FACC3/2018 SECRETARY FOR JUSTICE v. LEUNG HIU YEUNG

1. These appeals were against sentences imposed by the Court of Appeal following a review of sentence pursuant to section 81A of the Criminal Procedure Ordinance.[1] This Court has recently considered the Court of Appeal’s powers on, and the proper approach to, such a review of sentence in Secretary for Justice v Wong Chi Fung (“Wong Chi Fung”)[2]and, as will be seen, the Court’s judgment in that case governs the disposition of these appeals.

2. The appellants in these appeals were convicted of the offence of unlawful assembly in the circumstances described below. As will be seen, it was, on any view, a violent incident. Upon conviction, the appellants were sentenced by the magistrate to community service orders. The Secretary for Justice applied to review those sentences on the basis that they were wrong in principle or manifestly inadequate. The Court of Appeal acceded to the Secretary for Justice’s application and substituted sentences of imprisonment in respect of each of the appellants.

3. The appellants sought leave to appeal against the sentences imposed by the Court of Appeal upon review of the magistrate’s original sentences. In the light of Wong Chi Fung (CFA), the points of law sought to be raised by way of appeal had already been answered and so leave to appeal to this Court was granted by the Appeal Committee on the limited basis described below.

4. At the conclusion of the hearing, indicating that we would hand down our reasons for doing so in due course, the Court allowed the appeals and made orders in respect of each of the appellants, substituting, for the Court of Appeal’s sentences of imprisonment, sentences of imprisonment corresponding to the period of time already served in prison by each. These are the Court’s reasons for allowing the appeals and making the orders we did.

5. The facts out of which the appellants’ convictions arose have already been the subject of a previous appeal to this Court (FACC 5/2017) on a discrete point of law.[3]

6. To re-state the facts briefly, on 13 June 2014, about 300 to 400 protesters objecting to development works in the North East New Territories New Development areas were engaged in a demonstration outside the Legislative Council (“LegCo”) Chamber at a designated demonstration area. At that time, LegCo’s Finance Committee was in session to discuss a funding application relating to advanced works at the development areas. At around 8.45pm that day, protesters in the demonstration area started to rush towards the entrances of the LegCo building in an attempt to gain entry through the glass doors. These doors, in front of which Mills barriers had been set up, had been locked to prevent unauthorised entry. The protesters started to pull away the Mills barriers and to use them, as well as bamboo poles and metal bars, which were wielded with considerable violence, to try to force their way into the LegCo complex by prising open or battering the doors. The situation was sufficiently serious to cause the President of LegCo to request police assistance to maintain the order and safety of the LegCo complex. The police had to use riot shields and pepper-spray to prevent the protesters from gaining entry to LegCo. The break-in attempt, which was recorded on CCTV footage, was sustained, involved “hundreds of demonstrators”[4] and lasted for nearly half an hour. As a result, damage was caused to a number of LegCo facilities, costing over HK$400,000 to repair. One of the security officers was injured by a falling Mills barrier and sustained broken toes, for which he was granted 85 days’ sick leave.

7. The acts of each of the appellants were summarised in tabular form in paragraph [26] of the judgment of the Court of Appeal, which we set out below:

8. Each of the appellants was charged with unlawful assembly, contrary to section 18(3) of the Public Order Ordinance[5] based on the facts summarised above (Charge 1). Based on the same facts, they were also each charged with attempted forcible entry, contrary to section 23(1) of the Public Order Ordinance and section 159G of the Crimes Ordinance[6] (Charge 2). The 1^st and 2^nd appellants were each additionally charged with a further offence of obstructing an officer of the Legislative Council in the execution of his duty, contrary to section 19(b) of the Legislative Council (Powers and Privileges) Ordinance[7] (Charges 3 and 4 respectively).[8]

9. The 12^th appellant pleaded guilty to Charges 1 and 2, whilst the charges against the other appellants proceeded to trial at the Eastern Magistrates’ Court.[9] After a trial lasting 13 days, on 30 December 2015, the magistrate found the appellants guilty of Charge 1 and not guilty of Charge 2.[10]

10. On 19 February 2016, the magistrate sentenced the appellants on their convictions in respect of Charge 1: the 1^st to 9^th and 11^th appellants were sentenced to 120 hours of community service[11] and the 10^th and 13^th appellants were sentenced to 150 hours of community service; the 12^th appellant, having pleaded guilty, was sentenced to 80 hours of community service.[12] Of relevance to one of the issues in these appeals is the fact that the 5^th and 6^th appellants were both under the age of 21 as at the date of the unlawful assembly and the 6^th appellant was also under 21 as at the dates of conviction and sentence by the magistrate.[13]

11. The Secretary for Justice was dissatisfied with the sentences imposed and applied for leave to appeal to the Court of Appeal for a review of those sentences pursuant to section 81A of the Criminal Procedure Ordinance. The procedural course of the application was somewhat convoluted. On 11 March 2016, Cheung CJHC granted such leave but the review could not proceed for the time being because, on 2 March 2016, the 1^st to 3^rd, 6^th and 13^th appellants had appealed to the Court of First Instance against their convictions.[14]

12. On 25 January 2017, Albert Wong J dismissed the appeals against conviction. This led to an application by the 1^st and 2^nd appellants for a certificate of points of law in order to seek leave to appeal to this Court. On 23 February 2017, Wong J refused that application and so, on 6 April 2017, the Court of Appeal directed that the review of sentence should be heard on 21 June 2017.[15] On that date, however, the hearing of the review as a whole was adjourned, since the 1^st and 2^nd appellants had applied to this Court, on 16 June 2017, for leave to appeal against their convictions and so the review of their sentences could not, in any event, proceed.[16]

13. On 10 August 2017, the Appeal Committee granted leave to the 1^st appellant to appeal against his conviction on Charge 3[17] but dismissed his and the 2^nd appellants’ applications for leave to appeal against their convictions on Charge 1. At that point, the review of sentence in respect of Charge 1 could proceed against all the appellants as a whole and so, on 14 August 2017, the hearing before the Court of Appeal resumed.[18]

14. At the conclusion of the hearing of the review of sentence on 15 August 2017, the Court of Appeal allowed the Secretary for Justice’s application, set aside the community service orders that had been imposed by the magistrate and substituted, for them, (i) in respect of Charge 1, on the 1^st to 11^th and 13^th appellants, 13 months’ imprisonment, and (ii) in respect of both Charges 1 and 2, on the 12^th appellant, 8 months’ imprisonment for each offence, to run concurrently. The Court of Appeal subsequently handed down its Reasons for Judgment (“CA Reasons”) on 11 September 2017.

