Secretary for Justice v. Leung Wing Hong

CAAR 9/2021

[2021] HKCA 1362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 9 OF 2021

(ON APPEAL FROM ESCC NO. 1189 OF 2020)

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BETWEEN

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Before:  Hon Pang, M Poon JJA and Alex Lee J in Court

Date of Hearing:  18 August 2021

Date of Judgment:  18 August 2021

Data of Reasons for Judgment:  7 October 2021

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REASONS FOR JUDGMENT

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Hon Alex Lee J (giving the Judgment of the Court):

A.  Introduction

1.On 19 October 2010, following the respondent’s plea of guilty to a charge of “wilfully obstructing a police officer in the execution of duty”, contrary to section 36(b)  of the Offences Against the Person Ordinance, Cap 212, the Principal Magistrate[1] (“the Magistrate”)  sentenced the respondent to probation for a period of 12 months.  Despite the applicant’s subsequent application for review against sentence under section 104 of the Magistrates Ordinance, Cap 227, the Magistrate upheld her decision on 14 April 2021 and confirmed the sentence. 

2.With leave granted by Poon CJHC on 5 May 2021, the applicant further applies to review the sentence before this Court under section 81A of the Criminal Procedure Ordinance, Cap 221, on the bases that the sentence was wrong in principle and manifestly inadequate. 

3.On 18 August 2021, after hearing counsel, we allowed the respondent’s application for review, set aside the probation order and substituted it with an immediate custodial term of 3 months.  We said that reasons would be handed down.  This, we now do.  

B.  The facts admitted by the respondent

4.Sometime prior to 8 am on 11 November 2019, a number of protesters set unlawful road blockage at the crossings outside Sai Wan Ho Civic Centre near Sai Wan Ho MTR Station Exit B (the respondent was not alleged to be one of the protesters causing obstruction to the road).  The Police responded to the situation and an incident occurred in which fire was opened by one of the police officers (hereinafter “the incident”).  Shortly afterwards, more police officers were deployed to the scene for reinforcement.  At around 8 am, the Police cordoned off the intersection to gather evidence of the incident.  A large crowd of people congregated behind the crossings (and cordon line)  and shouted abuse at the police officers who were executing their duties.  Amidst the congregated crowd was a male known as Cheung, who stood next to the island in the middle of the crossings, yet in a peaceful manner.

5.The respondent then walked past behind Cheung and his attention was apparently drawn to Cheung who swore at the police officers.  He then went forth and stood next to Cheung (although it did not appear that they were acquainted with each other).  A few seconds later, SSGT54128 crossed the cordon line to subdue Cheung but accidentally bumped into the respondent.  The respondent slightly lifted up his left hand to block the way of SSGT54128.

6.Cheung immediately ran towards Shau Kei Wan Road and the respondent followed him.  SSGT54128 and PC7114 both gave chase.  After chasing 20 meters away from the cordon line, SSGT54128 grabbed and subdued Cheung, shouted at him and asking him not to struggle.  Meanwhile, the respondent went forth and used his hands to grab and push SSGT54128, also grabbing Cheung to free him away from SSGT54128.  As a result, Cheung fled along Shau Kei Wan Road in the eastbound direction.  The respondent was however subdued by SSGT54128 on the ground, and duly arrested by PC21822.

7.In a subsequent interview conducted by DPC10982, the respondent remained silent.

8.The present offence was partly captured by police video the discs of which were marked as an exhibit[2]. The footage, however, was not played before the Magistrate in the proceedings below.

C.  The proceedings below

C.1  The mitigation hearing on 28 September 2020

9.The respondent was aged 37 and had a clear record.  He was a construction worker earning a monthly salary of $30,000.  It was mitigated on his behalf that he walked past the location of the offence on his way to work and committed the offence with a view to preventing Cheung from being subdued by the Police, treating what he did as a way to help or protect Cheung.  He was nevertheless remorseful of what he did, thus pleading guilty. 

10.In the course of mitigation, the Magistrate was also informed by the prosecution that Cheung was arrested for “disorderly conduct in a public [place]”[3] but no charge was subsequently laid against him for insufficiency of evidence[4]. 

