HKSAR v. CHOI TSZ CHUNG

DCCC 385/2020

[2021] HKDC 390

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 385 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of taking part in a riot, contrary to sections 19(1) and (2) of the Public Order Ordinance, for which the maximum sentence is 10 years’ imprisonment[1].

2.  Full particulars of the offence are set out in the amended summary of facts admitted by the defendant on 22 March 2021. 

3.  The riot took place in the afternoon of Sunday 25 August 2019 in the vicinity of Yeung Uk Road which is a main road in Tsuen Wan consisting of several carriageways on either side of the road.  Footbridges cross the road and there are residential estates and shopping malls nearby.

4.  In summary at around 4:30 p.m. a large scale protest/procession called “Tsuen Kwai Tsing Parade” passed by Tsuen Wan at which time a crowd of people began to assemble on the carriageways of Yeung Uk Road.

5.  At around 4:45 p.m. a convoy of Police Tactical Unit vehicles and anti-riot police arrived to maintain order.  The police formed a checkline on Yeung Uk Road near Nina Mall. 

6.  By this time nearly a thousand people had assembled on the carriageway 40 to 60 meters ahead of the police checkline.  The crowd blocked and occupied Yeung Uk Road and set up barricades on the road. 

7.  After a while a group of black clads wearing helmets, respirators, goggles and holding long umbrellas, metal rods, wooden poles and self-made shields stepped forward from the crowd and pressed forward towards the police checkline with the rest of the crowd following.

8.  Between 5 p.m. and 5:30 p.m. the unlawful assembly of the crowd on Yeung Uk Road turned into a riot.  The group of black clads together with others fortified their positions and barricades and hurled large amounts of missiles and miscellaneous items such as bricks, stones and eggs at the checkline. 

9.  In support of the crowd and in furtherance of the disturbance, a number of people on the footbridges repeatedly shot blue and green laser beams at the heads of the anti-riot police and the cameras used by the police to record the events of that afternoon.

10.  The police on several occasions displayed warning flags to the rioters but in vain.

11.  Between 5:36 p.m. and 6:00 p.m. the rioters at the barricades kept shooting blue and green laser beams at the checkline.  In addition to bricks and stones, petrol bombs were also hurled at the police.  Bricks and fires caused by the petrol bombs were all over the carriageways in front of the checkline.

12.  A group of rioters holding water-filled barriers and long bamboo sticks charged in an attempt to break through the checkline.  At the same time rioters on the footbridges continued to shoot blue laser beams at the checkline.   Tear gas was deployed by the police in an attempt to disperse the rioters.

13.  At around 6:18 p.m. under cover of more intensive blue and green laser beams shot at the checkline the rioters began to retreat towards the Tai Wo Hau MTR station. 

14.  At around 6:30 p.m. police reinforcements arrived and the anti-riot police then moved forward to disperse the crowd.  At 6:54 p.m. the police left Yeung Uk Road because the commotion was spreading to other parts of Tsuen Wan.  The disturbance in the area generally subsided at around 8:00 p.m. that night.

Arrest

15.  Between 8 p.m. and 10:00 p.m. the same day unlawful assemblies took place on Yen Chow Street in the vicinity of the Sham Shui Po police station. 

16.  At around 10:06 p.m. the police marched along Yen Chow Street to disperse the crowd.  The defendant was arrested on the carriageway amongst the fleeing crowd.

17.  In the defendant’s rucksack the police found arm guards, knee pads, leg guards, a helmet, a respirator, masks, gloves, goggles and a change of clothes.  The police also found two devices capable of emitting laser beams: one Class 4 laser and one Class 3B laser. 

18.  The defendant’s Octopus card showed that he had entered Tai Wo Hau MTR station at about 7:54 that evening and exited at Sham Shui Po station at 8:14 p.m.

