HKSAR v. LO PUI YIU

[English Translation - 英譯本]

HCMA 247/2020

[2021] HKCFI 145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 247 OF 2020

(ON APPEAL FROM FLCC 5000 OF 2019)

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JUDGMENT

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Introduction

1.  The Appellant was the second Defendant (D2) in the trial. She pleaded guilty to an offence of “Resisting a police officer in the due execution of his duty”[1] (the 6^th charge) and an offence of “Endangering the safety of others”[2] (the 7^th charge) before Principal Magistrate SO Man-lung, Don (“the Magistrate”).

2.  The particulars of the offence of the 6^th charge are that the Appellant, on 11 November 2019, at the footbridge near lamppost EC0659, Tai Po Road – Yuen Chau Tsai, Tai Po, New Territories resisted Y, a police officer, in the due execution of his duty.

3.  The particulars of the offence of the 7^th charge are that the Appellant and five other persons, on the same day and at the same place, endangered or caused to be endangered the safety of any person conveyed or being in or likely to be in or upon or near to the railway by an unlawful act, namely by throwing bamboo sticks upon such railway.

4.  The Appellant was sentenced to two months’ imprisonment for the 6^th charge and eight months for the 7^th charge. Both sentences were to run concurrently, making a total of eight months’ imprisonment. She now appeals against the sentence.

Admitted facts of the case

5.  According to the admitted facts of the case, there were calls on the internet for a general strike on 11 November 2019. Members of a Telegram group even organized an operation for supporters to throw objects on the railway tracks in Tai Po.

6.  At about 4:42 a.m. on the material day, police officer X saw a group of about ten persons with bamboo sticks held in their hands walking along Tai Po Road – Yuen Chau Tsai heading towards the location in question. At about 4:53 a.m., upon arrival at the scene, X discovered six persons in black (including the Appellant, the third Defendant (“D3”) and the fourth Defendant (“D4”)) standing on the left side of the flyover throwing bamboo sticks down onto the railway tracks with dozens of bamboo sticks placed on the ground beside them. Three other persons masked and dressed in black standing on the right side of the flyover had bamboo sticks held high up in their hands. The police took action immediately. The above-mentioned groups of six and three persons respectively fled towards the directions of Tolo Highway and Tai Po Road.

7.  Police officer Y was responsible for pursuing the Appellant. Catching hold of the Appellant’s backpack, Y disclosed his police identity and demanded her to stop. The Appellant turned around and pushed Y away with her right hand in an attempt to scratch him on the face, putting up a fierce struggle but was subsequently subdued by Y. The other three police officers pursued the rest of the five persons fleeing in the direction of Tolo Highway and subdued D3 and D4. At the time the Appellant was both masked and gloved whereas D3 and D4 were masked. Under caution, the Appellant remained silent.

8.  After investigation, the police discovered that a total of 59 bamboo sticks were disposed of on the railway tracks and another 48 bamboo sticks were found lying on the flyover. The staff of the MTR Operations Control Centre pointed out that the large number of bamboo sticks disposed of on the railway tracks could very likely cause a derailment.

The background of the Appellant

9.  At the material time, the Appellant was aged 21, a second-year university student with no criminal record.

10.  At the mitigation, her counsel[3] submitted on her behalf that the Appellant was under the influence of the social events. In order to support the “Three Suspensions”, she offered assistance by causing nuisance to the operation of the railway line in Tai Po where she lived. The bamboo sticks involved were taken in the morning on the material day from a construction site near an Off-course Betting Branch on Kwong Fuk Road, Tai Po and were then transported to the scene.

11.  Counsel for the Appellant submitted that (1) all involved in the commission of the offences were but only a disorderly crowd falling short of any sophistication and premeditation; (2) the case happened at sometime between 4 and 5 in the morning when the trains had not started to operate so the railway staff could easily become aware of their actions; and (3) the impacts brought about by the throwing of bamboo sticks onto the railway tracks were less than those of throwing metal objects. Instead of causing any damage, it only caused a nuisance. Counsel submitted that the Appellant only committed the 6^th charge for fear of being arrested. He emphasized that she did not cause any injury to Y.

