Secretary for Justice v. Leung Hiu Yeung and Others

CAAR 3/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 3 OF 2016

(ON REVIEW FROM ESCC NO 3658 OF 2014)

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Before : Hon Yeung VP, Poon and Pang JJA

Dates of Written Submissions : 12, 26 October & 2 November 2017

Date of Judgment : 14 November 2017

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J U D G M E N T

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The Court :

A.  INTRODUCTION

1.These are the applications by the respondents for this Court’s certification that points of law of great and general importance were involved in our judgment pronounced on 15 August 2017 with Reasons for Judgment handed down on 11 September 2017 (“Judgment”) as set out in their respective notices of motion filed on 19, 21 and 27 September 2017, to enable them to obtain leave to appeal to the Court of Final Appeal against the Judgment under section 32(2) of the Hong Kong Court of Final Appeal Ordinance.[1] With the parties’ consent, these applications are to be disposed of on paper.

2.While we were preparing the judgment, the Court of Final Appeal on 7 November 2017 handed down a Determination in FAMC 31-33/2017 granting leave to appeal to all the three applicants, that is, the 3 respondents in CAAR 4/2016, on the following issues :

(1) To what extent can the Court of Appeal on an application for review of sentence under s.81A of the Criminal Procedure Ordinance, Cap 221 reverse, modify, substitute or supplement the factual basis on which the original sentence was based?  (Issue (1))

(2) To what extent should a sentencing court take into account the motives of a defendant in committing the crime of which he or she has been convicted, particularly in cases where it is asserted that the crime was committed as an act of civil disobedience or in the exercise of a constitutional right?  (Issue (2))

(3) Insofar as the Court of Appeal was seeking to do so at all, in arriving at the appropriate sentences for the applicants, to what extent ought the Court of Appeal have made allowance for the assertion made by them that guidelines to sentencing courts for the future were being given? (Issue (3))”

3.As the Determination may have an impact on the respondents’ applications before us, we on 8 November 2017 wrote to the parties (1) inquiring with the respondents if they wish to reformulate the questions sought to be certified by us and if so; (2) giving the parties consequential directions for that purpose.  On 9 November 2017, the respondents jointly wrote to the Court indicating that they do not wish to reformulate their questions or amend their notices of motion.

4.Having duly considered the parties’ submissions and the Determination, we now hand down our judgment.

B.  QUESTIONS SOUGHT TO BE CERTIFIED

5.In total the respondents have raised 11 questions, all said to be points of law of great and general importance.

(1) By the 1^st, 4^th, 7^th, 9^th and 11^th respondents (represented by Mr Douglas Kwok) :

“ 1. When a defendant is acquitted of ‘Attempted Forcible Entry’ under s.23(1) of the Public Order Ordinance, but convicted of ‘Unlawful Assembly’ under s.18 of the same Ordinance, is a sentencing court entitled to consider those facts of a defendant’s actual violence relied on by the prosecution under the ‘Attempted Forcibly Entry’ charge” In other words, in these circumstance, is the sentencing court entitled to take into account conducts of actual breach of the peace which go beyond the ingredients of the ‘Unlawful Assembly’ offence? (Question 1)

2. If the court is not in a position to judge whether the SAR Government acted in accordance with Article 4 of the Basic Law to safeguard the rights and freedoms of Hong Kong residents in the North East New Territories New Development areas, when dealing with the sentence of the ‘Unlawful Assembly’ charge, how should the ‘Principle of Reciprocity’ be applied? (Question 2)

3. Whether in respect of a review of sentence, the Court of Appeal is bound to consider exercising its discretion not to interfere with the original sentence.  If so, what are the proper principles for the Court of Appeal to adopt in considering whether to use such a discretionary power?  Specifically :-

(1) Whether the Court of Appeal was right to hold that, despite the existence of factors in favour of non-interference, it will nevertheless interfere with and increase a sentence if the Secretary for Justice is able to persuade the Court that the sentence imposed by the lower court is wrong in principle or is manifestly inadequate. In other words, although there are reasons for non-interference, once it finds that the sentence is wrong in principle or manifestly inadequate, the Court of Appeal will increase the sentence.  In so doing, the Court will not engage in a balancing exercise to weigh up the various factors for and against interference with the lower court’s sentence.

