HKSAR v. CC

[English Translation – 英譯本]

HCMA 195/2021

[2022] HKCFI 435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 195 OF 2021

(ON APPEAL FROM WKCC 700013 OF 2020)

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REASONS FOR JUDGMENT

1.  This is a case heard in the juvenile court. The appellant was charged with one count of “possession of an offensive weapon with intent to use it for an unlawful purpose”[1]. He pleaded not guilty to the charge. After trial, he was found guilty by the magistrate[2] and was sentenced to detention in a detention centre. The appellant appealed against conviction. Subsequently, he also appealed against sentence out of time[3].

Prosecution case

2.  The prosecution alleged that on 11 November 2019 at Nathan Road, Mongkok, the appellant, who turned 15 not long ago, had in his possession a laser pointer with intent to use the said offensive weapon for an unlawful purpose.

Prosecution evidence at trial

3.  At trial, the prosecution called four witnesses:

PW1:Police constable 23468, the police officer who arrested the appellant;

PW2:Police constable 11361, the police officer who was responsible for delivering the exhibits from Mong Kok Police Station to the expert’s office for examination;

PW3:Chief Inspector of Police Chan Kiu-chui, the expert who was responsible for examining the laser pointer involved in the case; and

PW4:Police constable 13345, the exhibit officer.

4.  Among the four witnesses, only PW1 was present at the scene and claimed to have seen the appellant’s acts.

PW1’s testimony

5.  At about 6 a.m. on the day of the offence, he was on duty in uniform, patrolling in the vicinity of Nathan Road, Mong Kok, together with other police officers on board a police vehicle.

6.  At 6:30, he and his teammates were instructed to go to the junction of Mong Kok Road and Shanghai Street to handle a small-scale road blocking incident.

7.  At 6:50, the police vehicle he was in was travelling along the fast lane of the southbound carriageway of Nathan Road (in the direction of Tsim Sha Tsui). When the police vehicle reached somewhere near the junction of Nathan Road and Argyle Street, he saw, on his right, three males and one female walking along Argyle Street. They turned left into Nathan Road and proceeded in a northerly direction. Upon seeing the police vehile, the three males and one female walked at a quick pace. Each of them was carrying a rucksack, all of which were bulging and appeared to be containing things.

8.  Finding the behaviour of the four persons suspicious, the police officer alighted from the vehicle, came up to them and intercepted them, one of whom being the appellant. At that time, the appellant was wearing a white jacket, a black T-shirt, a pair of black trousers, a pair of black shoes and was carrying a black rucksack[4].

9.  Having intercepted the appellant, he asked the appellant to produce his identity card and inquired as to why he walked at a quick pace upon seeing the police vehicle. The appellant made no reply.

10.  At his request, the appellant opened the rucksack he was carrying, took out the items therein and placed them on the ground. The rucksack contained the following items:

(1)  a laser pointer with a black casing (the prosecution alleged that exhibit P1 was the said laser pointer);

(2)  a respirator with filter cartridge (which is commonly known as “pig snout” in Cantonese)[5];

(3)  two grey 3M brand masks[6];

(4)  a pair of goggles[7];

(5)  a pair of blue gloves[8];

(6)  a black hood[9]; and

(7)  a black glove[10].

11.  He asked the appellant what use(s) those items were for but the appellant made no reply.

12.  He arrested the appellant for the offences of “possession of an instrument fit for an unlawful purpose” and “possession of an offensive weapon”. As he learnt from the appellant’s identity card that he was only aged 15, and he (the appellant) was not accompanied by a parent or guardian at that time, he decided not to administer a verbal caution to the appellant there and then, but to take him to Mong Kok Police Station.

13.  Upon arrival at the police station, the appellant made no response under caution.

Evidence in respect of handling of the exhibits

14.  PW1 handed over all the aforesaid exhibits found upon search from the appellant’s rucksack, including a laser pointer[11], toPW4[12] for safe keeping.Having made a record of the exhibits, PW4 placed them in a cabinet in his office for about seven days before handing the batch of exhibits over to the exhibit room of Mong Kok Police Station for storage.

15.  More than three months later, on 6 March 2020, PW2[13] retrieved three laser pointers (including exhibit P1) from the exhibit room of the police station and delivered them to PW3’s[14] office for examination.

The expert’s testimony

16.  At trial, despite objections from the defence, the magistrate ruled that PW3[15] could give evidence as an expert witness and the expert report[16] prepared by him could be produced in evidence.

17.  According to the result of the examination conducted by PW3, the relevant item (exhibit P1[17]) delivered to him for examination was a laser pointer with a black outer casing, the model number of which was JD-850. Inside the pointer, there was a Li-ion battery with the voltage marked as 3.7 volts, the brand name of which was Nitecore. However, after it had been measured with the relevant measuring instrument, its voltage was found to be 3.86 volts instead.

