SECRETARY FOR JUSTICE v. LEUNG HIU YEUNG AND OTHERS

[English Translation – 英譯本]

CAAR 3/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 3 OF 2016

(ON REVIEW FROM ESCC NO 3658 OF 2014)

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REASONS FOR JUDGMENT

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The Court :

A.   INTRODUCTION

1.  This application for review involves a total of 13 respondents, who were respectively the 1^st – 8^th, 10^th – 12^th, 14^th and 15^th defendants at the trial.[1]  The incident happened on 13 June 2014 at about 8:45 p.m., when the demonstrators who gathered at the ground floor lobby (“the LegCo Square”) of the Legislative Council Complex (“the LegCo Complex” or “the Complex”) started charging at the LegCo Complex in a violent manner, with the intent to forcibly enter the Complex.  The violent act of charging lasted about half an hour.  Because of the incident, a number of facilities in the LegCo Complex were damaged, and Mr Lo Kim Kwong, a LegCo security officer who was then on duty, sustained injury.  After the incident, the repair costs for the facilities amounted to more than $400,000 and Mr Lo needed to take a sick leave of 85 days.

2.  Subsequently, each of the respondents was charged with Unlawful Assembly, contrary to section 18(3) of the Public Order Ordinance[2] (Charge (1)).  The particulars of the offence are that the respondents :

“ on the 13^th day of June, 2014, in Hong Kong, together with other persons unknown, took part in an unlawful assembly, in that you did assemble together and conduct yourselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so assembled would commit a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace.”

3.  The respondents were also charged with another offence of Attempted Forcible Entry, contrary to section 23(1) of the Public Order Ordinance and section 159G of the Crimes Ordinance, Chapter 200 of the Laws of Hong Kong (Charge (2)).  The particulars of the offence are that the respondents :

“ on the 13^th day of June, 2014, in Hong Kong, together with other persons unknown, you did attempt to enter the ground floor lobby of the Legislative Council Complex in a violent manner.”

4.  Furthermore, the 1^st respondent was charged with Obstructing an Officer of the Legislative Council in the Execution of Duty, contrary to section 19(b) of the Legislative Council (Powers and Privileges) Ordinance, Chapter 382 of the Laws of Hong Kong (Charge (3)).  The particulars of the offence are that the 1^st respondent :

“ on the 13^th day of June, 2014, in Hong Kong, you did obstruct an officer of the Council, namely Inspector of Police Kwok Chun-kit while in the execution of his duty.”

5.  The 2^nd respondent[3] was charged with the same offence (Charge (4)), and the particulars of the offence are that the 2^nd respondent :

“ on the 13^th day of June, 2014, in Hong Kong, you did obstruct an officer of the Council, namely Inspector of Police Law Like-him, Michael while in the execution of his duty.”

6.  The case was tried before Mr Jason Wan (“the trial magistrate”) at the Eastern Magistrates’ Courts.  While the 12^th respondent pleaded guilty to Charges (1) and (2), the other respondents pleaded not guilty to all charges.  After trial, the trial magistrate on 30 December 2015 found the other respondents guilty of Charge (1), not guilty of Charge (2), the 1^st respondent guilty of Charge (3), and the 2^nd respondent not guilty of Charge (4).

7.  On 19 February 2016, the trial magistrate sentenced the 1^st respondent to 120 hours of community service for each of Charges (1) and (3), to run concurrently.  In respect of Charge (1), the 2^nd-9^th and 11^th respondents were sentenced to 120 hours of community service, and the 10^th and 13^th respondents were sentenced to 150 hours of community service.  The 12^th respondent was sentenced to 80 hours of community service for each of Charges (1) and (2), to run concurrently.

8.  Dissatisfied with the sentences, the Secretary for Justice applied to this Court for leave to review, which was allowed by Cheung, CJHC on 11 March 2016.

9.  On 2 March 2016, the 1^st-3^rd, 6^th and 13^th respondents lodged appeals against convictions with the Court of First Instance.  Pursuant to section 81C(1)(a) of the Criminal Procedure Ordinance, the review of sentence could not proceed until the conclusion of the appeal.

10.  On 19 and 20 December 2016, the 1^st-3^rd, 6^th and 13^th respondents’ appeals were heard before Wong J.  On 25 January 2017, Wong J handed down his judgment, dismissing all the appeals.  The 1^st and 2^nd respondents applied to the Judge for a certificate, so that they could appeal to the Court of Final Appeal against their convictions.  On 23 February 2017, their applications were also refused by Wong J.

11.  On 6 April 2017, this Court directed that the review application was scheduled to be heard on 21 June 2017.  On 16 June 2017, the 1^st and 2^nd respondents filed their Notices of Motion with the Court of Final Appeal applying for leave to appeal out of time.

12.  On 21 June 2017, the scheduled day of the hearing, Mr Jonathan Man, Senior Assistant Director of Public Prosecutions, and Mr Gary Leung, Acting Senior Public Prosecutor, represented the Secretary for Justice.  The 1^st, 4^th, 7^th, 9^th, and 11^th respondents were represented by Mr Douglas Kwok of Counsel, the 3^rd, 5^th and 12^th respondents were represented by Mr Jeffrey Tam of Counsel, the 10^th respondent was absent, and the remaining respondents appeared in person.  The 1^st and 2^nd respondents applied to this Court for an adjournment of the review application pending the determinations on their applications to the Court of Final Appeal for leave to appeal out of time.  Pursuant to section 81C(1)(a) of the Criminal Procedure Ordinance, the review relating to the 1^st and 2^nd respondents could not proceed because of their applications for leave to appeal against convictions.  With no objections from the applicant and other respondents, we allowed their application and adjourned the entire review application.

13.  On 10 August 2017, the Court of Final Appeal refused to grant leave to the 1^st and 2^nd respondents to appeal against their convictions on Charge (1), but granted leave to the 1^st respondent to appeal against conviction on Charge (3).  On 14 August 2017, this Court resumed the hearing of the review in respect of the sentence passed on Charge (1), and adjourned the review in respect of the sentence passed on Charge (3) until the determination on the 1^st respondent’s final appeal.  Those respondents who previously had legal representation remained to be represented by the same Counsel, and those without legal representation remained to act in person.  Although the applicant had served the Notice of Resumption of the Proceedings on the 10^th respondent’s last known addresses, and tried to contact him by various means but to no avail, the 10^th respondent remained absent.  We decided to proceed with the review concerning the 10^th respondent in his absence.  The proceedings finally concluded on the morning of 15 August 2017.

14.  After deliberation, this Court allowed the application of the Secretary for Justice for the review against sentence, set aside the community service orders passed by the trial magistrate and substituted them with :

(1)   In respect of Charge (1), each of the 1^st-11^th and 13^th respondents was sentenced to a term of imprisonment of 13 months; and

(2)   The 12^th respondent was sentenced to a term of imprisonment of 8 months on Charge (1), and a term of imprisonment of 8 months on Charge (2), to run concurrently.

15.  The following is this Court’s detailed Reasons for Judgment.  Based on the reasons articulated below, we hold that :

(1)   In committing the offence, the respondents and the other participants of the unlawful assembly charged at the LegCo Complex with violence.  Their conduct was a large scale disruption seriously damaging public order and safety.   Under the applicable sentencing principles, the court must impose a deterrent sentence.  Immediate imprisonment is plainly the only sentencing option.  The trial magistrate erred in law and principle when he made community service orders against the respondents.

(2)   Charging at the LegCo Complex with violence makes the case more serious and is an aggravating factor.  When participants of an assembly at the LegCo Square use or threaten to use violence in the course of promoting their cause or expressing their view, they harm the integrity of the LegCo as the symbol of public opinion.  They also impede the rights of others who assemble peacefully in promoting their cause and expressing their view in the same place at the same time.  In extreme cases, physical confrontation between different camps may arise, leading to serious consequences.  In sentencing those offenders, the court must safeguard the integrity of the LegCo, protect the rights of those assembling peacefully and lawfully at the LegCo Square and prevent the re-occurrence of violent incidents in an assembly at the LegCo Square.  Thus, the court has to give more weight to deterrence in sentencing.  The court must impose on the respondents a sentence which sufficiently deters them from re-offending and others from imitating their seriously unlawful act of charging at the LegCo with violence.

(3)   The respondents cannot say that they were convicted and sentenced for exercising their rights to assembly, demonstration or expression, or expressing their opposition to the North-East Development Project.  They were so convicted and sentenced because they trespassed on the boundary laid down by the law for peaceful assembly by charging at the LegCo Complex with seriously unlawful and violent means.

(4)   Nor can the respondents say that the sentence of immediate imprisonment imposed on them by the court will suppress the exercise of their rights to the freedom of demonstration, assembly or expression in accordance with law.  As long as they conduct themselves within the boundary laid down by the law, the law will fully and sufficiently protect their freedom of demonstration, assembly and expression.  However, once they trespass on the legal boundary and commit an offence, they immediately lose the legal protection.  When the law sanctions them, the law does not suppress them or deprive them of their rights because the law has never allowed them to exercise such rights by unlawful means in the first place.

(5)   The respondents say that they had not used any violence, and what they had used was only force or aggressive means because their purpose was to make their opposition to the funding of the North-East Development Project heard at the meeting of the Finance Committee.  The respondents’ assertion is simply not tenable because whether their conduct constituted violence is to be determined objectively by reference to their conduct at the time without reference to their subjective view or the purpose of their conduct.

(6)   Some respondents stress that they committed the offence because of “civil disobedience”.  In the present case, this assertion is not a mitigating factor because the respondents’ conduct of charging at the LegCo with violence is inconsistent with the spirit of “civil disobedience” as described in the relevant authority.  Rather, their conduct is a serious disruption damaging public order and safety with violence in total disregard of the law.

B.   FACTS OF THE CASE

16.  At the trial, the prosecution and the defence had adduced a large part of the evidence by way of admitted facts.  Further, the prosecution called 19 witnesses; and according to the stance of the defence at the trial, they did not have much dispute in respect of the prosecution case.  None of the respondents gave evidence.  The 1^st respondent called Mr Tsang Yuk Shing (“Mr Tsang”), who was the President of the Legislative Council at the material time.  The other respondents did not call any witness.  The trial magistrate considered that all prosecution witnesses and Mr Tsang were credible witnesses, and accepted their testimonies.  According to the prosecution’s documentary evidence and the testimonies of the prosecution witnesses and Mr Tsang, the facts of the case may be summarized as follows.

17.  On 6 and 13 June 2014, the Finance Committee of the Legislative Council held meetings to discuss the application for pre-construction funding for the North-East New Territories Development Project.  On 6 June 2014, during the meeting of the Finance Committee, a number of demonstrators charged at the LegCo Complex, causing damage to the facilities in the Complex and injuries to a number of Legislative Council security officers.  As a result, the Legislative Council Commission (“the Commission”) decided on 10 June 2014 to implement a special arrangements on 13 June 2014.[4] On the same date, Mr Tsang, as the chairman of the Commission at the time, issued a press release[5] regarding this.  On 11 June 2014, the Legislative Council Secretariat also issued a press release[6] setting out the arrangements to be adopted on 13 June 2014.