15. It is relevant to note that, shortly prior to the hearing of this review of sentence on 15 August 2017, the same division of the Court of Appeal heard the review of sentence in Wong Chi Fung on 9 August 2017,[19] at the conclusion of which judgment was reserved. The Court of Appeal handed down its reserved judgment in Wong Chi Fung on 17 August 2017 (“Wong Chi Fung (CA)”) by which it increased the sentences of the three appellants in that case.

16. In paragraph [67] of the printed case for the 2^nd and 6^th appellants, it was submitted that the Court of Appeal failed to take into account that almost 18 months (from 19 February 2016 to 15 August 2017) had passed between the dates of sentence and review. As the above chronology shows, however, the review could not proceed until after the dismissal on 10 August 2017 of the 1^st and 2^nd appellants’ applications to the Appeal Committee for leave to appeal against their convictions. So the hiatus during the period from 11 March 2016 until 10 August 2017 was effectively the result of the statutory bar on the review proceeding pending an appeal against conviction. Since those appeals, which were consistently held to be unmeritorious, were instituted by the appellants themselves, the submission that there was undue harshness to them in the imposition of custodial sentences so long after their original sentences were imposed is a point of little merit.

17. The 13 appellants all applied to the Court of Appeal for certification of various questions of law for the purpose of an application for leave to appeal to this Court. Before that application was resolved by the Court of Appeal, the Appeal Committee granted leave to appeal in Wong Chi Fung on 7 November 2017.[20]

18. In the light of that grant of leave by the Appeal Committee, the Court of Appeal certified, by its judgment dated 14 November 2017 (“CA Certification Judgment”),that four questions of great and general importance were involved in the proposed appeal. They were of the view that these four questions were the same as issues (1), (2) and (3) for which leave to appeal had been granted by the Appeal Committee in Wong Chi Fung.[21]

19. By its Determination dated 21 March 2018, after judgment in Wong Chi Fung was handed down by this Court, the Appeal Committee granted leave to appeal to this Court on a limited basis, stating:

20. It is material to note that, immediately following the review of sentence in the Court of Appeal, each of the appellants commenced their sentences of imprisonment on 15 August 2017 and served part of their sentences until granted bail by a single permanent judge of this Court. For convenience, the following table sets out, in respect of each appellant, (a) the length of sentence imposed, (b) the date on which they commenced their sentence, (c) the date on which each was granted bail and (d) the period of imprisonment served:

* The 13^th appellant was found to be in breach of the community service order imposed on him and so, on 15 December 2016, his original sentence was substituted with a sentence of imprisonment of 3 weeks which he served. It is therefore necessary to add, in respect of his time served, an additional 21 days, making a total of 3 months 30 days.

21. In light of the limited basis on which leave to appeal to this Court was granted, there are three principal issues for determination in these appeals, namely:

C.1 Issue (1): Was the Court of Appeal’s jurisdiction under section 81A engaged?

22. In Section D of Wong Chi Fung (CFA), this Court addressed the jurisdiction of the Court of Appeal under section 81A of the Criminal Procedure Ordinance. We held, at [47]:

23. In asking whether the magistrate made a relevant error so as to justify the Court of Appeal exercising its jurisdiction under section 81A of the Criminal Procedure Ordinance to review the sentences of community service orders imposed by the magistrate, the relevant inquiry is to ascertain whether the magistrate could be shown to have erred in principle or to have imposed sentences that were manifestly inadequate and “outside the ambit of appropriate sentences which would be reasonably imposed by a judge having considered all the relevant factors”. This was the basis of the Secretary for Justice’s application for review.[23]

24. The Court of Appeal analysed the magistrate’s sentencing in Section H of the CA Reasons. It rejected the argument advanced by the appellants[24] to the effect that the Court of Appeal was limited only to those facts found by the magistrate (Section H2). The Court of Appeal found (in Section H4) that the magistrate made a number of errors in law and principle. These were, in summary, as follows:

25. Leaving to one side points (3) and (6) in the above list for the time being, the other reasons given by the Court of Appeal for concluding that the magistrate erred in principle and imposed manifestly inadequate sentences are, in our view, sound and therefore engaged the jurisdiction of the Court of Appeal to increase the sentences on review pursuant to section 81A.

26. In Wong Chi Fung (CFA), we made it clear, in Section D.1, that the Court of Appeal is permitted, in a review of sentence, to have regard to all the evidence available to the sentencing court. It may not give different weight to relevant factors taken into account by the sentencing court unless that court has made an error in principle or imposed a manifestly inadequate sentence. But if the sentencing court has done so, then the Court of Appeal is entitled to assign a different weight to a particular relevant factor.

27. Thus, as regards point (1) above, although in his Reasons for Sentence the magistrate nominally referred to the fact that violence was involved in the unlawful assembly resulting in injuries,[31] he was wrong, as a matter of fact, in discounting that factor and, in effect, giving it no weight at all. This flies in the face of the clear evidence that the appellants were themselves violent and intentionally and deliberately charged at and tried to force their way into the LegCo complex by violent means. It is also inconsistent with the finding of injuries sustained by one of the security guards and the physical damage caused to the LegCo premises. Accordingly, as regards point (2) above, the magistrate having wrongly effectively proceeded on the footing that the appellants did not use violence, he did not give sufficient weight to the need for a deterrent sentence.

