A A
B DCCC 581/2017 B
[2018] HKDC 393
C C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO. 581 OF 2017
F ----------------------------------- F
HKSAR
G G
v.
H TANG Ho-yin H
-----------------------------------
I I
Before: HH Judge E. Yip
J Date: 11th April 2018 at 09:33 am J
Present: Mr Derek LAU, Senior Public Prosecutor, of the Department
K K
of Justice, for HKSAR
L Mr KWOK King Hin Douglas, instructed by M/s Bond Ng L
Solicitors assigned by DLA for Defendant
M M
Offence: [1] Riot (暴動)
N N
----------------------------
O
Reasons for Sentence O
----------------------------
P P
Charge
Q Q
1. The Defendant pleads guilty to a charge of riot, contrary
R R
to section 19(1) and (2) of the Public Order Ordinance, Cap. 245.
S The Particulars of Charge states that on 9/2/2016, at Shantung Street S
and Nathan Road, Mong Kok, he took part in a riot with other persons.
T T
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A A
B Facts B
C C
2. Between the evening of 8/2/2016 and the early morning
D of 9/2/2016, there were sporadic confrontations between civilians D
and police officers who were performing the duty to maintain public
E E
order at Shantung Street near the junction with Nathan Road
F southbound. F
G G
3. The Defendant took part in a riot at about 0400h to 0412h
H on 9/2/2016 (“one of the Rioters” or “the Riot”, as the context H
requires). As a result of the Riot, 29 police officers sustained injuries
I I
as described in Annex 1 of the Summary of Facts. Such injuries on
J the head, torso or limbs included tenderness, abrasions, swelling, J
bruising, and fracture of bone. Sick leave ranged from mostly a few
K K
days, a few months (in the case of PW23), to nearly a year (in the
L L
case of PW7) was granted.
M M
4. Video footages depicted the Rioters assembling on the
N N
carriageway of Shantung Street at a distance of about 10 to 20 metres
O
in front of the checkline formed by the police. There were about 100 O
Rioters against no more than 30 police officers. There were two fires
P P
made by the rioters. They hurled missiles of bricks and glass bottles
Q at the police officers. Some of them got bricks from the floor of a Q
signpost which they shook loose. Time and again these objects
R R
struck the helmets or shields of the police officers, if not on their
S bodies. Despite warnings given by the police through loudspeakers S
to dissolve or desist from hurling objects, they refused to cooperate.
T T
They pushed against the police with home-made shields. The police
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A A
B officers had to use peppers spray at times. The Defendant was seen B
at the forefront when he hurled a brick at the police officers. He did
C C
not wear a cap or a face mask.
D D
5. On 10/11/2016, he was arrested at his residence. In the
E E
subsequent enquiries under caution he admitted to have shaken a
F signpost and hurled a brick when others were also hurling bricks F
during the incident. He said it was for fun. He wanted to scare the
G G
police away. After the enquiries, he led the police to the place where
H he hurled the brick at the police. H
I I
Mitigation
J J
6. The Defendant was 24 on the offence date and is now 26.
K K
He has a clear record. His chief mitigating factors are his timely plea
L L
of guilty and his condition of Attention Deficit/Hyperactivity
M
Disorder (“ADHD”). M
N N
7. As regards his ADHD, a psychiatric report was prepared
O
by Dr. Gabriel Hung. Dr. Hung had perused the charge sheet and the O
summary of facts when he interviewed him. He was diagnosed to
P P
have ADHD in primary school. This has been an ongoing condition
Q up to the interview. He had defaulted medications due to its side Q
effect of keeping him awake at night time. Unable to focus on his
R R
studies or work, he could not achieve much in these pursuits. One
S of the distinctive features of ADHD patients is impulsivity. Dr. S
Hung is of the opinion that he committed the present offence in an
T T
impulsive manner, without considering or analysing the potential
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- 4 -
A A
B consequences of his actions. He knew what he did was wrong but B
acted impulsively due to lapse in judgment (para. 16.4 of Report).
