HKSAR v. SUM CHUN KIT

DCCC 372/2020

[2021] HKDC 452

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 372 OF 2020

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of riot, contrary to sections 19(1) and (2) of the Public Order Ordinance, Cap 245, on 3 November 2019.

2.  The facts admitted show that, on 2 November 2019, several thousand protesters gathered in Tsim Sha Tsui.  They eventually retreated to Mong Kok.  By 2100 hours, hundreds of people were gathered at the junction of Nathan Road and Argyle Street.  Barricades were set up using metal railings, road signs and rubbish.  East and South bound traffic was blocked.

3.  At around 2 am, a fire was set at Nathan Road near Argyle Street by several culprits.  The defendant was seen to put garbage on the fire at about 2.03 am. 

4.  Shortly after that, another fire was set outside exit C1 of Mong Kok MTR station.  The defendant was observed putting Styrofoam boxes and wooden pallets onto the fire to increase its severity.  This fire caused damage and burnt the sliding gate, the ceiling, the floor, the ceiling tiles and the staircase of the station.  The damage to the station is estimated at $10,400.  At the time the fire was set, the station was closed.

5.  The defendant was eventually arrested on 31 December 2019.  He made admissions after arrest and co-operated with the police in their investigation.  In summary, he admitted that he had joined the demonstrators in Mong Kok at around 0030 hours on 3 November 2019.  He had thrown items on the road and put items on a fire that had been set by others, and he did that in order to accelerate the burning.  He also put Styrofoam boxes over the fire by the C1 exit of the MTR station.  He had worn a mask to avoid identification.  He had done these actions for fun.  He had left some time after 2 am and went home. 

6.  In summary, the defendant admits the 10th paragraph of the admitted facts, which are that at all material times the defendant, together with other persons unknown, took part in a riot at Nathan Road near the junction of Argyle Street in Mong Kok, in that they committed acts of breach of the peace including setting fire and accelerating fire in the middle of the road and outside exit C1 of Mong Kok MTR station respectively, and on that basis the defendant has been convicted of the offence to which he pleaded guilty.

7.  As far as the defendant’s background is concerned, that can be seen initially from an antecedent statement taken in the course of investigation and produced on 3 March 2021.  The defendant is now aged 20.  He has no conviction record.  He was a cook and porter prior to his current job as a bartender.  His health condition is normal.

8.  These bare facts have been fleshed out by both mitigation and by detailed reports taken on the defendant from the Probation Services and also by the Correctional Services Department, when the defendant was assessed for his suitability for a Training Centre order. 

9.  The Probation Services report is detailed and helpful.  It sets out the defendant’s background and how he came to be in this position before me today.  I will read some extracts from the conclusion because I find it is a very well-considered and detailed report and is very helpful to me. 

10.  It says that the gathered information reveal that the accused, now aged 20, grew up in a tragic family where he was born as an illegitimate child and abandoned by his parents.  The accused was under the care of his maternal grandparents since birth.  It says that his academic performance has been far from satisfactory. 

11.  Nevertheless, the defendant would not continue his studies after school too but maintained gainful employment with income. The accused - that is the defendant - has made continuing stable financial contributions to his maternal grandparents, which is particularly important as both the grandparents are retired.  The defendant has not only provided financial support but also care and concern to his maternal grandparents.

12.  The report also shows that the defendant has co-operated with the police since the day after he was arrested and has pleaded guilty in court.  He took part in the incident, he says, merely for fun and he had no relationship with any political stand or anti-government position.

13.  A social worker who has known the defendant for many years has praised the defendant as a good hearted and caring person who had not intended to destroy the peace of society.  The defendant, according to the Probation Services, is remorseful and responsible for his wrongdoing and has learnt a bitter lesson which he said he would not forget.

14.  The defendant was in fact working right up until the time that he was remanded for this offence and was working for PARKnSHOP at the time.

15.  I had also noted in the report that when talking to the Probation Services the defendant said that, while looking back, the defendant realised he was foolish.  He has admitted his responsibility in the incident from the first day, co-operated with the police in investigation and pleaded guilty in court.

16.  No recommendation of course is made in the background report as none was asked for by the court.

17.  As far as the report for Commissioner of Correctional Services is concerned, the defendant is of course aged only 20 and is said to be mentally and physically fit for detention in a training centre.  He is considered suitable for detention in a training centre where he would undergo comprehensive programmes that the court is well aware of.  The defendant in fact expressed that as a preference for sentencing in his own case.