(2) Where the original sentence was non-custodial, and a term of imprisonment is considered, whether the Court should take into account the fact that the original sentence has already been fully served? (Question 3)

4. In respect of an offence for which there are no existing sentencing guidelines from the courts or inconsistent case-law on sentencing standards at the time of the offence, whether a decision of the Court of Appeal which, in such a context, sets down new sentencing guidelines or principles should have retrospective effect. Alternatively, whether the proper approach is to limit the application of the new sentencing guidelines to offences committed after the date on which they were handed down.  Specifically :-

(1) Whether Article 15(1) of the International Covenant on Civil on Political Rights, which remains in force in Hong Kong by virtue of Article 39 of the Basic Law, and Article 12(1) of the Hong Kong Bill of Rights are applicable directly or by analogy.

(2) As a response to inconsistent sentencing precedents, the Court of Appeal set down sentencing principles in CAAR 4/2016 at Section H ‘to provide guidance to the sentencing courts in the future’ (see CAAR 4/2016, §18 per Poon JA (with whom the other judges agreed).  Under such circumstances, should the Court adopt those sentencing principles in the instant case?” (Question 4)

(2) By the 13^th respondent (also represented by Mr Kwok) :

“ Is there any jurisdiction for the Court of Appeal to review a Community Service Order which was revoked by the sentencing Magistrate at the time of a sentence review under s.81A of the Criminal Procedure Ordinance?” (Question 5)

(3) By the 2^nd, 6^th and 8^th respondents (represented by Mr Hectar Pun, SC together with Mr Anson Wong) :

“ 1. Whether, in determining an application for the review of a sentence under section 81A of the Criminal Procedure Ordinance, Cap. 221, the Court of Appeal must proceed on the basis of the factual findings of the lower court? (Question 6)

2. In sentencing offenders of illegal conduct intertwined with expression or assembly, should the Court consider whether the penalty is compatible with Article 27 of the Basic Law of the HKSAR and Articles 16 and 17 of the Hong Kong Bill of Rights, in particular whether the penalty is proportionate to the legitimate aim pursued? (Question 7)

3. How should the court approach the motive of ‘civil disobedience’ in sentencing? (Question 8)

4. Whether the fact that an offence is committed at the Legislative Council Complex is an aggravating factor?” (Question 9)

(4) By the 3^rd, 5^th and 12^th respondents (represented by Mr Jeffrey Tam) :

“ 1. Is genuine remorse a ‘pre-condition’ for the imposition of a community service order (“CSO”) on a convicted person under section 4 of the Community Service Order Ordinance (Cap. 378)? (Question 10)

2. Can a convicted person who has ‘already been finally convicted in accordance with law and penal procedure of Hong Kong’ and duly completed the sentence of a CSO imposed on him by the trial court be ‘punished again’ by the Court of Appeal in acceding to an application by the Secretary for Justice for review of that sentence of CSO under section 81A of the Criminal Procedure Ordinance (Cap. 221) by quashing the sentence of CSO and replacing it with an immediate custodial sentence notwithstanding Article 11(3) of the Hong Kong Bill of Right and the common law principle of ‘double jeopardy’ (ne bis in idem)?” (Question 11)

6.We will consider the questions in turn.

