SECRETARY FOR JUSTICE v. CHAN YIP WAN

CAAR 5/2021

[2021] HKCA 794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 5 OF 2021

(ON REVIEW FROM ESCC NO 30 OF 2020)

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R E A S O N S   F O R   J U D G M E N T

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Hon Barnes J (giving the Reasons for Judgment of the Court):

A.      Introduction

1.  On 4 August 2020, the respondent pleaded guilty to one count of criminal damage [1] and one count of possession of things with intent to damage property[2] before Principal Magistrate Bina Chainrai (“the PM”) in the Eastern Magistrates’ Courts.  After hearing mitigation, the PM called for Probation Officer’s Report (PO Report), Community Service Order Report (CSO Report), and a Detention Centre/Rehabilitation Centre/Training Centre Suitability Report (DC/RC/TC Report).  The sentence hearing was adjourned to 25 August 2020.

2.  At the adjourned hearing, the PM placed the respondent on Probation for 18 months with a special condition (“the Sentence”) for both offences.

3.  On 7 September 2020, the prosecution indicated by letter their intention to apply to review the Sentence and a formal notice of an application to review pursuant to section 104 of the Magistrates Ordinance (s.104 Review) was filed.

4.  The s.104 Review was heard on 25 January 2021, some 5 months after the Sentence was imposed (we will say something about the delay in hearing the review later).  The PM confirmed the Sentence after hearing submissions.

5.  On 3 February 2021, the Secretary for Justice applied for leave to review the Sentence pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221.  It was contended that the Sentence was wrong in principle and/or manifestly inadequate.  Leave to review the Sentence was granted by Poon CJHC on 9 March 2021.

6.  After hearing submissions on 26 May 2021, we allowed the application to review the sentence and set aside the Probation Order. We adjourned the case to 10 June 2021 pending a DC/RC/TC Report.

7.  On 10 June 2021, we sentenced the respondent to be detained in a Detention Centre.

8.  We indicated that reasons for our judgment will be handed down later.  This we now do.

B.      Facts admitted by the respondent

9.  On 1 January 2020, an authorized public procession on Hong Kong Island was organised by the Civil Human Rights.  At about 4:30 p.m., radical vandalism was reported at a bank on Hennessy Road, Wan Chai during the procession.  The organiser called off the procession.  The public procession descended into chaos, unruly protesters spilled over into various locations and large-scaled vandalism broke out, including smashing gates of shops, setting fires and setting up barricades on carriageways, at multiple spots on Hong Kong Island.

10.  Police officers in uniform were deployed to conduct clearance and crowd management in Wan Chai area.  A Special Crowd Management Vehicle (“the SCMV”) was deployed to the scene.  At around 6:45 p.m., police officers commenced the clearance operation along Hennessy Road in Wan Chai in the direction of Causeway Bay, following the advancement of the SCMV along Hennessy Road.  At the time, miscellaneous objects on the carriageway along Hennessy Road were set on fire.  A petrol bomb was thrown from the crowd, causing fire on the carriageway.

11.  At around 6:55 p.m., when the SCMV was near the junction of Hennessy Road and Percival Street, the respondent suddenly dashed out from a crowd of reporters on the pavement towards the rear of the SCMV and hurled a brick towards the rear of the SCMV from about 3 metres away.  

12.  An online video and the camera installed on the SCMV captured the entire process of the respondent’s act.  They were produced as exhibits but for reasons unknown were not played before the PM.

13.  A 8 cm long dent mark was left as a result of the respondent’s throwing the brick at the SCMV.  The repair cost of the SCMV was HK$9,900.  This formed the basis of the criminal damage charge.

14.  At the time, the respondent was wearing a respirator with canisters in grey colour, a pair of black and grey gloves, a black scarf, a black jacket, a pair of black pants, a pair of blue and white swimming goggles, a pair of white sneakers and carrying a red backpack.

15.  The respondent was intercepted by the police and he put up a struggle.  He was eventually subdued and a hammer was found on the ground, next to where he was subdued.  Upon enquiry, the respondent admitted that the hammer belonged to him.

16.  The following items were found inside the respondent’s backpack: (a) one surgical mask, (b) one cutter, (c) one plastic bottle containing about 210 ml of organic mixtures containing mainly cyclohexane and methyl cyclohexane (both of which were highly flammable organic solvents) and 19 grammes of a white solid containing sucrose, (d) one lighter, (e) one extendable hiking stick, (f) one pair of goggles and (g) one torch.

