DCCC259/2020 HKSAR v. FONG CHI HUNG AND OTHERS - LawHero
DCCC259/2020
區域法院（刑事）HH Judge Casewell14/1/2021[2021] HKDC 234
DCCC259/2020
A A
DCCC 259/2020
[2021] HKDC 234
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
CRIMINAL CASE NO 259 OF 2020
D ---------------------- D
HKSAR
E E
v
F F
Fong Chi-hung (D1)
Lam Chin-to (D2)
G Chiu Ho-chun (D4) G
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H H
I
Before: HH Judge Casewell I
Date: 15 January 2021 at 11.18 am
Present: Mr Wayne Lee, PP of the Department of Justice, for
J HKSAR J
Ms Fiona Nam Hoi-yan, instructed by Cedric & Co,
assigned by DLA, for the 1st defendant
K Mr Edward Poon Ting-bond, instructed by S C Ho & Co, K
assigned by DLA, for the 2nd defendant
L Ms Adgie N K Chan, instructed by C & Y Lawyers, for L
the 4th defendant
Offence: (1) Unlawful assembly (非法集結 )
M (against all defendants) M
(2) Resisting a police officer in the due execution of
N
his duty(抗拒在正當執行職務的警務人員)(against D1 only) N
(3) Possession of a prohibited weapon (管有違禁武器)
(against D1 only)
O (4) Possessing things with intent to damage property O
(管有物品意圖損壞財產)(against D1 only)
P (5) Possessing things with intent to damage property P
(管有物品意圖損壞財產)(against D4 only)
(7) Possession of apparatus for radiocommunications
Q without a licence Q
(在沒有領有牌照的情況下管有作無線電通訊之用的器具)
R (against D1 only) R
S S
T T
U U
CRT31/15.1.2021/ML 1 DCCC 259/2020(1)/Sentence
V V
A --------------------- A
Reasons for Sentence
B B
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C C
1. I am asked to consider a sentencing in respect of
three defendants on this indictment today. These three
D D
defendants have initially pleaded guilty to a joint charge of
E unlawful assembly regarding an event on 10 November 2019. Two of E
the defendants, namely the 1st and 4th defendants, have also
F pleaded guilty to additional charges in respect of items found F
upon them at the time of their arrest.
G G
2. The background to the offence is that and the facts
H H
that support the convictions of the defendants are that on the
I
evening of 10 November 2019 a large group of persons had I
assembled in the area of Nathan Road and Shantung Street. Some
J 100 people were assembled in that area. This assembly caused J
police units to be dispatched to disperse those persons so
K assembled. The defendants were arrested during the dispersal K
operation.
L L
3. In the areas where these persons assembled, an
M M
unlawful assembly took place. The people assembled there
N barricaded roads, occupied road carriageways, used laser- N
pointing devices against police conducting the dispersal
O operation. O
P P
4. Police arrested the 4th defendant in an area where a
large group of people occupied roads and blocked those roads
Q Q
with miscellaneous items. The 1st and 2nd defendants were
R arrested in a large group of people clad in black and masked. R
The roadway was blocked with bricks and miscellaneous items were
S strewn upon the ground. S
T T
5. The 1st defendant was seen to hold a petrol bomb in
his hand, which he discarded by the side of the road. The 1st
U U
CRT31/15.1.2021/ML 2 DCCC 259/2020(1)/Sentence
V V
A defendant is also said to have resisted his arrest by hitting A
the facial shield of the arresting officer and lifting the
B officer up when he was being subdued, and those are the facts B
that support the 2nd charge against the 1st defendant.
C C
6. In another direction in the same area, large numbers
D D
of people were gathered, dressed in black, holding umbrellas and
E shining laser pointers. E
F 7. On arrest, a number of items were found on the F
defendants, particularly the 1st and 4th defendants. Some form
G G
the particulars in the charges faced by the defendant.
H H
8. The 1st defendant was found to be in possession of a
I
spring-loaded knife and that can be found in Charge 3, a charge I
of possession of a prohibited weapon, contrary to the section 4
J of the Weapons Ordinance. The 1st defendant was also found to be J
in possession of a wireless microphone. That is reflected in
K Charge 7 against him, possession of apparatus for K
radiocommunications without a licence. He was also found to be
L L
in possession of the following additional items: plastic straps,
a hammer, scissors, a crowbar and four petrol bombs, one of
M M
those being the petrol bomb earlier seen, with three additional
N ones under his custody and control, and these form the charge N
against the 1st defendant, Charge 4.
O O
9. The 4th defendant was also searched and found in his
P P
rucksack and on his person were two petrol bombs, two lighters
and a bottle of isopropyl alcohol, and that forms the basis of
Q Q
the 5th charge against the 4th defendant.
R R
10. It is noteworthy that these events on 11 November took
S place during what is described by the Final Court of Appeal as S
the “sudden and severe deterioration of law and order in Hong
T T
Kong arising from protests and social unrest” during the period
of September to November 2019. The Final Court of Appeal case
U U
CRT31/15.1.2021/ML 3 DCCC 259/2020(1)/Sentence
V V
A that I am referring to is HKSAR v Kwok Wing Hang, which was the A
Court of Appeal’s decision 9 of 2020, and I refer to what was
B described as unchallenged evidence in that case, where it was B
described that the situation in Hong Kong deteriorated during
C C
October and November and was described as a “further escalation
of violence and vandalism especially since the week of 11
D D
November”, which would be shortly after these events that we are
E dealing with today, and what was particularly frequent was E
extensive road blockages with dangerous items placed on
F vehicular passageways and railway lines and it is even said that F
even petrol bombs and hard objects were hurled at moving
G G
vehicles and the like.
H H
11. The Court of Final Appeal also noted the following
I
phenomena at paragraph 91, the phenomena of what they describe I
as “black bloc” tactics, people concealing identity and thereby
J evading arrest and prosecution, and describe protestors using J
black clothing with little or no distinguishing features, and
K that is, in fact, included in the facts at paragraph 6 in this K
case.
L L
12. Those are the basic facts that the court has to rely
M M
on in this case and show a serious and violent disorder taking
N place involving violence towards property. N
O 13. The three defendants before me range in ages, but they O
all are people of clear records. The 1st defendant is aged 34,
P P
the 2nd defendant is aged 17, and the 4th defendant is now aged
26.