C.  DISCUSSION

C1.  Question 1

7.To recap, all the respondents were charged with two charges : unlawful assembly, contrary to section 18(3) of the Public Order Ordinance[2] (Charge 1); and attempted forcible entry, contrary to section 23(1) of the same Ordinance and section 159G of the Crimes Ordinance[3] (Charge 2).  After trial, the Magistrate convicted them (except the 12^th respondent) of Charge 1 but acquitted them of Charge 2.  The Magistrate took the view that as the prosecution relied on the same conduct of the respondents to prove both Charges 1 and 2, Charge 2 was already included in Charge 1.  Hence, it would be unfair to convict them on both Charges on the same criminal conduct.  Thus after convicting them on Charge 1, he acquitted them of Charge 2.[4]

8.Mr Kwok took two main points.

(1) The offence of unlawful assembly is preventive in nature.  The offence is completed when the respondents assembled together in the prohibited manner with the necessary mens rea.  If there was an actual breach of the peace, the offence would become riot under section 19 of the Public Order Ordinance.  Further, the offence of forcible entry is complete when entry to any premises was done in a violent manner.  It is an attempt when the violent entry was not successful.  Both the offence of riot and attempted forcible entry involved violence.   But the respondents had not been charged with riot and they had been acquitted of Charge 2.  So it would be impermissible to take into account the violence used in connection with Charge 2 in sentencing them on Charge 1.  The respondents could only be sentenced on Charge 1 for what they did in connection with that Charge.  It is therefore reasonably arguable that we erred in enhancing the sentence on Charge 1 by taking into account “evidence that falls within an acquittal”. 

(2) The Magistrate did not err in not following HKSAR v Tai Chi Shing & Others, HCMA 579/2015, unreported, 9 March 2016 as the Barnes J’s judgment was only handed down after he had sentenced the respondents on 19 February 2016.

9.Mr Kwok’s first point can be rephrased in a more succinct way.  No violence involved in the respondents’ conduct should be attributed to Charge 1, given its preventive nature.  Any such violence should only be attributed to the offence of riot, which the respondents had not been charged with, or Charge 2, which the respondents had been acquitted of.  Thus in sentencing the respondents of Charge 1, the court should not take into account the violence used in connection with Charge 2 of which they had been acquitted.  In our view, this argument is fundamentally flawed.

(1) Generally speaking, although the offence unlawful assembly is preventive in nature, the circumstances of how it is committed vary.  In some cases, violence was not used or involved.  But in some cases, it was.  For the latter, the fact that violence had been used and the matters relating to such violence, such as how it was used, its degree or extent, the number of offenders involving in the violence, the consequences of the violence, are all relevant to sentencing.  The court is entitled and must indeed take violence and all the related matters into account when sentencing.

(2) In the present case specifically, it is completely wrong to attribute the violence used or involved in the respondents’ conduct to Charge 2 only.  As rightly pointed out by the Magistrate and contrary to Mr Kwok’s submissions, the prosecution all along relied on the same set of facts including the respondents’ violent conduct to prove both Charges 1 and 2.  The violence used or involved in the respondents’ conduct is very much part and parcel of the prosecution case on Charge 1.  That does not change because the Magistrate had, for the reasons that he gave, acquitted the respondents of Charge 2.  In sentencing them on Charge 1, the court can legitimately and must take the violence used or involved in their conduct and all the related matters into account.

10.Mr Kwok’s reference to Tai Chi Shing, is wholly misconceived.  In Tai Chi Shing, the appellants were convicted of unlawful assembly by charging at the LegCo Complex with violence.  In upholding the sentences of imprisonment imposed on the appellants by the principal magistrate, Barnes J described their behavior as riotous in nature.  Mr Kwok is not suggesting that Tai Chi Shing was wrongly decided.  However, he submitted that the Magistrate did not err in not following Tai Chi Shing because it was impossible for him to do so.  In our view, because of timing, the Magistrate of course could not be criticized for not following Tai Chi Shing.  But that is simply neither the Secretary’s complaint before us nor our ruling in the Judgment.  We held that the Magistrate erred in the way as he did for the reasons articulated in Part H4 of the Judgment.  It has nothing to do with the Magistrate not following Tai Chi Shing.  Mr Kwok also argued that Tai Chi Shing did not apply to the present case because any violence could only be attributed to Charge 2, of which the respondents had been acquitted or the offence of riot, with which they had not been charged.  We have already explained why Mr Kwok’s argument is utterly wrong.  Hence, like Barnes J in Tai Chi Shing, the court must take the violence used or involved in the respondents’ conduct in sentencing them for Charge 1.

