SECRETARY FOR JUSTICE v. CHEUNG CHUN-CHIN & OTHERS

CAAR 11/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 11 OF 2001

(ON APPEAL FROM DCCC 80 OF 2001)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. The six Respondents were charged with riot, contrary to section 19 of the Public Order Ordinance, Cap. 245. They were convicted either upon their own pleas or after trial. On 20 July 2001, they were each sentenced to a term of imprisonment by Deputy District Court Judge Mackintosh.

2. The riot related to events on 4 June 2000, which carried over into the early hours of 5 June, at the Hei Ling Chau Drug Addiction Treatment Centre (the Centre). Cheung Chun-chin (R1), aged twenty-three, who pleaded guilty and who had previously appeared before the courts on ten occasions, was sentenced to two years' imprisonment. Cheung Siu-wah (R2), aged twenty-six, who also pleaded guilty to the charge, similarly received a sentence of two years' imprisonment. In his case, he had four previous convictions. Wong Chan (R3) was twenty-four years old. He was convicted after trial and was sentenced to three years' imprisonment. He had four previous convictions. Wong Chi-fai (R4) was aged twenty-seven. He had nine previous convictions. He had pleaded guilty to the charge and was sentenced to two years' imprisonment. Choi Kar-leung (R5), aged forty-four, was convicted after trial and received a sentence of three years' imprisonment. His criminal record disclosed that he had come before the courts on four previous occasions. Wong Tin-wai (R6), aged twenty-five, pleaded guilty, unlike the other Respondents who were charged with rioting outside the Administration Block of the Centre, to a second charge of riot which occurred outside the hospital situated inside the Administration Block. R6 received a sentence of two years' imprisonment. He had previously acquired four convictions.

3. On 7 August 2001, the Secretary for Justice (the Applicant) applied for leave to apply to the Court of Appeal for a review of the Respondents' sentences, pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221. The application was granted on 9 August 2001 by the Chief Judge of the High Court.

The facts

4. The Respondents were inmates at the Centre on Hei Ling Chau Island. The Centre is a minimum security institution run by the Correctional Services Department (CSD). On 4 June 2000, 446 inmates were accommodated in thirty-five dormitories at the Centre. Amongst the inmates, thirteen Vietnamese were accommodated in Dormitory 11 together with six local inmates.

5. At about 6.45 p.m. on 4 June 2000, fighting erupted between Vietnamese and local inmates. This led to rioting outside Dormitory 11. The rioters damaged and set fire to buildings and facilities at the Centre. CSD and police officers were attacked by rioters using stones, improvised weapons and other hard objects.

6. Eventually, at 4.00 a.m. on 5 June 2000, after the use of tear gas, the police were able to quell the riot. In the course of the riot, nine police officers, twenty-nine CSD officers and seventy-one inmates were injured. Estimates indicate that at least $10 million will be required to make good the damage which was done.

Roles of R1, R2 and R4

7. R1, R2 and R4, all of whom pleaded guilty, were amongst about 100 local inmates who riotously assembled outside the Administration Block. Most of those rioters held improvised weapons including metal rods and water pipes. They set up barricades using liquid petroleum gas (LPG) cylinders. R1, R2 and R4 were amongst those who were assembled immediately behind the LPG cylinders. Weapons were brandished at the officers who were warned to stay away. Some of the rioters opened the valves of the cylinders to let out the gas. Although CSD personnel tried to persuade the rioters to stop what they were doing, the rioters only dispersed after police used tear gas.

Roles of R3 and R5

8. R3 armed himself with a stick at the start of the riot and was seen to act aggressively. The judge found as a fact that this was not done for the purposes of self-defence and that he was in no conceivable danger. He later armed himself with a metal bar which he refused to give up when asked to do so. The judge said that R3's own account given later amounted to an admission that he possessed the bar to "resist the authorities".

9. R5, who had earlier been injured in a fight with Vietnamese inmates, armed himself with a blade from a pair of shears, and told CSD personnel that he was going to deal with the Vietnamese. He was clearly agitated when brandishing the blade. He later threatened to use it to stab the police. He was also present at the barricade of LPG cylinders. The judge concluded that R5 "was clearly armed with a fearsome weapon", and that his "comments and actions showed that he was bent on revenge against the Vietnamese and that, when he could not achieve that, he vented his anger against the authorities."

