Case Detail

FAMC No. 12 of 2020

[2021] HKCFA 18

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 12 OF 2020 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 164 OF 2018)

___________________________

BETWEEN
	HKSAR	Respondent
	and
	LEUNG TIN KEI (梁天琦) (D1)	1^st Applicant
	LO KIN MAN (盧建民) (D3)	2^nd Applicant (Applicant)
	WONG KA KUI (黃家駒) (D5)	3^rd Applicant

___________________________

Appeal Committee: Mr Justice Ribeiro Acting CJ, Mr Justice Fok PJ and Mr Justice Stock NPJ

Date of Hearing and Determination: 17 May 2021

Date of Reasons for Determination: 18 May 2021

________________________________________

REASONS FOR DETERMINATION (SENTENCE)

________________________________________

Mr Justice Fok PJ:

1. At the hearing of the applicant’s application for leave to appeal to the Court of Final Appeal against his conviction and sentence, we granted leave to appeal in respect of the former but dismissed the application in respect of the latter. The terms on which leave to appeal was granted in relation to conviction are set out in the Appeal Committee’s Determination in FAMC 12/2020 [2021] HKCFA 17, dated 17 May 2021. As we indicated at the conclusion of the hearing of the leave application, our reasons for dismissing the application for leave to appeal against sentence would be handed down on a later date. These are those reasons.

2. Following his conviction for the offence of riot, the applicant was sentenced by the trial judge to a term of 7 years’ imprisonment. His appeal to the Court of Appeal against that sentence was dismissed and his application for certification of questions of law in respect of his sentence appeal refused by that court. By his notice of application, the applicant applies for leave to appeal to the Court of Final Appeal on the basis that four questions of law of great and general importance are involved and on the basis that, by the term of imprisonment imposed, substantial and grave injustice has been done to him.

3. The four questions of law for which leave to appeal is sought are:

(1)  Question 1:
“In sentencing the defendant being convicted of riot, where the trial judge or jury did not expressly find that the defendant was involved in planning or organising the riot, be it premeditated or not, whether the relevant principles of law as applied in Hong Kong permit the court to impose a deterrent sentence on the defendant (i.e. a starting point of 7 years’ imprisonment) in the absence of the said finding?”
(2)  Question 2:
“Where the defendants were being tried together for riots which took place in the same area on the same night (Counts 3 and 4), and the evidence demonstrated that the violence involved in Count 4 was more serious than in Count 3, whether the court is permitted to impose a higher starting point on the 3^rd defendant being charged in Count 3 than the 1^st and 5^th defendants being charged in Count 4?”
(3)  Question 3:
“Where both the trial judge and the Court of Appeal found that the violence involved was less serious than another case of riot happened a day after, namely, HKSAR v Yeung Ka Lun [2019] 1 HKC 296 which involved arson during the riot, whether the principle of consistency as applied in Hong Kong should be adopted and therefore the defendant ought to be given a lower, if not, broadly the same starting point (i.e. a starting point of 5 years’ imprisonment) as in HKSAR v Yeung Ka Lun [2019] 1 HKC 296?”
(4)  Question 4:
“Unlike the defendant in HKSAR v Tang Ho Yin [2019] 3 HKLRD 502 who was found to have thrown bricks at the police officers during the riot, where the trial judge ruled that there was no direct evidence showing that the defendant had thrown bricks at the police officers, whether the principle of consistency as applied in Hong Kong should be adopted and therefore the defendant ought to be given a lower, if not, broadly the same starting point (i.e. a starting point of 5 years’ imprisonment) as in HKSAR v Tang Ho Yin [2019] 3 HKLRD 502?”

4. These questions of law are said, in the skeleton submissions for the applicant (at [5]), to be distilled as follows:

“Are the sentencing guidelines in riot sufficiently clear and specific enough in Hong Kong?
(i) If so, should consistency in sentencing override the sentencing courts’ unfettered discretion in imposing sentences on a case-by-case basis?
(ii) If not, what are the sentencing guidelines in riot?”