11.For these reasons, Question 1 simply does not arise from the present case.  It was not involved in our decision in the Judgment.

C2.  Question 2

12.Mr Kwok submitted that the court is unable to apply the principle of reciprocity when considering unlawful assembly with heavy political undertones.  He reasoned that :

“ 13. It would seem that there is no reciprocity if no matter whether the law guarantees the right or not, one must obey the law. If there is reciprocity at work, then it dictates that when the law does not guarantee rights, then the duty to obey the law does not follow.”

Mr Kwok then asked rhetorically : “what if the court is not able to judge (due to the political nature of the reciprocity) when there is any reciprocity?  Then how is the court able to apply the reciprocity principle as a basis to enhance the sentence of an unlawful assembly?”

13.Mr Kwok then at [14] of his written submissions harked back to the so-called “law of redress” and submitted that it could address the problem that he identified.

14.With respect, what Mr Kwok stated at [13] of his written submissions betrays a complete misapprehension of the principle of reciprocity that we have propounded at [89] – [93] of the Judgment.

(1) As a phrase, the principle of reciprocity is coined to explain why the enjoyment and exercise of the fundamental rights guaranteed by law is subject to the duty to abide by the law.  Simply put, the enjoyment and exercise of the fundamental rights is not without limit.  It is always subject to the duty to abide by the law in force in Hong Kong.  Contrary to Mr Kwok’s surmise, the principle, properly understood, does not imply any notion that “when the law does not guarantee rights, then the duty to obey the law does not follow”.  The duty to obey the law, as mandated by Article 42 of the Basic Law, is a free-standing provision applicable at all times.

(2) As we have explained, the principle of reciprocity requires the demonstrators to act within the legal bounds in exercising their freedoms of expression, assembly and demonstration.  It regulates the manner of how they exercise their freedoms : they must act lawfully and peacefully.  The principle applies irrespective of the moral, social or political cause that the demonstrators seek to advocate or promote.  By applying the principle, the court is striking a proper balance between the rights of the demonstrators on the one hand and the competing public interest of maintaining public order and protecting others’ rights and freedoms on the other.  If the demonstrators stay within the legal bounds, their rights will be fully protected.  If, however, they trespass on the boundaries, then their conduct will immediately become unlawful, rendering them liable to be sanctioned by the law including criminal law if they have committed a criminal offence. In sentencing the demonstrators for the criminal offence they have so committed, the court is simply not concerned with and need not adjudicate on the so-called “political undertones” involved in the offence, as Mr Kwok suggested.[5]

15.Mr Kwok’s argument at [14] of his written submissions is based on his misunderstanding of the principle of reciprocity.  It must be rejected on that ground alone.  In any event, it is an attempt to rehearse his argument based on the so-called “law of redress”, which we have already rejected at [134] of the Judgment.  This argument is simply unarguable.

16.For the above reasons, Question 2 was not involved in the Judgment.  And insofar as it is based on [14] of Mr Kwok’s written submission, it is plainly unarguable.

C3.  Question 3

17.Question 3 can be disposed of shortly without dwelling on Mr Kwok’s submissions.

(1) The general principles of review are well-settled : see the summary at [123] of the Judgment.

(2) It is also well-settled that the Court of Appeal always has a discretion as to what sentence should be passed, whether the sentence should be enhanced on review, and whether and what discount is to be given to an offender who has already served the non-custodial sentence originally imposed on him : see Attorney General v Wong Kwok-wai [1991] 2 HKLR 384, per Silke VP at p 387H – 389I.

