HKSAR v. TANG HO YIN

CACC 113/2018

[2019] HKCA 611

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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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  On 11 April 2018, the appellant was sentenced to 2 years and 10 months’ imprisonment by HH Judge Yip in the District Court, following his plea of guilty to a charge of riot, contrary to section 19(1) and (2) of the Public Order Ordinance, Cap 245. On 16 April 2019, the appellant was granted leave to appeal against sentence by the Single Judge[1] on the basis that it was reasonably arguable that the starting point taken by the sentencing judge was too high.

2.  On 28 May 2019, having heard argument from the parties, we dismissed the appeal and said we would hand down our reasons in writing in due course.  These are our reasons.

The facts

3.  The particulars of the charge were that the appellant on 9 February 2016, at Shantung Street and Nathan Road in Mongkok, Kowloon, together with other persons, took part in a riot.  The riotous events, which formed the background to the charge, occurred in the evening of 8 February and the early hours of 9 February 2016.  During that period, police officers performing their duty to maintain public order were confronted and violently attacked by a large number of persons.  It is common knowledge that the riot, in which the appellant admitted being involved, was part of wider disturbances in the adjacent areas of Mongkok.

4.  In the case of the appellant, it was 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 some 60 police officers were attempting to disperse the crowd by forming a checkline (“the checkline”) at Shantung Street near the junction with the southbound carriageway of Nathan Road.  At the time, a group of between 100 and 200 people, which included the appellant, assembled in Shantung Street facing the police, about 10 to 20 metres in front of the checkline.  The group kept attacking police officers by hurling various objects such as bricks and glass bottles at them, despite repeated warnings from the police to desist and disperse.  The appellant was captured on police video as one of the persons in the front line of the group who threw an object at the checkline, as others also hurled 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 along 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 degree to the upper and lower bodies, as well as the heads, of some 29 police officers were occasioned, which included tenderness, abrasions, lacerations, swelling, bruising, and bone fractures[2]. 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 protective shields held by an officer was damaged.

Arrest of the applicant and his admissions

7.  The appellant was not apprehended at the scene but was arrested on 10 November 2016 near his home.  He admitted under caution that he had shaken loose 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, while others were also hurling bricks at the police.  He further claimed that he did so in order to scare the police away.

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

Observations on the evidence by the judge

9.  Having watched video footage of the riot, which was referred to in the Summary of Facts, 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[3]. We note, however, that the prosecution had informed the court, upon its specific enquiry at an earlier hearing, that there were around 60 police officers at the scene facing between 100 and 200 rioters[4].  The group of rioters had assembled on the carriageway of Shantung Street at a distance in front of the checkline.  Other than the persistent hurling of missiles, such as bricks and glass bottles, at the officers, the judge also referred to the lighting of two fires in the vicinity[5]. However, it should be noted that the Summary of Facts contained no reference to fires being set, although there were fires observable in other parts of Mongkok later that morning.  Mr Lau, for the respondent, accepts that there were no fires being lit at this time and place in this part of the disturbances.  We shall return to the significance of this matter later in our judgment[6].

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

Mitigation

11.  The appellant 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 the circumstances were more serious than suggested[7].

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 appellant suffered from Attention Deficit/Hyperactivity Disorder (“ADHD”), a condition with which he had been diagnosed since primary school.  He had since been treated with medication, but had ceased the medication because it caused him insomnia.  Since impulsiveness was a common characteristic of ADHD behaviour, Dr Hung concluded that the appellant 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”[8]. Dr Hung recommended treating the appellant’s condition with a new psychiatric medication, which posed less risk of sleep disturbance.  He considered that with adequate treatment, the risk of the appellant re‑offending was low.

Reasons for sentence

13.  The judge addressed the principles and considerations relevant to the offence of riot discussed in various authorities, both in England and Wales and in Hong Kong: namely, R v Pilgrim[9], which was adopted in Attorney General v Tse Ka Wah & Others[10] and Secretary for Justice v Cheung Chun Chin & Others[11]; R v Caird & Others[12]; and R v Keys & Others[13], which held that the acts of a rioter should not be considered in isolation.  He also considered certain sentences passed at first instance in this jurisdiction; namely HKSAR v Hui Ka Ki & Others[14], HKSAR v Yeung Tsz Hin Chris & Others[15] and HKSAR v Yeung Ka Lun[16], 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, to which we shall make further reference later, was handed down a week after sentence was passed in the present case, the Court of Appeal describing the starting point of 5 years’ imprisonment adopted by the trial judge for the offence of riot as appropriate[17].

