Secretary for Justice v. Poon Yung Wai

[English Translation – 英譯本]

CAAR 16/2020

[2021] HKCA 510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 16 OF 2020

(ON REVIEW FROM WKCC NO. 3932 OF 2019)

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BETWEEN

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Before:  Hon Poon CJHC, D Pang JA and M Poon J in Court

Date of Hearing:  18 March 2021

Date of Judgment:  18 March 2021

Date of Reasons for Judgment:  20 April 2021

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REASONS FOR JUDGMENT

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Hon Poon CJHC (giving the Reasons for Judgment of the Court):

A.  Introduction

1.On 19 October 2020, the respondent was found guilty after trial by Ms Peony Wong, Magistrate (“the Magistrate”), of one count of “inciting others to take part in an unlawful assembly”[1]. The Magistrate, having heard preliminary mitigation, called for a community service order suitability report in respect of the respondent and adjourned sentencing. On 3 November 2020, accepting the community service order suitability report, she sentenced the respondent to 160 hours of community service. The applicant applied, with leave of the Court[2], to the Court of Appeal out of time on 18 December 2020, seeking a review on the sentence.

2.At the end of the hearing on 18 March 2021, this Court held that the sentence passed by the Magistrate was wrong in principle and manifestly unduly lenient.  Accordingly, we allowed the review on the sentence, set aside the community service order and substituted it with a sentence of 13 months’ imprisonment on the respondent.  We now hand down the reasons for our judgment.

B.  The trial

B1.   The prosecution case

3.The particulars of the offence alleged that between 19 and 21 September 2019, the respondent unlawfully incited other persons to take part in an unlawful assembly outside the San Uk Ling Holding Centre.

4.The San Uk Ling Holding Centre, a police facility, became a temporary holding centre between early August 2019 and early September 2019 for protesters whom the police had arrested since June 2019 due to unlawful assemblies.

5.The respondent was a user of the internet social media Facebook and a member of the Facebook group “Not climbing over the wall is hard; it’s hard not to climb over the wall (exclusively for political topics)” (“the Group”).  At the material period, the Group had at least 10,000 to 20,000 members.

6.At around 0339 hours on 19 September 2019, the respondent published a post to the Group (“the 1^st post”):

“Want to tell you grim news that I don’t want to FC. [“]Black cops[”] in San Uk Ling, Hong Kong claimed that female protesters had serious self-harm behaviours, requesting to give female protesters sedative injections. They then did acts such as sexually molesting, raping, and gang raping them. As the sedative injection will only stupefy you: yet you are conscious. Many victims killed themselves afterwards and the [“]black cops[”] conveyed their bodies to various places in Hong Kong and dropped them from height. Those who pay attention to the news are probably aware that there have been a hundred cases of jumping to death in the recent two weeks in Hong Kong. What’s even more outrageous is that there is absolutely no sign of the [“]black cops[”] stopping. It is even said that some male protesters were forced to watch the sexual assaults on female protesters before they were beaten to death alive. After receiving reports, 6 Justices of the Peace in Hong Kong applied to the Secretary for Security for visits to San Uk Ling, but were turned down. These are what a [“]black cop[”]former schoolmate said after drinking in a gathering. He himself is one of the guarding officers at San Uk Ling. I simply can’t fall asleep tonight, nor can I calm down.”

7.At around 1143 hours on 20 September 2019, the respondent published another post to the Group (“the 2^nd post”):

“Many [“]Fifty Cent [Party”] members are saying that evidence is required, FC needed.  Sorry, but what can a person prove when they are dead?  There are four more so-called non-suspicious cases of suicides in Hong Kong today.  They don’t care that you have any suspicion.  They just kill several every day anyway.  Yet, there is still a bunch who refuses to wake up and keeps asking for evidence, international attention, sounding as if human lives are the bargaining chips for them and other countries in their negotiations with the Hong Kong communists.  All citizens surround San Uk Ling.  Most important of all is to rescue the martyrs.  A life lost is never regained.”

