HKSAR v. CHAN KAM CHI AND OTHERS

CACC 240/2002 & CACC 264/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 240 OF 2002

(ON APPEAL FROM HCCC NO. 113 OF 2001)

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CACC 240/2002

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving Reasons for Judgment of the Court):

1. On 8 April 2003, we dismissed the applications for leave to appeal against conviction and sentence with the exception of A1's application for leave to appeal against sentence. We granted him leave to appeal and treated the application as the appeal proper. We allowed his appeal and reduced his sentence on the charge of arson from 10 years to 9 1/2 years, to run concurrently with the sentence on the charge of rioting. We indicated we would give our reasons in writing and this we now do.

Background

2. In two separate trials, the applicants appeared before Burrell J with a jury on an identical indictment consisting of a charge of rioting and a charge of arson. In fact, it was the same incident that led to both trials.

3. In the first case (CACC 240 of 2002), Chan Kam-chi (A1) and Cheung Kang-hung (A4) pleaded guilty to the charge of rioting but not guilty to the charge of arson. Ma Wai-ming (A2) and Wong Ka-kit (A3) pleaded not guilty to both charges. In the 2nd case (CACC 264 of 2002), Law Wing-fai (A5), Lo Cheuk-wah (A6), Lam Chi-chuen (A7) and Hui Chun-lam (A8) pleaded not guilty to both charges.

4. A1 and A4 were convicted on the charge of arson. A2, A3, A5, A6, A7 and A8 were convicted of both charges. They received the following sentences:

5. Initially A1, A3, A4, A5, A6, A7 and A8 sought leave to appeal against both conviction and sentence whereas A2 only sought leave to appeal against sentence.

6. A3 abandoned his application relating to both conviction and sentence on 7 January 2003. A1, A4, A5 and A6 had also filed notices of abandonment in respect of their applications for leave to appeal against conviction. A8 abandoned his application for leave to appeal against conviction at the commencement of the hearing.

7. Hence as far as conviction was concerned, we were only dealing with the application of A7. On sentence, we were concerned with A1, A2, A4, A5, A6, A7 and A8.

8. Mr. Eric Kwok appeared on behalf of A1 and A4 whereas A2, A5, A6, A7 and A8 acted in person.

The Facts

9. Hei Ling Chau Drug Addiction Treatment Centre (the centre) is a minimum-security institution run by the Correctional Services Department (CSD). There were about 450 inmates occupying 35 dormitories. At the material time, the 13 Vietnamese inmates in the centre were all housed in dormitory 11. There were 6 local inmates sharing dormitory 11 with them.

10. On 5 and 6 June 2000, a riot and arson occurred at dormitory 11 of the centre. It started at dinnertime on 5 June 2000 at the St George's dining hall when a fight broke out between some Vietnamese and some local inmates. The fight got out of control when more and more local inmates fought the Vietnamese. The Vietnamese inmates were significantly outnumbered.

11. Sirens were sounded. The Vietnamese inmates were shepherded back to dormitory 11 and the gate was then locked. The disruption did not stop but got worse. Up to 200 inmates gathered outside dormitory 11. Some were onlookers and some actively participated in the riot. They threw poles, pipes and stones into dormitory 11, having broken the windows. Later, people started to throw lit objects through the windows and then at the gate to dormitory 11. Initially, the Vietnamese inmates were able to extinguish the lit objects, but later fires started to burn at the gate and inside dormitory 11. There were indications that gasoline and LP gas cylinders were used.

12. The local inmates were shouting, "Burn the Vietnamese to death!" while the Vietnamese inside responded by saying, "If you have the guts, come in."

13. Attempts by the CSD officers to calm down the riot were unsuccessful. Indeed they were forced to retreat to the administration block up the hill after they too were attacked.

14. Police assistance was sought. The rioters continued to attack CSD and police officers with stones, hard objects and other improvised weapons. The riot was not quelled until about 4 a.m. the next day with the use of tear gas.

15. In the course of the riot, 9 police officers, 29 CSD officers and 71 inmates were injured. Damage to the buildings and facilities at the centre was estimated to be at least $10 million.