5. It is also contended on behalf of the applicant that substantial and grave injustice has been done on the basis of departures from the following norms, namely that the Court of Appeal erred in one or more of the following respects:

(1)  in refusing to follow “the line of authority, such as, HKSAR v Yeung Ka Lun [2019] 1 HKC 296” in sentencing;
(2)  in holding that the riot in Count 3 was premeditated;
(3)  further or alternatively to (2) above, in failing to take into account that there was an absence of evidence to show that the applicant had any role or participation in planning or organising the riot.

6. On the basis of these alleged normative departures, it is contended that the sentence imposed was manifestly excessive.

7. As to the application for leave on the basis that questions of law of great and general importance are involved, it is appropriate to repeat the clear statement of principle in the Court of Final Appeal’s judgment in Secretary for Justice v Wong Chi Fung:

“The Court of Final Appeal is not a sentencing court and appeals to this Court on points of sentencing principle are among ‘the rarest of cases’. The function of sentencing is primarily that of the convicting court of trial, subject to review by the Court of Appeal, whether on an appeal by the convicted person or on review on the application of the Secretary for Justice. The Court of Appeal is therefore the appropriate court to determine if there is a need for appellate guidance as to the levels of sentence for a particular offence and, if so, to set those levels of sentence.”[1]

8. We would emphasise, again, that appeals to the Court of Final appeal on sentence should only be as to matters of sentencing principle and, even then, such appeals should only be “the rarest of cases” (as stated in the Court’s decision in Seabrook v HKSAR, [2] referred to in the omitted footnote). The omitted footnote also provides examples of cases where appeals on points of sentencing principle have been heard by the Full Court, namely the approach to the imposition of a training centre order[3] and the constitutionality of the mandatory life sentence for murder.[4]

9. Here, the questions of law as framed are self-evidently fact sensitive and specific to the circumstances of this individual case. As such, they are not questions of general application at all, as is reinforced by the fact that the distillation of the questions in the applicant’s skeleton submissions reveals an inability to articulate the questions otherwise than as mere complaints about the length of the particular sentence imposed in this case.

10. The sentencing guidelines that were applied here were those laid down by the Court of Appeal in Secretary for Justice v Wong Chi Fung[5] and approved by the Court of Final Appeal on appeal from that decision[6]: see the Court of Appeal’s judgment at [79]. There is no basis for disturbing those guidelines or revisiting them in the context of this particular case.

11. As to the specific sentence imposed on the applicant, the Court of Appeal (at [82]) concluded, in agreement with the trial judge, that the riot forming the basis of the applicant’s conviction:

“was large in scale, lasted for a long period of time, had large numbers of offenders and was premeditated to a certain extent. The case happened in Mongkok which was a busy area with lots of passers-by. The flows of people were then even heavier because it was the night of Lunar New Year Day. The incident must have caused very great danger and threat to public order and personal safety and property of the general public. The rioters targeted at [sic] the police in their attacks, and using their vast numbers to attack police officers by extreme violence out of no reason. In addition, quite a number of rioters frantically scolded the police and even stirred up the emotion of the crowd gathered at the scene, making the situation escalate and continue.”

12. If the conviction is sustained, then given the degree of participation of the applicant in that riot described in the trial judge’s Reasons for Sentence at [55] (which the Court of Appeal set out at [83]), this was plainly a case in which a deterrent sentence was appropriate.

13. The case of HKSAR v Yeung Ka Lun [2019] 1 HKC 296 was cited to the Court of Appeal and taken into account in its judgment. Acknowledging (at [84]) that the violence perpetrated by the applicant was “obviously less serious than what was involved in Yeung Ka Lun”, the Court of Appeal rightly noted that “the background and facts of the riot offence depend on each individual case”. The particular sentence in Yeung Ka Lun can only have provided limited guidance and does not support the conclusion that the sentence imposed here was, as contended, manifestly excessive. Comparisons between one case and another of the weight to be attributed to particular factors to be taken into account in sentencing are essentially matters for the Court of Appeal rather than the Court of Final Appeal and, as reiterated above, appeals to the Court of Final Appeal on sentencing must be “the rarest of cases”.

