HKSAR v. TANG HO YIN

CACC 113/2018

[2019] HKCA 465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 113 OF 2018

(ON APPEAL FROM DCCC NO 581 OF 2017)

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J U D G M E N T

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1.  This is an application for leave to appeal against a sentence of 2 years and 10 months’ imprisonment imposed on the applicant on 11 April 2018 by HH Judge Yip, following the applicant’s plea of guilty to a charge of riot, contrary to section 19(1) and (2) of the Public Order Ordinance, Cap 245.

The facts

2.  The particulars of the charge were that the applicant on 9 February 2016, at Shantung Street and Nathan Road in Mongkok, Kowloon together with other persons, took part in a riot.  The facts admitted by the applicant were to the following effect.

3.  The riotous events, which formed the basis of the charge, occurred in the evening of 8 February and the early hours of 9 February 2016.  During that period, police officers performing their duties to maintain public order were confronted and violently attacked by a large number of persons.

4.  In the case of the applicant, he accepted that he took part in events which occurred between 04:00 hours and 04:12 hours on 9 February 2016, when a team of police officers were attempting to disperse the crowd by forming a checkline (“the checkline”) at Shantung Street near the junction with Nathan Road southbound.  At the time, a group of people, including the applicant, assembled on the carriageway of Shantung Street about 10 to 20 metres in front of the checkline, and kept attacking police officers by hurling various objects such as bricks and glass bottles at them, despite repeated warnings from the police to desist.  The applicant was captured on police video as one of the persons who had thrown an object towards the checkline, while others in the group were also hurling objects at the police.

5.  Because of the persistence of the attack, the officers were unable to proceed with the dispersal action; accordingly, they retreated to the southbound carriageway of Nathan Road, during which they were chased by some members of the group, who continued to hurl objects at the police.  Officers who fell to the ground were kicked and beaten.

6.  During the riot, multiple injuries of varying degrees to the upper and lower body, as well as the head, of some 29 police officers were occasioned, which included tenderness, abrasions, lacerations, swelling, bruising, and bone fractures[1].  As a result, sick leave was prescribed to most of the officers ranging from a few days to several weeks (in the case of PW23), to nearly a year (in the case of PW7).  During the incident, one of the police protective shields was damaged.

Arrest of the applicant and his admissions

7.  The applicant was not apprehended at the scene but was arrested on 10 November 2016 near his home. He admitted under caution that he had shaken a signpost and hurled a brick during the incident for fun.  In subsequent video-recorded interviews he repeated his admission, saying that he had thrown a brick towards the checkline with others.  He claimed that he did so in order to scare the police away.

8.  The applicant identified himself from video footage and screen captures from that footage and subsequently led the police to the scene where he had thrown bricks.  There, he made further admissions concerning his actions.

Observations on the evidence by the judge

9.  Having watched video footage of the riot, the judge made certain observations, which he incorporated into his Reasons for Sentence.  In particular, he observed that there were about 100 rioters confronting no more than 30 police officers[2].  I do note, however, that the prosecution had already informed the court, upon its specific enquiry, that there were around 60 police officers at the scene[3].  The group of rioters assembled on the carriageway of Shantung Street at a distance in front of the checkline.  Other than persistently hurling missiles, such as bricks and glass bottles, at the officers, the judge also referred to the lighting of two fires[4]. However, it should be noted that the Summary of Facts contained no reference to fire, although there were fires being set in other parts of Mongkok that evening.  Mr Lau accepts that the applicant had nothing to do with any fires in this part of the disturbances.

10.  The judge noted that some of the rioters obtained bricks from the ground around a signpost, which they had shaken loose.  The objects the rioters hurled struck the helmets and shields of the police officers, if not their bodies.  Despite police warnings to the group to dissolve and desist, the rioters refused to cooperate and pushed against the police with home‑made shields.  The police had been forced to use pepper spray.  The applicant was seen, at the forefront of the group, without a cap or a face mask, hurling a brick at police officers.

Mitigation

11.  The applicant was 24 years of age at the time of the offence and had a clear criminal record.  It was argued on his behalf in mitigation that the violence used was of medium severity with no fatality involved.  However, the judge disagreed with that characterisation and expressed the view that it was more serious[5].

