區域法院（刑事）Her Honour Judge A J Woodcock23/6/2020[2020] HKDC 473
DCCC57/2020
A A
B B
DCCC 57/2020
C [2020] HKDC 473 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 57 OF 2020
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HKSAR
H H
v
I YIU SIU HONG I
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J J
K Before: Her Honour Judge A J Woodcock in Court K
Date: 24 June 2020
L L
Present: Miss Angela Wong, Public Prosecutor, for HKSAR/Director
M of Public Prosecutions M
Mr Kwan Man Wai, Steven, instructed by O Tse & Co,
N N
assigned by the Director of Legal Aid, for the defendant
O Offence: [1] Possession of offensive weapons in a public place（在公 O
P
眾地方管有攻擊性武器） P
[2] Attempted arson with intent（有意圖而企圖緃火）
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REASONS FOR SENTENCE
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1. The defendant pleaded guilty to 2 offences. He pleaded guilty
C to possession of offensive weapons in a public place, contrary to section C
33 (1) and (2) of the Public Order Ordinance, Cap 245, Charge 1. On 13
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October 2019, outside Tong Ming Street Park, Tong Ming Street, Tseung
E Kwan O, the defendant, without lawful authority or reasonable excuse, had E
with him offensive weapons, namely 2 petrol bombs.
F F
G 2. He also pleaded guilty to attempted arson with intent, contrary G
to section 60 (2) and (3), 63 (1) and 159G of the Crimes Ordinance,
H H
Cap 200, Charge 2. On the same day and at the same location, without
I lawful excuse, the defendant attempted to damage by fire property I
belonging to himself or another, intending to damage such property, and
J J
intending thereby to endanger the life of another or being reckless as to
K whether the life of another would be thereby endangered. K
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Facts of the case
M M
3. The defendant admitted the amended Summary of Facts
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including a background of the time and place where he was arrested. He
O agreed that in the afternoon of 13 October 2019 a few hundred protesters O
had assembled in the material area and committed various unlawful acts
P P
which included setting up barricades across roads and setting fires on main
Q carriageways. By about 6:15 pm in the evening, around 40 to 50 protesters Q
had set up barricades and blocked the junction of Tong Chun Street and
R R
Tong Ming Street. Police officers arrived to restore order and traffic at
S about 6:35 pm. When they arrived, some protesters dispersed. S
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4. At around 6:41 pm there were two layers of barricades across
C the road. The distance between them was the width of two vehicle lanes. C
Vehicles on Tong Ming Road were blocked by these barricades. The facts
D D
state that police officers were clearing those barricades when the defendant
E walked out from the direction of the second layer of barricades outside E
Tong Ming Street Park. He was holding a glass bottle containing petrol
F F
with a cloth inserted into the bottle in his right hand and a lighter in his left
G hand. G
H H
5. Four off-duty police officers were nearby and witnessed the
I defendant walk towards the police officers who were clearing the I
barricades on the road at that junction whilst he attempted to use the lighter
J J
to light the petrol bomb. They immediately approached him and one
K officer grabbed his right hand. There was a struggle and the defendant K
attempted to run away. He was pushed towards a roadside planter and
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subdued.
M M
6. The defendant was dressed in a black jacket, a blue T-shirt,
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black long trousers, black cap, wearing gloves and a black balaclava. He
O was carrying a black rucksack. In that rucksack the police found another O
petrol bomb, a white cloth, a laser pointer, a helmet, a respirator, 15 plastic
P P
zip ties, a can of spray paint and a pair of forearm sleeves. There is no
Q dispute that the petrol bombs contained petrol, a flammable liquid. Q
R R
7. The defendant was arrested and cautioned. He remained
S silent under caution. On the following day a video recorded interview was S
conducted where he initially said nothing under caution. However, during
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this interview, he was shown the exhibits seized and then admitted
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possessing the petrol bombs. He admitted he was attempting to light the
C petrol bomb to throw towards the barricades when he was arrested. He C
admitted ownership of all the exhibits found on him and in his bag.
D D
E 8. The defendant told the police under caution that he had bought E
the Naptha from a hardware store in Kwun Tong and poured the flammable
F F
liquid into two glass bottles. He intended to light and throw the petrol
G bombs towards the barricades to stop the police from proceeding during G
the confrontation. He admitted that he intended to use the lighter to light
H H
the cloth of the petrol bomb. He was wearing a black cap and a balaclava
I at the time to hide his identity during protests. He had the helmet, gloves, I
respirator and filters to protect himself during protests. He claimed that
J J
the laser pointer, red spray paint and plastic zip ties were for his work, in
K the stage design field. K
L L
9. The defendant admitted to the police that he was holding a
M petrol bomb in his right hand and a lighter in his left hand intending to light M
the petrol bomb and throw it at the barricades.