C C
D 8. Dr. Hung anticipates that his condition can be monitored D
properly if he continues with medical consultation and medication.
E E
F Relevant Sentencing Principles F
G G
9. In R v Pilgrim (1983) 5 Cr App R (S) 140, 144 Lord Lane
H L.C.J. lists the relevant factors as follows in sentencing cases of riot H
or affray:
I I
J What a court has to pay regard to is the level of violence J
used, the scale of the riot or affray as described by
witnesses, the extent to which it is premeditated, or on the
K K
other hand spontaneously arises, finally the number of
people engaged in its execution.
L L
10. These factors are adopted by the Hong Kong Court of
M M
Appeal in A. G. v Tse Ka-wah & Others [1992] 2 HKCLR 16 and S.J.
N v Cheung Chun Chin & Others [2002] 2 HKLRD 233. N
O O
11. In R v Caird (1970) 54 Cr. App. R 499, 507 – 508 Sachs
P L.J. explains that the acts of a rioter cannot be considered in isolation: P
Q Q
… Any participant whatever, irrespective of its precise
form, in an unlawful or riotous assembly of this type
R R
derives its gravity from becoming one of those who, by
weight of numbers, pursued a common and unlawful
S purpose. The law of this country has always leant heavily S
against those who, to attain such a purpose, use the threat
that lies in the power of numbers.
T T
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A A
B Over and over again it was submitted on behalf of the B
applicants that their individual acts should be regarded as
if they had been committed in isolation. Attempts were
C made on this footing to make light of such matters as C
pushing a police-officer on one side, breaking a window,
D or throwing a lighted mole fuse at one of the officers. In D
the view of this Court, it is a wholly wrong approach to
take the acts of any individual participator in isolation.
E They were not committed in isolation and, as already E
indicated, it is that very fact that constitutes the gravity of
the offence.
F F
G 12. In R v Keys & Others (1987) 84 Cr. App R 204, 207, G
though a case of affray, the principle appears equally applicable for
H H
riot. LCJ has a similar approach as Caird:
I I
… Even though a particular defendant himself never
J actually hit an opponent, never threw a missile, never J
physically threatened anyone, nevertheless, even if he
participated simply by encouraging others and by shouting
K insults and threats, he thereby helps to promote the totality K
of the affray. He must accordingly take some share of the
L blame for the overall picture. It scarcely needs stating L
that the more he is shown to have done in promoting the
affray, the greater must be his punishment.
M M
Relevant Sentencing Examples
N N
O O
13. In HKSAR v Hui Ka Ki & 2 Others DCCC 710/2016,
P
there is a riot involving 20 – 30 civilians against the police in Mong P
Kok on the second day of Lunar Chinese New Year in 2016. The
Q Q
rioters hurled glass bottles and sundry objects when they pushed back
R the police officers who were equipped with helmets and shields from R
the police checkline. D1 and D3 hurled glass bottles at them. D2
S S
hurled a bamboo stick at them. No police officers were injured.
T Their sentences after trial were each 3 years. T
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A A
B 14. In HKSAR v Yeung Tsz Hin Chris & 2 Others DCCC B
860/2016, another riot that took place on the second day of Lunar
C C
Chinese New Year in 2016, about 100 rioters hurled bricks and
D sundry objects at the police officers. Some of them made a big fire, D
causing a lot of smoke. The trial judge regarded 2 of the defendants
E E
as active participants as they were holding glass bottles at the
F forefront near the fire and facing the police officers. The other F
defendant hurled bricks at the police officers. The riot lasted more
G G
than 10 minutes. The starting point taken was 3 years 6 months.