Q Q
R 14. I have received mitigation from all the three R
defendants I am dealing with today. As I say, they all have the
S common feature of being people of hitherto clear record before S
they came to this court. They all have individual aspects of
T T
mitigation which they wish to put before the court. I will have
to summarise those for the purposes of the sentencing process,
U U
CRT31/15.1.2021/ML 4 DCCC 259/2020(1)/Sentence
V V
A but I have read all the documents contained in their mitigation A
bundles, including the letters of support and commendation from
B many people, and I note their contents. B
C C
15. I have also obtained reports which give me the
backgrounds of all three defendants. Because the 2nd defendant
D D
was only aged 17, I have obtained additional reports on him to
E investigate a number of options as to sentencing that defendant. E
F 16. I shall simply précis the 1st defendant’s position in F
this matter. He is aged 34, of clear record, coming to Hong Kong
G G
when he was 12 years old. He graduated with a Higher Diploma in
Marketing and Media in 2011 and joined the Fire Services
H H
Department and been working as a fireman from that date until
I
the suspension following his arrest on 10 November 2019. That I
means that he has had 10 years’ service in the Fire Services
J Department and was at one point in respect of an operation in J
2017 awarded a commendation by the Director of Fire Services in
K recognition of his professionalism and perseverance in his K
mission. I have had the opportunity of reading a number of
L L
mitigation letters which commend the defendant to me from
colleagues and superiors.
M M
N 17. He is a father of two young children aged 2 and 1 and N
certainly at the time of his arrest was the sole breadwinner of
O his family and provided financial support to his parents. O
P P
18. The defendant in mitigation does not suggest to me the
charges are not serious. He acknowledges the severity of the
Q Q
charges against him and I am told he understands a custodial
R sentence will be imposed because of the nature of the deterrent R
effect. He expresses remorse and has again expressed it to the
S probation officer who has interviewed him for the background S
report and would wish eventually on release from custody to
T T
serve society in some way again. He expresses regret for causing
pain to his family.
U U
CRT31/15.1.2021/ML 5 DCCC 259/2020(1)/Sentence
V V
A A
19. In mitigation, I am asked to consider that the
B particular form of unlawful assembly in this case did not B
involve or cause bodily harm or damage to people. The
C C
defendant’s resistance to arrest was for a short time and, in
respect of some of the charges, in respect of all of the petrol
D D
bombs, there was no evidence that they had been used, although
E there is evidence that the defendant had one petrol bomb in his E
hand during the course of the unlawful assembly, and this
F defendant asks for leniency. F
G G
20. As far as the 2nd defendant is concerned, he is, as I
have already said, a young man. On his arrest, I am told that he
H H
suffered some knee injury, involving him being hospitalised for
I
three days. He was 16 years and 1 month old at the time of the I
offence, with a clear record, studying in Form 6, a good record
J of conduct in school. This defendant has a particular skill. He J
is a footballer of a high level of competence and skill,
K particularly in the area of what is described as futsal, which K
is a -- I think, believe is a Brazilian form of football, on a
L L
smaller pitch than regular football. There are a number of
letters of commendation from the school social worker and his
M M
football coach and others. He is regretful and remorseful and
N hopes to study in future for a Bachelor of Arts in Physical N
Education.
O O
21. The submission in respect of this defendant is that no
P P
specific acts of violence can be attributed to him. His
conviction relies solely on his presence at the unlawful
Q Q
assembly. He appears to be dressed at the time in a style that
R suggests he has just come from football training, which is what R
was said in mitigation. And, besides his presence at the
S unlawful assembly, no other, as it were, tools or items such as S
offensive weapons were found on him.
T T
U U
CRT31/15.1.2021/ML 6 DCCC 259/2020(1)/Sentence
V V
A 22. A number of reports have been obtained on this A
defendant. They reflect the mitigation that has been put
B forward. The defendant being of the age he is, 17 years old, the B
court also has other options for sentencing besides the normal
C C
range of sentences of imprisonment and community service orders
and probation orders. Also, the defendant is eligible for
D D
detention in the facilities run by the Correctional Services
E Department for training of young people, which is detention E
centre, rehabilitation centre or training centre. I am told from
F the report from the Correctional Services Department there are F
places available for him and he could be sentenced to any one of
G G
those options.
H H
23. I deal with the 4th defendant. The 4th defendant also
I
has expressed his remorse to the court and also in the course of I
interviews by the Probation Services. He is now aged 26, born
J and brought up in Hong Kong. He studied in City University and J
worked as a part-time bank staff at the time; lives with his
K parents and younger sister, and there are health issues in K
respect of his parents which are dealt with in the background
L L
report. He is said as coming from a close-knit family and has a
previous clear record.
M M
N 24. There are a number of mitigation letters in respect of N
the defendant.
O O
25. In the defendant’s mitigation, he of course admits his
P P
presence at the site of the unlawful assembly and the possession
of the items found upon him. He suggests in mitigation that the
Q Q
rubbing alcohol found on him was to use to clean wounds and that
R the petrol bombs found on him had been given to him by other R
younger people at the assembly and he was, as it were, holding
S them for them, but at the time when he was intercepted he had S
not disposed of them.
T T
U U
CRT31/15.1.2021/ML 7 DCCC 259/2020(1)/Sentence
V V
A 26. As far as the unlawful assembly is concerned, it is A
said that the defendant, although present, there is on the facts
B no evidence indicating he performed violent acts. And, finally, B
the defendant shows a genuine remorse, comes from a decent
C C
character and will not reoffend, and asks for leniency in
respect of those matters. I note, for this defendant, he has
D D
also been detained for 14 months at this point.
E E
27. Now I turn to the approach to sentencing. Of course,
F the case that courts must in sentencing approach in a way that F
is consistent and achieve consistency in the outcomes. The
G G
charges that these defendants face do not have a -- what I call
a directly applicable guideline but there are guidelines
H H
available.