28. In Wong Chi Fung (CFA) at [122], we held that the Court of Appeal was justified in clarifying the principles on which it would be appropriate to impose a community service order and the factors to be considered in determining if an offender is genuinely remorseful. These principles and factors were set out by the Court of Appeal in Wong Chi Fung (CA) in Section H6 and especially at [140] to [141] and [147] respectively. Those principles and factors were also set out in the CA Reasons in this case at [100] and [102] in virtually the same terms. It should be noted, for the avoidance of doubt, that the Court of Appeal did not there say that genuine remorse must always be present in every case before a community service order may be imposed. Rather, the Court of Appeal was stating that, normally, one would expect genuine remorse to be present before a community service order is imposed. Obviously, there may be exceptions.

29. As regards points (4) and (5) above, in the CA Reasons at [29], the Court of Appeal recorded the stance taken by each of the appellants when the magistrate heard their preliminary mitigation on the date of conviction (30 December 2015), as follows:

30. The Court of Appeal also set out, at some length in Section C2 of the CA Reasons, a summary of the contents of the community service order suitability reports that were obtained in respect of the appellants and then made the following observations in respect of the magistrate’s reasons for sentence:

31. In the circumstances, and with regard to the applicable principles regarding the relevance of genuine remorse referred to above, the lack of remorse on the part of the appellants was plainly a relevant consideration as to whether to impose a community service order rather than a sentence of imprisonment. In the present case, the absence of genuine remorse was plainly a relevant factor weighing against the imposition of community service orders in respect of the appellants. This was all the more so, in the case of the 10^th and 13^th appellants, who were not recommended for community service orders. We are therefore satisfied that the magistrate erred in principle in the manner set out by the Court of Appeal in points (4) and (5) above. In his Reasons for Sentence, the magistrate simply omitted to take into account the fact that the appellants were not remorseful.[32]

32. In any event, we accept the submission of the Secretary for Justice that, given the scale of the unlawful assembly and the degree of violence involved, the community service orders imposed by the magistrate in the present case were manifestly inadequate sentences for the appellants in respect of Charge 1. We are satisfied that, even disregarding the sentencing guidance laid down by the Court of Appeal in Wong Chi Fung, a custodial sentence of imprisonment was called for. In Wong Chi Fung (CFA) at [95], we gave illustrations of the range of sentences imposed for the offence of taking part in an unlawful assembly. As a review of those cases shows, unlawful assemblies involving the scale of participants and the degree of violence involved in this case generally result in sentences of imprisonment rather than community service orders. The case of The Queen v To Kwan-hang and Another[33] in which community service orders were apparently imposed[34] does not affect this conclusion: although also a case of unlawful assembly involving some violence, it is distinguishable on the facts as to the scale of violence; moreover, that decision was an appeal against conviction and the Court of Appeal did not address the question of the appropriateness of the particular sentence imposed. We are therefore satisfied that, in the present case, given the scale of the unlawful assembly and the violence deployed, the appropriate sentence was a custodial sentence rather than community service. We shall address below whether sentences of the length imposed by the Court of Appeal were appropriate but, for the purposes of the review of sentence under section 81A, we are satisfied that the Court of Appeal was entitled to substitute increased sentences in the form of sentences of imprisonment.

33. In conclusion on this issue, we consider that the Court of Appeal was right to conclude that the magistrate erred in principle and that he imposed sentences that were manifestly inadequate in the circumstances. Having reached the conclusion that the magistrate did so err and that his sentences were manifestly inadequate even by reference to the pre-Wong Chi Fung approach because they were, as contended by the Secretary for Justice, outside the ambit of appropriate sentences which would be reasonably imposed by a judge having considered all the relevant factors,[35] the Court of Appeal was entitled to exercise its discretion to review the sentences.

34. It was submitted in the printed case of the 3^rd, 5^th, 10^th, 11^th and 12^th appellants[36] that the Court of Appeal is not required to exercise its discretion to increase an original sentence where it is wrong in principle unless it is also manifestly inadequate and that there was no good reason for the Secretary for Justice to apply for a review of sentence simply on the ground that the sentence is wrong in principle if it is not also manifestly inadequate.[37] We reject this submission which flies in the face of the plain language of section 81A which clearly states that the jurisdiction to review a sentence exists where any of the four grounds there set out is established. It is only necessary for one of those grounds to be established in order for the jurisdiction to be engaged: see Wong Chi Fung (CFA) at [47] and [53].

35. It is convenient at this point of the judgment to address a number of discrete points raised by various of the appellants which the Court determined were not open to them on these appeals in view of the limited basis on which leave to appeal to this Court was granted.

36. It was submitted in Section D of the printed case for the 1^st, 4^th, 9^th and 13^th appellants,[38] that the Court of Appeal’s review of the appellants’ sentences was contrary to the principle of double jeopardy. The argument sought to be advanced was that, since the community service orders had been completed by the appellants (or, in the case of the 13^th appellant, since he had already served the 3-week term of imprisonment ordered in place of community service upon his failure to perform the community service order imposed on him), the Court of Appeal’s imposition of terms of imprisonment amounted to punishing the appellants twice for the same offence, contrary to Article 11(6) of the Hong Kong Bill of Rights.

37. This point was not open to the 1^st, 4^th, 9^th and 13^th appellants to argue on this appeal for a number of reasons:

38. It was submitted that the probation officer responsible for seeing that the 1^st, 4^th and 9^th appellants completed their community service orders satisfactorily should have suspended the order pending the hearing of the review of sentence, under section 6(1)(a) of the Community Service Orders Ordinance[39], to avoid the possibility of double punishment. This submission was also not open to the appellants since it was part and parcel of the double jeopardy argument in Section D of the printed case for the 1^st, 4^th, 9^th and 13^th appellants. However, in not addressing it, we should not be taken to accept the correctness of the submission as to the scope of section 6(1)(a).

39. In Section E.3 of the printed case of the 2^nd and 6^th appellants,[40] it was submitted that, when an offender’s criminal conduct was “intertwined with his exercising his fundamental rights to expression or assembly, the Court should consider if the sentence imposed is proportionate to the legitimate aim of protecting public order”. These submissions on proportionality sought to re-argue the same point that was raised before the Appeal Committee and which, including the reference to Barabanov v Russia,[41] addressed Question 2 and Question 3 for which leave to appeal was sought, the Court of Appeal having certified those questions. The Appeal Committee having refused leave to appeal in respect of those questions, it was not open to the appellants to pursue this submission.