17.  The respondent admitted that at the material time, he had in his possession or custody or under his control the cutter, the plastic bottle containing the highly flammable organic solvents, the lighter, and the hammer with intent to destroy or damage property belonging to some other persons.

18.  The brick hurled by the respondent at the SCMV measured about 9 cm x 10 cm [3], the hammer was 20 cm long [4], and the cutter was 22 cm long when fully extended [5].

C.      Mitigation

19.  The respondent, who was of previous good character, was 17 years old at the time of the offence and 18 years old at the time of sentencing.  He lived with his parents and elder sister.  He was a Form 6 student, had sat the Hong Kong Diploma of Secondary Education Examination and was admitted to a two-year programme for an associate degree in business administration in the HKU SPACE which commenced in September 2020.  He claimed he committed the offences out of impulse.  He expressed his remorse and was willing to take up responsibility.  It was submitted that the officer on board the SCMV did not apprehend any danger or concern for his safety when the respondent threw the brick at the SCMV.  The damage to the SCMV was cosmetic in nature.  The respondent brought the hammer and cutter from his home but picked up the brick spontaneously.  It was also submitted that the respondent was given the bottle of flammable liquid at the scene.  As the flammable liquid was contained in a plastic bottle, it could not be used as a petrol bomb.  The respondent’s possession of the bottle of flammable liquid was “opportunistic” in nature in the sense that he took it without further thought on whether he was going to use it [6].

C1.    Pre-sentence reports

20.  After hearing mitigation, the PM called for PO Report, CSO Report, and a DC/RC/TC Report.  The respondent was remanded in custody for 14 days [7].

C2.    Compensation Order

21.  The PM ordered the respondent to pay HK$9,900 as compensation for the damage caused to the SCMV [8].

C3.    PO Report

22.  The respondent told the Probation Officer who prepared the report that he had gone to Wan Chai with his friends, intending to take part in the authorized procession.  When the organiser called off the procession, the respondent felt frustrated and did not want to leave.  When the police started the crowd clearance operation, feeling that “he needed to protect other protestors behind him”, out of impulsiveness and under the influence of the environment, he picked up a brick and hurled it at the SCMV.  The respondent admitted that he brought the items inside his backpack in case of need but maintained that he was given the bottle of flammable liquid by other protestors at the scene and took it without a second thought.  The respondent had different views on the social unrest from his parents’ but did not have heated arguments with the latter and sometimes merely kept silent.  The Probation Officer considered that a community service order was less suitable to the respondent and a 18-month probation with a special condition [9] was recommended [10].

C4.    DC/RC/TC Report

23.  In the DC/RC/TC Report, it was disclosed that the respondent claimed to have gone to Wan Chai alone on the date of offence.  The respondent was said to have enjoyed a harmonious relationship with his family although he sometimes had heated debate with his father about recent political topics.  The respondent was reported to be a keen athlete and was the overall champion of the school sports meet and a member of the school football team.  The report concluded that the respondent was mentally and physically fit for all three centres but Detention Centre was considered to be more suitable to the respondent [11].

D.      Sentence

24.  On 25 August 2020, without giving any reasons, the PM simply indicated to counsel representing the respondent that she was minded to adopt the recommendation of Probation for 18 months with a special condition and she did impose the said PO order for both offences, ordering a progress report to be submitted in 3 months’ time [12].

E.      The s.104 Review

25.  As said, on 7 September 2020, the prosecution applied for a review of the Sentence.  The s.104 Review however only took place on 25 January 2021, some 5 months after.

E1.    Delay in the Review Hearing

26.  From the transcript and information gathered from both parties during the hearing on 26 May 2021, the PM ordered a hearing date to be fixed in consultation with counsel’s diary.  The prosecution indicated by letter on 24 November 2020 that the earliest date for counsel was on 21 December 2020.  Solicitors for the respondent indicated that the earliest available date for the counsel was on 20 January 2021.  The hearing was fixed on 25 January 2021.

