As the wording of section 81A shows, the grounds on which the Court of Appeal may interfere with a sentence passed by a lower court are restricted to the four grounds specified, namely that it is (i) not authorised by law, (ii) wrong in principle, (iii) manifestly excessive, or (iv) manifestly inadequate. If any of these grounds exists, the original sentence may be set aside, increased or reduced. Plainly, therefore, a review of sentence may be either advantageous or disadvantageous to the respondent to the application.
“A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular to the guidance given by this court from time to time in the so-called guideline cases. However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.”
In A Theory of Justice (revised Edition, 1999) at p.320, John Rawls defined civil disobedience “as a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government”. To conform to civil disobedience as generally understood, therefore, the action carried out must be peaceful and non-violent. An expectation of punishment is also inherent in the act of civil disobedience since it is by accepting the punishment that the protester seeks to draw attention to the alleged injustice against which he is demonstrating. As Lord Hoffmann observed, in R v Jones (Margaret) (supra) at :
“But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law.”
“… As judges we would respect their views but might feel it necessary to punish them all the same. Whether we did so or not would be largely a pragmatic question. We would take into account their moral views but would not accept an unqualified moral duty to give way to them. On the contrary we might feel that although we sympathised and even shared the same opinions, we had to give greater weight to the need to enforce the law. In deciding whether or not to impose punishment, the most important consideration would be whether it would do more harm than good. This means that the objector has no right not to be punished. It is a matter for the state (including the judges) to decide on utilitarian grounds whether to do so or not. As Ronald Dworkin said in A Matter of Principle (1985), at p 114: ‘Utilitarianism may be a poor general theory of justice, but it states an excellent necessary condition for a just punishment’.”
而上訴庭列出、終審法院認同的八項「帶暴力成份的非法集會（unlawful assembly involving violence）」判刑考慮因素為（第121段）：
“(1) Whether the violent acts were spontaneous or premeditated; if it was the latter, how detailed and precise the plan was;
(2) The number of people involved in the violent acts;
(3) The degree of violence, including whether weapons were used and, if so, what kind and quantity of weapons;
(4) The scale of violence, including the location, the number of places and the area in which violence took place;
(5) The duration of violence, including whether the violent act was a prolonged one, and whether it still went on despite repeated warning by police or public officers;
(6) The consequences of the violent act: for example, whether there was any loss or damage to properties and, if so, to what extent; whether anyone was injured and, if so, the number of injured persons and the degree of injury;
(7) Even if there was no loss or damage to properties, nor any injury, what imminence and gravity of threat was caused by the violent acts;
(8) The offender’s role and degree of participation; for instance, apart from taking part in the unlawful assembly, or using violence, whether he had arranged, led, summoned, incited or advocated others to take part in the unlawful assembly or use violence.”
“(1) In accordance with general sentencing principles, the court will have regard to all the actual circumstances of the case and the seriousness of the facts pertaining to the commission of the offence. Appropriate weight will then be accorded to each applicable sentencing factor, and a sentence that is commensurate with the offence will then be imposed. The same principles apply to cases of unlawful assembly involving violence.
(2) Although the definition of unlawful assembly in section 18 of the Public Order Ordinance is relatively simple, the range of factual situations covered is wide. The seriousness of the facts involved varies from case to case and may, depending on the actual circumstances, run from the extremely trivial to the extremely serious. Incidents involving violence are certainly much closer to the serious end of cases, but the facts of different cases still vary. So even for the more serious cases there will still be a spectrum of seriousness. Within the spectrum, the court will accord appropriate weight to the applicable sentencing factors based on the actual circumstances of the case and the seriousness of the facts pertaining to the commission of the offence.
(3) On the basic premise that the public order must be maintained, and taking into account the gravamen of the offence of unlawful assembly, the court has to consider the factor of deterrence in sentencing. As to how much weight it should accord to this factor, the court has to have regard of the actual circumstances of the case.
(4) If the case is of a relatively minor nature, such as when the unlawful assembly was unpremeditated, small in scale, involving very little violence, and not causing any bodily harm or damage to property, the court may give proportionally more weightto such factors as the personal circumstances of the offender, his motives or reasons for committing the offence and the sentencing factor of rehabilitation while proportionally less weight to the sentencing factor of deterrence.
(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence and the sentencing factor of rehabilitation.
(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”
Also published on Medium.