Read the full judgment text of CACC 164/2018 on BabelCite. This Court of Appeal judgment was delivered on 29 April 2020 before Poon CJHC, Chu JJA, Pang JJA.
Criminal law – riot – unlawful assembly – common purpose – sentencing – appeal – Public Order Ordinance (Cap 245) ss.18, 19 – Riot in Mongkok on Lunar New Year Day 8 February 2016 involving clashes between police and public at Portland Street, Argyle Street, Shantung Street, Fa Yuen Street and Soy Street, with applicants LEUNG TIN KEI (1st Applicant, D1), LO KIN MAN (2nd Applicant, D3) and WONG KA KUI (3rd Applicant, D5) tried in the High Court – Whether trial judge erred in directing the jury on the common purpose element of unlawful assembly under s.18(1) Public Order Ordinance in respect of Charge 3 – Whether the common purpose preserved from the common law must be a purpose beyond that of conducting themselves in the prescribed disorderly, intimidating, insulting or provocative manner – Held: No; the common law requirement of a common purpose is preserved under s.18(1) and the offence has a 'corporate nature' requiring sufficient nexus, but under the common law the common purpose may be lawful, unlawful, or purely for breaching the public peace with no other purpose required; accordingly, a common purpose of conducting themselves in the prescribed manner is sufficient to satisfy s.18(1) – Trial judge's directions on common purpose were correct and 2nd applicant's grounds of appeal against conviction on Charge 3 fail – Whether the trial judge erred in taking into account the Fife Street arson in determining the starting point for the 1st applicant's sentence on Charge 4 (Argyle Street riot) – Held: The Fife Street arson was at a different location (junction of Portland Street and Fife Street), was not part of the prosecution case for Charge 4 (which concerned the section of Argyle Street between Portland Street and Shanghai Street), and should not have been taken into account; however, the starting point of 6 years was not manifestly excessive in light of the other circumstances of the Argyle Street riot – Whether the starting points of 7 years (D3, Charge 3 Portland Street), 6 years (D1, Charge 4 Argyle Street) and 4 years 6 months (D5, Charge 4 Argyle Street) were manifestly excessive – Held: No; following Caird, Blackshaw, Wong Chi Fung and Tang Ho-yin, the gravamen of riot is the participants acting in large numbers to achieve a common purpose by violence; sentences for riot must be punitive and deterrent, and an immediate custodial sentence is generally inevitable; the court assesses the corporate gravity of the riot rather than the individual acts in isolation; the social or political background is not a mitigating factor and the offender's ideological convictions are not a strong mitigating factor; previous good character and being a university student are not mitigating factors – D1's application for leave to appeal against sentence allowed and treated as the appeal proper but appeal dismissed; D3 and D5's applications for leave to appeal refused – Sentences: D1 – starting point 6 years on Charge 4 (Argyle Street riot), no discount, concurrent 1 year on Charge 6 (assaulting police officer), total 6 years' imprisonment; D3 – starting point 7 years on Charge 3 (Portland Street riot), no discount, final 7 years' imprisonment; D5 – starting point reduced from 6 years to 4 years 6 months on Charge 4 (Argyle Street riot) due to early arrest and limited participation, further ~23% discount for guilty plea, final 3 years and 6 months' imprisonment
Legal issues: Common purpose under s.18(1) Public Order Ordinance – whether purpose beyond prescribed conduct required · Starting point of 7 years' imprisonment for the 2nd applicant on Charge 3 (Portland Street riot) – whether manifestly excessive · Starting point of 6 years' imprisonment for the 1st applicant on Charge 4 (Argyle Street riot) – whether manifestly excessive · Whether the Fife Street arson could be taken into account in determining the starting point for the 1st applicant's sentence on Charge 4 · Starting point of 4 years 6 months for the 3rd applicant on Charge 4 – whether manifestly excessive
Outcome: 1st applicant's application for leave to appeal against sentence allowed and treated as the appeal proper, but the appeal against sentence dismissed. 2nd applicant's application for leave to appeal against conviction and sentence refused. 3rd applicant's application for leave to appeal against sentence refused.
Cited by 66 cases · Cites 3 cases