HKSAR v. TAI CHI SHING AND OTHERS

HCMA 579/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 579 OF 2015

(ON APPEAL FROM ESCC 3985 OF 2014)

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REASONS FOR JUDGMENT

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1. The 1^st Appellant (D2), 2^nd Appellant (D3) and 3^rd Appellant (D4) were jointly charged with D1 of the following two offences:

(1)  Criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap 200, the particulars of which are:

“CHENG Yeung, TAI Chi-shing, CHEUNG Chi-pong and SHEK Ka-fai, you are charged that on the 19th day of November, 2014, in Hong Kong, together with other persons unknown and without lawful excuse, damaged 7 glass panels, 9 glass doors, 1 pair of glass door (double door leaves), 1 granite slab finished heavy door, 1 pair of granite slab finished heavy door (double door leaves), 25 surface channels covers, 1m x 1m large granite slab wall cladding, 1 false ceiling access opening, 8 door handles and 1 pair of door handles on double leaves glass door of the Legislative Council Complex, 1 Legislative Council Road, Central, the property belonging to the Hong Kong Special Administrative Region Government, intending to damage such property or being reckless as to whether such property would be damaged.”

(2)  Taking part in an unlawful assembly, contrary to section 18 of the Public Order Ordinance, Cap 245, the particular of which are:

“CHENG Yeung, TAI Chi-shing, CHEUNG Chi-pong and SHEK Ka-fai, you are charged that on the 19th day of November, 2014, in Hong Kong, and other persons, took part in an unlawful assembly in that you, assembled together, conducted yourselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so assembled would commit a breach of the peace, or would by such conduct provoke other persons to commit a breach of the peace.”

2. They all pleaded guilty before Principal Magistrate Ms Bina Chainrai (PM) on 22 June 2015 and were each convicted after their admission to the facts.  The learned PM called for Probation Officer’s Report and Community Service Order (CSO) Suitability Report.

3. On 13 July, they were each sentenced to be placed on CSO to perform 150 hours of community service for each charge, to run concurrently.  Each was also ordered to pay costs of $500.

4. Upon hearing an application for Review of Sentence on 18 August 2015, the PM granted the application and reviewed the sentences imposed on D2, D3 and D4 on 25 August 2015.  

5. In respect of Charge 1, the PM adopted a starting point of 3 months’ imprisonment, discounted it by one-third to reflect the guilty plea and gave a further discount of half a month to reflect the hours of the CSO already performed, sentenced each defendant to 1½ months’ imprisonment.

6. For Charge 2, the PM adopted a starting point of 6 months’ imprisonment, discount it by one-third to reflect the guilty plea and gave a further discount of half a month to reflect the hours of the CSO already performed, sentenced each defendant to 3½ months’ imprisonment.

7. The PM ordered the sentence for both charges to run concurrently, making a total of 3½ months’ imprisonment for each defendant.

8. As for D1, in view of his age (19), after complying with the requirement under section 109A of the Criminal Procedure Ordinance, Cap 221 (CPO) and after considering various reports, the PM decided to reinstate the CSO and gave D1 credit for the hours he had already performed.

9. D2, D3 and D4 filed their Notice of appeal against sentence on the same day they were sentenced afresh by the PM (ie 25 August 2015).

10. D3, however, wrote to the prosecution on 19 February 2016, indicating that he would abandon his appeal.  As D3 was not legally represented, I confirmed with him his intention to abandon the appeal and his appeal was dismissed upon his abandonment.

11. As for D2 and D4, at the conclusion of the hearing, I dismissed their appeal against sentence.  I indicated at the time that I will give my reasons in due course.  This I now do.