18.  I now turn to the suggested approach to sentence in these cases.

19.  The appellate level courts have considered the appropriate approach to sentence.  

20.  I have been referred to the case of HKSAR v Leung Tin Kei [2020] 4 HKLRD 462 and at page 463.  In that case, the appellate court set out the general principles of approach that the court must take in its approach to sentencing.  So the general principles applicable to sentencing of riot were:

(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;

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

21.  Generally, the factors to be taken into account in sentencing included:

(a)  whether the riot was spontaneous or premeditated and how detailed the plan was;

(b)  the number of participants;

(c)  the degree of violence used, including whether weapons were used, what kind and quantity;

(d)  the scale of the riot, including the time, location and the number of areas;

(e)  the duration of the riot, including whether it continued after repeated warnings;

(f)  the harm caused by the riot to persons and properties;

(g)  the imminence and gravity of threat caused by the riot;

(h)  the nuisance caused to the public by the riot;

(i)  the impact of the riot on community relations;

(j)  the burden on public expenditure caused by the riot;

(k)  the offender’s role and degree of participation in the riot; and

(l)  whether the offender committed any other offences during the riot.

22.  The sentence would depend on the circumstances of each case, with the sentencing in other cases not providing much guidance.

23.  Those are the general principles that I will need to consider and bear in mind when determining the level and appropriate sentence for the defendant.

24.  I have also considered the case of HKSAR v Yeung Ka Lun [2019] 1 HKC 296, where the defendant faces charges of riot and arson when participating in a riot by setting fire to an urban taxi intending to damage it.  This related to offences in Mong Kok at an earlier period. After conviction after trial, a starting point of 5 years’ imprisonment was adopted for the riot charge and 4 years 3 months for arson.  Those sentences were described by the Court of Appeal on appeal as not being manifestly excessive.

25.  I have been referred to a number of mitigating factors which I have been asked to consider when determining the appropriate level of sentencing. 

26.  Firstly, the defendant did not originate either fire.  That is clear from the admitted facts.  He was involved in maintaining fires that were already set. 

27.  The defendant saw the disturbance on television and did not arrive until 0030 hours on 3 November although the civil disturbance had been in operation for a long period before that, where it is said that the number of protestors had reduced down to the level of 20 to 30. 

28.  The defendant’s participation in the riotous situation was not as a leader. 

29.  No weapons were used that evening nor injuries suffered that the court is aware of.

30.  The defendant in his actions, his intention was to damage property not persons. 

31.  The MTR station and its exit was closed at the time when the fires were set and the defendant added the accelerant materials to them. 

32.  The defendant at the time of this incident was 19 years of age.  He exercised very poor judgment and is deeply remorseful and regretful.  He has a clear record.  He has a history that I have read of volunteering and is civic minded.  He has pleaded guilty at what is the earliest opportunity and co-operated with investigators.

33.  Furthermore, he has offered to or may at this point have paid compensation to the MTR Corporation, which will cover the cost of all the damage caused by the fire.

34.  When approaching sentence, the court must of course consider the fact that the defendant has offered compensation as a mitigating factor.  Restitution can be and is a mitigating factor the court must consider. 

35.  In the case of HKSAR v Leung Shuk Man [2002] 3 HKC 424, the Court of Appeal described restitution as a powerful factor in mitigating, which justified a reduction in sentence beyond the usual one-third. 

36.  In HKSAR v Tsang Pui Yu, Shirlina [2014] 5 HKC 111, the Court of Appeal also said there must be a specific discount in addition to the one-third discount for pleading guilty awarded to an offender who makes restitution.

37.  Now, I will outline my general and specific approach for this defendant, taking into account both the aggravating factors set out in the commission of this what is a serious offence, for which a sentence of imprisonment must be imposed, where public property was damaged by fire.

38.  I consider firstly that although the defendant is said to be suitable for a Training Centre order, given the need for a generally deterrent sentence in respect of the events relating to civil disturbances in November of 2019, I do not consider it would be an appropriate disposal for the defendant in this case.

39.  In sentencing, I bear in mind the factors already iterated earlier.  In respect of the nature of the defendant’s role, his participation, the size and duration of the civil disturbance, and the fact that this occurred during a period of heightened, elevated civil disorder in 2019, where events of this nature took place with regularity, in determining the starting point of sentence, I take into account the true gravamen of the defendant’s involvement relating to the use of a fire to block roads and to cause damage to property in the early hours of the morning.  Naturally, the use of fire to damage property is serious.  However, it belongs to a lesser class of severity in acts of riot where the unlawful violence is intended to cause harm to person.

40.  I note the general starting point adopted in earlier cases of up to 5 years’ imprisonment for riot cases.  I consider the appropriate starting point in this case to be one of 63 months’ imprisonment. The defendant is naturally entitled to his one-third discount from that.  By my calculations, the one-third discount would lead to a final sentence of 42 months’ imprisonment. 

41.  As I have earlier outlined, the defendant is of course entitled to a further discount from that sentence in respect of the restitution that he has and will pay to the court.  I must clearly take into account the defendant’s payment of full compensation and restitution in this case.  I also take into account his youth and his full co-operation with the investigation. 

42.  I will accord a further discount of 3 months’ imprisonment to recognise these mitigating factors. 

43.  That leads to a final sentence in this case, by my calculation, of 39 months’ imprisonment.

(Confirmation of calculation)

44.  That will be the sentence of the court.

(Discussion re compensation order)

45.  The compensation order that was offered of $10,400 is made.  It will be taken from the bail, which will be applied, and the balance will be refunded to the defendant or his representative.