DCCC105/2020 HKSAR v. LEUNG YAT CHI FRANKIE - LawHero
DCCC105/2020
區域法院（刑事）HH Judge A. J. Woodcock31/8/2020[2020] HKDC 746
DCCC105/2020
A A
DCCC 105/2020
[2020] HKDC 746
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 105 OF 2020 C
D
---------------------- D
HKSAR
E E
v
F Leung Yat-chi Frankie F
G ---------------------- G
Before: HH Judge A. J. Woodcock
H Date: 1 September 2020 at 2.33 pm H
Present: Mr Timothy Chen Ke-hong, SPP (Ag) of the Department of
Justice, for HKSAR
I Mr Chris Ng Chung-luen and Mr Timothy Ryan Wong, I
instructed by Adrian Lau & Yim for the defendant
J Offence: (1) Possession of an imitation firearm (管有仿製火器) J
(2) Possession of offensive weapon in a public place
(在公眾地方管有攻擊性武器)
K K
(3) Dangerous driving (危險駕駛)
L --------------------- L
M Reasons for Sentence M
---------------------
N N
1. The defendant pleaded guilty to three charges. On the
O O
fourth day of September 2019 the defendant had in his possession
one imitation firearm, an airgun (Charge 1). On the same day in
P P
a public place, without lawful authority or reasonable excuse,
Q he had with him two offensive weapons, two knifes (Charge 2). Q
Lastly, on the same day, he drove a vehicle on the road
R dangerously (Charge 3). R
S Summary of facts S
2. At about 6.50 pm on 4 September 2019, three police
T T
officers were on board a police vehicle, AM8437, travelling
along the Island Eastern Corridor westbound towards Causeway Bay
U U
when the defendant, in a light goods vehicle, VW3193, suddenly
CRT24/1.9.2020/ML 1 DCCC 105/2020(1)/Sentence
V V
A A
overtook AM8437 from the offside, so close that the police
driver had to apply his brakes immediately in order to avoid a
B B
collision with the defendant’s vehicle.
C C
3. The driver turned on the police flashing blue emergency
D lights and switched on the vehicle’s loudspeaker before D
requesting the defendant to pull over. The defendant refused the
E E
request and then proceeded to drive dangerously through several
streets of Causeway Bay and North Point. AM8437 chased the
F F
defendant and repeatedly demanded he stop over the loudspeaker.
G The defendant weaved in and out of vehicles and jumped two red G
lights before pulling over.
H H
4. AM8437 had a camera, which captured the chase through
I I
the streets at times at speed and the erratic driving manner as
well as the defendant jumping red lights twice at busy
J J
junctions. Luckily, no other driver or pedestrian was injured.
K
The CCTV of that camera was viewed in court during mitigation. K
L 5. Whilst AM8437 was following the defendant’s vehicle, on L
at least four occasions, the defendant extended his right hand
M out of the driver’s window and pointed a pistol-like object, M
later known to be an airgun, at the police vehicle behind him.
N N
6. During this car chase, the defendant stopped at a
O O
traffic light on King’s Road outside Metropole Building and
P alighted from his vehicle. He then pointed the gun at AM8437 P
behind him before getting back into the vehicle and driving off.
Q This was also captured on CCTV. Q
R R
7. Eventually the defendant stopped his vehicle on Kin Wah
Street in North Point and got out of his vehicle, pointing the
S S
airgun at the police vehicle that had pulled up behind him.
T Three police officers alighted from AM8437 and ordered the T
defendant to drop the airgun. When he did, they went forward and
U subdued him. He was arrested at the scene. Under caution, he U
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V V
A A
stated that he wanted revenge for the protestors because the
police had beaten them up.
B B
C 8. He was searched and the police found on him another C
magazine to fit the same airgun containing 24 plastic pellets.
D They also found two surgical knives in a pouch at his waist D
area. In the airgun that he had pointed at the police and
E E
subsequently dropped to the ground was a magazine containing 22
plastic pellets. The police found another separate magazine for
F F
that airgun inside the defendant’s vehicle.
G G
9. The police also seized a mobile phone from his waist-
H bag at the time of his arrest and found during a preliminary H
examination, messages and posts about killing police officers
I I
and killing those who supported the proposed extradition bill
that were sent from and posted on the defendant’s WhatsApp and
J J
Facebook accounts.
K K
10. He was subsequently taken to his home address where a
L search was conducted. The police found another airgun, an air L
rifle that was not in working order, four more magazines, some
M parts resembling the components of a air rifle, and two M
sharpened samurai swords. Those magazines found at the scene and
N N
in his home were designed to store 6mm calibre plastic pellets.
O O
11. There was also a desktop computer seized and an
P examination of it found two Microsoft Word documents containing P
contents about beating up and/or killing police officers.