Prosecution Case

16. The applicants were all local inmates at the centre. It was the prosecution case that they took an active part in the riot by attacking the Vietnamese inmates and setting fire to dormitory 11.

The Evidence Against A7

17. There was no dispute that riot and arson did take place at the centre. The only issue was whether A7 took part. The prosecution relied on identification evidence.

18. The only witness who identified A7 is Nguyen Tuan Anh (Nguyen). Nguyen was one of the 13 Vietnamese inmates. At the material time, he was locked in dormitory 11. He described how people threw objects into dormitory 11 and started the fire. He said gasoline was poured onto the fire and there was shouting of "Beat the Vietnamese to death! Burn them to death! Don't let them out."

19. Nguyen said of the 100 or so people participating in the riot, he could only identify those he remembered to "have done particular things, the ones who made a deep impression".

20. Nguyen said he saw A7 at the entrance to dormitory 11 for 1-2 hours and he could see clearly as the lights in the corridor were on and his view of A7 was not obstructed. Nguyen described how A7 threw stones and bricks into dormitory 11 while encouraging others to do the same.

21. Nguyen also described how A7 threw gasoline from a mug and some of the gasoline splattered onto people who caught fire.

22. Nguyen said at some stage, he had a conversation with A7 when A7 said, "Release the elderlies and all will be okay". There were occasions when Nguyen and A7 shook hands and exchanged cigarettes with one another.

23. Nguyen identified A7 in a photograph identification on 29 June 2000 and then at an identification parade on 5 January 2001.

24. In cross-examination, it transpired that Nguyen had said in his witness statements made shortly after the incident, that A7 was one of the leaders with a hammer and that A7 had challenged him to a fight. There was no mention of A7 throwing stones or burning objects or yelling encouragement nor was there mention of shaking hands. Such matters conflicted with his evidence in court.

25. Nguyen said the police might have made a mistake between A7 and A5. He also said he did not pay much attention to the accuracy of his statements.

26. He agreed that the reference in the statements to A7 as a "hammerer" was a mistake. He was however adamant that what he said about A7 in his evidence was correct.

Defence of A7

27. A7 said he had never met Nguyen or Tran at the centre. He never had any argument with the Vietnamese inmates. On the night in question, he stayed on in the main dining hall after dinner to watch television. When the siren went off at about 7 p.m. he left the dining hall and went to the podium at the back of dormitory 11, following others. He saw many people quarrelling and shouting.

28. A7 said he only stayed for about 10 minutes and then went down to the playground, as it was safe there. For the rest of the evening, he remained at the playground watching the events unfolding in dormitory 11. He denied the allegation made against him by Nguyen.

A7's Grounds of Appeal Against Conviction

29. In his written application, A7 pointed out that Nguyen's allegation against him was not supported by any other evidence. He said there were discrepancies between Nguyen's evidence and the contents of his statements. He said he was not caught lying in his own evidence and there should be doubt about the conviction against him.

30. The prosecution case against A7 rested on the evidence of Nguyen who said he was present and took part in the riot and arson.

31. Nguyen was adamant that A7 took part in the incident as he had described. He was able to describe in details of the acts of A7.

32. The judge, in what can be described as a comprehensive and fair summing up had carefully directed the jury on the questions of law. He had also set out all the relevant evidence for the consideration of the jury.

33. In particular, the jury was reminded that the evidence of Nguyen was unsupported by other evidence. The judge pointed out the discrepancies between his evidence and the contents of his witness statements.

34. The judge also set out the difficult circumstances in which the identification by Nguyen was made and the care they must take before acting on such identification evidence. No complaint about the summing up to the jury was made and indeed none could be made.

35. There might well be slight discrepancies in the evidence of Nguyen and the statements he gave to the police but such was to be expected when he was asked to describe a chaotic event involving a lot of people and a lot of movement among those people. The jury was well aware of such matters.

36. The jury had made finding of facts against A7 that he was involved in the riot and arson. The jury was entitled to make such findings on the evidence. It was a question of fact and there was no valid basis for us to interfere with such findings.

37. The conviction against A7 was neither unsafe nor unsatisfactory. His application for leave to appeal against conviction was refused.