14. For these reasons, we concluded that the application for leave to appeal against sentence is not reasonably arguable. Had the application for leave been confined to this aspect of the case, it would have been appropriately made the subject of a Rule 7 summons and dismissed under that rule.[7]

(R A V Ribeiro)	(Joseph Fok)	(Frank Stock)
Acting Chief Justice	Permanent Judge	Non-Permanent Judge

Leave to appeal against Conviction

Ms Gladys Li SC (on a pro bono basis) leading Mr Lawrence Lau (assigned by the Director of Legal Aid), Mr Kin Lau and Mr Jason Ko (both on a pro bono basis), instructed by Bond Ng Solicitors, for the Applicant

Ms Vinci Lam DDPP, Mr Ivan Cheung ADPP (Ag.) and Mr Douglas Lau PP, of the Department of Justice, for the Respondent

Leave to appeal against Sentence

Mr Lawrence Lok SC leading Mr Lawrence Lau (both assigned by the Director of Legal Aid) and Ms Tina Mok (on a pro bono basis), instructed by Bond Ng Solicitors, for the Applicant

Ms Vinci Lam DDPP, Mr Ivan Cheung ADPP (Ag.) and Mr Douglas Lau PP, of the Department of Justice, for the Respondent

[1] (2018) 21 HKCFAR 35 at [115] (footnote omitted).

[2] (1999) 2 HKCFAR 184 at 186.

[3] Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12.

[4] Lau Cheong v HKSAR (2002) 5 HKCFAR 415.

[5] [2018] 2 HKLRD 699 at [135].

[6] (2018) 21 HKCFAR 35 at [121].

[7] Hong Kong Court of Final Appeal Rules (Cap. 484A).

FAMC No. 12 of 2020

[2021] HKCFA 17

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 12 OF 2020 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 164 OF 2018)

___________________________

BETWEEN
	HKSAR	Respondent
	and
	LEUNG TIN KEI (梁天琦) (D1)	1^st Applicant
	LO KIN MAN (盧建民) (D3)	2^nd Applicant (Applicant)
	WONG KA KUI (黃家駒) (D5)	3^rd Applicant

___________________________

Appeal Committee: Mr Justice Ribeiro Acting CJ, Mr Justice Fok PJ and Mr Justice Stock NPJ

Date of Hearing and Determination: 17 May 2021

____________________

DETERMINATION

____________________

Mr Justice Ribeiro Acting CJ:

1. For reasons which will be handed down separately, we dismiss the application for leave to appeal against sentence.

2. The applicant was convicted of the offence of riot contrary to section 19 of the Public Order Ordinance (Cap 245) arising out of incidents involving public disorder occurring in Portland Street, Mongkok, on 8 and 9 February 2016. This Determination concerns his application for leave to appeal against conviction.[1]

3. Leave to appeal is sought on the basis that ten questions of great and general importance are involved in the decisions below. They are set out in the Annex to this Determination. The first four questions (Questions 1a-1d) concern the existence and nature (if any) of a disputed requirement for proof of a “common purpose” among the persons assembled. The next four questions (Questions 2a-2d) concern the disputed applicability of the doctrine of joint enterprise to the offence of riot. Then two questions (Questions 3a and 3b) are advanced seeking to challenge the constitutionality of the offence of riot.

4. We grant leave only in respect of the following questions, namely, Questions 1a to 1d, Questions 2a and 2d. We dismiss the application regarding the other proposed questions as too case-specific (Questions 2b and 2c) and as not reasonably arguable (Questions 3a and 3b).

5. The applicant also seeks leave to appeal contending that it is reasonably arguable on three separate grounds that there has been a substantial and grave injustice. We grant leave only on one of those grounds, namely, the allegation referred to in the Applicant’s skeleton argument (at §57 et seq) as “SGI-2”, that a material irregularity arises in that the indictment does not mention any potential participants other than the co-defendants who were not convicted. We dismiss the application in relation to the other proposed “substantial and grave injustice” grounds.