(3) How the Court of Appeal should exercise the discretion in reviewing a sentence is always a fact-sensitive exercise, in which the Court must take into account all the relevant factors and properly weigh them in the overall circumstances of the case.  The present review is no exception.

18.In short, the answer to Question 3 is well-settled.  And how the Court of Appeal would exercise the discretion in reviewing a sentence must be dependent on the actual facts of the case.  No question of law is involved.

C4.  Question 4

19.In our view, the core issue raised by Question 4 is in substance the same as Issue (3).  In light of the Determination, we would allow the certification for Question 4.

C5.  Question 5

20.The point taken by Mr Kwok is that when the Magistrate revoked the community service order of the 13^th Respondent on 15 December 2016 and substituted it with a 3 weeks’ imprisonment, there was no longer any community service order in existence that could be liable to be reviewed by the Secretary.  He cited section 8(3) of the Community Service Order Ordinance in support.[6]  His reliance on section 8(3) is however misplaced.

21.Section 8(3)(a) of the Community Service Order Ordinance provides :

“ (3) If it is proved to the satisfaction of the magistrate before whom an offender appears or is brought under this section that he has failed without reasonable excuse to comply with section 6(1) the magistrate may, without prejudice to the continuance of the order, impose on him a fine not exceeding $1000 or may –

(a) if the community service order was made by a magistrate revoke the order and deal with the offender, for the offence in respect of which the order was made, in any manner in which the offender could have been dealt with for that offence by the magistrate who made the order if the order had not been made; …”

22.Properly understood, section 8(3)(a) makes available to the sentencing magistrate full sentencing options as if the community service order had not been made.  It does not have the effect of rendering the community service order “non-existent” ab initio in the way as Mr Kwok has contended.  Mr Kwok’s understanding of section 8(3)(a) is simply erroneous.

23.Further, the powers of the Court of Appeal in an application for review of sentence by the Secretary for Justice are set out in sections 81A to 81C of the Criminal Procedure Ordinance :

(1) Section 81A of CPO provides that :

“ The Secretary for Justice may, with the leave of the Court of Appeal, apply to the Court of Appeal for the review of any sentence (other than a sentence which is fixed by law) passed by any court, other than the Court of Appeal, on the grounds that the sentence is not authorized by law, is wrong in principle or is manifestly excessive or manifestly inadequate.” (Emphasis added)

(2) Section 81B(1)(a) of CPO provides that :

“ (1) Upon the hearing of the application the Court of Appeal may, by order –

(a) if it thinks that the sentence was not authorized by law, was wrong in principle or was manifestly excessive or manifestly inadequate, quash the sentence passed by the court and pass such other sentence (whether more or less severe) warranted in law in substitution therefor as it thinks ought to have been passed …” (Emphasis added)

24.The sentence under reviewed by the Court of Appeal pursuant to sections 81A and 81B is the one which has been “passed by” the lower court.  It does not matter whether at the time of hearing of the review, the sentence passed by the lower court has been served.  In the case of a breach of the community service order, even if it is no longer in force at the time of the hearing of the review because it has been completely served or is revoked by the sentencing magistrate, it is still that sentence which has been “passed by” the magistrate that the Court of Appeal would have to consider if it is “wrong in principle”, “manifestly excessive” or “manifestly inadequate” under section 81B(1)(a). 

25.Turning to the facts of the present case, the sentence “passed by the court” on the 13^th respondent under review was the community service order imposed on him by the Magistrate on 19 February 2016.  Both the Secretary’s application for leave to review (taken out on 9 March 2016) and the granting of the leave by the Chief Judge of the High Court (on 11 March 2016) took place well before the Magistrate revoked the community service order and substituted it with a 3 weeks’ imprisonment on 15 December 2016.  The sentence to be reviewed by this Court remained the original community service order imposed by the Magistrate on the 13^th respondent in the first place, notwithstanding the subsequent revocation which, as explained, did not have the effect of rendering the community service order “non-existent” ab initio as contended by Mr Kwok. 