19.  In subsequent video recorded interviews, the defendant admitted taking part in the riot in Tsuen Wan.  In summary the defendant, inter alia, said that he left home at 3:00 p.m. to join the procession; on the bus he changed into a black T-shirt and a blue raincoat; he put on a mask and the yellow helmet when taking part in the procession; after arriving at Yeung Uk Road and seeing the anti-riot police he put on the respirator, knee pads and leg guards; he joined in chanting slogans against the police; he saw people digging up bricks; when the police used tear gas he left and went to Sham Shui Po; he bought the laser devices the day before in Apliu Street because he had seen other people using laser pointers to shoot at CCTV cameras, buildings and police officers and he wanted to emulate them; he only used the Class 4 laser to provoke the police because of bad police-community relations; he was aware that shooting laser beams at the eyes would be hazardous and would cause ocular damage or even blind the police officer; he was among the crowd confronting the anti-riot police and was one of a dozen people shooting laser beams at the police.

Video footage

20.  The riot was captured on police video and video footage from i-CABLE News the contents of which are summarised in Annex 1 of the amended summary of facts.  A ‘highlight” video has been prepared showing the parts of the riot corresponding to the defendant’s confession and is summarised in Annex 2A.  

21.  The “highlight” video has been played in court.  I have also viewed all the footage in Annex 1 for the period between 16:34 and 18:18 during which time the riot took place.  

22.  Mr Lo informed the court that there was no injury to any police officer or other person and that apart from the damage to Yeung Uk Road as seen in the video footage there was no other specific property damage.

Forensic examination

23.  I have read the forensic examination report.  In summary the forensic examiner found that direct eye exposure to the blue laser emitted from the Class 4 laser pointer at any point within 20 meters can cause ocular damage; viewing the diffused reflections may be hazardous and the laser emitted often represents a fire hazard. 

24.  The forensic examiner found that direct eye exposure to the green laser emitted from the Class 3B laser pointer at any point within 40 meters can cause ocular damage, including from accidental short time exposure. As the laser emitted was not very focused it was unlikely to produce any skin injuries or pose any risk of igniting flammable materials.  

Mitigation

25.  In passing sentence, I have carefully considered the oral and written submissions of Mr Tang, including that the defendant, aged 21, lives with his parents and younger brother, is working part-time in King Yo Drink Shop while his studies at IVE have been suspended[2]. I take into account the defendant has no previous convictions.

26.  I have read the defendant’s mitigation letter in which he describes why he participated in the march on 25 August 2019; that he has been unable to finish his studies and will not be able to fulfil his dream of becoming an ambulance man.

27.  I have also read the letters written by the defendant’s parents; Mr Ho, his lecturer at IVE; friends and colleagues.  All speak highly of the defendant.  This is also borne out by the certificate from the defendant’s school stating that the defendant left school having been honoured as an excellent disciplinary student leader.  The defendant’s father, Mr Ho and the defendant’s school friends have attended court to lend their support to the defendant.

28.  In oral submission Mr Tang asks the court to take into account that at the first opportunity the defendant confessed to his involvement in the riot in Tsuen Wan thereby saving a lot of police time to investigate and that without the confession the defendant may not have been charged.

Discussion

29.  As is now a matter of public record, between June and October 2019, Hong Kong experienced an exceptional and sustained outbreak of violent public lawlessness[3].  Public disorder took place in various parts of Hong Kong in which violence escalated and included acts of repeatedly blocking roads and attacking police officers with weapons including high-powered laser pointers, bricks and throwing petrol bombs[4].

30.  The riot in Yeung Uk Road is one instance of that violent public lawlessness.  

31.  In Secretary for Justice v Wong Chi Fung, the Court of Final Appeal held that the Court of Appeal were justified in holding that in sentencing cases of disrupting public order, especially those which involve violence, the court must bear in mind the importance of preserving public order and pass sentence that is not only appropriate to the punishment of the offenders but also takes into account the factor of deterrence[5].

32.  In HKSAR v Leung Tin Kei & others, a case arising from the 2016 Mongkok riots, the Court of Appeal emphasised that the court would impose punitive and sufficiently deterrent sentences on people who commit riot[6].

33.  In Secretary for Justice v CMT the Court of Appeal again stressed the need for continuous and vigorous application of deterrent sentences for offences of unlawful assembly and riot as essential to uphold the public interest in maintaining peace and safety in Hong Kong[7].