Q Q
12. The defendant gave two video recorded interviews under
R R
caution and he told the police that he was working as a delivery
driver. He was receiving regular psychological treatment. He
S S
was referred to what he said under caution at the scene and he
T elaborated that it was the police who had abused their powers on T
31 August 2019. When asked about the two surgical knives he was
U carrying, he said he planned to use them to stab the police U
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V V
A A
because they had made unreasonable arrests, fired tear gas, and
used unreasonable force. He was planning to kill an off-duty
B B
police officer at a police station but he had no specific
C officer nor a specific police station in mind. C
D 13. On that day he had received a parking ticket when D
illegally parked earlier and he was angry. When he saw the
E E
police vehicle AM8437, he wanted to provoke the police. He
admitted that when he was driving dangerously and on several
F F
occasions he pointed his airgun out of the driver’s window at
G the police vehicle and he fired pellets from his airgun at it. G
H 14. He explained that the WhatsApp messages and Facebook H
posts were sent and posted by him. They were about killing
I I
police officers and killing supporters of the extradition bill.
He did say that he was making comments in those posts and had no
J J
actual intention to kill anybody.
K K
15. The airguns and magazines found in his home were used
L by him when he played war games and he had recently purchased L
those samurai swords. He did sharpen them and had thought of
M using them to kill police officers and people from Fujian. M
However, he had no actual intention to kill anybody.
N N
16. The defendant admitted the Summary of Facts and the
O O
elements of all three charges. He is not a man with a clear
P record. He has five previous convictions. In 2008 he was P
ordered to serve a probation order for an indecent assault
Q conviction. In 2010 he was fined for a common assault. In 2018 Q
he was convicted of two charges of indecent assault and one
R R
charge of possession of an offensive weapon in a public place
after a plea. It was this court that sentenced him to 1 year and
S S
8 months’ imprisonment after a plea.
T T
U U
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V V
A A
Mitigation
17. The defendant is now 38 years old and before his arrest
B B
he was working as a driver, earning $15,000 a month. He lives
C alone after his parents passed away. I have been told previously C
that he is close to his aunt but not close to his only sibling.
D D
18. Back in 2018, for the purposes of sentencing the
E E
defendant, I had called for medical reports. A psychologist said
the defendant was a man with a mild grade intellectual
F F
disability. In an updated psychiatric report from the Castle
G Peak Hospital, where the defendant has been receiving treatment G
since 2018, which I now mark as MFI-1, a psychiatrist said the
H defendant was impressed to have autistic spectrum traits given H
his social and speech deficits. After his release from his last
I I
prison sentence, he continued to have outpatient follow-up
treatment. He was on medication.
J J
K
19. He was seen by this psychiatrist after his arrest for K
these offences and he told the doctor he was having some
L emotional fluctuation because of the social unrest and that he L
was disgruntled with the police in how they executed their
M duties. He had developed a hatred towards police officers and M
said he began to carry on him an airgun and knives when he went
N N
out since late August 2019 as he felt unsafe travelling around
in areas where there were frequent protests.
O O
P 20. He told the psychiatrist that on the material day he P
tried to overtake the police vehicle which led to the police
Q ordering him to pull over. He felt he was being provoked by Q
those police officers and was angry. He then took out his airgun
R R
and shot a few times aiming at the body of their vehicle. He
owned the airgun because he was fond of playing war games. The
S S
doctor’s conclusion was that he had traits of autism spectrum
T disorder and an underlying paraphilia disorder. Continued T
treatment is recommended.
U U
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V V
A A
21. I referred myself to my Reasons for Sentence in DCCC
262/2018, when I sentenced the defendant to a term of
B B
imprisonment. I was given an insight into the defendant’s
C upbringing by his aunt. She wrote and said that his mother had C
had a difficult birth with him. He had been starved of oxygen
D during the birth, which led to him having a mild grade D
intellectual disability. He was originally studying at a special
E E
school when he started school because of an autism diagnosis but
he later transferred to a mainstream school. However, there he
F F
was mercilessly bullied by the children because he had a
G noticeable speech impediment. G
H 22. I was told he developed behavioural problems at school H
and was referred to a psychologist even then. He dropped out of
I I
school in Form 4. In 2008, when he committed his first offence,
he did get proper psychological help and treatment but that
J J
stopped when his probation order ended, which was very
K
unfortunate. He was close to his mother but she died in 2011, K
leaving him to fend for himself.