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O 10. The defence submitted a photograph of the junction of Tong O
Chun Street and Tong Ming Street marked MFI-1. The defendant says
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where the photograph is circled in blue is where he was subdued. The two
Q orange lines represent 2 rows of barriers erected by the protesters which Q
disrupted traffic. He says that the area circled in green is where there were
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police vehicles parked that had arrived to restore order and assist vehicles
S affected by the barriers, including their own. The prosecution doesn’t S
dispute this description.
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Mitigation
C C
11. The defendant is now 23 years old and has a clear record. He
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is an only child and finished Form six education. He had hopes to further
E his studies in Taiwan but in 2015 his father suffered a work related injury E
and has not been in employment since. After that, they relied on as a family
F F
the defendant’s mother’s income as a clerk. Sadly, she was diagnosed with
G cancer in 2017 which could not be cured. In fact, the cancer spread all over G
her body and she succumbed to the disease on 26 May this year.
H H
I 12. I have been told that the defendant was remanded in custody I
after his arrest in October last year but was granted bail because his mother
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by then was terminally ill. He was released on bail six days before she
K passed away. K
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13. The defendant’s best mitigation is his plea of guilty at the
M earliest opportunity. In mitigation, I have received a letter written by the M
defendant and others. They include his previous football coach, his present
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employer and several from his former teachers.
O O
14. I don’t intend to repeat the contents of all the letters. The
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defendant explains how he became the breadwinner of the family after his
Q father was injured and his mother was diagnosed with cancer. Instead of Q
continuing his education in Taiwan, he found a job which he happily
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enjoyed and has been gainfully employed in for the past three years. He
S has worked in stage lighting with success and hopes to excel in this field. S
His employer praises his diligence and work ethics.
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15. In the defendant’s letter, he also explains that he became
C involved in the social movement against the extradition bill. I quote, “in C
face of the social injustice and the underserved justice, the people around
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me and I were forced to voice out our opinion. I was deeply troubled about
E choosing between the social movement and my family.” Since his remand E
he has had time to reflect and understands that violence now cannot resolve
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issues.
G G
16. The letters from his football coach from seven years ago and
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his teachers at school all stress he was a talented football player and
I represented the school often. He was respectful at school and polite to I
teachers. He had integrity and was kind to fellow students. Many comment
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on his attachment to his family; he is a filial son.
K K
17. Mr Kwan for the defendant, has said all he can say on behalf
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of the defendant. In his written mitigation he described the defendant as
M being like other young people in Hong Kong with their own ideas of utopia M
and justifiable grievances against certain public policy. He however does
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not try to justify the use of violence to reflect anger. He makes this
O statement as an explanation for the defendant acts not as an excuse. O
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Reasons for sentence
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18. There should be no doubt in anyone’s mind that an offence of
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this nature, irrespective of motive or reason is to be taken and viewed with
S the utmost seriousness. The Court of Appeal said in The Queen v Li Mun S
Tong CACC 309/1994 “Arson, because of the inherent danger in any
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uncontrolled fire, is always regarded as an offence of particular gravity.
C Arsonists exhibit reckless disregard for life and property.” C
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19. A section 60(2) offence is the far more serious charge for
E arson because it requires an additional mens rea, this being the intent, by E
the destruction or damage, to endanger the life of another or being reckless
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as to whether the life of another would be thereby endangered.
G G
20. The defendant tendered his plea of guilty to charge 2 on the
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basis that he intended to damage barricades on the road with fire and was
I being reckless as to whether the life of another would be thereby I
endangered; he was not intending to endanger the life of another. The
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prosecution does not challenge this mitigation. The defendant’s culpability
K will be assessed on this basis. Mr Kwan submitted the defendant as he told K
the police under caution wanted to throw the petrol bombs towards the
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barricades to stop the police from proceeding during the confrontation.
M M
21. Mr Kwan has referred me to HKSAR v Wong Chun Kit 2018
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HKDC 360, a District Court case where the court sentenced a defendant
O suffering from mental illness who lit a fire on a rooftop of a multi-storey O
building and locked himself on the rooftop, denying access to others. The
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court reviewed the sentences of 5 cases from the District Court.
Q Q
22. With respect, that case and those cases reviewed are of no
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assistance to me in passing sentence. None are remotely similar or
S comparable to the facts in this case. S
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23. I bear in mind that arson can attract a life sentence. Such a
C maximum sentence highlights the seriousness with which deliberately C
starting fires must be viewed. There is no tariff or guidelines for arson.
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Each case very much depends on its own facts and circumstances; these
E vary so much in cases of arson. In HKSAR v Kung Pak Fu 2008 2 E
HKCLRT 240 the Court of Appeal reviewed a number of arson cases and
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said at paragraph 23;
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“….. arson is an extremely serious offence. That said, we do not
H consider it appropriate to lay down sentencing guidelines for this H
offence because its gravity differs from case to case, particularly
in cases involving family disputes or souring of relationships.
