HKSAR v. LAI CHUN HUNG

DCCC 182/2020

[2020] HKDC 1190

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 182 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to Charges 1 and 2. He pleaded guilty to Attempted arson with intent, contrary to sections 60(2), 60(3), 63(1) and 159G of the Crimes Ordinance, Cap 200, Charge 1. On 18 November 2019 near the junction of Hak Po Street and Soy Street, Mong Kok, Kowloon, the defendant, without lawful excuse, attempted to destroy or damage by fire a police vehicle, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged, and being reckless as to whether the life of the passengers of the said police vehicle would be thereby endangered.

2.  He pleaded guilty to Charge 2, Possession of offensive weapons in a public place, contrary to section 33(1) and (2) of the Public Order Ordinance, Cap 245.  On the same date in a public place on Hak Po Street, Mong Kok, the defendant without lawful authority or reasonable excuse, had with him offensive weapons, namely one knife, one extendable batten and one bottle of pepper gel.

3.  He pleaded not guilty to Charge 3, Possession of things with intent to destroy or damage property, contrary to section 62(a) and 63(2) of the Crimes Ordinance.  The particulars were that on the same date the defendant had in his custody or under his control one gas torch attached to a gas canister, one can of gas canister, one multipurpose tool, one rope saw and one awl, intending without lawful excuse to use the said things or cause or permit another to use the said things to destroy or damage property belonging to some other person. This charge was put on the court file, not to be dealt with unless there was the required leave.

Facts of the Case

4.  From June 2019, Hong Kong experienced a number of protests that escalated into serious social unrest and public disorder.  In the early hours of the morning of 18 November 2019 a team of police officers in a police vehicle arrived in Mong Kok at around 5:43 am to disperse hundreds of protesters gathered in that area who had set up roadblocks and barricades.

5.  When the police vehicle arrived at the junction of Waterloo Road and Yim Po Fong Road they saw around 100 protesters gathered there. As they drove up, the protesters scattered in different directions.  The police vehicle drove on and 2 minutes later, it reached Hak Po Street near the junction of Soy Street.

6.  It was near this junction that the police saw the defendant throw a petrol bomb towards them from around 5 to 10 m away.  It landed near the right front of their vehicle but it did not explode, hence, the charge of attempted arson.  This was caught on CCTV from a nearby camera.  The CCTV captured a group of people in black at that junction who started to run when the police vehicle approached.  It then captured someone hurling a bright and what appears to be a burning object towards the police vehicle and running away.

7.  The defendant was wearing a black motorcycle helmet, a pink respirator, dark shirt, dark trousers and carrying a dark rucksack.  Immediately after he threw the petrol bomb he fled. The police officers jumping out of the police vehicle and chasing him.  They caught him some 60 to 70 m away.

8.  He was subdued and searched and the police found either in his rucksack or attached to his waist belt amongst other things, the weapons of Charge 2.

9.  The defendant admits that the bottle of pepper gel could discharge a liquid containing chemicals that would elicit a burning sensation in the soft muscosal tissues and qualified as noxious chemicals.

Additionally, he admits that the knife was 25 cm long with a 11 cm blade. The extendable batten was 32 cm long when extended.

10.  It is admitted that a government forensic scientist found traces of petrol on the defendant’s shirt, trousers, shoes and gloves.  Some burned debris was found on the ground where the bottle landed which also contained traces of petrol.

Mitigation

11.  The defendant is now 25 years old and has a clear record. His best mitigation is his plea of guilty at the earliest opportunity.

12.  He came to Hong Kong on a one-way permit from the Mainland with his mother when 14 years old. He seldom saw his father, his parents divorced and he and his mother are very close. His mother suffers from depression. They lived in a very small subdivided room and relied on his mother’s income working in fast food restaurants. He found it hard to adapt to life in Hong Kong where he faced racial abuse, prejudices and had no friends.

13.  He threw himself into voluntary work at school and outside of school. He spent much time visiting elderly people, organising voluntary activities and helping people who were socially disadvantaged. His teacher praised him for his enthusiasm and kindness to others.

14.  When he left school he studied and obtained a higher diploma in civil engineering 3 years ago. When he was arrested he was an electrical technician in and on construction sites earning $20,000 a month.

15.  In 2018 he was diagnosed by a psychiatrist to have attention deficit and hyperactivity disorder (ADHD) as well as cyclothymic disorder. He was prescribed medication but in early 2019 he stopped taking it because of side-effects. I have a psychiatric report from United Christian hospital dated August 2020 and after plea was taken and mitigation heard, I adjourned for an another psychiatric report.

16.  I don’t intend to repeat the contents or details of this most up to date report. The previous diagnosis is affirmed and the defendant confirmed he committed these offences. The defence position is that he was suffering from the symptoms of these disorders then but Mr Kwan for the defendant has specific instructions that the defendant knew what he was doing at the material time. Mr Kwan accepts that nothing in the psychiatrist report suggests that ADHD or cyclothymic played any part in the commission of these offences. The defendant knew what he was doing at the time and committed Charge 1 intentionally even though it was in the heat of the moment.

17.  I have many mitigating letters and have considered the contents of them all especially the long letter from the defendant himself. I have letters from his mother and largely absent father. His fiancée has written to give me some background into his mental and emotional difficulties whilst continuing to support and stand by him. Teachers have written to tell me of the prejudices he suffered as an immigrant student which did not stop him trying hard and finding opportunities to help others instead of wallowing in self-pity.

18.  Social workers, family friends, volunteers who visit prisoners on remand, legislative councilors who have come to know the defendant and even a fellow prisoner who is from Africa have written asking for leniency and mercy. The defendant has helped this fellow prisoner find ways to communicate with his family at home and finally receive long-awaited letters with recent photographs of his family from Africa. His actions demonstrate kindness. This prisoner calls the defendant an angel and feels blessed to call him a friend.