C.2 Issue (2): Did the Court of Appeal retrospectively apply the Wong Chi Fung guidelines?

40. In Wong Chi Fung (CFA), the Court addressed the approach when the Court of Appeal gives guidance for future cases in Section D.3 of its judgment. We held (at [77]) that:

41. Although this Court endorsed the guidance for future cases laid down by the Court of Appeal in Wong Chi Fung, we held (at [126]) that:

42. The appellants contended that the Court of Appeal had, in this case, applied the guidance laid down in Wong Chi Fung (CA) and that, in accordance with the above statements of principle in Wong Chi Fung (CFA), this was a departure from an accepted norm occasioning substantial and grave injustice by (to quote the submission made in the printed case of the 7^th and 8^th appellants[42]):

43. Reference to points (3) and (6) of the list of points set out above (at [24]), summarising the Court of Appeal’s conclusions as to the magistrate’s errors in law and principle, demonstrates that there is substance in this complaint.

44. In referring to the “applicable sentencing principles” in point (3) (CA Reasons at [140]), the Court of Appeal did not expressly state that it was referring to the post-Wong Chi Fung principles. However, in point (6) (CA Reasons at [144]), the Court of Appeal clearly referred to the magistrate being in error “in not following the applicable approach to sentencing as explained by us above”. Read in context, we are satisfied that that must be a reference to the sentencing principles addressed in Section G1 of the CA Reasons. In that section, the Court of Appeal clearly applied the post-Wong Chi Fung principles applicable to unlawful assemblies involving violence.

45. Indeed, the following passages in the CA Reasons clearly support the contention that the Court of Appeal must have applied the new Wong Chi Fung guidelines in this case. In the CA Reasons at [87], the Court of Appeal said:

Moreover, in Section G1 of the CA Reasons (entitled “Applicable legal propositions and sentencing principles”), at sub-section (8) (in turn entitled “Applicable sentencing principles for unlawful assembly involving violence”), the Court of Appeal set out at [106] to [108] a list of principles in virtually identical terms to those set out in Wong Chi Fung (CA) at [151] to [153].

46. Thus, when the Court of Appeal referred in the CA Reasons at [140] to “the applicable sentencing principles” and at [144] to “the applicable approach to sentencing as explained by us above”, these are clearly, in our view, references to those passages in Wong Chi Fung (CA) we have identified in the preceding paragraph.

47. Furthermore, although we are satisfied that the Court of Appeal would have been entitled, on the existing authorities on unlawful assembly, to conclude that it was necessary in this case to impose a term of imprisonment as a deterrent sentence, we do not think (for the reasons set out in Section D below) that the starting point of 15 months’ imprisonment can be justified on the state of previous sentences imposed for this offence (see CA Reasons at [145]). None of the various earlier cases to which reference was made in Wong Chi Fung (CFA) at [95], and which represented a summary of the range of sentences previously imposed (prior to Wong Chi Fung (CA)) for that offence, approached (save for that arising in the context of the 1967 riots) a starting point of 15 months’ imprisonment. The case of HKSAR v Tai Chi Shing & Ors,[44] which involved acts described as “‘riotous’ in nature, if not a ‘riot’ by legal definition” and very similar to the facts of the present case, attracted sentences based on a starting point of 6 months’ imprisonment and therefore resulted in significantly shorter sentences than those imposed in the present case. The facts of HKSAR v Yip Po Lam,[45] involving a group of persons charging at a police cordon, resulted in a sentence of four weeks’ imprisonment suspended for 12 months.

48. Given the previous range of sentences for this offence, in arriving at the 15 month starting point here, it is reasonably clear, in our view, that the Court of Appeal must have been applying the new guidelines that it laid down (or was very shortly to lay down) in Wong Chi Fung (CA). Those principles, it will be recalled, were stated by the Court of Appeal in Wong Chi Fung (CA) “to provide guidance to the sentencing courts in the future”.[46] The Director of Public Prosecutions, Mr David Leung SC,[47] in his oral submissions on behalf of the Secretary for Justice, fairly accepted that this must have been the case. Given the chronology of the respective proceedings, when imposing the increased sentences on these appellants on 15 August 2017, the Court of Appeal would have had in mind the guidelines that it was very shortly going to hand down in its written judgment in Wong Chi Fung (CA). The relevant dates are as follows:

49. That being the case, and applying the reasoning in Section D.3 and at [126] of Wong Chi Fung (CFA), the sentences imposed by the Court of Appeal in this case were wrong in principle and the appellants’ appeals against them must be allowed. This is not on the basis that the Court of Appeal should not have interfered with the magistrate’s sentences of community service orders at all (for the reasons set out in Section C.1 above) but, rather, on the basis that, although it was justifiable for the Court of Appeal to substitute sentences of imprisonment, they should not have applied the new guidelines in Wong Chi Fung (CA) in fixing the length of the terms of imprisonment.

50. We shall address at Section D below the appropriate disposition of these appeals.

C.3 Issue (3): Did the Court of Appeal fail properly to consider section 109A?

51. In Section D.4 of the judgment in Wong Chi Fung (CFA), this Court addressed the relevance of youth in sentencing and section 109A of the Criminal Procedure Ordinance. We held that the age of an offender, whether youth or advanced age, is always a relevant mitigating factor in sentencing and that the purpose of section 109A was to ensure that, save for excepted offences, the imprisonment of young persons between the ages of 16 and 21 is a sentencing measure of last resort.[48]

52. We concluded that, on its plain wording, section 109A placed a duty on a sentencing court when considering the appropriate sentence for an offender aged between 16 and 21, to obtain and consider information about the circumstances of the offender, the offence, his suitability for particular types of punishment, his character and his physical condition, to determine whether a non-custodial sentence was appropriate. Nevertheless, the requirement to obtain information was not absolute and the sentencing court could determine, without resort to obtaining information pursuant to section 109A, that the only appropriate sentence was imprisonment.[49]

54. The two appellants in this case in respect of whom section 109A might be relevant are the 5^th and 6^th appellants. As noted above, the 5^th appellant was born on 18 July 1994 and the 6^th appellant on 30 October 1995. Therefore:

55. In the CA Reasons, there is no reference to section 109A at all and therefore no indication that the Court of Appeal took that section into account in respect of either the 5^th appellant or the 6^th appellant before increasing their respective sentences from community service orders to terms of imprisonment. Was there, therefore, a departure from an established norm giving rise to substantial and grave injustice to them?