Facts of the case

12. The amended “Brief Facts” admitted to by D2 to D4 was set out by the PM.

“9. The Amended ‘Brief Facts’ admitted by D2 to D4 in Court on 22 June, 2015 disclosed that at about 2335 hours on 18/11/2014, when PW1, Legislative Councillor Cheung Chiu-hung, arrived at the Legislative Complex, he saw about 10 persons wearing face masks moving some mills barriers to the entrance of the complex. At that time, 30-40 persons were having a heated argument with other persons over the issues of the organization of the ‘Occupy Central Movement’ and the Legislative Council’s intended legislation referred to as the ‘Internet Article 23’. PW1 tried to calm them down. At about 1 a.m. on 19/11/2014, PW1 was told that some glass panels at the complex were broken - he went to the entrance of the complex where there were about 100 persons surrounding the entrance. 5 to 7 unknown persons, some wearing goggles or face masks, were holding a mills barrier and using it to charge at a glass door of the complex, causing massive cracks on the glass. PW1 tried to stop them charging but was unsuccessful. He was pushed aside and was told by one of the group that they had to stop ‘Internet Article 23’ legislation. PW1 told them there was no debate on that topic the next day, but the group continued to charge for another 2 to 3 minutes, eventually causing an opening at the lower part of the glass door. A male in red clothing entered the complex through the opening and proceeded for 5 to 6 meters. Although there was a shout for others to enter, no one else did so. After a few [seconds], the male in red clothing retreated through the same opening. Some uniformed police officers arrived and the crowd was dispersed. PW1 left the scene after about 30 minutes. The incident was captured on video by the media and widely reported. PW1 confirmed that he was captured in 5 open source video clips of the incident. PW2 was a security officer of the complex – he had checked the glass curtain walls and doors and other facilities at about 11 p.m. on 18/11/2014 and found them intact. When he patrolled the complex at about 1 a.m. on 19/11/2014, he saw that a large crowd was surrounding and some were charging the complex. After the police had arrived and the situation contained, he inspected the complex at about 1.30 a.m. and found that the glass curtain walls and doors, the external granite walls, drainage covers and a nearby pond were damaged. The damage that was caused is set out in the particulars of charge 1 as well as in paragraph 6 of the ‘Amended Brief Facts’ admitted by D2 to D4. The repair cost for the damage was HK$597,000. Although the Prosecution had sought a compensation order for the damages, I declined to do so, firstly as the amount sought exceeded the Court’s jurisdiction, and also as I felt that this was best dealt with through the civil courts.

10.  D2 to D4 were subsequently arrested and cautioned.  Each admitted their roles when interviewed under caution.  D2 admitted under caution to damaging one glass door of the complex at about 1 a.m. on 19/11/2014.  He and unknown persons held a mills barrier together to damage the glass door and he put it down and left the scene after having damaged the glass door.  He had gone to the complex at about 2400 hours on 19/11/2014 to take part in the Occupy Central Movement and to fight for universal suffrage.  He also admitted that he was captured in 2 videos, (Exhibit V2 and V3) holding a mills barrier and charging the glass door.  D3 admitted under caution that he had charged the glass wall of the complex with a mills barrier at about 1 a.m. on 19/11/2014.  He saw other protestors charging at that time and he assisted because he objected to the ‘Internet Article 23’ legislation.  He confirmed that he had been captured on the 5 videos, Exhibits V1 to V5, and he was the male wearing a face mask and a jacket with a hood.  D4 admitted under caution that he attended the occupied area outside the complex at about 0020 hours on 19/11/2014 upon seeing some posts on the internet that there would be some activity.  He saw many protestors trying to open the glass doors and he went forward to assist them.  He saw some protestors throw stones towards the glass doors and he followed suit, and he had also kicked the door once.  He confirmed that he had been captured in Exhibit V2 and V3 while kicking the door and throwing stones at it.”

Reasons for the Review of Sentence

13. At the Review hearing, the PM was shown relevant parts of video footages and still photos capturing each of the four defendants. 

14. The PM noted the maximum penalty for Charge 1 was life imprisonment and a fine at level 2 and for Charge 2, 3 years’ imprisonment upon summary conviction.

15. The PM considered the submission of the prosecution that CSO was not an appropriate sentence in the circumstances of this case, and the cases cited in support: HKSAR v Wan Ka Kit (2006) 3 HKLRD 9 and Secretary for Justice v Li Cheuk Ming, CAAR 2 of 1998.

16. The PM referred to the comments by the court in HKSAR v Leung Kwok Hung (2014) 5 HKLRD 683 (para 76) – a case involving offences of criminal damage and offences contrary to section 17B(1) and 17B(2) of Cap 245 (Acting in a disorderly manner at a public gathering and behaving in a noisy or disorderly manner in a public place) – where it was said that the court would not condone any act of charging which involves actual violence; and that immediate custodial sentence was appropriate and inevitable for the Cap 245 offence.  