10. It is apparent that there had been tension leading to violence between some of the Vietnamese inmates and R5. When R5 was injured, the violence then escalated.

Role of R6

11. At about midnight on the night of the riot, about ten inmates, including R6, riotously assembled outside the hospital inside the Administration Block. These rioters all held improvised weapons such as metal rods and water pipes. They stormed the gate at the entrance to the hospital and warned the staff inside the hospital that they would set it on fire. They threw various hard objects into the hospital. Although the hospital staff tried in vain to persuade the rioters to stop, the incident only ceased when the police dispersed the rioters.

Reasons for Sentence

12. In his Reasons for Sentence, the judge provided an overview of the case which he described as an "extremely serious incident". He said that:

".... the violence escalated very quickly and, for a time at least, there was a loss of control as hundreds of inmates milled about, most of them armed, and acting in an aggressive manner .... overall the participants were in the region of 300 of the inmates ..... The violence to property and people was wanton and extensive. I have seen something of the attack on dormitory 11 where the Vietnamese were housed. It was persistent and very violent, with rocks and sticks being thrown at the building and with burning material being poked inside in an ultimately successful attempt to set it ablaze .... offices and workshops were looted and torched .... and closer to the acts done by some of (the) defendants, a barricade of LPG cylinders was erected with the valves of the cylinders opened and the gas escaping. And this was done so as to reinforce (their) demands to be allowed to attack Vietnamese inmates as (they) wished ... Injury was caused to nine police officers, 29 CSD officers and 71 inmates ... I describe it overall because that is the nature of the riotous assembly which (the Respondents) joined .... This was a riot in a Correctional Services Institution and that adds an additional element of seriousness to the case .... an incident such as this must be dealt with severely so as to deter others from behaving likewise."

13. The judge told the Respondents that he was satisfied that each of them had taken "a full and active part in the riot". He was also satisfied that each of them had been armed with a weapon although he stated that there had been no evidence that any of the Respondents had used any "actual personal violence" during the riot. They had been part of the mob, directing their anger first at the Vietnamese and then at the CSD officers and police.

14. The judge observed that with the exception of R6, the Respondents were all involved in the setting up of a barricade of gas bottles, the valves of which were open and emitting gas, causing considerable danger to those who had to deal with them. The judge went on to say:

"You were all party to that, directly party to it, you ignored repeated requests to turn off the gas. The CSD officers acted with very considerable patience and forbearing and are to be commended for their courage in the face of leaking gas and on armed and aggressive mob."

15. The judge concluded that there was no basis to distinguish between the Respondents except in relation to the guilty pleas which provided "the real mitigation". In the case of R5 who had earlier been assaulted, the judge stated that this was not something which R5 could pray in aid because what had happened later was "well beyond any spontaneous reaction to such assault". As to R6, whilst his offence was committed at a different location, he had also been armed. In his case, he had terrorised the staff in the hospital.

16. The judge took a starting point for sentence of three years' imprisonment for each of the Respondents. He reduced this by one-third for those who had pleaded guilty.

Submissions of the Applicant

17. Mr Grenville Cross, SC, on behalf of the Applicant, submitted that the sentences imposed upon the Respondents were manifestly inadequate, and he described them as being lenient in the extreme. He contended that they were not such as to punish the Respondents adequately for their involvement in a serious, protracted and large-scale riot.

18. Mr Cross pointed out that on indictment, the offence of riot is punishable with a maximum penalty of ten years' imprisonment, and at summary level it is punishable with up to five years' imprisonment. He submitted that for such a serious case of riot, the starting point of three years' imprisonment did not properly reflect the conclusion reached by the judge that each Respondent had engaged in an extremely serious incident of disorder. It was also Mr Cross's contention that there was nothing about the ages of the Respondents, or their antecedents, which enabled them to lay claim to any leniency in the sentences they received.

Reply for the Respondents

19. Mr Raymond Chan, on behalf of the Respondents, emphasised that the roles played by the Respondents were restricted to being rioters only, albeit armed members of the mob. None of them had inflicted personal injury on anyone.