I I
28. I will turn first to the offence of unlawful assembly,
J contrary to 18(1) of the Public Order Ordinance, which all J
defendants face. The factual basis for this, agreed by all three
K defendants, is that they all took place in an unlawful assembly K
at the area, where a large number of persons assembled involving
L L
acts of barricading and occupying road carriages, including the
use of laser beams against police, which amounted to conduct of
M M
disorderly, intimidating, insulting or provocative manner
N intended or likely to cause any person reasonably to fear the N
persons so assembled would a breach of the peace or would by
O such conduct provoke other persons to commit a breach of the O
peace. That is the agreed fact.
P P
29. It must be noted that unlawful assemblies cover a wide
Q Q
range of circumstances, but these facts, as agreed by the
R defendants, establish this was a case of violent civil disorder R
characterised by violence towards the property, whether
S manifested as blockage of throughways and roadways, and as such S
is a serious form of unlawful assembly, and also took place
T T
during the course of a period of serious social disorder in Hong
Kong.
U U
CRT31/15.1.2021/ML 8 DCCC 259/2020(1)/Sentence
V V
A A
30. The general approach to sentencing in cases of
B unlawful assembly has been dealt with by both the Court of B
Appeal and Final Court of Appeal in Hong Kong. The case is
C C
Secretary for Justice v Wong Chi Fung & Ors CAAR No.4 of 2016.
The relevant part of that judgment is where the Court of Appeal
D D
at page 77:
E E
“(5) If the case is a serious one, such as when the
unlawful assembly involving violence is large-scale or
F it involves serious violence, the court would give the F
two sentencing factors, namely punishment and
deterrence, great weight and give very little weight
G G
or, in an extreme case, no weight to factors such as
the personal circumstances of the offender, his motives
H or reasons of committing the offence, and the H
sentencing factor of rehabilitation.
I (6) After the appropriate weight has been accorded to I
all the applicable sentencing factors, the court would
then impose a sentence on the offender that is
J J
commensurate with the case.”
K 31. At paragraph 153 they say: K
L L
“For serious cases, the main purpose of the sentence is
to punish and deter. So the overall consideration of
M the court should be inclined towards imposing an M
immediate custodial sentence. Unless there are very
exceptional circumstances, and these circumstances by
N definition should be rare, sentences other than an N
immediate custodial sentence, including suspended
O sentences and community services, are not appropriate.” O
P
32. That is the words of the Court of Appeal, and that is P
the approach that I must take in respect of the sentencing on
Q Charge 1 in this case. Q
R 33. Both the 1st and 4th defendants face charges which R
particularise and criminalise their possession of various items.
S S
Of particular relevance are the petrol bombs, otherwise
described as “Molotov cocktails”. This is charged under section
T T
62A of the Crimes Ordinance, Cap 200. That particular section
U has a maximum sentence of 10 years’ imprisonment. U
CRT31/15.1.2021/ML 9 DCCC 259/2020(1)/Sentence
V V
A A
34. I note there are no guideline sentences from the Court
B of Appeal in respect of this particular case or charge. The B
Court of Appeal has recently considered a starting point for
C C
sentence, where petrol bombs are used and ignited and thrown
under the charge -- and those will be found under charges of
D D
arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA
E 1087, and those charges involved offences of arson where there E
was recklessness as to endangerment of life. So that authority
F is not directly relevant to the facts of this case or the charge F
in this case, which alleges an intent to damage property.
G G
35. The overview of sentencing in HKSAR v Yiu Siu Hong
H H
suggests that, for those offences, depending on the
I
circumstances of aggravation or mitigation, a starting point in I
the region of 5 to 6 years is appropriate. I have been referred
J to some concomitant District Court cases under section 62A, J
where starting points for sentence have ranged between 3½ to 4
K years’ imprisonment for possession of these forms of what we are K
in effect explosive devices.
L L
36. An important factor in this case when assessing the
M M
starting point for sentence under the charge under section 62A
N of the Crimes Ordinance is that these items were possessed in a N
public gathering, especially a serious public disorder.
O Possession of these items does reflect a major escalation of O
risk and a major escalation of danger to others.
P P
37. I take from this summary that simple possession of a
Q Q
petrol bomb at a violent disorder type of unlawful assembly
R gathering will lead to a starting point for sentence which R
ranges between 3 to 4½ years’ imprisonment, subject to various
S mitigating or aggravating factors in the circumstances of S
commission.
T T
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CRT31/15.1.2021/ML 10 DCCC 259/2020(1)/Sentence
V V
A 38. I also note, as far as the other offences that are A
charged in this indictment, the 1st defendant faces a charge of
B possession of prohibited weapon, where a maximum sentence of up B
to 3 years could be imposed. Under Charge 7, possession of the
C C
radiocommunications without a licence, a sentence of up to 5
years’ imprisonment can be imposed. Under Charge 2, resisting
D D
arrest, a sentence of up to 6 months’ imprisonment can be
E imposed. E
F 39. Having dealt with that résumé of the sentencing powers F
of the court, I now deal with the individual sentences that
G G
should be imposed in respect of the individual defendants.
H H
40. As far as the 1st defendant is concerned, I do
I
reiterate that I note the mitigation advanced in his case and I
the commendations for his previous service and the good
J impression made on his colleagues. But I also have to bear in J
mind that the purposes of sentencing, in at least the 1st and
K 4th charges the defendant faces, the court has to give weight to K
punishment and deterrence, and, when that weight is given, very
L L
little or no weight can be given as to defendant’s motives or
reasons for committing the offence and his personal
M M
circumstances.
N N
41. Naturally, the conviction and sentencing of this case
O will mean the defendant will have to be separated from his O
family and also will find that a career in public service is no
P P
longer available to him. These are substantial punishments
against the 1st defendant before one turns to whatever the
Q Q
prison sentence must be.
R R
42. As I said, he is convicted in respect of Charge 1 and
S 4, where the primary purpose of sentence is deterrence. S
Accordingly, his personal circumstances and motivations are of
T T
small relevance to sentencing. The defendant’s past
commendations and public service must be set against the
U U
CRT31/15.1.2021/ML 11 DCCC 259/2020(1)/Sentence
V V
A reputational damage incurred by his involvement in this A
disorder.
B B
43. Defendant is naturally entitled to a full one-third
C C
discount from the starting points for sentences that I will
indicate.