34.  The court in HKSAR v Leung Tin Kei adopting the factors relevant in sentencing for unlawful assembly as endorsed by the Court of Final Appeal in Secretary for Justice v Wong Chi Fung[8] said that generally speaking, the factors to be taken into account when passing sentence on the offence of riot include[9]:

(1)  whether the riot was spontaneous or premediated; if it was the latter, how detailed and precise the plan was;

(2)  the number of people engaged in the riot;

(3)  the degree of violence used by the rioters, including whether weapons were used and, if so, what kind and quantity of weapons;

(4)  the scale of the riot, including the time, location, the number of places and the area in which the riot took place;

(5)  the duration of the riot, including whether the riot was prolonged; and whether it still went on despite repeated warnings by the police or public officers;

(6)  the harm caused by the riot: for example, whether there was any loss or damage to properties and, if so, to what extent; whether anyone was injured and, if so, the number of injured persons and the degree of injury;

(7)  the imminence and gravity of threat that was caused by the riot;

(8)  the nature and extent of nuisance caused to the public by the riot;

(9)  the impact caused by the riot on the relationship among community groups;

(10)  burden caused to public expenditure by the riot;

(11)  the offender’s role and degree of participation; for instance, apart from taking part in the riot, whether he had arranged, led, summoned, incited or advocated others to take part in the riot; and

(12)  whether the offender committed any other crimes during the course of the riot.

35.  The courts have emphasised that since the background and facts involved in each case of riot are different, each case has to be considered separately, so the sentencing in other cases do not provide much guidance; the court in sentencing should apply appropriate principles and pay regard to the actual circumstances of individual cases, and then impose the proper sentence[10].

36.  The age of an offender is always a relevant mitigating factor in sentencing[11].  The defendant is now 21, 19 nearly 20 at the time of the offence.  The defendant having turned 21 section 109A of the Criminal Procedure Ordinance, which provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate, does not apply[12]. A court must nevertheless exercise great care before committing a young offender to prison.

37.  In Secretary for Justice v Leung Hiu Yeung the Court of Final Appeal considered the approach to be taken where a defendant crosses a relevant threshold between the dates of offending, conviction and sentence[13]. The court said that if a young offender has turned 21 between the date of offending and the date of sentence, the fact of his youth will be a powerful factor in determining the appropriate sentence for him and that the sentence he should receive will, in most cases, be the same as if section 109A had applied to him[14].

38.  The court went on to say that there will, of course be exceptions but in practical terms a young offender who has turned 21 by the time of sentencing should only be sent to prison as a matter of last resort and, for that purpose, the sentencing court will have to be alive to the possibility it may need to obtain reports[15].

39.  Today Mr Tang, relying on the decision in Secretary for Justice v Leung Hiu Yeung, asks the court to call for a report as to the defendant’s suitability for Detention Centre[16]. A young offender who is over 14 and under 25 is eligible for detention in a Detention Centre.

40.  The Court of Final Appeal in saying there will of course be exceptions referred to their earlier decision in Secretary for Justice v Wong Chi Fung that in an appropriate case section 109A may be dispensed with[17].

41.  In Secretary for Justice v Wong Chi Fung the Court of Final Appeal reaffirmed the position that where the facts warrant the sentencing court to take the view that the serious nature of an offence so clearly overrides any considerations personal to the offender the court can determine, without resort to obtaining information pursuant to section 109A, that the only appropriate sentence is one of imprisonment[18].

42.  In Secretary for Justice v SWS the Court of Appeal said that in balancing various sentencing factors the court would give young offenders a chance to rehabilitate as far as practicable however where as a matter of public interest, the seriousness of the offence and the circumstances of the case call for a heavy or deterrent sentence, the offender’s young age and personal background would count very little or even pale into insignificance because the need for a punitive or deterrent sentence far outweighs the rehabilitative need of the offender[19].

43.  After careful consideration I am satisfied the only appropriate sentence is one of imprisonment. I decline to call for a report as to the defendant’s suitability for Detention Centre.  Further, in my view a sentence of detention in a Detention Centre would not reflect the gravity of the offence. 

