1. Following protests around the Tamar Central Government Offices on 26 September 2014, the 1st and 3rd Appellants were found guilty after trial by the magistrate of taking part in an unlawful assembly contrary to s.18 of the Public Order Ordinance, Cap 245 (“POO”). The 2nd Appellant was found guilty of inciting others to take part in an unlawful assembly. On 15 August 2016, the 1st and 2nd Appellants were sentenced to 80 hours and 120 hours of community service respectively whereas the 3rd Appellant was sentenced to 3 weeks’ imprisonment suspended for one year. 2. On 13 October 2016, the Secretary for Justice applied to the Court of Appeal for a review of those sentences under s.81A of the Criminal Procedure Ordinance, Cap 221 (“CPO”). Finding that the magistrate erred in principle and that her sentences were manifestly inadequate, the Court of Appeal increased the sentences and, making allowance for the fact that the 1st and 2nd Appellants had both completed their community service orders, imposed on the 1st, 2nd and 3rd Appellants imprisonment sentences of 6 months, 8 months and 7 months respectively. 3. On 7 November 2017, the Court of Final Appeal granted the Appellants’ application for leave to appeal on four separate issues. Issue 1: The Court of Appeal’s power to review facts on a review of sentence 4. The first issue concerns the extent to which, on an application for review of sentence under s.81A of the CPO, the Court of Appeal may reverse, modify, substitute or supplement the factual basis on which the original sentence was based. 5. As a matter of principle, in an application for review of sentence, the Secretary for Justice does not have an analogous right to that of a convicted person appealing against sentence, and a review of sentence differs procedurally from an appeal against sentence. As the wording of s.81B of the CPO suggests, the Court of Appeal may only interfere with the sentence under review if it thinks that the sentence was (i) not authorised by law, (ii) wrong in principle, (iii) manifestly excessive, or (iv) manifestly inadequate. Unlike an appeal, a review of sentence is therefore strictly limited to an examination of whether any of those four grounds are made out. [paras 47-49, 53] 6. In determining whether the sentencing court has committed any of the errors above which permit interference with sentence, it is plainly appropriate for the Court of Appeal to look at any relevant evidence available to the sentencing court below. If the sentencing court below has made an error as to the facts on which it proceeds to sentence, it is only right that the Court of Appeal can correct these in the review. [para 59] 7. However, save where it concludes that the sentence is manifestly inadequate, the Court of Appeal may not in the review ascribe a different weight to a factor properly taken into account by the sentencing judge in arriving at a sentence that is otherwise within the range of sentences appropriate for the offence. [para 62] 8. In the present appeals, the Court was unable to agree with the Court of Appeal’s view that the magistrate erred in principle by failing to take into account relevant matters. The magistrate was plainly aware of the factor of deterrence, the large scale nature of the assembly, the risk of violent clashes, the Appellants’ knowledge of the likelihood of clashes between the participants and the security guards and the police and the inevitability that at least some security guards would be injured, and the fact that there was a prior lawful assembly and that the protesters did not have an absolute right to enter the forecourt. The weight to be accorded to the Appellants’ personal circumstances and motives, as well as their expression of remorse, was strictly a matter within the magistrate’s discretion unless the sentences the magistrate imposed were manifestly inadequate or out of line with the range of sentences imposed in practice. [paras 98-103] 9. In this regard, the Court concluded that the magistrate’s sentences were not manifestly inadequate. At the time of the sentences, there was no appellate court guidance requiring an immediate custodial sentence for a case of this nature, and a community service order was a sentence frequently passed in respect of unlawful assemblies. [para 105] 10. As regards the Appellants’ contention that the Court of Appeal had taken into account factors which constituted new findings of fact, all of the factors highlighted by the Court of Appeal save two were open to it to make on the evidence before the magistrate. [paras 111-114] Issue 2: Civil disobedience and the exercise of constitutional rights as motive 11. The second issue relates to the extent to which the magistrate should have taken into account the motives of the Appellants in committing the offences, particularly where it was asserted that the offences were committed as acts of civil disobedience or in the exercise of a constitutional right. 