SECRETARY FOR JUSTICE v. CWC

[English Translation - 英譯本]

CAAR 12/2020

[2021] HKCA 166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 12 OF 2020

(ON REVIEW FROM ESCC 700006/2019)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Poon CJHC:

1.  I agree with Pang JA’s judgment. For the reasons for judgment provided by Pang JA, the sentence imposed by the trial magistrate on the respondent, ie a probation order for a period of three years, was wrong in principle and manifestly inadequate and shall therefore be quashed. An appropriate sentence is a training centre order, and therefore the respondent is sentenced to the training centre in place of the original sentence.

2.  I am going to discuss two matters. The first is about how the trial magistrate approached sentencing.

3.  On 19 May 2020, upon hearing the preliminary mitigation, the trial magistrate called for a psychologist’s report and a probation officer’s report in respect of the respondent and adjourned the case to 14 July. At that time, he warned the respondent that all sentencing options were still open because the case was serious.

4.  According to the psychologist’s report, the respondent suffered from Asperger’s syndrome and oppositional defiant disorder, and the respondent also said that he had committed the offence under coercion. It was recommended in the first probation officer’s report that the respondent be put under probation for 15 months.

5.  At the hearing on 14 July 2020, the trial magistrate said that the Court of Appeal had not set down any tariff of sentence in respect of the offence of arson, which both the prosecution and the defence agreed. The trial magistrate then discussed with both parties if the guidelines of the UK Sentencing Council in relation to arson was applicable. The trial magistrate also said that he had to further consider the respondent’s allegation of coercion and whether he was in any way under the influence of Asperger’s syndrome and oppositional defiant disorder. Therefore, the trial magistrate directed both parties to submit written submissions on these two issues. Finally, the trial magistrate said that he intended to call for a report from the Young Offender Assessment Panel in respect of the respondent so that he could be assisted in deciding the appropriate sentence. However, upon realizing that the respondent had to be remanded in custody if the said report was called for because it would then be necessary to prepare reports in relation to custodial sentences such as a detention centre report, the trial magistrate said that a further probation officer’s report would suffice.

6.  Afterwards, the defence in their written submissions expressed clearly that they would no longer rely on the allegation that the respondent had committed the offence under coercion. The contents and recommendations in the second probation officer’s report were similar to those in the first one.

7.  At the hearing on 21 August 2020, the trial magistrate spent quite some time on hearing the submissions from both sides on the guidelines of the UK Sentencing Council. In sentencing, he said that the factors for consideration mentioned by the UK Sentencing Council in fact did not contradict the cases decided by the Court of Appeal, and that the UK guidelines had considerable referential value.

8.  In my view, how the trial magistrate had dealt with the sentencing in the case was deficient in the following ways.

9.  As the facts of arson cases can take various different forms, the Court of Appeal does not consider it appropriate to lay down any tariff of sentence, nevertheless, based on its many precedents, the Court has established sentencing principles for arson and factors to be considered: see Secretary for Justice v SWS [2020] HKCA 788, paras 50 to 54. It can be said that the Court of Appeal has given adequate and comprehensive guidance for the sentence of arson. Lower courts are bound by the decisions made by the Court of Appeal, which the trial magistrate must follow. Besides, as the trial magistrate himself also indicated, the factors for consideration stated in the UK guidelines are no different from what have been referred to by the Court of Appeal in its decisions, it can be said that the UK guidelines can provide no additional assistance in respect of arson. Therefore, the trial magistrate could have simply imposed the sentence by following the Court of Appeal decisions, having no need to make reference to the UK guidelines.

10.  At the hearing on 19 May, the trial magistrate said that the facts of the case were serious and hence all sentencing options remained open but he requested only a probation officer’s report in respect of the respondent. In Secretary for Justice v SHY [2020] HKCA 829, para 8, I pointed out that unless there are exceptional circumstances, if the court, upon hearing the mitigation preliminarily in relation to the defendant’s culpability, finds it necessary to call for reports to consider various sentencing options, a proper approach is to seek all relevant reports in one go to enable the court to fully understand all the circumstances and information relevant to sentencing before imposing an appropriate sentence on the defendant. Since the trial magistrate considered that the facts of the case were serious so that all sentencing options remained open, it would be more desirable to call for all relevant reports in respect of the respondent rather than only the probation officer’s report, otherwise he would not be able to give comprehensive consideration to all sentencing options.

11.  At the hearing on 14 July, the trial magistrate said that he had to call for a report from the Young Offenders Assessment Panel for the respondent to assist himself in considering the appropriate sentence. At that time, it must be in his mind that the psychologist’s report and the first probation officer report were not sufficient to enable him to come up with an appropriate sentence, hence a report from the Panel was necessary. However, immediately upon realizing that the respondent would have to be remanded in custody during the preparation of the Panel report, he said that a further probation officer’s report would suffice. The question is: why was the second probation officer’s report sufficient if the psychologist’s report together with the first probation officer’s report had not been sufficient to enable him to come up with an appropriate sentence? He gave an impression that even if he really considered a Panel report necessary, he gave it up because he did not want to detain the respondent. Further, even though he was not going to call for the Panel report, why did he not ask for other reports so that he could consider other sentencing options, including custodial sentences? From what the trial magistrate has done, it could not be more obvious that he did not want to remand the respondent in custody.