17. The PM was of the view that those comments were equally applicable in the present case.

18. The PM also referred to Secretary for Justice v Cheung Chun Chin and others [2002] 2 HKLRD 233, in which the Court of Appeal held that for the offence of riot (contrary to section 19 of Cap 245), the court must pay regard to the level of violence used, the scale of the riot or affray, and the number of people engaged in its execution.  Severe sentences were needed to provide an adequate element of deterrence as well as a penalty which properly reflected the gravity of such offences.

19. Having noted that Charge 2 was brought under section 18 and not section 19 of Cap 245, the PM was of the view that the same principle was applicable in the present case.

20. The PM said, (at para 26 of her Reasons for Sentence):

“26. From the facts admitted by each [defendant] and from the video clippings viewed by the Court, the level of violence, the number of people involved and the extensive damage caused as well as the intimidating nature of the gathering giving rise to a reasonable fear among bystanders that a breach of the peace may be committed, as well as the duration of the gathering, and the corporate nature of the offence are all matters to be considered by this court in determining sentence. The behaviour demonstrated by each defendant is such that a deterrent sentence must be considered by the Court. Although there is no tariff sentence for these offences, having considered all these factors, I was satisfied that a [CSO] was not appropriate in all the circumstances.”

21. The PM set aside the CSO and re-sentenced D2, D3 and D4 each to a term of imprisonment.

Grounds of appeal

22. Mr Douglas Kwok, counsel for D2 and D4, submitted two grounds of appeal.

Ground 1

23. The 1^st ground of appeal was that the PM erred in principle in holding that a CSO was not appropriate in all the circumstances of this case.  Mr Kwok submitted such a view was contradictory to the PM’s decision to reinstate the CSO on D1.

24. Mr Kwok first cited the well known case of HKSAR v Chow Chak Man [1999] 3 HKLRD 37 in which Nazareth VP referred to the English authority of R v Brown (1981) 3 Cr App R (S) 294 and listed out factors to be considered for the imposition of a CSO.  He then cited another well known case Wan Ka Kit (which was submitted by the prosecution before the PM on review), in which Stuart-Moore VP held that even if a number of factors set out in Chow Chak Man exist which in combination make an offender a suitable candidate for a CSO, a judge should not “slavishly make such an order”.  The gravity of the offence itself must be carefully considered before a CSO is contemplated.

25. Whilst conceding that the present case is serious and a CSO should not have been a viable sentencing option, Mr Kwok nevertheless submitted that there were two exceptions here which make the imposition of CSO on D2 and D4 appropriate.

26. The first exception, according to Mr Kwok, was the creation of expectation by the PM that a CSO would be made if the reports were favourable, and the second exception was the justifiable grievance felt by D2 and D4 when D1 was given a CSO, in other words, a disparity of sentence.

Creation of Expectation

27. Mr Kwok referred to what the PM had said on 22 June 2015 to all the defendants before any mitigation was advanced:

“The sentence of all defendants will be adjourned until 13 July, at 9.30 am, in Court 1, pending probation officer and community service order reports. But the defendants are warned that the court has not made up its mind on sentence; the court keeps all options of sentence open to itself, including an immediate custodial sentence. A lot will depend upon what the probation officer has to say. I suggest you cooperate fully with your probation officer.”

28. Mr Kwok submitted that the PM had impliedly promised that the defendants would be placed on a CSO if the reports are favourable.  By re-sentencing them to a term of imprisonment created a sense of injustice, citing in support the case of HKSAR v Lee Chun Kit (unrep, HCMA 1007/2003).  

Disparity of Sentence

29. Mr Kwok submitted that since D2 and D4 were sentenced by the same magistrate on the same occasion as D1, and their culpability was the same in committing the present offences, there is no justification for the disparity of sentence even though D1 was of a young age.  Since the PM sentenced D1 to CSO, she has obviously decided CSO was an appropriate sentence option for these offences.  If CSO was appropriate for D1, it is then hard to see why CSO was not appropriate for the other defendants.  Given the contradictory approach the PM took in sentencing D1 and the others, the public would consider such disparity of sentences to be “the product of something wrong with the administration of justice”.  Mr Kwok cited the English case of R v Kenneth John Fawcett and Others (1983) 5 Cr App R (S) 158 in support.