D D
E 44. As far as Charge 1 is concerned, that is a serious E
violent disorder. Defendant was present. He was armed with a
F knife and four petrol bombs at the time. F
G G
45. The Charge 1 is to a certain extent mirrored in its
considerations with Charge 4, as far as the defendant is
H H
concerned. In determining the defendant’s sentence on Charge 4,
I
I bear in mind that, firstly, he was in possession of the four I
petrol bombs set out in the charge. His possession of the radio
J telecommunications devices suggest that he was involved in some J
co-ordinating role as well. Also, other serious weapons were
K seized at the time, including a hammer, crowbar and the knife. K
L L
46. Finally, in respect of the defendant’s possession of
the petrol bomb which was seen to be in his hand, that would
M M
reflect a serious escalation of the unlawful assembly if the
N defendant had chosen to find a way of igniting the petrol bomb. N
The fact that he had it in his hand is certainly more serious
O than it being placed in his rucksack. O
P P
47. On the 1st charge, in respect of the 1st defendant, of
an unlawful assembly, I will take a starting point at 30 months’
Q Q
imprisonment, reduce that to 20 months’ imprisonment for his
R plea of guilty. R
S 48. On the 2nd charge of resisting a police officer, I S
will take a starting point of 3 months’ imprisonment, reduce
T T
that to 2 months’ imprisonment for his plea of guilty.
U U
CRT31/15.1.2021/ML 12 DCCC 259/2020(1)/Sentence
V V
A 49. On the 3rd charge of possession of the prohibited A
weapon, again take a starting point of 3 months’ imprisonment,
B reduce that to 2 months’ imprisonment for plea of guilty. B
C C
50. On the 4th charge of possession of a thing with intent
to damage property, I will take a starting point at 48 months’
D D
imprisonment, which I will reduce to 32 months’ imprisonment for
E the defendant’s plea of guilty. E
F 51. On the 7th charge, possession of apparatus for F
radiocommunications without a licence, I will take a starting
G G
point of 3 months’ imprisonment, reduce that to 2 months’
imprisonment for the defendant’s plea of guilty.
H H
I
52. I must consider what appropriate overall total I
sentence should be for this defendant. There is of course a
J number of overlaps between the various charges, particularly the J
1st and 4th charges. Having regard to the factors I have already
K set out, I shall order the 1st, 4th and 7th charges should be K
served concurrently to each other and the 2nd and 3rd charges
L L
should be served concurrently to each other but consecutively to
the 1st, 4th and 7th charges. That would give an overall total
M M
of 34 months’ imprisonment for the 1st defendant.
N N
53. I shall deal now with the 4th defendant because the
O considerations in respect of his offence are similar to those of O
the 1st defendant. Then I will return to the 2nd defendant at
P P
the end.
Q Q
54. The 4th defendant, the calculation of the sentences
R against him is similar in a way to the 1st defendant and I will R
take the same starting point for sentence on the unlawful
S assembly. He was present at a serious disorder in possession of S
petrol bombs, two petrol bombs. So I will take a starting point
T T
of 30 months’ imprisonment, reduce that to 20 months’
imprisonment for the defendant’s plea of guilty.
U U
CRT31/15.1.2021/ML 13 DCCC 259/2020(1)/Sentence
V V
A A
55. He also faces the 5th charge, possessing things with
B intent to damage property, contrary to section 62(a) of the B
Crimes Ordinance. I do take account of the defendant’s account
C C
of how he came to be in possession of those two petrol bombs,
but the petrol bombs were possessed with the capacity to light
D D
them and the defendant has admitted that he possessed them
E intending without legal excuse to use the said things to damage E
property, so I must bear that in mind when assessing the
F appropriate starting point for sentence. Again, the possession F
of petrol bombs at an unlawful assembly represents substantial
G G
escalation of the danger and risk.
H H
56. And, finally, this defendant was dressed in a “black
I
bloc” fashion, which would be an aggravating factor for him. I
J 57. I will take a starting point in respect of this J
defendant of 3½ years on the 5th charge, which is 42 months,
K reduced to 28 months’ imprisonment for his plea of guilty. K
Sentences on Charge 1 and 5 will be served concurrently. Total
L L
of 28 months’ imprisonment.
M M
58. The 2nd defendant. Again, I have set out the
N sentencing factors in respect of the 2nd defendant and a range N
of sentences are available to him, bearing in mind he is 17
O years old. The authority dealing with the unlawful assembly, as O
I have already iterated, sets out that serious unlawful assembly
P P
- so this must fall into the category of a serious unlawful
assembly - the object of the court is to punish and deter and
Q Q
the court should be inclined to impose an immediate custodial
R sentence. R
S 59. Having regard to the sentences already passed on the S
1st and 4th defendants in respect of this 1st charge, clearly an
T T
immediate custodial sentence is the appropriate sentence to be
U U
CRT31/15.1.2021/ML 14 DCCC 259/2020(1)/Sentence
V V
A imposed and the court could only depart from that if there are A
exceptional circumstances, which are rare.
B B
60. When determining this defendant’s sentence, I do bear
C C
in mind the absence of aggravating factors such as the defendant
being in possession of other items or being seen to be actively
D D
participating in the violence. But what must be noted about this
E particular unlawful assembly is, as far as the facts that I have E
before me show, it always was a violent disorder and so the 2nd
F defendant must have joined this violent disorder knowing that F
that was its character.
G G
61. I consider that I am bound by the authorities before
H H
me to consider this as a case where a sentence of imprisonment
I
is appropriate for any person of the defendant’s age. As far as I
the recommendations contained in the various reports I have, the
J defendant is actually not recommended for a community service J
order. It is thought that a probation order would be more
K appropriate for him. But, having regard to the appellate K
direction, a probation order would be seen to be too lenient to
L L
disposal, even for a defendant of this age.
M M
62. This would leave me with the only custodial options
N being an immediate sentence of imprisonment or the three forms N
of training that would be offered by the Correctional Services
O Department, for which the defendant is suitable for and for O
which there are places for him. I am told by the Correctional
P P
Services Department that this defendant is more suited to a
detention centre order than any other of the orders that they
Q Q
can offer to this defendant.