12.  What the trial magistrate had done was undesirable. Since he did not want to detain the respondent, he did not call for the relevant reports, thereby depriving himself of sufficient basis or relevant information to consider other appropriate sentencing options other than a probation order. In terms of perception, he gave an impression that he had already concluded at an early stage that a non-custodial sentence was the most suitable option: see Secretary for Justice v SHY, para 7.

13.  The other matter that I need to deal with arises from the submissions made by Ms Lam, DDPP, which is about the role taken by the prosecutor at the sentencing stage of a trial.

14.  In Attorney General v Jim Chong-shing [1990] 1 HKLR 131, the prosecution, by application for review of sentence, invited the Court of Appeal to consider the role of prosecuting counsel at the sentencing stage of a trial. After hearing the detailed submissions from the prosecution, the defence, the Bar Association and the amicus curiae, and having considered both local and overseas authorities and relevant academic articles, the Court of Appeal summarised the applicable principles in the judgment at p 15C-F as follows[1]:

“ (a) prosecuting counsel in the High Court should be permitted to bring decisions of the Court of Appeal to the attention of the trial judge where he or she considers they can help the Court to arrive at a just and proper sentence;

(b) this should be done before the address in mitigation, and prosecuting counsel should not be given anything in the nature of a right of reply;

(c) prosecuting counsel should select only cases which are ‘tariff’ or ‘guideline’ cases (including cases which lay down relevant sentencing principles) but not decisions which merely uphold, reduce, or increase a particular sentence;

(d) prosecuting counsel should be careful not to suggest any particular sentence or type of sentence, or to say anything that could be taken as advocating severity;

(e) the same principles should apply in the District Court and the Magistrates Courts, save that it should be permissible in Magistrates Courts for the prosecutor to draw attention to ‘tariff’ or ‘guideline’ cases which emanate from the High Court on appeal from those courts:

(f) where the defendant is represented, the cases intended to be cited should be made known to counsel or the solicitor conducting the defence.”

The Court of Appeal in particular pointed out that the then Vice President and all other Justices of Appeal of the Court of Appeal were in general agreement with these principles which have been in use up to the present.

15.  Ms Lam hoped that this court would by the present case restate and review the role of the prosecutor at the sentencing stage of a trial, in particular point (c) above, so that the prosecution could provide the most appropriate assistance to the court in sentencing, and the time and resources of the court could be saved effectively in dealing with reviews of sentence or appeals against sentence. After discussion, Ms Lam accepted that the role of the prosecutor at the sentencing stage of the original trial was not in issue in the present case, nor did such issue arise. Ms Lam also agreed that it was not the appropriate time to review the principles laid down in Jim Chong-shing at the present stage because any review of the principles might give rise to profound and long lasting influence which required thorough and comprehensive consideration on the public interest and arguments involved.

16.  I reiterate, it is a long established basic principle of the common law that a prosecutor at the sentencing stage of a trial should not attempt by advocacy to influence the court in relation to the sentence. Under this premise, the principles laid down in Jim Chong-shing are still applicable. This is of course not saying that the prosecutor cannot or may not provide any assistance to the court at the sentencing stage. In relation to the role of prosecutors at the sentencing stage, reference may be made to Cross and Cheung on Sentencing in Hong Kong, 9^th Edition, Chapter 35 on Prosecutor and Sentence. There are detailed discussions on the applicable principles and precedents. If the court needs assistance from the prosecution, provided that the common law principle mentioned above and the applicable principles, including the principles laid down in Jim Chong-shing, are not undermined, the prosecutors may act as directed by the court.

Hon Pang JA (Giving the Reasons for Judgment of the Court):

A. Introduction

17.  On 19 May 2020, the respondent was convicted on his plea of guilty of one charge of “arson being reckless as to whether life will be endangered by fire”, contrary to ss 60(2) and (3) and 63(1) of the Crimes Ordinance (Cap 200). Mr Ho Chun Yiu, Magistrate (the trial magistrate) ordered a probation officer’s report, a community service order report and a psychologist’s report in respect of the respondent. On 14 July 2020, the trial magistrate adjourned the case again for a further probation officer’s report. On 21 August 2020, the trial magistrate sentenced the respondent to probation for three years with four additional conditions[2].

18.  The applicant contended that the sentence was wrong in principle and manifestly inadequate. An application was therefore made to the Court of Appeal for leave to review the sentence pursuant to section 81A of the Criminal Procedure Ordinance (Cap 221). Leave to apply was granted on 14 September 2020.

19.  On 14 January 2021, after a formal hearing, this Court held that the applicant’s grounds of review were established, quashed the original sentence and ordered suitability reports for community service order, rehabilitation centre, detention centre and training centre respectively. On 4 February 2021, the respondent was sentenced by this Court to the training centre in substitution of his original sentence. These are our written reasons for the judgment.