L L
23. In mitigation, Mr Ng for the defendant has said all he
M can say on his behalf and I thank him for his written M
submissions. He explained that just prior to the offence date
N N
the defendant had damaged his employers vehicle and had to pay
compensation. This left him struggling to make ends meet
O O
financially. He had no close friends nor family able or willing
P to lend him money or financially support him. He even had P
trouble with everyday expenses. This left him under great stress
Q emotionally. Q
R R
24. On the date of the offence he had no money for food or
parking fees. He had asked his employer for an advance from his
S S
salary due in two weeks but his request was refused. He was
T upset and sad by this refusal and his stress was amplified. T
U U
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V V
A A
25. He was on his way to make a delivery when he saw the
police vehicle AM8437. This made him think of the recent clashes
B B
between the police and protestors. These thoughts, coupled with
C his unhappy, stressed state of mind, led him to commit these C
offences impulsively. He wanted to vent his unhappiness and
D resentment towards the police so he pointed his airgun at their D
vehicle. He only intended to aim at the vehicle, not at police
E E
officers or anybody else.
F F
26. He did carry around two surgical scalpels he had bought
G online but for his own sense of security rather than because he G
had a real intention to stab somebody. It was said in mitigation
H that in fact he dared not harm anybody. I have a letter from the H
defendant himself stressing this mitigation. I also have a
I I
letter from a ministry officer of a Christian group who has come
to know the defendant well since his incarceration in 2018.
J J
K
27. Mr Ng rightly points out that, according to the K
Firearms and Ammunition Ordinance, Cap 238, a person would be
L liable to a maximum term of imprisonment of 2 years for L
possession of an imitation firearm, unless they, within 10 years
M of being convicted of an offence specified in the schedule or an M
offence under that same ordinance, commit that offence of
N N
possession of an imitation firearm. If they fall foul of that
section, then they are liable to imprisonment a maximum term of
O O
7 years. The defendant was convicted of indecent assault in 2018
P and common assault in 2010, which are offences under that P
schedule. Therefore he now faces a maximum term of imprisonment
Q of 7 years for Charge 1. Q
R R
28. I have been referred to the official report of
proceedings in the Legislative Council dated 8 July 1981, where
S S
there was a second reading of the Arms and Ammunition bill to
T replace the former Arms and Ammunition Ordinance. I have now T
marked it as MFI-2. Mr Ng stresses the legislative intent in
U enhancing the maximum sentence if an offender has been convicted U
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V V
A A
of an offence under the schedule in the previous 10 years was to
penalise and deter the possession of imitation firearms for
B B
illegal purposes. I have been referred to page 1025.
C C
29. Mr Ng submits that the possession of an imitation
D firearm in this case was not related to an offence such as D
common assault and indecent assault, these being his past
E E
convictions that enhance the maximum sentence to one of 7 years.
Therefore, the current case and facts lack the requisite
F F
aggravating factor to impose a sentence that is higher than the
G normal maximum penalty of 2 years’ imprisonment. The defendant G
did not carry an airgun to commit an offence related to violence
H or an offence of a sexual nature. H
I I
30. With respect, I do not agree. By his own admissions,
the defendant used the airgun to shoot at the police vehicle in
J J
a very public place; that is during rush hour in the busy
K
streets of Causeway Bay and North Point. K
L 31. I have been referred to many previous sentences L
involving possession of an imitation firearm, possession of an
M offensive weapon in a public place, and dangerous driving. Most M
of those cases and authorities have very different facts to this
N N
case. None of these offences have guidelines or tariffs.
Sentences therefore will be decided on the individual facts of
O O
each individual case.
P P
32. What is stressed in mitigation is the defendant did not
Q use the firearm to rob a victim or the scalpels to commit a Q
similar offence. He committed the current offences because of
R R
his anger towards the police. His anger was amplified by his own
financial difficulties. He saw the police vehicle and vented his
S S
emotions impulsively. It is stressed that no police officer was
T injured nor was any member of the public as a result of his T
actions and dangerous driving.
U U
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A A
33. I take into account everything said on behalf of the
defendant and being angry with the police or indeed any public
B B
body or person is not an offence but actions arising from that
C anger, even if impulsively, that are criminal in nature bears C
consequences.
D D
34. His actions of overtaking the police vehicle too
E E
closely and then driving dangerously may not have been
premeditated or planned but he did have in his vehicle an airgun
F F
with magazines containing plastic pellets which he subsequently
G aimed and fired as well as two sharp surgical scalpels in G
pouches on his waist. He made a conscious decision to carry them
H on his person and in his vehicle. H
I I
35. The defendant knows full well that carrying weapons out
in public could lead to his arrest, conviction and imprisonment
J J
because I only sentenced him to prison for the same offence in
K
August 2018; that is about one year before this offence. K
L Reasons for sentence L
36. I have to balance the defendant’s personal mitigation
M and mental issues against the seriousness of the offences and M
his culpability. I have taken into account he lives
N N
independently, has full-time employment, and knows the
difference between right and wrong.