18.  After PW3 had put into exhibit P1 the battery that came with it and turned on the device, he found that exhibit P1 was capable of emitting green laser and the wavelength of the green laser it emitted was 532.61nm.

19.  PW3 measured the power of the green laser emitted by exhibit P1 at a distance of 10 cm and 50 m respectively. The maximum power of the laser emitted by P1 at a distance of 10 cm from the measuring instrument was 105.54 mW. According to the international standard IEC 60825 set by the International Electrotechnical Commission, the classification of a laser device depends on the power of the laser emitted by the device at a distance of 10 cm from the measuring instrument. According to the IEC 60825 standard and classification, exhibit P1 should be classified as a Class 3B laser device.

20.  When the laser emitted by exhibit P1 was measured at a distance of 50 m from the measuring instrument, the maximum power was 1.61 mW. Its power density was equal to 4.18 mW/cm², which exceeded the corneal Maximum Permissible Exposure by 1.6 times (2.55 mW/cm²).

21.  PW3 pointed out in his report that ocular exposure to beams emitted by Class 3B lasers or laser devices is normally hazardous, even if it is only an accidental short-time exposure. If the power reaches 500 mW and the beam emitted is focused and very narrow, the beam may cause minor burns to the skin or even ignite flammable materials.

Defence case

22.  At trial, the appellant did not give evidence or call any witnesses. It was admitted by the prosecution and the defence as a fact that the appellant had a clear record[18].

23.  The magistrate pointed out that the defence’s stance was such that it not only requested to put the prosecution to strict proof but also disputed the following: first, the chain of custody of the exhibits (including P1[19]) the prosecution intended to produce in court; and second, the status of the laser pointer expert witness[20].

The magistrate’s findings

24.  The magistrate found that the four prosecution witnesses were all honest and reliable witnesses and each of them testified truthfully.[21]

25.  The magistrate held that if exhibit P1, the laser pointer in question, were misued, it could certainly be used as an offensive weapon.[22]

26.  The magistrate also held that in view of the way the appellant was dressed and equipped when he appeared at the time and place in question, the only inference to be drawn was that he planned and intended to participate in the unlawful road blocking and/or unlawful protest at Nathan Road or roads in its vicinity.[23]

27.  The magistrate also took the view that the only inference supported by evidence was that the purpose of the appellant carrying the laser pointer was that he planned to participate in the imminent road blocking or the imminent protest in the vicinity of Nathan Road; and that in the event that people holding different views interfered with or thwarted his act of road blocking or unlawful protest, or in the event that he came across the police, he would shine the said laser pointer at the eyes of those peole or police officers.[24]

28.  The magistrate held that the appellant planned and intended to use exhibit P1, the laser pointer in question, for the purpose of causing injury to others, namely to use it as an offensive weapon. Accordingly, the magistrate held that the appellant planned and intended to use the said laser pointer for unlawful purposes.[25]

Grounds of appeal

29.  In the appeal, the appellant was represented by Mr Jeremy Cheung of counsel[26]. The grounds of appeal he advanced on behalf of the appellant can be summarized as follows[27]:

(1)  The magistrate erred in law in drawing the following inference based on sheer circumstantial evidence by way of inferential reasoning: that the appellant was equipped with a laser pointer with intent to participate in the act of public nuisance (or imminent unlawful protest) in the vicinity.

(2)  The conclusion drawn by the magistrate was nebulous and far-fetched. To make assumption upon assumption, in the absence of clear evidence, was tantamount to finding the appellant guilty of some uncharged offences, which was close to reversing the onus of proof by requiring the appellant to provide a reasonable explanation of his conduct so as to dispel the suspicion.

(3)  The magistrate failed to give sufficient regard to whether the prosecution had proved that the chain of custody of the exhibit, the laser pointer, was up to the requisite standard.

(4)  The magistrate erred in finding that the prosecution had proved beyond reasonable doubt the chain of custody of the exhibits relating to the laser pointer.

(5)  The prosecution failed to discharge its duty of full disclosure.

(6)  As a result of insufficient disclosure, the defence lost the chance of cross-examining the relevant witnesses and was deprived of the right to a fair trial as protected by the Basic Law and the Bill of Rights.

30.  Mr Cheung also submitted that as the Court of Appeal had granted, in a case[28], a certicate that points of law of great general or public importance were involved in the construction of some of the provisions of section 17 of the Summary Offences Ordinance[29] under which the appellant was prosecuted, it was likely that the case would be determined by the Court of Final Appeal. However, Mr Cheung also accepted that in the present case, the appellant was expressly charged with possession of an offensive weapon, which seemed to be outside the scope of the matter under consideration in the aforesaid case, and therefore did not insist on having the present case dealt with only after a decision has been given in that case.