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 of police officers injured and their injuries were astonishing;

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

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

(e) he admitted to have taken part in shaking loose a signpost, from the base of which other rioters picked up bricks.

The judge further commented that the appellant’s actions were an “egregious and wicked way to have fun at the expense of the safety of others”[18].

15.  The judge discounted the starting point of 5 years by a full one‑third for the appellant’s plea of guilty, thus reducing the sentence to 3 years and 4 months’ imprisonment.  He then noted Dr Hung’s opinion that the appellant 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, as well as 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.  It is submitted on behalf of the appellant by Mr Douglas Kwok, with him Mr Marco Li, that the starting point of 5 years’ imprisonment adopted by the judge was manifestly excessive.  He contended that it was wrong to choose the same starting point of 5 years’ imprisonment adopted by the sentencing judge in Yeung Ka Lun, when the circumstances of that case were significantly more serious than those of the present case.  For the applicant in Yeung Ka Lun had been convicted of two offences, namely riot and arson, in circumstances where, during a riot in an adjacent street in Mongkok some hours later, he had set fire to material next to the LPG tank of a taxi which had been immobilised and had its windows smashed. 

17.  He argued that the starting point should have been in the region of 4 years’ imprisonment, citing in support the sentences passed at first instance on D4 and D5 in the trial of HKSAR v Mok Ka To & Others[19], which were proceedings arising out of yet another incident of riot during the disturbances in Mongkok on the same night.   Acknowledging, as did the judge in Mok Ka To, that D4 and D5’s culpability was not to be limited in the context of a riot by their own acts of merely throwing one or two bricks, Mr Kwok submitted that the trial judge in that case had conducted a thorough review of other sentences passed in respect of the same riots and concluded that 4 years’ imprisonment was an appropriate starting point.

18.  As for the further discount of 6 months for the appellant’s medical condition, Mr Kwok urged us not to interfere with what was a proper exercise of discretion by the sentencing judge, on the basis of evidence which he accepted.

Respondent’s submissions

19.  Mr Derek Lau, on behalf of the respondent, accepted that in the material and excerpts of video recordings referred to in the Summary of Facts before the judge, there was no mention of two fires being set by the rioters.  Nevertheless, the facts were still extremely serious.  He pointed out that the police were significantly outnumbered by the rioters, with 29 officers sustaining injuries from numerous missiles being intensively thrown at them over the course of 12 minutes and by being chased and attacked, notwithstanding that they had helmet and shield protection.  Moreover, the appellant was an active participant, standing at the forefront of the crowd confronting the police 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.  Mr Lau impressed upon the Court that the riot occurred in a very crowded and densely populated area of Kowloon 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 submitted that the Court should look at the ultimate sentence received by the appellant, which included an extremely generous discount for the appellant’s medical condition. In the circumstances, it could not be said that the sentence of 2 years and 10 months’ imprisonment was manifestly excessive.

Discussion

22.  For any society that has as its cornerstone the rule of law, public order is an essential constituent element which serves to promote the safe, equitable and lawful functioning of that society.  That is not to say that its citizens cannot articulate their views, ventilate their grievances and demonstrate their objections emphatically and openly within the law.  However, if they transgress the law in so doing and imperil that essential constituent element, then the rule of law will inevitably suffer.  As the English Court of Appeal in Caird[20] declared, in the context of a case of a riot in Cambridge in 1970[21]:

“... this Court feels it necessary to advert to the clear line that exists between the freedom of citizens to assemble peaceably in a permissible place to express their views in a lawful manner, a right which the courts always safeguard, and the unlawful act of doing something which threatens a breach of the peace.”

The Court continued[22]:

“… it cannot be too plainly stated or too widely known that the moment when men join in an attempt to overpower the police who are performing their protective duties, that line has been considerably overstepped, and every person joining in the mob effort for that purpose is committing a grave crime even if he is not identified as having committed some specific assault or some specific piece of malicious damage.”

