By Peter Chau
Assistant Professor, Faculty of Law, University of Hong Kong
With respect to the Hong Kong Court of Appeal, I believe the sentences imposed are excessive.
The three English Court of Appeal decisions cited by Poon JA in paragraphs 129-131 in support of a deterrent sentence, namely, Alhaddad, Blackshaw, and Caird, are, I believe, distinguishable on the ground that the violence involved in those cases was much more serious. In Alhaddad, the police were the target of violence and objects (including a barrier clip that weighed 2.5lb) were thrown at them. Items were taken from shops. Blackshaw is a case that arose out of the very serious English riots in 2011, with widespread arson, looting, assault on policemen, throwing of petrol bombs etc, resulting in great personal injury and property damage. In Caird, the protestors did not simply try to push away the policemen (as in the present case). Instead, policemen were attacked by missiles (made of rocks, a half brick, lighted mole fuses, etc.) after they were pushed out of the protestors' way. There was also substantial property damage. Accordingly, the fact that a deterrent sentence is justified in those three cases involving serious violence does not mean that a deterrent sentence is equally justified in the present case where the violence involved was on a rather low scale. Perhaps an English case with facts more similar to those of the present case would be Bauer  EWHC 634 (Admin). There, over 100 “UK Uncut” demonstrators used occupation as a means of political protest (against tax avoidance). They stayed in a shop and prevented the shop from closing by forcefully overwhelming the police and security guards, and ten of them were subsequently convicted of aggravated trespass after trial. Nine out of the ten defendants were given a conditional discharge by the District Judge, according to the Court of Appeal Judgment. (The remaining defendant, according to the news, received a small fine of £200.)
In fact, in foreign jurisdictions sentences less severe than the present ones (or at least those which do not involve immediate custody) have sometimes been imposed for cases that are arguably much more serious than the present case. Let us first take a look at two recent English cases. In Al-Dahi  EWCA Crim 1267, the offender participated in a violent protest that involved 150-200 people, where missiles were thrown at the police and a policeman was punched and kicked. His sentence for violent disorder was suspended by the English Court of Appeal and one of the justifications was that he was not participating in “mindless violence” but rather a political protest where “emotions were running particularly high”. (The other justification is based on the disparity between his sentence and the sentences given out to other convicted demonstrators.) In Smith  EWCA Crim 2080, the offender participated in a demonstration which ended up in a violent confrontation between the demonstrators and the counter-demonstrators (around 450 people in total). The two groups threw missiles at each other. “A paving slab was broken up to provide ammunition to throw”. The offender herself threw several missiles. The policemen, who were trying to separate the two groups, suffered some bruising and muscular injuries. In this case, the English Court of Appeal suspended her sentence for violent disorder on the ground that she was of good character, acted as caring support for her children (one of which has special needs), and the motivation for her act was to defend the values that she held dear and for which she has in the past suffered.
In Canada, conditional sentences and community service orders were given in a number of cases to offenders who participated in riots that involved intentional damage to property and attack on the police. One may consult the helpful table provided in Peepre (2013) BCCA 115. In Henry (2011) ONCJ 501, the offender was convicted of committing mischief to property. He was one of the protestors during the Toronto G20 summit. The demonstration turned violent with shops vandalized, and he personally smashed some windows. He was given a conditional sentence after the judge considered his personal mitigation.
Two cautionary remarks. First, it has to be observed that in many of the cases mentioned above where the offender was treated relatively leniently, the offender (wisely, in my view) pleaded guilty and did not occupy an important leading role whereas the same cannot be said for the three defendants in the present case. But one has to wonder whether these factors alone are important enough to justify a severe deterrent sentence in a case involving violence on a rather low scale. Second, different societies can legitimately have different concerns, and I am not arguing that the foreign sentencing decisions should be followed blindly in Hong Kong. But given that the protests in Hong Kong are in general much more peaceful compared to many other places, one must wonder if there is any legitimate justification for the Hong Kong courts to adopt a significantly more deterrent approach to sentencing protestors.