18.  Mr Tsang testified that the LegCo Complex was in principle open to the general public, but citizens entering the Complex needed to go through procedural checks.  The staff would first ask the visitor about the purpose of his visit, such as joining the guided tour or having a meeting with a LegCo member, and then would register the admission and issue an entry permit to the visitor.  The Legislative Council meetings and committee meetings were open to the public for observation, but subject to the number of seats and safety checks, such as going through a metal detector, as well as the restrictions relating to personal belongings.[7]  There were facilities in the LegCo Complex for crowd and entry controls.  Mr Tsang explained that, on 13 June 2014, the facilities of the LegCo Complex were not open to the public, because some demonstrators had forced their way into the Complex during the meeting on 6 June 2014 regarding the funding application for the North-East Development Project. Having considered the risks, the Commission decided on 10 June 2014 that all facilities would be closed in the afternoon on 13 June 2014.  Furthermore, since the security officers had suffered injuries at the incident on 6 June 2014, the Commission also considered it necessary to enlist the assistance of the police[8] on 13 June 2014.

19.  On 13 June 2014 at about 3:00 p.m., the Finance Committee discussed the application for pre-construction funding for the North-East Development Project as scheduled. At that time, hundreds of demonstrators gathered at the designated public activity area outside the LegCo Square.[9] At 8:45 p.m., those who gathered at the designated public activity area started to leave the area and to move those Mills barriers that were used to maintain order.  LegCo Chief Security Officer Mr Sonny Chow Wai Tak (PW2) reported the matters to Mr Loo Sze Yuen Matthew (PW18), Assistant Secretary General of LegCo, who then contacted Mr Tsang.  Eventually, Mr Tsang decided to seek the assistance of the police, and Mr Sonny Chow Wai Tak arranged for the police to enter the ground floor lobby of the LegCo Complex on standby.

20.  Mr Tsang testified that as the President of the LegCo and the chairman of the Commission, he had participated in all decision-making regarding the security arrangements in the LegCo Complex.  On 13 June 2014, Mr Tsang learnt from the reports that there were a large number of demonstrators outside the Complex and the demonstrators were emotional.  He then discussed the matter with the deputy chairman and two ex-officio members.  Eventually, having considered the security situation and the crowd control had possibly exceeded the capacity of the LegCo security officers and that some demonstrators had forced their way into the LegCo Complex a week before, and out of worry for the order and safety of the Complex, he asked the police to enter the Complex for the purpose of maintaining order.  In accordance with the usual decision-making protocol in an urgent situation, Mr Tsang notified all the members of the Commission through WhatsApp, and the decision was made without any objection.

21.  At 8:45 p.m., the demonstrators pulled and moved away the multi-layered Mills barriers outside the public entrance of the main lobby of the LegCo Complex and tried to pull and pry open the closed glass door with hard objects including bamboo sticks.  There were also demonstrators charging at other entrances, making attempts to force their way into the Complex.

22.  Mr Lo Kim Kwong (PW3), a security officer who was on duty at the vicinity of the public entrance of the LegCo Complex, asked the demonstrators not to push or to charge.  His left foot was later injured by a fallen Mills barrier, which was pulled over by the demonstrators.[10]

23.  In his testimony, Inspector Law Like Him Michael (PW4) said he saw at the time that the emotional demonstrators started to shake and slap the glass door of the LegCo Complex, and tried to forcibly pull open that door.  The police then stopped them by pulling tight the door.  He saw some demonstrators using the Mills barriers and iron bars to charge at the glass door.  Mr Loo Sze Yuen Matthew saw that the stone door in the fire escape route was broken, and that some demonstrators on wheelchairs charged at the door.  Inspector Law on the one hand warned the demonstrators to stop charging, and on the other hand commanded the police officers to use batons as latches.[11] At another location where there was a sliding door, the demonstrators used bamboo sticks,[12] folding stools and sign posts to forcibly plug the gaps of the door, and some had intended to pull open the sliding door; and the police held tight the door and gave warnings[13] to the demonstrators outside.  The door was pried open for about 1 – 2 inches.[14]  PW4 commanded the police officers to use riot shields to push the bamboo sticks back to the outside of the door, and to pepper-spray those holding the folding stools.[15]  The sliding door was eventually latched.  After the charge, the police intended to set up a police cordon outside the LegCo Complex and to disperse the demonstrators.  Some of the participants started to leave under the pushing and pulling of the police; and the police pushed forward the cordon and warned the participants to disperse.[16]

24.  In setting up the cordon, Inspector Kwok Chun Kit (PW5) and other police officers kept pushing forward, and warned the participants to retreat and leave.  At the time, the 1^st respondent blocked the front of the cordon, and fiercely pushed and bumped against the police officers who formed the cordon.  According to Inspector Kwok’s description, the 1^st respondent had bent down and used both of his hands to push against the waist of the police officers.[17]  Inspector Kwok then pulled the 1^st respondent into the cordon and arrested him on the spot.

25.  The prosecution had adduced a number of video clips taken at the time of the incident.  The main clip was prosecution exhibit P12; and the still capture from P12 identifying and circling the respective respondents was listed as the prosecution exhibit P13.  These exhibits were adduced by way of the parties’ admitted facts.  These exhibited main clips showed :

(1)   The 2^nd and 12^th respondents, together with other demonstrators, had jointly removed the Mills barriers;

(2)   The 1^st respondent had used his hands to pull, and used some hard objects and iron bar to pry open the door;

(3)   The 2^nd, 3^rd, 7^th, 8^th, 9^th and 12^th respondents had, together with other demonstrators, jointly used a bamboo stick to pry open the glass door;

(4)   The 9^th respondent had used an umbrella to pry open the door;

(5)   The 5^th and 6^th respondents had waved at others to help pull the glass door;

(6)   The 3^rd, 4^th, 5^th, 6^th, 9^th, 10^th, 11^th and 13^th respondents had, together with other demonstrators, forcibly pulled the glass door;

(7)   The 13^th respondent had slapped and kicked the glass door, and made provocative gestures to the police who were behind the door;[18] and

(8)   The 7^th respondent used an umbrella to help the demonstrators who were trying to pry open the door block off the police pepper sprays.[19]

26.  The acts of each respondent may be briefly summarized as follows :[20]

Person	Actions
1st respondent	Using his hands to pull and using hard objects such as an iron bar to pry open the door
2nd respondent	Jointly with others removing the Mills barriers, using bamboo stick to pry open the door
3rd respondent	Jointly with others using bamboo stick to pry open the door, and using hands to pull the door
4th respondent	Jointly with others using hands to pull the door
5th respondent	Waving at others to help, and jointly using hands to pull the door
6th respondent	Waving at others to help, and jointly using hands to pull the door
7th respondent	Jointly with others using bamboo stick to pry open the door, and using umbrella to help those demonstrators who were prying open the door block off the police pepper sprays
8th respondent	Jointly with others using bamboo stick to pry open the door
9th respondent	Jointly with others using bamboo stick and umbrella to pry open the door and using hands to pull the door
10th respondent	Jointly with others using hands to pull the door
11th respondent	Jointly with others using hands to pull the door
12th respondent	Jointly with others removing the Mills barriers and using bamboo stick to pry open the glass door
13th respondent	Jointly with others using hands to pull and slap the glass door, using feet to kick the door, and making provocative gestures to the police

27.  This charging incident had caused damage to a number of the facilities of the LegCo, including the cracking of a glass door and damage to other doors.  The repair costs amounted to more than $400,000.  Mr Lo Kim Kwong, the security officer, was crushed by a fallen Mills barrier and was hospitalized.  His medical report showed that he suffered tenderness, contusion and swelling of his left 1^st to 3^rd toes, mild tenderness of the lateral aspect of the left ankle, and fracture of base of the distal phalanx of the left big toe.[21]  He was granted a sick leave of 85 days.[22]

28.  On 30 December 2015, the trial magistrate ruled that each of the respondents (except the 12^th respondent who had pleaded guilty) was guilty of Charge (1), not guilty of Charge (2); and the 1^st respondent was guilty of Charge (3), and the 2^nd respondent was not guilty of Charge (4).

C.   SENTENCING

C1.   Preliminary Mitigation

29.  On the same date, the trial magistrate heard the respondents’ preliminary mitigation.  The positions of the respondents at that time were :

(1)   The 1^st, 4^th and 10^th respondents did not have anything to say in respect of mitigation;[23]

(2)   Save and except stating some basic background information, the 3^rd and 5^th respondents also had nothing to say in mitigation;[24]

(3)   The 2^nd respondent said, “I would say clearly to you at this moment that I do not feel any remorse”;[25]

(4)   The 6^th and 9^th respondents indicated through their lawyers that “they would not have any regrets”;[26]

(5)   The 7^th respondent said, “I have no remorse for what I did on that day”;[27]

(6)   The 8^th respondent indicated through his lawyer that he “did not feel regret”;[28]

(7)   Save and except stating some basic background information, the 11^th respondent had no submission in mitigation;[29] and

(8)   The 13^th respondent told the magistrate that, if he was sentenced to imprisonment, “there would be serious consequences”.[30] He also told the magistrate that the verdict of his conviction would “make all people angry”.[31]

30.  Although the respondents (except the 12^th respondent) had indicated no remorse, the trial magistrate still obtained Community Service Order Suitability Reports for them.  The trial magistrate said that what he considered to impose was neither a heavy nor lenient sentence but an appropriate sentence. Deterring others from committing this kind of crime was not on his mind, because those considering the acts rightful would not be deterred from it.[32]  The trial magistrate especially pointed out that performing community service would not be inconsistent with the respondents’ cause behind the commission of the offence.[33]  Finally, the trial magistrate adjourned sentencing to 19 February 2016.

C2.   Community Service Order Suitability Reports

C2.1  The 1^st respondent

31.  The 1^st respondent is 22 years of age.[34]  He is the only child of a Christian family and he lives with his parents.  He did well academically.  After he finished the associate degree in social work at City University of Hong Kong, he became a registered social worker in February 2016.  He did not have a job at the time in question.  His parents worked as a secondary school teacher and a social worker before they became full time preachers.  The 1^st respondent came to know about people’s life in different social strata from his parents’ sharing.  He took part in volunteer works such as paying visits to grass-root families.  The 1^st respondent started to participate in activities relating to public issues in 2012, including the petition against national education.  He was once the Vice-president (External Affairs) of the Student Union of City University of Hong Kong.  He also participated actively in the Hong Kong Federation of Social Work Students and the Hong Kong Federation of Students with a view to promoting awareness over social issues among students.  Since 2013, the 1^st respondent started to actively participate in student groups which were concerned about the North-East Development Project.  After paying visits to the villagers, he was moved by the social ties there and the worries expressed by the elderly residing at the care homes about losing their shelter.  He was of the view that there should be further public consultation on the development project.