12.  Counsel for the Appellant submitted that the sentences of both charges should run concurrently and proposed that the Magistrate consider sentencing the Appellant by way of a Community Service Order.

Reports

13.  On 6 August 2020, having heard the mitigation for the Appellant, the Magistrate adjourned the case for sentence and did not ask for a Suitability Report for Community Service Order as proposed by counsel, but called for “Background Report and Probation Officer’s Report” whilst the Appellant was remanded in custody. At the same time, the Magistrate also indicated to all the defendants[4] who had pleaded guilty that if they had any particulars about the mastermind or instigator, they could choose to offer assistance to the police.

14.  On 24 August 2020, the Magistrate heard the contents of the Background Report and the Probation Officer’s Report. The reports indicate that the Appellant was brought up in a single-parent family. She was deserted by his father at a tender age, but her academic performance is satisfactory and she has a harmonious relationship with her mother and stepfather. The Appellant told the probation officer that she had browsed the social media and learnt about the news. In the absence of any discussion with her family or friends, she committed the crime on the spur of the moment out of recklessness. The probation officer concluded that, although the Appellant was brought up from a difficult background, she still strived and thrived. The probation officer opined that the Appellant was remorseful and recommended that she be placed under a probation order for 12 months.

Reasons for Sentence of the Magistrate

15.  The Magistrate stated:

“5. The facts of the case are serious: In addition to the involvement of numerous people in the commission of the crime in unison, one of those was only a 12-year-old Form One student with short stature and a childish face (D3). It is well known that children are psychologically and cognitively immature and in need of protection by others belonging to all walks of life. Making any important decision waywardly all by themselves will end them up in serious consequences that they will only find themselves feeling regret as grown-ups. Yet, instead of dissuading the child out of it and hurrying him home, the defendant at the scene behaved hard-heartedly in that she allowed the child to participate in this joint enterprise with herself. The defendant’s lack of morality and humanity in this regard is an aggravating factor in the present case.

6. Besides, the fact that numerous people bringing along with them a large number of bamboo sticks and throwing them onto the railway tracks was obviously for the purpose of interfering with the railway system bringing a standstill to the railway transport network between Eastern New Territories and the urban area. The acts of the defendant indeed endangered the safety of the passengers on board a train under normal operation. Fortunately, the incident was brought to the attention of the police and the railway company and they stopped the defendant from taking further action and arranged for the scene to be cleared. Otherwise, the defendant would not have stopped on the material day.

7. Having considered all the factors, with respect to the two charges, I adopt a starting point of three and 12 months’ imprisonment respectively. I give the defendant a one-third discount for her guilty plea, thus the sentences are now imprisonment of two and eight months. I order both of them to run concurrently and so the defendant is sentenced to a total of eight months’ imprisonment.”

(Emphasis added)

The grounds of appeal

16.  The grounds of appeal of the Appellant are as follows:

1.  The respective starting points of three and 12 months’ imprisonment for the sentences of the two charges adopted by the Magistrate are manifestly excessive. He did not consider other sentencing options including a Community Service Order.

2.  Having called for the Probation Officer’s Report, the Magistrate refused to place the Appellant under a Probation Order but imposed a custodial sentence instead. The Magistrate erred in principle in so doing because:

(a)  The Magistrate did not properly consider the positive recommendation of the probation officer;

(b)  The fact that the Magistrate called for a Probation Officer’s Report caused the Appellant to have a reasonable expectation not to be given a custodial sentence; and

(c)  The Magistrate erred in refusing to place the Appellant under probation on the basis that she did not provide any particulars of the mastermind. Furthermore, he failed to understand the reasons behind the Appellant’s action.