23.  Some forty years later, following the appalling incidents of public disorder which took hold in various English cities over six days in August 2011, the Court in R v Blackshaw & Others[23] reaffirmed the duty of the courts when dealing with such offences[24]:

“There is an overwhelming obligation on sentencing courts to do what they can to ensure the protection of the public, whether in their homes or in their businesses or in the street and to protect the homes and businesses and the streets in which they live and work. This is an imperative. It is not, of course, possible now, after the events, for the courts to protect the neighbourhoods which were ravaged in the riots or the people who were injured or suffered damage. Nevertheless, the imposition of severe sentences, intended to provide both punishment and deterrence, must follow. It is very simple. Those who deliberately participate in disturbances of this magnitude, causing injury and damage and fear to even the most stout-hearted of citizens, and who individually commit further crimes during the course of the riots are committing aggravated crimes. They must be punished accordingly, and the sentences should be designed to deter others from similar criminal activity.

This is not new found sentencing policy. In the context of a riot in Cambridge some 40 years ago, this Court observed:

“When there is wanton and vicious violence of gross degree the court is not concerned with whether it originates from gang rivalry or from political motives. It is the degree of mob violence that matters and the extent to which the public peace is broken…

Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who by weight of numbers pursued a common and unlawful purpose. The law of this country has always lent heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers…

In the view of this Court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.  R v Caird [1970] 54 Cr App R 499 at 506.”

This approach reflects consistent sentencing policy for many years and continues in force today.”

24.  Three important principles may be derived from these two authorities: firstly, the gravity of the offence of riot is not to be judged merely by what the individual did (or did not do), but by what the group to whose number he lent his support did; secondly, the offence may be aggravated by the commission of other crimes during the course of the riot; thirdly, those who resort to the company and association of others in order to inflict widespread violence and destruction must be strongly deterred.  Of course, not all riots are the same in terms of scale and seriousness, as the facts and sentences passed on the various applicants in Caird and Blackshaw to some extent demonstrate.  In some, the disturbances are caused by rival groups or gangs, in which the police find themselves trying to keep order: in others, the police are themselves the target of group aggression.  In identifying the seriousness of the riotous behaviour with which a particular court is concerned, the Court in Pilgrim[25] considered that[26]:

“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.”

25.  This statement in Pilgrim was adopted and elaborated upon in respect of riots which target law enforcement officers in Yeung Ka Lun[27], where the Court was dealing with an applicant involved in the same riotous events with which we are concerned, but a few hours later in an adjacent part of Mongkok.  The Court held[28]:

“Considering the number of offenders, the nature and level of violence, the duration of the offence, the nature and extent of the nuisance caused to the public, the damage done to society including community relations with the police and the burden of public expenses to be borne, the present case is no doubt an extremely serious instance of a breach of the law.”

26.  Applying these principles, it does not seem to us material whether the appellant threw one brick, as Mr Kwok suggests, or more than one brick, as he appears to have admitted in the Summary of Facts when showing the police “the place where he hurled bricks at the police”[29]. We have ourselves watched the video recordings of events on 9 February 2016, which form part of the Summary of Facts admitted by the appellant, and the appellant is clearly shown as one of a large group of rioters directly confronting the police, who were plainly outnumbered.  At that time, the police were being subjected to a hail of bricks and bottles from the rioters, who were assembled together in a phalanx of almost military formation.  By associating himself with the rioters, positioning himself in the front line of that phalanx and throwing a brick (or bricks) at the police, he was clearly lending support and encouragement to others in the group to violently challenge and attack the police with missiles.

27.  Had events stopped there, the riot would have been bad enough.  But, of course, the inevitable danger of any highly charged confrontation is that violence that is not contained or controlled will escalate; particularly where law enforcement officers are heavily outnumbered.  Such an escalation may result in widespread damage, arson, looting, injury and even death.

28.  In the evidence presented before the judge in the instant case, as a result of the persistence and intensity of the attack from the rioters, police officers were unable to carry out their dispersal action and were forced to retreat instead down Nathan Road under a hail of missiles.  A large number of rioters then gave chase to the retreating officers, some of whom became separated from their fellow officers in the ensuing melee, hurling objects at them and kicking and beating them as they fell to the ground.  As a result, 29 police officers were injured, some of them seriously, as summarised above[30].