11.In the result, a Probation Officer’s Report was ordered to be obtained.  The case was adjourned for 3 weeks and the respondent was placed on bail.  The respondent was warned that all sentencing options were open to the court[5].

C.2  The Probation Officer’s Report

12.The Probation Officer opined that the key factors leading to the commission of the offence were the respondent’s poor coping skills during crisis and underestimation of the legal consequence.  Having taken into account his clear record, remorseful attitude and need of assistance to enhance his coping skills and law-abiding sense, the Probation Officer was of the view that the respondent was worth to be given a chance for probation supervision. 

13.It was recommended that the respondent be put on probation for 12 months with the special condition that he participates in community programmes and/or activities which are deemed conductive to his rehabilitation.  Noting that a community service order was work-oriented, the Probation Officer did not make such recommendation.

C.3  Sentencing hearing on 19 October 2020

14.When sentencing the respondent on 19 October 2020, the Magistrate said that she had considered all mitigation advanced on his behalf and the recommendations in the Probation Officer’s Report.  The Magistrate noted that the greatest mitigation was the respondent’s guilty plea.  She said she had paid particular attention to the facts of the present case and would adopt the recommendations of the Probation Officer.  She accordingly made a probation order of 12 months, also ordering the respondent to pay costs in the sum of $500.

C.4  The section 104 review

15.The applicant lodged an application for a section 104 review with the Magistrate on 30 October 2020, whilst, presumably owing to the General Adjourned Period occasioned by Covid-19, the review hearing did not take place until 8 April 2021.  At the hearing, the applicant principally submitted that the present offence was committed under a relatively chaotic situation after an open fire incident and accordingly, the respondent’s act of obstructing a police officer was very likely to give rise to contagion effect. The applicant submitted that the only appropriate sentencing option in such circumstances would be an immediate custodial sentence.

16.On 14 April 2021, the Magistrate refused the applicant’s application for review and stated that she had considered the particular facts of the present case, namely:

(a)  The obstruction was very brief – a single push only;

(b)  The respondent was a passerby and not a participant in any unauthorized or unlawful assembly; and

(c)  he had a clear record.

17.The Magistrate said that, in the absence of applicable sentencing guideline, she must, and did, strike a balance between deterrence and punishment, and rehabilitation of the respondent.  She was satisfied that the sentence of probation order (with special conditions)  was correct. 

D.  Grounds of review in the present application

18.Ms Betty Fu, with her Ms Moonar Tsoi, for the applicant, submitted that the imposition of a non-custodial sentence, including a probation order, in the present case should be regarded as wrong in principle (Ground 1)  and manifestly inadequate (Ground 2).  

19.By Ground 1, Ms Fu submitted that the sentencing principles propounded by this Court and affirmed by the Court of Final Appeal in Secretary for Justice v Wong Chi Fung[6] are applicable not only in the context of unlawful assembly but also to offences relating to public order events, including the present offence which was committed in the circumstances where there had just been an open fire incident resulting in a large crowd assembling in the area and some pedestrians shouting at police officers.  

20.Ms Fu pointed out that, whilst a section 36(b)  offence can be committed in any of the three ways (namely, assault, resist, or wilfully obstruct a police officer), the act of obstructing is not necessarily a lighter limb than the act of assaulting or resisting: it all depends on the factual context. She submitted that the imposition of an immediate custodial sentence in the case of obstructing would be in line with previous case authorities.  She prayed in aid HKSAR v Lau Ka Tung[7] where the appellant participated in a demonstration in Yuen Long and was charged with a section 36(b)  offence (by the act of obstructing)  and he was convicted after trial[8].  The Court of First Instance, whilst considering an immediate custodial sentence inevitable, allowed the appeal to an extent and substituted the sentence of 8 months’ imprisonment in place of the original sentence of 12 months’ imprisonment.  Ms Fu also cited HKSAR v Cheng Wai Lung[9], where the appellant pleaded guilty to the same offence (again by the act of obstructing), not emerging from a public order event, and was sentenced to 4 months’ imprisonment.  On appeal, the Court of First Instance upheld the custodial sentence but reduced it to 2 months. 