Discussion and Consideration

31.  Grounds of appeal (3) to (6)[30] are all related to the issue of the chain of custody of the exhibits. I shall first deal with them because if the grounds of appeal in relation to the chain of custody of the exhibits were made out, the conviction would probably be rendered unsafe. Grounds (5) and (6) thereof are related to matters relevant to the disclosure which, in my view, can be dealt with first, and these two grounds will be dealt with together.

Grounds of appeal (5) and (6)

32.  Both of these two grounds of appeal were derived from the appellant’s allegation that the prosecution failed to fully discharge its duty of disclosure in respect of the material relevant to the chain of custody of the exhibits, thus rendering the trial unfair.

33.  Mr Cheung submitted that the prosecution failed to disclose the witness statements of the two officers who were then on duty at the exhibit room and a document entitled “Property Details”, and the failure to discharge its duty of disclosure caused the defence to lose the chance of cross-examining these two officers and deprived the appellant of the right to a fair trial as well.

34.  The relevant officers were:

(1)  an assistant clerical officer; and

(2)  senior police constable 53650.

Both of them had taken part in handling the exhibits seized from the appellant and other persons arrested on the same day.

35.  In support of these two grounds of appeal, the appellant applied to adduce the aforesaid document and witness statements of the two officers as fresh evidence. Initially, the respondent opposed the application on the grounds that the conditions set out in the Ordinance and authorities were not satisfied. After Mr Cheung had made it clear that the only purpose of the application was to bring to the notice of the court the contents of the material which the appellant considered to be disclosable, the respondent no longer objected to the application and I admitted the said document andtwo witness statements as fresh evidence but that was only for the purpose of making myself aware of their contents so as to consider whether they are disclosable material and, if they are, the consequences of non-disclosure.

36.  The Court of Final Appeal in HKSAR v Lee Ming Tee[31] expounded at great length the principles governing the duty of disclosure:

(1)  The prosecution’s duty of disclosure has its foundation in the commom law principle that the defendant is entitled to the right to a fair trial (which entails the defendant being entitled to adequate knowledge of the prosecution case) and the general principle of open justice;

(2)  The prosecution’s duty is to disclose to the defence relevant material which may undermine its case or advance the defence case. Disclosable material refers to the following categories of materials which can be seen on a sensible appraisal by the prosecution:

(i)    to be relevant or possibly relevant to an issue in the case;

(ii)   to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; and

(iii)  to hold out a real prospect of providing a lead on evidence which goes to (i) and (ii);

(3)  In this regard, relevant considerations include the credibility of prosecution witnesses;

(4)  The aforesaid duty is not limited to the disclosure of admissible evidence. Even if the material itself is not admissible, it may lead to evidence which is admissible and, therefore, may be relevant and useful for cross-examination of a prosecution witness on credit;

(5)  The duty of disclosure is imposed upon the prosecution generally (namely the Department of Justice in the context of this case). The said duty extends to disclosure of material in the possession or control of the investigating agency;

(6)  Non-disclosure to the defence of relevant material, even if not attributable to any breach by the prosecutor of his duty to disclose, can result in material irregularity and an unsafe conviction.

37.  As illustrated by case law, disclosure ought to be proactive[32].

38.  Havinggone through the aforesaid three sets of material, I am of the view that, judging from their contents, all of them are disclosable.

39.  Ms Karen Ng, Senior Public Prosecutor, for the respondent informed the court that at first instance, the defence initially stated that it would not dispute the chain of custody of the exhibits, and yet several days before the trial[33], the defence changed its stance and indicated that it would dispute the chain of custody of the exhibits.

40.  The prosecution therefore took statements from the two police officers who were on duty at the exhibit room as stated below and disclosed that:

(1)  senior police constable 2031 retrieved the laser pointer from the exhibit room and handed it over toPW2 on 6 March 2020[34]; and

(2)  senior police constable 10160 received the laser pointer from PW2 on 3 April of the same year and put it in storage thereafter.

For the purpose of the chain of custody of the exhibits, the documents disclosed included one “Property Movement History Report” which itemized the movement records of the exhibits and the identities of the police officers responsible for handling them. It can be seen from this document that senior police constable 53650[35] was one of the officersresponsible for handling the exhibits.

41.  Ms Ng said that upon receiving the aforesaid disclosed documents, the defence had indicated to the prosecution that:

(1)  the chain of custody of the exhibits relating to the exhibit room would not be disputed; and

(2)  there would be no need for the prosecution to call the police officers of the exhibit room.

42.  Under the circumstances, the prosecution did not take any statement from the two officers referred to in para 34 above at that time[36], nor did it call the officers of the exhibit room as witnesses at trial.

