HKSAR v. TSANG CHUN KIT

DCCC 556/2021

[2022] HKDC 377

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 556 OF 2021

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Reasons for Sentence

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1.  The defendant pleaded guilty and was convicted of a riot offence, contrary to section 19(1)  and (2)  of the Public Order Ordinance, Cap 245 (Charge 2). He also pleaded guilty and was convicted of failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221 (Charge 3). Charge 1, arson, contrary to section 60(1)  and (3)  and 63(1)  of the Crimes Ordinance, Cap 200, was placed on the court file, not to be dealt with unless there is leave from this Court or the Court of Appeal.

2.  The particulars are that on 22 September 2019, near the junction of Prince Edward Road West and Nathan Road, Mong Kok, Kowloon, together with Siu Lok-ting and other persons unknown, took part in a riot.

3.  Subsequently, on 27 April 2020, the defendant, being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by a court.  He was rearrested just over a year later.

Summary of Facts

4.  The defendant admits that at all material times, he riotously assembled together with other persons unknown.  During the riot, they conducted themselves in a disorderly, intimidating, insulting and provocative manner.  A breach of the peace was committed and violence was perpetrated.  A fire was lit on the carriageway at a busy road junction. Slogans were chanted and the Police in the adjacent police station were abused.

5.  There is no challenge to the prosecution’s allegation and definition that the defendant and others took part in a riot.

6.  The facts of this riot are straightforward. Hundreds of protesters congregated outside and adjacent to the Mong Kok Police Station at the junction of Prince Edward Road West and Nathan Road.  Many shone laser beams at police officers.  Some vandalised the police station by spraying paints on the walls and throwing hard objects.  There was incessant chanting and drumming.  The Police repeatedly raised flags to warn the protesters outside the station to disperse but they were ignored.

7.  The prosecution says at about 8.50 pm, crowds had gathered there acting in very unruly manner.  By 10 pm, protesters had set fire to rubbish bins, cardboard and some barricades piled together on the carriage way of Prince Edward Road near this junction.  About 15 minutes later, the Police conducted a sweep along Nathan Road to try and disperse the protesters and restore public order.  This did not take long.  And within 20 minutes, the junction was cleared of protesters and the Police left. 

8.  That fire that was lit on the carriageway was extinguished by firemen.  Not long after dispersal action, at about 11 pm, approximately 100 protesters returned and reassembled at the same junction. Police warning flags were again displayed repeatedly and oral warnings were aimed at the protesters but they did not disperse.  The defendant was amongst these protesters.

9.  Much video footage was shown in open court and produced as part of the Summary of Facts.  There is footage of the defendant being given 2 glass bottles from 2 other protesters, which he put in his rucksack.  This was at about 11:15 pm.  He admits that 4 glass bottles were subsequently found in his rucksack, of which 2 contained traces of an organic mixture containing flammable organic solvent.

10.  Within 15 minutes of the defendant putting 2 glass bottles in his rucksack, protesters around him began to build a roadblock with rubbish bins, cards, cardboard and anything they could find to build the blockade to set on fire.  Traffic was seriously affected.  Protesters then set fire to the barricade and a lot of cardboard.

11.  The defendant held up a red umbrella at the time and is seen on film footage throwing objects on the fire to feed it, including liquid from a bottle which appears to stoke the fire significantly.  It burned well and there was much smoke from it.  Within about 10 minutes of this fire blazing, the sirens of a fire engine can be heard approaching the carriageway and that fire built by protesters.  Despite the incoming sirens, the defendant can be still seen on film throwing something else onto that fire.

12.  A few minutes after firemen extinguished the fire, police officers conducted a dispersal and arrest operation.

13.  The defendant was caught minutes later as he ran away.  He was subdued on Bute Street.  He was wearing a proper heavy duty respirator, black upper body armour, black clothing including black gloves.  He was holding an extendible stick in one hand.  In his rucksack, the police found those 4 empty glass bottles, a headlamp and other clothes not black clothes.