8.The viewing statistics of the 1^st post as at around 1930 hours on 19 September 2019 were: 92 responses, 88 shares and 406 emoji reactions; up until around 1200 hours on 15 October 2019, the number of responses increased to 99, shares to 92 and emoji reactions to 427.  The viewing statistics of the 2^nd post as at around 1200 hours on 15 October 2019 were: 23 responses, 2 shares and 20 emoji reactions.      

9.On 16 October 2019, the police arrested the respondent for “inciting others to take part in an unlawful assembly”.  Subsequently, the police interviewed the respondent, who admitted under caution to having published the posts in question.  The respondent explained that there was a rash of news reports alleging sexual molestation on protesters at the San Uk Ling Holding Centre and pertaining to cases of mysterious suicides; thus he published the 1^st post and created a “black cop former schoolmate” in the hope of arousing attention.  The respondent admitted that he did not believe there genuinely were rapes.  He also said that he published the 2^nd post due to hatred for the San Uk Ling Holding Centre and in the hope of calling on several tens of people to surround the facility and cause nuisance.  Without conceiving a detailed plan for implementation, the respondent only wanted the facility to be surrounded and there to be songs singing outside, songs that included those mocking the police.  He admitted that he did not believe there really were deaths in the holding centre.

B2. The defence case

10.The respondent elected to give evidence.  He did not dispute having published the posts in question; however, he said he was purely reposting what other people had said, and that as a member of the general public, he was not in a position to conduct verification.  The respondent also clarified that at the time the 1^st post was published, he was unable to ascertain if rapes had taken place.  As to the reference to surrounding the San Uk Ling Holding Centre in the 2^nd post, the respondent just wished to arouse attention by getting together 30 to 40 people to sing there.  He used the phrase “to rescue the martyrs” to mean the assistance lawyers and councilors could provide in getting bails for arrestees.  The respondent said the use of violence was not something he had thought about.

B3.   Reasons for conviction

11.The Magistrate observed that the respondent had searched online for the legal definition of unlawful assembly and therefore, in her view, what he said in court about wishing to get together 30 to 40 people did not hold any truth and was a fabrication in response to the statutory limit on the number of participants in an unauthorised assembly. As to the respondent’s claim that he was unable to ascertain if rapes had taken place at the San Uk Ling Holding Centre, the Magistrate found it inconsistent with his records of interview and thus rejected it.

12.Noting also that nowhere in the posts in question was there any mention of seeking assistance from councillors or lawyers, the Magistrate considered that “to rescue the martyrs” did not merely refer to surrounding the San Uk Ling Holding Centre.  She rejected the respondent’s case that he just wished to call upon several tens of people to sing at the site, and found that by the 2^nd post, he incited others to conduct themselves in a disorderly manner.  The respondent was aware that the Group had at least 10,000 to 20,000 members.  The Magistrate took the view that any reader of the post must have understood that it would involve mass participation of violent acts.  She also found that if people were incited to assemble and conduct themselves in a disorderly manner, that would likely cause the police reasonably to fear that a breach of peace would be committed, and the respondent so believed at that time.  Accordingly, the Magistrate found the respondent guilty of “inciting others to take part in an unlawful assembly”.

B4.   Mitigation

13.At the time of sentence, the respondent, previously a construction site worker and later a casual worker, was 38 years of age and had no previous record.  In mitigation, the defence submitted that the respondent, emotionally agitated by the news reports, committed the offence without verifying the contents of the news reports.  He had learnt a lesson afterwards.  He was filled with guilt, had deleted his Facebook account and had not published any post online anymore. The likelihood of re-offending was low.  The defence also tendered mitigation letters from the respondent as well as from his friends, co-workers, superiors and so on, submitting that the respondent was a person of good character who always helped his friends, took his work seriously and was against violence. They asked that he be given a lenient sentence.

B5.   Reasons for sentence

14.The Magistrate pointed out that there was nothing in the evidence to suggest that the respondent had anything to do with incidents which, according to the prosecution, took place outside the San Uk Ling Holding Centre in mid-September 2019, including the guided tour by the silver-haired, gathering attended by councillors, sign sprayed with red paint and the discovery of helmet[s], umbrella[s], goggles and other items in the bushes at the outer perimeter of the holding centre.  In addition, the other two posts the respondent published (alleging rapes of female protesters with the involvement of Mainland public security officers, [“]black cops[”], village thugs and triads)  after the two posts in question were outside the scope of the present charge.