O O
P 37. His posts on his mobile phone sent out on Facebook and P
WhatsApp as well as the documents on his home computer
Q containing similar contents about beating up or killing police Q
officers show that not only was he thinking about violent acts
R R
against the police and those that supported the extradition
bill, but that he was verbalising them publicly as well. Not
S S
only did he verbalise his opinions and hateful violent thoughts
T but carried an airgun and surgical scalpels out in public whilst T
such thoughts were running through his mind.
U U
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V V
A A
38. This, in my view, amplifies the seriousness of the
facts and Charges 1 and 2. The facts in this case show he is
B B
capable of foolish, impulsive acts driven by his emotions. It is
C not unimaginable that he might have acted on some of those more C
violent thoughts. After all, he acted on his emotions when he
D saw a police vehicle on the road. When told to stop by the D
police after a particular bad piece of driving, he acted in an
E E
irrational manner and then drove dangerously.
F F
39. I do take into account the fact that the imitation
G firearm, the airgun, was capable of discharging energy less than G
2 joules and 6mm calibre plastic pellets. It was not a powerful
H airgun. There is no evidence to the contrary. However, the H
police following him were not to know that at the time, nor were
I I
other drivers and pedestrians near him who watched him get out
of his vehicle or lean out whilst driving and fire it at the
J J
police vehicle behind him. There could have been other
K
foreseeable consequences if drivers or pedestrians had been K
alarmed and frightened by his actions.
L L
40. Having considered the facts of the case, mitigation put
M forward, the defendant’s remorse, and mitigation letters M
submitted, I find a starting point of 3 years and 6 months’
N N
appropriate for Charge 1.
O O
41. Charge 2 carries a maximum of 3 years’ imprisonment on
P indictment and I find it appropriate to impose the maximum as a P
starting point, where the weapons were two surgical scalpels and
Q he expressed an intention to use violence against a police Q
officer.
R R
42. Charge 3 carries a maximum sentence of 3 years’
S S
imprisonment for dangerous driving and a fine of $25,000. There
T is also a minimum disqualification period of 6 months and a T
requirement for an order for the defendant to attend and
U complete a driving improvement course. The defendant has one U
CRT24/1.9.2020/ML 10 DCCC 105/2020(1)/Sentence
V V
A A
previous for careless driving in 2014 and several speeding
tickets.
B B
C 43. The courts have often reminded motorists in sentencing C
that a motor vehicle, when not driven to requisite standards,
D can kill or maim. A vehicle can become a dangerous weapon and D
normally deterrent sentences are called for.
E E
44. This is not a case where a driver had a momentary lapse
F F
of judgment and drove dangerously, but a more serious and
G culpable case where the defendant had a selfish disregard to G
other road-users and pedestrians at that time. There was a lot
H of traffic at that time and he weaved in and out of that traffic H
at speed to avoid the police. He then jumped red lights, putting
I I
pedestrians and other road-users at risk. This is made worse by
the fact that he was disobeying and ignoring an order by the
J J
police to stop his vehicle, necessitating a chase through busy
K
streets. K
L 45. I find a starting point of 2 years and 6 months’ L
appropriate for Charge 3. In addition to imprisonment, I make a
M disqualification order from driving all classes of vehicle for a M
period of 18 months.
N N
46. The defendant pleaded guilty to all charges at the
O O
earliest opportunity and is therefore entitled to the full
P discount for that plea and demonstrable remorse. P
Q 47. After a discount of one-third is applied to all Q
starting points for these pleas of guilty, the defendant is
R R
sentenced as follows:
S S
(1) Charge 1: 2 years and 4 months’ imprisonment;
T T
(2) Charge 2: 2 years’ imprisonment;
U U
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A A
(3) Charge 3: 1 year and 8 months’ imprisonment.
B B
48. I take into account the totality principle and how all
C the charges are linked. I find the dangerous driving charge C
quite distinctly separate to Charges 1 and 2, even if committed
D at the same time. D
E E
49. Accordingly, I will order Charges 1 and 2 to be served
concurrently and 8 months of Charge 3 to be served consecutively
F F
to Charge 1 and the balance concurrently. Accordingly, the
G defendant is sentenced to 3 years’ imprisonment. G
H 50. The 18-month driving disqualification period will start H
to run from the date of sentencing; that is, today. The
I I
defendant is to complete a driving improvement course at his own
expense within the last three months of the expiration of his
J J
disqualification period. The defendant is also warned that it is
K
an offence not to attend and complete this course and that he K
remains disqualified until he attends and completes the driving
L improvement course, notwithstanding the disqualification period L
may already have ended.
M M
COURT: Can I ask you if you understand that sentence?
N N
DEFENDANT: Understand.
O COURT: And the disqualification order, period of it and the O
requirement to attend a driving improvement course, you
understand that?
P P
DEFENDANT: Understand.