43.  Ms Ng argued that had the defence sought to challenge the chain of custody of the exhibits relating to the exhibit room, it could have easily asked the prosecution on the first day of the trial to tender all the relevant officers who had handled or guarded the exhibits in this case while they were stationed at the exhibit room for cross-examination by the defence. At that time, having considered the documents served by the prosecution, the defence chose and decided of its own accord not to dispute the chain of custody of the exhibits in respect of the storage of the laser pointer in the exhibit room. It puts the cart before the horse as the appellant not only reversed the stance he adopted at trial but, in turn, alleged that the prosecution had caused him to lose the chance of a fair trial.

44.  I appreciate that, in real-life situations, having a discussion on the matter of disclosure between the two parties may enhance efficiency. If the course of events as described by Ms Ng were indeed true, it would be more difficult for the prosecution to come to a proper judgment on the matter of disclosure.

45.  The Court of Appeal in HKSAR v Ip Tsz Yau[37] pointed out that the prosecution’s duty of disclosure is a continuing one, and that the duty not only exists before trial, but continues to exist up until the conclusion of the trial.

46.  Havinggone through the transcript of the trial proceedings, I am of the view that by the trial stage at the latest, the defence’s position that it would dispute the chain of custody of the exhibit, the laser pointer, was clear and fully understood by the magistrate and that the prosecution probably would not go so far as to have any misunderstanding.

47.  As shown in the transcript, when the magistrate enquired of the prosecution if it was the case that there were no admitted facts in respect of the chain of custody of the exhibits, the prosecution’s response was: “No, there aren’t. (We) can’t make it.”[38].And the magistrate appeared to have understood that the chain of custody of the exhibits was in dispute, and therefore considered that the exhibits should be marked as provisional exhibits. Shortly after that, following an exchange with the defence counsel, the magistrate stated expressly that it was his understanding that the chain of custody of the exhibits relating to the laser pointer was all along in dispute, and by that stage, he also came to understand that there was the same dispute concerning some other exhibits and suggested the issue be dealt with as a special issue.[39]

48.  Subsequently, the defence counsel confirmed that the defence would only dispute the chain of custody of the exhibit, the laser pointer, and would dispute it from beginning to end, including how the exhibit was handled in the police station.[40]

49.  More often than not, it is not necessary for the defence to state explicitly in advance whether the chain of custody of an exhibit is in dispute. It will become known when the prosecution explores whether an agreement on admitted facts in this regard can be reached. If there are no admitted facts to sufficiently prove the integrity of the chain of custody of an exhibit, the prosecution will be required to adduce corresponding evidence so as to prove the integrity of the chain of custody of the exhibit. This requirement is in fact the same as that which requires the prosecution to adduce evidence to prove any of its allegations. If there are no admitted facts, the prosecution will be required to adduce evidence to prove it. If the prosecution fails to adduce sufficient evidence to prove the integrity of the chain of custody of the exhibit, the consequence will normally be that the prosecution cannot prove that the exhibit produced at trial is the same item initially seized or cannot prove that the exhibit has never been improperly tampered with.

50.  At trial, the appellant who was represented did not complain that the disclosure made by the prosecution was inadequate, nor did he, by reason of the prosecution’s failure to call the officers who performed the relevant duties at the exhibit room, criticize the prosecution for the error in adducing evidence in that regard in his submissions. The situation seemed to be consistent with Ms Ng’s account that there was a consensus between the parties as referred to in para 41 above. Nevertheless, a safe approach is to have the matter dealt with by way of admitted facts lest there be any misunderstanding or dispute arising therefrom.

51.  In any event, the duty of disclosure is on the prosecution. It is true that the prosecution did not disclose material which is disclosable, yet what consequences this may have on the case depend on the actual circumstances.

52.  Regarding the allegation of causing the defence to lose the chance of cross-examination, I have the following observations:

(1)  Mr Cheung also accepted Ms Ng’s account that from the material disclosed, the defence knew the identities of all the officers who had handled the relevant exhibits except that of the [assistant] clerical officer;

(2)  The fresh evidence did not reveal any material which is unfavourable to the prosecution or detrimental to the chain of custody of the exhibits;

(3)  The evidential burden to prove the integrity of the chain of custody of the exhibits is on the prosecution. In the context of this case, first of all, the focus was on whether the witnesses called by the prosecution were sufficient to make the court sure of the relevant matters that the prosecution was required to prove. The prosecution did not call a certain person as a witness. That was the judgment of the prosecution, which, I believe, was formed in the belief that the evidence adduced in court was adequate and sufficient. That judgment was not free from risk;

(4)  Under the circumstances, if the relevant officers[41] were called, the immediate effect would be that the prosecution’s risk just referred to would be lowered. It is of course possible that the witnesses would be cross-examined when they gave evidence.  However, as far as the actual circumstances of this case are concerned, the absence of the chance of cross-examination would not go so far as to render the trial unfair or the conviction defective;

(5)  Whenthe prosecution did not call the relevant witnesses on its own initiative, the defence was entitled to request the prosecution to tender them for cross-examination. However, the defence made no request despite the fact that it was fully aware of the involvement of the officers of the exhibit room.