I The court must impose a sentence which properly reflects the I
gravity of the particular case.”
J J
24. Mr Kwan has also referred me to the appendix in Cross and
K K
Cheung’s “Sentencing in Hong Kong”, the eighth edition. That appendix
L refers to cases on quantum of sentence for certain offences. Under “Arson” L
on page 721 there are a list of cases and sentences imposed with a brief
M M
description of the facts. The learned authors comment that sentences tend
N to start at about 5 years’ imprisonment although they may be very much N
higher when life and property is seriously endangered by the actions of the
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arsonist. I take note that the Court of Appeal in Chau Yuk Kuen v The
P Queen CACC 402/1980 said “We feel that the tariff sentence for this type P
of appeal should be at least 4 to 5 years.”
Q Q
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25. Mr Kwan distinguishes those cases referred to in the appendix
S as they were usually either committed inside multi-storey buildings or at S
market stalls or in the dead of night in highly populated places. However,
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many of those cases occurred in domestic or other situations where the
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arsonist was in a highly emotionally charged state of mind meaning his
C conduct was due to emotional distress or mental distress. Here no such C
emotion was present except perhaps the dangerous emotion of malevolence
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and reprisal.
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26. Defence counsel has asked me to consider the following
F F
factors as relevant and suggested that a sentence of 24 months or less would
G be appropriate for this arson charge. He highlights that this case was only G
an attempted arson; an incomplete offence. No property was actually
H H
damaged nor was anybody injured. The arson was attempted in an open
I space as opposed to inside a building or in a crowded area. The offence I
took place in the afternoon, during daylight when any fire would have been
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easily detected before it had a chance to spread. He also asked me to take
K into account the fact that the defendant did not stand to gain financially or K
personally from this offence and that it was the protests of that time that
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led to the defendant’s anger and him resorting to violence to vent his anger.
M M
27. Mr Kwan stresses that the defendant attempted to commit
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arson in an open space on a road during daylight hours. He comments that
O the police officers who were at the barricades were wearing protective O
items of clothing and were more than likely equipped with fire
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extinguishers. If a fire had started, then there were enough officers around
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to deal with it in a swift manner. None of these factors make the offences
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less serious. R
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28. Sentencing guidelines for Public Order offences (including
T
riot, violent disorder, affray and other offences in the Public Order Act T
1986) in UK have been published by the Sentencing Council in October
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2019. The purpose of the guidelines is to provide a clear framework to be
C used by all courts in England and Wales to ensure a consistent approach in C
sentencing offenders aged 18 years or over convicted of Public Order
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offences. The guidelines direct the court to first determine the offence
E category before finding an appropriate starting point and category range. E
F F
29. In order to determine the offence category, the court should
G assess both Culpability and Harm. Culpability can be divided into category G
A and category B. Category A is more serious and lists four factors which
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includes where an offender used or intended to use a petrol bomb or
I incendiary device. Category B includes any incident of riot not including I
category A factors.
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K 30. Harm can be divided into category 1 and category 2. The level K
of harm is determined by weighing up all the factors of the case to
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determine the harm that has been caused or was intended to be caused.
M Examples of category 1 factors, which is more serious, includes an incident M
which results in serious physical injury or very serious fear and/or distress.
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An incident which causes serious disruption or severe detriment impact to
O community. An incident which involves attacks on police or public O
servants and incidents which results in extensive damage to property.
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There are other examples of category 1 factors listed in the guidelines.
Q Category 2 would include all other cases. Q
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31. If an offence consists of a category 1 Harm and a category A
S Culpability factor, the Sentencing Council in UK suggests a starting point S
of 7 years’ imprisonment and gives a category range of 6 to 9 years’
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imprisonment. If an offence consisted of a category 2 Harm and a category
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A A
B B
B Culpability factor, the sentencing council suggests a starting point of 5
C years’ imprisonment and gives a category range of 3 to 6 years’ C
imprisonment.
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E 32. The guidelines suggest a list of aggravating factors which can E
increase a starting point. Those include, for example, an offender being
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masked or disguised to evade detection, like the defendant here.
G G
33. The defendant has not been charged with a public order
H H
offence nor was there a riot or unlawful affray at that junction where he
I intended to throw that petrol bomb when the police were clearing away the I
blockades but the sentencing council’s guidelines give an insight into how
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serious the use of petrol bombs is viewed as is targeting police officers or
K public servants. In this case, throwing them in the direction of the police to K
prevent them carrying out their duty. The defendant did agree in his
L L
Summary of Facts that there were a few hundred protesters there that
M afternoon who had unlawfully built barricades and set fires on M
carriageways. Those protesters dispersed when the police arrived at the
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scene allowing the police to start to clear the barricades.