26.Question 5 is plainly not arguable.

C6.  Question 6

27.Although it is couched in a slightly different way, Question 6 in essence asks the same question as Issue (1) does.  In light of the Determination, we would allow the certification for Question 6.

C7.  Question 7

28.The thrust of Mr Pun’s submissions is that when the sentence imposed on an offender whose criminal conduct intertwined with his exercising his rights to expression or assembly, the court should consider if the sentence imposed is proportionate to the legitimate aim of protecting public order.  This is a new point not run before us previously.  It is in substance the same as Issue (2).  Again, in light of the Determination, we would allow the certification for Question 7.

C8.  Question 8

29.Question 8 is covered by Issue (2).  We would allow its certification.

C9.  Question 9

30.Question 9 is not a question of law.  Whether or not the fact that an offence is committed at the LegCo Complex is an aggravating factor must depend on the actual facts of the case.

C10.  Question 10

31.Question 10 was not involved in the Judgment. Although we at [99] – [105] of the Judgment did discuss the relevant principles for the imposition of a community service order, we set aside the community service orders imposed by the Magistrate because, independently of the errors that he made including the one concerning his understanding of remorse for the purpose of imposing a community service order, the facts of the present case and the seriousness of the offence plainly warranted an immediate custodial sentence : see [136] of the Judgment.

C11.  Question 11

32.This Question concerns the principle against double jeopardy.  Mr Tam took three points :

(1) His primary argument is that once the respondents had served the full period of their respective community service orders, the Court of Appeal cannot quash the original orders and substitute them with any period of imprisonment.  If the Court of Appeal does so, it would be tantamount to punishing them for the same offence in violation of Article 14(7) of the ICCPR and Article 11(6) of the Hong Kong Bill of Rights.  He cited two decisions of the United Nations Human Rights Committee of Fardon v Australia (1629/2007) and Tillman v Australia (1635/2007) in support.

(2) As a fall back, Mr Tam referred to the practice of the Court of Appeal in dealing with the Secretary’s application to review a sentence which is manifestly inadequate which take into account the principle of jeopardy.  Two points emerge from such practice : (a) the Court will be slow to enhance a sentence and (b) the Court will give an appropriate discount to the sentence imposed to alleviate the hardship caused to the offender by the enhanced sentence.

(3) On discount to be given, it should be directly proportional to the percentage which has been actually served at the date of the substitution of the new sentence.  In the case of the 3^rd, 5^th and 12^th respondents, as they had already served their respective community service order in full, the discount to be given to them must be 100%.

33.With respect, Mr Tam’s primary argument is plainly unarguable for three reasons.

(1) A review of sentence brought by the Secretary authorised by statute enables a mistake made by the sentencing court to be rectified by the Court of Appeal in the interest of justice.  It simply does not involve punishing the offender a second time or repeatedly within the meaning of Article 14(7) of the ICCPR and Article 11(6) of the Hong Kong Bill of Rights.

(2) If Mr Tam’s argument were right, then even if the original sentence is wrong in principle or manifestly inadequate, then as along as the offender has served the original sentence in full, the Court of Appeal can do nothing although the interest of justice clearly demands the mistake made by the sentencing court to be rectified.  This simply cannot be right.

(3) Faced with an application for review against the community service order imposed on him, an offender may defeat it in this way. He brings an appeal against his conviction.  By virtue of section 81C(1)(a) of the Criminal Procedure Ordinance,[7] the review application has to be adjourned pending the outcome of his appeal against conviction.  The offender can then take steps to delay the prosecution of his appeal while in the meantime serves the community service order in full.  Mr Tam’s argument, if correct, would mean that the review application must fail even if the community service order is wrong in principle or manifestly inadequate because, by the offender’s litigation tactics, it has now been fully served.  This would be an abuse of the criminal justice system.

