Secretary for Justice v. Law Man Chung

[English Translation – 英譯本]

CAAR 4/2019

[2020] HKCA 262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 4 OF 2019

(ON REVIEW FROM STCC NO 3610 of 2019)

________________________

BETWEEN

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Before:  Hon Poon CJHC, Chu and Pang JJA

Date of Hearing:  4 March 2020

Date of Judgment:  24 April 2020

JUDGMENT

Court of Appeal:

Introduction

1.On 15 October 2019, the respondent pleaded guilty before Mr. LI Chi-ho, a magistrate (“the trial magistrate”) to one count of desecrating the national flag, contrary to section 7 of the National Flag and National Emblem Ordinance[1]. After hearing mitigation, the trial magistrate adjourned the hearing to call for probation officer’s report and community service suitability report before sentence. On 29 October 2019, the trial magistrate ordered at the subsequent hearing that the respondent should perform 200 hours of community service, and his reasons can be seen in the Reasons for Sentence of the same date.

2.The applicant applied for a review of sentence on 14 November 2019. After leave was granted on 18 November 2019, the applicant applied to the Court of Appeal for review of sentence pursuant to section 81A of the Criminal Procedure Ordinance [2].

Facts of the case

3.Based on the “Amended Summary of Facts” [3] agreed by the respondent, the trial magistrate described the facts as follows[4]:

“2. On 22 September 2019, in response to an online appeal, quite a number of protestors gathered near New Town Plaza to express their resentment over the SAR government. This rally, however, had not been granted with a letter of no objection from the police.

3. At about 3pm, the protestors (including the defendant) took down a national flag from the flagpole at the Sha Tin Town Hall and brought it to New Town Plaza. When doing so, the protestors chanted slogans and threw it up in the air. They trampled the flag when it fell on the ground. Some protestors sprayed it with black paint and an unknown liquid. The flag was later taken to the open space between New Town Plaza and Town Hall and was left on the ground.

4. Later, the defendant and some protestors went to where the flag was dumped. The defendant picked up the flag and threw it into a dumpster, which was then pushed into a pool inside the Sha Tin Park.

5. The flag was eventually picked up by a protestor and thrown into the Shing Mun River. The dumpster was burnt by other protestors.

6. The defendant was arrested on the same day in the evening. Under caution, he admitted trampling the national flag, throwing it into the dumpster and pushing them into the pool. He claimed it was just “for fun”.”

Mitigation and reports

4.The respondent was 21 years of age at the time of the offence. He lived with his parents and younger brother. He studied physical education at the Vocational Training Council after finishing form 6 in 2016, but he quit after three months and started working as a transportation worker. He changed work in August 2019 and became an air conditioning apprentice and earned commendation from his employer. The respondent had a clear record.

5.The respondent told the probation officer that he was not aware of the serious legal consequences of desecration of the national flag, he just did it for fun and was feeling very remorseful. He also felt very sorry for the frustration caused to his family. He promised he would be cautious and stay away from crime.

6.Given his clear record, his remorse and the strong support from his family, instead of a probation order, the probation officer recommended a community service order for 81 to 160 hours for the defendant to pay back the community and strengthen his sense of law and order.

Reasons for sentence

7.The trial magistrate agreed that the respondent’s reports were very positive. Although he was not an academic achiever, he did not go astray. He had a job and was not living idly[5]. The trial magistrate stressed that the background of the respondent, the reason for committing the crime, the facts of the case, his plea of guilty and his clear record had to be taken into consideration[6].

8.The trial magistrate referred to HKSAR v Koo Sze Yiu (No 2) [2014] 4 HKLRD 565, which he found to be of extremely high referential value. The trial magistrate drew particular attention to the fact that the two appellants of that case were convicted after trial and that the 2^nd appellant had a clear record. He referred to the facts of that case: no accelerant had been poured on the regional flag that was ignited, no one had actually been injured, there was no evidence that the demonstrators, including the two appellants, were acting in concert to obstruct the police to put out the fire. It was then said that those were the factors that Pang J (as he then was) allowed the appeal and varied the sentence of the 2^nd appellant from 230 hours of community service order to 110 hours[7]. The trial magistrate found this case in general was less serious when compared to Koo Sze Yiu (No 2)[8]in a sense that it only involved trampling and throwing the national flag into a dumpster and then the pool without the dangerous part of setting it on fire.