29.  The question remains as to what the appropriate starting point should be for the appellant’s involvement in this particular riot.  As we have said, to isolate the appellant’s actions from the riotous behaviour to which he attached himself can be unrealistic and misleading. Equally, to compartmentalise the events of that night in Mongkok as individual riots is to underplay the overall seriousness and intensity of the disturbances, which lasted for several hours.  The particular incident in which the appellant was involved was plainly part of an ongoing battle on the streets of Mongkok by mobs of organised rioters, acting in almost military formation, whose sole function was to challenge the police, break through the checkline, overpower them and physically attack them.  Members of the public, witnessing these scenes on the street or on television, could only look on in horrified disbelief, and wonder why a civilised society which prides itself on the rule of law should have to tolerate the kind of deliberate violence that was meted out to law enforcement officers who were doing their duty in trying to protect public order and preserve the peace.

30.  In Yeung Ka Lun, which represents the only other case to have come before the appellate courts so far arising out of the disturbances in Mongkok on 8 and 9 February 2016, this Court dismissed an appeal by an applicant who had been charged with offences of riot and arson, arising from an incident in Soy Street, Mongkok some three hours after the events with which we are concerned.  The applicant had been part of a large group of rioters, most of them masked, who threw bricks prised from the pavement at police, smashed the windows of a taxi and set it ablaze, and hurled flaming or burning objects, as a result of which the awnings of nearby shops were set on fire.  The applicant was specifically found to have placed a burning object at the rear wheel of the taxi in order to set it on fire.  The Court held that the applicant’s purpose was to damage the taxi and cause even greater confusion at the scene, observing that had the LPG tank of the taxi been ignited and exploded, the resulting casualties and damage to property would have been unimaginable.  The maximum penalty for riot is 10 years’ imprisonment: the maximum for arson is life imprisonment.

31.  The trial judge in Yeung Ka Lun had adopted a starting point of 5 years’ imprisonment for the riot offence, with a concurrent starting point of 4 years and 3 months’ imprisonment for the arson offence.  The Court dismissed the appeal.  We do not read the Court’s judgment as laying down a starting point of 5 years’ imprisonment for facts as aggravated as these; rather, it upheld the trial judge’s sentence as not manifestly excessive and dismissed the appeal.  In our judgment, any violent disturbance in which fires are deliberately lit in heavily built up areas of this city, with its obvious dangers and consequences, is an aggravated form of riot.

32.  Having said that, and although there are obvious connections and parallels between this case and that of Yeung Ka Lun, we agree with Mr Kwok that there is also an obvious distinction.  In the case before us, there is no evidence that this part of the disturbances in Mongkok, at this time of night, involved the deliberate lighting of fires.  As we have said, Mr Lau accepts as much and has properly accepted that the judge’s observation of fires being lit came from viewing a later part of the video recording produced before the judge, which concerned another part of Mongkok at a later time on 9 February 2016, when there is no evidence that the appellant was still at the scene.  Strictly speaking, this part of the video recording was outside the terms of the Summary of Facts admitted by the appellant.

33.  Nevertheless, we are of the view that the starting point appropriate to the case of this appellant for the offence of riot should have been 4½ years’ imprisonment.  With a full one-third discount to which the appellant was entitled for his early plea, the sentence should have been 3 years’ imprisonment.

The ADHD factor

34.  The judge gave the appellant a further discount of 6 months’ imprisonment in light of the psychiatric report that he suffered from ADHD, which was said to have accounted for the impulsive way he involved himself in the riot, without fully recognising the potential consequences of his actions.  We have to say, with respect to the judge’s finding, that we have considerable reservations, having looked at the video recordings of the incident ourselves, that the appellant might have been drawn impulsively to the scene to throw a brick (or bricks) at the police for fun.  He was, as we have observed, in the front line of a phalanx of what appear to be organised rioters challenging the police and hurling missiles at them over a sustained period of time.  He would readily have known exactly what he was doing: indeed, he admitted playing his part in earlier shaking loose a lamp post in order to supply his fellow rioters with ammunition to throw at the police.

35.  Nor do we accept that his condition, the control of which he had himself decided to forgo, could conceivably amount to a reason, let alone an excuse, for his involvement in such a serious offence.  Those who suffer from such conditions must equally be deterred from voluntarily involving themselves in mob violence.

36.  We would not have given the appellant any discount for his medical condition, which in no way explains, excuses or mitigates his actions and involvement in this offence.  However, we shall leave the ultimate sentence unaltered, which effectively means that the appellant has derived an extra windfall discount of 2 months he did not deserve.

37.  It was for these reasons that we dismissed the appeal.