R R
63. In sentencing this defendant, I have already said that
S I bear in mind his youth, his good character beforehand. He has S
become involved in an offence for which a sentence of
T T
imprisonment must be imposed. Because of his age, I can find an
alternative to that and the alternative that I will direct for
U U
CRT31/15.1.2021/ML 15 DCCC 259/2020(1)/Sentence
V V
A this defendant is, in respect of the charge that he faces, A
Charge 1, he be sentenced to a rehabilitation centre, which will
B provide a regime which may assist in a more speedy release from B
custody. That is the order I will make: a rehabilitation centre
C C
on Charge 1 for the 2nd defendant.
D D
E E
F F
(T Casewell)
G District Judge G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/15.1.2021/ML 16 DCCC 259/2020(1)/Sentence
V V
A A
DCCC 259/2020
[2021] HKDC 234
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
CRIMINAL CASE NO 259 OF 2020
D ---------------------- D
HKSAR
E E
v
F F
Fong Chi-hung (D1)
Lam Chin-to (D2)
G Chiu Ho-chun (D4) G
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H H
I
Before: HH Judge Casewell I
Date: 15 January 2021 at 11.18 am
Present: Mr Wayne Lee, PP of the Department of Justice, for
J HKSAR J
Ms Fiona Nam Hoi-yan, instructed by Cedric & Co,
assigned by DLA, for the 1st defendant
K Mr Edward Poon Ting-bond, instructed by S C Ho & Co, K
assigned by DLA, for the 2nd defendant
L Ms Adgie N K Chan, instructed by C & Y Lawyers, for L
the 4th defendant
Offence: (1) Unlawful assembly (非法集結 )
M (against all defendants) M
(2) Resisting a police officer in the due execution of
N
his duty(抗拒在正當執行職務的警務人員)(against D1 only) N
(3) Possession of a prohibited weapon (管有違禁武器)
(against D1 only)
O (4) Possessing things with intent to damage property O
(管有物品意圖損壞財產)(against D1 only)
P (5) Possessing things with intent to damage property P
(管有物品意圖損壞財產)(against D4 only)
(7) Possession of apparatus for radiocommunications
Q without a licence Q
(在沒有領有牌照的情況下管有作無線電通訊之用的器具)
R (against D1 only) R
S S
T T
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CRT31/15.1.2021/ML 1 DCCC 259/2020(1)/Sentence
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A --------------------- A
Reasons for Sentence
B B
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C C
1. I am asked to consider a sentencing in respect of
three defendants on this indictment today. These three
D D
defendants have initially pleaded guilty to a joint charge of
E unlawful assembly regarding an event on 10 November 2019. Two of E
the defendants, namely the 1st and 4th defendants, have also
F pleaded guilty to additional charges in respect of items found F
upon them at the time of their arrest.
G G
2. The background to the offence is that and the facts
H H
that support the convictions of the defendants are that on the
I
evening of 10 November 2019 a large group of persons had I
assembled in the area of Nathan Road and Shantung Street. Some
J 100 people were assembled in that area. This assembly caused J
police units to be dispatched to disperse those persons so
K assembled. The defendants were arrested during the dispersal K
operation.
L L
3. In the areas where these persons assembled, an
M M
unlawful assembly took place. The people assembled there
N barricaded roads, occupied road carriageways, used laser- N
pointing devices against police conducting the dispersal
O operation. O
P P
4. Police arrested the 4th defendant in an area where a
large group of people occupied roads and blocked those roads
Q Q
with miscellaneous items. The 1st and 2nd defendants were
R arrested in a large group of people clad in black and masked. R
The roadway was blocked with bricks and miscellaneous items were
S strewn upon the ground. S
T T
5. The 1st defendant was seen to hold a petrol bomb in
his hand, which he discarded by the side of the road. The 1st
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CRT31/15.1.2021/ML 2 DCCC 259/2020(1)/Sentence
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A defendant is also said to have resisted his arrest by hitting A
the facial shield of the arresting officer and lifting the
B officer up when he was being subdued, and those are the facts B
that support the 2nd charge against the 1st defendant.
C C
6. In another direction in the same area, large numbers
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of people were gathered, dressed in black, holding umbrellas and
E shining laser pointers. E
F 7. On arrest, a number of items were found on the F
defendants, particularly the 1st and 4th defendants. Some form
G G
the particulars in the charges faced by the defendant.
H H
8. The 1st defendant was found to be in possession of a
I
spring-loaded knife and that can be found in Charge 3, a charge I
of possession of a prohibited weapon, contrary to the section 4
J of the Weapons Ordinance. The 1st defendant was also found to be J
in possession of a wireless microphone. That is reflected in
K Charge 7 against him, possession of apparatus for K
radiocommunications without a licence. He was also found to be
L L
in possession of the following additional items: plastic straps,
a hammer, scissors, a crowbar and four petrol bombs, one of
M M
those being the petrol bomb earlier seen, with three additional
N ones under his custody and control, and these form the charge N
against the 1st defendant, Charge 4.
O O
9. The 4th defendant was also searched and found in his
P P
rucksack and on his person were two petrol bombs, two lighters
and a bottle of isopropyl alcohol, and that forms the basis of
Q Q
the 5th charge against the 4th defendant.
R R
10. It is noteworthy that these events on 11 November took
S place during what is described by the Final Court of Appeal as S
the “sudden and severe deterioration of law and order in Hong
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Kong arising from protests and social unrest” during the period
of September to November 2019. The Final Court of Appeal case
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CRT31/15.1.2021/ML 3 DCCC 259/2020(1)/Sentence
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A that I am referring to is HKSAR v Kwok Wing Hang, which was the A
Court of Appeal’s decision 9 of 2020, and I refer to what was
B described as unchallenged evidence in that case, where it was B
described that the situation in Hong Kong deteriorated during
C C
October and November and was described as a “further escalation
of violence and vandalism especially since the week of 11
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November”, which would be shortly after these events that we are
E dealing with today, and what was particularly frequent was E
extensive road blockages with dangerous items placed on
F vehicular passageways and railway lines and it is even said that F
even petrol bombs and hard objects were hurled at moving
G G
vehicles and the like.