9.Finally, the trial magistrate said,

“14. When passing sentence, I did not forget the ongoing protests in this society. Desecration of the national flag was previously reported in the news. No permission was granted to this rally, the national flag was torn down from the flagpole at the Town Hall and was desecrated repeatedly in different ways. However, I have to look at things like the defendant’s mitigating factors and personal background and redress the balance. Is immediate imprisonment the only option?

15. Having considered all the mitigating factors, the facts of the case and Koo Sze Yiu (No.2), I find community service order an appropriate sentencing option. However, the defendant did desecrate the national flag numerous times, I will increase the number of hours of service recommended by the probation officer, which is 160 hours, to 200 hours to reflect the gravity of the offence.”

Exhibit 11

10.It is not disputed that the desecration of the national flag by the respondent and other protestors was filmed by the media. Four relevant video clips were included in Exhibit 11. The respondent had watched the video clips while under caution and he was able to identify himself[9]. Exhibit 11 was not played before the trial magistrate. As can be seen from the transcript of the trial and the Reasons for Sentence, the trial magistrate did not watch the video clips in Exhibit 11 in chambers either.

11.During the review hearing, the applicant applied to this court for leave to play Exhibit 11, the purpose of which was to enable the court to fully understand the criminal act of the respondent. Although the respondent agreed that the court was entitled to watch exhibit 11, he objected in principle that in paragraph 5 of the “Amended Summary of Facts”, he just admitted under caution that he did see himself in the footage filmed at the scene. Moreover, the “Amended Summary of Facts” did not mention or provide any description of the content or details of the footage. The “Amended Summary of Facts” that the respondent agreed to was the result of the negotiations between the prosecution and the defence, which was different from the original version. The parties must have their intention and purpose for doing so. Moreover, the prosecution did not ask the trial magistrate to watch Exhibit 11, nor did the trial magistrate indicate that he had watched it himself. In other words, the four video clips were not the factual basis that the trial magistrate relied on when passing sentence, therefore, it was just not appropriate for this Court to watch the footages even if this Court was entitled to do so. The only appropriate way for this Court to deal with this review application was like what the trial magistrate did, i.e. to rely on the content of the written “Amended Summary of Facts”. The respondent also commented that the footages of Exhibit 11 did not add much to the “Amended Summary of Facts”.

12.This Court does not agree to the respondent’s grounds of objection.

13.First of all, Exhibit 11 was an exhibit before the trial magistrate, an information that he could have watched and referred to when passing sentence. Similarly, the trial magistrate could inspect exhibit 1, i.e. the national flag in question. The respondent did not put forward any authority or argument in the contrary.

14.Second, the respondent argued that although the footage had been produced as an exhibit, paragraph 5 of the “Amended Summary of Facts” was nothing more than saying that the respondent identified himself. However, any identification based on video must not be separated from its background and context. After watching the four footages in Exhibit 11 in full, the respondent admitted that he was one of the people appearing in them, though he did not appear in every shot. Furthermore, the respondent did not challenge the authenticity of the footages at all, it can be said that he accepted that the content of the entire footage was true. The description in paragraph 5 of the “Amended Summary of Facts” could neither restrain the court from viewing the video nor confine the purpose of such footages to identifying the respondent only.  

15.Third, the respondent submitted that this Court should only take into consideration the “Amended Summary of Facts” agreed by the prosecution and the defence after negotiations, and deal with the review application in a similar way to that the trial magistrate dealt with Exhibit 11. However, this Court does not know what the negotiations between the prosecution and the defence over the “Amended Summary of Facts” were about. We do agree with the prosecution that the trial magistrate could have been asked to watch Exhibit 11 and that he was free to request the footage to be played, but all these are irrelevant. The concern of this Court is whether the sentence imposed by the trial magistrate based on the evidence before him was a correct one. Since the Court of Appeal is permitted to have regard to all the evidence that was available to the sentencing court in an application for review (Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35, at pp 58-59), the fact that the trial magistrate did not watch the footage related to the offence cannot possibly bind this Court. 