32.  In June 2014, the 1^st respondent learned that the LegCo was hearing pre-construction funding application for the development project, so he rushed back to Hong Kong from Taiwan.  At 5:00 p.m. on that day, he went to the public activity area at the ground floor lobby of the LegCo Complex alone, where he demonstrated and protested.  At 8:00 p.m., the 1^st respondent was shocked when live broadcasting showed that the Finance Committee was going to vote on the bill, for the North-East development would commence after the bill was passed.  He said he wanted to help the northeast residents get into the LegCo to express their views, so he rushed to the main door and tried to force open the main door of the LegCo with other people, thus committing Charge (1).  The 1^st respondent claimed that he committed Charge (3) when he tried to protect the petitioners by blocking the police officers.

33.  The 1^st respondent has a clear record. He was cooperative during the investigation.  He admitted he did break the law but stressed that it was not premeditated.  He also claimed that he felt sorry for the injuries suffered by one of the staff of the LegCo.  He insisted that it was worthwhile to help those who were neglected by the government’s project, but he also stated that in future he would explore other legal and effective ways.  He was willing to perform community service.  He also had the support of his parents.  The probation officer did not recommend probation order, but recommended the 1^st respondent be put on a community service order for 120 to160 hours.

C2.2  The 2^nd respondent

34.  The 2^nd respondent is aged 27.  He is the vice-chairperson of League of Social Democrats.  His family members include his parents and three younger siblings.  They all reside at the property passed on to them by his grandfather.  His concern with social issues and his interest in discussing politics and fighting benefits for people at grass-roots level began to develop when he was a university student.  After finishing his Master of Arts in social policy at the Chinese University of Hong Kong, he started to work as the assistant to Legislative Councillor Leung Kwok Hung in 2012.  In 2015, the 2^nd respondent stood as a candidate at the election of the Shatin District Council but lost.  The 2^nd respondent has multiple criminal records as a result of his participation in radical activities including unlawful assembly, but the sentence imposed on him was always a fine.

35.  The 2^nd respondent reiterated to the probation officer that he did not regret what he had done and he was only voicing out against social injustice.  On the day in question, the 2^nd respondent used a bamboo stick to prevent the main door to the LegCo Complex from closing.  He said when he saw people using steel stands, he did try to stop them.  He had no regret for what he had done, and in order to fight for social justice, he was mentally prepared for imprisonment.  However, he felt shameful for making his family worry about him.  He agreed with the court’s decision.  He was willing to perform unpaid community work if the court so ordered.  His younger sisters and other family members understood and supported him.

36.  The probation officer found the 2^nd respondent sincere and cooperative, and was a man of discipline and independence.  Being one of the leaders of the demonstrators, he had no regret for his wrongdoings and committing this case.  However, he was willing to perform unpaid community work as a remedy.  With regards to his law-breaking acts, the probation officer said that he had no self-reflection and since he thought that he was just voicing out against social injustice, the probation officer did not recommend probation order.  However, it was recommended that a community service order of 80 to 160 hours be imposed on the 2^nd respondent.

C2.3  The 3^rd respondent

37.  The 3^rd respondent is aged 25.  He is the youngest child of the family.  He was born in Guangzhou and he came to Hong Kong with his mother when he was small.  Before turning 17, the 3^rd respondent’s family lived on CSSA.  When the 3^rd respondent was still at school, he held important positions in some student groups and concern groups that were interested in issues such as Occupy Central.  The 3^rd respondent started to do part-time job since Form 3.  He later studied psychology and counselling at Hong Kong College of Technology, which was part of the Yi Jin Programme.  Currently he works as a bartender.  The 3^rd respondent is sharing a unit with other co-tenants, yet he keeps in touch with his mother.

38.  The 3^rd respondent learned about the North-East Development Project in a public forum.  He sympathized with the people living there after he came to know them because their lives were affected.  He paid them visits and provided assistance to them.  On the day in question, he went there originally to show his support to the northeast villagers.  However, he became upset after knowing the result of the vote and committed the offence.  The 3^rd respondent was cooperative during the investigation.  He pleaded not guilty and claimed that he was just using a different way to express his disappointment with the North-East Development Project, but to no avail.  After counselling, he was made aware of the need to control his emotion and he was willing to accept the sentence passed by the court, including community service order.

39.  The probation officer opined that the 3^rd respondent was cooperative and was receptive to guidance.  His elder sister was willing to support him.  He showed concern over the livelihood of the public and thus committed the present offence.  The probation officer did not consider it necessary to provide intensive counselling to the 3^rd respondent and community service order could be made to reinforce his law-abiding concept, community service order of 120 to 160 hours was therefore recommended.

C2.4  The 4^th respondent

40.  The 4^th respondent is 34 years old.  He was born into a local family, and is the eldest son of the household.  After finishing junior secondary education, he joined the workforce.  He left home 10 years ago and has occasional contacts with his family.  Currently, he resides in a community centre in the capacity of a voluntary worker.  He has been living on CSSA since 2009.  He states that he has no vice habits, and spends his time mostly playing music with his friends.   He started concerning himself with social issues in 2008, and stated that his two criminal convictions in 2010 and 2012, which included unauthorized assembly leading to a fine, were a result of his fighting for social justice in his participation of social campaigns.

41.  In relation to the present case, the 4^th respondent claimed that it was not his original intention to transgress the law, and that he sat at the main door of the LegCo with other demonstrators to voice out his objection to the North-East Development Project.  After the incident, he realized that a demonstration such as this could not help the residents affected, therefore he would help them adapt to new environment instead of participating in demonstrations such as this.  He respects the decision of the court and is willing to serve the community service order.  The probation officer is of the view that the 4^th respondent does not require probation, but can benefit from engaging in social services in compensation for his transgression of the law.  Therefore, it is suggested that the court sentence the 4^th respondent to a community service order of 81-160 hours.

C2.5  The 5^th respondent

42.  The 5^th respondent is aged 21, and is an only child growing up in a local family.  His father is a police officer and mother a secretary, and he was raised under the care of his maternal grandmother.  Owing to his increasing involvement in social issues in recent years, his relationship with his father became tense.  Currently, he is residing in a rented flat in Sham Shui Po with a cohabitant and a friend.  The 5^th respondent has studied at the Chinese University of Hong Kong and the Hong Kong School of Arts, but after quitting school in 2014, he became an editor and a multi-media designer.  He was a founding member of and one of the spokesmen for Scholarism.  Although he withdrew from the organization in 2014, he still concerned himself with social issues.  He has a criminal record consisting of 2 charges of unlawful assembly, which took place on 17 April 2015 and he was convicted on 16 December 2015.  The court sentenced him to an 80-hour community service order on 7 January 2016, and he already completed 24 hours by 17 February 2016, with reportedly good performance.

43.  He agreed with the basic facts in the present case, but expressed that he wanted to clarify whether he had the right to access the LegCo Complex, so he did not plead guilty at the trial.  He said that his original intention on that day was for a peaceful assembly, but he respected the decision of the court and expressed that he will adopt a peaceful and lawful approach to express his concern towards social issues in the future.  Considering the respondent’s family, the lesson he has learnt and his willingness to shoulder the legal consequences, the probation officer is of the view that he does not require probation, and suggests that he be sentenced to a community service order of 81-160 hours.

C2.6  The 6^th respondent

44.  The 6^th respondent is aged 20, and resides in a self-owned public housing unit with his paternal grandparents and younger sister.  His parents divorced when he was 6 and he was raised by his grandparents.  He has a harmonious relationship with his family.  He started to concern himself with social policy when he was in Form 5.  In addition to Facebook discussions, he also took part in activities organized by Scholarism. During his tertiary education, he often took part in social campaigns.  After he completed the Diploma in Social Sciences programme at Hong Kong College of Technology, he has been working part-time at the CSSA-Alliance Organization since June 2015.

45.  The 6^th respondent agreed with the basic facts of the case, and expressed that he was taking part in the public assembly outside the LegCo Complex.  Later, when he learnt that LegCo Members were going to vote on the funding on the North-East Development Project, he considered that escalation was required in order to stop the voting. Therefore, he and other demonstrators attempted to force their way into the LegCo Complex.

46.  The 6^th respondent expressed that after the trial, he came to realize that his own acts might jeopardize public safety, and was sorry for those who were injured when struggling with the police.  He agreed to perform unpaid community work.  Taking into account the fact that the 6^th respondent does not have a criminal record and is willing to shoulder the legal consequences, the probation officer opines that unpaid community work will enhance his law-abiding awareness, and suggests that he be sentenced to a community service order of 81-160 hours.

C2.7  The 7^th respondent

47.  The 7^th respondent is 24 years of age.  Her parents divorced when she was young.  She and her twin younger sister were brought up by their mother who worked as a clerk.  She attained satisfactory academic results.  She said that she had come across many people with social aspirations when she studied Philosophy in Lingnan University, she therefore formed the idea of becoming a voice for the grassroots.  The 7^th respondent had been the vice-president of the University’s Student Union.  As she perceived that the government had all along been making wrong use of the land, she took part in the Anti-Express Rail movement and joined the Land Justice League in 2010, and she also wrote many articles for various media.  She became a part-time reporter of Apple Daily upon graduation.  She is now living in a rental flat together with five of her friends.

48.  The 7^th respondent admitted that on the material day, she and other members of the Land Justice League planned to enter the LegCo Complex to protest against the discussion of funding on the North-East Project and intended to open other entrance doors upon entry.  She also admitted that she had used a bamboo stick to try to prise open one of the glass doors but in vain.  She said that upon seeing the chaotic situation at a later stage, she and the 2^nd respondent, being the leaders of the demonstrators, did try to ask the demonstrators to calm down and sit down.  The 7^th respondent said that she had seen some people with face masks of unknown identity breaking the glass doors of the Complex and then leaving the scene quickly.  She alleged that she and other demonstrators had no intention of acting violently, but she was of the view that she had to charge into the LegCo Complex in order to voice for the people because all other means had been exhausted.  She had no regret for the action taken but she indicated that she did not want to see anyone injured in the incident.  The 7^th respondent stressed that what she had done was for social justice and the pursuit of the citizens’ rights.

49.  The 7^th respondent has a clear record.  Taking into account that she had shown her willingness to bear the legal responsibility and perform unpaid community work for remedy, coupled with her cooperative attitude and support from her family, the probation officer recommended a community service order of 120-160 hours.

C2.8  The 8^th respondent

50.  The 8^th respondent is 27 years of age.  She is a full-time worker for the Kwu Tung North Development Concern Group.  She is living with her husband in a squatter hut in Kwu Tung provided by the villagers, which also serves as the gathering point of the Concern Group. She used to work as a research assistant after her graduation from The Chinese University of Hong Kong.  She is currently handling clerical work for the Concern Group, doing agricultural work with her husband and responsible for arranging meetings with the villagers.

51.  The 8^th respondent expressed that originally the Concern Group had decided to adopt non-violent means to hinder the North-East Development Project.  She emphasized that there was no plan for demonstration until she came to know the voting result of the LegCo meeting. However, on the material day when she was suddenly informed that the funding had been approved by the LegCo, she noticed that there were masked demonstrators trying to break the doors in order to force their way into the LegCo Complex, as she wanted to resume the leading role for the Concern Group and gain the attention from the mass media, she took the bamboo stick, which was used for hanging banner, to prise the door of the LegCo Complex.  She said that it was not her intention to cause any harm to anyone or to damage anything.

