Read the full judgment text of CAAR 5/2020 on BabelCite. This Court of Appeal judgment was delivered on 18 December 2020 before Poon Shiu Cho PJ, Pang Wai Cheong JA, Pun Man Kuen J.
Criminal law – unlawful assembly – Public Order Ordinance (Cap 245) s.18(3) – participating in unlawful assembly – sentence review under Criminal Procedure Ordinance (Cap 221) s.81A – respondent moved iron barriers with about 20 other protesters outside the government headquarters on Tim Wa Avenue during large-scale protests on 12 June 2019 – police outnumbered and forced to retreat into government headquarters – tear gas fired – respondent pleaded guilty and sentenced to two weeks' immediate imprisonment – whether the magistrate erred in finding the assembly was spontaneous and the respondent was merely passing by without premeditation – whether the magistrate erred in severing the Tim Wa Avenue events from the broader violent unlawful assembly context – whether the two-week sentence was manifestly inadequate and principally wrong – sentencing principles for violent public order offences – eight factors from Wong Chi Fung for assessing seriousness – gravamen of the offence lies in the collective threat of numbers – individual acts not to be assessed in isolation – pre-emptive purpose of s.18 POBO – targeting of government headquarters as the seat of executive authority aggravates the offence – starting point 12 months, one-third discount for guilty plea, one-month further discount for sentence review – final sentence 7 months' immediate imprisonment – appeal allowed, sentence increased.
Legal issues: Whether the magistrate erred in finding the unlawful assembly was spontaneous and the respondent was merely passing by without premeditation · Whether the magistrate erred in severing the Tim Wa Avenue assembly from the broader violent unlawful assembly context · Whether the two-week sentence was manifestly inadequate and principally wrong
Outcome: Sentence review allowed; the original sentence of two weeks' immediate imprisonment was quashed and substituted with seven months' immediate imprisonment.
Cited by 48 cases · Cites 4 cases