H H
11. The Court of Final Appeal also noted the following
I
phenomena at paragraph 91, the phenomena of what they describe I
as “black bloc” tactics, people concealing identity and thereby
J evading arrest and prosecution, and describe protestors using J
black clothing with little or no distinguishing features, and
K that is, in fact, included in the facts at paragraph 6 in this K
case.
L L
12. Those are the basic facts that the court has to rely
M M
on in this case and show a serious and violent disorder taking
N place involving violence towards property. N
O 13. The three defendants before me range in ages, but they O
all are people of clear records. The 1st defendant is aged 34,
P P
the 2nd defendant is aged 17, and the 4th defendant is now aged
26.
Q Q
R 14. I have received mitigation from all the three R
defendants I am dealing with today. As I say, they all have the
S common feature of being people of hitherto clear record before S
they came to this court. They all have individual aspects of
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mitigation which they wish to put before the court. I will have
to summarise those for the purposes of the sentencing process,
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A but I have read all the documents contained in their mitigation A
bundles, including the letters of support and commendation from
B many people, and I note their contents. B
C C
15. I have also obtained reports which give me the
backgrounds of all three defendants. Because the 2nd defendant
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was only aged 17, I have obtained additional reports on him to
E investigate a number of options as to sentencing that defendant. E
F 16. I shall simply précis the 1st defendant’s position in F
this matter. He is aged 34, of clear record, coming to Hong Kong
G G
when he was 12 years old. He graduated with a Higher Diploma in
Marketing and Media in 2011 and joined the Fire Services
H H
Department and been working as a fireman from that date until
I
the suspension following his arrest on 10 November 2019. That I
means that he has had 10 years’ service in the Fire Services
J Department and was at one point in respect of an operation in J
2017 awarded a commendation by the Director of Fire Services in
K recognition of his professionalism and perseverance in his K
mission. I have had the opportunity of reading a number of
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mitigation letters which commend the defendant to me from
colleagues and superiors.
M M
N 17. He is a father of two young children aged 2 and 1 and N
certainly at the time of his arrest was the sole breadwinner of
O his family and provided financial support to his parents. O
P P
18. The defendant in mitigation does not suggest to me the
charges are not serious. He acknowledges the severity of the
Q Q
charges against him and I am told he understands a custodial
R sentence will be imposed because of the nature of the deterrent R
effect. He expresses remorse and has again expressed it to the
S probation officer who has interviewed him for the background S
report and would wish eventually on release from custody to
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serve society in some way again. He expresses regret for causing
pain to his family.
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A A
19. In mitigation, I am asked to consider that the
B particular form of unlawful assembly in this case did not B
involve or cause bodily harm or damage to people. The
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defendant’s resistance to arrest was for a short time and, in
respect of some of the charges, in respect of all of the petrol
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bombs, there was no evidence that they had been used, although
E there is evidence that the defendant had one petrol bomb in his E
hand during the course of the unlawful assembly, and this
F defendant asks for leniency. F
G G
20. As far as the 2nd defendant is concerned, he is, as I
have already said, a young man. On his arrest, I am told that he
H H
suffered some knee injury, involving him being hospitalised for
I
three days. He was 16 years and 1 month old at the time of the I
offence, with a clear record, studying in Form 6, a good record
J of conduct in school. This defendant has a particular skill. He J
is a footballer of a high level of competence and skill,
K particularly in the area of what is described as futsal, which K
is a -- I think, believe is a Brazilian form of football, on a
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smaller pitch than regular football. There are a number of
letters of commendation from the school social worker and his
M M
football coach and others. He is regretful and remorseful and
N hopes to study in future for a Bachelor of Arts in Physical N
Education.
O O
21. The submission in respect of this defendant is that no
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specific acts of violence can be attributed to him. His
conviction relies solely on his presence at the unlawful
Q Q
assembly. He appears to be dressed at the time in a style that
R suggests he has just come from football training, which is what R
was said in mitigation. And, besides his presence at the
S unlawful assembly, no other, as it were, tools or items such as S
offensive weapons were found on him.
T T
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A 22. A number of reports have been obtained on this A
defendant. They reflect the mitigation that has been put
B forward. The defendant being of the age he is, 17 years old, the B
court also has other options for sentencing besides the normal
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range of sentences of imprisonment and community service orders
and probation orders. Also, the defendant is eligible for
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detention in the facilities run by the Correctional Services
E Department for training of young people, which is detention E
centre, rehabilitation centre or training centre. I am told from
F the report from the Correctional Services Department there are F
places available for him and he could be sentenced to any one of
G G
those options.
H H
23. I deal with the 4th defendant. The 4th defendant also
I
has expressed his remorse to the court and also in the course of I
interviews by the Probation Services. He is now aged 26, born
J and brought up in Hong Kong. He studied in City University and J
worked as a part-time bank staff at the time; lives with his
K parents and younger sister, and there are health issues in K
respect of his parents which are dealt with in the background
L L
report. He is said as coming from a close-knit family and has a
previous clear record.
M M
N 24. There are a number of mitigation letters in respect of N
the defendant.
O O
25. In the defendant’s mitigation, he of course admits his
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presence at the site of the unlawful assembly and the possession
of the items found upon him. He suggests in mitigation that the
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rubbing alcohol found on him was to use to clean wounds and that
R the petrol bombs found on him had been given to him by other R
younger people at the assembly and he was, as it were, holding
S them for them, but at the time when he was intercepted he had S
not disposed of them.
T T
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A 26. As far as the unlawful assembly is concerned, it is A
said that the defendant, although present, there is on the facts
B no evidence indicating he performed violent acts. And, finally, B
the defendant shows a genuine remorse, comes from a decent
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character and will not reoffend, and asks for leniency in
respect of those matters. I note, for this defendant, he has
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also been detained for 14 months at this point.
E E
27. Now I turn to the approach to sentencing. Of course,
F the case that courts must in sentencing approach in a way that F
is consistent and achieve consistency in the outcomes. The
G G
charges that these defendants face do not have a -- what I call
a directly applicable guideline but there are guidelines
H H
available.