52.  The husband of the 8^th respondent showed his support towards his wife during the home visit.  The probation officer considered that this respondent was sincere and cooperative and willing to bear the legal consequence.  Taking into account her clear record and good background, the probation officer recommended that a community service order of 80-160 hours be imposed on her.

C2.9  The 9^th respondent

53.  The 9^th respondent is 23 years old. She is living with her husband, who is an asylum seeker from Togo, in a tiny sublet flat.  She works for the Research Society of Greenpeace Economy and New Social Security System as a personal assistant, and has been actively participating in political and social movements for years.  She alleged that she became interested in politics and social affairs after reading books about the June 4 incident in Form 6.  She was a member of the League of Social Democrats between 2010 and 2014 and she actively participated in various kinds of demonstrations. She claimed that she no longer had any political affiliation.  She was convicted of the offence of Assaulting a Police Officer and sentenced to prison for 21 days in 2013.

54.  For the present offence, the 9^th respondent admitted her legal responsibility.  She said that on the material day, she came to learn that the LegCo Finance Committee meeting concerning the funding on the North-East Development Project through news report.  She considered that the Project was an unjust one.  Therefore, she arrived at the scene to join the protest at around 8:00 p.m. and followed other demonstrators trying to obstruct the proceedings of the meeting.  The 9^th respondent admitted using a bamboo stick to prise open the door of the LegCo Complex.  Although she could not achieve her aim of entering the Chamber by her act, she thought she had to do so in order to express her views against the project and to raise the public’s concern over this issue.  The 9^th respondent said that what she did at that time was civil disobedience and she knew full well what she was doing.

55.  Both the husband and father of the 9^th respondent showed support towards her during the home visit.  In view of the fact that the 9^th respondent had committed the offence out of her strong belief in social movements and had shown no remorse towards the offence, the probation officer did not recommend a probation order.  Instead, a community service order of 81-160 hours was recommended in order to enhance her law-abiding concept through unpaid community work.

C2.10 The 10^th respondent

56.  The 10^th respondent is 31 years old.  He has no fixed place of abode since 2014, and is taking temporary abode at different friends’ homes.  The probation officer was unable to contact any of his family members or to collect his personal data from the Social Welfare Department due to his objection.  Hence, the Community Service Order Report can only be compiled based on his own assertion.  Having finished Form 5, the 10^th respondent took up different jobs, including working as a delivery worker, a clerk, a waiter etc.  He became unemployed since September 2015 and had been depending on financial support from his friends.  He smokes and drinks but does not take any illicit drugs.  The 10^th respondent has three criminal records, including Assaulting a Police Officer.

57.  Regarding the present case, the 10^th respondent said that originally, he intended to enter LegCo and sit in at the meeting after learning about it from the news.  However, upon arrival, he discovered that police officers had already been deployed at the scene and demonstrators were not allowed to enter the Complex.  He said that he went there on his own and was not in a group.  He admitted that he had pulled the main door of the LegCo Complex, but disagreed with the charge in this case. He reckoned that assembly in a public place was a human right, and that his conduct was not intimidating, insulting or provocative, nor would it cause anyone to reasonably fear that he would breach the peace.  As to the fact that a security officer was injured in the incident, he believed that it was unavoidable in a demonstration because peaceful means could not effectively reflect people’s views on these political issues to the government.

58.  Given that the 10^th respondent had no fixed address for correspondence, failed to provide contact phone number, and was in lack of family support, plus the facts that this respondent became unemployed since September 2015 and was depending on financial support from friends etc, community service order was not recommended.

C2.11 The 11^th respondent

59.  The 11^th respondent is 42 years of age.  He lives with his family, namely his parents and two younger brothers, in a public housing unit.  He entered the workforce when he was 18 years old and used to work as a graphic designer for several companies, including Apple Daily and TVB.  He is an assistant of KU Kwai Yiu, Eastern District Council Member.  While working in the media companies, influenced by his colleagues, he became concerned with social justice and participated in demonstrations, internet radio, etc.  However, he claimed to have no political affiliation.

60.  The 11^th respondent stressed that he did not have any remorse and believed that what he had done was simply to voice out against social injustice.  He maintained that the government did not listen to the voice of the residents who were affected by the North-East Development Project.  He expressed that at the material time, he was only following the appeal from Land Justice League and followed the crowd to walk toward the main door of the LegCo Complex.  The 11^th respondent maintained that he had no intention to break anything or harm anyone.

61.  Since the 11^th respondent was not remorseful but was willing to do unpaid community work for remedy, the probation officer did not recommend probation order.  Instead, community service order of 80-160 hours was recommended to instil in him the concept of law and order and as a remedy for his criminal act.

C2.12 The 12^th respondent

62.  The 12^th respondent is aged 26 and lives in a public housing unit with his mother and two younger siblings.  He started doing part-time jobs when he was still a student and had taken up various part-time jobs after finishing schooling.  At present, he mainly works night shift at a KFC.  He started to participate in demonstrations to express his views when he was in Form 5.  He was of the view that society was becoming increasingly political and unjust and that he had to go out and express his dissent.  He joined petitions on various issues, including the Express Railway, 2017 Political Reform, Anti-National Education, Occupy Central etc.  He said that all the assemblies that he had participated in were peaceful.

63.  On the issue of North-East Development Project, the 12^th respondent joined a demonstration outside the LegCo on 6 June 2014 and was sentenced to 3 weeks of imprisonment for blocking the LegCo entrance and entering the LegCo Complex without permission, contrary to section 8(3) of the Legislative Council (Powers and Privileges) Ordinance, Chapter 382.  Appeal was pending at that time.

64.  On 13 June 2014, the 12^th respondent demonstrated at the scene when he learnt that the LegCo’s Finance Committee would continue the meeting concerning the North-East Development Project.  At 8:00 p.m., he was very disappointed after learning that the Chairman of the Finance Committee had decided to halt the discussion and to start voting.  At that time, some demonstrators intended to force their way into the LegCo Complex and the 12^th respondent also wanted to enter the Chamber to stop the voting.  He thus removed the Mills barriers and tried to open the door of the LegCo Complex with his hands and a bamboo stick passed to him by others.  The 12^th respondent pleaded guilty to shoulder his legal responsibility.  He expressed that he had recognised that this kind of method was ineffective in altering the development of social issues and disapproved by society.  The 12^th respondent indicated that in future, he would leave the scene on his own once he sensed that an assembly was no longer peaceful and that he would not breach the law again.  He hoped the court would pass him a non-custodial sentence for his rehabilitation.

65.  In view of the 12^th respondent’s previous behavioural pattern, probation order was not recommended.  However, noting the remorse in the respondent, the probation officer recommended a community service order of 100-140 hours.

C2.13 The 13^th respondent

66.  The 13^th respondent is aged 25 and lives at a public housing unit with his mother.  He has an elder sister.  After finishing Form 5, he completed a diploma course in computer management and has been working as a freelance worker in Information Technology with unstable working hours.  He has seven criminal records, including Theft, Common Assault, Assaulting a Police Officer and Possession of Dangerous Drugs etc.  He would take cannabis during gatherings with his friends.  He refused to go through a urine test.

67.  The probation officer criticized the 13^th respondent for his less than co-operative attitude and no-shows on multiple occasions.  In the end, he went to see the probation officer on an un-scheduled date.  Regarding the present case, the 13^th respondent expressed that he had no regret in his fight for justice.  He believed that it was not necessary for him to receive probation but he was willing to do unpaid community service.

68.  The probation officer was of the view that from the limited information gathered, there was little to suggest that the 13^th respondent had gained insight from the present case.  The probation officer pointed out the less than co-operative attitude and evasive response of the 13^th respondent and doubted his ability to abide by any court order.  Moreover, the probation officer also found his claim of drug-free habit to be doubtful.  Hence, neither probation order nor community service order was recommended.

D.   REASONS FOR SENTENCE

69.  On 19 February 2016, before sentencing, the trial magistrate heard further mitigation.  The 2^nd respondent again indicated that he had no remorse at all for what he did.  Similarly, the 7^th respondent also stated that he did not regret what he did on that day.

70.  In sentencing, the trial magistrate first pointed out that, in respect of Charge (1), the court, in determining the culpability, must consider the reason for and purpose of the assembly.  In this case, some people’s homes were destroyed due to social development.  Although the respondents were not local residents, it was not wrong for them to voice out their view before the implementation of the policy.  The trial magistrate considered that it was a good thing, rather than a wrong thing, for the respondents to voice out views on behalf of others or those who were neglected in society.  The trial magistrate said that he would not comment on the means and manners of expression of the respondents.  The trial magistrate considered that they had broken the law and the court had duly convicted them in accordance with the law.[35]

71.  The trial magistrate pointed out that, in sentencing, he needed to consider the degree of intensity of the force used, and whether there was disregard for the safety of others.  The trial magistrate opined that, according to the evidence of this case, the respondents had not intended to enter the Complex initially, but to express their views in a peaceful assembly, or to wait for further information before proceeding with further action.  It was only when they learned that the bill was going to be put to the vote, and would possibly be passed, that they intended to enter the Complex through aggressive means. The trial magistrate considered that the purpose of the respondents’ act was to enter the LegCo Complex, without intending to cause any injury to people or damage to the property.  The trial magistrate considered that the situation was very different from those where violence was used to vent discontent or injury was inflicted on others so as to make them listen.  The trial magistrate noted the damage to the facilities of the Complex caused by the respondents and pointed out that it was fortunate that not more people had been injured, and the respondents should have reflected on the scenario where others might be sacrificed.[36]

72.  In respect of both respondents’ mitigation and indication in the Community Service Order Suitability Reports that they had no remorse, the trial magistrate considered that they should continue with their pursuit of justice or to voice for the needy and the neglected, and should not have any regrets about that, otherwise they would be shown as being unprincipled.  However, he considered that the respondents should reflect on their means of resistance, so that their views could be expressed without sacrificing other people or putting them in danger.[37]

73.  The trial magistrate considered that most of the respondents did not deny their acts and were willing to accept the consequences and responsibility.  That was considered to be part of the remorse.[38]

74.  The trial magistrate considered that the aggressive acts in this case were not the most serious of its kind.  Having considered all the circumstances, he took the view that, although the most appropriate sentence for Charge (1) was a short term of immediate imprisonment, community service order in lieu of imprisonment was also a sentencing option.[39]

75.  In respect of the 10^th and 13^th respondents, although the Community Service Order Reports did not recommend that they receive community service orders, and at first, the trial magistrate also considered imposing custodial sentences, he eventually decided to give them a chance to demonstrate that they would bear the legal consequences through their action and sentenced them to 150 hours of community service.[40]  Subsequently, the 13^th respondent was found to be in breach of the community service order,  his sentence was substituted with an imprisonment of 3 weeks on 15 December 2016.

