Secretary for Justice v. Lau Kwok Leung

FAMC Nos. 43 to 55 of 2017

[2018] HKCFA 13

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 43 TO 55 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CAAR NO. 3 OF 2016)

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D E T E R M I N A T I O N

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The Appeal Committee:

1.These applications for leave to appeal to the Court of Final Appeal arise out of a review by the Court of Appeal of sentences passed by a magistrate on the applicants after they were convicted of taking part in an unlawful assembly[1] at the Legislative Council Complex on 13 June 2014.

2.We grant leave to appeal to each of the applicants confined to the ground that it is reasonably arguable that substantial and grave injustice has been done to the applicants by reason of the Court of Appeal’s departure from the principle that an offender is to be sentenced on the existing or prevailing guideline or tariff of sentence existing at the time of the commission of the offence.

3.We also grant leave to appeal to the 5^th and 6^th applicants on the additional ground that it is reasonably arguable that substantial and grave injustice has been done to them by reason of the Court of Appeal’s failure properly to consider section 109A of the Criminal Procedure Ordinance.[2]

4.We are otherwise satisfied that the four questions of law certified by the Court of Appeal[3] have already been fully answered in the Court’s judgment in Secretary for Justice v Wong Chi Fung & Others[4] and, in the circumstances, we therefore refuse leave to appeal in respect of those questions.

5.We also refuse leave to appeal on the various other grounds advanced in support of the application under the substantial and grave injustice limb since they lack sufficient merit.

6.The appeals will be heard on 7 September 2018.

Mr Martin Lee SC and Mr Jeffrey Tam, instructed by Ho Tse Wai & Partners, assigned by the Director of Legal Aid, for the 3^rd, 5^th, 10^th, 11^th & 12^th Applicants (D3, D5, D11, D12 & D14) in FAMC 43, 44, 45, 46 & 47/2017

Mr Philip Dykes SC and Mr Douglas Kwok, instructed by Bond Ng Solicitors, assigned by the Director of Legal Aid, for the 1^st, 4^th, 9^th & 13^th Applicants (D1, D4, D10 & D15) in FAMC 50, 52, 54 & 55/2017

Mr Hectar Pun SC and Mr Anson Wong Yu Yat, instructed by Bond Ng Solicitors, for the 2^nd & 6^th Applicants (D2 & D6) in FAMC 51 & 53/2017

Mr Osmond Lam and Ms Jacquelyn Ng, instructed by Sanny Kwong & Co., for the 7^th & 8^th Applicants (D7 & D8) in FAMC 48 & 49/2017

Mr David Leung SC, DPP, Mr Jonathan Man SADPP, Mr Derek Lau SPP and Ms Annie Li PP, of the Department of Justice, for the Respondent in FAMC 43-55/2017