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34. In Hong Kong there are no previous authorities with similar
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facts. The scenario where petrol bombs are thrown despite police being
Q present is unprecedented here as far as sentencing is concerned. An attempt Q
to intentionally damage by fire property belonging to another and being
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reckless as to whether the life of another would be thereby endangered is
S graver than conduct which is likely to cause serious damage to property S
and should therefore attract a higher and deterrent sentence.
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B B
35. Here, police officers near the barricades were trying to
C remove the barricades from the carriageway. The defendant says he C
intended to throw a petrol bomb to light barricades which were close to
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another line of barricades being cleared by police officers at that material
E time. He had no regard and was reckless as to whether police officers E
working there or nearby or perhaps other protesters would be hurt and
F F
injured. His culpability is high and the imminence of harm and the gravity
G of the threat are factors I consider relevant to sentence. G
H H
36. The defendant explained that he wanted to voice out his
I opinion against the Extradition Bill but to do it with petrol bombs is I
absolutely unacceptable. The Extradition Bill had been shelved months
J J
before 13th October 2019. That material day and in fact that period of time
K in Hong Kong was particularly violent with citywide conflicts, protests and K
destruction of property. Petrol bombs were being thrown indiscriminately.
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He was out on streets intending to commit the offence of arson. He was
M well-prepared to cause trouble which is obvious from the paraphernalia he M
had in his rucksack.
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O 37. Such criminal acts should never be confused or associated O
with legitimate and peaceful protest. The defendant’s possession of petrol
P P
bombs and his intention to throw a petrol bomb with intent, a weapon that
Q is notoriously unstable, makes him a criminal, not a protester and he should Q
be treated as such.
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S 38. The fact the defendant was of a previous good character does S
not carry significant weight when the intention is to cause serious damage
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to property and being reckless as to whether the life of another would be
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endangered. Such an intention and recklessness would be enough to
C warrant a sentence of significant length. Sentencing is a balancing act and C
in some cases the serious nature, circumstances and the prevalence of the
D D
offence recently requires a custodial sentence that serves as a deterrent to
E others and will therefore take priority over the personal details and E
mitigation of the defendant.
F F
G 39. I have nevertheless, taken into account his age, previous clear G
record and mitigation put forward on his behalf. It was an arson not carried
H H
through to a conclusion thankfully due to eagle eyed off duty police
I officers. I take on board the observation that police officers would have I
been wearing protective gear and normally carry fire extinguishers.
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K 40. In considering an appropriate starting point I find several K
features which places these facts in the range of the more serious cases of
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arson; higher than a five-year starting point.
M M
41. This was a planned, calculated and premeditated offence; the
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defendant bought materials and made petrol bombs before he arrived at the
O O
scene. There was prior preparation, it was not an offence committed on
P
the spur of the moment. This made the lack of emotion on his part palpable. P
Moreover, his manner of dress was deliberately designed to avoid
Q Q
identification and arrest.
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42. It is an aggravating factor that for this arson offence the
S S
defendant intended to use petrol bombs to achieve his purpose. This was
T not a case of arson by setting fire to newspaper or rubbish or a curtain. The T
potential harm and mayhem that could have been caused was considerable
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B B
because once a petrol bomb is ignited and thrown, it is quite impossible to
C foresee the possible or likely consequences. A petrol bomb is an unstable C
weapon in such a situation. It is also possible an already volatile situation
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could have been made much worse.
E E
43. Lastly, the fact is, knowing police officers were clearing
F F
barricades, he wanted to set fire to them. It was because the police were
G there that he wanted to set fire to them. He acted with the utmost contempt G
and disdain for law and order. The police arrived to try and maintain public
H H
order. The defendant crossed the line, such a line exists to protect public
I order because society is prone to descend into anarchy if public order is not I
preserved.
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K 44. The maximum sentence that can be imposed for charge 1 is 3 K
years imprisonment. In view of the facts, number of petrol bombs and his
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intention to use them, I will adopt a starting point of 2 years and 6 months
M for charge 1. M
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45. I will adopt a starting point of 6 years for charge 2. The
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defendant pleaded guilty at the earliest opportunity therefore, he will
P
receive a one third reduction in his sentences. Other than this, there is P
nothing I find would warrant any further reduction in sentences.
Q Q
R 46. For charge 1, 2 years and 6 months reduced by one third is 1 R
year and 8 months. For charge 2, 6 years reduced by one third is 4 years.
S S
T 47. These offences are related in that the defendant attempted to T
commit charge 2 with an offensive weapon of charge 1. I take the view that
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B B
an overall sentence of 4 years sufficiently reflects the defendant’s overall
C criminality and culpability. Therefore, I order the sentence of charge 1 to C
be served concurrently with that of charge 2, resulting in a total term of 4
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years’ imprisonment.
