A second Hong Kong man sentenced to community service for desecrating the national flag during last year’s anti-government protests has been sent to jail, as prosecutors pushing for tougher sentencing pointed to an April appellate court decision to imprison a man guilty of similar offences.
Tuen Mun Court on Friday upped the protester’s sentence to five weeks’ jail at a review requested by government prosecutors, who argued the initial punishment had been manifestly inadequate.
In changing her sentence, acting principal magistrate Cheung Kit-yee said she underestimated the gravity of the offence when she ordered Tang Chi-lok to perform 240 hours of community service on April 15 for desecrating the Chinese flag during a September demonstration.
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Tang was filmed burning the flag that hung outside Tuen Mun Town Hall on September 21, before tearing it apart and trampling on its shreds, the court was told. He pleaded guilty to the charge in January.
On Friday, prosecutor Margaret Yu Kwok-wai said the previous sentence was wrong in principle, because Cheung had overlooked the fact the offence involved a persistent desecration of a government-owned flag, and that the defendant’s possession of a blowtorch at the protest scene indicated premeditation.
Yu said those aggravating factors constituted reasons for immediate imprisonment, based on an April Court of Appeal decision, which replaced a sentence of community service in another flag desecration case with a jail term.
Defence lawyer Jessica Chan Wing-yin urged the magistrate to uphold her previous ruling, saying the appeal court had not laid down sentencing guidelines, nor did it state that the crime had to warrant a custodial sentence.
She said Tang had already served two months of community work following his initial sentence, during which he had reflected deeply on his actions.
But the magistrate ruled in the prosecution’s favour, saying her previous judgment had been too lenient.
“I agree that I did not give appropriate weight to the fact that the defendant posed a danger to the public and desecrated the national flag in different ways,” Cheung said. “His offence was frivolous, contemptuous and malicious, which was grave and seriously undermined the country’s dignity.”
She added that Tang was part of a joint enterprise with two other protesters, whose acts could have provoked the roughly 40 people at the demonstration to commit other offences.
She set a starting point of nine weeks’ prison, before shaving four weeks from it to reflect Tang’s guilty plea and the fact he had served 40 hours of community work since the last hearing.
Tang has yet to decide whether to appeal his sentence.
The Court of Appeal ruled in April that immediate imprisonment was the only appropriate option in serious cases of flag desecration, even if the defendant was a first-time offender suitable for community service.
It sentenced 21-year-old Law Man-chung, an air-conditioning apprentice, to 20 days behind bars for throwing the national flag into the air, trampling on it, then dumping it into a rubbish bin that was later pushed into a pool at Sha Tin Park on September 22.
He had previously been sentenced to 200 hours of community service, a decision criticised by former city leader Leung Chun-ying and People’s Daily, the Chinese Communist Party’s mouthpiece, who called for hefty punishment for anyone who abused the national flag.
To date, three protesters have been sentenced for desecrating the Chinese flag during the past year’s protests. In December, a 13-year-old girl who set the national flag alight during the same protest attended by Tang, was sentenced to 12 months’ probation.
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