I I
28. I will turn first to the offence of unlawful assembly,
J contrary to 18(1) of the Public Order Ordinance, which all J
defendants face. The factual basis for this, agreed by all three
K defendants, is that they all took place in an unlawful assembly K
at the area, where a large number of persons assembled involving
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acts of barricading and occupying road carriages, including the
use of laser beams against police, which amounted to conduct of
M M
disorderly, intimidating, insulting or provocative manner
N intended or likely to cause any person reasonably to fear the N
persons so assembled would a breach of the peace or would by
O such conduct provoke other persons to commit a breach of the O
peace. That is the agreed fact.
P P
29. It must be noted that unlawful assemblies cover a wide
Q Q
range of circumstances, but these facts, as agreed by the
R defendants, establish this was a case of violent civil disorder R
characterised by violence towards the property, whether
S manifested as blockage of throughways and roadways, and as such S
is a serious form of unlawful assembly, and also took place
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during the course of a period of serious social disorder in Hong
Kong.
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A A
30. The general approach to sentencing in cases of
B unlawful assembly has been dealt with by both the Court of B
Appeal and Final Court of Appeal in Hong Kong. The case is
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Secretary for Justice v Wong Chi Fung & Ors CAAR No.4 of 2016.
The relevant part of that judgment is where the Court of Appeal
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at page 77:
E E
“(5) If the case is a serious one, such as when the
unlawful assembly involving violence is large-scale or
F it involves serious violence, the court would give the F
two sentencing factors, namely punishment and
deterrence, great weight and give very little weight
G G
or, in an extreme case, no weight to factors such as
the personal circumstances of the offender, his motives
H or reasons of committing the offence, and the H
sentencing factor of rehabilitation.
I (6) After the appropriate weight has been accorded to I
all the applicable sentencing factors, the court would
then impose a sentence on the offender that is
J J
commensurate with the case.”
K 31. At paragraph 153 they say: K
L L
“For serious cases, the main purpose of the sentence is
to punish and deter. So the overall consideration of
M the court should be inclined towards imposing an M
immediate custodial sentence. Unless there are very
exceptional circumstances, and these circumstances by
N definition should be rare, sentences other than an N
immediate custodial sentence, including suspended
O sentences and community services, are not appropriate.” O
P
32. That is the words of the Court of Appeal, and that is P
the approach that I must take in respect of the sentencing on
Q Charge 1 in this case. Q
R 33. Both the 1st and 4th defendants face charges which R
particularise and criminalise their possession of various items.
S S
Of particular relevance are the petrol bombs, otherwise
described as “Molotov cocktails”. This is charged under section
T T
62A of the Crimes Ordinance, Cap 200. That particular section
U has a maximum sentence of 10 years’ imprisonment. U
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A A
34. I note there are no guideline sentences from the Court
B of Appeal in respect of this particular case or charge. The B
Court of Appeal has recently considered a starting point for
C C
sentence, where petrol bombs are used and ignited and thrown
under the charge -- and those will be found under charges of
D D
arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA
E 1087, and those charges involved offences of arson where there E
was recklessness as to endangerment of life. So that authority
F is not directly relevant to the facts of this case or the charge F
in this case, which alleges an intent to damage property.
G G
35. The overview of sentencing in HKSAR v Yiu Siu Hong
H H
suggests that, for those offences, depending on the
I
circumstances of aggravation or mitigation, a starting point in I
the region of 5 to 6 years is appropriate. I have been referred
J to some concomitant District Court cases under section 62A, J
where starting points for sentence have ranged between 3½ to 4
K years’ imprisonment for possession of these forms of what we are K
in effect explosive devices.
L L
36. An important factor in this case when assessing the
M M
starting point for sentence under the charge under section 62A
N of the Crimes Ordinance is that these items were possessed in a N
public gathering, especially a serious public disorder.
O Possession of these items does reflect a major escalation of O
risk and a major escalation of danger to others.
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37. I take from this summary that simple possession of a
Q Q
petrol bomb at a violent disorder type of unlawful assembly
R gathering will lead to a starting point for sentence which R
ranges between 3 to 4½ years’ imprisonment, subject to various
S mitigating or aggravating factors in the circumstances of S
commission.
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A 38. I also note, as far as the other offences that are A
charged in this indictment, the 1st defendant faces a charge of
B possession of prohibited weapon, where a maximum sentence of up B
to 3 years could be imposed. Under Charge 7, possession of the
C C
radiocommunications without a licence, a sentence of up to 5
years’ imprisonment can be imposed. Under Charge 2, resisting
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arrest, a sentence of up to 6 months’ imprisonment can be
E imposed. E
F 39. Having dealt with that résumé of the sentencing powers F
of the court, I now deal with the individual sentences that
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should be imposed in respect of the individual defendants.
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40. As far as the 1st defendant is concerned, I do
I
reiterate that I note the mitigation advanced in his case and I
the commendations for his previous service and the good
J impression made on his colleagues. But I also have to bear in J
mind that the purposes of sentencing, in at least the 1st and
K 4th charges the defendant faces, the court has to give weight to K
punishment and deterrence, and, when that weight is given, very
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little or no weight can be given as to defendant’s motives or
reasons for committing the offence and his personal
M M
circumstances.
N N
41. Naturally, the conviction and sentencing of this case
O will mean the defendant will have to be separated from his O
family and also will find that a career in public service is no
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longer available to him. These are substantial punishments
against the 1st defendant before one turns to whatever the
Q Q
prison sentence must be.
R R
42. As I said, he is convicted in respect of Charge 1 and
S 4, where the primary purpose of sentence is deterrence. S
Accordingly, his personal circumstances and motivations are of
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small relevance to sentencing. The defendant’s past
commendations and public service must be set against the
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CRT31/15.1.2021/ML 11 DCCC 259/2020(1)/Sentence
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A reputational damage incurred by his involvement in this A
disorder.
B B
43. Defendant is naturally entitled to a full one-third
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discount from the starting points for sentences that I will
indicate.
