Introduction

On 17 August 2017, the Court of Appeal (the “CA”) handed down its judgment regarding the Secretary for Justice’s application for review of sentences concerning 3 political activists –  Joshua Wong (“Wong”), Nathan Law (“Law”) and Alex Chow (“Chow”) (collectively, the “Respondents”), over their involvement in the “Civic Square” clash. The activists’ original community service sentences were quashed by the CA and they were sentenced to imprisonment for six to eight months.

Background

Facts

The incident took place on 26 September 2014 at the forecourt of the Tamar Central Government Offices’ East Wing (“Forecourt”), which was dubbed “Civic Square”. The Respondents held an assembly at the area off Tim Mei Avenue outside the Forecourt on that day.  When the assembly came to an end that night, Wong used the broadcasting system to call on the protestors to stay and get into the area of the Forecourt. Wong then passed his role to Law, while he himself ran to the Forecourt area. Subsequently, several hundred participants of the assembly either climbed over the fence or tried to force open the closed gates of the fence at the Forecourt, including Chow.  The Respondents were then arrested on site.

The Trial Magistrate’s Ruling

On 15 August 2015, Wong and Chow were found guilty of unlawful assembly while Law was convicted of inciting others to take part in an unlawful assembly by the Trial Magistrate. The Trial Magistrate found that the appropriate sentences were 80 hours of community service order for Wong and Chow, and 120 hours of community service order for Law.

In reaching such decision, the Trial Magistrate relied on a range of factors, including but not limited to the fact that the Respondents were all leaders of student democratic movements in Hong Kong with no previous criminal convictions and were passionate in social issues, and that their intention in committing the offences was genuinely to express their demands on their political ideals and their concern for the condition of the society. The Trial Magistrate commented that given this case was “different from ordinary criminal cases”, she would take a lenient approach in sentencing the Respondents.

The Appeal

The Secretary for Justice was not contented with the Trial Magistrate’s sentence and thus applied for a review of the same. The application was first heard before the Trial Magistrate on 21 September 2016 but was dismissed. The Secretary for Justice then applied for an appeal to the CA on 13 October 2016 and was granted leave on 16 May 2017. The application was eventually heard on 9 August 2017.

The CA’s Decision

At the appeal, the CA held that the Trial Magistrate erred in principle when passing the original sentence in that:-

• The Trial Magistrate did not at all consider that the sentence should have a deterrent element, while giving disproportionate weight to factors such as personal circumstances and the respondents’ motives etc.
• The Trial Magistrate considered the case as not involving serious violence. She overlooked that this was an unlawful assembly of a large scale, where the risk of violent clashes was high.
• The Trial Magistrate completely overlooked the fact that prior to the incident, the respondents must reasonably be able to envisage that there would be clashes between the participants, security guards and the police, and that it was inevitable that at least some security guards would be injured.
• The Trial Magistrate overlooked the fact that on the night in question, the political associations in which the Respondents were involved had already had their assembly on the road off the Central Government Offices. The Forecourt was closed.  They did not have the absolute right to enter the Forecourt for another assembly but they insisted on forcing their way in unlawfully and also encouraged or incited others to do so.  They thought they were correct in doing so and in fact their acts were in breach of the law.
• The Trial Magistrate gave too much weight to the Respondents’ remorse as a factor in sentencing. In fact, the Respondents still insisted that they were correct in entering the area by force. Even though the Respondents did not deny the acts they had done, and expressed respect for the court and were willing to bear the legal consequences of the conviction after the trial, their “remorse” was superficial and should not be given too much weight.

In light of the above, the CA unanimously allowed the Secretary for Justice’s application for review of sentences.  The original community service order sentences passed by the Trial Magistrate were quashed and Wong, Law and Chow were sentenced to imprisonment for 6, 8 and 7 months respectively.

General Sentencing Principles

In the Judgment, the CA also took the opportunity to restate and/or to clarify the sentencing principles applicable to cases of unlawful assembly involving violence. The Court held that in passing sentence for unlawful assembly cases, apart from having to consider the general principles in sentencing, the Court must also take into account the factor of “deterrence” given the gravamen of the offence of unlawful assembly. The weight that the court should accord to this factor of deterrence depends on the factual circumstances of the case.  If the case is sufficiently serious, it is necessary for the court to impose a deterrent sentence.

Further, the Court also held that it is an aggravating factor if the offenders of an unlawful assembly inflicted violence, or threatened to use violence.  When an offender used violence or, worse, engaged himself in wanton and vicious violence, even if he claimed he committed the offence out of deeply held moral or political convictions, that would not constitute a mitigating factor in favour of a lenient sentence.  In deciding the appropriate sentence, it is necessary for the Court to consider the facts surrounding the commission of the offence.

Conclusion

In determining what amounts to “serious violence”, the CA ruled that apart from the actual outcome, the scale of the assembly and number of people involved, the potential risk of clash and physical injuries also need to be considered. This wider consideration of what is not involving serious violence would have an impact to future organizers and participants of assemblies.

This judgment has drawn many criticisms from the city’s pro-democracy camp. It has also provoked questions on judicial independence, political persecution and issues in relation to the protection of freedom of speech in Hong Kong. In response to these challenges from the public, the Department of Justice has repeatedly reiterated that all decisions were made in accordance with the applicable law and relevant evidence, and that Hong Kong’s judicial independence cannot be questioned. With citizens’ growing dissatisfaction towards the Government in Hong Kong, we can foresee that more cases of a similar nature will go to Court in the near future.

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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.