HKSAR v. Lo Kin Man (盧建民)

FAMC No. 12 of 2020

[2021] HKCFA 18

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 12 OF 2020 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 164 OF 2018)

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Appeal Committee: Mr Justice Ribeiro Acting CJ, Mr Justice Fok PJ and Mr Justice Stock NPJ

Date of Hearing and Determination: 17 May 2021

Date of Reasons for Determination: 18 May 2021

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REASONS FOR DETERMINATION (SENTENCE)

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Mr Justice Fok PJ:

1.At the hearing of the applicant’s application for leave to appeal to the Court of Final Appeal against his conviction and sentence, we granted leave to appeal in respect of the former but dismissed the application in respect of the latter.  The terms on which leave to appeal was granted in relation to conviction are set out in the Appeal Committee’s Determination in FAMC 12/2020 [2021] HKCFA 17, dated 17 May 2021.  As we indicated at the conclusion of the hearing of the leave application, our reasons for dismissing the application for leave to appeal against sentence would be handed down on a later date.  These are those reasons.

2.Following his conviction for the offence of riot, the applicant was sentenced by the trial judge to a term of 7 years’ imprisonment.  His appeal to the Court of Appeal against that sentence was dismissed and his application for certification of questions of law in respect of his sentence appeal refused by that court.  By his notice of application, the applicant applies for leave to appeal to the Court of Final Appeal on the basis that four questions of law of great and general importance are involved and on the basis that, by the term of imprisonment imposed, substantial and grave injustice has been done to him.

3.The four questions of law for which leave to appeal is sought are:

(1)  Question 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 organising the riot, be it premeditated 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)  Question 2:

“Where the defendants were being tried together for riots which took place in the same area on the same night (Counts 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)  Question 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 point of 5 years’ imprisonment) as in HKSAR v Yeung Ka Lun [2019] 1 HKC 296?”

(4)  Question 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?”

4.These questions of law are said, in the skeleton submissions for the applicant (at [5]), to be distilled as follows:

“Are the sentencing guidelines in riot sufficiently clear and specific enough in Hong Kong?

(i)   If so, should consistency in sentencing override the sentencing courts’ unfettered discretion in imposing sentences on a case-by-case basis?

(ii)  If not, what are the sentencing guidelines in riot?”

5.It is also contended on behalf of the applicant that substantial and grave injustice has been done on the basis of departures from the following norms, namely that the Court of Appeal erred in one or more of the following respects:

(1)  in refusing to follow “the line of authority, such as, HKSAR v Yeung Ka Lun [2019] 1 HKC 296” in sentencing;

(2)  in holding that the riot in Count 3 was premeditated;

(3)  further or alternatively to (2) above, in failing to take into account that there was an absence of evidence to show that the applicant had any role or participation in planning or organising the riot.

6.On the basis of these alleged normative departures, it is contended that the sentence imposed was manifestly excessive.

7.As to the application for leave on the basis that questions of law of great and general importance are involved, it is appropriate to repeat the clear statement of principle in the Court of Final Appeal’s judgment in Secretary for Justice v Wong Chi Fung:

“The Court of Final Appeal is not a sentencing court and appeals to this Court on points of sentencing principle are among ‘the rarest of cases’. The function of sentencing is primarily that of the convicting court of trial, subject to review by the Court of Appeal, whether on an appeal by the convicted person or on review on the application of the Secretary for Justice. The Court of Appeal is therefore the appropriate court to determine if there is a need for appellate guidance as to the levels of sentence for a particular offence and, if so, to set those levels of sentence.”[1]

8.We would emphasise, again, that appeals to the Court of Final appeal on sentence should only be as to matters of sentencing principle and, even then, such appeals should only be “the rarest of cases” (as stated in the Court’s decision in Seabrook v HKSAR, [2] referred to in the omitted footnote).  The omitted footnote also provides examples of cases where appeals on points of sentencing principle have been heard by the Full Court, namely the approach to the imposition of a training centre order[3] and the constitutionality of the mandatory life sentence for murder.[4]

9.Here, the questions of law as framed are self-evidently fact sensitive and specific to the circumstances of this individual case.  As such, they are not questions of general application at all, as is reinforced by the fact that the distillation of the questions in the applicant’s skeleton submissions reveals an inability to articulate the questions otherwise than as mere complaints about the length of the particular sentence imposed in this case.

10.The sentencing guidelines that were applied here were those laid down by the Court of Appeal in Secretary for Justice v Wong Chi Fung[5] and approved by the Court of Final Appeal on appeal from that decision[6]: see the Court of Appeal’s judgment at [79].  There is no basis for disturbing those guidelines or revisiting them in the context of this particular case. 

11.As to the specific sentence imposed on the applicant, the Court of Appeal (at [82]) concluded, in agreement with the trial judge, that the riot forming the basis of the applicant’s conviction:

“was large in scale, lasted for a long period of time, had large numbers of offenders and was premeditated to a certain extent. The case happened in Mongkok which was a busy area with lots of passers-by. The flows of people were then even heavier because it was the night of Lunar New Year Day. The incident must have caused very great danger and threat to public order and personal safety and property of the general public. The rioters targeted at [sic] the police in their attacks, and using their vast numbers to attack police officers by extreme violence out of no reason. In addition, quite a number of rioters frantically scolded the police and even stirred up the emotion of the crowd gathered at the scene, making the situation escalate and continue.”

12.If the conviction is sustained, then given the degree of participation of the applicant in that riot described in the trial judge’s Reasons for Sentence at [55] (which the Court of Appeal set out at [83]), this was plainly a case in which a deterrent sentence was appropriate.

13.The case of HKSAR v Yeung Ka Lun [2019] 1 HKC 296 was cited to the Court of Appeal and taken into account in its judgment.  Acknowledging (at [84]) that the violence perpetrated by the applicant was “obviously less serious than what was involved in Yeung Ka Lun”, the Court of Appeal rightly noted that “the background and facts of the riot offence depend on each individual case”.  The particular sentence in Yeung Ka Lun can only have provided limited guidance and does not support the conclusion that the sentence imposed here was, as contended, manifestly excessive.  Comparisons between one case and another of the weight to be attributed to particular factors to be taken into account in sentencing are essentially matters for the Court of Appeal rather than the Court of Final Appeal and, as reiterated above, appeals to the Court of Final Appeal on sentencing must be “the rarest of cases”.

14.For these reasons, we concluded that the application for leave to appeal against sentence is not reasonably arguable.  Had the application for leave been confined to this aspect of the case, it would have been appropriately made the subject of a Rule 7 summons and dismissed under that rule.[7]

Leave to appeal against Conviction

Ms Gladys Li SC (on a pro bono basis) leading Mr Lawrence Lau (assigned by the Director of Legal Aid), Mr Kin Lau and Mr Jason Ko (both on a pro bono basis), instructed by Bond Ng Solicitors, for the Applicant

Ms Vinci Lam DDPP, Mr Ivan Cheung ADPP (Ag.) and Mr Douglas Lau PP, of the Department of Justice, for the Respondent

Leave to appeal against Sentence

Mr Lawrence Lok SC leading Mr Lawrence Lau (both assigned by the Director of Legal Aid) and Ms Tina Mok (on a pro bono basis), instructed by Bond Ng Solicitors, for the Applicant

Ms Vinci Lam DDPP, Mr Ivan Cheung ADPP (Ag.) and Mr Douglas Lau PP, of the Department of Justice, for the Respondent