E E
F F
G G
( A J Woodcock )
H District Judge H
I I
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K K
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DCCC 57/2020
C [2020] HKDC 473 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 57 OF 2020
F F
G ----------------------------- G
HKSAR
H H
v
I YIU SIU HONG I
-----------------------------
J J
K Before: Her Honour Judge A J Woodcock in Court K
Date: 24 June 2020
L L
Present: Miss Angela Wong, Public Prosecutor, for HKSAR/Director
M of Public Prosecutions M
Mr Kwan Man Wai, Steven, instructed by O Tse & Co,
N N
assigned by the Director of Legal Aid, for the defendant
O Offence: [1] Possession of offensive weapons in a public place（在公 O
P
眾地方管有攻擊性武器） P
[2] Attempted arson with intent（有意圖而企圖緃火）
Q Q
R ----------------------------------------- R
REASONS FOR SENTENCE
S S
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T T
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A A
B B
1. The defendant pleaded guilty to 2 offences. He pleaded guilty
C to possession of offensive weapons in a public place, contrary to section C
33 (1) and (2) of the Public Order Ordinance, Cap 245, Charge 1. On 13
D D
October 2019, outside Tong Ming Street Park, Tong Ming Street, Tseung
E Kwan O, the defendant, without lawful authority or reasonable excuse, had E
with him offensive weapons, namely 2 petrol bombs.
F F
G 2. He also pleaded guilty to attempted arson with intent, contrary G
to section 60 (2) and (3), 63 (1) and 159G of the Crimes Ordinance,
H H
Cap 200, Charge 2. On the same day and at the same location, without
I lawful excuse, the defendant attempted to damage by fire property I
belonging to himself or another, intending to damage such property, and
J J
intending thereby to endanger the life of another or being reckless as to
K whether the life of another would be thereby endangered. K
L L
Facts of the case
M M
3. The defendant admitted the amended Summary of Facts
N N
including a background of the time and place where he was arrested. He
O agreed that in the afternoon of 13 October 2019 a few hundred protesters O
had assembled in the material area and committed various unlawful acts
P P
which included setting up barricades across roads and setting fires on main
Q carriageways. By about 6:15 pm in the evening, around 40 to 50 protesters Q
had set up barricades and blocked the junction of Tong Chun Street and
R R
Tong Ming Street. Police officers arrived to restore order and traffic at
S about 6:35 pm. When they arrived, some protesters dispersed. S
T T
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A A
B B
4. At around 6:41 pm there were two layers of barricades across
C the road. The distance between them was the width of two vehicle lanes. C
Vehicles on Tong Ming Road were blocked by these barricades. The facts
D D
state that police officers were clearing those barricades when the defendant
E walked out from the direction of the second layer of barricades outside E
Tong Ming Street Park. He was holding a glass bottle containing petrol
F F
with a cloth inserted into the bottle in his right hand and a lighter in his left
G hand. G
H H
5. Four off-duty police officers were nearby and witnessed the
I defendant walk towards the police officers who were clearing the I
barricades on the road at that junction whilst he attempted to use the lighter
J J
to light the petrol bomb. They immediately approached him and one
K officer grabbed his right hand. There was a struggle and the defendant K
attempted to run away. He was pushed towards a roadside planter and
L L
subdued.
M M
6. The defendant was dressed in a black jacket, a blue T-shirt,
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black long trousers, black cap, wearing gloves and a black balaclava. He
O was carrying a black rucksack. In that rucksack the police found another O
petrol bomb, a white cloth, a laser pointer, a helmet, a respirator, 15 plastic
P P
zip ties, a can of spray paint and a pair of forearm sleeves. There is no
Q dispute that the petrol bombs contained petrol, a flammable liquid. Q
R R
7. The defendant was arrested and cautioned. He remained
S silent under caution. On the following day a video recorded interview was S
conducted where he initially said nothing under caution. However, during
T T
this interview, he was shown the exhibits seized and then admitted
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possessing the petrol bombs. He admitted he was attempting to light the
C petrol bomb to throw towards the barricades when he was arrested. He C
admitted ownership of all the exhibits found on him and in his bag.
D D
E 8. The defendant told the police under caution that he had bought E
the Naptha from a hardware store in Kwun Tong and poured the flammable
F F
liquid into two glass bottles. He intended to light and throw the petrol
G bombs towards the barricades to stop the police from proceeding during G
the confrontation. He admitted that he intended to use the lighter to light
H H
the cloth of the petrol bomb. He was wearing a black cap and a balaclava
I at the time to hide his identity during protests. He had the helmet, gloves, I
respirator and filters to protect himself during protests. He claimed that
J J
the laser pointer, red spray paint and plastic zip ties were for his work, in
K the stage design field. K
L L
9. The defendant admitted to the police that he was holding a
M petrol bomb in his right hand and a lighter in his left hand intending to light M
the petrol bomb and throw it at the barricades.