27.  Given its nature, an application to review a sentence under s.104 should be timely disposed of. It is not generally acceptable for such a hearing to be fixed months (in this case 5 months) after the original sentence.  It is the duty of parties concern to ensure the review is heard as soon as practicable.  It is not desirable for such a hearing to be dependent on counsel’s availability.  Even if the court is minded to accommodate counsel, it is still the duty of the court to properly manage the court diary, to ensure that the review hearing is heard as expeditiously as reasonably practicable. What has taken place in this case is undesirable.  

E2.    The PM’s decision

28.  Before the hearing on 25 January 2021, Mr Jonathan Lin, Senior Public Prosecutor, filed his skeleton submission dated 20 January 2021.  It is of note that in the skeleton [13], Mr Lin has already drawn to the attention of the PM to the case of Secretary for Justice v SHY [14] – an authority of pertinent relevance in the present case.

29.  When the s.104 Review was heard on 25 January 2021, the prosecution submitted that the Sentence was manifestly inadequate.  In imposing a PO order, the PM failed to accord sufficient regard to the culpability of the respondent and the pertinent sentencing factors: (1) protection of the public, (2) punishment, (3) open condemnation and (4) deterrence; and gave too much weight on the personal rehabilitation of the respondent.

30.  On 2 February 2021, the PM refused the s.104 Review.  In giving her oral reasons, the PM referred to the Sentence she imposed on 25 August 2020 and said:

“Having considered all that was before me, I felt that a probation order, with special conditions, was the most appropriate sentence in the circumstances of the defendant and the offences and I so ordered. I also called for a progress report on 23 November 2020.” [15]

31.  The PM then referred to the positive progress report and quoted an extract from Cross & Cheung submitted by Mr Lin.  The PM also referred to, among others, the following authorities: HKSAR v Cheng Ka-wing [2001] 2 HKLRD 260; Attorney General v LawYing-cheung [1981] HKC 161; R v Wong Kwok-kin & Ors [1986] 5 HKLR 910.  The PM said she had carefully considered the submissions of both parties.  The PM ruled:

“[a]fter careful consideration of all the principles of sentencing, as well as the circumstances of the offences and of the [respondent], in my view, the sentence I did impose was the appropriate sentence in all the circumstances. In my view, a deterrent sentence at this stage is not appropriate.” [16]

32.  From the oral ruling, it can be seen that no reference was made by the PM to the case of SHY.

F.      The applicant’s grounds of review

F1.    Ground 1: A non-custodial sentence is wrong in principle, as the present offences related to public order events

33.  Mr William Siu and Mr Vincent Lee, on behalf of the applicant, submitted that the Sentence, being a non-custodial sentence, was wrong in principle as the offences were related to public order events, which required the courts to bear in mind the importance of preserving public order and given the increasing incidents of unrest, it is now necessary to emphasize deterrence and punishment in large scale unlawful assembly: Secretary for Justice v. Wong Chi Fung [17]. The applicant also referred to Secretary for Justice v SWS [18], where it was said that youth of the offender may pale into insignificance because of the seriousness or circumstances of the offence because public interest demanded that serious offences be dealt with heavy or deterrence sentences.  In the case of SHY, the Court of Appeal held that the principles in SWS also applied to young offenders under the age of 21.

34.  Mr Siu submitted that the PM erroneously placed excessive weight on rehabilitation and failed to give sufficient regard to the principles of protection of the public, deterrence and societal disapproval in placing the respondent on probation.

F2. Ground 2: The sentence was manifestly inadequate

35.  Mr Siu further contended that the PM erred in not giving sufficient weight to a number of serious features in this case, resulting in imposing the Sentence that was manifestly inadequate:

(1)   The act of hurling a brick was very dangerous. Mr Siu submitted that it was by sheer luck that no person was injured or serious property damage was caused by the respondent throwing a brick at the SCMV at a distance of 3 metres.  The act might have caused traffic accident leading to injuries of police officers on board and other road users.

(2)   The respondent’s act targeted at the police in due execution of duties which, according to HKSAR v Choi Ping Chiu[19] and Secretary for Justice v Chan Lincoln[20], were symbol of law and order, and must be protected from abuse.  If contemptuous and abusive behavior towards police officers were tolerated, law and order would be compromised.

(3)   The present offences were committed against a background of a riot in Wan Chai.  On that day, large scale vandalism broke out, petrol bombs were thrown causing fire on the carriageway.  Not only did the respondent’s act of throwing a brick at the SCMV hamper the essential execution of police duty in such a situation, but it might also incite and provoke other protestors at the scene to attack the police.