15.The Magistrate was of the opinion that despite the absence of evidence showing that the posts in question led to any assembly, the charge had to be seriously dealt with for its gravity.  She did not accept that the respondent only published information the authenticity of which had not been ascertained because the respondent invented a [“]black cop[”] former schoolmate so as to lend credibility to the post in question.  The Magistrate observed that inciting others on the internet to take part in an unlawful assembly was a very serious matter; even though no assembly actually took place as a result, the possibility of it being caused could not be overlooked in sentencing.  However, she noted that numerous internet users either did not agree with the posts in question or were skeptical.  This, in her view, indicated that the posts in question were exaggerated and untruthful, having little effect in actually causing an unlawful assembly.  Moreover, nowhere did the posts in question mention the way, time and date of surrounding the San Uk Ling Holding Centre.  

16.The community service order suitability report confirmed the respondent’s previously good record, showing a regretful and reflective attitude, having family support and a good track record of employment, and being in stable health.  It recommended a community service order of medium duration, namely 80-160 hours.  Accepting the recommendation in the community service order suitability report, the Magistrate sentenced the respondent to 160 hours of community service.  She did so on the grounds that:

“The defendant is found guilty of a very serious charge. Having said that, taking into account that the defendant has no previous record, that he has a life and jobs which are relatively stable, that this incident did not bring upon any acts of violence, that the defendant has been remanded for 14 days pending the report, and that the probation officer’s recommendation in the community service order suitability report is for the defendant to perform community service, it is appropriate to sentence the defendant to 160 hours of community service for the present charge in substitution for a term of immediate imprisonment.”

C.  The applicant’s grounds for review

17.Mr Ivan Cheung, Senior Public Prosecutor, and Ms Jennifer Tsui, Public Prosecutor, for the applicant, advanced two grounds, contending that the total sentence passed on the respondent was contrary to the sentencing principles and was manifestly inadequate, falling outside the range of sentences which a judge, applying his mind to all the relevant factors, could reasonably consider appropriate: AG's Reference No 4 of 1989 (1989)  11 Cr App R (S)  517 at p.521.

C1.   Ground 1: the imposition of the non-custodial sentence for the offence of incitement to unlawful assembly was wrong in principle

18.Mr Cheung submitted that the offence of unlawful assembly, even without actual violence, called for a deterrent penalty; it was more serious if violence was involved: Secretary for Justice v Chung Ka Ho [2020] HKCA 990 at [52] and [53].  Incitement is an offence liable to the same maximum penalty as the underlying offence by virtue of section 101I(2)  of the Criminal Procedure Ordinance, Cap. 221.  Mr Cheung, citing HKSAR v Hung Shi Chung, CACC 158/2005, 15 March 2006, unreported, at [41], argued that the sentences for the two should not differ inordinately and that the sentence for the offence of incitement should reflect the applicable sentencing principles or guidelines for the underlying offence if they had been set out by the Court of Appeal.

19.Pursuant to Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 657, considerations relevant to sentencing include arranging, leading, summoning, inciting or advocating others to take part in the unlawful assembly.  Mr Cheung contended that, considering that the offence of unlawful assembly itself was preventive in nature and that an act of incitement was to cause an unlawful assembly, deterrent penalty should be meted out for any act of incitement to unlawful assembly, even if no assembly took place and irrespective of whether violence was involved.  There could be no departure from the principles set down in Wong Chi Fung to leniently deal with an inciter.

20.Mr Cheung set out the following factors for the Court to consider in determining an appropriate deterrent sentence for the offence of incitement to unlawful assembly:

(1)  the manner of incitement and the number of recipients;

(2)  whether it was a single incitement or some means was used to enhance the effect of the incitement;

(3)  whether it was spontaneous or premeditated;

(4)  as regards the unlawful assembly that might take place:

(a)  the contemplated number of people involved;

(b)  the contemplated degree of violence;

(c)  the contemplated scale of violence;

(d)  the possible consequences;

(e)  the gravity and degree of imminence of the possible threat;

(5)  whether the act of incitement in fact led to an unlawful assembly or other related illegal acts (even though the situation was perhaps not yet an unlawful assembly or had become more serious, such as a riot);

(6)  the subject location[3].