B. Relevant facts of the case

20.  Apart from the summary of facts, two video clips (exhibits 10 and 11) and fifteen photographs were also produced to the court to assist the trial magistrate in sentencing.

21.  The above material as a whole revealed that Block 1 of Chai Wan Police Married Quarters was a multi-storey building. The lowest level was a car-park. Between the building and the perimeter wall was a two-lane driveway leading to and from the carpark.

22.  At 4:10 pm on 18 November 2019, pedestrian(s) from the outer boundary of the quarters saw the respondent and a female each throw a petrol bomb into the area behind the perimeter wall. At that time, they were both dressed in black and wore balaclavas and face masks.

23.  The petrol bomb thrown out by the respondent flew across the wall and hit a window of a flat on the first floor of Block 1 of the quarters, and the window and the exterior wall were charred by fire. At the material time, the head tenant and a family member were inside the said flat, and there were also people inside other flats on the same floor.

24.  The petrol bomb thrown out by the said female flew across the perimeter wall but only hit the driveway between the building and the wall. A fireball ensued and narrowly missed landing on a vehicle leaving the carpark (exhibit 10). In any event, the petrol bomb charred the wall beside the driveway and fragments scattered around.

25.  After committing the offence, the respondent was subdued by some pedestrians and handed over to the police. The female successfully fled in the direction of Yue Shun House of Yue Wan Estate. The respondent remained silent under caution.

26.  The police found an unlit petrol bomb from a garbage can at the back staircase on the 3^rd floor of Yue Shun House, and there was also a lighter containing fuel on the floor beside the garbage can. The CCTV camera at that location also recorded the circumstances in which the respondent and the female left through the rear door on the ground floor of Yue Shun House with petrol bombs in their hands (exhibit 11). At that time, the respondent had already put on the balaclava and mask with the gesture of lighting up a petrol bomb.

C. The respondent’s background and mitigation

27.  The respondent was 15 years and 5.5 months old at the time of the offence, 11 days before turning 16 when pleading guilty and over 16 at the time of sentence. He had a clear record prior to the present case. He was studying in Form 4 in a mainstream school. However, he has been a student having special educational need as he was diagnosed with Asperger’s syndrome (one type of autism) when he was aged 7. The respondent has been living with his father since he was four. His mother has re-married and has a new family, but she has kept in touch with the respondent.

28.  The defence submitted in mitigation on the day that the guilty plea was entered[3]：The respondent was young and of good nature, and this case was an isolated incident. He was under the influence of the Asperger’s syndrome at the time of the offence. The present case was serious but the damage caused to property was minor and no one was injured. The respondent was very remorseful and the chance of re-offending was low. The defence urged the court to keep all options open and call for the “relevant reports” (not specified) before passing sentence.

29.  At the two subsequent part-heard hearings[4], the defence emphasised: the respondent was assessed to be suitable for probation and showed good progress in rehabilitation during the adjourned period (see below).

D. Reports in respect of the respondent

D.1 Background of obtaining the initial four reports and their contents

30.  As mentioned above, the trial magistrate first called for a probation report, a community service report and a psychologist’s report in respect of the respondent. When these reports were ready and submitted to the court in the resumed hearing, the trial magistrate indicated that he wanted to have a report from the Young Offender Assessment Panel (YOAP). However, when he realized that the respondent had to be remanded in custody for the preparation of the said report, he changed his mind and called for a further probation officer’s report instead. He explained that it was for the probation officer to consider the psychologist’s report and make re-assessment[5].

31.  The main points in the first probation officer and community service order consolidated report are as follows: The respondent lacked motivation to study, and his academic performance and conduct were of average level only, but he was said to have no undesirable habit or triad affiliation. According to the respondent, it was only because he had a quarrel with his father on political views that in a fit of anger and impulsiveness, he followed an online friend and committed the offence. The probation officer was of the view that the respondent had a simple mind and acted impulsively without paying regard to the legal consequences, however he had reflected upon himself after arrest and reorganized his own life. Since the respondent had genuine remorse[6] and support from his parents, he was suitable for having probation for 15 months with additional conditions so as to raise his awareness of being law-abiding and strengthen his skills in emotional management and interpersonal relationship, whereas community service order was work-oriented and not suitable for him.

