[JURIST] The five-member Hong Kong Court of Final Appeal [official website] on Tuesday unanimously reversed [judgment] the August 2017 order sentencing the pro-democracy 2014 Umbrella Movement protesters Joshua Wong, Nathan Law and Alex Chow, quashing their sentences and setting them free.
In July 2016, Wong and Chow were found guilty of participating in an unlawful assembly contrary to § 18 of the Public Order Ordinance, Cap 245, while Law was found guilty of inciting others to take part in an unlawful assembly. Wong and Law were sentenced to 80 hours and 120 hours of community service, respectively, while Chow was sentenced to three weeks imprisonment suspended for one year. Finding the punishment to be inadequate, the Court of Appeal, upon petition for review from the Secretary of Justice, increased those sentences in October 2016 to six, eight and seven months for Wong, Law, and Chow, respectively.
The court quashed the increased sentences Tuesday finding that the Court of Appeal exceeded its authority in ascribing "a different weight to a factor properly taken into account by the sentencing judge in arriving at a sentence that is otherwise within the range of sentences appropriate for the offence." The court continued:
The magistrate was plainly aware of the factor of deterrence, the large scale nature of the assembly, the risk of violent clashes, the Appellants' knowledge of the likelihood of clashes between the participants and the security guards and the police and the inevitability that at least some security guards would be injured, and the fact that there was a prior lawful assembly and that the protesters did not have an absolute right to enter the forecourt. The weight to be accorded to the Appellants' personal circumstances and motives, as well as their expression of remorse, was strictly a matter within the magistrate's discretion unless the sentences the magistrate imposed were manifestly inadequate or out of line with the range of sentences imposed in practice.The court concluded that the magistrate's sentences were not in fact manifestly inadequate, since "there was no appellate court guidance requiring an immediate custodial sentence for a case of this nature" at the time of the sentences and because "a community service order was a sentence frequently passed in respect of unlawful assemblies" such as the one in question here.
Invalidating the sentences of imprisonment imposed by the Court of Appeal and reinstating those imposed by the magistrate, the court warned [press summary] that there is a new appellate guidance now in place from the Court of Appeal: "future offenders involved in large scale unlawful assemblies involving violence will be subject to the new guidelines rightly laid down by the Court of Appeal."