44.  Mr Tang asks the court to take into account the defendant only used a laser pen and did not engage in any other violent conduct; that he was not the leader nor the initiator and was influenced by the “sheep-flock” effect and foolishly followed others[20].

45.  In HKSAR v Tang Ho Yin, a case also arising from the 2016 Mongkok riots, the Court of Appeal derived three important principles from a review of authorities from the English Court of Appeal. 

46.  Firstly, the gravity of the offence of riot is not to be judged merely by what the individual did (or did not do), but by what the group to whose number he lent his support did; secondly, the offence may be aggravated by the commission of other crimes during the course of the riot; and thirdly, those who resort to the company and association of others in order to inflict widespread violence and destruction must be strongly deterred[21].

47.  Mr Tang submits that after the march finished the defendant acted out of impulse on seeing the police have confrontation with other protestors.  The defendant’s parents also believe the defendant acted on the spur of the moment[22]. 

48.  In the defendant’s mitigation letter reference is made to the police issuing a letter of no objection to the parade.  In court Mr Lo confirmed that the police had issued a letter of no objection to the parade; at the end stage of the parade in Tsuen Wan the people began to leave; Yeung Uk Road was beyond the end of the parade and that at the time of the riot the lawful march had finished. 

49.  In HKSAR v Chow Nok Hang, Riberio PJ stated that “Once a demonstrator becomes involved in violence or the threat of violence …. that demonstrator crosses the line separating constitutionally protected peaceful demonstration from unlawful activity which is subject to legal sanctions and constraints”[23].  

50.  Similarly, in Secretary for Justice v Wong Chi Fung the Court of Final appeal stated that, “In such a case involving violence, a deterrent sentence may be called for and will not be objectionable on the ground that it creates a “chilling effect” on the exercise of a constitutional right, since there is no right to be violent.  Quite simply the line of acceptability has been crossed”[24].

51.  Notwithstanding the defendant’s young age at the time, 19 nearly 20, I do not accept the defendant acted on impulse once the march had ended.  Nor do I accept what the defendant says in his letter that all he wanted to do was escape from the scene immediately but was unable to do so. 

52.  The defendant left home taking with him arm guards, knee pads, leg guards, a helmet, a respirator, masks, gloves, goggles and a change of clothes together with two devices capable of emitting laser beams which he had bought the day before to emulate other protestors and provoke the police, knowing that shooting laser beams at the eyes would be hazardous and could cause ocular damage or even blind a police officer. 

53.  In addition, the defendant did not go home.  After taking part in the riot the defendant entered the Tai Wo Hau MTR station at 7:54 p.m. and instead of going home went to Sham Shui Po, the scene of other unlawful assemblies that night, arriving at 8:14 p.m.  The defendant was arrested nearly two hours later amongst the fleeing crowd on Yen Chow Street when the police were dispersing the unlawful assemblies[25].  

54.  The scale of the riot can be seen by watching the video footage, not just the highlight video, in particular i-CABLE News for the period 17:24-18:14 which shows the riot from different angles.  Both sides of the carriageway were blocked.  The riot lasted for about an hour.  Notwithstanding many warnings had been given by the police and tear gas used, the rioters continued to shoot green and blue laser beams at the police and throw bricks and petrol bombs. 

55.  Throwing of petrol bombs poses obvious and potentially lethal danger to the police, protestors and other persons who happen to be at or near the scene.  This is perhaps best seen at the end of police video 5, time duration between 11:54 and 12:12, when a petrol bomb was thrown and landed next to reporters who were filming the police.  Fortunately, nobody, including police officers, was injured.

56.  The throwing of petrol bombs, albeit not by the defendant, adds to the scale of violence used in the riot.  By associating himself with the rioters who were throwing bricks and petrol bombs the defendant was clearly lending support and encouragement to others in the group to violently attack the police. 

57.  Taking into account all the circumstances of the riot as shown in the video footage and that the defendant is a first offender who was 19 nearly 20 at the time and confessed to taking part in the riot at the earliest opportunity, I am satisfied a starting point of 6 years’ imprisonment is appropriate. 

58.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 4 years’ imprisonment.