21.It was contended by Mr Cheung that the incitement in the present case was widespread and a substantial number of people was anticipated to take part in the unlawful assembly that would involve violence.  The location in question was an important holding facility of the police.  The respondent even deliberately concocted stories to enhance the effect of the incitement.  The present case required a deterrent sentence for which the only appropriate option was a prison term.  The imposition of the community service order was against the principles in that the respondent had missed the best opportunity to show remorse as he was found guilty after trial, and there was no appropriate mitigation in support.  See Wong Chi Fung and Leung Hiu Yeung.

C2.   Ground 2: the sentence of 160 hours of community service was manifestly unduly lenient

22.Mr Cheung observed that had the respondent successfully caused the unlawful assembly, there would have been huge crowds surrounding, or even storming, the police facility, which would have posed a direct challenge to the rule of law and the police’s law enforcement, entailing grave consequences.  Furthermore, given the respondent’s search online for the definition of unlawful assembly prior to the commission of the offence and use of the internet to make incitement with made-up statements in a group having more than ten thousand members, it was sheer luck that no large-scale unlawful assembly took place in the present case: see HKSAR v Chan Yau Hei (2014)  17 HKCFAR 110, at [89] and Yu Ka Kui, at [28].  The offence took place at the height of a string of violent and illegal incidents which had occurred since June 2019. Mr Cheung submitted that it was necessary for the Court to consider the social situation at that time so as to impose a penalty that would provide a sufficient deterrent to the respondent and others: see AG v Tse Chung [1967] HKLR 452.

23.Mr Cheung submitted that even if a defendant satisfied the relevant criteria, the court had to take careful account of the gravity of the case and should not easily make a community service order, citing HKSAR v Wan Ka Kit [2006] 3 HKLRD 9.  The only appropriate sentence here, Mr Cheung reiterated, was a term of immediate custody.  The respondent was in custody for 14 days pending sentence, but that was not a reason for imposing a community service order instead.  There was nothing exceptional about the respondent’s background and the appropriate term of imprisonment, even if he was a first offender, had to be one of more than 14 days.  Mr Cheung cited the three cases below:

(1)  In Wong Chi Fung, the 2^nd respondent was found guilty of inciting others to take part in an unlawful assembly.  The Court of Appeal considered a prison term of 10 months to be the appropriate starting point.  Although no actual unlawful assembly took place in the present case, Mr Cheung argued that even taking this into consideration, the term received by the respondent had to be little different to the one imposed in Wong Chi Fung, especially when the unlawful assembly incited in the present case was more serious in scale and nature.

(2)  Two of the defendants in R v Blackshaw [2012] 1 WLR 1126 made incitements through Facebook.  The Court of Appeal considered that the deterrent sentence of 4 years’ imprisonment was wholly justified.  Even taking into account that the facts there were more serious than those of the present case, it did not compromise the fact that the sentence here was manifestly unduly lenient.  

(3)  Likewise, in Divin and McGinlay v HM Advocate [2013] JC 259, the two defendants made incitement by means of Facebook.  Having had regard to the fact that the acts of incitement did not lead to any actual illegal activity there, the Appeal Court nonetheless considered that 3 years’ imprisonment was the appropriate sentence in view of the necessary deterrence.

D.  The respondent’s position

24.Mr Jeffrey Tam, counsel for the respondent, submitted that in principle, the Court of Appeal would not easily accede to an application by the Secretary for Justice to review sentences, citing Wong Chi Fung at [155], and could only take the factual findings made by the trial magistrate as the only basis in dealing with an application for sentence review: see Leung Hiu Yeung, at [127]; and Attorney General v Li Ah-sang [1995] 2 HKCLR 239.

25.Mr Tam went on to say that in Wong Chi Fung, the Court of Appeal made it clear at [151] that for unlawful assembly cases of a relatively minor nature, more weight might be given to factors such as the personal circumstances of the offender, his motives or reasons for committing the offence and “rehabilitation”; thus, a community service order could be an appropriate sentencing option.  The Court of Final Appeal held in the same case that a community service order was not manifestly inadequate: Secretary for Justice v Wong Chi Fung and Others (2018)  21 HKCFAR 35, at [105].