14.  Under caution by the police, the defendant remained silent.

15.  As far as the 3^rd charge is concerned, he was admitted to court bail after his first court appearance but failed to appear at the next hearing as scheduled.  A warrant of arrest was issued on 27 April 2020 with the Police locating the re-arresting him on 10 May 2021.  At the time, he was found to be living in a flat in Sau Mau Ping.

16.  Under caution, he remained silent.  He has been remanded in custody since his re-arrest.

17.  The defendant did not know Siu Lok-ting named in the particulars but they were both arrested on the same night and she is seen rioting with him, similarly feeding the fire with objects to burn.  She was dealt with in separate proceedings a year ago and convicted after trial in April 2021 in DCCC 334/2020.

Mitigation

18.  The defendant is now 18 years old.  At the time of the offence, he was 16 years old and a Form 4 student.  He has a clear record.

19.  His parents divorced when he was only 8.  He comes from an underprivileged humble background, raised by his father.  His father relied on government financial assistance but has recently found employment.  The defendant would see his mother once a week after they divorced.  It has been submitted that he has not had much guidance or parental control in his young life.

20.  I have received many letter of mitigation from his parents, teachers, social worker, a District Councillor, a neighbour and a family friend.  I will not repeat their contents but I have read them.  I have also had sight of school reports and certificates.  His parents are very supportive of him.

21.  Their letters stressed that he is a kind, thoughtful, filial young man.  He is respectful of his elders.  He tried hard at school and was sporty as well as willing to volunteer and help others.  All letter ask for leniency and an understanding of the likelihood that he was, as a young person, heavily influenced by peers.  During the social unrest that began in June 2019, it was said in mitigation that he got caught up in the actions and emotions of other young protesters and peers, which lead to him taking part in this riot on 22 September 2019.

22.  As far as his decision to jump bail and hide for a year is concerned, it was submitted that he was frightened to face the reality of his offence and wrongdoing.  He was frightened to face his own family.  He foolishly hid from his family and friends, as well as forsaking his education.  He now wants to resume and take the necessary exams to try to enter university in Taiwan.

23.  After hearing mitigation and considering that he was 16 at the time of the offences and still in full time education, I called for a training centre, detention centre and rehabilitation centre reports. Sentence was adjourned to today pending reports and further mitigation.

Principles of Sentencing

24.  The maximum term of imprisonment on indictment is 10 years for the offence of rioting.

25.  A riot has an immediate and serious impact on the rule of law.  The law ensures that public order and peace are preserved, not threatened by the use of violence.  If public order is not preserved, this affects the freedom and rights of all citizens.  If public order is not preserved, society is prone to descend into anarchy.

26.  Sentencing for the offence of riot involves the factor of deterrence.  A sentence must not only seek to prevent the offender from reoffending but also heed a proper warning to deter others from violating the law by breaking and disrupting public order in a like manner.  Acts of violence or threats of violence will not and cannot be tolerated, such act will attract a deterrence sentence to ensure that the public is protected.

27.  It therefore follows that the personal background and mitigation as well as submissions of impulsive, emotional behaviour or immaturity in being easily led carries little weight.

28.  Deterrence usually overrides the sentencing principle of rehabilitation, especially when the prevailing circumstances include the increasing incidents of unrest and a rising number of large scale public protests that descended into violence.  That is clear from the decision of the Court of Final Appeal in Secretary for Justice v Wong Chi Fung [2018] 21 HKCFAR 35.

29.  The defendant was one of many engaged in a crime against peace that evening.  It is usually a common feature of mass disorder that the individuals within the crowd act violently, this will in turn inflame and encourage others to do and behave similarly.  The harm and destruction done comes from the combined effect of what is done en masse.