(4)   The gravamen of the possession offence lies in the possession of incriminating items with specific intent.  It was preventive in nature and the absence of actual damage did not exonerate or mitigate an offender’s culpability.

(5)   The respondent’s possession of highly flammable liquid and a lighter posed serious risk to people and property at the scene, particularly so when Hong Kong is a densely populated city, carrying with it grave consequences.

(6)   The way the respondent was clad in dark colours and wearing respirator showed a degree of planning and his intent to make his identification difficult and escape easier.

(7)   The respondent’s act might have an emboldening effect on other protestors, which may in turn resulted in a vicious cycle of further obstruction of police in due execution of their duties and escalated violence.

36.  In light of the above features, Mr Siu submitted that a probation order put little emphasis on punishment or deterrence; on the contrary, a detention centre order had elements of rehabilitation, punishment and deterrence.  The personal circumstances of the respondent, while relevant, paled into insignificance and must yield to wider public interest. In this case, there was no exceptional circumstance justifying the imposition of a non-custodial sentence.  Referring to cases in which criminal damage were committed against a background of protests: Secretary for Justice v Chow Kin Nok [21], Secretary for Justice v Chu Anson Pui Hang [22] and HKSAR v Tai Chi Shing and Others [23], Mr Siu submitted that a custodial sentence was the only appropriate sentence.

G.      The respondent’s submissions

37.  Mr James Tze, for the respondent, resisted the application for review on two fronts.

G1. Probation order not wrong in principle nor manifestly excessive

38.  While Mr Tze did not disagree with the general sentencing principles relied on by the applicant, he submitted the Sentence passed by the PM was not wrong in principle nor manifestly excessive, in particular as of the date of the present review.  Mr Tze submitted that at the time of the s.104 Review, the PM was fully aware of the relevant sentencing principles, the seriousness of the facts in the case, the age of the respondent, the full compensation he made, the positive probation progress report, the fact that the respondent had been on remand for 14 days and the effect on the respondent’s studies if he received a custodial sentence.

39.  Specifically, in reply to the applicant’s arguments on the facts of the case [24], Mr Tze pointed out that there was no evidence that the respondent was involved in other acts of the large scale vandalism on the date of offence.  The respondent act was impulsive with no particular hostility aimed at the police, and was different from assaulting a police officer.  The officer on board of the SCMV did not apprehend any danger to his safety.  There was no suggestion that there were other road users at the time or that traffic accident or injury would be caused.  It was never the respondent’s intention to use the bottle of flammable liquid to cause fire.  The gears worn by the respondent were protective measures and not for hiding his identity.  There was no evidence that there were other protesters and their emotions running high due to the respondent’s act.

40.  Mr Tze sought to distinguish the present case from the criminal damage cases relied on by the applicant.  It was submitted that the present case did not involve “decoration incidents” or “private settlements” with citizens holding different political views [25] as those in Chow Kin Nok and Chu Anson Pui Hang.  In Chow, the criminal damage to the shop “Hey Cha” was committed jointly with 3 other persons and some other persons at the scene were incited to attack police officers.  In Chu, the offender smashed the glass door to the office of a Legislative Councillor, leading to other criminal damage committed by others and resulting in substantial damage to the premises for which the offender paid $50,000 compensation. Mr Tze also submitted that in Chow and Chu, the sentencing magistrates had not obtained pre-sentencing reports for custodial sentences.  In contrast, the PM in the present case obtained all relevant reports and had all relevant information available for her consideration before deciding to place the respondent on probation.

41.  Mr Tze emphasised that at the time of the s.104 Review the PM had all the relevant reports on sentencing options as well as the progress report, and the fact that the respondent had commenced his full-time studies for the associate degree and that he had satisfactorily completed 5 months of probation.  Mr Tze also submitted that the 14-day remand would have achieved the “short, sharp, shock” effect on the respondent.