12. While the fact that an offence arises out of an occasion when constitutional rights to assemble and protest are being exercised is relevant to the background and context of the offending, the fact of a conviction of the offence will necessarily mean that the offender has crossed the line separating the lawful exercise of constitutional rights from unlawful activity subject to sanctions and constraints, and so there is little merit in a plea for leniency on the ground that the offender was merely exercising his constitutional rights. [paras 67-69] 13. The concept of civil disobedience is recognisable in Hong Kong, and can broadly consist of (i) breaches of a particular law which is believed to be unjust by the offender, or (ii) law-breaking done in order to protest against perceived injustice or in order to effect change in either the law or society. The offender’s conscientious objections and genuine beliefs actuating either type of behaviour may be taken into consideration as the motive for the offending. The weight attached to the motive must however vary depending on the circumstances, and the court will not evaluate the worthiness of any causes espoused. Civil disobedience as generally understood also requires the protester to expect and accept punishment, and the action carried out to be peaceful and non-violent. [paras 70-72, 74-75] 14. In the present appeals, the acts of civil disobedience relied upon were not directed towards s.18 of the POO as an unjust law, but were committed in the course of protesting against the Government’s proposals for constitutional reform. A plea for leniency at the stage of sentencing on the ground of civil disobedience should therefore carry little weight as the acts infringed the criminal law, involved violence and were thus not peaceful and non-violent. [paras 73-74] Issue 3: The Court of Appeal’s guidance for future cases 15. The third issue relates to whether the Court of Appeal was laying down sentencing guidelines for future cases in its judgment. 16. The Court recognised it to be settled law reflecting the protection against retroactive criminal penalties that the sentence for an offence should be in accordance with the sentencing practice prevailing at the time of the commission of the offence. However, the public order offences of which the Appellants were guilty were offences where there had been no established guidelines or tariffs of sentence. [paras 77-78, 81] 17. The Court of Appeal’s judgment did not lay down any fixed starting point of sentence for the offences but instead simply emphasised the need for deterrence and punishment in large scale unlawful assembly cases involving violence given the circumstances now prevailing in Hong Kong. It was appropriate for the Court of Appeal to do so and it was consistent with its responsibility to provide guidance in sentencing matters for the future. In this regard, the sentencing principles the Court of Appeal laid down and the list of sentencing factors it considered to be relevant for unlawful assembly involving violence were to be endorsed. [paras 83, 119-123] 18. It was right for the Court of Appeal to send the message that unlawful assemblies involving violence, even the relatively low degree of violence that occurred in the present appeals, will not be condoned and may justifiably attract sentences of immediate imprisonment in the future. Greater culpability is also to be ascribed to those who have participated in violent acts, incited others to commit the offence, or have encouraged the unlawful assembly for example by virtue of their status or leadership of others joining the assembly. [paras 124-125] 19. That being said, the Court considered it inappropriate to apply the Court of Appeal’s guidance to the Appellants in these appeals in order to avoid retrospectively imposing significantly more severe sentences on them based on the new sentencing guideline. [para 126] Issue 4: S.109A of the CPO and the relevance of youth in sentencing 20. The final issue, relating solely to the 1st Appellant’s appeal, is the extent to which the Court of Appeal should have taken into account s.109A of the CPO. 21. On its plain wording, s.109A of the CPO obliges a sentencing court when considering the appropriate sentence to be imposed on an offender aged between 16 and 21, to obtain and consider information about the circumstances of the young offender, the offence and his suitability for particular types of punishment, as well as information which is relevant to the young offender’s character and physical and mental condition. Nevertheless, the requirement to obtain information is not absolute. [paras 87-89] 22. The Court held that the magistrate was plainly entitled to take s.109A of the CPO into account when sentencing. The Court of Appeal misunderstood the submissions of the 1st Appellant’s counsel to mean that it was not appropriate or necessary for the Court of Appeal to consider alternatives to a sentence of imprisonment. In any event, it would have been the Court of Appeal’s duty under s.109A of the CPO as the sentencing court, if it had been entitled to review the sentences of the magistrate, to consider all non-imprisonment sentencing options. [para 131] 23. While there may be circumstances where it will be clear without the need to obtain further information that the only appropriate sentence is imprisonment, in the circumstances of the present offence of taking part in an unlawful assembly this was certainly not one of those cases. The Court of Appeal therefore erred in dispensing with the need to consider other sentencing options and in not following the requirements of s.109A. [paras 132-133] Disposition 24. The Court unanimously allowed all three appeals, quashed the sentences of imprisonment imposed by the Court of Appeal and reinstated those imposed by the magistrate, emphasising, however, that future offenders involved in large scale unlawful assemblies involving violence will be subject to the new guidelines rightly laid down by the Court of Appeal. [para 135]