incitement for June Fourth Assembly	Chow Hong-tung	Incitement to unauthorized assembly	Convicted after trial, appeal initially successful, final court reinstated conviction	15 months in prison

After the anti-extradition bill protests, the penalties for “unauthorized assembly” offenses were notably harshened. Multiple case judgments post-2019 have cited the 2019 “Police Headquarters Siege Case,” in which the appeals court handled Agnes Chow’s bail and appeal application.

In the original trial of that case, Agnes Chow admitted to incitement and participation in unauthorized assembly, receiving a total of 10 months in prison. The presiding judge, Lily Wong Sze–lai, in her sentencing rationale, referenced the 2018 “Civic Square Case” involving Joshua Wong, which charged illegal assembly. She ruled in the “Police Headquarters Case” that the court must consider factors such as public protection, punitive measures, public condemnation, and deterrence of crime, stating that “immediate imprisonment is the only appropriate sentencing option.”

Agnes Chow appealed against her sentence, arguing through her lawyers that Judge Lily Wong Sze–lai’s adoption of sentencing factors from the “Civic Square Case” constituted a fundamental error. They contended that she failed to recognize that the gravamen of the offenses “illegal assembly” and “unauthorized assembly” are not the same.

Chow’s team also cited the 2013 “Jaco Chow Case” ruling by the Court of Final Appeal, which stated that the right to assembly protects only non-violent processions, implying that “unauthorized assembly” is still protected under the freedom of assembly guaranteed by the Basic Law.

The Department of Justice countered by referencing an appeals court decision from another 2019 case involving “illegal assembly,” the “Chung Kai-ho Case,” which held that the court should decide on punitive and deterrent sentences based on the actual circumstances of the case. They argued that the trial judge’s reference to the “Civic Square Case” was appropriate.

The High Court’s original jurisdiction ultimately upheld the views of the Department of Justice, noting that although the elements of “illegal assembly” and “unauthorized assembly” differ, both offenses involve mass gatherings, public order, and safety issues. It agreed with the trial judge’s approach of drawing from the sentencing factors of illegal assembly cases.

“Illegal Assembly” requires proof of disorderly conduct or behavior that is threatening, among other elements.

Under the current Public Order Ordinance, “unauthorized assembly” and “illegal assembly” are distinct offenses. University of Hong Kong Senior Lecturer Cheung Tat-ming, in a radio interview, mentioned that the three defendants in the “Siege of Police Headquarters Case” were charged with “unauthorized assembly,” which was a peaceful gathering, different from “illegal assembly,” raising questions about the proportionality of the charges and sentences.

Section 18 of the Public Order Ordinance specifies that the elements of “illegal assembly” include a gathering of three or more persons engaged in disorderly, intimidating, insulting, or provocative acts that intend to cause or are likely to cause any person to fear that the participants will disturb the public peace, or provoke others to disturb the public peace.

“Unauthorized assembly” does not require proof of such elements. Section 17A (a) of the Public Order Ordinance states that anyone who knowingly participates in, organizes, or holds an unauthorized assembly without lawful authority or reasonable excuse, such as a public procession involving more than 30 people without a notice of no objection, commits an offense. Both offenses carry a maximum penalty of 5 years in prison.

In the sentencing for the 8.18 case, the judge referenced the Police Headquarters case, stating that the circumstances of 2019 necessitated a deterrent sentence.

In the “8.18 Flowing Water-style Assembly Case” original trial, the sentencing rationale cited by the defense argued that the protest on the day was peaceful, with no violence or conflicts, and that road congestion was not solely caused by the procession, suggesting a fine as punishment. However, Judge Amanda Jane Woodcock noted that while the court agreed that most similar cases in the past were dealt with by a bond or fine, “none of those cases were triggered by societal unrest similar to that of 2019.”

Judge Amanda Jane Woodcock further referred to the “Siege of Police Headquarters Case” judgment and the overall context of societal turmoil in 2019. She believed that although the 8.18 case involved an “unauthorized assembly” rather than an “illegal assembly,” the sentencing principles for “illegal assembly” could still be considered. She also cited paragraph 172 of the “Civic Square Case” judgment, stating that while the defendants’ desire to express their views is understandable, behavior that defies the law and still feels self-justified should not be treated too leniently by the court for any reason.

Jimmy Lai and six others subsequently appealed their convictions and sentences. The appellate court agreed with Judge Amanda Jane Woodcock’s approach in the original trial to use a 12-month imprisonment as the starting point for sentencing for the “participation in an unauthorized assembly” offense and then consider the individual culpability of the defendants; the court also rejected the European cases cited by the appellants, noting their inapplicability to the unique circumstances of Hong Kong in 2019. The appellate court found no fault in the original sentencing but, as the conviction for “organizing an unauthorized assembly” was overturned on appeal, the related sentences were annulled.

David Neuberger says that sentencing must consider the peaceful nature of the assembly; however, legal commentator Edward Wong noted that this opinion holds no binding power for future cases.

In the main judgment of the Court of Final Appeal, the issue of whether the sentencing was excessively harsh was not revisited. However, Chief Justice Andrew Cheung and Permanent Judge Roberto Alexandre Vieira Ribeiro noted that the defense’s points about the assembly being entirely peaceful, relatively short in duration, and not requiring police warnings or enforcement actions were at best mitigating factors. Non-permanent Judge David Edmond Neuberger in his judgment mentioned that although the peaceful nature of the assembly does not constitute a reasonable defense, it is “obviously potentially relevant” in sentencing matters.

However, legal commentator Edward Wong noted that Neuberger’s views are a minority and incidental opinion, and may not have binding power on the sentencing in future similar cases. (See more in another article)

Apart from the “8.18 Water-style Assembly Case,” other cases such as the “10.1 Hong Kong Island March Case,” “2020 Tiananmen Vigil Case,” and “2020 July 1st March Case” have also referenced sentencing principles from the “Siege of Police Headquarters Case” or the “Civic Square Case.”

In the “Civic Square Case” The Court of Final Appeal agrees that illegal assemblies involving violence can be punishable by imprisonment.

In the “Civic Square Case” related to the 2014 Occupy Movement’s early stages, Joshua Wong, Nathan Law, and Alex Chow, among other members of Scholarism and the Hong Kong Federation of Students, entered the area in front of the government headquarters known as “Civic Square.” The three were subsequently charged with “participating in an unlawful assembly” among other charges, and initially received community service orders and suspended sentences. However, following a review of their sentences by the Department of Justice, they were sentenced to 6 to 8 months in prison.

The appellate court emphasized in its judgment that the main considerations for sentencing in cases involving violent unlawful assemblies are punishment and deterrence, to set an example; individual circumstances of the defendants, or “no matter how noble they believe their motives or reasons were,” are generally not grounds for mitigation or leniency.

The Court of Final Appeal later ruled in favor of the three’s appeals, reinstating the original sentences, meaning they did not have to serve prison time. However, the judgment acknowledged the appellate court’s analysis of the case, agreeing that cases involving violent unlawful assemblies should consider deterrent sentences. However, since the sentencing guidelines issued by the appellate court were not in place at the time of the “Civic Square Case,” they were deemed inapplicable to this case.

The Witness