HKSAR v. FONG CHI HUNG AND OTHERS

DCCC 259/2020

[2021] HKDC 234

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 259 OF 2020

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Reasons for Sentence

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1.  I am asked to consider a sentencing in respect of three defendants on this indictment today. These three defendants have initially pleaded guilty to a joint charge of unlawful assembly regarding an event on 10 November 2019. Two of the defendants, namely the 1st and 4th defendants, have also pleaded guilty to additional charges in respect of items found upon them at the time of their arrest.

2.  The background to the offence is that and the facts that support the convictions of the defendants are that on the evening of 10 November 2019 a large group of persons had assembled in the area of Nathan Road and Shantung Street.  Some 100 people were assembled in that area.  This assembly caused police units to be dispatched to disperse those persons so assembled.  The defendants were arrested during the dispersal operation.

3.  In the areas where these persons assembled, an unlawful assembly took place.  The people assembled there barricaded roads, occupied road carriageways, used laser-pointing devices against police conducting the dispersal operation. 

4.  Police arrested the 4th defendant in an area where a large group of people occupied roads and blocked those roads with miscellaneous items.  The 1st and 2nd defendants were arrested in a large group of people clad in black and masked.  The roadway was blocked with bricks and miscellaneous items were strewn upon the ground. 

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 defendant is also said to have resisted his arrest by hitting the facial shield of the arresting officer and lifting the officer up when he was being subdued, and those are the facts that support the 2nd charge against the 1st defendant.

6.  In another direction in the same area, large numbers of people were gathered, dressed in black, holding umbrellas and shining laser pointers.

7.  On arrest, a number of items were found on the defendants, particularly the 1st and 4th defendants.  Some form the particulars in the charges faced by the defendant. 

8.  The 1st defendant was found to be in possession of a spring-loaded knife and that can be found in Charge 3, a charge of possession of a prohibited weapon, contrary to the section 4 of the Weapons Ordinance.  The 1st defendant was also found to be in possession of a wireless microphone.  That is reflected in Charge 7 against him, possession of apparatus for radiocommunications without a licence.  He was also found to be in possession of the following additional items:  plastic straps, a hammer, scissors, a crowbar and four petrol bombs, one of those being the petrol bomb earlier seen, with three additional ones under his custody and control, and these form the charge against the 1st defendant, Charge 4.

9.  The 4th defendant was also searched and found in his rucksack and on his person were two petrol bombs, two lighters and a bottle of isopropyl alcohol, and that forms the basis of the 5th charge against the 4th defendant.

10.  It is noteworthy that these events on 11 November took place during what is described by the Final Court of Appeal as the “sudden and severe deterioration of law and order in Hong Kong arising from protests and social unrest” during the period of September to November 2019. The Final Court of Appeal case that I am referring to is HKSAR v Kwok Wing Hang, which was the Court of Appeal’s decision 9 of 2020, and I refer to what was described as unchallenged evidence in that case, where it was described that the situation in Hong Kong deteriorated during October and November and was described as a “further escalation of violence and vandalism especially since the week of 11 November”, which would be shortly after these events that we are dealing with today, and what was particularly frequent was extensive road blockages with dangerous items placed on vehicular passageways and railway lines and it is even said that even petrol bombs and hard objects were hurled at moving vehicles and the like.

11.  The Court of Final Appeal also noted the following phenomena at paragraph 91, the phenomena of what they describe as “black bloc” tactics, people concealing identity and thereby evading arrest and prosecution, and describe protestors using black clothing with little or no distinguishing features, and that is, in fact, included in the facts at paragraph 6 in this case.

12.  Those are the basic facts that the court has to rely on in this case and show a serious and violent disorder taking place involving violence towards property.

13.  The three defendants before me range in ages, but they all are people of clear records.  The 1st defendant is aged 34, the 2nd defendant is aged 17, and the 4th defendant is now aged 26.

14.  I have received mitigation from all the three defendants I am dealing with today.  As I say, they all have the common feature of being people of hitherto clear record before they came to this court.  They all have individual aspects of mitigation which they wish to put before the court.  I will have to summarise those for the purposes of the sentencing process, but I have read all the documents contained in their mitigation bundles, including the letters of support and commendation from many people, and I note their contents.

15.  I have also obtained reports which give me the backgrounds of all three defendants.  Because the 2nd defendant was only aged 17, I have obtained additional reports on him to investigate a number of options as to sentencing that defendant.