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E 44. As far as Charge 1 is concerned, that is a serious E
violent disorder. Defendant was present. He was armed with a
F knife and four petrol bombs at the time. F
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45. The Charge 1 is to a certain extent mirrored in its
considerations with Charge 4, as far as the defendant is
H H
concerned. In determining the defendant’s sentence on Charge 4,
I
I bear in mind that, firstly, he was in possession of the four I
petrol bombs set out in the charge. His possession of the radio
J telecommunications devices suggest that he was involved in some J
co-ordinating role as well. Also, other serious weapons were
K seized at the time, including a hammer, crowbar and the knife. K
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46. Finally, in respect of the defendant’s possession of
the petrol bomb which was seen to be in his hand, that would
M M
reflect a serious escalation of the unlawful assembly if the
N defendant had chosen to find a way of igniting the petrol bomb. N
The fact that he had it in his hand is certainly more serious
O than it being placed in his rucksack. O
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47. On the 1st charge, in respect of the 1st defendant, of
an unlawful assembly, I will take a starting point at 30 months’
Q Q
imprisonment, reduce that to 20 months’ imprisonment for his
R plea of guilty. R
S 48. On the 2nd charge of resisting a police officer, I S
will take a starting point of 3 months’ imprisonment, reduce
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that to 2 months’ imprisonment for his plea of guilty.
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A 49. On the 3rd charge of possession of the prohibited A
weapon, again take a starting point of 3 months’ imprisonment,
B reduce that to 2 months’ imprisonment for plea of guilty. B
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50. On the 4th charge of possession of a thing with intent
to damage property, I will take a starting point at 48 months’
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imprisonment, which I will reduce to 32 months’ imprisonment for
E the defendant’s plea of guilty. E
F 51. On the 7th charge, possession of apparatus for F
radiocommunications without a licence, I will take a starting
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point of 3 months’ imprisonment, reduce that to 2 months’
imprisonment for the defendant’s plea of guilty.
H H
I
52. I must consider what appropriate overall total I
sentence should be for this defendant. There is of course a
J number of overlaps between the various charges, particularly the J
1st and 4th charges. Having regard to the factors I have already
K set out, I shall order the 1st, 4th and 7th charges should be K
served concurrently to each other and the 2nd and 3rd charges
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should be served concurrently to each other but consecutively to
the 1st, 4th and 7th charges. That would give an overall total
M M
of 34 months’ imprisonment for the 1st defendant.
N N
53. I shall deal now with the 4th defendant because the
O considerations in respect of his offence are similar to those of O
the 1st defendant. Then I will return to the 2nd defendant at
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the end.
Q Q
54. The 4th defendant, the calculation of the sentences
R against him is similar in a way to the 1st defendant and I will R
take the same starting point for sentence on the unlawful
S assembly. He was present at a serious disorder in possession of S
petrol bombs, two petrol bombs. So I will take a starting point
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of 30 months’ imprisonment, reduce that to 20 months’
imprisonment for the defendant’s plea of guilty.
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A A
55. He also faces the 5th charge, possessing things with
B intent to damage property, contrary to section 62(a) of the B
Crimes Ordinance. I do take account of the defendant’s account
C C
of how he came to be in possession of those two petrol bombs,
but the petrol bombs were possessed with the capacity to light
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them and the defendant has admitted that he possessed them
E intending without legal excuse to use the said things to damage E
property, so I must bear that in mind when assessing the
F appropriate starting point for sentence. Again, the possession F
of petrol bombs at an unlawful assembly represents substantial
G G
escalation of the danger and risk.
H H
56. And, finally, this defendant was dressed in a “black
I
bloc” fashion, which would be an aggravating factor for him. I
J 57. I will take a starting point in respect of this J
defendant of 3½ years on the 5th charge, which is 42 months,
K reduced to 28 months’ imprisonment for his plea of guilty. K
Sentences on Charge 1 and 5 will be served concurrently. Total
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of 28 months’ imprisonment.
M M
58. The 2nd defendant. Again, I have set out the
N sentencing factors in respect of the 2nd defendant and a range N
of sentences are available to him, bearing in mind he is 17
O years old. The authority dealing with the unlawful assembly, as O
I have already iterated, sets out that serious unlawful assembly
P P
- so this must fall into the category of a serious unlawful
assembly - the object of the court is to punish and deter and
Q Q
the court should be inclined to impose an immediate custodial
R sentence. R
S 59. Having regard to the sentences already passed on the S
1st and 4th defendants in respect of this 1st charge, clearly an
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immediate custodial sentence is the appropriate sentence to be
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A imposed and the court could only depart from that if there are A
exceptional circumstances, which are rare.
B B
60. When determining this defendant’s sentence, I do bear
C C
in mind the absence of aggravating factors such as the defendant
being in possession of other items or being seen to be actively
D D
participating in the violence. But what must be noted about this
E particular unlawful assembly is, as far as the facts that I have E
before me show, it always was a violent disorder and so the 2nd
F defendant must have joined this violent disorder knowing that F
that was its character.
G G
61. I consider that I am bound by the authorities before
H H
me to consider this as a case where a sentence of imprisonment
I
is appropriate for any person of the defendant’s age. As far as I
the recommendations contained in the various reports I have, the
J defendant is actually not recommended for a community service J
order. It is thought that a probation order would be more
K appropriate for him. But, having regard to the appellate K
direction, a probation order would be seen to be too lenient to
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disposal, even for a defendant of this age.
M M
62. This would leave me with the only custodial options
N being an immediate sentence of imprisonment or the three forms N
of training that would be offered by the Correctional Services
O Department, for which the defendant is suitable for and for O
which there are places for him. I am told by the Correctional
P P
Services Department that this defendant is more suited to a
detention centre order than any other of the orders that they
Q Q
can offer to this defendant.
R R
63. In sentencing this defendant, I have already said that
S I bear in mind his youth, his good character beforehand. He has S
become involved in an offence for which a sentence of
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imprisonment must be imposed. Because of his age, I can find an
alternative to that and the alternative that I will direct for
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CRT31/15.1.2021/ML 15 DCCC 259/2020(1)/Sentence
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A this defendant is, in respect of the charge that he faces, A
Charge 1, he be sentenced to a rehabilitation centre, which will
B provide a regime which may assist in a more speedy release from B
custody. That is the order I will make: a rehabilitation centre
C C
on Charge 1 for the 2nd defendant.
D D
E E
F F
(T Casewell)
G District Judge G
H H
I I
J J
K K
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M M
N N
O O
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S S
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