16.Fourth, this Court finds that watching the footages can no doubt make us know more about the criminal act of the respondent and the general situation of the offence at that time. This is very important when deciding whether the sentence at the trial was appropriate.

17.While this Court does not accept the submission of the respondent, it does not mean the applicant was allowed to play all the footages in court. According to paragraph 2 of the “Amended Summary of Facts”, the prosecution did not say that the respondent was one of those who tore down the national flag in Sha Tin Town Hall, nor did it say he knew the national flag at Sha Tin Town Hall was torn down. Therefore, this part of the footage had nothing to do with the sentencing or the review application. Besides, the applicant stated that the respondent was seen in the footage capturing the national flag being thrown into Shing Mun River. The “Amended Summary of Facts”, however, did not have such an allegation; it would be unfair to the respondent if the court was to watch this part of the footage. To make sure that the video clip that was going to be played in court was consistent with the respondent’s alleged criminal act in the “Amended Summary of Facts”, this Court did not allow the above mentioned part of the footage to be played in court but allowed the rest to be played.   

The applicant’s position

18.The foundation of the applicant’s application for review was that the sentence imposed by the trial magistrate was wrong in principle and manifestly inadequate to reflect the seriounsness of the offence. The applicant submitted that custodial sentence was the only appropriate penalty for punishment and deterrent. The applicant put forward 3 main grounds.

19.First of all, the trial magistrate underrated the seriousness of this case, ignored the gravamen of the offence of desecration of the national flag and failed to consider deterrence for the reasons below:

(1)  The trial magistrate failed to follow the six factors in sentencing[10] that the Court of Appeal stressed in paragraph 108 of Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 657, and give proper weight to such factors of sentencing as the offence of the case, the mens rea, the actual facts of the case as well as the aftermath brought by the offence. On the contrary, he put too much weight on factors favourable to the respondent.

(2)  The Court of Final Appeal has made it clear in HKSAR v Ng Kung Siu (1999) 2 HKCFAR 469 at 483E the legislative objective of the offence of desecration of the national flag. Given the nature of the offence and the actual facts of the case, which were significantly serious, though the desecration did not involve burning¸ the trial magistrate was still required to impose a deterrent sentence of a custodial sentence, which included training centre order and imprisonment.

(3)  The criminal acts of the respondent were serious, which included: throwing the national flag in the air and letting it fall on the ground in the atrium of New Town Plaza in the presence of a large crowd¸ mockingly and repeatedly trampling the national flag with the protestors, parading the defaced national flag with the protestors, taking the national flag to the podium on 3^rd floor of New Town Plaza and throwing it on the ground, picking up the national flag again and casting it into a dumpster that was then pushed into the pool. Not only did each of these actions add more insult to the desecration, at the end it gave the message of renouncing the flag, which gravely undermined the dignity of the State that the national flag represents. Based on the criminal acts of the respondent, this case was of medium/high seriousness.

20.Second, the trial magistrate failed to take into full consideration the aggravating factors in this case, the sentence was not sufficient to reflect the respondent’s culpability for the following reasons:

(1)  This is a case of joint enterprise. The respondent committed the offence among a group of people and he incited other people present to take part in the crime.

(2)  The desecration of the national flag by the respondent was not a single act, but an ongoing series of different and related acts. While there was no evidence that it was premeditated, the respondent actively took part in the desecration at different stages. He even took the initiative to suggest throwing the national flag into a dumpster.

(3)  The national flag concerned was not prepared by the respondent, so when committing the offence, he was damaging government or other people’s property.

21.Third, given the facts of the case and the aggravating factors, a Community Service Order was manifestly inadequate and wrong in principle because:

(1)  No doubt the personal circumstances of the respondent had to be taken into consideration, but that was not the primary concern, as opposed to the facts of this case and the public interest involved in the aggravating factors. Instead, the court should have imposed a custodial sentence which was more about punishment and deterrent.