Considerations

Ground of appeal (1): Are the sentences excessive?

17.  Since the sentences of the 6^th charge and the 7th charge are concurrent, with the former not much shorter than the latter, the grounds of appeal against sentence advanced by Mr. Yuen (and his junior, Ms. Sze) mainly focused on the sentence of the 7^th charge. Besides, since the 6^th charge is an “excepted offence”, suspended sentence is not a sentencing option.[5]

18.  For the 7^th charge, as submitted by both the Appellant and the Respondent, Hong Kong rarely had any cases of endangering the safety of railways. Since sections 32(1) to (3) of the Offences Against the Person Ordinance were formulated with reference to sections 32 to 34 of the Offences Against the Person Act 1861 (“OAPA 1861”), I take the view that relevant English cases definitely have referential value to the courts here in Hong Kong with regard to sentencing principles. However, since local customs and practices as well as social conditions of the two places are different and the facts of the case, background and the mitigating factors of every defendant also differ greatly from one another, I consider that the specific sentences of such English cases may not apply directly to cases in Hong Kong.

19.  “Endangering the safety of others”, contrary to section 32(3) of the Offences Against the Person Ordinance, is an offence triable either summarily or upon indictment, and punishable by imprisonment for up to two years. The Court of Appeal has not laid down any sentencing guidelines for offences under section 32.

20.  With reference to R v Pearce[6], I consider the gravamen of the offence of section 32(3) of the Offences Against Person Ordinance lies not in the defendant causing the accident but in his having created a source of danger.

“Indeed, it seems to this court that it cannot be entirely helpful in cases of this kind to try to analyse danger into two categories of potential and actual. …

… In the end, … It is not causing an accident which this section contemplates, but causing a source of danger, and in our judgment the sources of danger created by the defendant’s conduct were perfectly sufficient, if the jury thought it fit, to support the conviction in this case.”

21.  In R v Simon Valentine Hawkes[7], when contemplating more serious offences under section 33[8] of the OAPA 1861, the English Court of Appeal expounded on the relevant legislative intent and pointed out that sentences should embrace the element of “deterrence” as the first and foremost consideration:

“We say at once that the mischief against which section 33 of the 1861 Act was directed is as grave now as it was in 1861. One does not have to consider the position for long for it to be apparent that the act of throwing missiles at a travelling train with the intention of injuring people or endangering their safety is an act of the utmost danger and folly. It is an act that any right-thinking member of society would view with enormous disapproval.

…

In sentencing the appellant, the learned judge drew attention to the seriousness of behaviour such as this and to the need for everyone to understand that such behaviour will always receive substantial sentences and that such sentences will always embrace an element of deterrence.

…

  We would wish to emphasise our agreement with the learned judge about the seriousness of this matter, about the gravity of behaviour such as this and about the need for deterrence in cases like this one. … ”

22.  I agree with the Respondent’s submissions that although the culpability of offences under section 32(3) is less than that of section 32(2) of the OAPO, upon consideration of the legislative intent of the section, obviously it is not only to safeguard the smooth operation of the railway system, but also to ensure the safety of train drivers, railway staff, passengers and the like. Furthermore, with the environment being so overcrowded, if a derailment took place in Hong Kong, the nearby road users and members of the public together with the substantial amount of railway passengers would likely be involved. Thus, sentences having a certain deterring effect must be imposed under section 32(3) in order to prevent people from following suit.

23.  Obviously, the Court needs to take into consideration the facts of the case including the defendant’s culpability and the danger that he might cause: R v Caleeb Yakub-Hughes[9]. In addition, I am of the view that the Court also has to take into account, including (but not limited to), the following factors:

•  The number of participants and the scale of the incident;

•  Whether it was organized and premeditated;

•  The modus operandi of the defendant’s crime;

•  Whether the defendant did it out of mischief or other reason. According to Caleeb Yakub-Hughes, above, if the defendant caused trouble under alcohol intoxication, this would be an aggravating factor; and

•  What kind of actual injury or loss the incident had brought about and resulted in.