E.   MAIN GROUNDS OF APPLICATION FOR REVIEW OF SENTENCE

76.  The grounds relied on by the Secretary for Justice for review are that the sentences imposed by the trial magistrate were wrong in principle, manifestly inadequate, and were outside the ambit of appropriate sentences which would be reasonably imposed by a judge having considered all the relevant factors.   Mr Man, Senior Assistant Director of Public Prosecutions, categorized the grounds of review into three main points.

77.  First, the trial magistrate had underestimated the seriousness of the crime in this case and failed to give due weight to factors such as public interests, the maintenance of public security and order, the deterrence of others from committing similar kind of criminal activities, so as to impose a deterrent sentence.  Mr Man emphasized that this case involved a large-scale disturbance, that the violence used by the respondents was both deliberate and serious, and that the large-scale disturbance was aimed at charging at the LegCo Complex where the Council was in session.  These highlight the seriousness of the case and the offenders’ neglect of the public order and safety.  The trial magistrate therefore should have imposed a deterrent sentence.

78.  Secondly, the trial magistrate had wrongly given weight, or unduly heavy weight to the factor that the respondents were purely voicing for the villagers and not for personal interests.  So far as taking part in large-scale collective violence in breach of public peace is concerned, the motive of the offenders does not constitute a mitigating factor.

79.  Thirdly, when the trial magistrate was considering making community service orders, he failed to consider the relevant sentencing principles, especially when the respondents had no genuine remorse for the offence.  The trial magistrate was therefore wrong to impose community service orders on the respondents.

80.  All in all, Mr Man submits that the only sentencing option was a custodial sentence of deterrent effect, so as to reflect the gravity of the offence committed by the respondents.  In his written submissions, Mr Man wrote that a short custodial sentence should be imposed.  However, in his oral submissions, Mr Man said that the appropriate term of imprisonment should be proximate to the mid-higher end of the maximum sentence (3 years).

F.   RESPONDENTS’ STANCES

81.  All of the respondents’ stances are similar and may be summarized as follows.

82.  First, in an application for review of sentence, due to the presumption in favorem libertatis, the Court of Appeal would be slow to interfere with the sentencing discretion of the court below and to accept that the sentence was manifestly inadequate; it is more difficult, and there is a much higher threshold, to persuade the Court of Appeal to impose a heavier sentence than to persuade the Court of Appeal for a reduction.

83.  Secondly, in an application for review of sentence, the Court of Appeal would not interfere with the factual findings of the lower court, but have to deal with the review of sentence on the basis of such factual findings.  According to the trial magistrate’s factual findings, this case does not involve a large scale or deliberate violent acts, the respondents did not use the violent acts to vent their discontent, nor did they inflict injury on others in order to make others listen to their views.  They were just trying to use all sorts of means to force their way into the LegCo Complex.  The facts of this case are not the most serious of its kind.

84.  Thirdly, the court needs to consider factors such as the respondents’ motives, means and consequences of their action, and the impact on society.  The Secretary for Justice is therefore wrong to suggest that the respondents’ motives do not constitute a reason for mitigation.

85.  Fourthly, the trial magistrate had exercised his discretion to impose community service orders on the respondents, which was not in violation of any legal principles.  Even assuming that the respondents, as the Secretary for Justice suggests, do not feel genuine remorse, having considered all the circumstances of the case, especially the special circumstances of the respondents, it was still appropriate for the trial magistrate to impose a community service order, and that was not an inadequate sentence.

86.  As was pointed out previously, the 13^th respondent’s community service order was discharged on 15 December 2016, and he had already served his 3 weeks’ imprisonment.  The 13^th respondent argued that the Secretary for Justice did not apply for the review of his custodial sentence within the time limit.  Now the Secretary for Justice seeks to review the community service order, which had already been discharged.  That is a waste of his time.

G.   SENTENCING PRINCIPLES

G1.   Applicable legal propositions and sentencing principles

87.  On 17 August 2017, this Court handed down the judgment in Wong Chi Fung & Others, CAAR 4/2016. In part H of that judgment, we expounded the legal propositions and sentencing principles applicable to unlawful assembly involving violence similar to the present case.  Those propositions and principles are equally applicable here. They may be reiterated as follows.

(1)   General sentencing principles

88.  Generally speaking, the court in sentencing will take into account the following sentencing factors: protection of society; retribution; condemnation; deterrence; reparation and rehabilitation.  The court will consider if a particular sentencing factor is appropriate and if so the weight to be attached to it.  In determining the weight, the court will generally consider the nature and gravity of the offence; the particular conduct constituting the offence; the consequences of the offence; the motives for the commission of the offence; the personal circumstances of the offender, etc.  The court has to fully evaluate all the circumstances of the case and gravity of the conduct constituting the offence. The court will then give the applicable sentencing factors the appropriate weight and then impose a sentence on the offender which is proportionate to the case.  This same sentencing principle applies equally to unlawful assembly.

(2)   Reciprocity principle of fundamental rights and abiding by the law

89.  In a society where the rule of law reigns, while its citizens enjoy fundamental rights guaranteed by law, they must also obey the law.  Thus, they must exercise their rights in a lawful manner.  They cannot ignore their obligation to obey the law in the name of exercising their rights.  This principle of reciprocity balances the citizens’ rights as guaranteed by law and their duty to obey the law.  In Hong Kong, this principle of reciprocity is embodied in Part III of the Basic Law on Fundamental Rights and Duties of the Residents.  Articles 25 to 39 set out the rights enjoyed by all Hong Kong residents whereas Article 42 stipulates that all Hong Kong residents shall have the obligation to abide by the laws in force in Hong Kong.  Thus, the Basic Law has expressly provided that when Hong Kong residents exercise the rights guaranteed by law, they must also obey the law. They can only exercise their rights in accordance with law.

(3)   The restrictions on the right to assembly as set out by the law

90.  The right to peaceful assembly is guaranteed by Article 27 of the Basic Law and Article 17 of the Hong Kong Bill of Rights.  The reciprocity principle as explained above is also applicable.  The importance of the right to assembly is undisputable.  But such right is never absolute.  All the participants of an assembly must not ignore their legal duty to abide by the law thereby acting wantonly as they see fit in the name of exercising the right to assembly and freedom of expression.  They must and can only participate in an assembly exercising their rights within the boundary laid down by the law.

91.  All along, the law has acknowledged and protected the right to peaceful assembly only : see Article 17 of the Hong Kong Bill of Rights.  In HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837, Ribeiro PJ summarized the legal boundary on the right to assembly as follows :

“ 38. [The law] allows a line to be drawn between peaceful demonstrations (where, as noted above, full rein is given to freedom of expression) and conduct which disrupts or threatens to disrupt public order, as well as conduct which infringes the rights and freedoms of others…

39. Once a demonstrator becomes involved in violence or the threat of violence – somewhat archaically referred to as a ‘breach of the peace’ – that demonstrator crosses the line separating constitutionally protected peaceful demonstration from unlawful activity which is subject to legal sanctions and constraints. The same applies where thedemonstrator crosses the line by unlawfully interfering with the rights and freedoms of others.

40.   The law therefore imposes bounds on the constitutionally protected activity of peaceful assembly….”

The restriction on conduct disrupting or threatening to disrupt public order or breaching the peace aims at protecting public order.  If public order is not protected, all rights and freedoms will very likely be lost in anarchy.  The restriction on conduct unlawfully infringing others’ rights and freedoms aims at respecting and protecting the rights and freedoms others enjoy in accordance with law. Protection of public order and safeguarding others’ rights and freedoms are the hallmarks of a civilized society governed by the rule of law.

92.  When participants of an assembly act within the legal boundary, the law will fully and sufficiently protect their freedom of demonstration, assembly and expression.  However, once they trespass on the legal boundary, they immediately lose the legal protection and must bear the consequences of being sanctioned by the law.  The offenders cannot say that the legal sanction imposed on them has suppressed them or deprived them of their right to demonstration, assembly or expression because the law has never allowed them to exercise such rights by unlawful means in the first place.

93.  When participants of an assembly disrupt or threaten to disrupt public order, or in a worse case, use violence or threaten to use violence, they break the law, even though their assembly was originally conducted peacefully.  In sentencing these crimes which disrupt public order, especially those involving violence, the court must firmly bear in mind the importance to protect public order.  The sentence must reflect the determination of the law to protect public order and must also send a clear message to society and the public that the law never allows unlawful damage or disruption to be inflicted to public order.

(4)   Gravamen of unlawful assembly

94.  The gravamen of unlawful assembly is to fulfil a common purpose by the participants acting in large numbers.  Further, the emotional climate that undoubtedly exists when the demonstrators assemble in large numbers inherently has a potential for generating an outbreak of violence.  The risk that unruly elements may be present with the very object of forming violence cannot be overlooked.  Thus the provision against unlawful assembly is a necessary preventive measure to put a stop to a deteriorating situation giving rise to damage and disruption to public peace and avert the serious consequences that may follow.

95.  Bearing in mind the need to protect public order and the gravamen of unlawful assembly, the court in sentencing needs to impose on the offender a proportionate penalty.  The court also needs to consider deterrence, that is, to deter the offender from re-offending and others from violating the law by damaging or disrupting public order in like manner.  The weight to be attached to deterrence depends on the actual circumstances of the case.  If it is a serious case, the court has to impose a deterrent sentence.

(5)   Using violence to disrupt public order

96.  Under the rule of law, the law never tolerates any violence or threat of violence.  Thus, all participants of an assembly must never use violence against others.  The participants have a clear duty not to put the public at risk by engaging in disorderly or violent acts.  When offenders of an unlawful assembly use or threaten to use violence, it is an aggravating factor.  In an unlawful assembly involving violence, the main consideration in sentencing is to punish the offenders and to deter them and others from violating the law by damaging or disrupting public order in like manner.  As to the personal circumstances of the offenders, regardless of how honourable they perceive their motive or reason for committing the offence to be, or whether other offenders are more culpable, they are generally speaking not strong mitigating factors for imposing a lenient sentence.

97.  The respondents submitted that the English authorities referred to in Part H of Wong Chi Fung are different.  They argued that those cases are more serious and are therefore not comparable to the present one.  We are fully aware of the fact that those English authorities involve either more serious offences or circumstances.  We cited them to discuss the gravamen of unlawful assembly and to highlight the features common to the offences of mass public disorder.  We did not rely on the length of imprisonment in those cases as the basis for sentencing in this case.

(6)   Circumstances pertaining to commission of unlawful assembly involving violence

98.  In determining the appropriate sentence, the court needs to consider the circumstances pertaining to the commission of the offence.  Such circumstances for unlawful assembly involving violence include :

(1)   Whether the violent acts were spontaneous or premeditated; if it was the latter, how detailed and precise the plan was;

(2)   The number of people involved in the violent acts;

(3)   The degree of violence, including whether weapons were used and, if so, what kind or quantity of weapons;

(4)   The scale of violence, including the location, the number of places and the area in which violence took place;

(5)   The duration of violence, including whether the violent act was a prolonged one, and whether it still went on despite repeated warnings by police or public officers;

(6)   The consequences of the violence act: for example, whether there was any loss or damage to property and, if so, to what extent; whether anyone was injured and, if so, the number of persons injured and the degree of injury;

(7)   Even if there was no loss or damage to property, nor any injury, how imminent or grave the threat caused by the violent act was;

(8)   The offender’s role and involvement; for instance, apart from taking part in the unlawful assembly, or using violence, whether he had arranged, led, summoned, incited or encouraged others to take part in the unlawful assembly or use violence.