26.Mr Tam highlighted the findings of the Magistrate that: (1)  there was nothing in the evidence to suggest that the conduct of the respondent had anything to do with any of the incidents occurred in the vicinity of the San Uk Ling Holding Centre[4]; (2)  the posts in question had little effect in actually causing an unlawful assembly[5]; (3)  nowhere did the posts concerned mention details such as the time and date of the assembly[6]; (4)  the incident did not bring upon any acts of violence[7].  For these reasons, Mr Tam contended that the gravity of the present case was low, which put it within cases of a relatively minor nature as referred to by the Court of Appeal in Wong Chi Fung, at [151] - [152].  Whilst inciting others to take part in an unlawful assembly was a serious offence, the Magistrate had considered the present case based on the facts and given regard to the respondent’s background as well as all relevant factors.  The sentence she had passed fairly reflected the respondent’s culpability.

27.In respect of the applicant’s submissions that in the present case, “the incitement was widespread”, “a substantial number of people was anticipated to take part in the unlawful assembly” and that “it was sheer luck that no large-scale unlawful assembly took place”, Mr Tam argued that the Court of Appeal should not give them any consideration, for they were beyond the Magistrate’s factual findings.

28.Further, with respect to the cases cited by the applicant, Mr Tam observed that Blackshaw and Divin have little reference value, given that their facts were more serious than those of the present case and they concerned unlawful assemblies of a scale larger than the one in the present case.  Also, the unlawful assembly in the present case was, in his view, smaller in scale than in Wong Chi Fung.

29.On the applicant’s contention that the respondent did not have the remorse required for a community service order, Mr Tam argued that the Magistrate accepted the respondent’s remorse in the light of the community service order suitability report and a series of mitigation letters.  The community service order suitability report stated that the respondent admitted his guilt, felt deeply regret and had a reflective attitude.  As the contents of the report were not challenged at the sentencing hearing, the applicant had no basis to deny that the respondent was genuinely remorseful.  Mr Tam also argued that the circumstances under which, as set out by the Court of Appeal in Wong Chi Fung, an offender would not be accepted as having remorse did not apply in the present case.  Further, Mr Tam cited Secretary for Justice v Leung Hiu Yeung (2018)  21 HKCFAR 421, wherein, at [28], whilst clarifying that the Court of Appeal was not saying in Wong Chi Fung that genuine remorse on the part of an offender had to be present before a community service order might be made, the Court of Final Appeal

said that there were exceptions[8].

30.Mr Tam pointed out that, having the advantage of hearing the case at trial and hence a fuller understanding of the seriousness of the case, the Magistrate was able to accurately determine an appropriate sentence for the respondent.  Upon full and thorough consideration, ascribing appropriate weight to various sentencing factors such as personal background and motives, the Magistrate imposed the community service order.  As long as the sentence was not manifestly unduly lenient, it did not constitute a ground for review.  The present case being nowhere near other cases of a similar nature in terms of scale and consequences caused, proportionate deterrence had been achieved with the imposition of the community service order.  The sentence passed by the Magistrate was neither wrong in principle nor manifestly unduly lenient, it being a sentence that a judge could reasonably pass.

31.Even if a custodial sentence was merited, Mr Tam, citing Secretary for Justice v Wade, Ian Francis [2016] 3 HKC 274 at [42] – [46], argued that a suspended sentence of imprisonment would suffice and “exceptional circumstances” were not required.  Mr Tam also referred to HKSAR v Ng Man Yuen Avery and Others [2019] HKMagC 4 and HKSAR v Tai Yiu Ting and Others [2019] HKDC 568, submitting that the Secretary for Justice did not seek any review on the suspended sentences of imprisonment in the two cases.

32.As for the term of sentence, Mr Tam invited the Court of Appeal to give the respondent a discount of 1 month, submitting that this was an application for review of the sentence brought by the Secretary for Justice. Moreover, the respondent had completed a total of 24 hours of community service and had his work lined up for the next week or two.  It was anticipated that he would complete 40 hours of community service by the day of hearing.  Mr Tam urged the Court of Appeal to exercise its discretion in giving a further discount of 1 month in the light of the fact that the respondent had completed part of the community service.  Mr Tam thus was of the view that, taking into account the minor nature of the case, along with various factors and the grounds for sentence reduction set out above, an imprisonment term not in excess of 14 days was more than sufficient even if the Court of Appeal saw it necessary to impose a custodial sentence.

