The High Court in Admiralty. Photo: Roy Issa
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https://scmp.com/news/hong-kong/law-and-crime/article/3081499/hong-kong-protester-who-was-given-community-service Law and Crime
Hong Kong protester who was given community service for desecrating national flag gets 20 days in jail
- Prosecutors had asked the Court of Appeal to review the case, arguing that community service for Law Man-chung was ‘manifestly inadequate’
- Judges conclude that Magistrate Li Chi-ho had ‘erred in principle’ by giving a community service sentence as he did not watch the footage of the incident
Protesters walk over the national flag during an anti-government protest at New Town Plaza in Sha Tin on September 22, 2019. Photo: Nora Tam
A Hong Kong protester who was given community service for desecrating the Chinese flag during an anti-government protest last year has been sent to jail for 20 days after a court reviewed his sentence upon the prosecutors’ request.
The prosecutors had asked the Court of Appeal to review the first case of flag desecration arising from the protests and demanded a jail term, arguing that community service was “manifestly inadequate” after it sparked criticisms from a former city leader and the Chinese Communist Party’s mouthpiece.
The court on Friday observed that Law Man-chung, 21, had committed a very serious offence that gravely undermined the dignity of the state and agreed that a deterrent sentence in the form of immediate imprisonment was the only appropriate option even if he was a first-time offender suitable for community service.
But the judges did not find a need to lay down new sentencing guidelines as requested by the prosecutors, as they observed that the crime could be committed in many ways and the Court of Final Appeal has already provided authoritative views on what ought to be considered.
These included the desecration caused; the time, place and circumstances surrounding the offence; and questions of whether the defendant had planned the acts or carried them out as part of a joint enterprise with others.
The top court has also stressed that sentencing must adequately reflect the legislative intent of safeguarding the legitimate interests in protecting the national flag, the unique symbol of dignity, unity and territorial integrity.
Law, an air-conditioning apprentice, was the first protester to admit to desecrating the Chinese flag during citywide protests that began in June last year in opposition to the now-withdrawn extradition bill, saying he did it “out of fun”.
News footage played in the court showed that on September 22 last year, Law threw the national flag into the air, trampled on it and then threw it into a rubbish bin that was later pushed into a pool at Sha Tin Park.
He was given 200 hours of community service after he pleaded guilty at Sha Tin Court last October to one count of desecrating the national flag, an offence punishable by up to three years in jail and a HK$50,000 (US$6,428) fine.
A day after the case was heard, former chief executive Leung Chun-ying urged the Department of Justice to seek a heftier punishment, warning the sentence would spark anger across China, especially when it came after a mainland Chinese man was jailed for four weeks for spraying paint on the outer walls of the US consulate in the city.
People’s Daily responded the following day in a commentary calling for serious punishment for anyone who abused the national flag, as it found the act was tantamount to issuing an open statement of separatism.
The court on Friday observed that offender had committed a very serious offence that gravely undermined the dignity of the state. Photo: Sam Tsang
In the 21-page ruling, the judges concluded that Magistrate Li Chi-ho had “erred in principle” and wrongly imposed a “manifestly inadequate” sentence as he did not watch the footage of the incident and failed to fully comprehend the facts of the case and its aggravating factors.
They observed that Lai’s offence was made more serious because he had committed a series of acts to desecrate the flag with many others at more than one location, each time deploying different antics.
“The respondent put the national flag into the rubbish trolley as if it were rubbish, which was an exceedingly great insult to the dignity of the state the national flag symbolises,” the court said. “He further kicked the rubbish trolley containing the national flag into the pool, connoting a renunciation of the national flag, which further added to the insult.”
They concluded that the starting point of sentence should be no less than four months but agreed that Lai should get a one-third discount for his guilty plea. The jail term was further discounted by 30 days – as per usual practice for sentencing reviews – and reduced by another 30 days to account for the 64 hours of community service Lai had completed, making a total of 20 days.
The 21-page judgment was penned by the Chief Judge of the High Court, Mr Justice Jeremy Poon Shiu-chor, leading Madam Justice Carlye Chu Fun-ling and Mr Justice Derek Pang Wai-cheong.
In December last year, a 13-year-old Hong Kong girl who admitted to burning the national flag “out of impulse” during a protest in Tuen Mun on September 21 was sentenced to 12 months’ probation.
Earlier this month, 21-year-old bartender Tang Chi-lok was given 240 hours of community service after he admitted to burning and trampling over a national flag outside Tuen Mun Town Hall during the same protest on September 21.