53.  In the present context, I do not think the circumstances surrounding the disclosure render the trial unfair or the conviction defective. Accordingly, I find these grounds of appeal are not established. The crux of the matter is whether the prosecution had presented sufficient evidence to the court to prove the matters it was required to prove under the circumstances that the relevant officers were not called and the chain of custody of the exhibits was in issue.

54.  Both grounds of appeal (5) and (6) are not established.

Grounds of appeal (3) and (4)

55.  Mr Cheung submitted that the prosecution failed to prove that exhibit P1, the laser pointer in question, or the laser pointer handed over to the expert for examination, was the one found upon search from the appellant’s rucksack as alleged by the prosecution.

56.  At trial, the magistrate dealt with the issue concerning the exhibits by way of the alternative procedure[42] and gave a detailed account of his reasons for ruling in writing[43].

57.  The magistrate pointed out expressly that the prosecution had to prove that the entire process of the handling of the exhibits was not faulty and that the chain of custody of the exhibits was unbroken.

58.  The magistrate accepted the testimonies of each of the prosecution witnesses and made the following findings of fact:

(1)  From the moment PW1 arrested the appellant until he handed the exhibits over to PW4, the exhibits had always been in his physical custody^[44] and had never been tampered with by anyone.^[45]

(2)  On the day in question, PW1 was only responsible for handling the appellant. As to matters concerning the other arrested persons or exhibits in connection with them, he knew nothing about nor was he quite sure about them. Since he had never come into contact with the other arrested persons or their belongings, there was no possibility of mixing up the appellant’s belongings and those of the other arrested persons.^[46]

(3)  When PW4 received the exhibits from PW1, he did record them clearly on a list. He had all along handled the exhibits seized from the appellant and those seized from the other arrested persons and of other cases separately and independently without mixing them up.^[47]

(4)  Subsequently, the exhibits were locked up by PW4 in a cabinet where they had been kept until 19 Novemeber when he took them out and handed them over to the exhibit room of the police station for safe keeping by the relevant officers.

(5)  When PW2 retrieved the laser pointer from the exhibit room, he must have verified and confirmed the exhibit number and details with the relevant officers at the exhibit room before collecting the exhibit and delivering it to PW3’s office because:^[48]

(i)    When PW2 collected the laser pointer from the exhibit room, a number, namely number 22 had already been assigned to that laser pointer.^[49]

(ii)   Meanwhile, he also collected the other two laser pointers which were unrelated to the appellant and delivered them to PW3. The numbers of the other two laser pointers were 10 and 35 respectively.^[50]

(iii)  On the day of the offence, PW2 did take a cautioned statement from the appellant, during which time the laser pointer in question was shown to him, and therefore, he had a recollection of that laser pointer.^[51]

(iv)    It was not the case that PW2 collected the exhibits at random. When he collected the exhibits from the exhibit room, he noticed that, in an exhibit envelope, there was a sheet of A4 paper on which the laser pointer numbered 22, namely the laser pointer relating to the appellant, was recorded.

59.  The magistrate found that the prosecution had proved beyond reasonable doubt each and every link [in the chain of custody of] exhibit P1 and the process of handling the exhibits. He also found that those exhibits had never been in any way unlawfully tampered with.

60.  In his submission, Mr Cheung pointed out the following evidential circumstances:

(1)  PW3’s description of the item he examined was: “Item Q2: One laser pointer (Model: JD850) in black colour with one battery, brand: NITECORE”[52];

(2)  PW1 made a post-record of the course of arrest of the appellant[53] in his police notebook[54], in which he stated that “a green laser pointer” was found upon serach in the rucksack the appellant was carrying at that time[55];

(3)  During examination-in-chief by the prosecution, PW1 did not describe the colour of the laser pointer that he claimed to have seized from the appellant’s rucksack[56];

(4)  The process of showing exhibit P1, the laser pointer in question, to PW1 by the prosecution was leading throughout[57];

(5)  Under cross-examination, PW1 mentioned that although the laser pointer bore a number, he did not make a record of it[58];

(6)  It was only during re-examination that PW1 said that when he returned to the police station and inspected the laser pointer in question, he noticed that it was inscribed with the number JD-850[59]. Mr Cheung submitted that his assertion that he could remember it accurately 11 months later without the aid of any record ought not to be believed;

(7)  In examination-in-chief, PW4 initially said that the model number of the laser pointer he received from PW1 was JD-350, but he subsequently corrected himself[60];

(8)  On 11 November 2019, PW4 had been assigned to collect the laser pointers the police seized in other cases occurred on the same day[61];

(9)  According to the expert report, when the laser pointer in question was activated, it would emit green laser[62]; and

(10)  In examination-in-chief, PW1 said that he did not activate the laser pointer in question at the time when it was found upon serach[63].

