Read the full judgment text of CAAR 1/2023 on BabelCite. This Court of Appeal judgment was delivered on 1 December 2023 before 彭偉昌, 彭寶琴, 陳慶偉.
Criminal law – sentencing review – rioting – Public Order Ordinance (Cap 245) s.19(1) and (2) – PolyU riot of November 2019 – whether sentencing court may consider entire PolyU riot as context – whether 2-year starting point wrong in principle or manifestly insufficient – sentencing discount for timely and late guilty pleas – sentence review under s.81A Criminal Procedure Ordinance (Cap 221) – Secretary for Justice v LEUNG TSZ YEUNG BRIAN and four others. The five respondents pleaded guilty to a joint charge of rioting on 18 November 2019 at the Hong Kong Polytechnic University and were sentenced in the District Court on a 2-year starting point (D1: 18 months after 25% discount; D4: 15 months after 25% discount and a further 3 months' reduction; D3 and D7: 19 months after slightly more than 20% discount; D6: 16 months after 20% discount and a further 3 months' reduction). The Secretary for Justice applied to review the sentences, contending the 2-year starting point was wrong in principle and manifestly insufficient. Held: (1) The court may and should consider the entire PolyU riot as the factual context of charge 1, but only as context and not as a means of re-sentencing on charges left on file, following HKSAR v Tang Ho-yin [2019] 3 HKLRD 502 and HKSAR v Leung Chun-kit [2020] 4 HKLRD 428; an offence's context is inseparable from its overall gravity and the offender's personal culpability. (2) The original 2-year starting point was manifestly insufficient given the unprecedented scale, duration and violence of the PolyU riot, the respondents' knowing entry despite police warnings, and the throwing of 'large amounts' of petrol bombs and hard objects at police by the group of which they were part; the maximum sentence is 10 years and sentencing must serve as a deterrent to protect public order. (3) Mitigating factors such as lack of prior convictions, good character and being misled by public opinion should carry no significant weight in serious offences. (4) The notional appropriate starting point was not less than 3 years, reducing to 2 years for timely pleas (D1, D4) and 2 years 4 months for late pleas (D3, D6, D7), with no further room for reduction. (5) However, on a sentence review respondents are conventionally entitled to a degree of reduction, the application was out of time, and the respondents were due for imminent release; the court exercised its discretion not to vary the sentences, holding that doing so would not be in the public interest. Application dismissed. (Pang, Pang and Chan JJCA)
Legal issues: Whether the sentencing court may or should consider the entire PolyU riot as context when sentencing for a discrete riot charge · Whether the 2-year starting point for rioting was wrong in principle or manifestly insufficient · Whether to vary the sentences despite finding them erroneous
Outcome: The Secretary for Justice's review application was dismissed. Although the original sentences were found to be erroneous (with a 2-year starting point being manifestly insufficient), varying the sentences was held not to be in the public interest.
Cited by 17 cases · Cites 3 cases