Read the full judgment text of CACC 113/2018 on BabelCite. This Court of Appeal judgment was delivered on 16 April 2019 before Hon Macrae Acting CJHC.
Criminal law – sentencing – riot – Public Order Ordinance (Cap 245) s.19(1) and (2) – Mongkok disturbances on 8-9 February 2016 – applicant pleaded guilty to throwing a brick and shaking a signpost at police checkline on Shantung Street, at the forefront of a group of about 100 rioters, causing injuries to 29 police officers – applicant arrested in November 2016 – sentenced by trial judge to 2 years and 10 months' imprisonment – application for leave to appeal against sentence – single judge on leave – starting point of 5 years adopted from first-instance decision in HKSAR v Yeung Ka Lun – whether starting point manifestly excessive – Court of Appeal in Yeung Ka Lun (CACC 130/2017) upheld 5-year starting point as appropriate though not lenient, but Yeung Ka Lun involved arson (Crimes Ordinance Cap 200 s.60(1) and (3)), setting fire to a taxi, hurling flaming objects and a risk of LPG explosion, with maximum sentence of life – present case involved no fire-setting or arson by the applicant and maximum sentence of 10 years for riot – reasonably arguable that starting point overstates applicant's culpability – leave to appeal granted on that ground – whether judge's quantification of police as 'no more than 30' (prosecution said 'around 60') constitutes material error: held no – judge had viewed video and was aware of scale – whether judge misapprehended applicant's role in shaking loose signpost: held immaterial – sentencing math: starting point 5 years; one-third discount for guilty plea reducing sentence to 3 years 4 months; further 6 months' reduction for ADHD-related impulsiveness and lack of prior planning giving final sentence of 2 years and 10 months – guiding authorities: R v Pilgrim; Attorney General v Tse Ka Wah; Secretary for Justice v Cheung Chun Chin; R v Caird; R v Keys – sentences on co-rioters: HKSAR v Hui Ka Ki; HKSAR v Yeung Tsz Hin Chris; HKSAR v Mok Ka To.
Legal issues: Whether the starting point of 5 years' imprisonment for riot was manifestly excessive by reference to comparable authorities · Whether the judge's factual finding of 'about 100 rioters against no more than 30 police officers' was a material error · Whether the judge erred in finding the applicant had shaken loose a signpost from its base
Outcome: Leave to appeal against sentence granted, on the ground that the starting point of 5 years' imprisonment was arguably too high by reference to HKSAR v Yeung Ka Lun; complaints as to the judge's quantification of police numbers and as to the signpost finding were not granted as discrete grounds but may be revisited in context.
Cites 6 cases