61.  Mr Cheung criticized the magistrate for failing to deal with the apparent discrepancy between the colour of the laser pointer as recorded by PW1 in his notebook shortly after the arrest of the appellant and the colour of the laser pointer as observed by the expert witness when he examined it. Further, it was submitted that as the relevant officers of the exhibit room did not testify in court during the trial, there was no evidential basis for the magistrate to assume that when PW2 retrieved exhibit P1 from the exhibit room of the police station, he must have verified the details of the exhibits with the relevant officers who kept them under their custody[64].

62.  The prosecution has a duty to prove the integrity of the chain of custody of the exhibits. Such a duty is of particular importance to exhibits which are not easily recognizable by their appearance or characteristics. An obvious example is evidence concerning dangerous drugs and body fluid. In the present case, as the relevant exhibits have been examined by the expert, the integrity of the chain of custody of the exhibits is of importance.

63.  Counsel for the defence is under a duty to ensure that his client’s interests are sufficiently protected and is entitled to make a proper challenge to any prosecution evidence. However, it is undesirable to dispute the chain of custody of the exhibits groundlessly. Sometimes there may even be a danger that it will be inconsistent with counsel’s duty of assisting the court in effectively conducting a fair trial. As to whether the chain of custody of an exhibit is intact, generally speaking, some indication can be seen from the material disclosed by the prosecution. Further, if the defence is acting under a relevant instruction, that can be justification for disputing the chain of custody of the exhibit. Where circumstances suggest that the integrity of the chain of custody of the exhibit ought to be called into question, the dispute is not without merit and the defence has a duty to make a challenge. That is the duty of the defence legal representative.

64.  Apart from pointing out the aspects of evidence which might cast doubt on the credibility of the witnesses and the reliability of their testimonies, Mr Cheung also pointed out that the effort taken by PW2 in verification when he collected the exhibits from the exhibit room for delivering them to the expert was insufficient to prove that the item produced at trial must have been the same item seized from the appellant. In particular, PW2 said in his evidence that:

(1)  Under the same case number, there were three laser pointers seized as exhibits[65];

(2)  By the time when he collected the three laser pointers, they had already been assigned the exhibit numbers 10, 22 and 35. PW2 said that the one numbered 22 was the laser pointer relating to the present trial case[66];

(3)  However, the number 22 was not assigned by him[67].

65.  The question for me is: under the circumstances that the police seized three laser pointers separately from different persons in this case and that the officer who assigned the aforesaid numbers was not called, had the prosecution proved that the one produced in court and delivered to the expert witness for examination must have been the one seized from the appellant?

66.  The magistrate had this to say[68]:

“ 80. Second, when he collected the exhibits from the exhibit room, he noticed that, in an exhibit envelope, there was a sheet of A4 paper on which the laser pointer numbered 22, namely the laser pointer relating to the defendant in this case, was recorded. In other words, he did not make any wild guess or collect the exhibits at random.

81. It is true that PW2 admitted that he himself did not make any written record concerning the relevant exhibits. However, doesn’t that mean he must have checked the record kept by the exhibit room before he could decide which laser pointer was in connection with the defendant and have it delivered to Chief Inspector Chan? If he did not verify which laser pointer was in connection with the defendant with the relevant officers of the exhibit room, how could he decide which one to collect?

82. It is plainly difficult for me to believe that PW2 would have entered the exhibit room and collected any item or any laser pointer at random.

83. Moreover, to any police officer or person who was outside the exhibit room the numbers 10, 22 and 35 were completely meaningless. By looking at the 3 sets of numbers 10, 22 and 35 alone without checking against any other information, one simply has no way of knowing to which case or which arrested person they relate.

84. Therefore, the necessary inference to be drawn by any person is that PW2 must have verified and confirmed the exhibit numbers and details with the relevant officers at the exhibit room before retrieving the exhibits and delivering them to the office of Chief Inspector Chan.”

67.  This is precisely what Mr Cheung’s criticism is aimed at[69]. He contended that this finding was not the only reasonable inference supported by evidence.

68.  I agree with Mr Cheung’s submission. In the absence of the testimonies of the relevant officers from the exhibit room, the inference drawn by the magistrate cannot be regarded as safe. I am of the view that this was not the only reasonable inference supported by the evidence adduced at trial.

69.  Amagistracy appeal is conducted by way of rehearing. It is open to me to make a judgment on the evidence accepted by the magistrate and other clear and objective evidence so as to determine whether the magistrate’s conclusion, namely his finding that exhibit P1 was the laser pointer seized from the appellant, was correct or not.