Q Q
R R
S S
(A J Woodcock)
District Judge
T T
U U
CRT24/1.9.2020/ML 12 DCCC 105/2020(1)/Sentence
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A A
DCCC 105/2020
[2020] HKDC 746
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 105 OF 2020 C
D
---------------------- D
HKSAR
E E
v
F Leung Yat-chi Frankie F
G ---------------------- G
Before: HH Judge A. J. Woodcock
H Date: 1 September 2020 at 2.33 pm H
Present: Mr Timothy Chen Ke-hong, SPP (Ag) of the Department of
Justice, for HKSAR
I Mr Chris Ng Chung-luen and Mr Timothy Ryan Wong, I
instructed by Adrian Lau & Yim for the defendant
J Offence: (1) Possession of an imitation firearm (管有仿製火器) J
(2) Possession of offensive weapon in a public place
(在公眾地方管有攻擊性武器)
K K
(3) Dangerous driving (危險駕駛)
L --------------------- L
M Reasons for Sentence M
---------------------
N N
1. The defendant pleaded guilty to three charges. On the
O O
fourth day of September 2019 the defendant had in his possession
one imitation firearm, an airgun (Charge 1). On the same day in
P P
a public place, without lawful authority or reasonable excuse,
Q he had with him two offensive weapons, two knifes (Charge 2). Q
Lastly, on the same day, he drove a vehicle on the road
R dangerously (Charge 3). R
S Summary of facts S
2. At about 6.50 pm on 4 September 2019, three police
T T
officers were on board a police vehicle, AM8437, travelling
along the Island Eastern Corridor westbound towards Causeway Bay
U U
when the defendant, in a light goods vehicle, VW3193, suddenly
CRT24/1.9.2020/ML 1 DCCC 105/2020(1)/Sentence
V V
A A
overtook AM8437 from the offside, so close that the police
driver had to apply his brakes immediately in order to avoid a
B B
collision with the defendant’s vehicle.
C C
3. The driver turned on the police flashing blue emergency
D lights and switched on the vehicle’s loudspeaker before D
requesting the defendant to pull over. The defendant refused the
E E
request and then proceeded to drive dangerously through several
streets of Causeway Bay and North Point. AM8437 chased the
F F
defendant and repeatedly demanded he stop over the loudspeaker.
G The defendant weaved in and out of vehicles and jumped two red G
lights before pulling over.
H H
4. AM8437 had a camera, which captured the chase through
I I
the streets at times at speed and the erratic driving manner as
well as the defendant jumping red lights twice at busy
J J
junctions. Luckily, no other driver or pedestrian was injured.
K
The CCTV of that camera was viewed in court during mitigation. K
L 5. Whilst AM8437 was following the defendant’s vehicle, on L
at least four occasions, the defendant extended his right hand
M out of the driver’s window and pointed a pistol-like object, M
later known to be an airgun, at the police vehicle behind him.
N N
6. During this car chase, the defendant stopped at a
O O
traffic light on King’s Road outside Metropole Building and
P alighted from his vehicle. He then pointed the gun at AM8437 P
behind him before getting back into the vehicle and driving off.
Q This was also captured on CCTV. Q
R R
7. Eventually the defendant stopped his vehicle on Kin Wah
Street in North Point and got out of his vehicle, pointing the
S S
airgun at the police vehicle that had pulled up behind him.
T Three police officers alighted from AM8437 and ordered the T
defendant to drop the airgun. When he did, they went forward and
U subdued him. He was arrested at the scene. Under caution, he U
CRT24/1.9.2020/ML 2 DCCC 105/2020(1)/Sentence
V V
A A
stated that he wanted revenge for the protestors because the
police had beaten them up.
B B
C 8. He was searched and the police found on him another C
magazine to fit the same airgun containing 24 plastic pellets.
D They also found two surgical knives in a pouch at his waist D
area. In the airgun that he had pointed at the police and
E E
subsequently dropped to the ground was a magazine containing 22
plastic pellets. The police found another separate magazine for
F F
that airgun inside the defendant’s vehicle.
G G
9. The police also seized a mobile phone from his waist-
H bag at the time of his arrest and found during a preliminary H
examination, messages and posts about killing police officers
I I
and killing those who supported the proposed extradition bill
that were sent from and posted on the defendant’s WhatsApp and
J J
Facebook accounts.
K K
10. He was subsequently taken to his home address where a
L search was conducted. The police found another airgun, an air L
rifle that was not in working order, four more magazines, some
M parts resembling the components of a air rifle, and two M
sharpened samurai swords. Those magazines found at the scene and
N N
in his home were designed to store 6mm calibre plastic pellets.
O O
11. There was also a desktop computer seized and an
P examination of it found two Microsoft Word documents containing P
contents about beating up and/or killing police officers.