G2. This Court should not interfere with the Sentence

42.  Referring to Secretary for Justice v Yeung Wing Hong [26],Mr Tze asked this Court not to interfere with the Sentence and to exercise its discretion to consider the cumulative effect of the following factors.  The respondent had satisfactorily completed nearly 9 months of probation which is half of the period of the Sentence.  The progress report recommended the continuation of the Sentence which was considered to be beneficial to the respondent’s rehabilitation.  The respondent facing review of sentence twice was by itself a punishment.  The respondent had been furthering his studies for an associate degree and had good grades in the first semester which were strong evidence of his remorse and the deterrent effect of the Sentence.  To receive a custodial sentence at this time, when it was reasonably foreseeable that he would be promoted to the next year of his studies, would have a disastrous effect on the respondent’s studies and future.  In short, it would be excessively harsh to pass a custodial sentence on the respondent now.

43.  Mr Tze further submitted that, if this Court was of the view that the PM was in error to place the respondent in probation, pre-sentence reports would be required and, given that the respondent had already been on remand for 14 days before the PM sentenced him, the respondent would have had spent at least 28 days in remand which would be more or less the minimum period for a detention centre order [27].  Mr Tze submitted that the training and programmes available at a Detention Centre or a Training Centre might not be suitable to the respondent.  Mr Tze urged the Court to consider the suitability of a Community Service Order in light of all the circumstances in the case. 

H.      Discussion

44.  During the hearing on 26 May 2021, at the request of Mr Siu, this Court viewed the videos which were exhibits in this case.  Even though the admitted facts described in words what had happened on the day in question, the visual view of how events developed did give one a better and clearer perspective of the seriousness of the offences committed by the respondent.  Given this evidential value, we find it odd that the videos were not played, particularly during the s.104 Review when the prosecution was complaining that the PM had not accorded sufficient regard to the seriousness of the two offences.

45.  We fully agree with Mr Siu as to the seriousness of the offences committed by the respondent.  It is important to consider the gravity of the two offences committed by the respondent in context, ie. with a backdrop of a riotous unrest in Wai Chai, and not in isolation (as appears to be suggested by counsel representing the respondent, both before us and in the lower court.).  The act of hurling a brick at the SCMV under the circumstances was not only an act to damage a vehicle, but was a clear challenge to the law and order, to the authority the SCMV represented.  The respondent’s act might also have a “rippling” effect, provoking others to follow suit.

46.  The respondent’s assertion that he hurled the brick out of impulse was not supported by the evidence admitted by him.  The respondent admitted he had in his possession various items with intent to damage property. He admitted he brought the cutter, the lighter and the hammer from home with intent, that is, using the cutter to “cut”, the lighter to “burn” and the hammer to “hammer” so as to damage property.  With his admission that he was in possession of these items with intent to damage property, and his act of hurling the brick was committed when the police was following the SCMV for the clearance operation, it cannot be said that his act was an impulsive one.

47.  Further, the respondent claimed that he was given the bottle with highly flammable substance by another person without thinking what he would do with it.  Even if his assertion was true, the fact remained that he knew the bottle contained flammable substance and he had a lighter in his possession, and he possessed these two items with intent to damage property.

48.  Mr Tze placed emphasis on the fact that the respondent did not use those items to cause any actual damage.  However, the charge the respondent pleaded guilty to was the possession of these items with the necessary intent, not the actual act of damaging any property.  Had the respondent damaged properties with those items found in his possession, the offence would have been more serious.

49.  When the PM sentenced the respondent on 25 August 2020, the Court of Appeal had not yet handed down the judgment of SHY.  However, by the time the s.104 Review was heard, the case was in fact cited to the PM.  It is of benefit to recite part of the judgment in SHY as it contained important sentencing principles involving young offenders guilty of serious offences.  Poon CJHC said, at page 2 of the judgment:

“ 2. Recently, the courts are required to sentence young offenders who have committed serious offences in quite a lot of cases. In Secretary for Justice v SWS[2020] HKCA 788, I have, pursuant to long established legal principles, reiterated and expounded the principles of sentencing applicable to juvenile offenders aged between 14 and 16 as follows [28]:

‘G. Discussion

G1. General principles in sentencing of juvenile offenders

45. Section 11(2) of the Juvenile Offenders Ordinance provides that no young person, i.e, a person who is, in the opinion of the court having cognizance of any case in relation to such person, 14 years of age or upwards and under the age of 16 years, shall be sentenced to imprisonment if such young person can be suitably dealt with in any other way. In other words, imprisonment is the last resort for sentencing young persons. As to other suitable options, section 15(1) of the same ordinance stipulates the ways in which the court may deal with a convicted young person, which include imposing a probation order, sending him/her to a reformatory school, sentencing him/her to imprisonment or to detention in a training centre or to detention in a rehabilitation centre, and for a male offender, sentencing him to detention in a detention centre. These are all sentencing options alternative to imprisonment, which are complementary to the provisions which restrict the imposition of a sentence of imprisonment on young persons, so as to perfect the sentencing regime applied to young persons. Reference may be made to Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12, page 21C-D for the related statutory intent.