70.  This involves, first of all, the magistrate’s decision on the assessment of the credibility of the relevant witnesses.

71.  The magistrate said that he was of the view that PW1, PW2 and PW4 were all honest witnesses. In setting out his assessment on the credibility of each of the witnesses, the magistrate pointed out that he had taken into account the main issues raised by the defence at trial, including the following matters.

72.  The magistrate took into account the fact that the defence queried why PW1 was able to tell the model number of the laser pointer without the aid of any record. The magistrate believed and accepted PW1’s explanation that he had already noticed that the model number of the laser pointer was JD-850 when he was handing the appellant over to the duty officer for custody in the morning.[70]

73.  The magistrate pointed out that PW1 wrote in his notebook that a “green laser pointer” was found in the appellant’s rucksack at the material time[71], whereas the exhibit involved in the case was a black laser pointer.

74.  As far as PW4 is concerned, the magistrate took into account the fact that the defence queried why he had locked the exhibits in a base cabinet in his office for as long as seven days (12 November to 19 November) instead of handing them over to the exhibit room earlier. The magistratre took the view that matters such as PW4’s failure to use tamper proof envelopes and keeping the exhibits in the base cabinet for as long as seven days were not in any way material as he was satisfied that PW4 was the only person in possession of the key to the base cabinet and that nobody had ever tampered with the exhibits in the base cabinet.[72]

75.  The magistrate also took into account the fact that PW4 initially said that the model number of the laser pointer in question was “JD-350”, but later corrected himself by saying that the model number was “JD-850” after the prosecutor had shown him the exhibit concerned. The magistrate was satisfied that it was only a slip of the tongue on the part of PW4.[73]

76.  The evaluation of whether a certain witness was honest and credible falls within the scope of decision of the trial magistrate. The appellate court can only rely on the written transcript for making its decision and does not enjoy the advantage of having seen and heard the witness giving evidence which the trial magistrate enjoyed. Therefore, unless it can be shown that the finding of the magistrate was unreasonable or illogical or the evidence was inherently improbable or that the magistrate had misquoted or omitted or failed to consider and analyse important issues when dealing with the evidence, the appellate court will be slow to interfere with that finding.[74] In HKSAR v Finan Boris Anthony[75], the Court of Final Appeal pointed out that only if the magistrate’s finding of fact or determination of a witness’s credibility was plainly wrong will the appellate court depart from his finding or determination concerned.[76]

77.  Havingcarefully considered the matters raised by Mr Cheung, I am of the view that none of them is sufficient for the court to form the view that the magistrate’s finding on the credibility of each of the relevant witnesses ought to be interfered with.

78.  I then turn to the relevant evidence, including the testimonies of the witnesses and physical evidence, so as to determine whether the prosecution had adduced sufficient evidence to prove that what was handed over to PW3 for examination was exhibit P1, namely the laser pointer seized from the appellant by PW1.

79.  Inthis case, together with the appellant, there were a total of four co-arrested persons (namely persons arrested in a case under the same case number). The prosecution alleged that a total of three laser pointers were found separately from three persons. These three laser pointers each had their own characteristics. If records were properly kept and no error were made in handling the exhibits as shown in the material disclosed, disputing the chain of custody of the exhibits under no express instruction would probably be groundless. In any event, in the context of this case, if the evidence were adduced effectively, apparently it would be difficult to succeed in challenging the integrity of the chain of custody of the exhibits.

80.  I should mention in passing that in a situation where there is a need to deliver an exhibit to an expert for examination, if it is handled by means of a tamper proof envelope, the room for dispute will be greatly reduced, and if it is properly handled, there may even be no room for dispute. Perhaps the authorities should review the relevant measures so as to avoid unnecessary disputes or even the risk of failure to prove that the chain of custody of the exhibit is complete.

81.  PW4 did take photos of the exhibits, but the photos were not produced in court.

82.  There are the following gaps in the evidence concerned:

(1)  The handling of the exhibits in the case at the exhibit room: since the prosecution did not call the relevant witnesses, nor were there relevant facts admitted at trial, the evidence in this regard was blank;

(2)  There was no evidence as to who assigned the number 22 to the exhibit; and

(3)  There was no evidence from the person who assigned the number as to whether this exhibit was the laser pointer seized from the appellant.

83.  A yellow label had been stapled to the plastic bag containing exhibit P1, inside which there was a sheet of A4 paper. However, no witness was ever asked anything about the A4 paper. Thus, in considering the evidence, I could not take this sheet of paper into account.