Q Q
12. The defendant gave two video recorded interviews under
R R
caution and he told the police that he was working as a delivery
driver. He was receiving regular psychological treatment. He
S S
was referred to what he said under caution at the scene and he
T elaborated that it was the police who had abused their powers on T
31 August 2019. When asked about the two surgical knives he was
U carrying, he said he planned to use them to stab the police U
CRT24/1.9.2020/ML 3 DCCC 105/2020(1)/Sentence
V V
A A
because they had made unreasonable arrests, fired tear gas, and
used unreasonable force. He was planning to kill an off-duty
B B
police officer at a police station but he had no specific
C officer nor a specific police station in mind. C
D 13. On that day he had received a parking ticket when D
illegally parked earlier and he was angry. When he saw the
E E
police vehicle AM8437, he wanted to provoke the police. He
admitted that when he was driving dangerously and on several
F F
occasions he pointed his airgun out of the driver’s window at
G the police vehicle and he fired pellets from his airgun at it. G
H 14. He explained that the WhatsApp messages and Facebook H
posts were sent and posted by him. They were about killing
I I
police officers and killing supporters of the extradition bill.
He did say that he was making comments in those posts and had no
J J
actual intention to kill anybody.
K K
15. The airguns and magazines found in his home were used
L by him when he played war games and he had recently purchased L
those samurai swords. He did sharpen them and had thought of
M using them to kill police officers and people from Fujian. M
However, he had no actual intention to kill anybody.
N N
16. The defendant admitted the Summary of Facts and the
O O
elements of all three charges. He is not a man with a clear
P record. He has five previous convictions. In 2008 he was P
ordered to serve a probation order for an indecent assault
Q conviction. In 2010 he was fined for a common assault. In 2018 Q
he was convicted of two charges of indecent assault and one
R R
charge of possession of an offensive weapon in a public place
after a plea. It was this court that sentenced him to 1 year and
S S
8 months’ imprisonment after a plea.
T T
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A A
Mitigation
17. The defendant is now 38 years old and before his arrest
B B
he was working as a driver, earning $15,000 a month. He lives
C alone after his parents passed away. I have been told previously C
that he is close to his aunt but not close to his only sibling.
D D
18. Back in 2018, for the purposes of sentencing the
E E
defendant, I had called for medical reports. A psychologist said
the defendant was a man with a mild grade intellectual
F F
disability. In an updated psychiatric report from the Castle
G Peak Hospital, where the defendant has been receiving treatment G
since 2018, which I now mark as MFI-1, a psychiatrist said the
H defendant was impressed to have autistic spectrum traits given H
his social and speech deficits. After his release from his last
I I
prison sentence, he continued to have outpatient follow-up
treatment. He was on medication.
J J
K
19. He was seen by this psychiatrist after his arrest for K
these offences and he told the doctor he was having some
L emotional fluctuation because of the social unrest and that he L
was disgruntled with the police in how they executed their
M duties. He had developed a hatred towards police officers and M
said he began to carry on him an airgun and knives when he went
N N
out since late August 2019 as he felt unsafe travelling around
in areas where there were frequent protests.
O O
P 20. He told the psychiatrist that on the material day he P
tried to overtake the police vehicle which led to the police
Q ordering him to pull over. He felt he was being provoked by Q
those police officers and was angry. He then took out his airgun
R R
and shot a few times aiming at the body of their vehicle. He
owned the airgun because he was fond of playing war games. The
S S
doctor’s conclusion was that he had traits of autism spectrum
T disorder and an underlying paraphilia disorder. Continued T
treatment is recommended.
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CRT24/1.9.2020/ML 5 DCCC 105/2020(1)/Sentence
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A A
21. I referred myself to my Reasons for Sentence in DCCC
262/2018, when I sentenced the defendant to a term of
B B
imprisonment. I was given an insight into the defendant’s
C upbringing by his aunt. She wrote and said that his mother had C
had a difficult birth with him. He had been starved of oxygen
D during the birth, which led to him having a mild grade D
intellectual disability. He was originally studying at a special
E E
school when he started school because of an autism diagnosis but
he later transferred to a mainstream school. However, there he
F F
was mercilessly bullied by the children because he had a
G noticeable speech impediment. G
H 22. I was told he developed behavioural problems at school H
and was referred to a psychologist even then. He dropped out of
I I
school in Form 4. In 2008, when he committed his first offence,
he did get proper psychological help and treatment but that
J J
stopped when his probation order ended, which was very
K
unfortunate. He was close to his mother but she died in 2011, K
leaving him to fend for himself.