Depending on the actual circumstances of each case, the court may need to take into account other additional facts pertaining to the offence.

(7)   Sentencing principles on community service order

99.  A community service order provides for both retribution and rehabilitation.  Because of the element of retribution, the order is not necessarily a lenient option.  A community service order also provides for reparation.  An offender contributes to society through unpaid work so as to benefit the public affected by the damage caused by the offender’s crime.

100.  It had been held that a person should meet the following criteria before being sentenced to a community service order :

(1)   be a first offender, or a person with a ‘light’ criminal record;

(2)   come from a stable home background;

(3)   have a good work record – orders are not designed to encourage the lazy or to show the idle the errors of their ways;

(4)   be in employment, or have a real prospect of employment;

(5)   have shown genuine remorse;

(6)   present no more than a slight risk of re-offending.

These six criteria provide a useful and working guideline, and are frequently found in the majority of cases where community service orders were deemed appropriate.  However, when the court is considering the suitability of a community service order, not all six factors have to be present; nor should the relevant consideration be restricted to these six factors only.  A relevant factor which is often present is the young age of an offender.

101.  A community service order is often regarded as an alternative sentencing option to custodial sentence.  Nonetheless, for a serious offence which clearly calls for a deterrent sentence, even if the offender is otherwise suitable for a community service order, it is generally not appropriate to impose one.  Where the offence is serious, if there are very exceptional circumstances, community service order may still be an appropriate sentencing option.  However, in serious cases, the offender’s personal circumstances do not normally constitute exceptional circumstances.  In other words, the offender’s personal circumstances must be extremely exceptional before the court may consider if a community service order is to be preferred to a custodial sentence.

102.  The court has always considered genuine remorse as a precondition for receiving a community service order.  If no genuine remorse is demonstrated, the court would normally refuse to make a community service order.  Genuine remorse means that the offender acknowledges that he has committed an offence and shows remorse for what he has done and caused.  Thus, a genuinely remorseful person would normally plead guilty and expressly accept his legal responsibility.  It follows that, in deciding whether the offender is genuinely remorseful, one of the major factors that the court would consider is whether he has entered a timely plea.  If an offender pleads not guilty, and expresses his remorse only after he is tried and convicted, the court would carefully examine such an assertion.  Generally speaking :

(1)   Although the court will not reject his indication of remorse simply because he has contested his trial, neither will the court easily accept that he is genuinely remorseful for what he has done.

(2)   If the offender considers that it is his right under the presumption of innocence to ask the prosecution to prove its case, or he elects to plead not guilty because he disputes that the conduct he has admitted constitutes an offence, he is of course entitled to do so.  If he is convicted after trial, the court will not enhance his sentence because of his conduct of defence.  However, it does not mean that the court must necessarily accept that although he has conducted his defence in such manner, he is genuinely remorseful.

(3)   If the offender considers that his prosecution is, in itself, not justified and maintains that particular view even after conviction, that would be a clear indication that he is still refusing to accept what he has done is unlawful.  In that case, the court will not accept his claim of genuine remorse, for such a claim contradicts his stance that the prosecution was unjustified.

(4)   If the offender insists that he was innocent after being convicted, or remains adamant that he has not done anything wrong, it is a further indication that he has no genuine remorse.  Even when he says that he is willing to accept legal responsibility and punishment, it cannot change the fact that he has no genuine remorse for the offence he has committed.

103.  Showing respect to the court does not necessarily mean genuine remorse because all parties before the court, be it the prosecution or the defence, have to respect the court and comply with the court’s procedure anyway.  They do that as a matter of course and may have nothing to do with remorse.  The offender cannot be considered as genuinely remorseful by merely saying that he respects the court if he shows no genuine remorse in other aspects.

104.  On genuine remorse, Mr Jeffrey Tam, counsel for the 3^rd, 5^th and 12^th respondents referred to HKSAR v Chan Kwai Hung [2010] 1 HKLRD A2, in which Deputy High Court Judge Longley said :

“ 36. In this case while the appellant pleaded not guilty, he did not give or call evidence. He simply put the prosecution to proof of the charge against him. He is a senior officer in the Correctional Services Department. He is married and his career and possibly his pension are at stake. The consequence of conviction will affect not only him but his family. In such circumstances it does not seem to me to be just that the option of a community service order be denied him because he has not demonstrated his remorse by pleading guilty, but has simply exercised his constitutional right to have the case against him proved. I have no reason to suppose that privately he does not feel extreme remorse for what he has done, particularly as his arrest appears to have led to a separation from his wife.”

Based on Longley DJ’s observation, Mr Tam submitted that if a respondent merely exercised his right to put the prosecution to strict proof, the fact that he pleaded not guilty does not necessarily mean that he had shown no remorse.

105.  In our view, one has to read Longley DJ’s observation with circumspection.  Longley DJ accepted that the defendant did not plead guilty to show his remorse.  However, he thought that in the circumstances of the case, he should not be deprived of a community service order merely because he had exercised his right to put the prosecution to strict proof.  His observation is not inconsistent with the general principle set out in [102(2)] above.  However, it is incorrect for him to say that there was no reason to suppose that privately the defendant did not feel extreme remorse for what he had done.  There was no such evidence.  His view was no more than speculation.  More importantly, when the judge said “extreme remorse”, it was more likely that he was referring to the defendant’s deep regret for the adverse consequences caused to his family by his crime.  If that was what he meant, then what the defendant demonstrated is not genuine remorse as required by the law.  In our view, Chan Kwai Hung added nothing to the discussion of genuine remorse.  It is better not to be cited in the future.

(8)   Applicable sentencing principles for unlawful assembly involving violence

106.  The sentencing principles applicable to unlawful assembly involving violence may be stated as follows :

(1)   In accordance with the general sentencing principles, the court will take into account all the circumstances of the case and seriousness of the offence, give appropriate weight to the applicable sentencing factors and then impose on the offender a sentence that is proportionate to the case.  The same principles apply to unlawful assembly involving violence.

(2)   Although the definition of unlawful assembly in section 18 of the Public Order Ordinance is relatively simple, the range of factual situations covered is wide.  The seriousness of the facts involved varies from case to case and may, depending on the actual circumstances, run from the extremely trivial to the extremely serious.  Incidents involving violence are certainly much closer to the serious end of cases.  However, the facts of cases of unlawful assembly involving violence also vary, so is the seriousness of the offence, which has a spectrum.  Within the spectrum, the court will give appropriate weight to the applicable sentencing factors in accordance with the facts of the case and seriousness of the offence.

(3)   Bearing in mind the need to protect public order and the gravamen of unlawful assembly, the court has to consider deterrence in sentencing.  The weight to be given to deterrence depends on the actual circumstances of the case.

(4)   If the facts are relatively less serious, such as the unlawful assembly is not pre-meditated and is of small scale and only involves very little violence and no personal injury or damage to property is caused, the court may proportionately give more weight to the personal circumstances of the offender, the motive or reason for committing the offence and rehabilitation[41], and proportionately less weight to deterrence.

(5)   If the facts are serious, such as the unlawful assembly is of large scale or involves serious violence, the court will give great weight to punishment and deterrence and less weight or in extreme cases, no weight to the personal circumstances of the offender, the motive or reason for committing the offence and rehabilitation.

(6)   After weighing all the applicable sentencing factors, the court will then impose a sentence that is proportionate to the case.

107.  Generally speaking, although minor cases are less serious, the court is still required to ensure that the public order is effectively protected.  The sentence needs to be proportionately deterrent.  If circumstances of the case are suitable, a community service order can be an appropriate sentencing option.  It is because the punitive element in a community service order can be regarded as having a sufficient deterrent effect while its rehabilitative element can help offenders, especially young offenders, turn over a new leaf.

108.  For serious cases, the main purpose of the sentence is to punish and deter.  The overall consideration of the court should be tilted towards imposing an immediate custodial sentence.  Unless there are very exceptional circumstances, which should by definition be rare, a sentence other than an immediate custodial sentence, including suspended sentence and community service order, is clearly inappropriate.

G2.   How to approach “civil disobedience” as motive

109.  In her community service order suitability report, the 9^th respondent stated that she committed the offence because of “civil disobedience”.  We will explain how to approach the motive of “civil disobedience” in sentencing offenders of unlawful assembly.

110.  Simply put, “civil disobedience” refers to cases where the offenders affirm or express their belief that certain law, government policy, conduct or act is unjust by breaking the law.  As “civil disobedience” itself must necessarily involve breaking the law, it contravenes Article 42 of the Basic Law which requires all Hong Kong citizens to abide by the laws.  Thus, if a person commits a criminal offence by way of “civil disobedience”, he cannot use “civil disobedience” as a defence to the offence.

111.  In R v Jones (Margaret) [2007] 1 AC 136, Lord Hoffmann described “civil disobedience” thus :

“ 89.   My Lords, “civil disobedience” on conscientious grounds has a long and honourable history in this country.  People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history.  The suffragettes are an example which comes immediately to mind.  It is the mark of a civilized community that it can accommodate protests and demonstrations of this kind.  But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other.  The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience.  And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account…”

112.  According to Lord Hoffmann, an offender who committed an offence by way of “civil disobedience” would :

(1)   act with a sense of proportion, not causing excessive damage or inconvenience; and

(2)   plead guilty in subsequent legal prosecution and accept the penalty imposed on them to vouch the sincerity of their belief.

In other words, an offender who commits an offence with “civil disobedience” as his motive cannot act wantonly in total disregard of the law.  He must still act with restraint and cannot act as he pleases. He will plead guilty and accept the penalty to vouch the sincerity of his belief.

113.  According to Lord Hoffmann’s observation, when an offender whose motive is “civil disobedience” acted in the way as his Lordship described, the court in sentencing may consider the offender’s cause behind the commission of the offence and impose a more lenient sentence.  When the court so decides, it does not mean that the court approves of the offender’s cause for the court never adjudicates on political issues.

114.  The criminal conduct motivated by “civil disobedience” in the sense as described by Lord Hoffmann should refer to minor cases.  However, if the facts are more serious, the court will give more weight to the public interest of enforcing the law.  Depending on the seriousness of the case, the court may give little or no weight to this motive of “civil disobedience”.  When the court does so, it does not mean that the court disapproves of the offender’s belief.  For as said above, the court neve adjudicates on political issues.  Thus analyzed, Lord Hoffmann’s view on sentencing is in fact entirely consistent with the general sentencing principles we set out in Wong Chi Fung.  In the same manner as dealing with other motives, the court in sentencing will decide if it is necessary to give weight and if so what weight is to be given to “civil disobedience”, in accordance with the actual circumstances of the case and seriousness of the offence.[42]

115.  Applying the above to the sentencing of unlawful assembly, if the facts are minor, the court may, after evaluating all sentencing factors, give more weight to this motive of “civil disobedience” if appropriate and sentence the offender leniently. However, if the facts are serious, such as where violence is involved, the court will give more weight to punishment and deterrence and less weight and in extreme cases no weight to this motive of “civil disobedience”.

