HKSAR v Wong Chi Fung [2022] 1 HKLRD 1305, [2022] HKCA 239

Steven Kwan (with Charlotte Chan) represented the applicants in HKSAR v Wong Chi Fung [2022] 1 HKLRD 1305, [2022] HKCA 239.

A1 – 2 participated in an unauthorised public meeting of some 20,000 participants in Victoria Park in June 2020 to commemorate the “June 4th Incident”, prohibited by the Commissioner of Police based on public health concern due to COVID-19. They each pleaded guilty to one count of knowingly taking part in an unauthorised assembly, contrary to s.17A(3)(a) of the Public Order Ordinance (Cap.245). The Judge found that A1 as a political figure and A2 being a District Councillor had both made use of social media to “advertise” their presence at the meeting. They were sentenced to 10 months’ and 4 months’ imprisonment respectively. A1 – 2 applied for leave to appeal against their sentences. They argued that the Judge wrongly applied the sentencing principles for unlawful assembly; wrongly considered that there was risk of violence; that there was disparity between the sentences imposed by the Judge and those by another court on other defendants for the same unauthorised assembly; and that the sentences were manifestly excessive as the Judge ignored the benevolent motive of A1 – 2 and the peaceful nature of the meeting. At the time of sentence, A1 was serving a total of 17.5 months’ imprisonment for two similar offences. A1 further argued that the Judge failed to consider the *1306 totality of sentence properly in ordering A1’s sentence to run wholly consecutively to other sentences.

Held, granting leave to A1 and allowing A1’s appeal to the extent of substituting a sentence of 8 months’ imprisonment, 6 months to run consecutively to the other sentences, for the sentence imposed by the Judge, and refusing to grant leave to A2 and dismissing A2’s appeal, that:

• (1) Both unlawful assembly and unauthorised assembly were pre-emptive offences to prevent disruption to public order involving mass gathering. The Judge was entitled to adopt the sentencing principles applicable to unlawful assembly and to consider the context of the offence to assess its gravity. The risks of violence and to public health were real at the time of the offence (Secretary for Justice v Law Man Chung [2020] 4 HKLRD 954, Kwok Wing Hang v Chief Executive in Council (2020) 23 HKCFAR 518, Secretary for Justice v Kung Yat Kan Clifford [2021] 2 HKLRD 843, Secretary for Justice v Chung Ka Ho [2021] 2 HKLRD 1354, HKSAR v Shum Lester [2021] HKCA 943applied). (See paras.26 – 30.)
• (2) There was no disparity between the sentences imposed on A1 – 2, who played active roles in the unauthorised assembly, and the suspended sentences on other defendants by another Judge. It was not necessarily wrong in principle to impose different sentences given the substantial differences in the culpability and mitigating circumstances of different offenders (R v Ian Francis Fowler (1984) 6 Cr App R (S) 301applied). (See para.32.)
• (3) As for A1, this was the third time he committed similar offences and the present offence was committed while on bail. However, the appropriate starting point for A1 should be 12 months’ instead of 15 months’ imprisonment, reduced to a sentence of 8 months’ imprisonment given his guilty plea. (See paras.33 – 34.)
• (4) Whilst the Judge was entitled to adopt a higher starting point on the ground that A1 was a repeated offender, in considering totality, the Judge erred in ordering A1’s sentence to run wholly consecutively to other sentences on that same ground as that ground was already factored and reflected in the starting point. Six months out of A1’s 8 months’ imprisonment should run consecutively to the other sentences (HKSAR v Wong Cheung [2011] 5 HKLRD 171 applied). (See paras.37 – 39.)

[The above is excerpted from the headnote to the report in HKLRD.]