46. The court is required by the Juvenile Offenders Ordinance not to sentence any young person to imprisonment unless he cannot be suitably dealt with in any other way because it is always the principle in law that, as far as practicable, the main concern of the court would be giving young offenders, in particular juveniles, the chance to rehabilitate and passing a rehabilitation-oriented sentence. Since imprisonment focuses more on factors such as punishment and deterrence than rehabilitation, it would naturally be the last resort in sentencing. As to the non-custodial sentencing options, probation order being one of them, the main consideration and aim are rehabilitation, whereas punishment and deterrence are of minor consideration. Reformatory school, training centre, rehabilitation centre and detention centre are custodial sentences which serve the consideration and aim of rehabilitation on one hand and cater for sentencing factors such as retribution and deterrence on the other. The court in deciding which non-custodial sentencing option to adopt should consider the relevant statutes and applicable legal principles together with the actual circumstances of the case.

47. In sentencing, the court is required to consider all applicable sentencing factors and give appropriate weight before deciding a commensurate sentence: see paragraph 108 in Wong Chi Fung (Court of Appeal). This principle is similarly applicable to the sentence of young persons who have committed serious offences. Generally speaking, the court’s main considerations are in two folds. On one hand, as a matter of public interest, a sentence passed by the court in respect of serious offences has to be commensurate with the seriousness of the offence and the circumstances of the case in order to serve the purposes of protection of the public, punishment, open condemnation and deterrence. On the other hand, the young age of an offender is always a mitigating factor: see paragraph 84 of Wong Chi Fung (Court of Final Appeal). This is also a consideration of public interest because rehabilitation and reformation can bring the young person away from crime, which not only caters for his own welfare and future prospect but also benefits the community as a whole. Therefore, even when the offence is serious, the court in sentencing has to consider the young offender’s circumstances, background, welfare and rehabilitation needs. The court must carefully balance all relevant sentencing factors and decide what weight to accord to them before deciding an appropriate sentence.

48. In balancing various sentencing factors, as said above, the court would give young offenders, in particular young people, a chance to rehabilitate as far as practicable. However, this does not mean that the court focuses only on the youth factor and ignore other sentencing factors because the weight given to the youth factor would vary depending on the seriousness of the crime involved and the circumstances of the offence in each individual case. If, as a matter of public interest, the seriousness of the offence and the circumstances of the case call for a heavy or deterrent sentence, the offender’s young age and personal background would count very little or even pale into insignificance: Re Applications for Review of Sentences [1972] HKLR 370, 417; Law Ka Kit, paragraphs 27 and 29, because the need for a punitive or deterrent sentence far outweighs the rehabilitative need of the offender：see Wong [Chun] Cheong, page 22.

49. The above legal principles are basically similar to those stated in the guidelines of the UK Sentencing Council for sentencing children and young people and ‘The Beijing Rules’ (United Nations Standard Minimum Rules for the Administration of Juvenile Justice) cited by Mr Lee.’

The above legal principles are also applicable to young offenders under the age of 21.

3.  I emphasize that lower courts have to comply with the above sentencing principles.”

50.  Despite Mr Lin pointing out the seriousness of the respondent’s offences and referring the case of SHY to her, the PM did not demonstrate how she had considered all applicable sentencing principles and the circumstances of the offences.  She merely said she had considered all the sentencing principles and circumstances of the offences without giving any further explanations.  We appreciate the PM is very experienced but it was not enough for her to give such a sweeping remark, particularly when the Court of Appeal has stated what sentencing principles were applicable in relation to young offenders having committed serious offences in the case of SWS, which was repeated in SHY.  There was simply no consideration or analysis of the gravity of the offences.  It is unclear what weight the PM had given to which factor before deciding PO for 18 months with a special condition was an appropriate sentence.  This is a case in which the PM only placed emphasis on the rehabilitation of the respondent, and did not pay sufficient regard to the seriousness of the offences committed by the respondent.

