A Hong Kong merchant who admitted barricading the entrance to government headquarters during a protest last year saw his jail term go from two weeks to seven months after an appellate court ruled a punitive sentence was necessary to deter offences constituting “a frontal attack” on authorities.
In its ruling, the Court of Appeal also reiterated that even minor involvement in an illegal gathering should be met with a hefty penalty to forestall attempts to disrupt public order, particularly when it came to large-scale violent protests where police were outnumbered.
The court on Friday delivered its written judgment explaining the decision to grant the justice department’s application to review the sentence of defendant Yu Ka-kui, who was ordered last month to go to prison for another 6½ months after having already served out the two-week term imposed by a lower court.
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The 33-year-old pleaded guilty to one count of taking part in an unlawful assembly after he was seen moving metal fences to block the entrance to government offices at Tamar on June 12, 2019, the day tens of thousands of demonstrators defied a police ban to prevent the Legislative Council’s second reading of the now-withdrawn extradition bill.
Yu was jailed for two weeks on June 8 by Magistrate Lam Tsz-kan, who accepted that the defendant had been “incited” by protesters, and committed the crime spontaneously after happening to walk past the area that afternoon.
But the appeal court, presided over by justices Jeremy Poon Shiu-chor, Derek Pang Wai-cheong and Maggie Poon Man-kay, ruled on November 23 that Lam had “erred in principle” in handing down the lighter sentence.
Maggie Poon, who penned Friday’s ruling, said the magistrate’s decision to accept that Yu had committed the offence on the spur of the moment was “arbitrary”, especially given the defendant did not offer evidence to support the claim during the trial.
She said the June 12 demonstration, during which protesters occupied roads in Admiralty and clashed with clearly outnumbered police, did not merely inconvenience officers dispersing the crowd, as described by the magistrate, but rather threw the entire area into disarray.
She reiterated that the court must prioritise safeguarding public order and deterring similar offences, adding that the nature of the buildings targeted by an unlawful assembly was a crucial factor in sentencing.
“The present case involves the headquarters of Hong Kong’s executive branch being targeted [by protesters]. Instead of merely causing obstruction to police, it was a frontal attack on the government,” Poon said.
“Even though the present case does not involve property damage or human injuries, the risk of the overall violent act is so serious that it cannot be overlooked. A two-week sentence is only symbolic. It lacks punitive and deterrent effects.”
The appeal court set a starting point for sentencing of one year in prison – compared to the three-week starting point set by the magistrate – before subtracting five months to reflect the defendant’s timely guilty plea and the fact that he was being sent to jail for a second time over the same case.