12.  A psychiatric report prepared by Dr Gabriel Hung Bing Kei was submitted by the defence to the court, in which it was disclosed that the applicant suffered from Attention Deficit/Hyperactivity Disorder (“ADHD”), a condition with which he had been diagnosed at primary school.  He had since been treated with medication, but had stopped the medication because it caused him insomnia.  Since impulsiveness was a common characteristic of ADHD behaviour, Dr Hung concluded that the applicant had “committed the offence in an impulsive manner, without considering or analysing the potential consequences of his actions.  He knew what he did was wrong but acted impulsively due (to) lapse in judgement.”  Dr Hung recommended treating the applicant’s condition with a new psychiatric medication, which posed less risk of sleep disturbance.  He considered that with adequate treatment, the risk of the applicant re‑offending was low.

Reasons for sentence

13.  The judge addressed various principles and considerations relevant to the offence of riot discussed in the authorities, both in England and Wales and in Hong Kong: namely, R v Pilgrim[6], which was adopted in Attorney General v Tse Ka Wah & Others[7] and Secretary for Justice v Cheung Chun Chin & Others[8]; and R v Caird[9] and R v Keys & Others[10], which held that the acts of a rioter should not be considered in isolation.  He also considered certain sentences passed at first instance; namely HKSAR v Hui Ka Ki & Others[11], HKSAR v Yeung Tsz Hin Chris & Others[12] and HKSAR v Yeung Ka Lun[13], all of which offences had taken place on the same day as the present case.  It may be noted that judgment in the appeal in respect of the last case was handed down a week after the sentence passed in the present case, the Court of Appeal describing the starting point of 5 years’ imprisonment adopted in that case as appropriate, albeit not lenient[14].

14.  The judge reviewed the facts in the present case and adopted a starting point of 5 years’ imprisonment, taking into account that:

(a)   the police were vastly outnumbered;

(b)   the number and aspects of police officers injured were astounding;

(c)   the applicant was at the forefront of those confronting the police;

(d)   he was seen to have hurled a brick; and

(e)   he admitted to have shaken loose a signpost, from the base of which other rioters were picking up bricks.

The judge further commented that the applicant’s actions were an egregious and wicked way to have fun at the expense of the safety of others.

15.  The judge discounted the starting point by a full one‑third for the applicant’s plea of guilty, thus reducing the sentence to 3 years and 4 months’ imprisonment.  He then noted Dr Hung’s opinion that the applicant was impulsive when committing the offence and observed that he did not wear a cap or face mask as many of the other rioters had done; suggesting there may have been no prior planning on his part, and the possibility that he was having fun with little regard for the seriousness of the consequences of his actions.  Accordingly, the judge reduced the already discounted sentence by a further 6 months, resulting in an ultimate sentence of 2 years and 10 months’ imprisonment.

Grounds of appeal

16.  Mr Douglas Kwok, with him Mr Marco Li, on behalf of the applicant, complains that the sentence was manifestly excessive for three reasons.  First, the judge erred in adopting the same starting point of 5 years’ imprisonment that had been adopted by the sentencing judge in Yeung Ka Lun, notwithstanding that the circumstances in that case were significantly more serious than those in the present case.  He submits that the starting point should have been in the region of 4 years’ imprisonment and cites in support the sentences passed at first instance on D4 and D5 in the trial of HKSAR v Mok Ka To & Others[15], which were proceedings arising out of another incident of riot in the disturbances in Mongkok on the same night.

17.  Secondly, the judge made an erroneous factual finding that “there were about 100 rioters against no more than 30 police officers”, when the prosecution had conceded prior to mitigation that there were “around 60 police officers” involved.

18.  Thirdly, the applicant had not admitted that he had “shaken loose a signpost from its base on the ground” as the judge thought. All he had said was that he had shaken a signpost, which the judge appeared to agree was already tilting[16], a few times.

Respondent’s submissions

19.  Mr Derek Lau, on behalf of the respondent, opposes the grant of leave to appeal.  He points out that the police were significantly outnumbered in the riot, with 29 officers sustaining injuries from numerous missiles being intensively thrown at them over the course of 12 minutes, notwithstanding that they had helmet and shield protection.  Moreover, the applicant was an active participant of the group, standing at the forefront of the crowd when he threw a brick at the police.  His actions should not be considered in isolation but against the concerted attempt by rioters to overpower the police by violence.

20.  It was further submitted that the riot occurred in a very crowded and densely populated area during the Chinese New Year holiday, for which the dangers to public order and safety required a strong deterrent element in sentence.

21.  At the end of the day, Mr Lau submits that the Court should look at the ultimate sentence received by the applicant, which included a very generous discount for the applicant’s medical condition.  It could not be said that the sentence of 2 years and 10 months’ imprisonment was manifestly excessive.