20. He also drew attention, in the course of his written submissions which he largely adopted, to a letter contained within the appeal papers indicating that the judge clearly had in mind the important distinction between these Respondents, and others yet to be tried perhaps, who were alleged to have inflicted injury with the weapons they were carrying.

21. Mr Chan also submitted that this was a riot which had erupted spontaneously, without having the element of premeditation which might otherwise have been properly regarded as an aggravating feature.

Guidance provided by Tse Ka-wah and Ors

22. In the course of their written submissions, both counsel made reference to the Applications for Review Nos. 10 and 13 of 1990 which were consolidated in Attorney General v Tse Ka-wah and Ors [1992] 2 HKCLR 16. The sentencing judge in these proceedings was also mindful of what was said in that case.

23. In Tse Ka-wah and Ors, it is CAAR 13/1990 which is relevant to these proceedings. There, eight defendants had each received a sentence of nine months' imprisonment for riot, contrary to section 19 of the Public Order Ordinance. The applicant, again as it happens represented by Mr Cross, sought guidance on the proper level of sentence following a conviction for riot, rather than an increase in sentence as such.

24. The court in Tse Ka-wah and Ors agreed to provide the guidance asked for and, in the course of the judgment, reviewed a number of other cases involving riot. The particular facts of that case related to a riot at Whitehead Detention Centre on the part of about twenty Vietnamese nationals who had laid siege to a hut, while armed with an assortment of weapons. Their intended victims had been forced to barricade themselves inside the hut. The police arrived and demanded that the attacking group should desist. The rioters refused to do so. The sentencing judge was quoted as having said that if it had not been for the timely arrival of the police, he had "little doubt but that serious injuries would have been inflicted."

25. In the light of these facts and in the light of the authorities cited, the court in Tse Ka-wah and Ors concluded that a sentence of five years' imprisonment was appropriate after trial. In arriving at this conclusion, the court (at page 19) had considered R v Pilgrim [1983] 5 Cr App R(S) 140 where Lord Lane CJ at 144 said:

"What the court has to pay regard to is the level of violence used, the scale of the riot or affray as described by the witnesses, the extent to which it is premeditated, or on the other hand spontaneously arises, and finally the number of people who are engaged in its execution."

26. Silke VP, giving the judgment in Tse Ka-wah and Ors, paraphrased (at page 19) what was said in R v Nguyen Quang Thong and Ors [1992] 2 HKCLR 10, where the charge was affray at a Vietnamese detention centre, by saying that in offences of this nature:

".... the necessity for the maintenance of control in these camps should be emphasised by the passing of sentences which are comparatively severe. The court acknowledged that incidents of this kind could spread like wild fire and that it was proper that sentences for the participants should be custodial and that they should seek to deter.

In arriving at the appropriate sentence, we thought that factors which should be borne in mind include the public interest, the interest of members of the Correctional Services Department, the element of deterrence and any mitigation which might be advanced in respect of a particular offender. The court was fully aware of the very difficult living and general conditions which prevail in these camps and the equally difficult task it is of those who have to maintain order."

27. Returning to the facts with which we are concerned in the matter presently before us, we consider that the picture presented was far more serious than the situation with which the court was dealing in Tse Ka-wah & Ors. It is to be noted that in both cases, none of the offenders had committed any specific act of violence which had led to a separate charge of assault of one form or another. However, the gravamen of riot is the commission of a breach of the peace while 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 and, when that became impossible, the violence was directed at CSD officers and, later, at police who came to quell the riot. If any of the Respondents could have been shown to have inflicted violence on anyone, no doubt further charges would have been included in the Charge Sheet.

28. It is our view that the three-year starting point adopted by the judge in this case was manifestly inadequate. We consider that, after 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.

Conclusion

29. Accordingly, we propose to allow this application. We shall quash the three-year sentences imposed on R3 and R5. We would have substituted a sentence in each case of six years' imprisonment but, having regard to the circumstances of this review, we shall reduce this to five and a half years' imprisonment which is the sentence each of them must now serve.

30. The two-year sentences imposed on the remaining Respondents, R1, R2, R4 and R6, will also be quashed. In their cases, we would have imposed four-year sentences, having given full effect to the one-third discount for their pleas of guilty. In their cases also, we propose to discount this by six months in the light of the review, and so each of them will now serve a sentence of three and a half years' imprisonment.