On 7 September 2018, the Court of Final Appeal unanimously allowed the appeal in Secretary for Justice v Ho Kit Wang, Chow Koot Yin Kole & Ors [2018] HKCFA 43.  The full reasons were handed down on 28 September 2018.

The appellants were initially sentenced to 80 to 150 hours’ community service orders (“CSOs”) by the magistrate for their involvement in the protest outside the Legislative Council Building on 13 June 2014, against the proposed development works in the North East New Territories New Development areas.  Subsequently, the Secretary for Justice successfully applied for a review of sentence to the Court of Appeal, pursuant to s 81A of the Criminal Procedure Ordinance (Cap 221).  The  CSOs were replaced with immediate custodial sentences of 13 months.

On 21 August 2018, the Appeal Committee granted leave to appeal to the Court of Final Appeal on 2 issues: [2018] HKCFA 13.

The Court of Final Appeal held that given the level of violence and the lack of genuine remorse on the part of the appellants, the magistrate had erred in principle and the CSOs were manifestly inadequate.  The Court of Appeal was therefore entitled to impose custodial sentences on review.

Nevertheless, the appeals were unanimously allowed on the ground that the Court of Appeal had erred in arriving at the new custodial sentences by retrospectively applying the new sentencing guidelines laid down in HKSAR v Wong Chi Fung [2017] 5 HKC 116.  The Court of Final Appeal then issued a stern reminder that, henceforth, a much stricter view will be taken when sentencing offences of unlawful assembly involving disorder and/or violence, pursuant to the Court of Appeal’s guidelines set out in Wong Chi Fung.

The Court of Final Appeal also held that for the purposes of s 109A of the Criminal Procedure Ordinance (Cap 221), it was the person’s age at the time of sentencing that is relevant.  However, where an appellant passed the threshold age of 21 years after the commission of the relevant offences, the Court should have regard to the conceptual approach laid down in s 109A. In most circumstances, the sentence imposed will be the same as that which would have been imposed had s 109A been formally applicable.

Osmond Lam and Jacquelyn Ng acted for the 7th and 8th Appellants, instructed by Messrs Sanny Kwong & Co.

The full judgment is available here.