(2)  The trial magistrate cited Koo Sze Yiu (No.2), on which he put too much weight, and took an erroneous view that that case was more serious than the present one. In fact, Koo Sze Yiu was far less serious than the present case.

22.In general, the applicant was saying that this case was worse than any national flag desecration cases that the court had previously dealt with, which should be reflected in the sentence.  And since the nature and the range of sentences of previous cases varied rather widely, the applicant hoped that this Court would set out factors that should be considered when passing sentence in cases of similar nature to serve as guidance for the lower courts. The applicant also hoped that this Court would accept her submissions and make the clarification that, depending on the circumstances, the court would not necessarily pass a non-custodial sentence on a defendant who did not burn the national flag and did not have any similar previous record.  

Position of the respondent

23.The first point of the respondent was that the offence of desecration of the national flag could involve different circumstances of offending and varied greatly in terms of seriousness. It was not appropriate for the court to make imprisonment mandatory and setting the sentencing guidelines across-the-board.

24.The respondent stressed that looking at the previous cases in general, custodial sentence was imposed only when the national or regional flag was burnt and the defendant was a recidivist. Amongst all kinds of desecration described in the National Flag and National Emblem Ordinance, burning would put people and things nearby in danger, and the national flag would possibly be “left in ashes and vanish forever”, which was obviously more serious than other desecrations. As such elements were absent in this case, imprisonment was inapplicable. Deterrent sentence was not suitable for a first offender unless a sentence of imprisonment was mandatory for this offence.  

25.The respondent said there was no evidence showing that he knew where the national flag came from or he was one of the people who tore down the national flag from the flagpole and brought it to New Town Plaza, nor was there any evidence that other people present were not desecrating the national flag with the respondent of their own volition. As a result, the propositions of the respondent damaging government property and joint enterprise could not stand, nor were they relevant.

26.The respondent contended that the desecration of the national flag normally happened in a public assembly, which usually involved more than one kind of desecration. Therefore, even though other people present could be joining and inciting each other to continue to commit the offence, that should not necessarily be an aggravating factor and warrant an immediate custodial sentence. It was not how the court dealt with this kind of cases before.

27.The respondent met all the six criteria for the community service order: he was a first offender, he came from a stable home background, he had a good work record, he was in employment, he had shown genuine remorse, and he presented no more than a slight risk of re-offending (R v Brown (1981) 3 Cr App R (S) 294). If circumstances of the case are suitable, a Community Service Order can be an alternative sentencing option to custodial sentence (Secretary for Justice v. Leung Hiu Yeung and Others [2018] 1 HKLRD 702). The respondent submitted that the trial magistrate had not underrated the seriousness of the case or ignored the gravamen of the offence; quite the contrary, he had exercised his discretion by reasonably enhancing the number of hours of Community Service Order recommended by the probation officer to 200 hours.

28.Lastly, the respondent cited paragraphs 126 and 135 of Secretary for Justice v Wong Chi Fung and submitted that if this court was minded to lay down sentencing guidelines for desecration of national flag of a directory nature, they should only be applicable to future cases and should not have any adverse effect on the respondent.

The gravamen of section 7 of the National Flag and National Emblem Ordinance

29.When imposing sentence for any statutory offence, the court has to consider the legislative intent and the gravamen of the provision. Section 7 of the National Flag and National Emblem Ordinance provides that:

“A person who desecrates the national flag or national emblem by publicly and wilfully burning, mutilating, scrawling on, defiling or trampling on it commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 3 years.”

30.In Ng Kung Siu, the Court of Final Appeal ruled that section 7 does not contravene the Basic Law, that it is a justifiable restriction on the guaranteed right to the freedom of expression, and it is constitutional. Chief Justice Li elaborated the legislative intent of the desecration offence and the gravamen:

(1)  A national flag is the symbol of a nation. It is a unique symbol. All nations have flags. National emblems are also common. The national flag is the symbol of the People’s Republic of China. It is the symbol of the State and the sovereignty of the State. It represents the People's Republic of China, with her dignity, unity and territorial integrity[11].

