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A A

B B
CACV 14/2018
C
Press Summary of C
Judgment handed down by the Court of Appeal
D On 16 May 2019 D

E (This Press Summary is not part of the Judgment) E

F
_________________________________________ F

G In allowing the respondent’s appeal against sentence for criminal G

contempt, the Court of Appeal set aside the 3 months’ imprisonment


H H
imposed by Andrew Chan J on 17 January 2018, and substituted it
with a 2 months’ imprisonment.
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The Court of Appeal held :
J J
1. Criminal contempt threatens the due administration of justice
K as a whole. It presents a direct challenge to the rule of law, K
the very fabric and foundation of Hong Kong.
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2. Because of the immense public interests involved in
M protecting the due administration of justice as an integral M
component of the rule of law, the sanction imposed on a
N contemnor is punitive in nature. The court will ordinarily N
impose a deterrent sentence on the contemnor, with the dual
O aim of deterring him from reoffending and others from O
committing criminal contempt. Put in another way,
P deterrence is ordinarily the primary consideration in P

sentencing a contemnor of criminal contempt. Accordingly,


Q a term of imprisonment is generally called for, although the Q

court retains a wide discretion to impose other forms of


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sentence as it deems most appropriate in the overall
circumstances of the case. A term of imprisonment is
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particularly warranted where the interference of
administration of justice is grave, contumelious and
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contumacious.
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3. The respondent is punished for the criminal contempt that


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he committed on 26 November 2014, which he admitted and
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for which he apologized, when he intentionally, knowingly C
and deliberately interfered with the due execution of the
D
Amended Injunction Order. Any suggestion that he is D
punished because of his status or notoriety as a committed
E social activist or any other reason, whatever it might be, is E
entirely baseless and misconceived.
F F
4. The respondent’s criminal contempt is grave, contemptuous
G and contumacious. The Judge’s finding that his G
involvement was deep and extensive and that he played a
H leading role is amply supported by the evidence and is plainly H
correct. As a grave and defiant breach of the Amended
I Injunction Order and a serious and deliberate obstruction of I
its execution, it is tantamount to a direct and frontal challenge
J to the court. It is an affront to the court and must be met with J

a deterrent sentence.
K K

5. None of the matters advanced by the respondent to explain his


L conduct, individually or collectively, mitigate his culpability L

and the seriousness of his criminal contempt in any substantial


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way.

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6. Despite the respondent’s young age at the time of the criminal
contempt and his personal circumstances, the only appropriate
O O
way of dealing with him is immediate imprisonment. The
Judge was correct in so sentencing him.
P P

7. In order to maintain a degree of parity between all the


Q Q
contemnors, the correct approach is to examine whether the
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respondent’s penalty falls comfortably within the range of R
sentences imposed by the Judge in the series and if not,
S
whether there was proper justification for such a departure. S

T T

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8. The sentences imposed by the Judge on those contemnors who


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were of the respondent’s similar age were lighter, some of
C
which were suspended. The apparent disparity is readily C
explained by the Judge’s different findings on their
D
involvement and role in interfering with the administration of D
justice.
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9. In sentencing the respondent and Wong Ho Ming, the Judge
F was correct in treating them as the most serious contemnors F
in the series based on his findings on their culpability and the
G seriousness of their criminal contempt. In imposing on them G
effectively the same term of imprisonment (in the
H respondent’s case, 3 months upon his admission of liability H
and in Wong’s case, 4½ months after trial), the Judge did not
I give weight to the respondent’s young age. However, the I
respondent’s young age (18 at the time of contempt and 21 at
J the time of sentence) is clearly a relevant mitigating factor for J

determining the length of his imprisonment and is also a factor


K capable of distinguishing the respondent from Wong Ho Ming K

(who was 26 at the time of contempt and 29 at the time of


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sentence) insofar as the length of imprisonment is concerned.
When the Judge did not give any reason why he did not give
M M
weight to the respondent’s young age, we are unable to uphold
his decision in this regard.
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10. Having carefully considered the matter in the round, we take


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the view that proper weight should be given to
both the respondent’s young age and personal circumstances
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in determining the length of his imprisonment. After giving
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due weight to these matters and evaluating them against his
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culpability and the seriousness of his criminal contempt, the
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proper starting point of his imprisonment should be 3 months. R
After deducting one-third on account of his admission, his
S acceptance of legal consequences and his apology to the court, S

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which is the strongest mitigation, the sentence is reduced to


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2 months.
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11. We reject the respondent’s submission that a short custodial
D
sentence (effectively 6 days) which would enable the D
respondent’s immediate release would in all the
E circumstances be a proportionate sentence. For it does not E
truly and fully reflect his culpability and the seriousness of his
F criminal contempt. And it does not comfortably fall within F
the range of sentences the Judge imposed in the series in the
G absence of any proper justification for such a departure. G

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