24.  In the present case, although the Appellant committed the offences under the influence of the social events, it was not a mitigating factor because she chose to adopt a non-peaceful and unlawful means, having no regard for the rights of others and imposing upon others to passively participate in their so-called “Three Suspensions”. This was an act of utmost selfishness and lawlessness that no civilised society can find acceptable: see Secretary for Justice v Wong Chi Fung[10]. I accept the submissions by the Respondent that the following facts in the present case were serious:

(1)  The Appellant was not an opportunist who committed the offences at random. She first responded to the call on the internet. Furthermore, she and the others carried the bamboo sticks for quite a long distance from Kwong Fuk Road, Tai Po to Tai Po Road – Yuen Chau Tsai.

(2)  It was a joint enterprise that the Appellant committed the offences with many people. Such action was of a certain scale involving a total of 107 bamboo sticks each of about 1.12m long. They had already thrown 59 bamboo sticks onto the railway tracks. I believe that another 48 bamboo sticks would have been thrown onto the tracks had the police not stopped them.

(3)  It was just about an hour before the first train was to start service on the material day. The Appellant and the others chose to commit the crime at about the time when the train service was to start. Besides, given the distance between the scene of the crime and the train station, their action was relatively inconspicuous. It was obvious that they intended to bring the railway network to a standstill. Furthermore, had the police not taken action well in time, the crime of the Appellant and others could have caused a substantial risk to the railway system and its passengers. In any event, the conduct of the Appellant and others had not only kept the railway staff and the police terribly worn out and weighed down with much running around, but it had also caused grave inconvenience to the general public with losses beyond estimate.

(4)  Even if the Appellant did not know the bamboo sticks were unlawfully obtained from the construction site nearby, her total disregard of such was an aggravating factor: see Secretary for Justice v Law Man Chung[11].

25.  As submitted by the Respondent, deterrent sentences should be imposed for the two charges to which the Appellant pleaded guilty. The main consideration and purpose of a Probation Order was for reformation while its punitive and deterrent elements were insignificant: Secretary for Justice v SWS[12].  Given the severity of the present case, and with regard to the need in terms of public interest to protect the general public, to openly condemn and to deter crimes in offences against the safety of the railway network, I take the view that even with the defendant’s clear record, good background and guilty plea, a custodial sentence is inevitable. The fact that counsel had urged the Magistrate to consider a Community Service Order, in my view, was unrealistic: see HKSAR v Wan Ka Kit[13]; and Secretary for Justice v Wong Chi Fung[14].

26.  On the other hand, the Magistrate took the view that since the Appellant did not dissuade a minor from participating in the incident, her “lack of morality and humanity in this regard is an aggravating factor in the present case”. Whether such a sentencing consideration by the Magistrate was correct is, in my judgment, open to discussion. I will come back to this issue later.

Ground of appeal (2) : Probation Officer’s Report

27.  Mr. Yuen submitted that by calling for a Probation Officer’s Report, the Magistrate was certainly of the view that Probation Order was one of the sentencing options. With respect, I do not share this view. It can be clearly seen from the court transcripts dated 6 August that when the Magistrate called for various reports[15] on the defendants who pleaded guilty, he told them if they would divulge to the police who the mastermind behind the scene was and were willing to testify against him/her in court, they would earn for themselves an additional ground for mitigation[16], which might eventually lead to a lighter sentence for them of being placed under probation. The words of the Magistrate are as follows:

“Who told them to go there?”

“Who was the instigator? Any idea of who that was?”

“Mr. Wong, can you – you know, as defendants, you have the right to choose to go tell the truth to the prosecution, certainly, for something they … you can provide them with particulars that you can provide, so as to arrest those people who deserve to be arrested.”