32.  Next are the main points in the psychologist’s report: At the age of seven, the respondent was diagnosed of having Asperger’s syndrome, oppositional defiant disorder (ODD)[7] and attention-deficit/hyperactivity disorder (ADHD)[8]; and he has also got post-traumatic stress disorder[9] after the present case. The respondent said that on the day in question, he did not want to stay home after having a row with his father and that was why he acceded to the request of a male with whom he had got acquainted through Telegram (a social media platform) and went with a female friend to the vicinity of the location of the offence to meet up with the male. At Yue Wan Estate, that male passed to him a petrol bomb made of a beer bottle and told him to throw the bomb to the police quarters, and it was not until then did he realize the real purpose of going there. Since that male was closely connected with the triad society, and it was only because of the fear of being beaten up hardly and getting the female friend into trouble, the respondent acted as the male instructed him to do. The respondent claimed that prior to that he had never participated in any activities related to the social unrest[10] happened during that period, and therefore he only knew he was at risk of being arrested, yet he had no idea of the related legal consequence. In conclusion, the respondent appeared to have committed the offence because of poor judgment resulted from peer influence; he knew what he did violated the law and was sorry for[11] causing damage to properties, whereas he did not express empathy[12] for the people living in the quarters. The above conditions may have association with (literal translation) the diagnoses of Asperger syndrome and ADHD[13]. The respondent only showed preliminary remorse[14], and the risk of reoffending would still exist[15] unless his weaknesses in empathy and judgment were rectified. Therefore, the regular supervision by a probation officer would be beneficial to the respondent.

33.  The further probation report stated that the respondent had had more reflection on himself and had been able to observe curfew in general, and the relationship with his father had been slightly improved. Therefore, probation order was recommended again.

34.  It is to be pointed out that the respondent’s allegation of committing the offence under coercion, as related by the psychologist, was withdrawn at the second resumed hearing. The defence changed to say that the [respondent] “had all along acted at the instruction of another person”, namely the male appeared in the CCTV footage[16].

D.2 Condition shown in the progress report

35.  The last report prepared by the probation officer was on the respondent’s progress, which was obtained at defence counsel’s suggestion. It was in fact filed on 11 January 2021, which was three days prior to the formal hearing of the present review. According to the report, the respondent had positive performance in respect of learning attitude, cooperation with supervision and compliance with instructions. However, he had carried out the act of “cutting wrist” because the sentence in the present case was subject to review, and such condition has been referred to the psychiatry department of Queen Mary Hospital, which has been providing treatment to the respondent, to follow up.

E. Sentencing in the original trial

36.  Right on the day that the respondent pleaded guilty to the charge, the trial magistrate indicated that the charge in the present case was very serious and a sentence of immediate imprisonment of not a short term should be imposed in a case where the offender was an adult, nevertheless, because of the respondent’s young age, frank admission and health problem since childhood and the separation of his parents, the court would first call for a probation officer’s report, a community service report and a psychologist’s report. The trial magistrate warned the respondent at that stage “all sentencing options are still open”, but he did not order any other report apart from the abovementioned three. The respondent was hence allowed to have his bail extended pending sentence[17].

37.  In the circumstances mentioned above, at the first resumed hearing, the case was adjourned again for obtaining a further probation officer’s report. Moreover, since there was no tariff of sentence for arson, the trial magistrate said that the guidelines set down by the UK Sentencing Council for the same offence might be useful and hoped that both parties could make submissions on the said guidelines. Also, the trial magistrate asked for assistance in respect of another set of guidelines laid down by the UK Sentencing Council for sentencing children and young people.

38.  As requested by the trial magistrate, the prosecution and the defence filed their written submissions respectively. At the second resumed hearing, ie the day of sentence, counsel who attended also made supplementary oral submissions by way of a series of questions and answers in court, consisting of transcripts of 29 pages[18] (by the prosecution) and 9 pages[19] (by the defence) respectively. In the end, the trial magistrate decided to accept the probation officer’s recommendations, ie putting the respondent under probation with four additional conditions, save that the duration of the probation order was increased by nearly 2.5 folds to 36 months.

39.  The reasons for sentence given by the trial magistrate verbally may be summarised as follows[20]：Arson is an extremely serious offence. Although no tariff of sentence has been laid down, generally a term of not less than four to five years’ imprisonment is imposed. The situations in the UK and Hong Kong are not the same. The relevant guidelines of the UK Sentencing Council cannot be directly applied here, but have referential value in defining the factors to be considered in sentencing, and the results do not contradict with those related to Hong Kong. According to the said guidelines, since the present case involved no intentional act but merely recklessness as to whether life was endangered, the culpability was of the second level; and the window which was hit was tightly closed and the damage caused was minor, the gravity was between the lowest two levels. Furthermore, the respondent did not commit the offence “for himself”, he merely followed others to commit the offence after a row with his father. Since the patrol bomb was made of a glass bottle which could not hold much accelerant, the aggravating effect on sentence for setting on fire with accelerant was limited. Admittedly, since the respondent went with another female to commit the offence in a residential area, causing danger to the whole building, heavy punishment should generally be imposed in the public interest. Nevertheless, pursuant to the legislation, due to the respondent’s age, imprisonment should not be imposed unless there is no appropriate alternative. According to precedents, in a limited number of serious cases, public interest can still be preserved whilst young people are allowed rehabilitation. According to the psychologist’s analysis, the respondent’s commission of the offence “could be largely attributable to” his Asperger’s syndrome and other conditions which influenced his judgment and empathetic ability. The reports also reveal that during the adjourned period, the respondent has been cooperative and receptive to help from the expert and has observed curfew, and it is believed that he is determined to turn over a new leaf. Viewing the above factors as a whole, together with his guilty plea and clear record, rehabilitation can be given more weight than the factors of punishment and deterrence in sentencing, but the duration of the probation order should be increased to reflect the seriousness of this case.

