A construction worker has been jailed for 13 months for inciting an unlawful assembly around a controversial detention centre during the 2019 Hong Kong protests, after prosecutors won another review of non-custodial sentences.
The Court of Appeal on Thursday sided with the prosecution in finding the trial magistrate had erred in principle in sentencing Poon Yung-wai, 38, last November and imposing a “manifestly inadequate” order of 160 hours of community service on an incitement charge.
Mr Justice Jeremy Poon Shiu-chor, chief judge of the High Court, said the offence warranted a jail sentence even for first-time offenders because it was very serious, considering it involved a targeted attack on law enforcement and a risk of breaching public order.
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The defendant was the first person to face criminal prosecution over posting provocative messages on social media since protests erupted in June 2019 over a now-withdrawn extradition bill.
The charge of incitement to take part in an unlawful assembly is punishable by two years in prison when the case is heard by a magistrate.
Prosecutors had accused the defendant of inciting online users to besiege San Uk Ling Holding Centre by making false allegations against police, claiming officers had molested and raped female protesters detained at the 80,000 sq ft facility.
Situated in the remote Man Kam To area near the city’s border with mainland China, the centre was temporarily used to house 182 arrested protesters between August 5 and September 2 of that year.
Critics had voiced concern over the treatment of those at the centre, and police confirmed that 30 protesters arrested during an August 11 demonstration and detained there were later sent to hospital, but denied officers had abused the detainees.
Hong Kong leader Carrie Lam Cheng Yuet-ngor later announced police would stop using San Uk Ling to house arrested protesters in light of public concern.
The court heard the defendant published four posts in a Facebook group with more than 50,000 members, under the pseudonym “Kim Jong-un” – North Korea’s leader – between September 19 and 21, 2019.
In these posts, he claimed to have learned about alleged sexual assaults in San Uk Ling from a police source, and called on people to surround the facility and “rescue the martyrs” – but did not suggest a time for the proposed gathering.
Magistrate Peony Wong Nga-yan said the offence was serious but agreed to adopt a probation officer’s recommendation for community service, after finding the defendant’s bogus claims had generated little response online and the proposed siege never materialised.
On Thursday, senior public prosecutor Ivan Cheung Cheuk-kan argued that Wong had placed too much weight on the fact there was no assembly, and overlooked the point that the offence had occurred at a time when there were many public order events.
The prosecutor also argued the court had to take into account the consequences of incitement and impose a deterrent sentence, as unlawful assemblies and riots could be prevented if there was no incitement in the first place.
Cheung further noted the present case involved inspiring hatred against police and was aggravated by the fact the incitement was published online, a medium that could deliver a faster and more damaging threat to public order.
Defence counsel Jeffrey Tam Chun-kit conceded his client was an irresponsible internet user, but observed the online responses suggested not many people had believed him – and there was no assembly in the end.
Tam said the court should consider whether an inciter was famous or an opinion leader.
He also noted the gravamen of the assembly charge was the gathering of a crowd, which could not take place without a date or time.
The three-judge panel, which included Mr Justice Derek Pang Wai-cheong and Madam Justice Maggie Poon Man-kay, reserved its full reasons for the ruling.
This article Hong Kong protests: man gets 13 months’ jail after prosecutors win review over sentence for inciting unlawful assembly at controversial detention centre first appeared on South China Morning Post