Read the full judgment text of CAAR 6/2020 on BabelCite. This Court of Appeal judgment was delivered on 23 December 2020 before 潘兆初 高等法院首席法官, 彭偉昌 高等法院上訴法庭法官, 潘敏琦 高等法院原訟法庭法官.
Criminal law – unlawful assembly – sentence review under s.81A Criminal Procedure Ordinance (Cap 221) – participating in an unlawful assembly with violence contrary to s.18(1) and (3) of the Public Order Ordinance (Cap 245) – whether original sentence of 6 weeks' imprisonment manifestly inadequate and erroneous in principle – whether hearing may proceed in absence of absconded respondent under s.81B(2A) – on 1 July 2019 over 100 protesters in black clothes, masks, helmets, goggles and gloves occupied Harcourt Road near the government headquarters to protest the Fugitive Offenders Bill – respondent at front line shouting abuse at police and helping push triangular barricades with sharp points toward a police line of about 30 officers for about 30 minutes – other protesters threw bottles, bricks and iron bars – respondent arrested at 7:38 AM when police advanced – he pleaded guilty and was sentenced to 6 weeks' imprisonment – Court of Appeal held hearing could proceed in absence under s.81B(2A) since respondent had been served and had absconded – Court applied sentencing principles from Wong Chi Fung [2018] 2 HKLRD 657 and subsequent authorities including Blackshaw, Leung Kwok Hung (No 2) [2020] 2 HKLRD 771, Caird, Tang Ho Yin [2019] 3 HKLRD 502, Leung Hiu Yeung [2018] 1 HKLRD 702 and Chung Ka Ho CAAR 4/2020 – magistrate gave mere lip service to principles and failed to give sufficient weight to scale of assembly, planned nature, identity-concealing attire, use of triangular barricades to charge police, projectiles, respondent's front-line role in encouraging others, and public order considerations – unlawful assembly is a pre-emptive offence aimed at nipping public order disruption in the bud – starting point should reflect gravity and need for punishment and deterrence – starting point of 9 weeks far below comparable cases (8 months in Wong Chi Fung, 15 months in Leung Hiu Yeung) – Court of Appeal set starting point at 15 months – applied one-third discount for guilty plea giving 10 months – further discretionary reduction of 1 month to credit respondent for time served under original 6-week sentence – final sentence 9 months' imprisonment – warrant issued for arrest of absconded respondent.
Legal issues: Whether the review hearing may proceed in the absence of the respondent · Whether the original sentence was manifestly inadequate and erroneous in principle · Appropriate starting point and final sentence for the offence
Outcome: Sentence review application allowed; the original sentence of 6 weeks' imprisonment was set aside and the respondent was sentenced to 9 months' imprisonment in his absence.
Cited by 41 cases · Cites 1 case