Introduction

On 11 September 2017, the Court of Appeal (the “CA”) handed down its reasons for judgement regarding the Secretary for Justice’s application for review of sentences concerning 13 demonstrators (collectively, the “Respondents”), for their acts of charging at the Legislative Council Complex (the “LegCo Complex”) violating a number of laws including the offence of Unlawful Assembly, contrary to section 18(3) of the Public Order Ordinance (Cap 245) (Secretary for Justice v Leung Hiu Yeung and others CAAR No. 3 of 2016). The CA quashed the original community service order sentences and sentenced them to imprisonment for 8 to 13 months.

Background Facts

The incident happened on 13 June 2014 at about 8:45 p.m., when the Respondents who gathered at the ground floor lobby of the LegCo Complex started charging at the LegCo Complex in a violent manner, with the intent to forcibly enter the LegCo 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 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 the security officer needed to take a sick leave of 85 days.

Development of the Case

On 19 February 2016, the trial magistrate sentenced the Respondents to community service for 80 to 150 hours. The Secretary for Justice applied to the CA for leave to review the sentence, which was allowed on 11 March 2016.

On 2 March 2016, the 1st to 3rd, 6th and 13th Respondents lodged appeals against convictions with the Court of First Instance (the “CFI”). The appeals were all dismissed on 25 January 2017. On 23 February 2017, the CFI refused the 1st and 2nd Respondents’ applications for certificates to appeal to the Court of Final Appeal against their convictions.

On 16 June 2017, the 1st and 2nd Respondents filed their Notices of Motion with the Court of Final Appeal applying for leave to appeal out of time.  On 10 August 2017, the Court of Final Appeal refused to grant leave to the 1st and 2nd Respondents to appeal against their convictions on unlawful assembly, but granted leave to the 1st Respondent to appeal against conviction on obstructing an officer of the LegCo in the execution of duty.

On 14 August 2017, the CA resumed the hearing of the review in respect of the sentence passed on unlawful assembly. The same panel of judges in Secretary for Justice v Wong Chi Fung, Law Kwun Chung and Chow Yong Kang Alex CAAR No. 4 of 2016 heard this case.

CA’s Decision

After two days’ trial, the CA set aside the community service orders passed by the trial magistrate and substituted them with:

• in respect of unlawful assembly, each of the 1st to 11th and 13th Respondents was sentenced to a term of imprisonment of 13 months; and
• the 12th Respondent was sentenced to a term of imprisonment of 8 months on unlawful assembly and a term of imprisonment of 8 months on attempted forcible entry, to run concurrently.

The CA reached its judgement based on the following reasons:-

• In committing the offence, the Respondents 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.
• Charging at the LegCo Complex with violence makes the case more serious and is an aggravating factor. When participants of an assembly 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. The court has to give more weight to deterrence in sentencing.
• The Respondents were 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.
• The sentence of immediate imprisonment imposed on the Respondents by the court shall not be considered to suppress the exercise of their rights to the freedom of demonstration, assembly or expression. The law has never allowed them to exercise such rights by unlawful means in the first place.
• Whether the Respondents’ 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.
• The assertion of “civil disobedience” is not a mitigating factor in this case because the Respondents’ conduct in this case is inconsistent with the spirit of “civil disobedience” as described in the relevant authority. The CA considered that “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. The CA ruled that an offender who commits an offence with “civil disobedience” as his motive cannot act wantonly in total disregard of the law and he must still act with restraint and cannot acts as he pleases. The offender will plead guilty and accept the penalty to vouch the sincerity of his belief. Depending on the seriousness of the case, the court may give little or no weight to the motive of “civil disobedience” and will give more weight to the public interest of enforcing the law. The CA considered that the conduct of the Respondents was a serious disruption that damaged public order and safety with violence in total disregard of the law.

The CA reiterated the general sentencing principles applicable to cases of unlawful assembly involving violence as set out in CAAR No. 4 of 2016. For the summary of the sentencing principles, please refer to our previous article: The “Civic Square” Unlawful Assembly Sentence Review – Why the Court of Appeal Jailed J Wong, N Law and A Chow?

Conclusion

The CA’s stance on cases of unlawful assembly involving violence is clear and consistent after the two cases (namely CAAR No. 4 of 2016 and CAAR No. 3 of 2016). Organizers and participants of assemblies should carefully assess their conduct and potential liabilities in the context of the court’s interpretation of the meaning of the motive of “civil disobedience” with respect to the offence of unlawful assembly and its sentencing.

It is noted that, till 19 September 2017, twelve of the Respondents in this case have filed applications for appeal. The three respondents in the other case (CAAR No. 4 of 2016) have also filed applications for appeal. We have yet to see how the Court of Final Appeal will decide on this issue.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.