34.The two decisions of the United Nations of Human Rights cited by Mr Tam does not assist him.  In Fardon, the defendant completed his initial imprisonment sentence.  Upon his release, the Attorney General applied under the Queensland Dangerous Prisoners (Sexual Offenders) Act 2003 to have the defendant detained for an indefinite term as a preventive measure, as he was a risk to the public.  The Human Rights Committee held that sentencing the defendant to further imprisonment after his completion of his initial sentence amounted to a fresh term of imprisonment, which, unlike the detention proper, is not permissible in the absence of a conviction for which imprisonment is a sentence prescribed by law.  Fardon was followed with identical reasoning, in Tillman, a case with largely similar facts. It can be seen that the facts in those two cases are wholly different from the present.  On those facts, the principle of double jeopardy of course applied in full.  But in an application for review, as noted, no double punishment as such is involved.

35.Mr Tam’s fall-back argument does not take his case any further.  The two points emerged from the practice of the Court of Appeal in reviewing a sentence are well-settled.  And we have adopted and applied them in the Judgement. See also Secretary for Justice v Lo King Fat [2016] 2 HKC 230 (CA), where this Court (differently constituted) at [109] – [116] reviewed a line of cases on the exercise of discretion to afford a discount in respect of increased sentence passed on review.  Recognising the hardship of substituting the community service orders, already served, with an immediate imprisonment, we afforded the respondents one month’s deduction by way of discretion on account of the fact of the review process itself.  We also considered the fact that 3^rd, 5^th and 12^th respondents had already completed their community service orders, and accordingly granted one further month’s deduction to them in the exercise of our discretion: [146] of the Judgment.

36.As to the extent of discount, there is no mechanistic rule of discount as advocated by Mr Tam.  It is always a matter of discretion to be exercised in accordance with the actual circumstances of the case.  It is not a question of law as such.

37.Question 11 was either not involved in the Judgment or is plainly unarguable.

D.  CONCLUSION

38.For the above reasons, we make the following orders :

(1) The application by the 1^st, 4^th, 7^th, 9^th and 11^th respondents in respect of Questions 1 to 3 is refused.  Their application in respect of Question 4 is allowed.

(2) The application by the 13^th respondent in respect of Question 5 is refused.

(3) The application by the 2^nd, 6^th and 8^th respondents in respect of Questions 6, 7 and 8 is allowed.  Their application in respect of Question 9 is refused.

(4) The application by the 3^rd, 5^th and 12^th respondents in respect of Questions 10 and 11 is refused.

Mr Jonathan Man, SADPP and Mr Derek Lau, acting SPP, of the Department of Justice, for the Applicant

Mr Douglas Kwok, instructed by M/s Tang, Wong & Chow, assigned by the Director of Legal Aid, for the 1^st, 4^th, 7^th, 9^th and 11^th Respondents

Mr Hectar Pun, SC, and Mr Anson Wong Yu Yat, instructed by M/s Bong Ng Solicitors, for the 2^nd, 6^th and 8^th Respondents

Mr Jeffrey Tam, instructed by M/s Ho, Tse, Wai & Partners, assigned by the Director of Legal Aid, for the 3^rd, 5^th and 12^th Respondents

Mr Douglas Kwok, instructed by M/s Bong Ng Solicitors, for the 13^th Respondent

[1] Cap 484.

[2] Cap 245.

[3] Cap 200.

[4] See the Magistrate’s Verdict and Sentence delivered on 30 December 2015, at p 4I – M.

[5] The position may be different if the very cause promoted by the demonstrators itself is or involves a breach of the law.  But we are not concerned with such a case here.

[6] Cap 378.

[7] Section 81C(1)(a) provides :

“ (1) The Court of Appeal shall not review a sentence under section 81B if the respondent has –

(a) appealed against the conviction in respect of which the sentence was passed, unless the appeal has been withdrawn or disposed of;”