The Other Applicants' Roles

38. It may be helpful to set out the roles of the other applicants at the material time before turning to the question of sentence.

39. A1 was seen holding different things in his hands at different times, including an iron pipe. He used a hammer at the gate and poured gasoline onto the fire, causing the fire to flare up to the ceiling. He also said words to the effect of: "drag them out to be beaten". He was said to be one of the most active participants in the whole night.

40. A2 was one of the two local inmates who tried to block the access to the corridor between dormitory 11 and 12 to enable other inmates to go into the corridor. He also threw something alight at the back of dormitory 11as well as stones into it. At some stage, A2 was holding a flowerpot which was grabbed from him. He also shouted loudly that a fire should be set and "burn them to death".

41. A4 also tried to block access by CSD officers to the corridor. He even said to the officer, "Don't go there or you will be done as well".

42. There was suggestion that A4 acted as a spokesman for the attacking group and deliberately turned on a "hissing" LPG cylinder wider and said, "Brothers, it is time for action".

43. A5 used a big hammer to hammer at the gate of dormitory 11 to break the lock and encouraged other to do the same. He also threw metal items and gasoline into dormitory 11. He was holding a stick to hit the window and then a torch. He was said to have taken more and more serious action to cause pressure to release the local inmates. At one stage, he was seen throwing gasoline through the first floor window of the dormitory.

44. A6 held a metal object by the entrance to dormitory 11 and was shouting. He then threw in bricks and burnable materials, including cloth, wood and gasoline from a mug, causing the fire to flare up. He also used foul language to scold the Vietnamese inmates.

45. A8 carried a torch and twice threw gasoline into dormitory 11 from a mug.

Leave to appeal Against Sentence

46. The applicants all complained that their sentences were too severe.

47. By way of additional evidence, A1 also wished to rely on a recent "commendatory letter" issued by the CSD as a further ground. The "commendatory letter" dated 5 February 2003 made reference to a small fire at the leather product (shoe making) workshop inside Stanley Prison on 17 December 2002 and the bravery of A1 who, on his own initiative, used an extinguisher to put out the fire.

48. A3 suggested it was the Vietnamese inmates who started the dispute by using homemade weapons to attack the local inmates. He suggested the local inmates were acting in self-defence.

49. A7 emphasized his physical disability and poor health, as well as his family difficulty.

50. Mr. Kwok, on behalf of A1 and A4 whilst agreeing with the starting point of 6 years for the rioting charge and the distinction drawn by the judge between those who threw gasoline and those who didn't, suggested that the starting point for the arson charge of 10 years was too high. He emphasized that the charge was "reckless arson" and not "arson with intent". He referred to English authorities to support his contention that a sentence of 9 or 10 years was only appropriate for "arson with intent" and not "reckless arson."

51. Mr. Kwok referred to The Queen v Shum Hon-kai & another [1998] HKC 279, in which a 10 year starting point for 'reckless arson" committed in the middle of the night in a multi-storey domestic building, was considered to be excessive and reduced to 8 years. There are other cases which suggest that the proper starting point may well be under 8 years.

52. Sentences must reflect the particular circumstances of a society and to that extent English authorities are not too helpful. We must not ignore the reality that in an over-crowded metropolitan city such as Hong Kong, the offence of arson is particularly hideous, as the consequences could be catastrophic.

53. The present case was one of its own kind. It was also unprecedented in Hong Kong. It was not a case of family dispute, or argument between lovers, resulting in arson on the spur of the moment. It was not even a case of a revenge attack by setting fire to a domestic premises.

54. It was riot and arson in a penal institution, involving over 100 people and to that extent, it might well be more serious than reckless arson in a multi-storey domestic building in the middle of the night.

55. The applicants together with other local inmates with scores to settle set out to harm the Vietnamese inmates in a concerted manner. The motive was not clear and perhaps unimportant, but their intention was obvious.

56. A large number of inmates armed with poles, sticks and other weapons took part. They threw stones and whatever they could lay their hands on into dormitory 11. They started fire and fuelled it with combustible materials, including LPG cylinders and even gasoline. Attempts by CSD officers to control the situation were ignored. Indeed, besides the obvious threats to the Vietnamese inmates in dormitory 11, the CSD officers themselves were threatened and under attack. The inmates continued to resist despite the reinforcement of police officers. The incident lasted a very long period of time and was quelled only with the use of tear gas.