21.By Ground 2, Ms Fu submitted that the present case demonstrates a serious instance of obstructing the Police albeit without physical assault[10]. She invited the Court to watch Exhibit 1 and placed emphasis on some serious features of the present case:

(a)  On the day in question, some protesters organized the “three major stoppages”[11]intending to set up roadblocks and disrupt MTR services.  Shortly before the present offence, a policeman fired multiple live rounds one of which struck a protester in his abdomen.  As a result, a large crowd assembled and shouted at police officers.  Ms Fu submitted, it was in such circumstances that the respondent lost his ability to control himself and committed the offence.

(b)  The respondent’s behaviour of grabbing and pushing the police officer was contemptuous and abusive and should not be condoned.

(c)  The respondent’s act of so-called protecting Cheung by assisting him to evade arrest was akin to perverting the course of justice. 

(d)  The respondent’s act could impede the Police from collecting evidence of the incident.

(e)  The respondent’s conduct might encourage others to follow suit and resort to escalated violence, especially when the emotions of the nearby pedestrians were running high.

22.Ms Fu submitted that, despite the clear record of the respondent, the appropriate sentence here should be an immediate imprisonment.

E.  The respondent’s submissions

23.In respect of Ground 1, Mr Hectar Pun SC, with him Mr Joey Chan, submitted that whether or not a deterrent sentence is called for should depend on the seriousness of the offence, rather than whether a public order event is involved.  He sought to distinguish the present facts from those in Lau Ka Tung, pointing out that the defendant in Lau Ka Tung was a participant in an unlawful assembly but the respondent was not.  Mr Pun relied on HKSAR v Chu Ka Yin & Others[12], where the Court of First Instance substituted the appellants’ custodial sentences by non-custodial ones, in respect of various section 36(b)  charges (by the acts of assaulting and obstructing respectively).  In relation to the serious features identified by the applicant in the present case, Mr Pun countered by saying that:

(a)  The crowd gathering outside Sai Wan Ho Civic Centre was spontaneous and peaceful.

(b)  The respondent did not engage himself in any disorderly behavior of the crowd; he walked past the scene just a minute before the offence.

(c)  The respondent’s conduct should be considered in light of the action of SSGT54128 which, Mr Pun submitted, was disproportionately aggressive to an ordinary citizen like Cheung.

(d)  There was nothing to show that the respondent intended or premeditated to support Cheung as a fellow protester, let alone pervert the course of justice.

(e)  The respondent did not commit the offence under bad faith but only with a view to helping Cheung; he was nevertheless deeply remorseful after realizing what he did was wrong.

24.In respect of Ground 2, Mr Pun submitted that the Court should refrain from relying on a factual basis different to that accepted by the prosecution at the time of sentencing the respondent.  He submitted that:

(a)  There was no evidence to show that the respondent was aware of the obstruction contemplated by the protesters organizing the citywide general strike.

(b)  The charge was obstructing a police officer which should not be on a par with an assaulting charge.

(c)  It is unjustified and unfair to allege that the respondent perverted the course of justice for which he was not charged.

(d)  There was no evidence to show that the respondent or Cheung did anything which would directly prevent the Police from collecting evidence of the incident.

(e)  The allegation that the respondent could have encouraged others to follow suit was contrary to the fact that the congregated crowd was peaceful.

F.  Circumstances of the offence

F.1  The relevant legal principles

25.As pointed out by this court in Secretary for Justice v Law Man Chung[13], the sentencing court should consider all the facts of the case when determining the defendant's culpability, including the act of the defendant, the time, place, surrounding circumstances, and the reaction or any possible consequences which could be caused at the scene.  Whilst that case was about the offence of desecrating the national flag, the same principle also applies to other offences which took place during or in the course of a social disturbance: Secretary for Justice v Chung Ka Ho[14]. In that case, Pang JA, who gave the judgement of the Court of Appeal, specifically pointed out here that the above factors are completely unrelated to the offenders’ political stance.  The court’s only concern is whether people at the scene would be influenced to kick up a row, thereby raising the risk of violent clashes.  This is a factor which must be considered at the time of passing sentence.  The sentencing principles in Chung Ka Ho’s case are well-known principles and not new law, and is applicable to the present case although Chung’s judgment was handed down afterwards.