N N
O 10. The defence submitted a photograph of the junction of Tong O
Chun Street and Tong Ming Street marked MFI-1. The defendant says
P P
where the photograph is circled in blue is where he was subdued. The two
Q orange lines represent 2 rows of barriers erected by the protesters which Q
disrupted traffic. He says that the area circled in green is where there were
R R
police vehicles parked that had arrived to restore order and assist vehicles
S affected by the barriers, including their own. The prosecution doesn’t S
dispute this description.
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Mitigation
C C
11. The defendant is now 23 years old and has a clear record. He
D D
is an only child and finished Form six education. He had hopes to further
E his studies in Taiwan but in 2015 his father suffered a work related injury E
and has not been in employment since. After that, they relied on as a family
F F
the defendant’s mother’s income as a clerk. Sadly, she was diagnosed with
G cancer in 2017 which could not be cured. In fact, the cancer spread all over G
her body and she succumbed to the disease on 26 May this year.
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I 12. I have been told that the defendant was remanded in custody I
after his arrest in October last year but was granted bail because his mother
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by then was terminally ill. He was released on bail six days before she
K passed away. K
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13. The defendant’s best mitigation is his plea of guilty at the
M earliest opportunity. In mitigation, I have received a letter written by the M
defendant and others. They include his previous football coach, his present
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employer and several from his former teachers.
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14. I don’t intend to repeat the contents of all the letters. The
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defendant explains how he became the breadwinner of the family after his
Q father was injured and his mother was diagnosed with cancer. Instead of Q
continuing his education in Taiwan, he found a job which he happily
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enjoyed and has been gainfully employed in for the past three years. He
S has worked in stage lighting with success and hopes to excel in this field. S
His employer praises his diligence and work ethics.
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15. In the defendant’s letter, he also explains that he became
C involved in the social movement against the extradition bill. I quote, “in C
face of the social injustice and the underserved justice, the people around
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me and I were forced to voice out our opinion. I was deeply troubled about
E choosing between the social movement and my family.” Since his remand E
he has had time to reflect and understands that violence now cannot resolve
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issues.
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16. The letters from his football coach from seven years ago and
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his teachers at school all stress he was a talented football player and
I represented the school often. He was respectful at school and polite to I
teachers. He had integrity and was kind to fellow students. Many comment
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on his attachment to his family; he is a filial son.
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17. Mr Kwan for the defendant, has said all he can say on behalf
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of the defendant. In his written mitigation he described the defendant as
M being like other young people in Hong Kong with their own ideas of utopia M
and justifiable grievances against certain public policy. He however does
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not try to justify the use of violence to reflect anger. He makes this
O statement as an explanation for the defendant acts not as an excuse. O
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Reasons for sentence
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18. There should be no doubt in anyone’s mind that an offence of
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this nature, irrespective of motive or reason is to be taken and viewed with
S the utmost seriousness. The Court of Appeal said in The Queen v Li Mun S
Tong CACC 309/1994 “Arson, because of the inherent danger in any
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uncontrolled fire, is always regarded as an offence of particular gravity.
C Arsonists exhibit reckless disregard for life and property.” C
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19. A section 60(2) offence is the far more serious charge for
E arson because it requires an additional mens rea, this being the intent, by E
the destruction or damage, to endanger the life of another or being reckless
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as to whether the life of another would be thereby endangered.
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20. The defendant tendered his plea of guilty to charge 2 on the
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basis that he intended to damage barricades on the road with fire and was
I being reckless as to whether the life of another would be thereby I
endangered; he was not intending to endanger the life of another. The
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prosecution does not challenge this mitigation. The defendant’s culpability
K will be assessed on this basis. Mr Kwan submitted the defendant as he told K
the police under caution wanted to throw the petrol bombs towards the
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barricades to stop the police from proceeding during the confrontation.
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21. Mr Kwan has referred me to HKSAR v Wong Chun Kit 2018
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HKDC 360, a District Court case where the court sentenced a defendant
O suffering from mental illness who lit a fire on a rooftop of a multi-storey O
building and locked himself on the rooftop, denying access to others. The
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court reviewed the sentences of 5 cases from the District Court.
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22. With respect, that case and those cases reviewed are of no
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assistance to me in passing sentence. None are remotely similar or
S comparable to the facts in this case. S
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23. I bear in mind that arson can attract a life sentence. Such a
C maximum sentence highlights the seriousness with which deliberately C
starting fires must be viewed. There is no tariff or guidelines for arson.