Consideration

22.  My function as a Single Judge on an application for leave to appeal against sentence is solely to determine whether there are reasonably arguable grounds of appeal to merit the case being argued before the full Court of Appeal.  I do not determine the appeal: I merely have to be satisfied that the grounds advanced are reasonably arguable.  The leave process is a filtering mechanism to deter appeals which are not reasonably arguable.

23.  Among the various cases which have given rise to proceedings arising out of the disturbances in Mongkok on the day in question, Yeung Ka Lun is the only one so far to have been determined by the Court of Appeal.  Yeung Ka Lun concerned another riot, also in the early hours of 9 February 2016, in Soy Street, Mongkok.  Having read the facts of the case, it seems to me to be reasonably arguable that the applicant in Yeung Ka Lun stood in a worse position than the applicant in this case, given the particular facts of that case.  For the applicant in Yeung Ka Lun was convicted after trial of two charges, one of riot, the other of arson, contrary to section 60(1) and (3) of the Crimes Ordinance, Cap 200, in circumstances where the applicant had been part of a large group of rioters, most of them masked, who threw bricks prised from the pavement at the police, smashed the windscreen of a taxi and set it ablaze, and hurled flaming or burning objects, as a result of which the awnings of shops were set on fire.

24.  In particular, the applicant in Yeung Ka Lun was convicted of placing a burning object(s) at the rear wheel of the taxi in order to set fire to it.  The Court specifically held that the applicant’s purpose was not just to damage the taxi but to cause even more confusion at the scene.  And it observed that had the LPG tank of the taxi been ignited and exploded, the resulting casualties and damage to property would have been unimaginable[17].

25.  The applicant in Yeung Ka Lun was correctly given concurrent sentences on both charges, since both offences arose out of the same incident, but clearly his involvement in the offence of arson was a significant and grave factor in the identification of the starting point for the applicant’s overall criminality in respect of both offences.  It should be remembered that the maximum sentence for the offence of arson, contrary to section 60(1) and (3) of the Crimes Ordinance, is life imprisonment: the maximum sentence for the offence of riot is 10 years’ imprisonment.

26.  The throwing of lighted or flaming objects and the deliberate setting fire to property in built‑up and densely populated areas is not a potent factor in the present case, despite the judge’s reference to two fires being made, a fact which is not referred to in the Summary of Facts.  Notwithstanding that reference, Mr Lau has accepted that the applicant had nothing to do with any fires being lit.  On the other hand, as he rightly points out, 29 police officers were injured in the present case, whereas only a dozen or so officers were injured in Yeung Ka Lun[18].

27.  In my judgment, although the facts of the present case were bad, I consider it is reasonably arguable that the facts in Yeung Ka Lun were worse.  I shall grant leave on this basis, although it may be that the Court of Appeal could consider, as Mr Lau has advocated, that the ultimate sentence was not manifestly excessive in view of the generous discount for the applicant’s medical condition.  That will be for the Court to decide. For my part at this stage, I am satisfied that it is reasonably arguable that the starting point was too high.

28.  I am not so persuaded, however, that the other complaints under Ground 1 are realistic.  The judge had plainly watched the video footage and was well aware of the scale of the riot and the relative strengths of either side, however accurately or inaccurately he quantified their respective numbers in general terms in his Reasons for Sentence.  As for whether the applicant shook the lamp post loose or merely shook an already tilting lamp post does not seem to me by itself to be a material issue affecting sentence.  Indeed, earlier in his Reasons for Sentence, the judge said of the group that “some of them got bricks from the floor of a signpost which they shook loose”[19].  I do not read the judge’s Reasons for Sentence as suggesting that the applicant managed this action singlehandedly.  This is a rather minor and insignificant point.

29.  However, given that the thrust of the appeal on which I am prepared to grant leave is that the starting point was manifestly excessive, when compared with other relevant sentencing authority (namely, Ground 1(a)), the matters raised in Ground 1(b) and (c), whilst they may not in themselves be sufficient to justify leave being granted, do engage the issues of the seriousness of the riot and the extent of the applicant’s participation, whether the judge erred in his appreciation of the evidence or not.

30.  In those circumstances, although I am not prepared to grant leave on Ground 1(b) and (c) as discrete grounds of appeal, it is always open to the applicant’s counsel to refer to these matters in the context of submitting what the starting point should have been on the facts of this particular case.