(2)  The society in the People’s Republic of China, the country as a whole, including the Hong Kong Special Administrative Region, has a legitimate interest in protecting their national flag, the unique symbol of the Nation[12].

(3)  Flag desecration is symbolic expression or non-verbal expression. The prohibition of desecration of the national and regional flags by section 7 is not a wide restriction of the freedom of expression. It is a limited one. It bans one mode of expressing whatever the message the person concerned may wish to express, that is the mode of desecrating the flags. It does not interfere with the person’s freedom to express the same message by other modes[13].

(4)  Section 7 seeking to protect the dignity of the flag in question as a symbol. In order to be effective, the section must protect it against desecration generally[14].

(5)  Section 7 is necessary for the protection of public order (ordre public). They are justified restrictions on the right to the freedom of expression and are constitutional[15].

31.Chief Justice Li emphasized that Hong Kong is at the early stage of the new order following resumption of the exercise of sovereignty by the People’s Republic of China.  The implementation of the principle of “one country, two systems” is a matter of fundamental importance, as is the reinforcement of national unity and territorial integrity. Protection of the national flag from desecration, having regard to its unique symbolism, will play an important part in the attainment of these goals[16]. Although Chief Justice Li’s judgment was made in 1999, the desire for national reunification and territorial integrity, and the protection of the national flag from desecration as an important facet in this connection have remained unchanged after all these years. In fact, in Democratic Republic of the Congo v FG Hemisphere Associates LLC (No 1) (2011) 14 HKCFAR 95, the Court of Final Appeal cited in paragraph 319 the case of Ng Kung Siu and reiterated that the desire for national reunification and territorial integrity is an important theme underlying China’s resumption of exercise of sovereignty over Hong Kong. Even today, the legitimate interest of protecting the national flag against desecration is still a matter of importance.

32.When considering the sentence for the section 7 offence under the National Flag and National Emblem Ordinance, the court must bear in mind the gravamen of the section is to provide full protection to the national flag against desecration, and to safeguard the legitimate interests of the national flag which is the symbol of the dignity, unity and territorial integrity of the State. Such legitimate interest, which touches upon the foundation of the constitutional system of the HKSAR, is of utmost importance. The court must ensure that the sentence will adequately represent the purpose of the law to protect such legitimate interest, and this includes considering the imposition of a deterrent sentence.

33.In view of the legislative objective and gravamen of the offence under section 7, in sentencing, the Court must carefully assess the degree of desecration to the national flag caused, brought about or inflicted by the defendant.  The more serious the desecration of the national flag, the greater the degree of undermining the legitimate interests protected by section 7, and the sentence faced by the defendant will be more severe, both in terms of the type and length of sentence (in the case of immediate imprisonment).

34.The Court always needs to consider all facts of the case when imposing sentence, and to determine the culpability of the defendant based on the overall circumstances and all related details. In respect of the offence of desecration of the national flag, the factors normally considered by the court include:

(1)  The desecration caused, brought about or inflicted by the actual act of the defendant to the national flag, such as defilement, contempt, disdain and malice etc. Since the degree of desecration depends on the actual facts of each case, it is not what the respondent suggested that burning the national flag was the ultimate desecration at all. Depending on the circumstances, burning the national flag to ashes is not necessarily more insulting than deliberately mutilating, scrawling on, defiling, trampling or other forms of desecration. If the national flag is being burnt in a crowded or tiny place with the use of accelerant, the actual danger posed to other people and property will inevitably increase the culpability of the defendant.

(2)  To constitute an offence under section 7, the desecration of the national flag has to take place in public. The time, place and circumstances surrounding the defendant’s act of desecration of the national flag, and the reaction or consequences that the act may cause at the scene of the offence may all well aggravate the desecration of the national flag. Depending on the facts of the case, the court has to consider the date, the time, the location and the occasion when the offence was committed, the number of people present, as well as the possibility whether other people present would be actually encouraged to join in and commit the offence. If an uproar was caused in the crowd and other offences were committed as a result, or people who held different views over the national flag were likely to clash, or had indeed clashed, with each other, these aggravate the seriousness of the offence. 

