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In Secretary for Justice v Wong Chi-fung and Ors [2018] HKCFA 4, [2018] 2 HKC 50, the Court of Final Appeal explained the two different types of behaviour of civil disobedience. The first type of behaviour occurs when “breaches of a particular law which is believed by the offender to be an unjust law”. The second type of behaviour is “law-breaking done in order to protest against perceived injustice or in order to effect some change in either the law or society”. Either type of behaviour may be actuated by the offender’s conscientious objections and genuine beliefs and a sentencing court may properly take these into account as the motive for the offending, although the weight to be attached to that motive will necessarily vary depending on many other circumstances, including the facts of the offending and its consequences and the need for deterrence and punishment.

Where in furtherance of an ostensibly peaceful demonstration, a protester committed an act infringing the criminal law which involved violence and was therefore not peaceful and non-violent, a plea for leniency at the stage of sentencing on the ground of civil disobedience would carry little (if any) weight since by definition that act was not one of civil disobedience. Even where an act of protest might properly be characterised as one of civil disobedience, the court would not enter into an evaluation of the worthiness of the cause espoused. It was not the task of the courts to take sides on issues that were political or to prefer one set of social or other values over another.

For more information:

Sentencing in Hong Kong 8th Edition – I Grenville Cross SBS, SC, Patrick WS Cheung

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