56. The critical issue here is the date by reference to which the words “No court shall sentence a person of or over 16 and under 21 years of age to imprisonment” in section 109A is to be measured. Is this the date of offending, the date of conviction or the date of sentence? This is a question of construction of the relevant statutory language.

57. For the 5^th appellant, Mr Martin Lee SC submitted that the operative date for determining whether a person is under the age of 21 for the purpose of section 109A is the date of commission of the offence. As a fallback, Mr Lee contended that, if the operative date is some later date, such as conviction or sentence, the likely sentence that the defendant would have received at the date of the offence should still be “a powerful factor” to be taken into account by the sentencing court.[50] For the 6^th appellant, Mr Hectar Pun SC submitted that the relevant date for the purposes of section 109A is the date of offending, alternatively the date of conviction.[51]

58. The Director of Public Prosecutions submitted on behalf of the Secretary for Justice that “the relevant date for determining age is clearly the date of sentencing by the trial magistrate in the first instance; by the [Court of Appeal] on a sentence review; and indeed by [this Court] if it decides to sentence a person afresh”.[52]

59. For the following reasons, we conclude that the relevant date for the purposes of section 109A is the date on which a sentence of imprisonment is passed.

60. The construction of section 109A requires the Court to have regard to the language used having regard to its context and purpose. The purpose of section 109A is clearly rehabilitative in that it makes the imposition of a custodial sentence of imprisonment a last resort for a person aged between 16 and 21. This purpose is borne out by the speech of the Director of Social Welfare in moving the first reading of the bill by which section 109A was introduced into the Criminal Procedure Ordinance.[53] In that speech, he said:

61. This purpose is reflected in a passage from the judgment of Dyson LJ (as he then was) for the English Court of Appeal in R v Imran Hussain Ghafoor[55] at [31]:

62. The UK provision on which section 109A was modelled was, as noted in Wong Chi Fung (CFA) at [86], section 17(2) of the Criminal Justice Act 1948, which provided that:

63. That provision in the UK has been superseded by subsequent legislation. Section 17(2) of the Criminal Justice Act 1948 became section 19(2) of the Powers of Criminal Courts Act 1973, which was then repealed and replaced by section 1 of the Criminal Justice Act 1982. The material part of section 1 of the Criminal Justice Act 1982[56] was replaced by section 1(3A) of the Criminal Justice Act 1982 (enacted by the Criminal Justice Act 1988)[57] and is now found in section 89(1) of the Powers of Criminal Courts (Sentencing) Act 2000.[58] Thus, it is clear that in the UK, the statutory provisions now benchmark the relevant age to the date of conviction. For that reason, reference to cases from England and Wales in respect of current legislation is of limited assistance to the construction of section 109A.

64. As a matter of language, the wording of section 109A is clear. It places a restriction on a court sentencing a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate. This refers, in our view, to a restriction by reference to the age of a defendant at the time when he is sentenced by a court. It is his remand into prison on the passing of a sentence of imprisonment that would frustrate the statutory purpose of the section of dealing with him by some other means so as to facilitate his rehabilitation and so it is the date of the imposition of that sentence that is material under section 109A.

65. This conclusion is also reinforced by reference to another relevant statutory provision of like character. Section 4 of the Training Centres Ordinance[59] provides expressly that a sentence of detention in a training centre may be possible if an offender is, in the opinion of the court, not less than 14 but under 21 years of age “on the day of his conviction”. That express reference to the date of conviction may be contrasted with the restriction, in section 109A, on sentencing a person over 16 and under 21 years of age to imprisonment.

66. Although the editors of Archbold Hong Kong 2018 state, at [5-143], that the date for determining a person’s age for the purpose of section 109A is the date of conviction, that statement is supported by reference to R v Danga,[60] a case decided by the Court of Appeal of England and Wales. That decision is, however, based on a statutory provision different to section 109A. In Danga, the relevant provision was section 1(3A) of the Criminal Justice Act 1982, as amended by the Criminal Justice Act 1988. That section was expressed in terms of a restriction on custodial orders that could be made “where a person under 21 years of age is convicted or found guilty of an offence” (emphasis added). Those italicised words plainly point to the date of conviction as the relevant date for consideration. Given the difference in the statutory language between section 1(3A) of the 1982 Act and section 109A, it is doubtful that the statement in Archbold can be supported by reference to Danga. We shall, however, return to Danga later in this judgment as it provides useful guidance as a matter of principle to the approach where an offender reaches a particular threshold age between the dates of offending, conviction and sentence.

67. Mr Pun referred to the decision of the Court of Appeal of R v Hor Wai Ming & Anor[61] as supporting his submission that the date of conviction is the relevant date for section 109A. However, the question of construction of section 109A before this Court was not before the Court of Appeal in that case. Instead, the appellants there were 15 and 16 at the date of conviction (29 September 1984) so that, when the case was before the Court of Appeal (16 January 1985), they were still clearly under the age of 21 and so the issue of the relevant date for section 109A did not arise. There is no discussion in the judgment of Kempster JA of the proper construction of section 109A and so the decision does not, in our view, assist on the issue before us.