116.  As pointed out above, an offender who committed an offence because of “civil disobedience” would usually plead guilty and accept the penalty to vouch the sincerity of his belief.  However, it is not necessarily so in every case.  In Jones, Lord Hoffmann at [90] – [92] noted a tendency then in England where the demonstrators chose to plead not guilty and used the prosecution as a means to continue their protest by inviting, in substance, the court to adjudicate on the merits of their opinions and to provide themselves with a platform from which to address the media on the subject.  Lord Hoffmann was rather critical of such conduct.

G3.   Charging at the LegCo

117.  We set out in [98] above the circumstances pertaining to the commission of unlawful assembly.  We also pointed out that depending on the case, the court may need to take into account other circumstances.  In the present case, an important circumstance is the fact that the violence was targeted at the LegCo Complex.

118.  The LegCo is constituted by election.  Members are returned by geographical constituencies through direct elections and functional constituencies.  It is an institution that represents and reflects public opinion.  As the LegCo is a symbol of public opinion, the public very often assemble at the LegCo Square to express their opinions and demands.  In Hong Kong where the rule of law governs, an assembly to express the demonstrators’ views must be held peacefully.  It is more so for assemblies held at the LegCo Square, a place outside the LegCo, the very symbol representing public opinion.

119.  Hong Kong is a pluralistic society.  Controversial topics are bound to arise from time to time.  As an institution representing public opinion, the LegCo very often discusses or examines these matters.  When highly controversial issues are being discussed or examined by the LegCo, different individuals, groups or sectors very often assemble at the LegCo Square to express their views or demands.  Participants of the assemblies may have different and strong views on the matters being discussed by the LegCo.  They may even feel frustrated or agitated.  They may become emotional.  When different camps are present at the same time, the atmosphere may run even higher.  Accordingly, all assemblies at the Lego Square must be held peacefully, lest violent confrontation may happen, leading to very serious consequences.

120.  When participants of the assemblies at the LegCo Square use or threaten to use violence in the course of expressing their view or promoting their cause, they harm the integrity of the LegCo as the symbol of public opinion.  They also impede the rights of others who assemble lawfully and peacefully in expressing their view and promoting their cause in the same place at the same time.  In extreme cases, physical confrontation between different camps may arise, leading to serious consequences.  In sentencing those offenders, the court must safeguard the integrity of the LegCo, protect the rights of those assembling lawfully and peacefully at the LegCo Square and prevent the re-occurrence of violent incidents at the LegCo Square.

121.  Accordingly, the respondents’ charging at the LegCo Complex with violence is an aggravating factor.  The court must give greater weight to deterrence.  The court must impose on the respondents a sentence with sufficient deterrence: on the one hand, to deter them from re-offending; and on the other, to deter others from imitating their seriously unlawful act of charging at the LegCo with violence.

122.  On the day following the incident, that is 14 June 2014, Mr Tsang issued a press release.[43]  In that press release, Mr Tsang said that in light of the then chaotic situation, he suggested to the chairman of the Finance Committee to end the meeting a little bit early so as to avoid more serious incidents caused by the violent charging at the LegCo Square.  The meeting of the Financial Meeting therefore ended earlier than scheduled.  When Mr Tsang gave evidence, neither the prosecution nor the defence asked him any question about this matter.  And the then chairman of the Finance Committee had not been called to give evidence to say if the meeting of the Finance Committee ended early because the demonstrators violently charged at the LegCo Complex.  The trial magistrate did not make any finding on this matter either.  In the circumstances, we will not proceed on the basis that the meeting of the Finance Committee ended early because of the respondents’ conduct.  Had there been such evidence or finding, it would be an aggravating factor.

(1)   According to Article 73 of the Basic Law, the LegCo has different important functions, including enacting laws; examining and approving budgets introduced by the government; approving taxation and public expenditure.  The LegCo can also raise questions on the work of the government and debate any issue concerning public interest.

(2)   To enable the LegCo to effectively carry out its functions and transact its business, the LegCo and its committees must be able to work in an orderly manner and efficiently without any unlawful disruption so that its business and proceedings will not be interrupted or forced to an end. Any such disruption causes delay, interruption and uncertainty and in serious cases, would halt the LegCo’s work.  Any person who causes or participates in such disruption, whatever his reason or motive might be, threatens to undermine the LegCo’s functions.  Such conduct is unacceptable and must be condemned.

(3)   When participants of the assembly at the LegCo Square use or threaten to use violence, with the intention of disrupting the meeting of the LegCo or its committee, the court must impose a sentence that reflects society’s strong disapproval and condemnation of their violence and such disruptive conduct.[44]

H.   SENTENCING IN THE PRESENT CASE

H1.   General principles of review

123.  In Wong Chi Fung, we at [155] pointed out the established principle is that the Court of Appeal would not easily allow the application for review of sentences made by the Secretary for Justice and increase the sentences imposed by the lower courts. The reasons include (1) the sentencing court, which has the advantage of hearing the case at trial and hence a full understanding of the seriousness of the case, should be able to impose appropriate sentences on the offenders in most cases; and (2) as there is a presumption in favourem libertatis in law, the Court of Appeal would not be easily persuaded that a sentence passed by a lower court is manifestly inadequate.  See Attorney General v Lau Chiu-tak & Another [1984] HKLR 23, and Secretary for Justice v Wong Chi Wai [2012] 3 HKC 361 for the relevant legal principles.  Thus, the Court of Appeal would only interfere with and increase a sentence if the Secretary for Justice is able to persuade the Court that the sentence imposed by the lower court is wrong in principle or is manifestly inadequate.

H2.   Factual basis for the review application

124.  The respondents submitted that in dealing with an application for review of sentence, the Court of Appeal must take the factual findings made by the trial magistrate as the only basis.  The Court of Appeal cannot act beyond his factual findings.  They cited Attorney General v Li Ah-sang [1995] 2 HKCLR 239 in support.  In our view, the respondents’ submissions are questionable.  And if one reads Li Ah-sang carefully, one can readily see that it does not support their contention.

125.  The general principle is that in dealing with an application for review of sentence, the Court of Appeal will proceed on the basis of the facts proved or admitted; it would not constitute itself as a court of first instance inquiring into facts which had not been pursued or proved in the court below.  See Archbold on Criminal Pleading, Evidence and Practice 2017, §7-445.  Accordingly, the Court of Appeal will generally proceed on the basis of the facts as found by the court below.  However, it does not necessarily follow that in every scenario, the Court of Appeal is, in terms of facts, bound by the lower court’s factual findings.

(1)   Pursuant to section 81B(3) and section 83V of the Criminal Procedure Ordinance, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice, admit fresh evidence. Although the Court of Appeal will be slow to admit fresh evidence and section 83V(5) also provides that in no case shall any sentence be increased by reason of or in consideration of any evidence which was not given at the trial, it does not detract from the power of the Court of Appeal to admit fresh evidence in an application for review.  (We have not exercised this power in the present case : see [128] below.) 

(2)   If the ground for review is that the lower court had made an erroneous factual finding, the Court of Appeal may examine if the finding in question is correct.  Secretary for Justice v Au Chi Hang & Others [2006] 2 HKLRD 310 is an example.  There, the first instance judge found that the weapons concerned were not offensive weapons as mentioned in the relevant authority. In applying to review the sentence, the Secretary for Justice submitted that the judge erred in making such a finding and had thereby failed to apply the relevant authority in sentencing.  The Court of Appeal rejected the Secretary for Justice’s submission.  The Court further pointed out the wooden pole and iron pole in question had not been seized as exhibit. Their dimensions were only described in the Admitted Facts ([33]).  That being the case, the Court of Appeal said that as the Court did not have the advantage of the judge having the “feel”of the case, it was unable to overturn the judge’s finding that the weapons were not offensive weapons ([39]).  As Au Chi Hang demonstrates, if it is the ground for review, the Court of Appeal may examine the factual findings made by the lower court although the Court of Appeal will be slow to interfere.

(3)   If based on evidence which had been proved or admitted or which had been adduced and was not in dispute, certain facts which are plainly relevant to sentence, whether they are in favour of the defendant or not, have been overlooked by the lower court, the sentence imposed by the lower court is erroneous as a matter of law and principle.  In such circumstances, the Court of Appeal is not bound by the factual findings of the lower court because such findings are incomplete, having failed to take into account relevant facts.  When the Court of Appeal considers those facts which ought to be considered, it does not depart from the general principle that in an application for review against sentence, the Court of Appeal will proceed on the basis of facts proved or admitted and will not inquire into facts not pursued or proved as if it were a first instance court.  For the Court of Appeal only considers those evidence proved, admitted or not in dispute which are relevant to sentence but have been wrongly ignored by the first instance court.

126.  The facts in Li Ah-sang are special.

(1)   There (the 2^nd Case), the defendant admitted two charges of employing persons not lawfully employable.  The magistrate fined him HK$5,000.00 on each charge.  The Attorney General applied for a review on the ground that the employees employed by the defendant were illegal immigrants.  The sentence was hence wrong in principle and manifestly inadequate.  However, before sentencing the defendant, the same magistrate at the trial concerning the employees (the 1^st Case) found that they were not illegal immigrants.  Thus when the magistrate sentenced the defendant, he proceeded on the basis that the employees were not illegal immigrants.  The prosecution there and then did not raise any objection and in fact did not allege that the employees were illegal immigrants.

(2)   The Attorney General submitted that since whether the employees were illegal immigrants was a live issue as a matter of law, the Court of Appeal might rule on it.  The Court of Appeal however disagreed.  It took the view that as the magistrate did not make any ruling on this point in the 2^nd Case, there was no legal question arising for the Court of Appeal to consider.

(3)   The Court of Appeal went on to say that the magistrate in sentencing the defendant assumed that the employees were not illegal immigrants on the basis of his finding in the 1^st Case.  The prosecution did not raise any objection or ask to hold a Newton hearing to determine their status.  In such circumstances, it is not open to the Attorney General to seek a review other than the facts on which the magistrate chose to find.  The Court of Appeal would therefore adopt the same factual basis for the review.

127.  Properly understood, the way in which the Court of Appeal in Li Ah-sang dealt with the factual basis for review is consistent with the general principle stated in [125] above.  As the Court of Appeal would proceed on the basis of the facts proved or admitted, it would not constitute itself as a court of first instance inquiring into facts which had not been pursued or proved in the court below, the Court of Appeal therefore rejected the Attorney General’s submission and held that it would adopt what the magistrate had accepted and not disputed by the prosecution as the factual basis for review.  That is to say, the employees employed by the defendant were not illegal immigrants.  Li Ah-sang did not establish the proposition advocated by the respondents, namely, in dealing with an application for review against sentence, the Court of Appel must take the factual findings made by the trial magistrate as the only basis and the Court of Appeal cannot act beyond his factual findings. 