30.  The Court of Appeal in Leung Tin Kei & Ors, CACC 164/2018, set out various factors to be taken into account when passing sentence on the offence of riot.  In that case, the riot took place in February 2016 in Argyle Street, Kowloon.  Courts must consider these factors and principles to arrive at a sentence according to the facts of each individual case.  I have taken them into account.  In that case, the appellate court also set out the general principles that court must take in its approach to sentencing.

31.  The general principles applicable to sentencing riot are:

(a)  Maintaining the rule of law and public order;

(b)  punishment and deterrence, an immediate custodial sentence was generally appropriate for both unlawful assembly involving violence and riot;

(c)  the offender’s rationale for committing the offence was not a mitigating factor; and

(d)  the gravamen of the offence of riot was the participants acting in large numbers to achieve their common purpose with violence.

What is a common factor is the sentence should be punitive and sufficiently deterrent. Therefore, an immediate custodial sentence is inevitable.

32.  I have considered the scale of the riot and scale of the disturbance that night caused to the public, transport, residents nearby, the harm to society including the relationship between the Police and the public.  There is no doubt that the riot was a serious incident.  What I also found relevant is the riot was in a public place.

33.  Although building a roadblock and setting it on fire was obviously pre-planned with material and accelerant brought to the scene, it was not a large scale riot of a long duration, and it appears to have been confined to that road junction area only.  It was not worst facts for an offence of this nature compared to others in those tumultuous months.

34.  Moreover, the defendant and others there did not stop or hinder the firemen approaching the fire to extinguish it, nor did they confront the Police when they appeared to disperse the crowd.  They ran away.  I also take into account the fire was built in the middle of a carriageway and not next to or against the property of the police station or other building.

35.  Defence counsel, Ms Tin, has urged me to consider the defendant’s young age at the time and consider an alternative to an immediate term of imprisonment.  I called for reports and have considered them but I won’t repeat their contents here.

36.  The report indicates he is mentally and physically fit for detention in either a rehabilitation or detention or training centre.  There are places available for him.  The author of the report, from the information available and after a general assessment of his behaviour and attitude whilst on remand, considers him more suitable for detention in a detention centre.  This opinion is not binding on this court.

37.  The defendant reveals he was influenced by social media at the material time and now realises he should express his opinions through lawful means instead.  He regrets jumping bail for such a long period of time and laments the fact he has wasted so much time.  He reiterates that he wishes to continue and further his education.

38.  Ms Tin has said all she can say and has urged me to follow the recommendation and opinion of the report and consider detention in a detention centre as the appropriate sentence.

39.  In mitigation, defence counsel had urged me to only obtain a detention centre and rehabilitation centre report.  It was submitted that a training centre order of 3 years would be too long a sentence considering how long he has been on remand.  He has been in remand so long because he jumped bail and absconded for over a year.  He was originally on bail.

40.  In any event, the defendant can be detained in a training centre for up to 3 years and then subject to supervision for a period of up to 3 years thereafter.  It is not for a determined period of 3 years.  In fact, under the law the period of detention cannot be less than 6 months, nor can it be more than 3 years.

41.  Despite the need to consider a deterrent sentence, in light of the particular facts in this case, I am minded to impose a sentence other than an immediate term of imprisonment.

42.  This is not one of those cases where the facts are simply too serious to justify the making of a training centre order.  In my view, a sentence of detention in a detention centre does not reflect the gravity of the offence of riot.  I am well aware of the different forms of treatment provided by the 2 types of centres.  I am of the view that the defendant is in need of longer disciplinary training as opposed to a short, sharp shock.

43.  A training centre order reflects the circumstances of the offence, the interests of the community and the rehabilitative element for the defendant’s reformation and the prevention of crime.  Within the training centre programme, the defendant will attend education classes as well as vocational training.  There are other programmes relating to character development training.  He will be able to fulfil his desire to further his education.

44.  Therefore, after careful consideration of the facts, mitigation and the reports, I order the defendant to be sentenced to detention in a training centre for Charges 2 and 3.  This training centre order for each charge will be served concurrently.