E.  Discussion

33.Inciting others to commit an offence is a common law offence and one of the inchoate offences[9]. Put simply, a person is guilty of incitement if he persuades or encourages another to commit an act which would constitute a crime if done by the other: R v Curr [1968] 2 QB 944. The offence of incitement was created to prevent the commission of crimes and therefore it is sufficient to constitute incitement even if the crime is not carried out or attempted: R v Higgins (1801)  2 East 5.

34.The gravamen of the offence of incitement is to:

(1)  stop people from persuading or encouraging others to commit crime, even if no one so persuaded or encouraged carried out the crime; and

(2)  allow intervention of the law at the earliest possible time to stop a person who has been incited from carrying out the relevant crime.

35.With regard to the penalty for the offence of incitement, section 101I(2)(c)  of the Criminal Procedure Ordinance provides:

“Where a person is convicted of —

Incitement,

to commit an offence for which a maximum penalty is provided by any Ordinance, and no penalty is otherwise provided by any Ordinance for such … incitement, he shall be liable to be sentenced to that maximum penalty.”

36.The maximum penalty provided by section 101I(2)(c)  for the offence of incitement is the one for the crime the subject of the incitement since the offence of incitement requires there to be a target crime. The culpability of that crime does necessarily relate to the inciter’s culpability for his incitement as he incites another person to commit the crime despite not committing it himself.  Consequently, in determining sentence for a person who has committed the offence of incitement, consideration needs to be given to the crime incited by him as well as its culpability and sentence; the approach to consideration should depend on the actual circumstances of the case.  In general, the factors submitted by Mr Cheung as set out in [20] above are of some reference value for the offence of incitement to unlawful assembly.  In any given case, whether these factors are applicable or whether there are any other factors that need to be considered, and the application of an applicable factor in assessing the offender’s culpability are dependent on the actual circumstances of the case.

37.The present case concerns inciting others to commit unlawful assembly involving violence.  In Wong Chi Fung, the Court of Appeal and the Court of Final Appeal both emphasised that unlawful assembly involving violence was a serious offence for which the court was required to give sufficient consideration to deterrence and punishment in sentencing.  Likewise, inciting others to commit unlawful assembly involving violence is of course a serious offence for which the court is also required to do the same in sentencing.  In addition, the facts of the offence committed by the respondent were grave, which considerably aggravated his culpability, and the Court must severely punish and deter. 

38.First, according to the general sentencing principles, the context of offending is of relevance to the gravity of an offence and the culpability of an offender: see Tse Chung, at p.458; Divin, at [20].  In the present case, the respondent committed the offence amid a series of persistent, serious and violent confrontations and illegal acts in Hong Kong, among which were many large-scale protracted riots or unlawful assemblies involving violence that affected extensive areas or quite a number of places.  The respondent’s inciting others in this social context and under these circumstances to commit unlawful assembly involving violence clearly increased the risk of breaking social peace and order.

39.Second, the respondent incited others to take part in an unlawful assembly targeting the San Uk Ling Holding Centre, which was then a temporary holding centre for the police to cope with large-scale arrests in their operations against unlawful meetings.  By targeting the police facility, the respondent not only intended to impede the police’s work there but also made a direct challenge to the law enforcement by the police, in particular, their enforcement in response to the severe threat to social order Hong Kong was facing at the time.

40.Third, related to the second point is that the respondent described, in the 1^st post, police officers at the San Uk Ling Holding Centre as “black cops”, smearing them by saying that they sexually molested female protesters in ways that were extreme and cruel, that some male protesters were even “beaten to death alive” and that requests for visits from Justices of the Peace who had received reports were declined.  The respondent’s wordings and accusations could very easily stir up in readers of the post intense dissatisfaction or even disgust for the police, and could lead to deepened distrust of, or even animosity towards, the police on the part of the readers, especially those who already had suspicion or dissatisfaction against the police.  This would undermine the credibility of the police and, in turn, affect their enforcement of the law.