H H
15. In HKSAR v Yeung Ka Lun DCCC 875/2016, another riot
I I
that took place on the second day of Lunar Chinese New Year in
J 2016, about 50 – 60 rioters hurled bricks and sundry objects at the J
police officers. A taxi parked on the road side and signposts were
K K
damaged. Some rioters made fires at different locations, including
L L
the damaged taxi. A police officer had his arm hit and injured by the
M
falling brick. The defendant wore a cap that covered his hair and M
ears. He was identified on a photo taken at a moment he pulled down
N N
his face mask. He took part in burning the damaged taxi. He stood
O
at the forefront of the group that hurled bricks in confrontation with O
the police officers. The starting point taken was 5 years.
P P
Q Sentencing the Defendant Q
R R
16. The police were vastly outnumbered in the Riot. The
S number and aspects of police officers injured were astounding. The S
Defendant was at the forefront of the line confronting the police. In
T T
the Riot, he was seen to have hurled a brick. In the subsequent
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V V
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A A
B enquiries he admitted to have shaken loose a signpost from its based B
on the ground. Video footages showed people picking up the bricks
C C
under the signpost. Police officers were injured by the bricks hurled
D by the rioters. His act was an egregious and wicked way to have fun D
at the expense of others’ safety. I take a starting point of 5 years.
E E
After a one-third discount for the plea of guilty, the sentence
F becomes 3 years 4 months. F
G G
17. There is evidence of his condition of ADHD at the time
H of offence and sentence. Dr Hung regarded that he was impulsive H
when committing the offence. From the fact that he was not having
I I
or wearing a cap or a face mask, while many rioters were, suggested
J no prior planning on his part and it possibly true that he was trying J
to have fun in his acts with little regard for their serious
K K
consequences. I reduce his sentence by 6 months.
L L
M
18. His sentence is 2 years 10 months. M
N N
O O
(E. Yip)
P District Judge P
Q Q
R R
S S
T T
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CRT29/11.4.2018 DCCC 581/2017/Sentence
V V
A A
B DCCC 581/2017 B
[2018] HKDC 393
C C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO. 581 OF 2017
F ----------------------------------- F
HKSAR
G G
v.
H TANG Ho-yin H
-----------------------------------
I I
Before: HH Judge E. Yip
J Date: 11th April 2018 at 09:33 am J
Present: Mr Derek LAU, Senior Public Prosecutor, of the Department
K K
of Justice, for HKSAR
L Mr KWOK King Hin Douglas, instructed by M/s Bond Ng L
Solicitors assigned by DLA for Defendant
M M
Offence: [1] Riot (暴動)
N N
----------------------------
O
Reasons for Sentence O
----------------------------
P P
Charge
Q Q
1. The Defendant pleads guilty to a charge of riot, contrary
R R
to section 19(1) and (2) of the Public Order Ordinance, Cap. 245.
S The Particulars of Charge states that on 9/2/2016, at Shantung Street S
and Nathan Road, Mong Kok, he took part in a riot with other persons.
T T
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CRT29/11.4.2018 DCCC 581/2017/Sentence
V V
- 2 -
A A
B Facts B
C C
2. Between the evening of 8/2/2016 and the early morning
D of 9/2/2016, there were sporadic confrontations between civilians D
and police officers who were performing the duty to maintain public
E E
order at Shantung Street near the junction with Nathan Road
F southbound. F
G G
3. The Defendant took part in a riot at about 0400h to 0412h
H on 9/2/2016 (“one of the Rioters” or “the Riot”, as the context H
requires). As a result of the Riot, 29 police officers sustained injuries
I I
as described in Annex 1 of the Summary of Facts. Such injuries on
J the head, torso or limbs included tenderness, abrasions, swelling, J
bruising, and fracture of bone. Sick leave ranged from mostly a few
K K
days, a few months (in the case of PW23), to nearly a year (in the
L L
case of PW7) was granted.