57. Fortunately and perhaps miraculously, no one was killed, but a large number of inmates, CSD officers as well as police officers were injured. Damage to the centre was estimated to be over $10 million.

58. The judge said whatever distinction was to be made of the different roles of the applicants in the incident had to be minor as "it is reasonable to describe the activities generally as collective mob violence for which each must bear equal or almost equal responsibility". The only distinction he drew was between those who threw gasoline and those who did not, as it was a highly dangerous and reckless act.

59. The judge referred to Secretary for Justice v Cheung Chun-chin & others CAAR 11 of 2001, a case which arose out of the same incident as the present. The defendants in that case were only convicted of the charge of riot.

60. In suggesting a starting point of 6 years imprisonment, the Court of Appeal made the following comment:

"The gravamen of riot is the commission of the breach of the peace whilst taking part in an unlawful assembly. The whole purpose behind the riot in this case seems to have been to inflict violence on the Vietnamese inmates."

"We consider that after a trial a proper sentence on these facts would have been six years' imprisonment, bearing in mind the scale of the riot and the consequences which flowed from it. Severe sentences are needed for offences like this in order to provide an adequate element of deterrence as well as a penalty which properly reflects the gravity of such crimes. The potential for serious injury and large scale damage arising from mob violence of this kind is enormous. This is amply demonstrated from the facts of this case."

61. The judge followed the decision in Cheung Chun-chin(supra) and adopted a starting point of 6 years for the riot charge. For the arson charge, the judge said, "Committing reckless arson in the course of a serious riot is a factor which substantially aggravates the overall criminality. It was the starting of the fires and the fuelling of those fires which caused this riot to become so dangerous, so frightening, and so serious. The court must impose long sentences".

62. The judge adopted the starting point of 10 or 9 years depending on whether a particular applicant threw gasoline onto the fire in the course of the riot.

63. We shared the sentiment of the judge and that of the Court of Appeal in Cheung Chun-chin (supra). We agreed that the violent acts perpetrated by the applicants must be deterred. The starting point of 6 years for the riot charge should be followed.

64. Arson is of course a much more serious offence and we must consider the total sentence received by each applicant to see if it was excessive.

65. What we were concerned about was arson in the course of a large-scale riot in a penal institution. The applicants attacked a minority group of inmates. It was a sustained attack lasting for hours. The victims had no means of escape as they were all locked up in dormitory 11. They must have been frightened for a considerable period of time. Not only was there significant damage to property, a large number of people were injured.

66. We are not persuaded that the starting point of 10 years was in any way excessive or wrong in principle.

67. Despite the fact that A2 and A4 did not throw any gasoline in the course of the incident, they in fact assumed leading roles in the incident. A2 suggested setting fire and "burn them to death". A4 acted as the spokesman and encouraged others to take drastic steps. The distinction between using one type of combustible material or another, cannot in ordinary circumstances justify a discount on sentence, particularly as it is often pure chance that causes one participant to use a more dangerous material than another.The one-year discount given by the judge was in our view generous and perhaps not entirely justified.

68. A1 and A4 had pleaded guilty, albeit just to the riot charge. They should, in our view be given some credit. The generous discount of one year received by A4 was adequate to reflect such guilty plea. We would however reduce the total sentence on A1 by 6 months to reflect his guilty plea to the riot charge. As the sentences are concurrent sentences, we would reduce the total sentence from 10 years to 9 1/2 years.

69. A1's "bravery" in putting out a fire at the Stanley Prison only took place many months after sentence. In our view, it was not a matter of significance to his sentence. We declined to give him any further discount for such "bravery".

70. The Commissioner of CSD would no doubt commend or further award A1 in the usual way if he had not already done so.

Conclusion

71. A7's application for leave to appeal against conviction was dismissed. The applications for leave to appeal against sentence were also dismissed except for that of A1.

72. We granted leave to A1 to appeal against sentence and treated his application as the appeal proper. His appeal against sentence was allowed to the extent indicated.