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Each case very much depends on its own facts and circumstances; these
E vary so much in cases of arson. In HKSAR v Kung Pak Fu 2008 2 E
HKCLRT 240 the Court of Appeal reviewed a number of arson cases and
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said at paragraph 23;
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“….. arson is an extremely serious offence. That said, we do not
H consider it appropriate to lay down sentencing guidelines for this H
offence because its gravity differs from case to case, particularly
in cases involving family disputes or souring of relationships.
I The court must impose a sentence which properly reflects the I
gravity of the particular case.”
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24. Mr Kwan has also referred me to the appendix in Cross and
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Cheung’s “Sentencing in Hong Kong”, the eighth edition. That appendix
L refers to cases on quantum of sentence for certain offences. Under “Arson” L
on page 721 there are a list of cases and sentences imposed with a brief
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description of the facts. The learned authors comment that sentences tend
N to start at about 5 years’ imprisonment although they may be very much N
higher when life and property is seriously endangered by the actions of the
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arsonist. I take note that the Court of Appeal in Chau Yuk Kuen v The
P Queen CACC 402/1980 said “We feel that the tariff sentence for this type P
of appeal should be at least 4 to 5 years.”
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25. Mr Kwan distinguishes those cases referred to in the appendix
S as they were usually either committed inside multi-storey buildings or at S
market stalls or in the dead of night in highly populated places. However,
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many of those cases occurred in domestic or other situations where the
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arsonist was in a highly emotionally charged state of mind meaning his
C conduct was due to emotional distress or mental distress. Here no such C
emotion was present except perhaps the dangerous emotion of malevolence
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and reprisal.
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26. Defence counsel has asked me to consider the following
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factors as relevant and suggested that a sentence of 24 months or less would
G be appropriate for this arson charge. He highlights that this case was only G
an attempted arson; an incomplete offence. No property was actually
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damaged nor was anybody injured. The arson was attempted in an open
I space as opposed to inside a building or in a crowded area. The offence I
took place in the afternoon, during daylight when any fire would have been
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easily detected before it had a chance to spread. He also asked me to take
K into account the fact that the defendant did not stand to gain financially or K
personally from this offence and that it was the protests of that time that
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led to the defendant’s anger and him resorting to violence to vent his anger.
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27. Mr Kwan stresses that the defendant attempted to commit
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arson in an open space on a road during daylight hours. He comments that
O the police officers who were at the barricades were wearing protective O
items of clothing and were more than likely equipped with fire
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extinguishers. If a fire had started, then there were enough officers around
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to deal with it in a swift manner. None of these factors make the offences
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less serious. R
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28. Sentencing guidelines for Public Order offences (including
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riot, violent disorder, affray and other offences in the Public Order Act T
1986) in UK have been published by the Sentencing Council in October
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2019. The purpose of the guidelines is to provide a clear framework to be
C used by all courts in England and Wales to ensure a consistent approach in C
sentencing offenders aged 18 years or over convicted of Public Order
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offences. The guidelines direct the court to first determine the offence
E category before finding an appropriate starting point and category range. E
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29. In order to determine the offence category, the court should
G assess both Culpability and Harm. Culpability can be divided into category G
A and category B. Category A is more serious and lists four factors which
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includes where an offender used or intended to use a petrol bomb or
I incendiary device. Category B includes any incident of riot not including I
category A factors.
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K 30. Harm can be divided into category 1 and category 2. The level K
of harm is determined by weighing up all the factors of the case to
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determine the harm that has been caused or was intended to be caused.
M Examples of category 1 factors, which is more serious, includes an incident M
which results in serious physical injury or very serious fear and/or distress.
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An incident which causes serious disruption or severe detriment impact to
O community. An incident which involves attacks on police or public O
servants and incidents which results in extensive damage to property.
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There are other examples of category 1 factors listed in the guidelines.
Q Category 2 would include all other cases. Q
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31. If an offence consists of a category 1 Harm and a category A
S Culpability factor, the Sentencing Council in UK suggests a starting point S
of 7 years’ imprisonment and gives a category range of 6 to 9 years’
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imprisonment. If an offence consisted of a category 2 Harm and a category
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B Culpability factor, the sentencing council suggests a starting point of 5
C years’ imprisonment and gives a category range of 3 to 6 years’ C
imprisonment.
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E 32. The guidelines suggest a list of aggravating factors which can E
increase a starting point. Those include, for example, an offender being
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masked or disguised to evade detection, like the defendant here.
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33. The defendant has not been charged with a public order
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offence nor was there a riot or unlawful affray at that junction where he
I intended to throw that petrol bomb when the police were clearing away the I
blockades but the sentencing council’s guidelines give an insight into how
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serious the use of petrol bombs is viewed as is targeting police officers or
K public servants. In this case, throwing them in the direction of the police to K
prevent them carrying out their duty. The defendant did agree in his
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Summary of Facts that there were a few hundred protesters there that
M afternoon who had unlawfully built barricades and set fires on M
carriageways. Those protesters dispersed when the police arrived at the
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scene allowing the police to start to clear the barricades.