16.  I shall simply précis the 1st defendant’s position in this matter.  He is aged 34, of clear record, coming to Hong Kong when he was 12 years old.  He graduated with a Higher Diploma in Marketing and Media in 2011 and joined the Fire Services Department and been working as a fireman from that date until the suspension following his arrest on 10 November 2019.  That means that he has had 10 years’ service in the Fire Services Department and was at one point in respect of an operation in 2017 awarded a commendation by the Director of Fire Services in recognition of his professionalism and perseverance in his mission.  I have had the opportunity of reading a number of mitigation letters which commend the defendant to me from colleagues and superiors.

17.  He is a father of two young children aged 2 and 1 and certainly at the time of his arrest was the sole breadwinner of his family and provided financial support to his parents. 

18.  The defendant in mitigation does not suggest to me the charges are not serious.  He acknowledges the severity of the charges against him and I am told he understands a custodial sentence will be imposed because of the nature of the deterrent effect.  He expresses remorse and has again expressed it to the probation officer who has interviewed him for the background report and would wish eventually on release from custody to serve society in some way again.  He expresses regret for causing pain to his family.

19.  In mitigation, I am asked to consider that the particular form of unlawful assembly in this case did not involve or cause bodily harm or damage to people.  The 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 bombs, there was no evidence that they had been used, although there is evidence that the defendant had one petrol bomb in his hand during the course of the unlawful assembly, and this defendant asks for leniency.

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 suffered some knee injury, involving him being hospitalised for three days.  He was 16 years and 1 month old at the time of the offence, with a clear record, studying in Form 6, a good record of conduct in school.  This defendant has a particular skill.  He is a footballer of a high level of competence and skill,  particularly in the area of what is described as futsal, which is a -- I think, believe is a Brazilian form of football, on a smaller pitch than regular football.  There are a number of letters of commendation from the school social worker and his football coach and others.  He is regretful and remorseful and hopes to study in future for a Bachelor of Arts in Physical Education.

21.  The submission in respect of this defendant is that no specific acts of violence can be attributed to him.  His conviction relies solely on his presence at the unlawful assembly.  He appears to be dressed at the time in a style that suggests he has just come from football training, which is what was said in mitigation.  And, besides his presence at the unlawful assembly, no other, as it were, tools or items such as offensive weapons were found on him.

22.  A number of reports have been obtained on this defendant.  They reflect the mitigation that has been put forward.  The defendant being of the age he is, 17 years old, the court also has other options for sentencing besides the normal range of sentences of imprisonment and community service orders and probation orders.  Also, the defendant is eligible for detention in the facilities run by the Correctional Services Department for training of young people, which is detention centre, rehabilitation centre or training centre.  I am told from the report from the Correctional Services Department there are places available for him and he could be sentenced to any one of those options.

23.  I deal with the 4th defendant.  The 4th defendant also has expressed his remorse to the court and also in the course of interviews by the Probation Services.  He is now aged 26, born and brought up in Hong Kong.  He studied in City University and worked as a part-time bank staff at the time; lives with his parents and younger sister, and there are health issues in respect of his parents which are dealt with in the background report.  He is said as coming from a close-knit family and has a previous clear record.

24.  There are a number of mitigation letters in respect of the defendant.

25.  In the defendant’s mitigation, he of course admits his presence at the site of the unlawful assembly and the possession of the items found upon him.  He suggests in mitigation that the rubbing alcohol found on him was to use to clean wounds and that the petrol bombs found on him had been given to him by other younger people at the assembly and he was, as it were, holding them for them, but at the time when he was intercepted he had not disposed of them.

26.  As far as the unlawful assembly is concerned, it is said that the defendant, although present, there is on the facts no evidence indicating he performed violent acts.  And, finally, the defendant shows a genuine remorse, comes from a decent character and will not reoffend, and asks for leniency in respect of those matters.  I note, for this defendant, he has also been detained for 14 months at this point.

27.  Now I turn to the approach to sentencing.  Of course, the case that courts must in sentencing approach in a way that is consistent and achieve consistency in the outcomes.  The charges that these defendants face do not have a -- what I call a directly applicable guideline but there are guidelines available.

28.  I will turn first to the offence of unlawful assembly, contrary to 18(1) of the Public Order Ordinance, which all defendants face.  The factual basis for this, agreed by all three defendants, is that they all took place in an unlawful assembly at the area, where a large number of persons assembled involving acts of barricading and occupying road carriages, including the use of laser beams against police, which amounted to conduct of disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear the persons so assembled would a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace.  That is the agreed fact.

29.  It must be noted that unlawful assemblies cover a wide range of circumstances, but these facts, as agreed by the defendants, establish this was a case of violent civil disorder characterised by violence towards the property, whether manifested as blockage of throughways and roadways, and as such is a serious form of unlawful assembly, and also took place during the course of a period of serious social disorder in Hong Kong.