Ground 2

30. The second ground of appeal was that the imprisonment was manifestly excessive in all the circumstances as the PM (1) put excessive weight on (a) Public Order Offences being an exception to the sentencing practice that “a deterrent sentence should not be passed on a man with clear record”; and (b) applying the principles for “riot” to the present case of “unlawful assembly”, and (2) gave insufficient weight to the genuine remorse shown by the guilty plea and the supportive pre-sentencing report recommending CSO.

31. Mr Kwok relied rather heavily on the so-called sentencing practice that “a deterrent sentence should not be passed on a man of clear record”.  He submitted that the PM relied on the judgment of Silke VP in The Queen v Nguyen Quang Thong and Others [1992] 2 HKCLR 10 and placed considerable weight on her consideration that public order offences is an exception to the said sentencing practice.  Mr Kwok further submitted that Nguyen Quang Thong was a case of wounding involving the use of weapons causing serious injuries to the victim.  He submitted that the present case was of less severity as no personal injuries were involved.

32. Mr Kwok submitted that even if the Court were to take the view that a deterrent sentence was called for, CSO instead of a term of imprisonment would still serve the same purpose, citing HKSAR v Ogawa Shuichi (unrep, HCMA 174/1999) in support.

33. Mr Kwok submitted the PM erred in applying the sentencing principles for the offence of riot to the offence of unlawful assembly in this case.  He submitted there was no ruling in Cheung Chun Chin that such sentencing principles should apply to all public order offences.

34. Mr Kwok also submitted that the PM did not consider sufficiently the genuine remorse shown by D2 and D4 and the favourable CSO reports when she imposed the custodial sentence.

35. As to the terms of imprisonment themselves, Mr Kwok was unable to submit that either starting point (3 months and 6 months respectively) was manifestly excessive.  However, he submitted that since D2 and D4 were charged with criminal damage as well, the culpability of the offence of unlawful assembly was “subsumed” by that of the criminal damage offence.  In that way, the sentence for the unlawful assembly was manifestly excessive.

My consideration of the submissions

36. First of all, I do not accept that there is such a sentencing practice that a deterrent sentence should not be passed on a man of clear record.  Whether a deterrent sentence is called for, even for a first offender, must be case specific.  Whether the offence is a public order offence or any other offence, the court must consider the nature of the offence, the particular facts of the case, the culpability of the offender and so on, before deciding what the appropriate sentence should be.

37. Much emphasis had been placed by Mr Kwok on the so-called creation of expectation by the PM.  When the PM called for a suitability report on all defendants on 22 June 2015, she had clearly demonstrated that CSO was one of the sentencing options she would consider.  That was borne out by what she had said to the defendant in open court.  I do not accept that she had held out any promise, implied or otherwise, to any defendant, that she would necessarily act upon a favourable report and placed them on CSO.  Unlike the case of Lee Chun Kit relied upon by Mr Kwok, here, the PM never promised any defendants on 22 June 2015 that they would not be imprisoned.  On the contrary, she made it quite clear that she had not “made up her mind on sentence” and that she was keeping all options of sentence open.  All sentencing options necessarily include one of imprisonment.

38. In any event, the PM did sentence all defendants to CSO on 13 July 2015.  Even if the PM had impliedly promised to place the defendants on CSO if suitable reports were obtained (which I do not accept to be the case here), the PM could be said to have acted on her promise.  She was obviously of the view that CSO was an appropriate sentence to impose on all defendants at the time.

39. It was only upon the application for review, and more importantly, upon viewing the video footages and the still photos, and upon hearing submission, that she changed her mind and came to her view that CSO was not a viable sentencing option for such a serious offence.

40. Having viewed the relevant video footages myself and seen how each defendant committed these two offences with others, I am in entire agreement with the PM’s comments of the severity of this case.