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34. In Hong Kong there are no previous authorities with similar
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facts. The scenario where petrol bombs are thrown despite police being
Q present is unprecedented here as far as sentencing is concerned. An attempt Q
to intentionally damage by fire property belonging to another and being
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reckless as to whether the life of another would be thereby endangered is
S graver than conduct which is likely to cause serious damage to property S
and should therefore attract a higher and deterrent sentence.
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35. Here, police officers near the barricades were trying to
C remove the barricades from the carriageway. The defendant says he C
intended to throw a petrol bomb to light barricades which were close to
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another line of barricades being cleared by police officers at that material
E time. He had no regard and was reckless as to whether police officers E
working there or nearby or perhaps other protesters would be hurt and
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injured. His culpability is high and the imminence of harm and the gravity
G of the threat are factors I consider relevant to sentence. G
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36. The defendant explained that he wanted to voice out his
I opinion against the Extradition Bill but to do it with petrol bombs is I
absolutely unacceptable. The Extradition Bill had been shelved months
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before 13th October 2019. That material day and in fact that period of time
K in Hong Kong was particularly violent with citywide conflicts, protests and K
destruction of property. Petrol bombs were being thrown indiscriminately.
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He was out on streets intending to commit the offence of arson. He was
M well-prepared to cause trouble which is obvious from the paraphernalia he M
had in his rucksack.
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O 37. Such criminal acts should never be confused or associated O
with legitimate and peaceful protest. The defendant’s possession of petrol
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bombs and his intention to throw a petrol bomb with intent, a weapon that
Q is notoriously unstable, makes him a criminal, not a protester and he should Q
be treated as such.
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S 38. The fact the defendant was of a previous good character does S
not carry significant weight when the intention is to cause serious damage
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to property and being reckless as to whether the life of another would be
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endangered. Such an intention and recklessness would be enough to
C warrant a sentence of significant length. Sentencing is a balancing act and C
in some cases the serious nature, circumstances and the prevalence of the
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offence recently requires a custodial sentence that serves as a deterrent to
E others and will therefore take priority over the personal details and E
mitigation of the defendant.
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G 39. I have nevertheless, taken into account his age, previous clear G
record and mitigation put forward on his behalf. It was an arson not carried
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through to a conclusion thankfully due to eagle eyed off duty police
I officers. I take on board the observation that police officers would have I
been wearing protective gear and normally carry fire extinguishers.
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K 40. In considering an appropriate starting point I find several K
features which places these facts in the range of the more serious cases of
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arson; higher than a five-year starting point.
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41. This was a planned, calculated and premeditated offence; the
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defendant bought materials and made petrol bombs before he arrived at the
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scene. There was prior preparation, it was not an offence committed on
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the spur of the moment. This made the lack of emotion on his part palpable. P
Moreover, his manner of dress was deliberately designed to avoid
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identification and arrest.
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42. It is an aggravating factor that for this arson offence the
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defendant intended to use petrol bombs to achieve his purpose. This was
T not a case of arson by setting fire to newspaper or rubbish or a curtain. The T
potential harm and mayhem that could have been caused was considerable
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because once a petrol bomb is ignited and thrown, it is quite impossible to
C foresee the possible or likely consequences. A petrol bomb is an unstable C
weapon in such a situation. It is also possible an already volatile situation
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could have been made much worse.
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43. Lastly, the fact is, knowing police officers were clearing
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barricades, he wanted to set fire to them. It was because the police were
G there that he wanted to set fire to them. He acted with the utmost contempt G
and disdain for law and order. The police arrived to try and maintain public
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order. The defendant crossed the line, such a line exists to protect public
I order because society is prone to descend into anarchy if public order is not I
preserved.
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K 44. The maximum sentence that can be imposed for charge 1 is 3 K
years imprisonment. In view of the facts, number of petrol bombs and his
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intention to use them, I will adopt a starting point of 2 years and 6 months
M for charge 1. M
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45. I will adopt a starting point of 6 years for charge 2. The
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defendant pleaded guilty at the earliest opportunity therefore, he will
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receive a one third reduction in his sentences. Other than this, there is P
nothing I find would warrant any further reduction in sentences.
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R 46. For charge 1, 2 years and 6 months reduced by one third is 1 R
year and 8 months. For charge 2, 6 years reduced by one third is 4 years.
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T 47. These offences are related in that the defendant attempted to T
commit charge 2 with an offensive weapon of charge 1. I take the view that
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an overall sentence of 4 years sufficiently reflects the defendant’s overall
C criminality and culpability. Therefore, I order the sentence of charge 1 to C
be served concurrently with that of charge 2, resulting in a total term of 4
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years’ imprisonment.
E E
F F
G G
( A J Woodcock )
H District Judge H
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