THE QUEEN v. LUI KOON MAN AND OTHERS

HEADNOTE

Magistracy appeal - sentence on plea of not guilty should not give appearance of a punishment for such a plea.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO.1751 OF 1990

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JUDGMENT

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1. On the 15th of May last year at about 9 o'clock in the evening, some 600 men, the majority of them wearing a white glove on one of their hands, went towards the sales office at the construction site of Laguna City. Most of them went there on 6 hired coaches, and others arrived on ? foot, or by taxi or bus. There was a large group of Police officers seeking to maintain order at the site, and some200 men who had alighted from their vehicles behaved in a disorderly manner. They confronted the Police officers, shouted aloud in foul language, picked up wooden planks from the construction site and waved them above their heads.

2. Chief Inspector CHAU who was in command, warned them to disperse but this warning was ignored. Police officers then took action and after a brief struggle, some 369 men were subdued. Some of the those arrested later told the police, under caution, that they had gone together to Laguna City on the night to demonstrate their strength to rival triad groups in order to gain control over the sales of flats. The white gloves they wore were for identification.

3. On November the 5th, some 111 defendants appeared before Mr. Thomas at Kwun Tong Magistrate's Court. All but three pleaded guilty to a charge of unlawful assembly, and the magistrate imposed a standard penalty of a fine and a bind over for 12 months. The three who leaded not guilty had a trial which lasted several days.

4. It is clear from the notes of evidence that the proceedings did take some time and no doubt caused inconvenience to the magistrate and his court. At the conclusion of the case the magistrate convicted them of unlawful assembly, but instead of imposing a similar bind over, sentenced them to 3 months imprisonment with costs of$2,000. Two of those defendants now appeal against both conviction and sentence.

5. As far as conviction is concerned they have virtually abandoned their appeal. I have read the papers and there is no doubt that the offence was proved against them. As far as sentence is concerned, the magistrate said that he accepted that none of the defendants had been guilty of any violence or disorder, but he took the view that that was due to the presence of the police; he said, there was the potential of violence and of large scale public disorder.

6. The evidence against these three was that they were in a group who were sitting on the ground or standing and who took no part whatsoever in the undoubted violence which some persons were displaying. Indeed, many of those who pleaded guilty, it is clear, were themselves contributing in some way or another to the disorder which was occurring at that construction site, and yet the magistrate considered it right that those who pleaded guilty and no doubt saved Considerable time should only be bound over. Whilst of course it is right that credit must be iven for a plea of guilty, for the magistrate to have sentenced these three men to imprisonment, he must have considered that was the appropriate means of dealing with them.

7. In my judgment what appears to have happened hereis that these three have been punished for their plea of not guilty.  it must be remembered that it is the right of every person before a court to plead not guilty; he disentitles himself to the credit which a plea of guilty brings, but he must not be punished, nor appear to be so, for pleading not guilty. The disparity between the sentences passed on those who pleaded guilty and not guilty is most severe, and in my judgment when it is recognized that the three who were sentenced layed no part at all in the disorder other than for being present, the sentence which was passed gives the appearance of a punishment.

8. In my judgment this sentence was wrong in principle.  I therefore would pass such sentence as would permit the release of these appellants today. These appeals are allowed.