HKSAR v. Lo Kin Man

CACC 164/2018

[2020] HKCA 646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 164 OF 2018

(ON APPEAL FROM HCCC 408 OF 2016)

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Before: Hon Poon CJHC, Chu JA and Pang JA in Court

Dates of Written Submissions: 1, 3, 18 June and 2 July 2020

Date of Judgment: 31 July 2020

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J U D G M E N T

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Hon Poon CJHC (giving the judgment of the Court):

Introduction

1.The applicant was, after trial, convicted of one charge (Count 3) of riot contrary to section 19 of the Public Order Ordinance, Cap 245 and was sentenced to 7 years’ imprisonment.  His subsequent applications for leave to appeal against conviction and sentence were dismissed by this Court on 29 April 2020: [2020] HKCA 275.

2.By two Notices of Motion both dated 11 May 2020 (one for conviction and one for sentence), the applicant applies for certification under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that points of law of great and general importance are involved in our judgment refusing leave, so as to enable him to appeal to the Court of Final Appeal.

Conviction

3.In relation to conviction, the question sought to be certified is:

“Insofar as the elements of the offence of riot under section 19 of the Public Order Ordinance are concerned, whether the ‘common purpose’ to be held by the defendants is distinguishable from their shared mens rea of committing the breach of peace?”

4.Mr Lawrence Lau, for the applicant, submitted that one of the elements constituting the offence of riot is unlawful assembly.  Under section 18 of the Public Order Ordinance, the conditions for unlawful assembly include 3 or more persons assembling together conducting themselves in a disorderly, intimidating, insulting or provocative manner.  Referring to Secretary of Justice v Leung Kwok Wah [2012] 5 HKLRD 556, Mr Lau submitted that it is not enough to show that 3 or more persons conducted themselves in the prescribed manner for different purposes.  He submitted that it has to be shown that such conduct is a means by which the assembled persons seek to achieve an ulterior common purpose (or objective).  He argued that this common purpose must be different from “the mens rea” of the conduct prescribed by section 18.  Thus, it is not sufficient to show that, for example, the assembled persons intended to breach the peace by engaging in such conduct; but it has to be shown that they intended by such conduct to achieve an ulterior common purpose, beyond the breach of peace.  With respect, Mr Lau is merely repeating the same arguments advanced before us, which were rejected.

5.Mr David Leung SC (together with Ms Vinci Lam, Mr Ivan Cheung and Mr Douglas Lau), for the respondent, submitted that Secretary of Justice v Leung Kwok Wah only decided that the corporate nature of the unlawful assembly offence required a nexus to be shown between the conduct of assembled persons, which is to be proved by showing a common purpose.  Mr Leung submitted that this common purpose can simply be to engage in the prescribed conduct, without another ulterior purpose (or motive).

6.As explained in our judgment, the parties agreed that a common purpose needs to be shown as an element for the offence of unlawful assembly.  This element of a common purpose, originated in the common law, was retained in section 18.  We examined this element under the common law and held that the required common purpose can be a lawful or unlawful one, or even only one to commit a breach of peace without any other purpose.  There is no requirement to show an ulterior common purpose or motive.  Properly understood, Secretary of Justice v Leung Kwok Wah did not decide that there is such a requirement.  In our view, the law is well-settled.  The question sought to be certified is not reasonably arguable and cannot be said to raise a point of law of great and general importance.

Sentence

7.In relation to sentence, four questions are raised:

“1. In sentencing the defendant being convicted of riot, where the trial judge or jury did not expressly find that the defendant was involved in planning or organizing the riot, be it premediated or not, whether the relevant principles of law as applied in Hong Kong permit the court to impose a deterrent sentence on the defendant (i.e. a starting point of 7 years’ imprisonment) in the absence of the said finding?

2. Where the defendants were being tried together for riots which took place in the same area on the same night (Count 3 and 4), and the evidence demonstrated that the violence involved in Count 4 was more serious than in Count 3, whether the court is permitted to impose a higher starting point on the 3^rd defendant being charged in Count 3 than the 1^st and 5^th defendants being charged in Count 4?