26.In Secretary for Justice v Wong Chi Fung, supra, the Court of Final Appeal says that in determining whether the sentencing court had committed any error which permitted interference in a review of sentence, it is plainly appropriate for the Court of Appeal to look at any relevant evidence available to the court below.  If the court below has made an error as to the facts on which it proceeds to sentence, it is only right that the Court of Appeal can correct these[15]. In so doing, the Court of Appeal is not acting on a factual basis different to that accepted by the prosecution at the court below or to enquire into facts which had not been pursued[16].

27.In Secretary for Justice v Chung Ka Ho, supra, Pang JA, having referred to HKSAR v Tang Ho Yin[17], explains why the social setting in which the offence took place, the actual situation at the scene and the potential effect of the appellant’s conduct cannot be disregarded when it comes to sentencing.  His lordship says at [61]-[64] (footnotes omitted):

“61.  The case in Tang Ho Yin was decided last year (date of judgment: 5 June 2019). Macrae VP of the Court of Appeal pointed out at paragraph 27 in the judgment: [T]he inevitable danger of any highly charged confrontation is that violence that is not contained or controlled will escalate; particularly where law enforcement officers are heavily outnumbered. Such an escalation may result in widespread damage, arson, looting, injury and even death.

62.  Admittedly, Tang Ho Yin involved riot, and the riotous behaviour had already taken place.  By citing that case, the applicant only intended to say on such basis that even for non-violent unlawful assembly, while the police were greatly outnumbered by the people gathering, the risk of actual violence would increase.  In our view, this proposition is correct.  Yet, the confrontation has to reach a highly charged state as stated in the quoted paragraph in the judgment, otherwise the risk may not necessarily escalate.  In addition, the great disparity in the number of people on the two sides generally does not amount to an aggravating factor to the sentence on the individual defendant but can only assist the court in determining the overall seriousness of a particular unlawful assembly.

63.  Another point put forward by the applicant was that the participants of the unlawful assembly were behaving in a very provocative manner.  Examples identified by the applicant in the present case include: some people among the crowds of protesters projected strong light and laser beams at the police check-line; the protesters kept on shouting not only slogans but also slogans mixed with many abusive words; and the respondent himself threw the sandbags onto the middle of the road. Moreover, many people among the protesters were masked, blatantly violating the Prohibition on Face Covering Regulation and resisting the police order which required them to remove their face coverings.  Such behaviour can also be regarded as provocative.

64.  Provocation should not simply be understood as challenging the law enforcement officers and public power.  Whether or not certain behaviour is provocative also depends on the possible reactions resulted among the protesters and those present with different views.  In fact, since law enforcement officers ought to be professional and restrained, whether or not people of the latter two types would be incited or further incited is a much more important consideration.  If the protesters would or might be incited or further incited, and strong reactions would be or might be aroused among people having different views, then the risk of having violent clashes would increase and so would the overall seriousness of the unlawful assembly.  Even if there was nobody from the opposite side or opposite camp at the scene, and only the protesters themselves were being incited or further incited, the risk of violence would still increase, and the only difference would be the degree of escalation.  It all depends on the actual circumstances of the case.”

28.We agree with the judgment of Wong J in HKSAR v Lau Ka Tung, supra, where his lordship, in dealing with a sentence appeal of a similar offence, says at [95]:

“Of course, the offence involved in that case was unlawful assembly whilst the one in the present case was obstructing a police officer in the execution of his duty. Nonetheless, the appellant committed the offence against the backdrop of an unlawful assembly and he was clearly aware of such situation. The background for the commission of the offence must be considered.”

F.2  The Magistrate’s reasons

29.Although three discs of police video were listed as exhibits in the Brief Facts, neither the prosecution nor the Magistrate had requested that those recordings be played in court before sentence.  That is most regrettable, as the Magistrate was deprived of the benefit to acquaint herself with a highly relevant sentencing material, which in turn caused her to fail to comprehend the actual gravity of the offence.