F. Grounds of review

40.  The applicant was represented by Ms Vinci Lam, Deputy Director of Public Prosecutions and Ms Hermina Ng, Senior Public Prosecutor. Her grounds of review are set out in the following.

F.1 Ground 1: Non-custodial sentence was wrong in principle and manifestly inadequate

41.  The offence under s 60(2) of the Crimes Ordinance is more serious than the one under s 60(1) of the same ordinance because the former requires that the offender intended to endanger the life of another or was reckless as to whether another person’s life would be endangered, whilst the latter only requires that the offender intended to destroy or damage property or was reckless as to whether any property would be destroyed or damaged. Unless the facts of the case or the personal circumstances of the accused are exceptional, immediate custodial sentence should normally be imposed for commission of the former offence.

42.  Irrespective of what the mens rea is, arson is a serious offence because the consequence is usually very serious, in particular in Hong Kong which is densely populated, and the court must be strict in sentencing to protect the public[21]. Even though the law requires the court to give special consideration to young offenders[22], imposing a non-custodial sentence on the respondent is in any event wrong in principle and manifestly inadequate.

43.  On the day when the trial magistrate called for the first round of reports, although he said explicitly that all sentencing options were still open, he did not request any report on training centre, detention centre, rehabilitation centre or the like, which in effect meant that custodial sentences were excluded. At the first resumed hearing, the trial magistrate changed his mind from requesting a YOAP report to merely a further probation report with no explanation. This demonstrated that he had pre-determined not to remand the respondent in custody, and in so doing deprived the court of sufficient information for considering the appropriate sentence[23].

F.2 Ground 2: The sentence was not sufficient to show the seriousness of this case and the respondent’s culpability

44.  In Law Chun Man[24], the sentencing factors to be considered for arson were sketched out, namely, motivation for committing the offence, actual damage caused, potential danger and whether it was an isolated incident, etc. Specifically, the overall seriousness in the present case and the personal culpability of the respondent can be seen in the following points:

(1) Exhibit 11 revealed that when the respondent was walking out of Yue Shun House, he already had a petrol bomb in his hand and had put on a mask and gloves, obviously suggesting premeditation.

(2) The two petrol bombs thrown out caused actual damage to property (window and wall).

(3) There were [people] inside the flat which had been hit and other flats on the same floor, and there were also vehicles passing by on the driveway, and all these could be reasonably expected. The potential risk of the respondent’s conduct was extremely high.

(4) Use of accelerant in arson is always a significant aggravating factor in sentence. Accelerant not only caused danger to the respondent himself but also endangered others including the rescuers.

(5) The respondent claimed that he committed the offence because of having quarrelled with his father, but he had also made it an excuse that he was under coercion. Even if it was caused by the former reason, what he did was merely for the purpose of venting his anger, suggesting his lack of empathy to the potential victims.

45.  Compared with the facts stated above, the trial magistrate’s comments that the windows of the unit were tightly closed and the damage was minor were indeed impeachable. That the window did not break after being hit and that the petrol bomb did not fly into the flat were nothing more than luck. The flame ensued not only charred the exterior wall, but might also injure anyone who happened to be at the location where it landed on the ground. The fire ball created by the other petrol bomb nearly landed on a vehicle passing by. Had the respondent’s petrol bomb broken through the window, gone into the flat and caused a fire, other flats in the building might have also become affected.

46.  The trial magistrate said that the small volume of the glass bottle could not hold much accelerant, and therefore the aggravating effect of the use of accelerant on the sentence was limited. This is putting the cart before the horse. If such a proposition were correct, then arson cases involving petrol bombs could all be regarded as minor. The truth is just the opposite, namely, a petrol bomb is by itself unstable in nature, and hence after it has been lit up and thrown out, where it will land and what will be the consequence are unpredictable, and the people who hurl it and others around will easily get injured. Apart from catching on fire, glass fragments will scatter around when the petrol bombs hit any hard object or land on the ground, causing further danger.

47.  The trial magistrate’s comment that the respondent did not commit the offence “for himself” is extremely partial. The respondent argued with his father and became angry, purportedly due to different political views, and the target of his attack was also not ordinary residence but police quarters. In view of the social situation at the time of the offence, this could not possibly be a coincidence. Such behavior just supports the court imposing a deterrent sentence on him. Since the respondent committed the offence willingly, his culpability cannot be mitigated by claiming the influence of others: Cheung Chi Him & Ors[25].

F.3 Ground 3: Sentence by probation order was wrong in principle and manifestly inadequate

48.  The Court of Appeal has reiterated the six sentencing factors in Wong Chi Fung[26].

49.  Since arson is a serious offence, the youth of the respondent inevitably becomes insignificant under the premise of public interest. The court must send an unequivocal message that young offenders can expect no mercy from the court when it comes to serious offences: Law Ka Kit & Ors[27]. The above long-established principle was applied again to a recent case of arson involving a young offender: SWS[28].