L L
23. In mitigation, Mr Ng for the defendant has said all he
M can say on his behalf and I thank him for his written M
submissions. He explained that just prior to the offence date
N N
the defendant had damaged his employers vehicle and had to pay
compensation. This left him struggling to make ends meet
O O
financially. He had no close friends nor family able or willing
P to lend him money or financially support him. He even had P
trouble with everyday expenses. This left him under great stress
Q emotionally. Q
R R
24. On the date of the offence he had no money for food or
parking fees. He had asked his employer for an advance from his
S S
salary due in two weeks but his request was refused. He was
T upset and sad by this refusal and his stress was amplified. T
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A A
25. He was on his way to make a delivery when he saw the
police vehicle AM8437. This made him think of the recent clashes
B B
between the police and protestors. These thoughts, coupled with
C his unhappy, stressed state of mind, led him to commit these C
offences impulsively. He wanted to vent his unhappiness and
D resentment towards the police so he pointed his airgun at their D
vehicle. He only intended to aim at the vehicle, not at police
E E
officers or anybody else.
F F
26. He did carry around two surgical scalpels he had bought
G online but for his own sense of security rather than because he G
had a real intention to stab somebody. It was said in mitigation
H that in fact he dared not harm anybody. I have a letter from the H
defendant himself stressing this mitigation. I also have a
I I
letter from a ministry officer of a Christian group who has come
to know the defendant well since his incarceration in 2018.
J J
K
27. Mr Ng rightly points out that, according to the K
Firearms and Ammunition Ordinance, Cap 238, a person would be
L liable to a maximum term of imprisonment of 2 years for L
possession of an imitation firearm, unless they, within 10 years
M of being convicted of an offence specified in the schedule or an M
offence under that same ordinance, commit that offence of
N N
possession of an imitation firearm. If they fall foul of that
section, then they are liable to imprisonment a maximum term of
O O
7 years. The defendant was convicted of indecent assault in 2018
P and common assault in 2010, which are offences under that P
schedule. Therefore he now faces a maximum term of imprisonment
Q of 7 years for Charge 1. Q
R R
28. I have been referred to the official report of
proceedings in the Legislative Council dated 8 July 1981, where
S S
there was a second reading of the Arms and Ammunition bill to
T replace the former Arms and Ammunition Ordinance. I have now T
marked it as MFI-2. Mr Ng stresses the legislative intent in
U enhancing the maximum sentence if an offender has been convicted U
CRT24/1.9.2020/ML 7 DCCC 105/2020(1)/Sentence
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A A
of an offence under the schedule in the previous 10 years was to
penalise and deter the possession of imitation firearms for
B B
illegal purposes. I have been referred to page 1025.
C C
29. Mr Ng submits that the possession of an imitation
D firearm in this case was not related to an offence such as D
common assault and indecent assault, these being his past
E E
convictions that enhance the maximum sentence to one of 7 years.
Therefore, the current case and facts lack the requisite
F F
aggravating factor to impose a sentence that is higher than the
G normal maximum penalty of 2 years’ imprisonment. The defendant G
did not carry an airgun to commit an offence related to violence
H or an offence of a sexual nature. H
I I
30. With respect, I do not agree. By his own admissions,
the defendant used the airgun to shoot at the police vehicle in
J J
a very public place; that is during rush hour in the busy
K
streets of Causeway Bay and North Point. K
L 31. I have been referred to many previous sentences L
involving possession of an imitation firearm, possession of an
M offensive weapon in a public place, and dangerous driving. Most M
of those cases and authorities have very different facts to this
N N
case. None of these offences have guidelines or tariffs.
Sentences therefore will be decided on the individual facts of
O O
each individual case.
P P
32. What is stressed in mitigation is the defendant did not
Q use the firearm to rob a victim or the scalpels to commit a Q
similar offence. He committed the current offences because of
R R
his anger towards the police. His anger was amplified by his own
financial difficulties. He saw the police vehicle and vented his
S S
emotions impulsively. It is stressed that no police officer was
T injured nor was any member of the public as a result of his T
actions and dangerous driving.
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A A
33. I take into account everything said on behalf of the
defendant and being angry with the police or indeed any public
B B
body or person is not an offence but actions arising from that
C anger, even if impulsively, that are criminal in nature bears C
consequences.
D D
34. His actions of overtaking the police vehicle too
E E
closely and then driving dangerously may not have been
premeditated or planned but he did have in his vehicle an airgun
F F
with magazines containing plastic pellets which he subsequently
G aimed and fired as well as two sharp surgical scalpels in G
pouches on his waist. He made a conscious decision to carry them
H on his person and in his vehicle. H
I I
35. The defendant knows full well that carrying weapons out
in public could lead to his arrest, conviction and imprisonment
J J
because I only sentenced him to prison for the same offence in
K
August 2018; that is about one year before this offence. K
L Reasons for sentence L
36. I have to balance the defendant’s personal mitigation
M and mental issues against the seriousness of the offences and M
his culpability. I have taken into account he lives
N N
independently, has full-time employment, and knows the
difference between right and wrong.