(3)  Whether the defendant’s commission of the offence is premediated or planned. If so, his culpability is higher.

(4)  Whether the defendant committed the offence as part of a joint enterprise with others.  If so, his culpability is higher. Even though the defendant’s conduct was not premeditated or planned and he just incited others to join in when committing the crime, if he continued his criminal act while he was well aware of what he was doing, it was still a joint enterprise. In case of a defendant being encouraged by others to join in and participate in a crime, it is a joint enterprise.

(5)  Irrespective of whether it was done as a result of instigation by others at the scene or of the defendant’s own volition, persistent desecration of the national flag using the same or different ways is an aggravating factor. The respondent contended that the desecration of the national flag normally occurred during public assembly, it was natural that there would be people joining out of their own volition and mutual instigation, the commission of crime would inevitably last for some time. It was therefore not appropriate for the court to put too much weight on these factors. Such argument contradicts the gravamen of section 7, it is utterly a cause-effect inversion and must not be accepted.

(6)  In principle, if the national flag in question was obtained by unlawful means, it aggravates the criminality but this also depends on the defendant’s knowledge. If the defendant was aware that the national flag as public property hanging in a government facility, it is very likely that his criminal act would be considered more contemptuous, disdainful and malicious. On the other hand, if the national flag was prepared, altered or made by the defendant, it shows that he was premeditated or had a sophisticated plan to commit the crime.  If the defendant did not know where the national flag came from and the only thing he knew was that it was not his, like those who joined in half way to commit the crime, the court would not necessarily treat the flag as other people’s property and take it as an aggravating factor.

The desecration acts of the respondent

35.The applicant accepted that the trial magistrate was wrong when he said that the respondent was one of those who tore down the national flag from the flagpole and brought it to New Town Plaza[17]. The applicant did agree that there was no such evidence. Also, there was no evidence that showed the respondent knew where the national flag came from. Paragraph 2 of the “Amended Summary of Facts” only says the protestors tore down the flag and took it to the plaza. At the time of his plea, the respondent accepted that this did not mean he admitted he was aware of this point at the time of the offence.

36.According to the Amended Summary of Facts and the video clips watched in open court, the facts of the present case are very serious.  At the time of the offence, a large number of people, including onlookers standing on the upper levels, were close to the atrium of New Town Plaza in Sha Tin; the respondent and other protesters, while chanting slogans, threw the national flag up; having thrown the national flag up, the respondent let it fall onto the ground with his arms spread out wide, as if he were giving a performance; when the Respondent and others took turns to trample the national flag, some people clasped hands and formed an arch for the queue to pass through while trampling the national flag, as if it were funs and frolics; the participants’ emotions were obviously running high at that time; after the national flag was sprayed with black paint and an unknown liquid, the respondent, together with other protesters, by way of strolling along while demonstrating to the public, paraded the national flag to Sha Tin Station of the East Rail Line; after the protesters brought the national flag to the open space in between New Town Plaza and Sha Tin Town Hall and threw it onto the ground, the respondent picked it up, threw it into a rubbish trolley and slammed its lid shut; when at first the rubbish trolley did not land completely into the pool, the Respondent gave it a kick and sent it into the pool.

37.The respondent’s act of desecrating the national flag was despicable and had gravely undermined the dignity of the State that the national flag represents:

(1)  The offence took place at about 3 pm on a Sunday at New Town Plaza, a place with a heavy flow of people during holidays.  In fact, a crowd of onlookers gathered at the time of the offence.  The Respondent and other protesters flagrantly and repeatedly desecrated the national flag in the presence of a large crowd of people.

(2)  The Respondent committed the offence together with many others.

(3)  The Respondent desecrated the national flag in a series of different modes: his acts clearly expressed his contemptuous, defiling, mocking, disdainful and renouncing attitudes towards the national flag, and also had the effect of inciting other people present at the scene.