M M
4. Video footages depicted the Rioters assembling on the
N N
carriageway of Shantung Street at a distance of about 10 to 20 metres
O
in front of the checkline formed by the police. There were about 100 O
Rioters against no more than 30 police officers. There were two fires
P P
made by the rioters. They hurled missiles of bricks and glass bottles
Q at the police officers. Some of them got bricks from the floor of a Q
signpost which they shook loose. Time and again these objects
R R
struck the helmets or shields of the police officers, if not on their
S bodies. Despite warnings given by the police through loudspeakers S
to dissolve or desist from hurling objects, they refused to cooperate.
T T
They pushed against the police with home-made shields. The police
U U
CRT29/11.4.2018 DCCC 581/2017/Sentence
V V
- 3 -
A A
B officers had to use peppers spray at times. The Defendant was seen B
at the forefront when he hurled a brick at the police officers. He did
C C
not wear a cap or a face mask.
D D
5. On 10/11/2016, he was arrested at his residence. In the
E E
subsequent enquiries under caution he admitted to have shaken a
F signpost and hurled a brick when others were also hurling bricks F
during the incident. He said it was for fun. He wanted to scare the
G G
police away. After the enquiries, he led the police to the place where
H he hurled the brick at the police. H
I I
Mitigation
J J
6. The Defendant was 24 on the offence date and is now 26.
K K
He has a clear record. His chief mitigating factors are his timely plea
L L
of guilty and his condition of Attention Deficit/Hyperactivity
M
Disorder (“ADHD”). M
N N
7. As regards his ADHD, a psychiatric report was prepared
O
by Dr. Gabriel Hung. Dr. Hung had perused the charge sheet and the O
summary of facts when he interviewed him. He was diagnosed to
P P
have ADHD in primary school. This has been an ongoing condition
Q up to the interview. He had defaulted medications due to its side Q
effect of keeping him awake at night time. Unable to focus on his
R R
studies or work, he could not achieve much in these pursuits. One
S of the distinctive features of ADHD patients is impulsivity. Dr. S
Hung is of the opinion that he committed the present offence in an
T T
impulsive manner, without considering or analysing the potential
U U
CRT29/11.4.2018 DCCC 581/2017/Sentence
V V
- 4 -
A A
B consequences of his actions. He knew what he did was wrong but B
acted impulsively due to lapse in judgment (para. 16.4 of Report).
C C
D 8. Dr. Hung anticipates that his condition can be monitored D
properly if he continues with medical consultation and medication.
E E
F Relevant Sentencing Principles F
G G
9. In R v Pilgrim (1983) 5 Cr App R (S) 140, 144 Lord Lane
H L.C.J. lists the relevant factors as follows in sentencing cases of riot H
or affray:
I I
J What a court has to pay regard to is the level of violence J
used, the scale of the riot or affray as described by
witnesses, the extent to which it is premeditated, or on the
K K
other hand spontaneously arises, finally the number of
people engaged in its execution.
L L
10. These factors are adopted by the Hong Kong Court of
M M
Appeal in A. G. v Tse Ka-wah & Others [1992] 2 HKCLR 16 and S.J.
N v Cheung Chun Chin & Others [2002] 2 HKLRD 233. N
O O
11. In R v Caird (1970) 54 Cr. App. R 499, 507 – 508 Sachs
P L.J. explains that the acts of a rioter cannot be considered in isolation: P
Q Q
… Any participant whatever, irrespective of its precise
form, in an unlawful or riotous assembly of this type
R R
derives its gravity from becoming one of those who, by
weight of numbers, pursued a common and unlawful
S purpose. The law of this country has always leant heavily S
against those who, to attain such a purpose, use the threat
that lies in the power of numbers.
T T
U U
CRT29/11.4.2018 DCCC 581/2017/Sentence
V V
- 5 -
A A
B Over and over again it was submitted on behalf of the B
applicants that their individual acts should be regarded as
if they had been committed in isolation. Attempts were
C made on this footing to make light of such matters as C
pushing a police-officer on one side, breaking a window,
D or throwing a lighted mole fuse at one of the officers. In D
the view of this Court, it is a wholly wrong approach to
take the acts of any individual participator in isolation.