30.On 19 October 2021, when the Magistrate sentenced the respondent, she said at the outset that his greatest mitigation factor was his guilty plea which was a reflection of his remorse.  She then said that police officers, in the execution of their duty, were entitled to expect that civilians should cooperate with them in the execution of their duties so that it was easier for them and it was safer for people to walk down the streets.  After that, she said,

“Now, on this occasion, I pay particular attention to the facts of this particular case and I am going to adopt the recommendation made in the report today and place you under the supervision of the probation officer for a period of 12 months, with a special condition that will be explained to you by the court interpreter.” [18]

31.We note that there was nothing said by the Magistrate to indicate that she had also taken into account the social setting and circumstances at the time of the offence.  This point assumes an even greater importance in the present case, in that the Magistrate was not well informed of the contents of the relevant video footage.  Had she been so informed, she might have come to a different conclusion as to the seriousness of the present offence.  Although a principal magistrate in charge of a busy court cannot be expected to give detail reasons when sentencing, had those sentencing factors been taken into account, a brief reference to those would be most desirable. 

32.During the hearing of the section 104 review on 8 April 2021, the Magistrate’s attention was drawn by the prosecution to the case authorities of Secretary for Justice v Wong Chi-Fung, supra, and Secretary for Justice v Kung Yat Kan Clifford[19]. The latter case is of particular pertinence to the offence under consideration, as the offence in that case also happened to have taken place as the "three major stoppages” was staged and this court, in allowing the application for review of sentence, emphasized the importance of the prevailing circumstances in Hong Kong including increasing incidents of unrest and a rising number of large-scale public protests as a sentencing consideration.

33.On 14 April 2021, at the review hearing, the Magistrate did refer to Secretary for Justice v Wong Chi-Fung and Secretary for Justice v Kung Yat Kan Clifford but sought to distinguish them on the sole basis that the former was about the offence of unlawful assembly and the latter was about assault a police officer[20].  However, as discussed above, this is not a valid distinction.  Concerning the circumstances and facts of the present case, what the Magistrate said was simply this:  

“Here, the obstruction was very brief, a single push that resulted in no injury to any police officer. The defendant was a passerby and not a participant in any pubic event that resulted in disorder and violence.”[21]

34.No mention was made of the prevailing social setting and the circumstances of offending.  In the light of the above, we conclude that the Magistrate had failed to take those into account in sentencing.  This leads us to the next topic.

F.3  The social setting and circumstances of the offence

35.We shall start by observing that the present case indeed took place in the context of a serious social disturbance.  By way of background, the date of the present case, 11 November 2019, was also the first day of the so-called “three major stoppages” which was a city-wide social movement calling for students, business owners and employees to skip work and boycott classes.  On that day, protestors gathered in the early morning and began disrupting both MTR operations and surface transports in various places in Hong Kong, including the intersection of Shau Kei Wan Road and Tai On Street, the very site where the present case occurred.  Only about half an hour before that, when the traffic police were trying to clear unlawful road blockage outside Sai Wan Ho Civic Centre, fire was opened and one of the protestors was shot.  Shortly after that, at around 8 am, police cordoned off the area to collect evidence. 

36.In order that this Court could appraise the situation at the time of the offence, with the consent of the parties, we watched the relevant footage in court.  The following observations are relevant:

(i)  The footage started at about 7:43 am which was in the rush hour of a weekday.  At the material time, road traffic in that area had grinded to a halt due to police cordon.  Commuters from all walks of life were stuck and they gathered outside the MTR exit adjacent to Sai Wan Ho Civic Centre and also on the other side of the road.  Judging from the footage, there were hundreds of people gathering in that area and the Police was clearly outnumbered.

(ii)  Although Mr Pun described the gathered crowds as “spontaneous and peaceful”, the footage shows a completely different picture.  Many people were seen shooting photographs or videos with their mobile telephones of police officers in the field in an unfriendly or even provocative manner.  Although the Police officers repeatedly requested people to disperse, their pleas were overwhelmed by the noise of the people shouting at the top of their voices: “Murder! Murder!” and “Rapist! Rapist”.  Besides, foul languages were hurled at the Police from time to time.  Several people wore facial mask in contravention to the anti-mask law[22] which was operative then and some dared police officers to open fire.  However, the Police was apparently unable to do anything about them. 