41.Fourth, the respondent posted the posts in question in an online group having more than 10,000 members.  It is common knowledge that messages posted on the internet can circulate rapidly and widely.  The respondent, in choosing to incite others by means of this, albeit without specifying the time, obviously intended to incite, as soon as possible, many people to go to the San Uk Ling Holding Centre for a violent unlawful assembly.  His conduct aggravated his culpability: see Blackshaw, at [73]; Yu Ka Kui, at [28].

42.Fifth, the contents of the posts in question were all fabrications.  In order to boost his credibility, the respondent even made up a character of a “black cop former schoolmate” who told him after drinking.  Some members in the Group said that they believed what was stated in the posts.  When some other members remarked that they did not, the respondent argued with them, insisting all the time on the truthfulness of the contents of his posts.  This is compounding the wrongdoing knowingly committed.  

43.On the whole, the respondent’s culpability is very high, necessitating a sentence of sufficient punishment and deterrence.  Immediate custody is the only appropriate sentencing option.

44.Mr Tam contended that the respondent’s posts, whose contents were plainly false and incredible, generated little response and the majority of the responses questioned what was said; at the end, the incitement to an unlawful assembly at the San Uk Ling Holding Centre was not acted on.  The Magistrate held the same view and that was the main reason she sentenced the respondent to community service[10].

45.This Court does not accept these arguments because:

(1)  they ignored the gravamen of the offence of incitement in preventing the commission of crime.  The respondent committed the offence of inciting others to unlawfully assemble when he posted the posts in question.  The Court should assess his culpability against the then circumstances, including factors such as the context, the place and individuals targeted, the modus operandi, and the risk of undermining law and order.  The incitement to an unlawful assembly which would involve violence at the San Uk Ling Holding Centre, if acted on, would aggravate the respondent’s culpability, but that it did not come to fruition would not mitigate his culpability.  This Court’s view can find support in Divin, where against the backdrop that riots had broken out in a number of cities and districts in England, which had been widely reported by the media in Scotland, the appellants incited others to take part in a riot in Scotland by means of Facebook.  The High Court of Justiciary stressed at [20] of its judgment that even though riots had not spread to Scotland, the appellants’ culpability was quite high irrespective of the terms they used or the responses posted by members of the public.  The same applies in the present case.  

(2)  due to these erroneous arguments, the Magistrate failed to properly assess the respondent’s culpability.

46.In the opinion of this Court, the Magistrate, despite saying that the case was serious, ignored the gravamen of the incitement offence, and did not fully grasp and properly assess the respondent’s culpability, thereby resulting in the balance being erroneously tilted towards the respondent’s personal circumstances and mitigation.  And she completely ignored the necessity to impose on him a sentence which carried sufficient punishment and deterrence.  Hence, the sentence of 160 hours of community service imposed by the Magistrate on the respondent was wrong in principle and manifestly unduly lenient.  As stated above, the appropriate sentence is one of immediate custody.  Taking account of all relevant circumstances, including the severity of the offence and the factors aggravating the respondent’s culpability as stated above, this Court considers 15 months to be the appropriate starting point.  Neither the respondent’s personal circumstances nor the factors advanced in mitigation justify a reduction in sentence.

47.Taking into account that this is a review of the sentence, that the respondent was in custody for 14 days pending the community service order suitability report and that he has performed 40 hours of community service, this Court, in the exercise of its discretion, grants a discount of 2 months. The respondent is required to serve a total term of 13 months.

F.  Conclusion

48.For the reasons given above, this Court allowed the review of the sentence, set aside the community service order imposed by the Magistrate and substituted it with 13 months’ imprisonment on the respondent.   

Mr Ivan Cheung, Senior Public Prosecutor and Ms Jennifer Tsui, Public Prosecutor, of the Department of Justice, for the applicant

Mr Jeffrey Tam, instructed by M.C.A. Lai Solicitors LLP and assigned by the Legal Aid Department, and Ms Sharon Ng, instructed by M.C.A. Lai Solicitors LLP, for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Justin Yuen, solicitor.