128.  In the present case, we have not admitted any fresh evidence.  We have only considered the evidence, which was proved or admitted or was not in dispute, as adduced below.  As pointed out below, the trial magistrate erred in law and in principle by ignoring certain facts relevant to sentence which are proved or admitted or are not in dispute.  We must interfere.

H3.   Immediate imprisonment is the only appropriate sentence

129.  According to the evidence admitted or not in dispute, although the violent conduct involved in the present case was instantaneous, and there is no evidence of any pre-meditation or pre-planning, its scale was large, and the respondents’ violent conduct was intentional and deliberate :

(1)   The respondents and hundreds of demonstrators had pulled and pushed the multilayer Mills barriers set outside the entrances of the LegCo Complex, and then charged at the entrances and tried to forcibly open the locked glass door in order to enter into the Complex.  They jointly used things such as bamboo sticks and metal tools to pry open the door, and assisted and covered those who were prying open the door, and forcibly pulled, pushed and kicked the glass door.  They also used the Mills barrier to break a stone door at an entrance.

(2)   They did not take heed of the repeated warnings given by the security officers and the police, notwithstanding the police had used pepper sprays to disperse the participants, and even a LegCo member went to the entrance and urged the demonstrators to stop charging, but they did not stop.

(3)   The entire charging incident lasted for more than 30 minutes.

(4)   When they charged at the LegCo Complex, other demonstrators kept shouting various slogans, thereby heightening the atmosphere at the scene.

(5)   Not only the LegCo security officers were injured due to their violent acts, other LegCo staff also cried with shock when they saw the situations through CCTV.

(6)   Eventually, the repair costs of the LegCo Complex amounted to more than HK$400,000 and Mr Lo the security officer needed to take a sick leave of 85 days due to his injury.

130.  Although this is not the most serious case of unlawful assembly, charging at the LegCo where a meeting was ongoing, on such a large scale is unprecedented.  This demonstrates the seriousness of the offence and the respondents’ total disregard of public order and safety.  Charging at the LegCo with violence is an aggravating factor.  As explained in [117] – [121] above, a deterrent sentence must be imposed on them.

131.  The respondents contended that the trial magistrate had not made any finding that they used violence.  He only said that they used aggressive means to enter into the LegCo. They therefore submitted that this Court could not proceed on the basis that they had used violence in sentencing.  In the reasons for sentence, the magistrate said that they did not use violence to vent their dissatisfaction or harmful means in order to make others listen to them.  The trial magistrate was focusing on the motive or purpose of their conduct.[45]  He did not make a finding that they had not used violence.  In fact, the magistrate went on to say :

“ Finally, the Court would like to point out that violence begets violence. If means which were too aggressive were adopted in the pursuit of an otherwise just cause, causing injury to and loss of human lives, it would have passed the point of no return. Fortunately, such scenario did not occur in this case. Nevertheless, the Court is of the view that although in doing what they did the defendants have adopted means which were too aggressive, the facts of the case, as a whole, do not fall into the most serious type among cases of this nature.”[46]

Plainly, what the trial magistrate meant when he said the respondents used “too aggressive means” was violence.  He therefore pointed out that “violence begets violence”.

132.  The respondents say that they had not used any violence.  What they had used was force or aggressive means because their purpose was to make their opposition to the North-East Development Project heard at the meeting of the Finance Committee. The respondents’ assertion is simply not tenable because whether their conduct constituted violence is to be determined objectively by reference to their conduct at the time without reference to their subjective view or the purpose of their conduct.

133.  The respondents cannot use “civil disobedience” as an excuse to lessen their culpability.  For their conduct was inconsistent with the spirit of “civil disobedience” as described by Lord Hoffmann in Jones.  Rather, their conduct was a serious disruption damaging public order and safety with violence in total disregard of the law.

134.  Mr Douglas Kwok, counsel for the 1^st, 4^th, 7^th 9^th and 11^th respondents submitted that the respondents were acting under “the law of redress” which is part of the common law in Hong Kong.  He submitted that when tyranny is in formation, public authority would become ineffectual and citizens could adopt means of “self-help”.  He cited Blackstone, Commentaries on the Laws of England (1765-1769) in support.  The commentary purported to discuss the situation of England in the mid-18^th century (or even earlier), which is simply not comparable to that of Hong Kong in the 21^st century.  Upon our inquiry, Mr Kwok eventually admitted that in fact his argument is not supported by any authority, especially appellate authority.  He said he would leave it to us to decide. With respect, when there is no authority in support, Mr Kwok should not have submitted that “the law of redress” is part of the common law of Hong Kong.  If Mr Kwok really wanted this Court to rule on the matter, citing an article on the situation in England more than 300 years ago is simply not enough.  He should have carried out an in-depth research into the matter, including any relevant case law or academic writings.  We express our regret as to how Mr Kwok had handled this matter.  As Mr Kwok has failed to satisfy us that his so-called “the law of redress” is part of our common law, we reject his argument on this point.

135.  After the event, except the 12^th respondent who shows his remorse by pleading guilty, all the other respondents maintain that they are not remorseful for what they did. Although they say they would accept legal responsibility, they are adamant that what they did was right.  The Court can understand why they are not remorseful for voicing their concern over and expressing their objection to the North-East Development Project.  But when they show no remorse for their unlawful conduct of charging at the LegCo with violence, it only shows that they think they can do whatever they like if they consider it right to do so.  Because of such an attitude, the Court must give deterrence more weight in sentencing them.

136.  Based on the above analysis, the court in sentencing should give greater weight to punishment and deterrence and less weight to the respondents’ personal circumstances, their motive, including “civil disobedience” and voicing their concern over the North-East Development Project and rehabilitation.  Plainly, the appropriate sentence in the present case must be immediate imprisonment.  There is no other sentencing alternative, the court will consider the respondents’ personal circumstances and their motive but, contrary to the respondents’ submissions, those matters do not constitute exceptional circumstances as mentioned in the cases which would warrant a sentence other than immediate imprisonment, including suspended sentence and community service order.

H4.   Errors of the trial magistrate

137.  In making community service orders against the respondents, the trial magistrate made the following errors in law and principle.

138.  First, the trial magistrate said that the respondents did not use violence to vent their dissatisfaction, nor did they inflict injury on others in order to make others listen to them.  They just wanted to use different means to force their way into the LegCo Complex.  The respondents submitted that the trial magistrate meant that they had not used violence deliberately.  Thus this case does not involve serious violence and is not the most serious in similar cases.  In our view, even if the respondents, according to the trial magistrate, had not used violence to vent their dissatisfaction , nor did they inflict injury on others to make others listen to their views, the trial magistrate had ignored the fact that when the respondents tried to force their way into the LegCo Complex with violence, they did intentionally and deliberately charge at the LegCo Complex with violent means.

139.  Second, the trial magistrate has failed to take into account the fact that charging at the LegCo with violence is an aggravating factor.  He has thereby failed to give more weight to deterrence, which is wrong.

140.  Third, the trial magistrate has failed to give due consideration to deterrence in accordance with the applicable sentencing principles.  On the contrary, he has given unduly heavy weight to the respondents’ personal circumstances, their motive and rehabilitation.  In fact, when the trial magistrate heard initial mitigation, he had already expressed the view that he would not consider deterrent sentence.[47] He seemed to be suggesting that since those who thought that it was right to use violence in assembly would continue to do so, any deterrent sentence would be unnecessary or useless.  If the trial magistrate’s view were correct, so long as any person insisted on committing any serious crime, any deterrent sentence would either be unnecessary or useless and it would not be necessary for the court to impose deterrent sentence.  Society would then fall into anarchy.  We must categorically state that the trial magistrate’s view is completely wrong.

141.  Concerning the third point, Mr Kwok in his written submissions submitted that “the trial magistrate urged us to solve problems with wisdom.  He encouraged the respondents to use means that would not harm others…” and “the trial magistrate set himself as an example by not using ‘authoritarian violence’ in saying ‘it is wrong to commit a crime whatever the circumstances’, but by appealing the respondents to attain wisdom.  What the trial magistrate did was moving.”  In our view, what Mr Kwok has submitted does not detract from the fact that the trial magistrate had made the said error.  We do not understand what Mr Kwok meant by “authoritarian violence”.  And he failed to articulate what he meant in his oral submissions. We strongly disagree with him if what Mr Kwok meant is that the court is exercising “authoritarian violence” in sentencing offenders.  In sentencing offenders, not just the respondents in the present case but all offenders, in executing criminal justice and in accordance with the applicable law and sentencing principles, the court is exercising its power of adjudication conferred by Article 80 of the Basic Law and discharging its duty.  We find it regrettable for Mr Kwok to have used language such as “authoritarian violence” .

142.  Fourth, the trial magistrate erred when he took the view that community service order was appropriate although according to him it was not necessary for the respondents (other than the 12^th respondent) to show remorse.  He also erred when he took the view that because the respondents did not deny their conduct and agreed to bear legal responsibility, it was a way to show their remorse. His understanding on genuine remorse is seriously flawed.

143.  Fifth, the trial magistrate imposed community service order on the 10^th and 13^th respondents so that they could through their act demonstrate that they were willing to shoulder legal responsibility.  His reasoning is thoroughly unsound.

144.  All in all, the trial magistrate erred in not following the applicable approach to sentencing as explained by us above.

H5.   Length of imprisonment

145.  According to section 18 of the Public Order Ordinance, the maximum sentence for an offender who is convicted of unlawful assembly in the magistrate’s court is 3 years.  Having carefully considered the facts, the way the respondents committed the offence, their personal circumstances, motive and reason for the offence, including “civil disobedience” and voicing their concern on behalf of those affected by the North-East Development Project, their mitigation, their community service order suitability reports, and the trial magistrate’s reasons for sentence, and after carefully evaluating the relevant circumstances and the sentencing factors, we hold that the appropriate starting point for Charge (1) is 15 months of imprisonment.

146.  We give one month’s deduction to all respondents by way of discretion as this is the Secretary for Justice’s review application.  We give one further month’s deduction to the 1^st to 12^th respondents as they had already completed their community service orders.  The sentence for the 1^st to 11^th respondents is 13 months of imprisonment.  The 12^th respondent is entitled to a 1/3 discount because of his guilty plea.  His sentence is 8 months of imprisonment after taking into account the 2 months’ deduction.

147.  The 13^th respondent is not entitled to the one month’s deduction on account of completion of community service order because he had failed to complete it.  He was sentenced to 3 weeks’ imprisonment because of such failure.  That does not render the original community service order ineffective as he contended.  But since he has to go back to prison after serving the 3 week’s imprisonment thereby facing extra distress, we give him 1 month’s deduction by discretion.  He is thus entitled to 2 months’ deduction.  His sentence is also 13 months of imprisonment.

148.  For the above reasons, we allow the application for review by the Secretary for Justice, set aside the community service orders made by the trial magistrate against the respondents and sentence them as follows instead :

(1)   The 1^st to 11^th respondents and the 13^th respondent, in respect of Charge (1), to an imprisonment of 13 months;

(2)   The 12^th respondent, in respect of Charge (1), to an imprisonment of 8 months; and in respect of Charge (2), to an imprisonment of 8 months, and both sentences are to run concurrently.