1. By a notice of motion dated 4 September 2017, the 2nd respondent applied to the Court of Appeal for a certificate that the following points of law of great and general importance were involved in the Court’s judgment handed down on 17 August 2017 (“Judgment”) to enable him to obtain leave to appeal to the Court of Final Appeal : “ (1) Whether on an application by the Secretary for Justice for review of sentence pursuant to section 81A of the Criminal Procedure Ordinance (Cap 221), the Court of Appeal has the power to make any factual findings not made at the trial or contrary to findings made by the trial judge, where by reason of or in consideration of the same the sentence is increased? (2) If the Court of Appeal has such power, under what circumstances and to what extent should the Court of Appeal exercise such power?” 2. By a notice of motion dated 27 September 2017, the 3rd respondent applied to the Court of Appeal for a certificate that the following points of law of great and general importance were involved in the Judgment to enable him to obtain leave to appeal to the Court of Final Appeal : “ In a Secretary for Justice’s sentence review application under section 81A of the Criminal Procedure Ordinance, is it correct that the Court of Appeal does not have the power to make any factual findings adverse to the defendants different from or in addition to those made by the tribunal of fact at trial?” 3. For the reasons set out below, the Court dismissed both applications : 3.1 It is well established by both Hong Kong and English appellate authorities that : (1) On an application for review of sentence, the Secretary for Justice is not entitled to change the factual basis for sentence that it had relied on at trial and ask the Court of Appeal to inquire into facts which had not been pursued below. Even if the sentencing court had proceeded on a wrong factual basis for sentence, it is not open to the Secretary for Justice to make such an assertion before the Court of Appeal if the prosecution had the opportunity to have it corrected at trial but they had not sought to do so. The Court of Appeal will adopt the same factual basis as it was before the sentencing court. (2) Subject to (1), where the ground for review is that the sentencing court acted on an erroneous factual basis, the Court of Appeal is entitled to examine the evidence adduced below to consider if, based on the facts proved, admitted or not in dispute, the sentencing court did make the error as asserted by the Secretary for Justice. If so, the Court of Appeal is entitled to correct the factual error and to consider if, based on the factual basis as corrected, the sentence imposed is wrong in principle or manifestly inadequate. If so, the Court of Appeal is entitled to interfere. 3.2 As a corollary of the proposition in §3.1(2) above and according to first principle, where it is shown that, based on the facts proved, admitted or not in dispute, the sentencing court has failed to take into account certain matters which are relevant to sentence, the sentencing court has proceeded on an incomplete factual basis, rendering the sentence imposed wrong as a matter of law and principle. In such circumstances, the Court of Appeal is not bound by the findings made by the sentencing court for the purpose of sentence because those findings are incomplete for such purpose. The Court of Appeal is entitled to consider all the relevant matters including those wrongly ignored by the sentencing court to determine if in the overall circumstances of the case, the sentence imposed is wrong in principle and/or manifestly inadequate. If so, the Court of Appeal is entitled to interfere. 3.3 Applying the above principles, the Court held in the Judgment that according to the facts proved, admitted or not in dispute based on the evidence adduced before the Magistrate : (1) the unlawful assembly was a serious and large-scale unlawful assembly, involving violence; (2) the Magistrate had failed to take into account those relevant factors as identified by the Court; (3) the Magistrate had made the errors as identified by the Court; and (4) the sentences imposed by the Magistrate were wrong in principle and were manifestly inadequate. 3.4 The Court then set aside the sentences imposed by the Magistrate and substituted them with immediate custodial sentences as stated. Neither the 2nd nor the 3rd respondent has been able to demonstrate an arguable case that the Court had erred in allowing the application for review as it did in the manner as described. 3.5 Since the answers to the questions sought to be certified by the 2nd and 3rd respondents are well settled, and they have failed to show an arguable case that the Court had erred, the Court dismissed their applications.