(iii)  The situation on the other side of the road was no better.  Underneath the footbridge of Tai On Street, people gathered there took little heed of the repeated warnings by the Police to retreat from the cordon.  When the Police resorted to pepper spray, further commotion was resulted.

In short, the situation was far from being “peaceful”.  Quite the contrary, emotion was high amongst the crowds on both sides of the road. The situation was chaotic and difficult to contain.  As aforesaid, none of the above was mentioned by the Magistrate either on sentence or on the section 104 review.  

37.In our judgment, it is not important whether or not the respondent knew that there had been an open fire incident.  It is also not important whether the respondent knew that what he or Cheung did would prevent the Police from collecting evidence of the open fire incident at the scene.  What is important is that the respondent committed the present offence under the prevailing social circumstances and also that his action at the material time was likely to cause others who were already challenging police authority to imitate, thereby leading to violent conflict of a greater scale: Secretary for Justice v Kung Yat Kan Clifford, supra, applying Secretary for Justice v Law Man Chung[23].

F.4  The defendant’s conduct

38.As can be seen in the footage, Cheung, who had been an onlooker standing in the crossing in the middle of road, at a distance from the crowd, all of a sudden hurled foul language at two of the police officers when they pointed at the crowd gathered outside the MTR station.  Cheung’s action attracted the attention of Police.  When police officers approached Cheung with a view to subdue him, the respondent block their way.  This was the incident outlined in paragraph 2 of the Brief Facts which reads,

“2. At first, one of the protestor (later known to be “CHEUNG”)  was standing on the crossing (behind the traffic light)  peacefully and D walked past the crossings. While two police officers pointed their fingers at the pavement outside the MTR station, Cheung swore at them. D went forth and stood next to that protestor. Few (sic)  seconds later, PW1 crossed the cordon line intending to subdue CHEUNG, but PW1 bumped into D. D slightly lifted up his left hand to block the way of PW1.” [24]

For the sake of convenience, we call above the 1^st Episode.

39.What followed after that was not captured by the footage.  However, according to the Brief Facts to which the respondent agreed:

“CHEUNG immediately ran towards Shau Kei Wan Road and D followed. PW1-2 gave chase. PW1 grabbed and subdued CHEUNG after chasing 20 meters away from the cordon line. PW1 shouted at CHEUNG and asked him not to struggle. D went forth and used his hands to grab and push PW1. D also grabbed CHEUNG away from PW1. CHEUNG then fled and ran along Shau Kei Wan Road (eastbound). PW1 then subdued D on the ground. PW2 alter arrested D for the offence.”[25]

(Emphasis supplied)

For the sake of convenience, we call above the 2^nd Episode.

40.At the review hearing, although the Magistrate did recite the part about the Respondent using his hands to grab and push Cheung, grabbing Cheung away[26], she later only described the defendant’s act as “a single push” (see paragraph 33 above).  It would seem to us that the Magistrate unduly undermined the nature and seriousness of the defendant’s act and diminished his role, which was actually an attempt to prevent the lawful apprehension of a person (Cheung)  whom the police officers reasonably suspected to have committed an offence.  In this regard, the fact that Cheung was eventually not charged by the Police for any offences is neither here nor there, as it has to be accepted that the arresting police party was acting in the due execution of their duty.  Had it been otherwise, the charge would not have been made out and the defendant’s plea should not have been accepted.  Mr Pun’s submission that the action taken by SSGT54128 was “disproportionally aggressive” must similarly be rejected.

41.It is our judgment, since the Magistrate had failed to take into account the relevant sentencing factors as well as erred in her understanding of the material facts, the resultant sentence must therefore be wrong in principle.  For the sake of completeness, we now turn to consider whether the probation order imposed is also manifestly inadequate.

G.  Whether the sentence wrong in principle

G.1  The relevant sentencing principles

42.The present offence carries a maximum of sentence of 2 years’ imprisonment on indictment.