O O
P 37. His posts on his mobile phone sent out on Facebook and P
WhatsApp as well as the documents on his home computer
Q containing similar contents about beating up or killing police Q
officers show that not only was he thinking about violent acts
R R
against the police and those that supported the extradition
bill, but that he was verbalising them publicly as well. Not
S S
only did he verbalise his opinions and hateful violent thoughts
T but carried an airgun and surgical scalpels out in public whilst T
such thoughts were running through his mind.
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CRT24/1.9.2020/ML 9 DCCC 105/2020(1)/Sentence
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A A
38. This, in my view, amplifies the seriousness of the
facts and Charges 1 and 2. The facts in this case show he is
B B
capable of foolish, impulsive acts driven by his emotions. It is
C not unimaginable that he might have acted on some of those more C
violent thoughts. After all, he acted on his emotions when he
D saw a police vehicle on the road. When told to stop by the D
police after a particular bad piece of driving, he acted in an
E E
irrational manner and then drove dangerously.
F F
39. I do take into account the fact that the imitation
G firearm, the airgun, was capable of discharging energy less than G
2 joules and 6mm calibre plastic pellets. It was not a powerful
H airgun. There is no evidence to the contrary. However, the H
police following him were not to know that at the time, nor were
I I
other drivers and pedestrians near him who watched him get out
of his vehicle or lean out whilst driving and fire it at the
J J
police vehicle behind him. There could have been other
K
foreseeable consequences if drivers or pedestrians had been K
alarmed and frightened by his actions.
L L
40. Having considered the facts of the case, mitigation put
M forward, the defendant’s remorse, and mitigation letters M
submitted, I find a starting point of 3 years and 6 months’
N N
appropriate for Charge 1.
O O
41. Charge 2 carries a maximum of 3 years’ imprisonment on
P indictment and I find it appropriate to impose the maximum as a P
starting point, where the weapons were two surgical scalpels and
Q he expressed an intention to use violence against a police Q
officer.
R R
42. Charge 3 carries a maximum sentence of 3 years’
S S
imprisonment for dangerous driving and a fine of $25,000. There
T is also a minimum disqualification period of 6 months and a T
requirement for an order for the defendant to attend and
U complete a driving improvement course. The defendant has one U
CRT24/1.9.2020/ML 10 DCCC 105/2020(1)/Sentence
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A A
previous for careless driving in 2014 and several speeding
tickets.
B B
C 43. The courts have often reminded motorists in sentencing C
that a motor vehicle, when not driven to requisite standards,
D can kill or maim. A vehicle can become a dangerous weapon and D
normally deterrent sentences are called for.
E E
44. This is not a case where a driver had a momentary lapse
F F
of judgment and drove dangerously, but a more serious and
G culpable case where the defendant had a selfish disregard to G
other road-users and pedestrians at that time. There was a lot
H of traffic at that time and he weaved in and out of that traffic H
at speed to avoid the police. He then jumped red lights, putting
I I
pedestrians and other road-users at risk. This is made worse by
the fact that he was disobeying and ignoring an order by the
J J
police to stop his vehicle, necessitating a chase through busy
K
streets. K
L 45. I find a starting point of 2 years and 6 months’ L
appropriate for Charge 3. In addition to imprisonment, I make a
M disqualification order from driving all classes of vehicle for a M
period of 18 months.
N N
46. The defendant pleaded guilty to all charges at the
O O
earliest opportunity and is therefore entitled to the full
P discount for that plea and demonstrable remorse. P
Q 47. After a discount of one-third is applied to all Q
starting points for these pleas of guilty, the defendant is
R R
sentenced as follows:
S S
(1) Charge 1: 2 years and 4 months’ imprisonment;
T T
(2) Charge 2: 2 years’ imprisonment;
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A A
(3) Charge 3: 1 year and 8 months’ imprisonment.
B B
48. I take into account the totality principle and how all
C the charges are linked. I find the dangerous driving charge C
quite distinctly separate to Charges 1 and 2, even if committed
D at the same time. D
E E
49. Accordingly, I will order Charges 1 and 2 to be served
concurrently and 8 months of Charge 3 to be served consecutively
F F
to Charge 1 and the balance concurrently. Accordingly, the
G defendant is sentenced to 3 years’ imprisonment. G
H 50. The 18-month driving disqualification period will start H
to run from the date of sentencing; that is, today. The
I I
defendant is to complete a driving improvement course at his own
expense within the last three months of the expiration of his
J J
disqualification period. The defendant is also warned that it is
K
an offence not to attend and complete this course and that he K
remains disqualified until he attends and completes the driving
L improvement course, notwithstanding the disqualification period L
may already have ended.
M M
COURT: Can I ask you if you understand that sentence?
N N
DEFENDANT: Understand.
O COURT: And the disqualification order, period of it and the O
requirement to attend a driving improvement course, you
understand that?
P P
DEFENDANT: Understand.
Q Q
R R
S S
(A J Woodcock)
District Judge
T T
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