Read the full judgment text of FACC 3 to 15 of 2018 on BabelCite. This Court of Final Appeal judgment was delivered on 28 September 2018 before Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ and Lord Neuberger of Abbotsbury NPJ.
Criminal law – unlawful assembly – section 18(3) Public Order Ordinance – sentencing – review under section 81A Criminal Procedure Ordinance – about 300 to 400 protesters attempted forced entry into Legislative Council complex using Mills barriers, bamboo poles and metal bars – sustained violence lasting nearly half an hour – security officer injured with broken toes – damage exceeding HK$400,000 – magistrate imposed community service orders of 120 to 150 hours – Secretary for Justice applied for review of sentence – Court of Appeal found magistrate erred in principle and imposed manifestly inadequate sentences – substituted 13 months' imprisonment for D1-D11 and D13, and 8 months' imprisonment for D12 – whether magistrate made relevant error engaging section 81A jurisdiction – held yes, magistrate failed to give weight to violence and lack of remorse, and community service orders were manifestly inadequate even under the pre-Wong Chi Fung sentencing regime – whether Court of Appeal retrospectively applied Wong Chi Fung sentencing guidelines – held yes, starting point of 15 months' imprisonment could not be justified on the previous range of sentences and the Secretary for Justice accepted the new guidelines must have been applied retrospectively – whether Court of Appeal failed properly to consider section 109A in respect of 5th and 6th appellants who were under 21 at time of offence – held the relevant date for section 109A is the date of sentence – but where an offender turns 21 between the dates of offending and sentence, the fact of his youth remains a powerful mitigating factor and the court should generally impose a sentence much the same as for an offender just under 21 – Court of Appeal made no reference to section 109A in its judgment – double jeopardy and proportionality arguments not open to appellants as they were not raised below and were not part of the limited grounds for which leave was granted – appeals allowed – Court of Appeal's sentences of imprisonment set aside – substituted with sentences corresponding to the period of time already served in prison by each appellant pending appeal.
Legal issues: Whether magistrate made a relevant error engaging section 81A jurisdiction · Retrospective application of Wong Chi Fung sentencing guidelines · Construction of section 109A Criminal Procedure Ordinance regarding youth offenders
Outcome: Appeals allowed; Court of Appeal's sentences of imprisonment set aside; sentences of imprisonment corresponding to the period of time already served in prison by each appellant substituted.
Cited by 21 cases · Cites 7 cases