Read the full judgment text of FACC 3-15/2018 on BabelCite. This Court of Final Appeal judgment was delivered on 7 September 2018 before Chief Justice Ma, Ribeiro PJ, Tang PJ, Fok PJ, Lord Neuberger of Abbotsbury NPJ.
Criminal law – unlawful assembly – review of sentence under section 81A Criminal Procedure Ordinance – sentence manifestly inadequate – retrospective application of new sentencing guidelines – principles of legal certainty and non-retroactivity – section 109A Criminal Procedure Ordinance – imprisonment of young persons as last resort – Hong Kong Bill of Rights – On 13 June 2014, around 300 to 400 protesters at the Legislative Council complex in Hong Kong violently attempted to force entry into the LegCo building using Mills barriers, bamboo poles and metal bars over nearly half an hour, causing over HK$400,000 in damage and injuring a security officer – whether the magistrate made a relevant error so as to justify the Court of Appeal exercising its jurisdiction under section 81A of the Criminal Procedure Ordinance to review the magistrate's sentences of community service orders – held yes: the magistrate erred in principle in disregarding the violence, failing to give sufficient weight to deterrence, and not properly weighing the absence of genuine remorse; the community service orders were manifestly inadequate given the scale of the assembly and violence deployed – whether the Court of Appeal retrospectively applied the Wong Chi Fung sentencing guidelines – held yes: the Court of Appeal's 15-month starting point could not be justified on the state of previous authorities, with the closest factual parallel (HKSAR v Tai Chi Shing) suggesting an upper end of 6 months; the retrospective application of the new guidelines was a departure from an established norm giving rise to substantial and grave injustice – whether the Court of Appeal failed properly to consider section 109A of the Criminal Procedure Ordinance in respect of the 5th and 6th appellants who were young persons – held: the relevant date for the purposes of section 109A is the date on which the sentence of imprisonment is passed; section 109A therefore did not strictly apply, but the Court of Appeal nonetheless erred in not adopting the conceptual approach under R v Danga, by which young offenders who have just turned 21 should in substance receive sentences much the same as if section 109A had applied – Appeals allowed; sentences of imprisonment imposed by the Court of Appeal set aside; substituted with sentences of imprisonment corresponding to the period of time already served in prison by each appellant – the appellants had served between 3 months 9 days and 5 months 23 days, with the 13th appellant serving 3 months 30 days including an additional 21 days for breach of the community service order – CFA declined to remit to the Court of Appeal and instead resolved sentencing given the history of the case and the fact that events took place over 4 years ago – Court reiterated the much stricter view to be taken when sentencing in unlawful assembly cases involving disorder or violence.
Legal issues: Engagement of Court of Appeal's section 81A jurisdiction to review magistrate's sentences of community service orders · Whether Court of Appeal retrospectively applied Wong Chi Fung sentencing guidelines · Proper interpretation of section 109A and relevance to 5th and 6th appellants
Outcome: Appeals allowed; sentences of imprisonment imposed by the Court of Appeal set aside; sentences of imprisonment corresponding to the period of time already served in prison by each appellant substituted in their place.
Cites 8 cases