30.  The general approach to sentencing in cases of unlawful assembly has been dealt with by both the Court of Appeal and Final Court of Appeal in Hong Kong.  The case is 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 at page 77: 

“(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence, and the sentencing factor of rehabilitation.

(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”

31.  At paragraph 153 they say:

“For serious cases, the main purpose of the sentence is to punish and deter. So the overall consideration of the court should be inclined towards imposing an immediate custodial sentence. Unless there are very exceptional circumstances, and these circumstances by definition should be rare, sentences other than an immediate custodial sentence, including suspended sentences and community services, are not appropriate.”

32.  That is the words of the Court of Appeal, and that is the approach that I must take in respect of the sentencing on Charge 1 in this case.

33.  Both the 1st and 4th defendants face charges which particularise and criminalise their possession of various items.  Of particular relevance are the petrol bombs, otherwise described as “Molotov cocktails”.  This is charged under section 62A of the Crimes Ordinance, Cap 200.  That particular section has a maximum sentence of 10 years’ imprisonment. 

34.  I note there are no guideline sentences from the Court of Appeal in respect of this particular case or charge.  The Court of Appeal has recently considered a starting point for sentence, where petrol bombs are used and ignited and thrown under the charge -- and those will be found under charges of arson or attempted arson, in HKSAR v Yiu Siu Hong [2020] HKCA 1087, and those charges involved offences of arson where there was recklessness as to endangerment of life.  So that authority is not directly relevant to the facts of this case or the charge in this case, which alleges an intent to damage property.

35.  The overview of sentencing in HKSAR v Yiu Siu Hong suggests that, for those offences, depending on the circumstances of aggravation or mitigation, a starting point in the region of 5 to 6 years is appropriate.  I have been referred to some concomitant District Court cases under section 62A, where starting points for sentence have ranged between 3½ to 4 years’ imprisonment for possession of these forms of what we are in effect explosive devices. 

36.  An important factor in this case when assessing the starting point for sentence under the charge under section 62A of the Crimes Ordinance is that these items were possessed in a public gathering, especially a serious public disorder.  Possession of these items does reflect a major escalation of risk and a major escalation of danger to others.

37.  I take from this summary that simple possession of a petrol bomb at a violent disorder type of unlawful assembly gathering will lead to a starting point for sentence which ranges between 3 to 4½ years’ imprisonment, subject to various mitigating or aggravating factors in the circumstances of commission.

38.  I also note, as far as the other offences that are charged in this indictment, the 1st defendant faces a charge of possession of prohibited weapon, where a maximum sentence of up to 3 years could be imposed.  Under Charge 7, possession of the radiocommunications without a licence, a sentence of up to 5 years’ imprisonment can be imposed.  Under Charge 2, resisting arrest, a sentence of up to 6 months’ imprisonment can be imposed.

39.  Having dealt with that résumé of the sentencing powers of the court, I now deal with the individual sentences that should be imposed in respect of the individual defendants. 

40.  As far as the 1st defendant is concerned, I do reiterate that I note the mitigation advanced in his case and the commendations for his previous service and the good impression made on his colleagues.  But I also have to bear in mind that the purposes of sentencing, in at least the 1st and 4th charges the defendant faces, the court has to give weight to punishment and deterrence, and, when that weight is given, very little or no weight can be given as to defendant’s motives or reasons for committing the offence and his personal circumstances. 

41.  Naturally, the conviction and sentencing of this case will mean the defendant will have to be separated from his family and also will find that a career in public service is no longer available to him.  These are substantial punishments against the 1st defendant before one turns to whatever the prison sentence must be.

42.  As I said, he is convicted in respect of Charge 1 and 4, where the primary purpose of sentence is deterrence. Accordingly, his personal circumstances and motivations are of small relevance to sentencing. The defendant’s past commendations and public service must be set against the reputational damage incurred by his involvement in this disorder.

43.  Defendant is naturally entitled to a full one-third discount from the starting points for sentences that I will indicate.

44.  As far as Charge 1 is concerned, that is a serious violent disorder.  Defendant was present.  He was armed with a knife and four petrol bombs at the time. 

45.  The Charge 1 is to a certain extent mirrored in its considerations with Charge 4, as far as the defendant is concerned.  In determining the defendant’s sentence on Charge 4, I bear in mind that, firstly, he was in possession of the four petrol bombs set out in the charge.  His possession of the radio telecommunications devices suggest that he was involved in some co-ordinating role as well.  Also, other serious weapons were seized at the time, including a hammer, crowbar and the knife.

46.  Finally, in respect of the defendant’s possession of the petrol bomb which was seen to be in his hand, that would reflect a serious escalation of the unlawful assembly if the defendant had chosen to find a way of igniting the petrol bomb.  The fact that he had it in his hand is certainly more serious than it being placed in his rucksack.

