The High Court has convicted two 14-year-olds of taking part in an unlawful assembly during anti-government demonstrations outside Hong Kong’s Polytechnic University last November, after siding with prosecutors in finding a magistrate had erred in striking out their charges.
The Court of Appeal on Friday allowed prosecutors’ application for review and set aside the care or protection orders issued by Magistrate Stanley Ho Chun-yiu, despite evidence that the two teenagers had suffered from depression and attention deficit hyperactivity disorder (ADHD).
The boy and girl, who cannot be named because of their age, were convicted on their guilty pleas to charges of taking part in an unlawful assembly, an offence punishable by three years’ imprisonment when the case is heard at the magistrates’ level.
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They will be sentenced on November 13, pending reports on the suitability of an order for probation or community service for their roles in the large-scale anti-government protest around the university on November 18 last year, which had resulted in more than 200 arrests.
Prosecutors had asked the court to jail both teenagers, or at least impose a custodial sentence, in what they described as a serious case, arguing that punishment and deterrence were of “paramount importance”, while other considerations of youth and personal circumstances “pale into insignificance”.
But Mr Justice Jeremy Poon Shiu-chor, the Chief Judge of the High Court, noted that there were statutory restrictions on punishing young people, with the Juvenile Offenders Ordinance stating that they should be spared jail if they “can be suitably dealt with in any other way”.
“We are not inclined to impose immediate custodial sentence,” the judge said.
The case before Poon, Madam Justice Carlye Chu Fun-ling and Mr Justice Derek Pang Wai-cheong, raised the question of how the court should sentence young offenders with a history of mental illness.
The court heard the girl was suffering from depression and post-traumatic stress disorder, with a history of repeated self harm in the form of wrist cutting, while the boy had been diagnosed for some years with ADHD, which in part explained his impulsiveness in committing the offence, according to defence lawyers.
The appeal judges concluded that the magistrate had erred in principle and imposed a clearly inadequate sentence when he dismissed the charges and imposed the care or protection orders.
Ho had adopted recommendations from three social welfare professionals in June when he issued the orders behind closed doors, after the teenagers’ families objected to the media’s presence in the Juvenile Court.
His orders came with the requirement that the teenagers be subject to supervision by probation officers for 12 months.
Footage played in the court showed the two black-clad teenagers had stayed on site from 3.09pm to 4.16pm, at times at the forefront of the group of protesters before police intercepted and arrested them outside the Lands Tribunal on Gascoigne Road.
The girl, who was two months shy of 15 at the time, was seen holding up an umbrella, shielding from police the protesters who were hurling bricks and petrol bombs towards a security cordon.
The boy, who had just turned 14, also held up an umbrella and apparently used hand gestures to signal the protesters to stay in place, before police fired tear gas in an attempt to disperse the crowd.
They were initially accused of rioting, before the charges were reduced to taking part in an unlawful assembly and dismissed pursuant to the ordinance.
On Friday, deputy director of public prosecutions Vinci Lam Wing-sai argued that both teenagers had actively taken part in the unlawful assembly following premeditation, judging by their attire, with the boy assuming “some sort of a leader’s role to control the conduct of a large crowd”.
“The magistrate was wrong in finding both respondents had assumed a relatively passive role,” Lam said. “Because of this wrong finding, the sentence imposed was manifestly inadequate and wrong in principle.”
But Hectar Pun Hei SC backed the magistrate’s conclusion and stressed that the girl’s welfare was “one of the most important factors” in sentencing.
“Nobody in this court will dispute this little girl needs protection and care,” Pun said.
Counsel David Ma Wai-kwan, for the boy, added that the magistrate was experienced in dealing with juvenile offenders and submitted that his handling was not “unduly lenient”.
“He’s a nice kid,” Ma said of his client. “The question is really whether we are willing to give him a chance.”
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