50.  The facts of the present case are serious, and there is no exceptionally special circumstance or strong ground of mitigation. Sentencing the respondent by way of a probation order was wrong in attaching excessive weight to rehabilitation. The sentencing factors overlooked include:

(1) Protecting the public: in order to prevent the harm caused by petrol bombs, more weight should be placed on the protection of the public than on the rehabilitation of the offenders; especially when there are increasing number of large scale protests and incidents of unrest[29].

(2) Meting out punishment: arson endangers the life and property of the public, the sentence should be commensurate with the seriousness of the offence;

(3) Open condemnation: the respondent was aged over 15 at the time of the offence, which was not of extreme youth[30]；a probation order cannot reflect the societal disapproval against his criminal acts; on the contrary, a probation order may even give a wrong message that despite the seriousness of the charge or the facts of the case, an offender, provided that he is young, will not be required to be remanded in custody at any stage or receive any custodial sentence at the end.

(4) Deterrence: the original intention of a probation order is education and rehabilitation so as to enable offenders to become responsible members of the community; in view of the seriousness of the present case, a probation order can deter neither the respondent nor others from committing similar offences.

51.  The trial magistrate has also overestimated the mitigating factors submitted on behalf of the respondent:

(1) Remorse: The trial magistrate relied on the probation officer’s report, which stated that the respondent was remorseful, without considering the psychologist’s opinion that the respondent’s remorse was only preliminary.

(2) Asperger’s syndrome and ADHD: The trial magistrate said that the respondent committed the offence due to these conditions because the psychologist stated that the respondent tended to make decisions on impulse, but according to the same report, the respondent was even more likely to be under peer influence and make wrong judgment. His premeditation was reflected by the fact that his residence and the quarters under attack were in different districts and that he was already holding the petrol bomb and wearing a mask and gloves before he got to the quarters. The psychologist pointed out that the respondent knew what he did breached the law; therefore he committed the offence just because he chose to forgo control of his own acts, and as such, according to precedents, he could not rely on his relevant conditions to ask for mitigation of sentence: Tang Ho Yin^[31].

(3) Age: Although the age of the respondent was a factor to be taken into account, and the courts are reluctant to sentence young offenders to long periods of imprisonment, the court would not impose non-custodial sentence for serious offences because of an offender’s young age unless there are exceptional circumstances: Poon Chi Tak^[32].

(4) Clear record: Even though it is said that no deterrent sentence should be passed on a person with a clear record, offences against public order was an exception: Nguyen Quang Thong & Ors[33]. In view of the target under attack, the present case obviously involved the element of public order.

52.  The above errors made on the principles could not be remedied by simply increasing the duration of the probation order to the statutory maximum length of three years.

F.4 The role of the prosecutor in sentencing

53.  The applicant invited the Court of Appeal to review the role of the prosecutor at the sentencing stage of a trial under the current framework as an associated issue (see Jim Chong Shing[34]).

G. The respondent’s reply

54.  Mr Lawrence Lau, who has only represented the respondent at the stage of review, responded to the applicant’s grounds as follows.

55.  Review of sentence is generally stricter than appeal against sentence in general, and the Court of Appeal would not easily allow an application for review. The Secretary for Justice must establish that the sentence in question is wrong in law or manifestly inadequate before the Court would intervene.

56.  Although the applicant strongly contends that a custodial sentence was required in the present case, she has not cited any similar precedent to show that the juveniles involved would be sentenced to immediate imprisonment[35]. On the contrary, judgments from the District Court showed that a probation order is not necessarily inappropriate even for the offence of arson[36]. The respondent’s circumstances are similar to the circumstances of the defendants in those cases, or even more exceptional, making it even a stronger ground that a probation order is not wrong in principle or manifestly inadequate in sentence.

57.  The applicant’s allegation that the trial magistrate had a pre-determined stance is not fair. It was only due to the respondent’s mental health condition that the trial magistrate called for a series of reports before passing sentence. Through the probation officer’s report, the trial magistrate could consider if the respondent should be sentenced to immediate imprisonment[37], and he had already explicitly stated, and even stressed, that all sentencing options were still open. The applicant is also unfair in criticizing the trial magistrate for wrongly suggesting that the aggravating effect of accelerant on the sentence was limited because relatively little accelerant could be held in the petrol bomb. There was just no contrary evidence to prove that the trial magistrate was wrong, and in fact his observation was not unreasonable.

58.  The applicant’s contentions that the trial magistrate has in various aspects underestimated the seriousness of the case and the respondent’s culpability were not made out. It can be seen from the trial magistrate’s oral verdict that he did fully grasp the main points in the case (such as that arson was a serious offence, the location under attack were quarters where people lived, that the respondent committed the offence jointly with others, and that the potential consequence of the relevant behavior was very serious). It was only because of the respondent’s age, medical condition, performance after the incident and that the actual damage resulted was not so serious that the trial magistrate considered a non-custodial sentence might be imposed on the respondent, which was within his authority. It was also by referring to the psychologist’s report that the trial magistrate said that Asperger’s syndrome and ADHD influenced judgment and empathetic ability, and the respondent committed the offence under the influence of the conditions.