51.  We agree with the applicant that the Sentence imposed was both wrong in principle and manifestly inadequate.  The respondent should have been sentenced to be detained in a Detention Centre on 25 August 2020, according to the recommendation on the DC/RC/TD Report.  In any event, the PM should have granted the s.104 Review upon the prosecution bringing to her attention the gravity of the two offences and the authority of SHY.

52.  As a result of what had taken place, instead of having served his sentence in August 2020 or in January 2021, the respondent found himself behind bar when the Application to Review the sentence was successful.  The unduly lenient sentence imposed by the PM on the respondent certainly did him no good in the end.

53.  In this regard, what Poon CJHC said in SWS is a good reminder:

“73. Let me reiterate: as required by public interest, the court is duty bound to impose a commensurate sentence on the defendant before it pursuant to the relevant ordinances and applicable legal principles. Where the law permits and it sits well with proportionality, the court may, at its own discretion, impose a more lenient sentence on the defendant. In such a case, the Court of Appeal will not interfere. However, as highlighted in quite a number of appeal cases, unduly lenient sentences which may be seemingly advantageous to the defendants turns out to do them no good in the end. In case the Secretary for Justice applies for a review of the sentence, the defendant will inevitably be subject to anxieties pending any decision to be made by the Court of Appeal. If the review succeeds, the defendant will face a more severe sentence which will cause him disappointment or even a blow and may also interrupt the rehabilitation plan that he is undergoing. Reference may be made to Cross and Cheung on Sentencing in Hong Kong, 9^th ed, page 609, paragraphs 41-8 and 41-9. Nevertheless, it is not meant to imply that the court is to be invariably harsh. What is required of the court is passing a commensurate sentence on the defendants.”

I.     Sentence

54.  The respondent was found, once again, to be mentally and physically fit for detention in a Detention Centre, a Rehabilitation Centre or a Training Centre, with the recommendation he was more suitable for detention in a Detention Centre.

55.  On 10 June 2021, Mr Tze urged this Court to impose a Rehabilitation Centre on the respondent, as the respondent was anxious to continue his 2^nd year study at the HKU SPACE in September.

56.  We were of the view that a Rehabilitation Order did not properly reflect the gravity of the two offences.  The respondent is clearly in need of discipline.  Sentencing the respondent to a Detention Order not only properly reflects the seriousness of the offences, such an order also caters for the rehabilitation of the respondent, and we so ordered. 

[1] Contrary to section 60(1) of the Crimes Ordinance, Cap. 200

[2] Contrary to section 62(a) and 63(2) of the Crimes Ordinance, Cap. 200

[3] Appeal bundle pp.24(A) and 24(C)

[4] Appeal bundle p.24(B)

[5] Appeal bundle p.24(C)

[6] Appeal bundle pp.36U-39K

[7] Appeal bundle pp.41S-42H

[8] Appeal bundle p.36K-O

[9]  That the respondent shall participate in any community programmes/activities the Probation Officer deems conductive to his rehabilitation as directed.

[10] Appeal bundle pp.94-97

[11] Appeal bundle pp.98-102

[12] Appeal bundle pp.42R-45I

[13] Appeal bundle p.108

[14] Secretary for Justice v SHY [2020] HKCA 829, CAAR 7/2020

[15] Appeal bundle p.65Q-S

[16] Appeal bundle p.68 D-F

[17] Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35;

Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 699

[18] Secretary for Justice v SWS [2020] HKCA 788

[19] HKSAR v Choi Ping Chiu CACC 312/2010

[20] Secretary for Justice v Chan Lincoln [2021] HKCA 255

[21] Secretary for Justice v Chow Kin Nok [2021] HKCA 540

[22] Secretary for Justice v Chu Anson Pui Hang [2021] HKCA 605

[23] HKSAR v Tai Chi Shing and Others [2016] 2 HKC 436

[24] Paragraph 27 of the applicant’s written submissions

[25] In Chinese “裝修” and “私了”

[26] Secretary for Justice v Yeung Wing Hong [2013] 3 HKLRD 800 at paragraphs 35-40

[27] Section 4(2) of the Detention Centre Ordinance, Cap. 239.

[28] Footnotes in the parts of judgment cited are omitted.