In a decision handed down recently, the Court of Final Appeal quashed the jail terms of Joshua Wong Chi Fung and his two allies imposed by the Court of Appeal but made it clear that the stricter sentencing guidelines laid down by the Court of Appeal will apply to future offenders involved in large scale unlawful assemblies involving violence.
Following protests around the Tamar Central Government Offices on 26 September 2014, the 1st Appellant, Joshua Wong Chi Fung and 3rd Appellant, Alex Chow Yong Kang, were found guilty after trial by a Magistrate for taking part in an unlawful assembly contrary to section 18 of the Public Order Ordinance (Cap 245) (“POO”). The 2nd Appellant, Nathan Law Kwun Chung, was found guilty of inciting others to take part in an unlawful assembly. On 15 August 2016, the 1st and 2nd Appellants were sentenced to 80 hours and 120 hours of community service respectively whereas the 3rd Appellant was sentenced to 3-week imprisonment suspended for one year.
Contending that the sentences imposed were manifestly inadequate and/or wrong in principle, the Secretary for Justice applied to the Court of Appeal, pursuant to section 81A of the Criminal Procedure Ordinance (Cap 221) (“CPO”), for a review of sentence. Finding that the Magistrate erred in principle and that her sentences were manifestly inadequate, the Court of Appeal increased the sentences and imposed on the 1st, 2nd and 3rd Appellants imprisonment sentences of 6 months, 8 months and 7 months respectively. The Appellants lodged appeals. On 7 November 2017, the Court of Final Appeal granted the Appellants’ application for leave to appeal on four separate issues.
Issue 1: The Court of Appeal’s power to review facts on a review of sentence
The first issue concerns the extent to which, on an application for review of sentence under section 81A of the CPO, the Court of Appeal may reverse, modify, substitute or supplement the factual basis on which the original sentence was based.
Under section 81B of the CPO, upon the application of the Secretary for Justice, the Court of Appeal may if it thinks that the sentence was not authorized by law, was wrong in principle or was manifestly excessive or manifestly inadequate, quash the sentence passed by the court and pass such other sentence (whether more or less severe) warranted in law in substitution therefor as it thinks ought to have been passed.
In a review of sentence, there is no bar to the Court of Appeal considering any evidence or exhibit duly proved, admitted or adduced in the sentencing court. Rather, the Court of Appeal is permitted to have regard to all the evidence that was available to the sentencing court.
However, the Court of Final Appeal considered that it is not open to the Court of Appeal in a review of sentence to ascribe a different weight to a factor properly taken into account by the sentencing judge in arriving at a sentence that is otherwise within the range of sentences appropriate for the offence. The relative weight the sentencing judge ascribes to each relevant factor is a matter within the judge’s discretion and, unless that exercise results in the imposition of a sentence that is manifestly inadequate, the relative weight attributed to each individual relevant factor is a matter for the sentencing judge. Save where it concludes that the sentence is manifestly inadequate, the Court of Appeal is not entitled to ascribe more or less weight to a relevant factor than did the sentencing court.
The Court of Final Appeal disagreed with the Court of Appeal’s view that the Magistrate erred in principle in sentencing the Appellants to community service orders and a suspended sentence. The Magistrate was plainly aware of the factor of deterrence, the large scale nature of the assembly, the risk of violent clashes, the Appellants’ knowledge of the likelihood of clashes between the participants and the security guards and the police and the inevitability that at least some security guards would be injured, and the fact that there was a prior lawful assembly and that the protesters did not have an absolute right to enter the Civic Square. The Appellants’ personal circumstances and motives as well as their expression of remorse were relevant matters for the Magistrate to take into account and the weight to be accorded to them was strictly a matter within the Magistrate’s discretion. Unless the sentence the Magistrate imposed was manifestly inadequate or out of line with the range of sentences imposed in practice, it was not for the Court of Appeal to question the weight the Magistrate gave to that factor.
At the time of the sentences, there was no appellate court guidance requiring an immediate custodial sentence for a case of this nature, and a community service order was a sentence frequently passed in respect of unlawful assemblies. Thus, the Court of Final Appeal did not consider that the sentence imposed by the Magistrate was outside the reasonable ambit of the Magistrate’s sentencing discretion. Accordingly, there was no proper basis for the Court of Appeal to ascribe different weights to the relevant factors taken into account by the Magistrate.
Issue 2: Civil disobedience and the exercise of constitutional rights as motive
The second issues concerns the extent to which the Magistrate should have taken into account the motives of the Appellants in committing the offences, particularly where it was asserted that the offences were committed as acts of civil disobedience or in the exercise of a constitutional right.
In the present appeals, the acts of civil disobedience relied upon were not directed towards section 18 of the POO as an unjust law, but were committed in the course of protesting against the Government’s proposals for constitutional reform. While the Court agreed that the concept of civil disobedience is recognized in Hong Kong, it considered that a plea for leniency at the stage of sentencing on the ground of civil disobedience should carry little weight as the acts infringed the criminal law, involved violence and were thus not peaceful and non-violent.
Issue 3: The Court of Appeal’s guidance for future cases
The Court of Final Appeal recognized that it is settled law that an offender is to be sentenced on the existing or prevailing guideline or tariff of sentence existing at the time of the commission of the offence: Article 12(1) of the Hong Kong Bill of Rights; Secretary for Justice v Ma Ping Wah  2 HKLRD 312. However, the public order offences of which the Appellants were guilty are offences where there are no established guidelines or tariffs.
Given the circumstances now prevailing in Hong Kong, the Court of Appeal emphasized the need, when sentencing in cases of unlawful assembly, to take a much stricter view where disorder and any degree of violence were involved. The Court of Final Appeal considered that this was consistent with the Court of Appeal’s responsibilities for providing guidance in sentencing matters and it was fully entitled to provide this guidance for the future.
That said, the Court of Final Appeal took the view that it was inappropriate to apply the Court of Appeal’s guidance to the Appellants in these appeals in order to avoid retrospectively imposing significantly more sever sentences on them based on the new sentencing guideline.
Issue 4: Section 109A of the CPO and the relevance of youth in sentencing
The 1st Appellant was aged 17 at the time of the offence of which he was convicted, 19 at the time of trial before the magistrate and 20 at the time of the sentence review in the Court of Appeal.
Section 109A of the CPO places a duty on a sentencing court when considering the appropriate sentence to be imposed on an offender aged between 16 and 21, to obtain and consider information about the circumstances, i.e. the circumstances of the offender, the offence and his suitability for particular types of punishment, for the purpose of determining whether any method of dealing with the offender, other than a sentence of imprisonment, is appropriate. There are circumstances where it is clear without the need to obtain further information that the only appropriate sentence is imprisonment. However, in the circumstances of the present offence, this was certainly not one of those cases. The Court of Appeal therefore erred in dispensing with the need to consider other sentencing options and in not following the requirements of section 109A of the CPO in the case of the 1st Appellant.
In conclusion, the Court of Final Appeal allowed the appeals of each of the three Appellants, quashed the sentences of imprisonment imposed by the Court of Appeal and reinstated those imposed by the Magistrate. However, future offenders involved in large scale unlawful assemblies involving violence will be subject to the new guidelines laid down by the Court of Appeal.
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This article is written by ONC Lawyers and edited by Rishika Pundrik of Asia Law Network.
This article was first published on ONC’s website.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.