E They were not committed in isolation and, as already E
indicated, it is that very fact that constitutes the gravity of
the offence.
F F
G 12. In R v Keys & Others (1987) 84 Cr. App R 204, 207, G
though a case of affray, the principle appears equally applicable for
H H
riot. LCJ has a similar approach as Caird:
I I
… Even though a particular defendant himself never
J actually hit an opponent, never threw a missile, never J
physically threatened anyone, nevertheless, even if he
participated simply by encouraging others and by shouting
K insults and threats, he thereby helps to promote the totality K
of the affray. He must accordingly take some share of the
L blame for the overall picture. It scarcely needs stating L
that the more he is shown to have done in promoting the
affray, the greater must be his punishment.
M M
Relevant Sentencing Examples
N N
O O
13. In HKSAR v Hui Ka Ki & 2 Others DCCC 710/2016,
P
there is a riot involving 20 – 30 civilians against the police in Mong P
Kok on the second day of Lunar Chinese New Year in 2016. The
Q Q
rioters hurled glass bottles and sundry objects when they pushed back
R the police officers who were equipped with helmets and shields from R
the police checkline. D1 and D3 hurled glass bottles at them. D2
S S
hurled a bamboo stick at them. No police officers were injured.
T Their sentences after trial were each 3 years. T
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V V
- 6 -
A A
B 14. In HKSAR v Yeung Tsz Hin Chris & 2 Others DCCC B
860/2016, another riot that took place on the second day of Lunar
C C
Chinese New Year in 2016, about 100 rioters hurled bricks and
D sundry objects at the police officers. Some of them made a big fire, D
causing a lot of smoke. The trial judge regarded 2 of the defendants
E E
as active participants as they were holding glass bottles at the
F forefront near the fire and facing the police officers. The other F
defendant hurled bricks at the police officers. The riot lasted more
G G
than 10 minutes. The starting point taken was 3 years 6 months.
H H
15. In HKSAR v Yeung Ka Lun DCCC 875/2016, another riot
I I
that took place on the second day of Lunar Chinese New Year in
J 2016, about 50 – 60 rioters hurled bricks and sundry objects at the J
police officers. A taxi parked on the road side and signposts were
K K
damaged. Some rioters made fires at different locations, including
L L
the damaged taxi. A police officer had his arm hit and injured by the
M
falling brick. The defendant wore a cap that covered his hair and M
ears. He was identified on a photo taken at a moment he pulled down
N N
his face mask. He took part in burning the damaged taxi. He stood
O
at the forefront of the group that hurled bricks in confrontation with O
the police officers. The starting point taken was 5 years.
P P
Q Sentencing the Defendant Q
R R
16. The police were vastly outnumbered in the Riot. The
S number and aspects of police officers injured were astounding. The S
Defendant was at the forefront of the line confronting the police. In
T T
the Riot, he was seen to have hurled a brick. In the subsequent
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V V
- 7 -
A A
B enquiries he admitted to have shaken loose a signpost from its based B
on the ground. Video footages showed people picking up the bricks
C C
under the signpost. Police officers were injured by the bricks hurled
D by the rioters. His act was an egregious and wicked way to have fun D
at the expense of others’ safety. I take a starting point of 5 years.
E E
After a one-third discount for the plea of guilty, the sentence
F becomes 3 years 4 months. F
G G
17. There is evidence of his condition of ADHD at the time
H of offence and sentence. Dr Hung regarded that he was impulsive H
when committing the offence. From the fact that he was not having
I I
or wearing a cap or a face mask, while many rioters were, suggested
J no prior planning on his part and it possibly true that he was trying J
to have fun in his acts with little regard for their serious
K K
consequences. I reduce his sentence by 6 months.
L L
M
18. His sentence is 2 years 10 months. M
N N
O O
(E. Yip)
P District Judge P
Q Q
R R
S S
T T
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V V