“Anyway, at this stage, you don’t—you don’t have any particulars. I mean you don’t have the particulars of the … instigator or organizer.”

Having ordered for various reports on all the defendants who had pleaded guilty to their offences, he continued:

“Certainly in the meantime, for the issue I’ve mentioned, should there be any development or progress, please raise it in the next hearing.

…

so that the Court and perhaps the police can follow up on that.”

28.  Obviously, what the Magistrate had in mind then is not that he would place the Appellant under probation if the probation officer so recommended. What he did was giving a strong indication to the defendants that leniency could be expected from the Court for any assistance they rendered to the police to trace the instigator. This was also confirmed[17] by the Magistrate’s verbal Reasons for Sentence dated 24 August:

“On the last hearing, apart from calling for Probation Officer’s Report, I also called for Background Report and reports from the Detention Centre and Rehabilitation Centre. In so doing it was evident that all sentencing options were still being considered by me. Therefore, if eventually I sentenced the defendants to prison, for the defendants, it shouldn’t be – the defendants shouldn’t have felt surprised. In any event, the obvious reason for calling for the Probation Officer’s Report was, if the defendants during the period of adjournment decided to exercise their rights to truthfully tell the police the mastermind of this case and were willing to testify against him/her in court in response to my indication, they would then have very strong grounds of mitigation and in the end I might pass on lenient sentences by putting them under probation. However, the defendants were unable to do so and so such sentencing option fell through.”

29.  If Mr. Yuen’s submission was that since the Court called for a certain report and if the report was in the defendant’s favour, the Court was bound by such recommendation, I would not accept that because, in sentencing, the Court at the same time had to pay heed to principles relating to punishment, deterrence, open condemnation and reformation. On the contrary, the main purpose of a probation order is reformation. The Court had the final say in sentencing. Recommendations from such reports were of referential value, but the Court was not bound by them. Deputy High Court Judge Peter Line (as he then was) pointed out in HKSAR v Lam Tsz Fung[18] :

“4. He was assessed to be suitable for a probation order but, of course, the probation officer’s primary focus is whether or not the character of the person he is assessing would be suitable for such a disposal. It is not the probation officer’s job but the court’s job to balance the gravity of the crime and judge what sentence must be passed in light of that … The magistrate was of the view that the case was too serious to do without that punitive element, and I am bound to say I agree and, accordingly, the appeal is dismissed.”

30.  Mr. Yuen cited HKSAR v Cheung King[19], R v Gilliam[20]; and R v Gibson[21] in his submissions suggesting that the Magistrate’s calling for a Probation Officer’s Report for the Appellant might have given her false hope of a non-custodial sentence, thus doing her injustice when the Magistrate finally sentenced her by way of imprisonment. In my judgment, a more desirable approach would be for the Magistrate to expressly tell all the defendants that he was open to all sentencing options. Yet even if he had not done so, no injustice had been done to the Appellant, which made her mistakenly think she might receive a non-custodial sentence with the following reasons:

(1)  Whether the defendant was misled into having an expectation of receiving a non-custodial sentence is a fact-sensitive issue: see HKSAR v Koey Shu Kwai, Morris quoting from Janet Renan[22].

(2)  It can be clearly seen from the exchanges dated the 6 August between the Magistrate and the counsel then representing the Appellant that on the one hand, the Magistrate called for Probation Officer’s Reports but at the same time, he gave a strong indication to all the defendants who had pleaded guilty to assist the police. The counsel then representing the Appellant should have so explained to her. Had she not assisted the police as indicated, she should not have reasonably expected to be sentenced by way of a probation order.

(3)  When the Magistrate ordered the Appellant to be remanded in custody pending reports, she should have been aware of the continuing possibility of a custodial sentence: See HKSAR v Wong William Yee Lai[23].