68. Mr Lee also referred to and relied on the dissenting opinion of Lord Salmon in Baker v The Queen,[62] a Privy Council case on appeal from Jamaica concerning the construction of section 29(1) of the Juveniles Law.[63] There, the appellants had committed murder when aged 17½ but were convicted when aged 18. The majority, in an opinion delivered by Lord Diplock, concluded that the wording of sub-section (1) made it plain that the time for ascertaining whether the appellants were to be treated as juveniles was the date on which the sentence was passed and not the date of the offence. However, in a powerful dissent, Lord Salmon considered that the language of the sub-section was capable of two meanings and preferred the construction which referred to the age of the offender at the date of the offence. He considered that adopting a meaning which made a death sentence mandatory for a person who committed murder between the ages of 8 and 18 so long as he was sentenced after he reached the age of 18 would lead to “shocking and indeed barbarous results”,[64] such as where two boys of the same age committed murder but were tried and convicted on different dates so that one was sentenced before 18 but the other after.

69. Disregarding the fact that Lord Salmon’s was a lone dissenting opinion in Baker, we do not consider that case provides assistance in relation to section 109A. It concerns a case of capital punishment and that context therefore provides the basis for Lord Salmon’s dissent. It was thus a case not so much about promoting the offender’s rehabilitation as about sparing young offenders from being executed. That is simply not a concern with which we are faced in construing section 109A. We shall, however, address below the approach that courts should adopt when a defendant crosses a relevant age threshold between the dates of offending, conviction and sentence.

70. Mr Lee and Mr Pun both relied on the decision of the New Zealand Supreme Court in R v Mist,[65] in which Lord Salmon’s dissenting judgment in Baker was endorsed. That case concerned the proper construction of section 75 of the Criminal Justice Act 1985.[66] In their joint judgment, Elias CJ and Keith J wrote (at [39]):

71. Mr Lee and Mr Pun also relied on Article 12 of the Hong Kong Bill of Rights, which materially provides that “Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.” This is in the same terms as Article 15 of the International Covenant on Civil and Political Rights and was part of the body of human rights law which led the New Zealand Supreme Court to construe section 75 of the Criminal Justice Act 1985 as requiring to be read with section 4(2) of the same act[67] and therefore as referring to the offender’s age on the date of the offence.[68]

72. We do not think that the decision in Mist provides a basis for concluding that section 109A means otherwise than what its clear wording indicates, namely that no court may sentence a person over the age of 16 but under 21 to imprisonment unless of the opinion that no other method of dealing with him is appropriate. The statutory provisions under consideration in Mist were in different terms to section 109A and clearly related the relevant age to the date of conviction. In contrast, for the purposes of section 109A, a court in Hong Kong takes the offender at his age when he appears before the court for sentence and at the time when that court might be minded to impose a sentence of imprisonment on him.

73. Similarly, we do not consider that Article 12 of the Hong Kong Bill of Rights supports the appellants’ submissions as to the construction of section 109A. The prohibition on a heavier penalty than one applicable at the time when the offence is committed is not infringed by construing the age in section 109A by reference to the date of sentence. The maximum sentence that can be imposed is that existing at the date of the offence. In the case of taking part in an unlawful assembly that maximum is 5 years’ imprisonment (if convicted on indictment) or a fine at level 2 and 3 years’ imprisonment (if summarily convicted).[69] Construing section 109A by reference to the age of the offender at the date of sentence does not increase the potential penalty for the offence.

74. We turn now to the question of the approach that courts should adopt when a defendant crosses a relevant age threshold between the dates of offending, conviction and sentence. As the Court stated in Wong Chi Fung (CFA) at [84], the age of an offender is always a relevant mitigating factor in sentencing. Where, therefore, a defendant is just under the age of 21 when he commits the offence, the fact that he has turned 21 shortly thereafter and before conviction or sentence should be taken into account by the sentencing court. As the court held in Danga:

75. This approach has consistently been adopted in England and Wales, in particular in relation to sentencing an offender for an historic offence prosecuted long after its commission: see, for example, R v Cuddington[71] where the fact that but for the passage of time between offence and conviction a lesser punishment would have been imposed is described as “a powerful factor” to be taken into account in sentencing. Other examples illustrating the same approach include: R v Dashwood[72] and R v Imran Hussain Ghafoor.[73]

76. For the above reasons, we conclude that, for the purposes of section 109A, it is the defendant’s age at the date of sentence that is relevant. However, if a young person has turned 21 years of age between the date of offending or conviction and the date of sentence, the fact of his youth will be a powerful factor in determining the appropriate sentence for him. All the more so should this be the case where an offender aged under 21 years of age at the date when an original sentence is imposed turns 21 before a later review of that sentence by the Court of Appeal. Although the provisions of section 109A do not strictly apply to such a person (so that the court is not strictly obliged to obtain the prescribed information), the sentence he should receive will, in most cases, be the same as if section 109A had applied to him. There will, of course, be exceptions (and this Court has already noted that section 109A may, in an appropriate case, be dispensed with)[74] but, in practical terms, this will mean that a young offender who has turned 21 by the time of sentencing should only be sent to prison as a matter of last resort and, for that purpose, the court will have to be alive to the possibility it may need to obtain reports on the young person in question. This approach reflects a wider principle that a court should have regard to common sense when sentencing a young person: see, in this context, Wong Chun Cheong v HKSAR.[75]

77. Returning to the present case, the provisions of section 109A did not, in our view, apply to the 5^th appellant who was already 21 at the date of sentence by the magistrate. Nor, strictly, did they apply to the 6^th appellant at the time of the passing of sentence by the Court of Appeal on the review of his sentence, since by then had reached the age of 21. However, applying the approach set out in Danga (see above), we consider that, conceptually, the Court of Appeal should have imposed sentences on the 5^th and 6^th appellants that were in substance much the same as those which would have been imposed on an offender who was just under 21 years of age. In practice, this means that the Court of Appeal should only have imposed sentences of imprisonment if of the opinion that there was no other appropriate means of dealing with them. Since there was no reference in the Court of Appeal’s judgment in this case to section 109A, or indeed to the fact that the 5^th and 6^th appellants had passed the threshold age of 21 years between the date of the offence and the review of sentence, we are satisfied that there was a departure from an established norm.