47.  On the 1st charge, in respect of the 1st defendant, of an unlawful assembly, I will take a starting point at 30 months’ imprisonment, reduce that to 20 months’ imprisonment for his plea of guilty.

48.  On the 2nd charge of resisting a police officer, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for his plea of guilty.

49.  On the 3rd charge of possession of the prohibited weapon, again take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for plea of guilty.

50.  On the 4th charge of possession of a thing with intent to damage property, I will take a starting point at 48 months’ imprisonment, which I will reduce to 32 months’ imprisonment for the defendant’s plea of guilty.

51.  On the 7th charge, possession of apparatus for radiocommunications without a licence, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.

52.  I must consider what appropriate overall total sentence should be for this defendant.  There is of course a number of overlaps between the various charges, particularly the 1st and 4th charges.  Having regard to the factors I have already set out, I shall order the 1st, 4th and 7th charges should be served concurrently to each other and the 2nd and 3rd charges should be served concurrently to each other but consecutively to the 1st, 4th and 7th charges.  That would give an overall total of 34 months’ imprisonment for the 1st defendant.

53.  I shall deal now with the 4th defendant because the considerations in respect of his offence are similar to those of the 1st defendant.  Then I will return to the 2nd defendant at the end.

54.  The 4th defendant, the calculation of the sentences against him is similar in a way to the 1st defendant and I will take the same starting point for sentence on the unlawful assembly.  He was present at a serious disorder in possession of petrol bombs, two petrol bombs.  So I will take a starting point of 30 months’ imprisonment, reduce that to 20 months’ imprisonment for the defendant’s plea of guilty. 

55.  He also faces the 5th charge, possessing things with intent to damage property, contrary to section 62(a) of the Crimes Ordinance.  I do take account of the defendant’s account of how he came to be in possession of those two petrol bombs, but the petrol bombs were possessed with the capacity to light them and the defendant has admitted that he possessed them intending without legal excuse to use the said things to damage property, so I must bear that in mind when assessing the appropriate starting point for sentence.  Again, the possession of petrol bombs at an unlawful assembly represents substantial escalation of the danger and risk. 

56.  And, finally, this defendant was dressed in a “black bloc” fashion, which would be an aggravating factor for him. 

57.  I will take a starting point in respect of this defendant of 3½ years on the 5th charge, which is 42 months, reduced to 28 months’ imprisonment for his plea of guilty.  Sentences on Charge 1 and 5 will be served concurrently.  Total of 28 months’ imprisonment.

58.  The 2nd defendant.  Again, I have set out the sentencing factors in respect of the 2nd defendant and a range of sentences are available to him, bearing in mind he is 17 years old.  The authority dealing with the unlawful assembly, as I have already iterated, sets out that serious unlawful assembly - so this must fall into the category of a serious unlawful assembly - the object of the court is to punish and deter and the court should be inclined to impose an immediate custodial sentence. 

59.  Having regard to the sentences already passed on the 1st and 4th defendants in respect of this 1st charge, clearly an immediate custodial sentence is the appropriate sentence to be imposed and the court could only depart from that if there are exceptional circumstances, which are rare. 

60.  When determining this defendant’s sentence, I do bear in mind the absence of aggravating factors such as the defendant being in possession of other items or being seen to be actively participating in the violence.  But what must be noted about this particular unlawful assembly is, as far as the facts that I have before me show, it always was a violent disorder and so the 2nd defendant must have joined this violent disorder knowing that that was its character. 

61.  I consider that I am bound by the authorities before me to consider this as a case where a sentence of imprisonment is appropriate for any person of the defendant’s age.  As far as the recommendations contained in the various reports I have, the defendant is actually not recommended for a community service order.  It is thought that a probation order would be more appropriate for him.  But, having regard to the appellate direction, a probation order would be seen to be too lenient to disposal, even for a defendant of this age. 

62.  This would leave me with the only custodial options being an immediate sentence of imprisonment or the three forms of training that would be offered by the Correctional Services Department, for which the defendant is suitable for and for which there are places for him.  I am told by the Correctional Services Department that this defendant is more suited to a detention centre order than any other of the orders that they can offer to this defendant.

63.  In sentencing this defendant, I have already said that I bear in mind his youth, his good character beforehand.  He has become involved in an offence for which a sentence of imprisonment must be imposed.  Because of his age, I can find an alternative to that and the alternative that I will direct for this defendant is, in respect of the charge that he faces, Charge 1, he be sentenced to a rehabilitation centre, which will provide a regime which may assist in a more speedy release from custody.  That is the order I will make:  a rehabilitation centre on Charge 1 for the 2nd defendant.