31.  Mr. Yuen submitted that the Magistrate had erred in principle in holding that a probation order was ruled out as a sentencing option by reason of the Appellant’s failure to provide the identity of “the mastermind behind the scene”. Even if the Appellant was “unable to do so”, there might be many underlying reasons. If that would have a critical bearing on the sentence to be imposed on her, the Magistrate should give the Appellant a chance to make submissions on that. The Magistrate only “reminded” the Appellant of her “right” to provide information to the prosecution, which sounded ambiguous to the Appellant.

32.  I disagree with the above submissions for the following reasons:

(1)  The Appellant put the cart before the horse in the submission. The Court had no obligation to direct the defendant in how she should prepare for her mitigation or grounds for mitigation. That was solely the duty of the defence counsel. The fact that the Magistrate gave a reminder was for the sake of the Appellant in the hope that she might have “strong grounds for mitigation” so as to enable the Court to have sufficient grounds to show leniency to her and the rest of the defendants.

(2)  The fact that the Appellant did not provide information to assist the police was not treated as an aggravating factor. The Magistrate only said that if the Appellant provided information or assistance to the police, that would be “a strong ground for mitigation”.

(3)  The reasons why the Appellant did not provide any information or assistance to the prosecution were merely factors with neutral value which would not have any effect on the sentence, so naturally the Magistrate did not need to go deeper into such reasons.

33.  If the Appellant had provided information or assistance to the prosecution so that the police was enabled to track down the instigator of the incident, this would certainly have amounted to an important ground for mitigation. I would have reservation whether this could have turned a custodial sentence into a probation order, but I do not think it necessary to draw any conclusion on this point.

“The participation of a minor” as an aggravating factor

34.  I disagree with the Respondent’s submissions that the Magistrate did not take into account the participation of minors in the case as an aggravating factor. As aforementioned, the Magistrate stated:

“Yet, instead of dissuading the child out of it and hurrying him home, the defendant at the scene behaved hard-heartedly in that she allowed the child to participate in this joint enterprise with herself. The defendant’s lack of morality and humanity in this regard is an aggravating factor in the present case.”

The above narration of the Magistrate pinpointed the culpability of the Appellant. Since he said “the defendant’s … is an aggravating factor”, the questions whether any minor had participated in it, whether the Appellant had such knowledge and whether she had “dissuaded the child out of it” would naturally have made a difference in the mind of the Magistrate in sentencing.

35.  In the present case, the Appellant responded to the appeal on the internet to participate in the unlawful acts. There was no evidence of her playing the role of the instigator or of soliciting and recruiting anyone to participate in the unlawful acts, nor was there any evidence showing her taking up a role of leadership in the course of the event or indicating any relationship between her and D3. Under the above circumstances, I am of the view that even if she knew D3 was a minor and did not dissuade him out of it, that could not be viewed as an aggravating factor. The Respondent has yet to find any authorities in support of the Magistrate’s view in this regard. In my judgment, the Magistrate erred in principle when he took the Appellant’s failure in dissuading D3 out of it as an aggravating factor.

Re-sentencing

36.  Based on the above, I need to re-sentence the Appellant in the present case. I have considered the entirety of the background and facts of the case together with the Appellant’s personal circumstances including her guilty plea and all the mitigating factors contained in the “Background and Probation Officer’s Report”. Based on the good background of the Appellant and her relatively young age, I take the view that it is appropriate to treat her case more leniently: see Secretary for Justice v SHY[24]. Nevertheless, due to the seriousness of the offences and the need for a deterrent sentence, I affirm the sentences for the two offences. The sentences are already quite lenient or could even be said to be on the low side for the Appellant. But for her personal circumstances, I originally had in mind to make an upward adjustment to the sentences.

37.  In respect of the overall sentence, imprisonment of eight months in total is upheld and accordingly, I order the sentences of the two offences to run concurrently.

Conclusion

38.  For the reasons given above, the Appellant’s appeal against sentence is dismissed.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.