41. Whilst the case of Cheung Chun Chin concerns the offence of riot, and the present case involves the offence of unlawful assembly, the same sentencing principles are applicable.  The defendants’ acts were certainly “riotous” in nature, if not a “riot” by legal definition.  Bearing in mind the violence used, in particular the way mills barriers and other objects were deployed to charge violently at the glass doors of the complex, causing extensive damage; the number of persons involved; the intimidating nature and duration of the assembly; the fact that such riotous behaviour took place despite the legislative councillor Mr Cheung telling those present that there would not be a debate on the so-called “Internet Article 23” the next day; and the corporate nature of the offence, CSO was not a viable sentencing option and an immediate custodial sentence was appropriate, even for a first offender.

42. In my view, a clear message must be sent to the public that whilst one has the constitutional right of freedom of expression and freedom to take part in an assembly, one must respect the law and order and cannot behave in such a destructive way, causing damage to properties (or causing injuries to others, which fortunately did not happen in the present case).  The courts will not condone such irresponsible and unlawful behaviour and a deterrence, immediate custodial sentence will be imposed, even for a first offender.

43. The “contradictory” approach point and “disparity of sentence” submitted by Mr Kwok had no merits, in my view.  The PM was clearly correct, after hearing the application for review, in coming to her conclusion that in all the circumstances of this case, CSO was not an appropriate sentencing option.  She therefore reviewed herself and re-sentenced each and every defendant.  However, due to the age of D1, she was obliged to call for various reports pursuant to s.109 of CPO.  It was after consideration of those reports that the PM decided that CSO should be reinstated.

44. In the very case cited by Mr Kwok: Wan Ka Kit, Stuart-Moore VP also dealt with the issue of disparity.  The learned judge (at para 16) referred to HKSAR v Cheng Ka Wing [2001] 2 HKLRD 260 at page 264:

“We accept that there may be an objectionable disparity of sentences where one of two, or more, defendants receives from the same Judge and at the same time, a more severe sentence than the other, or others and the difference is not justified by any relevant distinction in their culpability or personal circumstances. There is ample authority for that proposition. R v Quirke (1982) 4 Cr App R (S) 187, R v Sykes (1980) 2 Cr App R (S) 173 and R v Church (1985) 7 Cr App R (S) 370 are all examples of its application.

However the Judge was not dealing with adult offenders, the defendants before her were young offenders and it was incumbent upon her to ensure, so far as she could, that each received a sentence that was appropriate for his needs and would best give him a chance to reform.” [My emphasis]

45. In my view, this is not a case in which right-thinking members of the public, with full knowledge of all the relevant facts and circumstances of this case would consider that something had gone wrong with the administration of justice, particularly when they are aware of the fact that there was an application for review of sentence, in which the PM sentenced D2 (aged 24) and D4 (aged 25) to a term of imprisonment and placed D1 (aged 19) on CSO.

46. D2 and D4 were convicted of two offences arising out of the same incident: criminal damage and unlawful assembly.  The appropriate sentence for each offence must be assessed though the court must consider whether the sentences imposed on both offences should run concurrently or consecutively, and the PM ordered, absolutely correctly in my view, both sentences to run concurrently.

47. There is no basis on Mr Kwok’s submission that the culpability of the offence of unlawful assembly was somehow “subsumed” by that of the criminal damage offence so that a shorter sentence than 3½ months should be imposed on the unlawful assembly offence.  In the present case, in view of the extensive damage done to Legislative Council Complex, a starting point of 3 months for Criminal Damage (Charge 1) could be said to be on the light side and a more appropriate starting point is one of 6 months.

48. In any event, the starting point of 6 months is appropriate for the unlawful assembly offence.

49. One must not forget that a starting point refers to the sentence applicable for a first offender for a particular category or type of offence, prior to the consideration of any aggravating or mitigating factors.

50. D2 and D4 were given the full one-third discount upon their plea.  Any credit for remorse and cooperation of the police was already subsumed in the discount given for plea: Secretary for Justice v Lee Chun-ho, Jeef [2009] 6 HKC 471.

51. There is nothing in the pre-sentencing reports on either D2 or D4 to show that there were any special circumstances to further reduce the sentence.

52. The PM had, quite properly, given a further discount to D2 and D4 to reflect the number of hours they had already performed under the CSO.  There is no basis to disturb the sentences imposed and I would have imposed the same overall sentences on these two defendants.

53. For these reasons, D2 and D4’s appeal against sentence was also dismissed.