19.  In mitigation it has been submitted that he did not make the petrol bomb himself or carry one on him to the scene. It was submitted that he picked it up from the ground. He admits he threw a burning petrol bomb which meant he lit it himself if he did pick it up from the ground. He has told the psychiatrist he is a non-smoker and a non-drinker yet he had a lighter on his person he used to light it. Whether or not he did pick it up off the ground, what is important is he made a conscious decision to light a petrol bomb in order to throw it at a police vehicle.

20.  Mr Kwan has said all he can say on behalf of the defendant. He does reiterate that the plea to the 1^st charge is tendered on the basis of recklessness as to whether property would be damaged and whether life would be endangered as opposed to an intent to damage property or endanger life. This is accepted by the prosecution.

Reasons for sentence

21.  This 1^st charge is an attempted arson with intent because the defendant attempted to destroy or damage a police vehicle with a petrol bomb. He admits he wanted to stop the police advancing on other protesters. He was reckless as to whether such property would be destroyed or damaged and was reckless as to whether the life of the passengers of the said police vehicle would be thereby endangered.

22.  There should be no doubt in anyone’s mind that an offence of this nature, irrespective of motive or reason is to be taken and viewed with the utmost seriousness. It has been said that arson, because of the inherent danger in an uncontrollable fire, is always regarded as an offence of particular gravity. Arsonists have been described as exhibiting a reckless disregard for life and property.

23.  Arson can attract a life sentence. Such a maximum sentence highlights the seriousness with which deliberately starting fires must be viewed. There are no tariff guidelines for arson. Each case very much depends on its own facts and circumstances; these vary so much in cases of arson. Courts must impose a sentence which properly reflects the gravity of the particular case and its own individual facts.

24.  The police were in the area because of protesting and public disorder. The defendant’s act of throwing a petrol bomb or Molotov cocktail at the police vehicle is to be viewed as the defendant targeting police officers. He threw a petrol bomb at the police or in the direction of their vehicle to prevent them carrying out their duty. The fact it luckily did not explode does not make the offence any less serious. He acted with contempt and disdain for law and order.

25.  There must be a sentence that deters the defendant and others. The defendant’s act of throwing a petrol bomb and possession of multiple offensive weapons shows he intended to commit arson and was well prepared.

26.  There is planning and premeditation in his possession of a knife, extendable batten and pepper spray. He told the psychiatrist that he possessed the items in self defence in the social movement.

27.  His criminal act of throwing a petrol bomb should never be confused or associated with legitimate and peaceful protest. The seriousness lies in the fact such a weapon is notoriously unstable.

28.  Such planning, intention and recklessness is enough to warrant a sentence of significant length. Sentencing is a balancing act and in some cases the serious nature, circumstances and the prevalence of the offence in that period of time requires a custodial sentence that serves as a deterrent to others. Such a sentence will therefore take priority over the personal details and mitigation of the defendant.

29.  Mr Kwan has directed me to the sentencing guidelines of the United Kingdom for arson with intent to endanger life or reckless as to whether life is endangered. Where an offender was reckless as to whether life was endangered, culpability B and the level of harm assessed as category 1 meaning there was a high-risk of very serious physical and/or psychological harm then the guidelines suggest a range of between 4 to 10 years’ imprisonment.

30.  The same guidelines separately lists factors that would increase seriousness such as the use of an accelerant, significant degree of planning and premeditation, where multiple people could be endangered, where there may be a significant impact on the emergency services or resources amongst others. All of those factors are relevant here. The UK sentencing guidelines give an insight into how serious it is to throw a petrol bomb aimed at the police.

31.  I have been referred to recent sentences imposed in the District Court for arson or attempted arson with intent arising from the social unrest and protests of 2019. I have been referred to sentences arising from the 1967 riots and the early 1990 riots in Vietnamese detention centres.

32.  With respect, these cases reviewed are of little assistance to me in passing sentence. Some are not similar or comparable and I repeat, in any event each case very much depends on its own facts.

33.  I have taken into account his age, previous clear record, mitigation letters and mitigation put forward on his behalf. I have taken into account the medical reports and their contents.

34.  I have also taken into account as I have said above that there was some planning in the commission of these offences. He equipped himself with a variety of serious weapons to join a protest. His manner of dress was deliberately designed to avoid the risk of identification and arrest but ironically the motorcycle helmet may have hidden his face but made him easy to spot and follow.

35.  It is an aggravating factor that for this attempted arson offence the defendant intended to use a petrol bomb to achieve his purpose of stopping the police advancing. The potential harm and mayhem that could have been caused was considerable because once a petrol bomb is ignited and thrown, it is quite impossible to foresee the possible or likely consequences. It is also possible an already volatile situation could have been made much worse.

36.  Having considered all of the relevant factors, the facts of this case and everything put in mitigation I find a starting point of 5 years’ imprisonment appropriate for charge 1.

37.  I find a starting point of 2 years and 6 months’ imprisonment appropriate for charge 2. I find it appropriate after considering the number of weapons and their variety as well as the injuries they could cause.

38.  The defendant has pleaded guilty at the earliest opportunity therefore; he will receive a one-third reduction in his sentences. Other than this, there is nothing in mitigation I find would warrant any further reduction in sentences.

39.  For charge 1, 5 years reduced by one-third will mean 3 years and 4 months’ imprisonment. For charge 2, 2 years and 6 months reduced by one-third will mean 1 year and 8 months’ imprisonment.

40.  Taking into account the totality principle, I find it appropriate to order the sentences to be served concurrently. Therefore, the defendant is sentenced to a total of 3 years and 4 months’ imprisonment.