78. In view of our conclusion (in Section C.2 above) that the Court of Appeal erred in retrospectively applying the Wong Chi Fung (CA) guidelines to the appellants, the appeals must be allowed and the sentences of imprisonment imposed by the Court of Appeal set aside. For this reason, it is unnecessary to determine whether the Court of Appeal’s failure to have regard to the conceptual approach laid down in section 109A as a relevant factor in sentencing the 5^th and 6^th appellants is a sufficient reason on its own for allowing their appeals on the basis of substantial and grave injustice.

79. In the light of our conclusions on Issues (1) and (2) above (see Sections C.1 and C.2 of this judgment), the appeals must be allowed and the sentences of imprisonment imposed by the Court of Appeal set aside. This is not, however, on the basis that the Court of Appeal should not have interfered with the magistrate’s sentences of community service orders but, rather, on the basis that, although it was justifiable for the Court of Appeal to substitute sentences of imprisonment, they should not have applied the new Wong Chi Fung (CA) guidelines in fixing the length of the terms of imprisonment.

80. Instead, having concluded that the magistrate had erred in principle and imposed manifestly inadequate sentences, it would be appropriate for the appellants to be re-sentenced on the basis of the sentencing regime for the offence of taking part in an unlawful assembly prior to the new guidelines in Wong Chi Fung (CA).

81. In Wong Chi Fung (CFA), we made the observation at [115] that the Court of Final Appeal is not a sentencing court and that the function of sentencing is primarily that of the convicting court of trial, subject to review by the Court of Appeal. That would militate in favour of a remitter to the Court of Appeal to pass the appropriate sentences. However, it is clearly within the Court’s jurisdiction to make such orders as the Court of Appeal could on the review of sentence[76] and, given the history of this case and the fact that the relevant events took place over 4 years ago, rather than subject all concerned to yet another hearing (which may even give rise to a further appeal), we took the view that the better course was for the Court to resolve the question of the appropriate sentence rather than remit the matter to the Court of Appeal.

82. For the following reasons, we concluded that we should substitute, in place of the Court of Appeal’s sentences of imprisonment, sentences of imprisonment corresponding to the period of time already served in prison by each prior to the grant of bail.

83. In arriving at this result, we took into account that sentencing is an art and not a science and that the determination of a suitable sentence for taking part in an unlawful assembly is not something that can be arrived at by the application of any formula. Previous sentences in other cases have inevitably varied because of the fact sensitive nature of the sentencing process. We refer again to the illustrations of the range of sentences for this offence set out in Wong Chi Fung (CFA) at [95].

84. As we have already indicated (in Section C.1 above), we consider that the degree of violence involved in the present case, the number of persons involved, the duration of the unlawful assembly and the injuries and damage inflicted merited immediate custodial sentences. Having regard to the previous cases, we consider the closest factual parallel to be the case of HKSAR v Tai Chi Shing & Ors.[77] This would suggest an upper end of appropriate sentence for this offence, prior to the guidelines laid down in Wong Chi Fung (CA) of 6 months. On that basis, allowing for time off for good behaviour (approximately one-third), the maximum period of incarceration would be around 4 months for each of the appellants.

85. Since five of the appellants have served more than 4 months,[78] there is no realistic possibility they would be sentenced to a term of imprisonment that would require them to be remanded into custody again. The remaining eight appellants who have served 3 months and 9 days[79] include the 12^th appellant who pleaded guilty and who should therefore only have received a sentence of no more than 4 months in any event, so he would not receive a sentence that would require him to go back to prison. The other appellants have therefore served terms of imprisonment which are less than 3 weeks’ shy of the period which would entitle them to be released (assuming an original sentence of 6 months). Since some discount should have been afforded for the fact that this was a sentence review, they should also not be sentenced to terms that would require them to return to prison. In this regard, it is relevant to note that the Secretary for Justice, in his written submissions before the Court of Appeal on the review of sentence, initially asked that court to substitute “a short custodial sentence” in place of the community service orders.[80] This request is relevant to the question of any discount that would have been afforded for the fact that the sentences were being increased on review.

86. Ordinarily, of course, the appellants having taken part in the same unlawful assembly and having been regarded by both the magistrate and Court of Appeal to be equally culpable, they could have expected to receive the same sentence. The fact that they have ultimately served different lengths of sentence simply reflects the fact that their release from prison pending this appeal occurred on different dates because of the timing of their applications for bail.

87. For these reasons, the Court allowed each of these appeals and made the orders set out in paragraph [4] above.

88. We would finally just emphasise that, as Wong Chi Fung (CFA) made clear, guidance for the future was provided by the Court of Appeal in that case in respect of offences involving unlawful assembly. We reiterate the much stricter view to be taken when sentencing in this context where disorder or violence is involved.

[1] (Cap.221).

[2] [2018] HKCFA 4; (2018) 21 HKCFAR 35; Judgment dated 6 February 2018 (“Wong Chi Fung (CFA)”).

[3] Namely, whether a police officer carrying out duties within the precincts of LegCo is an “officer of the Council” for the purposes of the Legislative Council (Powers and Privileges) Ordinance (Cap.382): see HKSAR v Leung Hiu Yeung [2018] HKCFA 2; (2018) 21 HKCFAR 20.

[4] CAAR 3/2016, Reasons for Judgment (11 September 2017) at [129(1)].

[5] (Cap.245).

[6] (Cap.200).

[7] (Cap.382).

[8] Charge 3, of which the 1^st appellant was convicted and the 2^nd appellant acquitted, was the subject of the appeal in FACC 5/2017 (see FN 3 above) and it is not necessary to consider Charges 3 and 4 further.

[9] In ESCC 3658/2014, before Mr Jason Wan Siu-ming.

[10] Statement of Findings (“SoF”) at [36]; the magistrate concluded that, since Charge 2 was based on the same facts as Charge 1, a conviction on Charge 2 would be repetitive and unfair to the appellants.

[11] The 1^st appellant was also sentenced to 120 hours of community service on Charge 3, which sentence was ordered to run concurrently with the sentence on Charge 1.

[12] The 12^th appellant received the same sentence in respect of Charge 2, to run concurrently with his sentence on Charge 1.