43.As noted by the Magistrate[27], it is held by Deputy Judge Toh (as she then was)  in HKSAR v Cheung Wai-lung, supra, that:

“There is no sentencing guideline for this type of offence. What has to be looked at is the seriousness of the obstruction, the injury, if any, to the police officers, and also, most importantly, the court has to consider that a deterrent sentence is necessary in view of the act that police officers have to be protected in carrying out their duties.”

As such, what is the appropriate sentence is necessarily a case-specific question.

44.That said, as the Court of Final Appeal points out in Secretary for Justice v Wong Chi Fung, supra, deterrence and punishment have now assumed a greater importance than any other sentencing considerations as regards offences committed in the context of a social disturbance:

“119. The Court of Appeal was justified in holding that, ‘In sentencing cases of disrupting public order, especially those which involve violence, the court must bear in mind the importance of preserving public order.’ [98] Similarly, it was within its proper function as a court of review to hold that, ‘On the basic premise that public order must be maintained, and taking into account the gravamen of the offence of unlawful assembly, the court, in passing sentence, not only has to impose a penalty that is appropriate to the punishment of the offenders, but it also has to take into account the factor of deterrence.’

120. In short, it was appropriate for the Court of Appeal to say that, in the circumstances now prevailing in Hong Kong including increasing incidents of unrest and a rising number of large scale public protests, it is now necessary to emphasise deterrence and punishment in large scale unlawful assembly cases involving violence. In this context, the sentiments expressed by Starke J in the Court of Criminal Appeal in Victoria in R v Dixon-Jenkins (1985)  14 A Crim R 372 at p.379 are apposite:

‘There are large groups in present-day society of sincere, earnest but wrong-headed people who, because their convictions are so strong, or because they pretend their convictions are so strong, will stop at nothing in order to impose those views on the community, and this, in my opinion, just like hijacking, is calculated to become contagious, and if at the first step the courts do not show that such conduct, however well intended, will not be tolerated in this community, then it is unlikely that such behaviour will be stopped in its tracks.  I therefore am of opinion that this is just the case where general deterrence has an overriding effect on the resulting sentence.’ ”

45.Although the above passages are said in relation to an offence of unlawful assembly, in our judgment the same principle applies with equal force to other offences committed against the backdrop of a social disturbance.  As Chan PJ says in HKSAR v Tam Lap Fai[28], at [23]:       

“Police officers have an onerous duty to discharge in the detection of crimes and the making of enquiries. Private citizens have a moral or social duty to assist them. After all, police officers are there to protect the safety and property of private citizens.”

46.We note also that in Wong Chi-fung’s case, one of the offenders was a minor and therefore the sentencing court had to take section 109A of the Criminal Procedure Ordinance, Cap 221, into account when sentencing him. The same, however, does not apply there.  It is trite that probation orders are designed primarily to rehabilitate offenders: Cross & Cheung: Sentencing in Hong Kong[29]. In our judgment, the Magistrate, by imposing a probation order on the respondent, placed undue weight to the factor of rehabilitation.  We ask, rhetorically, if, in sentencing cases of disrupting public order, the courts have to take into account the factor of deterrence even when the accused is a minor, is it not more so when the accused is an adult?

47.In emphasizing deterrence as the major sentencing consideration, the courts are not in any way undermining a citizen’s legitimate rights of freedom of expression and freedom of assembly.  As explained by Poon JA (as he then was)  in sub-section H.2 of the judgment of the Court of Appeal in Secretary for Justice v Wong Chi Fung[30], a line had to be drawn between citizens’ right to have “peaceful meeting” and the conduct which “disrupts or threatens to disrupt public order” and “uses or threatens to use violence”.  This line must not be crossed, lest public order could not be preserved and society would be prone to descend into anarchy which was the crux of the public hazard.  Poon JA went on and used the entire sub-section H.3 to discuss the gravamen of the offence of taking part in an unlawful assembly in order to explain the feature of the offence and how this feature would lead to and even aggravate the said public hazard.  A full understanding can hardly be achieved merely by looking at the criminal acts on a superficial level.

48.In Secretary for Justice v Yuen Chi Shing[31], Pang JA set out a number of sentencing considerations which, in our judgment, are also pertinent to the offence of wilfully obstructing a police officer:

(1)  the public hazard targeted by the offence of obstructing which is about the maintenance of law and order;

(2)  the particular acts of the defendant himself, and also his role; and

(3)  the number of participants in the unlawful assembly and any disregard shown to the police warning.