59.  Imprisonment is not the definite punishment[38] for arson, and the present case is not the worst among cases of the same kind, and therefore having regard to the factors such as protection of the public, punishment, open condemnation and deterrence, a probation order for a term as long as three years is in fact sufficient to reflect the seriousness of the present case.

H. Discussion and analysis

H.1 Three questions related to procedures

60.  As mentioned above, the trial magistrate never called for any report which enabled him to consider any form of custodial sentence before sentencing at the end; he requested the prosecution and the defence to submit on the relevant guidelines of the UK Sentencing Council and discussed with them at great length.

61.  In respect of the above two moves, I have read the judgment of Poon CJHC, with which I completely agree. The only thing that may be added is that Hong Kong is a densely populated city. The overall environment here is very much different from that in the UK, and it follows that the consequence and risk of arson are also different. This can perhaps explain why the minimum sentence in the UK guidelines is a long-term community service order and why it is not an appropriate example for Hong Kong to follow. As to the factors for consideration mentioned by the trial magistrate, they are simply apparent points expressed in a systematic way which ought to be noted. These matters are not only readily found in local precedents, they should also be accurately identified by judicial officers of various levels without the need of any guideline.

62.  Finally, I agree with Poon CJHC’s observation on the prosecutor’s role at the stage of sentencing. If any assistance is required, the court should be able to raise it with the prosecution and defence on its own initiative.

H.2 Issues directly related to the present case

63.  This is not the only application for review of sentence in respect of arson involving young offenders made recently. In SWS[39], a case for sentence handed down on 22 September last year, the defendant was aged only 15½ years at the time of sentencing. He admitted having hurled a petrol bomb, and the Court of Appeal held that the sentence imposed was wrong in principle and manifestly inadequate[40]. As to what are the general sentences for arson, what are the principles of sentencing to be applied on juveniles (aged under 16), and how the above two should be integrated, Poon CJHC had had detailed discussions in sections G.1 to G.3 of the judgment[41]. To put it simply, cases of arson must be dealt with strictly, and an immediate imprisonment should normally be imposed. Tension will arise in sentencing because the primary consideration should be rehabilitation in dealing with juveniles, and the key is striking a balance. If the case is really serious, a custodial sentence is inevitable; nevertheless, various detention facilities other than prison have certain rehabilitative elements, and they constitute the best route for the rehabilitation of certain juvenile offenders. The above approach is also applicable to young offenders under 21[42].

H.3 Was the original sentence erroneous and why

64.  At the review hearing, upon questioning by this court, Mr Lau confirmed and accepted that SWS was applicable to the present case. He agreed that immediate imprisonment, which he had mentioned repeatedly in his argument for reply, was not the only alternative sentence in the case. He accepted that the District Court cases cited by him were judgments of first instance which had not gone through appeal, and they carried no weight and could not assist this court: SWS (para 54 of the judgment). What Mr Lau asserted was that the trial magistrate had paid regard to various requirements of punishment, deterrence and rehabilitation, his approach was similar to the one taken in SWS, and at the end, it was only because of the respondent’s exceptional circumstances that more weight was given to the consideration of rehabilitation. Nevertheless, Mr Lau also accepted that the trial magistrate’s conclusion based only on his own assessment of the present case; and in case he underestimated the seriousness of the present case and the culpability of the respondent in different aspects, his conclusion would be wrong.

65.  This court finds that the trial magistrate did lack proper assessment in the following aspects.

66.  The trial magistrate was aware of the participation of a female in the crime but just ignored this piece of fact without pointing out in any way that such fact would aggravate the case; nor did he deal with the male with whom the respondent had got acquainted from social media. That male’s outfit was the same as the other two, including having the balaclava pulled up and wearing a mask[43], and he had kept holding the backdoor of Yue Shun House to prevent it from closing until the female in question ran back (after throwing the petrol bomb), and then he together with her disappeared inside Yue Shun House[44]. This court also pointed out at the hearing that the perimeter wall of the quarters in question was not low[45], and there was also a two-lane driveway between the wall and the flat under attack, hence if one was to throw a petrol bomb across the wall and hit the target[46], one had to be very accurate in managing the power, angle and distance. It is hard to imagine that this could be done without any preparation or any knowledge of the environment at the scene. All the above circumstances indicate that the three persons in question were in joint enterprise, and there was premeditation to the extent that even the route of escape had been planned, save and except that the respondent was immediately intercepted after committing the offence. The respondent said that he had quarrelled with his father and committed the offence in a fit of anger. Such submission was not challenged, but the court had to assess it on the basis of the above objective facts at the least. The trial magistrate nevertheless completely ignored this issue.