(4)  The Respondent desecrated the national flag at more than one location.  First, he committed the offence in the atrium of New Town Plaza; next, he paraded the national flag to Sha Tin Station of the East Rail Line; and he then brought the national flag to the area in between New Town Plaza and Sha Tin Town Hall where it was thrown away.

(5)  The respondent put the national flag into the dumpster as if it were rubbish, which was an exceedingly great insult to the dignity of the State the national flag symbolizes; he further kicked the dumpster containing the national flag into the pool, connoting a renunciation of the national flag, which further added to the insult.

38.The Respondent’s culpability is serious.  Even taking into account his decent background, his clear record, his positive Background and Community Service Order Suitability Reports, an immediate custodial sentence is still the only sentencing option.  As the respondent committed the offence in the presence of a large crowd of people, which had the effect of inciting other people, the court must impose a deterrent sentence of immediate imprisonment.

The trial magistrate’s errors

39.First of all, the trial magistrate has made a material error of fact in this case.

40.Without watching the relevant video clips of exhibit 11, the trial magistrate could not get a full picture and adequately understand the actual facts, as a result he did not take into consideration some important facts in his Reasons for Sentence. As a matter of fact, the criminal acts of the respondent were not as simple as the Reasons for Sentence or Amended Summary of Facts suggested, but much worse than that. The trial magistrate quoted the Amended Summary of Facts in the third paragraph of his Reasons for Sentence that “later on protestors took the (desecrated) national flag to the open area between New Town Plaza and the town hall”. In fact, paragraph 2 of the “Amended Summary of Facts”, i.e. the version to which the respondent admitted, says that it was the respondent and other protestors who threw the national flag on the ground between the plaza and the town hall after they marched to the uncovered podium on the 3^rd floor of the plaza while parading the flag. The trial magistrate claimed in the Reasons for Sentence that he did not ignore “social protests were still ongoing”, “there were … previous news reports on the desecration of national flag”, and that “no permission was given to this rally”, which was clear that he was well aware of the connection between the offence and the crime scene as well as the scenario, but he failed to give any analysis and proper consideration.

41.Second, the trial magistrate failed to take account the aggravating factors correctly. Though for time and again he mentioned the respondent committed the offence with other protestors, he did not say anything about the principle of joint enterprise as an aggravating factor. Similarly, though the trial magistrate identified in his Reasons for Sentence at paragraphs 3 to 5 the time frames for three different aspects in the case, he also mentioned that the respondent had desecrated the national flag “for numerous times by different means”, he did not say expressly that committing the offence by different means at different spots continuously was an aggravating factor.

42.This court finds that the trial magistrate erred in principle in the handling of the facts when he failed to take into consideration the actual facts of the case that could be seen in the video clips in the relevant parts of exhibit 11; he failed to consider joint enterprise as well as other aggravating factors such as committing the crime continuously by different means at different spots.

43.Third, the trial magistrate put too much weight on Koo Sze Yiu (No 2). His understanding of that case can be found on paragraph 8 above. However, nowhere in that case says that burning is the worst kind of desecration or it makes immediate imprisonment otherwise inappropriate, or immediate imprisonment should not be imposed in case of a first offender. The trial magistrate’s misconception about Koo Sze Yiu (No 2) led to the misunderstanding that the desecration committed by the respondent and the circumstances in general were less serious, that is also the reason why he incorrectly thought that Community Service Order was an appropriate sentence.   

44.Lastly, nowhere in the trial magistrate’s Reasons for Sentence indicates that he has taken the legislative intent and the gravamen of the offence of desecration of national flag offence into consideration. He gave no explanation how he sought to redress the balance he claimed between the serious and deplorable desecration of the national flag the respondent committed and the personal and mitigating factors of the respondent which entitled him to refrain from a deterrent sentence of immediate imprisonment. Adding the number of hours of community service order by 25% to 200 hours just cannot correct the above error in sentencing principle.