We note that similar sentencing considerations have been applied in HKSAR v Lau Ka Tung, supra, for the offence of obstructing.

G.2  Applying to the present case

49.As to (1)  and (3)  of the preceding paragraph, we have already noted that the present offence took place in the context of the so-called “three major stoppages” which was a serious city-wide social movement and that shortly before there had been an open fire incident which resulted in the gathering of large crowds of emotionally charged people in the vicinity.  We have noted also that the Police was clearly out-numbered and that the situation was difficult to contain. 

50.Wilfully obstructing a police officer is not necessarily less serious than assaulting a police officer.  It all depends on the facts of the case.  Here, the respondent was not just being uncooperative.  As aforesaid, what he did was an attempt to prevent the lawful apprehension of Cheung.  The offence was therefore serious rather than trivial.  

51.In the present case, in view of the respondent’s plea to the charge, the sentence must be considered on the basis that his act was “willful” in the sense that it was deliberate and without lawful excuse.  In this regard, the explanation put forward by the respondent in the Probation Officer’s Report that he had wanted to prevent Cheung from being injured, cannot be sustained. This is because:

(1)  had there been any doubt that the respondent might have genuinely harboured such a belief, then the plea should not have been accepted; and

(2)  the suggestion that the police officers would injure Cheung was simply without basis. 

52.Bearing in mind the sentencing principles stated above and having regard to the circumstances of the offence and the seriousness of the defendant’s act, we are of the view that a custodial sentence with sufficient deterrent effect is clearly called for.  It follows that a probation order is one which falls outside the range of sentences which a magistrate, applying his/her mind to all the relevant factors, could reasonably consider appropriate: Attorney-General’s Reference (No. 4 of 1989)[32].

G.3   The appropriate sentence

53.Having regard to the prevailing circumstances, the seriousness of the offence and the defendant’s mitigation, we are of the view that in case of a conviction after trial, the starting point should be 7½months’ imprisonment which is reduced to 5 months’ imprisonment for the timely plea.

54.A further deduction of 2 months should be given for the fact that the sentence is now increased on review.  In so doing, we have taken into account that, owing to COVID-19 pandemic, the community programme which the respondent was required to attend by the Probation Officer consisted only 4 to 5 hourly sections of discussions of newspaper cuttings on social issues.  

55.We are fully aware that the respondent, who was previously sentenced to probation, is now facing a custodial sentence.  We find it necessary to echo the remarks made by Stock VP (as he then was)  in Secretary for Justice v Wong Hong-leung[33] that “a sentence so out of line with one that could reasonably be considered appropriate is a sentence which does a defendant no favour.”

H.  Long time Gap between sentence and section 104 review

56.Lastly, we cannot help but note that there was a long time gap of 5½ months between the sentence and the hearing of the section 104 review.  We ascertained from the applicant that it was some 5 months after the application for review was lodged that a letter was sent to the First Clerk to remind them of the matter before a hearing date was finally given.  It is regrettable that this is the second time that we encounter a similar delay.  As a general remark, the lower courts are reminded to take heed of the following passage of Barnes J who gave the judgment of the Court of Appeal in Secretary for Justice v Chan Yip Wan[34]:

“Given its nature, an application to review a sentence under section 104 should be timely disposed of. It is not generally acceptable for such a hearing to be fixed months (in this case 5 months)  after the original sentence. It is the duty of parties concern to ensure the review is heard as soon as practicable. It is not desirable for such a hearing to be dependent on counsel’s availability. Even if the court is minded to accommodate counsel, it is still the duty of the court to properly manage the court diary, to ensure that the review hearing is heard as expeditiously as reasonably practicable. What has taken place in this case is undesirable.”

Ms Fu Yuet Yee, Betty, ADPP (Ag) leading Ms Moonar Tsoi, SPP (Ag) of the Department of Justice, for the applicant

Mr Hectar Pun, SC leading Mr Joey Chan instructed by Messrs S C Ho & Co, Solicitors, for the respondent