Secretary for Justice v CMT
Poon CJHC, Chu and Pang JJA
30 October, 13 November 2020


D1 and D2 (Ds), aged 14 at the time of the offence, each pleaded guilty to a charge of unlawful assembly, which lasted over an hour and involved about 100 protestors. Most protestors were passive but some threw bricks and petrol bombs towards the police checkline. Properties were damaged but no injury was caused. The Magistrate found that the protestors were probably trying to obstruct the police from pushing forward instead of trying to injure the latter with their acts; the unlawful assembly was therefore not the most serious of its kind though it was large-scale and involved violence; and Ds’ roles were relatively passive. After calling for probation officer’s reports and social welfare officer’s reports on Ds, who had clear records, the Magistrate dismissed the charge against them under s.15(1)(a) of the Juvenile Offenders Ordinance (Cap.226) (the Dismissal Orders) and further committed them under s.34(1)(b) and (d) of the Protection of Children and Juvenile Ordinance (Cap.213) (the PCJO) to the care of their parents and placed them under the supervision of a social welfare officer for 12 months with special conditions (the CP Orders). The Secretary for Justice applied to review the Dismissal Orders and the CP Orders.

Held, allowing the application for review, setting aside the Dismissal Orders and CP Orders, and sentencing D1 and D2 to 12-month probation and 80 hours of community service respectively with conditions, that:

  1. Dismissing a charge meant that although the court was satisfied of the young offender’s guilt, no conviction would be recorded against him. It was the most lenient way of disposing of such offender. It did not have any punitive element or deterrence effect, thus tilting the balance emphatically towards the offender’s rehabilitation. Generally, the court would be persuaded to dismiss the charge only if the offence was trivial; or the circumstances in which the offence was committed were moderate or diminished the offender’s culpability significantly, such as where it involved no more than a fractional error of judgment or a sudden and wholly unexpected loss of control, or a single incident or act entirely out of the offender’s otherwise good character and behaviour; or there was very strong mitigation arising from the personal circumstances of the offender; and the offender was truly remorseful (R v Brown, ex parte Attorney General [1994] 2 Qd R 182 applied). (See para.20.)
  2. Before dealing with a child or juvenile by way of a care and protection order under s.34(1) of the PCJO, the court had to be satisfied that he fell within one or more of the four statutory criteria as set out in s.34(2). Where counsel advocated or a probation officer considered that such order was appropriate, he should provide the necessary assistance to the court, including indicating how the statutory criteria were met in the circumstances. It was unsatisfactory that this was not done here. It would not be sufficient to proceed simply on the basis that the offender needed care and protection in a general sense. (See paras.21–27.)
  3. The Magistrate’s finding that Ds played a relatively passive role without engaging in violence or encouraging others to do so was flatly contradicted by the evidence. Ds were seen at the front of the protestors for some time; D1 used an umbrella to shield other protestors who were moving barricades to charge at the police checkline from being identified; and D2 gave hand signals to those behind him, gesturing to them to halt or back off. The factual basis underpinning the Dismissal Orders and CP Orders, which focused exclusively on Ds’ rehabilitation and gave no weight to punishment and deterrence, could not stand. This was an error of principle entitling the Court of Appeal to interfere on review of sentence. (See paras.24, 31, 38, 47.)
  4. Because Ds had committed a serious offence, appropriate weight must be given to the sentencing factors of punishment, deterrence and condemnation despite their youth. In particular, since it was a large-scale unlawful assembly involving considerable violence, the Court’s guidelines in Secretary for Justice v Wong Chi Fung applied in full force. The continuous and vigorous application of deterrent sentences was essential to upholding the public interest involved in maintaining peace and safety in Hong Kong (Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 699, Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35, 律政司司長 對 SWS (CAAR 1/2020, [2020] CHKEC 865) applied). (See paras.39–42.)
  5. In balancing the gravity of the offence and Ds’ culpability against their personal circumstances, two particular features arising from the latter merited closer attention. First, Ds’ extreme youth at the time of the offence gave rise to their immaturity and impulsiveness, the susceptibility to undue influence through exposure to social media, the lack of sufficient self-discipline and control and careful thought about the serious consequences of breaking the law by committing the present offence. These considerations tended to moderate their culpability. Second, D1 had a history of mental health problems. Although there was no evidence to link her mental health issues with the commission of this offence, the Court could not ignore the real possibility that her mental conditions might significantly deteriorate and she might commit self-harm if a harsh sentence were to be imposed on her. Furthermore, Ds were both remorseful, which was a mitigating factor. (See paras.48–51.)
  6. Balancing all relevant factors, the Dismissal Orders and CP Orders were wrong in principle and manifestly inadequate. The appropriate sentence must have a sufficient punitive element and deterrence while also taking care of Ds’ rehabilitation and well-being. The public interest in recording the convictions were not outweighed by Ds’ concern of their effect (R v Patrick [2020] QCA 51 applied). (See paras.52–54.)
  7. After obtaining and considering probation officer’s reports and community service order suitability reports, immediate custodial sentences for Ds were not appropriate. Community service work on the site might exacerbate D1’s mental issues. Because of D1’s very special circumstances, a community service order was not suitable either. The remaining suitable option was probation. For D2, a probation order was too lenient and failed to sufficiently reflect his culpability, which was more serious than D1’s. Balancing fairly both punishment and deterrence on the one hand and rehabilitation on the other, a community service order, which filled the gap between a custodial sentence and a probation order, was the most suitable sentence for D2 (Secretary for Justice v Li Cheuk Ming [1999] 1 HKLRD 63, 律政司司長 對 SWS (CAAR 1/2020, [2020] CHKEC 865) considered). (See paras.61, 65, 68–70.)

Application for review of sentence

This was an application by the Secretary for Justice for review of the dismissal orders and care and protection orders imposed by Permanent Magistrate Ho Chun Yiu in the Juvenile Court on two juvenile defendants after each had pleaded guilty to a charge of unlawful assembly.