Read the full judgment text of CAAR 16/2020 on BabelCite. This Court of Appeal judgment was delivered on 20 April 2021 before Poon CJHC, D Pang JA and M Poon J.
Criminal law – incitement – unlawful assembly – sentencing review – public order – inciting others to take part in an unlawful assembly contrary to common law and section 18(1) and (3) of the Public Order Ordinance (Cap. 245) and section 101I of the Criminal Procedure Ordinance (Cap. 221) – respondent published two posts on a Facebook group of 10,000–20,000 members between 19 and 21 September 2019 calling on citizens to surround the San Uk Ling Holding Centre and 'rescue the martyrs' – posts contained fabricated allegations that police sexually assaulted and killed female protesters – respondent deliberately invented a 'black cop former schoolmate' to lend credibility – offence committed during widespread social unrest in Hong Kong since June 2019 – whether the imposition of a non-custodial community service order for incitement to unlawful assembly involving violence was wrong in principle – held yes, immediate custody is the only appropriate sentencing option for incitement to unlawful assembly involving violence committed in the social context of widespread unrest – incitement is an inchoate offence whose gravamen is prevention of crime and early intervention – section 101I(2)(c) of the Criminal Procedure Ordinance (Cap. 221) provides that incitement carries the same maximum penalty as the underlying offence – following Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 657 the sentence for incitement should not differ inordinately from that for the underlying offence – whether the 160 hours of community service was manifestly unduly lenient – held yes – aggravating factors included social context of violent protests, targeting of key police facility, use of fabricated extreme accusations smearing police to incite readers, deliberate spread of falsehoods through large online group, and lack of genuine remorse after conviction at trial – non-occurrence of actual assembly not mitigating, following Divin and McGinlay v HM Advocate [2013] JC 259 – appropriate sentence is one of immediate custody – starting point of 15 months with discount of 2 months for review of sentence, 14 days remand, and 40 hours of community service performed – final sentence of 13 months' imprisonment substituted for community service order.
Legal issues: Whether non-custodial sentence wrong in principle for incitement to unlawful assembly · Whether 160 hours of community service was manifestly unduly lenient · Determination of appropriate custodial sentence and applicable discount
Outcome: Review of sentence allowed; community service order set aside and substituted with 13 months' imprisonment.
Cited by 42 cases · Cites 4 cases