6. The appeal will be listed for hearing on 5 October 2021.

(R A V Ribeiro)	(Joseph Fok)	(Frank Stock)
Acting Chief Justice	Permanent Judge	Non-Permanent Judge

Leave to appeal against Conviction

Ms Vinci Lam DDPP, Mr Ivan Cheung ADPP (Ag.) and Mr Douglas Lau PP, of the Department of Justice, for the Respondent

Leave to appeal against Sentence

Mr Lawrence Lok SC leading Mr Lawrence Lau (both assigned by the Director of Legal Aid) and Ms Tina Mok (on a pro bono basis), instructed by Bond Ng Solicitors, for the Applicant

Ms Vinci Lam DDPP, Mr Ivan Cheung ADPP (Ag.) and Mr Douglas Lau PP, of the Department of Justice, for the Respondent

ANNEX to DETERMINATION

Question la [Leave granted]

In order to establish the offence of riot under section 19 of the Public Order Ordinance (Cap 245) (“POO”), whether proof of the unlawful assembly required that at least 3 persons be assembled together for a “common purpose” which was distinct from the intention of committing the statutorily prescribed acts, namely, conducting oneself in a disorderly, intimidating, insulting or provocative manner; and therefore whether the Trial Judge had erred in law in directing the jury that the element of “common purpose” is satisfied if they are satisfied that the Applicant assembling together with other defendants had the intention of conducting themselves in a disorderly, intimidating, insulting or provocative manner?

Question 1b [Leave granted]

If the answer to Question 1a is in the affirmative, whether there is a legal requirement that the said prescribed acts and the breach of the peace must be committed with the specific intent to achieve the “common purpose” by such means?

Question 1c [Leave granted]

For the common purpose to be a substantive element in the offence of riot, whether the Prosecution is required legally to prove that such alleged common purpose must be shared, mutually understood or communicated between the accused to a standard that there is a meeting of minds, or the Prosecution is simply required to prove that the same purpose was held individually by the accused without the need to prove further mutual understanding or communication?

Question ld [Leave granted]

Whether it is a distinct element of riot under section 19 of POO that the defendants must have the mutual intention to assist each other, by force if necessary, against any person who might oppose them in the execution of the common purpose?

Question 2a [Leave granted]

Whether the doctrine of joint enterprise applies to the offences under sections 18 and 19 of the POO?

Question 2b [Leave refused]

Whether the direction given by the Trial Judge “in vacuo” on how a plan or agreement for a joint offence can be reached on impulse, and without any reference to any particular fact or facts which were put in evidence by the Prosecution or admission by any of the persons named in the 3^rd Charge was misleading, in that she did not repeat her direction that any inferences to be drawn against any defendant named in the 3^rd Charge including the Applicant must be based upon facts of which the jury were certain and the irresistible or only reasonable inference against each of the defendants was that there was a plan or agreement as to the common purpose and how it was to be achieved between the named defendants?

Question 2c [Leave refused]

Whether the said direction in effect enabled the prosecution to secure a conviction without having to prove the elements of the offences in sections 18 and 19 of the POO beyond reasonable doubt thus rendering the trial of the Applicant unfair, not in accordance with law or the principle of legality and in breach of the presumption of innocence?

Question 2d [Leave granted]

Whether a person could be found guilty of riot without specific conduct on his part falling under the prescribed conduct provided in sections 18 and 19, but merely by virtue of alleged encouragement through his presence?

Question 3a [Leave refused]

Whether the offence of riot as interpreted now by the Hong Kong Courts is unconstitutional in that it is arbitrary, contrary to Article 28 of the Basic Law and Article 5 of the Hong Kong Bill of Rights? Specifically, whether the “common purpose” as interpreted by the Court of Appeal and the element of “taking part” as understood are not legally certain?

Question 3b [Leave refused]

Whether the number of 3 as the minimum number of people required to form an unlawful assembly, and hence a riot, is too low and arbitrary?

[1] From the judgment of the Court of Appeal [2020] HKCA 275 (29 April 2020) dismissing the Applicant’s appeal against conviction and sentence after trial before Pang J and a jury in HCCC 408/2016 (18 May 2018). On 31 July 2020, the Court of Appeal [2020] HKCA 646, refused certification of questions put forward for the purposes of appeal.

HKSAR v. LO KIN MAN (盧建民)

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