3. Where both the trial judge and the Court of Appeal found that the violence involved was less serious than another case of riot happened a day after, namely, HKSAR v Yeung Ka Lun [2019] 1 HKC 296 which involved arson during the riot, whether the principle of consistency as applied in Hong Kong should be adopted and therefore the defendant ought to be given a lower, if not, broadly the same starting point (i.e. a starting of 5 years’ imprisonment) as in HKSAR v Yeung Ka Lun [2019] 1 HKC 296.

4. Unlike the defendant in HKSAR v Tang Ho Yin [2019] 3 HKLRD 502 who was found to have thrown bricks at the police officers during the riot, where the trial judge ruled that there was no direct evidence showing that the defendant had thrown bricks at the police officers, whether the principle of consistency as applied in Hong Kong should be adopted and therefore the defendant ought to be given a lower, if not, broadly the same starting point (i.e. a starting point of 5 years’ imprisonment) as in HKSAR v Tang Ho Yin [2019] 3 HKLRD 502.”

8.In respect of the first question, Mr Lawrence Lok SC (together with Ms Tina Mok), for the applicant, submitted that there was no finding that the applicant was involved in planning or organizing the riot, and therefore the starting point of sentence should have been lower.

9.Referring to the sentencing considerations for the riot offence set out in our judgment, Mr Leung submitted that the riot in question was not only large scale and extremely serious, but was also premediated.  It comprised of acts of confrontation by the crowd against police officers for almost four hours involving various violent acts.  Although there was no finding that the applicant was involved in planning and organizing the riot, he did take a significant part in it and the gravity of the offence lies in what the rioters as a group did, rather than what he did as an individual.

10.In respect of the second to fourth questions, Mr Lok compared the starting points for other defendants in another charge (Count 4) and in other cases, namely HKSAR v Yeung Ka Lun, and HKSAR v Tang Ho Yin.  He submitted that the applicant’s starting point was higher even though the riots in the other charge and other cases were more serious. Referring to passages in Chan Chi Ming v R [1979] HKLR 491 and Secretary for Justice v Yan Shen [2012] 3 HKLRD 652, he submitted that, although there is no sentencing tariff for the offence of riot, there should be consistency in the punishment for similar offences, and that different degrees of culpability should be reflected by different sentences.  Even for offences which require deterrent sentences, a blind eye should not be turned to individual circumstances.

11.Mr Leung submitted that no question of law would be involved in comparing sentences for different charges and different cases, as it was dependent on the assessment of the facts in each case. Consistency is achieved through the correct application of the relevant sentencing principles. 

12.As this Court has repeatedly emphasized, the sentencing approach for the riot offence is essentially one of deterrence.  The gravity of the offence is to be judged by what was done by the rioters as a group, rather than the individual member: R v Blackshaw & Others [2012] 1 Cr. App. R. (S) 114; and HKSAR v Tang Ho Yin.  There is no challenge to the sentencing considerations set out in our judgment.  The first question is not reasonably arguable and cannot be said to involve a point of law of great and general importance.

13.It is also well-settled that comparing the sentences in other charges or other cases is unhelpful for sentencing, as the facts in each case before the sentencing court are different: HKSAR v Yeung Ka Lun.  What is important is the correct application of the principles to the circumstances of the case before the sentencing court.  The second to fourth questions are not points of law of great and general importance either.

Conclusion

14.For the above reasons, we refuse to certify the questions raised in connection with both conviction and sentence and dismiss the Notices of Motion.

Mr Lawrence Lok SC (for sentence only), Mr Lawrence Lau (for conviction and sentence) instructed by Bond Ng Solicitors, assigned by the Director of Legal Aid, and Ms Tina Mok (for sentence only), instructed by Bond Ng Solicitors, for the Applicant (D3)

Mr David Leung SC, DPP, Ms Vinci Lam, DDPP, Mr Ivan Cheung, SPP and Mr Douglas Lau, PP of the Department of Justice, for the Respondent