45.As said above, the respondent’s culpability in this case was serious, an immediate custodial sentence must be imposed. The 200 hours of Community Service Order imposed by the trial magistrate is manifestly inadequate and falls beyond the appropriate range of sentence. Although the Community Service Order is not a lenient punishment, and the respondent satisfied the six criteria, as this Court said in Leung Hiu Yeung at paragraph 101, for a serious offence which clearly calls for a deterrent sentence, notwithstanding that the offender is otherwise suitable for a Community Service Order, it is generally not appropriate to impose one. In this case, immediate imprisonment is the only appropriate sentence.

Length of imprisonment

46.Before deciding the sentence, this Court has to make it clear that it is not necessary to set guidelines for desecration of the national flag. When we discuss and analyse the legislative objective of the provision and the gravamen of the offence of desecration of the national flag above, it is a reiteration of the authoritative opinion of the Court of Final Appeal in Ng Kung Siu. There is a wide variety of ways to commit national flag desecration, and one cannot generalize. Typical aggravating or mitigating factors are still applicable, the court only needs to impose a sentence based on the actual facts. The court finds the applicant’s description that the case was of medium/high seriousness does not have much meaning, since the details of each case are different. As the previous sentences imposed by the courts varied rather largely, they are not very useful to this Court.

47.This Court is of the view that having regard to all the relevant factors of the case, and given the circumstances of the present case, the starting point should be no less than 4 months’ imprisonment.  Taking an approximate equivalent of 120 days’ imprisonment as the starting point, as the respondent is entitled to a one-third discount for his guilty plea, the sentence is reduced to 80 days.  Further, as this is a review of sentence, in accordance with usual practice, the sentence is further reduced by 30 days.  Moreover, by 12 January 2020, the respondent had completed 64 hours of community service, and could not continue afterwards due to the coronavirus epidemic, but for which he would probably have completed the hours of service in full or substantially before the present review hearing, the remaining 50 days’ imprisonment is accordingly further reduced by 30 days to one of 20 days’ imprisonment.

Order

48.The application for review is allowed. The Community Service Order is set aside and the respondent is sentenced to 20 days’ imprisonment for the offence of desecration of the national flag.

Vinci Lam, Deputy Director of Public Prosecutions, and Derek Lau, Senior Public Prosecutor, of the Department of Justice, for the applicant

Erik Shum and Queenie Ng, instructed by Bond Ng Solicitors, assigned by the Director of Legal Aid, for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.

[1]  Ordinance No.116 of 1997

[2]  Cap 221

[3]  Paragraphs 1 to 5 of the “Amended Summary of Facts”, original in English.

[4]  Paragraphs 2 to 6 of the Reasons for Sentence

[5]  Paragraph 9 of the Reasons for Sentence

[6]  Paragraph 10 of the Reasons for Sentence

[7]  Paragraph 12 of the Reasons for Sentence

[8]  Paragraph 13 of the Reasons for Sentence

[9]  See paragraph 5 of the “Amended Summary of Facts” .

[10]  Poon JA (as he then was) said in paragraph 108 in Wong Chi Fung that generally speaking, the court will take into account the following factors in sentencing:

(1) Protecting the public – protect the public from the adverse effects of the offence in question;

(2) Meting out penalties – the sentence imposed ought to be commensurate with the offence committed, i.e. one that reflects the seriousness of the offence and the culpability of the offender;

(3) Open condemnation – the sentence ought to reflect the social disapproval of the offence and the criminal conduct of the offender;

(4) Deterrence – prevent the offender from re-offending and prevent other people from committing the offence;

(5) Compensation – the sentence may require the offender to give compensation to the victim of the offence as a form of remedy or recompense;

(6) Rehabilitation and reform – one of the objectives of sentencing is the rehabilitation and reform of the offender; it is hoped that after serving the sentence, the offender will be law-abiding.

[11]  Page 472 I of the judgment

[12]  Page 473 C of the judgment

[13]  Page 479 F and H-I of the judgment

[14]  Page 479 J of the judgment

[15]  Page 483 I of the judgment

[16]  Page 483 F-G of the judgment

[17]  See paragraph 3 above.