67.  When the trial magistrate pointed out the place under attack was a residence, his focus was on the risk of causing death and injury to human life. He did not specifically point out the significance of the target being police quarters. However, as emphasised by the applicant, in view of the date of the offence, the respondent’s purport that he had quarrelled with his father because of political views, and as noted by this Court, some teachers’ mention of the respondent having become “radical” in the “social event” [47], the present case was undoubtedly related to the social confrontation which was at its peak at the material time, which was illustrated by the random and indiscriminate attack on police officers and their families. This was a serious attack and harm to public order and safety, and its gravity should not be underestimated by any court. As to the trial magistrate’s observations that the small volume of the petrol bomb could only hold little accelerant and hence the relevant aggravating effect on the sentence was limited, and that the damage caused by the petrol bomb was minor because it had been blocked by the tightly closed windows and not gone into the flat and so on, it was so obvious that he misplaced his focus, and we do not think any elaboration is required. This Court would only add this: the applicant has correctly pointed out that a petrol bomb itself is unstable in nature and can hardly land accurately, and glass fragments can scatter widely after its landing. Moreover, since a petrol bomb has a certain shooting range and it can be used to launch attack at its target from a certain distance, it is an extremely dangerous weapon which the court must treat seriously. The female involved in this case threw the bomb and nearly hit a vehicle which happened to pass by (which, in an unfortunate event, could have been a human being). Since it was a joint enterprise, the respondent is liable jointly.

68.  Finally, the trial magistrate remarked that the respondent’s commission of crime “could be largely attributable to” his various conditions, which is not completely correct. The original wording in the report is “may have association with” (literal translation)[48]. Moreover, as far as “association” is concerned, it means that the conditions can affect the patient’s judgment and empathetic ability so that he is easily subject to peer influence and cannot appreciate the victim’s situation[49]. In any event, as pointed out by the applicant, the respondent knew what he did violated the law and even expressed regret for having damaged property, but he was indifferent to the tenants of the quarters[50], and hence the risk of re-offending would still exist[51]. This has been clearly pointed out by the psychologist[52]. In this regard, the observation of Macrae VP in Tang Ho Yin is undoubtedly most appropriate[53]：The defendant knew exactly what he was doing. He could have controlled his condition but decided to forgo. Therefore his condition could not amount to a reason or an excuse for his involvement in such a serious offence.[54] Those who suffer from such conditions must equally be deterred from voluntarily involving themselves in mob violence.[55] Macrae VP concluded that the sentence should not be mitigated by the defendant’s condition.

69.  It can be seen from the above analysis that the trial magistrate was wrong in the assessment of both the overall seriousness of the present case and the respondent’s personal culpability. Therefore, even though he adopted the statutory maximum term for the probation order, it is still wrong in principle and manifestly inadequate. Although the respondent is young and his rehabilitation should not be neglected, it is necessary to place more weight on punishment and deterrence in his sentence so as to reflect the seriousness of the case.

H.4 Reports ordered by this court

70.  Apart from being found not suitable for detention in a detention centre because his psychological condition does not match the required standard, in the latest reports the respondent is assessed to be suitable for performing community service or detention in a rehabilitation centre or a training centre.

71.  According to the reports, the respondent claimed that he threw the petrol bomb on that male’s instructions because of the fear of being beaten up; he reiterated that he did not know the male’s intention before he reached Chai Wan. However, at the outset of his submissions, Mr Lau was anxious to clarify that the respondent did not mean to repeat the claim of having been under coercion and was just trying to explain the background against which he committed the offence.

72.  As we have pointed out in court, Mr Lau’s clarification was not accepted. The respondent was plainly capricious and vacillating, revealing his extremely superficial and limited remorse or self-reflection. It cast doubt on whether his positive performance after the commencement of the judicial proceedings was merely for the purpose of seeking a lenient sentence. In fact, according to the latest report, the respondent not only insisted that he had been coerced,[56] but when it was put to him that he had endangered the life of those living at the quarters, he just remained silent,[57] with no indication of regret but a persistent wish for non-custodial treatment.

73.  As such, we do not think that performing community service openly is an appropriate sentence, and the same applies to rehabilitation centre which focuses on helping young offenders re-integrate into the community. By comparison, training centre would be a better guarantee for the respondent’s self-reflection, rehabilitation and prevention of re-offending as it is longer in duration and more structured and provides psychological and other forms of counselling and different courses. In the light of the gravity of the present case and the respondent’s personal culpability, a training centre order is also the most appropriate and commensurate sentence among the three options. This Court has not ignored that a successful review of sentence generally allows a certain extent of reduction of sentence on the ground of mercy. However, since the type of sentence imposed in the present case is wrong and should be rectified, there is no room for reduction. Furthermore, rehabilitation is a significant element in the training centre, and how soon the respondent can be released depends on his performance inside the institution, and therefore there is nothing unfair to him.

I. Order

74.  The applicant’s application for review of sentence is allowed and the original probation order is set aside. The respondent is sentenced to detention in the training centre for the present case.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.