Secretary For Justice v Chan Pak Shan

CourtCourt of Final Appeal (Hong Kong)
Judgment Date24 Nov 2017
Citation(2017) 20 HKCFAR 518
Judgement NumberFAMC55/2017
SubjectMiscellaneous Proceedings (Criminal)
FAMC43/2017 SECRETARY FOR JUSTICE v. LAU KWOK LEUNG

FAMC Nos. 43, 44, 46, 47, 48, 49, 51 & 55 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 43, 44, 46, 47, 48, 49, 51 & 55 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CAAR NO. 3 OF 2016)

_______________________

BETWEEN

SECRETARY FOR JUSTICE Applicant
(Respondent)
and
WONG HO MING (黃浩銘) (D2) 2nd Respondent
(Applicant in
FAMC 51/2017)
LAU KWOK LEUNG (劉國樑) (D3) 3rd Respondent
(Applicant in
FAMC 43/2017)
LAM LONG YIN (林朗彥) (D5) 5th Respondent
(Applicant in
FAMC 44/2017)
HO KIT WANG (何潔泓) (D7) 7th Respondent
(Applicant in
FAMC 48/2017)
CHOW KOOT YIN, KOLE (周豁然) (D8) 8th Respondent
(Applicant in
FAMC 49/2017)
KWOK YIU CHEONG (郭耀昌) (D12) 11th Respondent
(Applicant in
FAMC 46/2017)
WONG KAN YUEN (黃根源) (D14) 12th Respondent
(Applicant in
FAMC 47/2017)
CHAN PAK SHAN (陳白山) (D15) 13th Respondent
(Applicant in
FAMC 55/2017)
_______________________

Before: Mr Justice Ribeiro PJ in Chambers

Date of Hearing and Ruling : 24 November 2017

________________________

RULING ON BAIL

________________________

Mr Justice Ribeiro PJ:

1. Thirteen defendants were convicted by the Magistrate, Mr Jason Wan Siu-ming, of unlawful assembly (and certain other offences) arising out of a demonstration in the Legislative Council Complex on 13 June 2014.[1] Their appeals against conviction for unlawful assembly were dismissed, as were applications for leave to appeal to the Court of Final Appeal against such conviction.[2] Thereafter, the Secretary for Justice was granted leave to apply for their sentences (which were for periods of community service) to be reviewed by the Court of Appeal.

2. On the sentence review, giving reasons dated 11 September 2017,[3] the Court of Appeal substituted periods of imprisonment for the community service orders imposed below. In so doing their Lordships referred to principles which they had applied in their recently-delivered sentence review judgment in Secretary for Justice v Wong Chi Fung & Others,[4] a case also involving convictions for unlawful assembly.

3. I should say at once that I am not seeking to suggest that the factual and other circumstances of that case are similar or comparable to the circumstances of the present case. I mention the Wong Chi Fung case simply because it provides relevant background for present purposes.

4. In that case, the three respondents successfully applied to the Appeal Committee for leave to appeal against the sentences of imprisonment substituted by the Court of Appeal. Leave was granted both on the question of law and the substantial and grave injustice basis, raising four issues to be dealt with on appeal as set out in the Determination dated 7 November 2017.[5] The appeal will be heard on 16 January 2018.

5. Meanwhile, 12 among the 13 respondents to the sentence review in the present case (whom I shall refer to as the 12 “applicants”) had lodged applications to the Court of Appeal for certification[6] of a total of 11 questions as raising points of law with a view to seeking leave to appeal to the Court of Final Appeal. In dealing with their applications,[7] the Court of...

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