Read the full judgment text of CAAR 4/2020 on BabelCite. This Court of Appeal judgment was delivered on 3 December 2020 before Poon CJHC, Pang JA and M Poon J.
Criminal law – sentencing – unlawful assembly – section 18(3) Public Order Ordinance – review of sentence under section 81A Criminal Procedure Ordinance – approximately 400 to 500 protesters at unauthorised assembly on Lyndhurst Terrace on Halloween night 31 October 2019 – respondent standing in forefront row, masked, threw gunny bags onto road, carried rucksack with 120cm wooden pole – plea of guilty – whether community service order of 120 hours wrong in principle and manifestly inadequate – whether magistrate failed to give sufficient weight to punishment and deterrence – whether magistrate failed to assess respondent's personal culpability properly – whether sentencing principles in Wong Chi Fung confined to unlawful assembly involving actual violence – whether starting point should have been immediate custodial sentence – gravamen of offence of unlawful assembly lies in participants acting in large numbers to achieve common purpose – offence is preventive measure to nip in bud breach of peace – Wong Chi Fung principles apply to both violent and non-violent unlawful assemblies – seriousness depends on actual circumstances including scale, location, duration, provocative behaviour, face coverings, and refusal to disperse – large disparity in numbers between protesters and police increases risk of escalation in narrow streets – Prohibition on Face Covering Regulation violation as aggravating factor – immediate imprisonment required where punishment and deterrence are main sentencing purposes – starting point of 6 months, one-third discount for guilty plea, further one-month reduction for community service already performed – substituted sentence of 3 months' imprisonment.
Legal issues: Whether the magistrate underestimated the seriousness of the unlawful assembly and failed to give sufficient weight to punishment and deterrence · Whether the magistrate failed to assess the respondent's personal culpability properly · Whether a community service order was wrong in principle and manifestly inadequate · Whether Wong Chi Fung applies only to unlawful assembly involving actual violence
Outcome: Application for review of sentence granted; the original sentence of 120 hours' community service order was set aside and substituted with three months' imprisonment with immediate effect.
Cited by 24 cases · Cites 5 cases