[13] The 5^th appellant was born on 18 July 1994 and the 6^th appellant was born on 30 October 1995.

[14] By reason of section 81C(1)(a) of the Criminal Procedure Ordinance, the review could not proceed until the conclusion of the appeals against conviction.

[15] In CAAR 3/2016, before Yeung VP, Poon and Pang JJA.

[16] Again, by reason of section 81C(1)(a) of the Criminal Procedure Ordinance.

[17] This was the appeal in FACC 5/2017 (see FN3 and FN7 above).

[18] The review of sentence in respect of the 1^st appellant’s conviction on Charge 3 was adjourned pending the judgment of this Court in FACC 5/2017.

[19] In CAAR 4/2016, in which the Secretary for Justice was seeking to review sentences of community service orders imposed on the three defendants in that case.

[20] In FAMC 43-55/2017 (Ma CJ, Ribeiro & Fok PJJ).

[21] See Wong Chi Fung (CFA) at [43].

[22] Being the guidelines laid down by the Court of Appeal and approved by in Wong Chi Fung (CFA).

[23] CA Reasons at [76].

[24] Although they were respondents in the review, we shall for consistency refer to them as the appellants in this judgment.

[25] CA Reasons at [138]; in this regard, as to the facts, see also CA Reasons at [25] to [27].

[26] CA Reasons at [139].

[27] CA Reasons at [140].

[28] CA Reasons at [142].

[29] CA Reasons at [143].

[30] CA Reasons at [144].

[31] ESCC 3658/2014, Reasons for Sentence, 19 February 2016 (“RS”) at pp.3S-4R and 5O-5T.

[32] RS at pp.4T-5N.

[33] [1995] 1 HKCLR 251.

[34] Case for the 2^nd and 6^th Appellants at [47(5)], referring to a newspaper report of the sentences.

[35] CA Reasons at [76] to [80] recording the Secretary for Justice’s grounds of application.

[36] Represented by Mr Martin Lee SC and Mr Jeffrey Tam.

[37] Case for the 3^rd, 5^th, 10^th, 11^th and 12^th Appellants at [32].

[38] Represented by Mr Philip Dykes SC and Mr Douglas Kwok.

[39] (Cap.378).

[40] Represented by Mr Hectar Pun SC and Mr Anson Wong Yu Yat.

[41] An unreported decision of the European Court of Human Rights (Applications Nos. 4966/13 & 5550/15), decided on 30 January 2018 and therefore after Wong Chi Fung (CFA).

[42] Represented by Mr Osmond Lam and Ms Jacquelyn Ng.

[43] Case for the 7^th and 8^th Appellants at [26].

[44] [2016] 2 HKC 436.

[45] [2014] 2 HKLRD 777.

[46] Wong Chi Fung (CA) at [18].

[47] Appearing with Mr Jonathan Man, SADPP, Mr Derek Lau, SPP, and Ms Annie Li, PP.

[48] Wong Chi Fung (CFA) at [84] and [86].

[49] Wong Chi Fung (CFA) at [87] to [90].

[50] 5^th Appellant’s printed case at [83] and [84].

[51] 6^th Appellant’s printed case at [35] to [36] and [34] respectively.

[52] Printed Case for the Respondent at [63].

[53] Young Offenders (Miscellaneous Provisions) Bill 1967.

[54] Hansard (1 November 1967) at p.448.

[55] [2003] 1 Cr. App. R. (S.) 84, a case concerning the Powers of Criminal Courts (Sentencing) Act 2000.

[56] Which referred to “Where a person under 21 years of age is convicted or found guilty of an offence …”.

[57] Similarly referring to a person under 21 years of age being “convicted or found guilty of an offence”.

[58] Also referring to a person “aged under 21 when convicted of the offence …”.

[59] (Cap.280). Section 4(1) materially reads: “Where a person is convicted of an offence punishable with imprisonment, then if on the day of his conviction he is in the opinion of the court not less than 14 but under 21 years of age, …, the court may, in lieu of any other sentence, pass a sentence of detention in a training centre.”

[60] [1992] 1 QB 476.

[61] [1985] 1 HKC 30.

[62] [1975] AC 774.

[63] Relevantly providing: “Sentence of death shall not be pronounced on or recorded against a person under the age of 18 years, but in place thereof the court shall sentence him to be detained during Her Majesty’s pleasure, …”.

[64] [1975] AC 774 at 790H.

[65] [2006] 3 NZLR 145.

[66] Section 75 provided that it would apply to a person who was not less than 21 years of age and who was “convicted of an offence”.

[67] Section 4(2) materially provided that: “no court shall have power, on the conviction of an offender of any offence, to impose any sentence or make any order in the nature of a penalty that it could not have imposed on or made against the offender at the time of the commission of the offence, except with the offender’s consent”.

[68] R v Mist [2006] 3 NZLR 145 at [5], [62], [88] and [107].

[69] See Wong Chi Fung (CFA) at [93].

[70] R v Danga [1992] 1 QB 476 at 481D-E. The restrictions in section 1(4) and (5) of the Criminal Justice Act 1982 apply to a person under 21 but not to a person over 21.

[71] (1995) 16 Cr. App. R. (S.) 246 at 250.

[72] (1995) 16 Cr. App. R. (S.) 733 at 736-737.

[73] [2003] 1 Cr. App. R. (S.) 84 at [31].

[74] Wong Chi Fung (CFA) at [90].

[75] (2001) 4 HKCFAR 12, a case concerning a “plainly trivial” offence (participating in a lion dance in a public place without a permit) in which, by reason of the training centre order imposed by the magistrate, the appellant was exposed to the risk of detention for up to five times the statutory maximum prescribed for the offence.

[76] Court of Final Appeal Ordinance (Cap.484), section 17(2).

[77] [2016] 2 HKC 436.

[78] The 1^st, 4^th, 6^th, 9^th and 10^th appellants.

[79] The 2^nd, 3^rd, 5^th, 7^th, 8^th, 11^th, 12^th and 13^th appellants.

[80] CA Reasons at [80].