84.  The yellow label bore the number of the case. However, this piece of information was not of much help as there were three laser pointers seized as exhibits in the same case. Nevertheless, the information on the back of the label clearly showed that the exhibit came from the appellant. Moreover, the number “22” was printed in the column under “shape and characteristics of property”. There was also the following information printed there: “1 Number of Laser Pointer 鐳射筆, model JD-850 in Black color (with a battery, brand: NITECORE, 650mAh, seized from AP2 M/ CC[77])”. PW4 who printed such information said all the information was correct.[78]

85.  Judging from the relevant physical evidence, exhibit P1 matched the primary information on the yellow label attached to the plastic bag[79], which stated that the item was seized from the appellant.

86.  The label was handled by PW4 who received the exhibit from PW1.

87.  Under the same case number, PW4 received a total of three laser pointers. These exhibits were later handed over to the exibit room for custody.

88.  PW2 collected three laser pointers when he subsequently retrieved the exhibits related to the case[80] from the exhibit room. He described these three laser pointers as follows[81]:

(1)  Exhibit 10 - black in colour, NITE CORE brand, also shows 8500 mAh;

(2)  Exhibit 22 - black in colour, NITE CORE brand, also shows 6500 mAh and model number JD-850; and

(3)  Exhibit 35 - blue in colour, ULTRA FIRE brand.

89.  PW2’s testimony in this regard, when compared with PW3’s expert report, has significance.

90.  However, in dealing with this report, the following issue arose. At trial, two versions of the report, the exhibit numbers of which being P10 and P11 respectively, were produced in court. The contents of the two versions are in fact the same. P10 was the original version and the contents of which covered the three laser pointers, whereas P11 was the redacted version covering only the one marked as exhibit P1 in this case.

91.  Mr Cheung objected to the court taking the exhibit P10 version of the report into account and took the view that the court could only rely on the exhibit P11 version that was eventually produced in court as the basis for consideration.

92.  As to why there were two versions (the contents of which are in fact the same) of the report produced in court, neither party was able to give a clear account of that in the absence of the relevant transcript of the trial proceedings.

93.  However, the magistrate, in his written Reasons for Ruling on the issue of the status of the expert witness, had this to say[82]:

(1)  The report P10 can be admitted as formal evidence;

(2)  For the convenience of the court, the prosecution also submitted the report P11, with the relevant passages concerning the results of the examination of the other two laser pointers unrelated to this case redacted from its contents; and

(3)  The report P11 was also made a formal exhibit.

94.  In my view, this is the evidential basis on which the court can take P10 into account in the appeal.

95.  PW2’s testimony and the expert report, taken together, showed that the three laser pointers each had their distinguishable features, that the blue one was obviously not seized from the appellant and that only one of the two black ones, namely the one he referred to as exhibit Q2, was inscribed with the model number JD-850. Moreover, the expert also pointed out that a label was attached to the front of exhibit Q2, the content of which read:

‘“AVOID EXPOSURELASER”

“LIGHT IS EMITTED FROM THIS APERTURE”

“DANGER”

“MAX OUTPUT POWER<500mW”

“WAVELENGTH532nm±10”

“CLASS IIIB LASER PRODUC

“This product complies with 21CFR”

“Banned direct eyes”

“Forbid children to play”

“Minors are prohibited from use”’

The body of the laser pointer exhibit P1 was inscribed with JD-850 and affixed with the aforesaid label.

96.  In his very detailed report, PW3 did not indicate that there was such a number and label on the other black laser pointer.

97.  The number JD-850 is of significance as PW1 was able to tell that the laser pointer he seized from the appellant bore this number. As revealed in the evidence, among the three laser pointers, none of the others was inscribed with this number on the body.

98.  Although the evidence in respect of the chain of custody of the exhibits adduced at trial is not flawless, the evidence as a whole is sufficient to make me sure that exhibit P1 was the one seized from the appellant and examined by PW3[83].

99.  Grounds of appeal (3) and (4) are not established.

Grounds of appeal (1) and (2)

100.  Both of these two grounds of appeal are in fact related to the issue of whether the inference drawn by the magistrate was safe. Thus, they can be dealt with together.

101.  The magistrate pointed out expressly that a laser pointer or laser device is not offensive per se, and thus, the prosecution has to prove:

(1)  The laser pointer in question can be used as an offensive weapon; and

(2)  The appellant intended to use the said laser pointer as an offensive weapon.

102.  The magistrate pointed out that the prosecution was brought under the Summary Offences Ordinance in this case and that “offensive weapon” is not defined under the Summary Offences Ordinance. According to case law, the definition of “offensive weapon” under the Summary Offences Ordinance and that under the Public Order Ordinance are the same. The magistrate also reminded himself thatthe Court of Appeal held in R v Chong Ah Choi & Others[84] that the part “article suitable for causing injury to the person” of the definition of “offensive weapon” under the Public Order Ordinance had been invalidated[85]. I agree with the magistrate’s understanding.

103.  The magistrate pointed out:

(1)  The articles involved in the case were all concealed in the appellant’s rucksack. The appellant must have been aware of their presence, nature and condition and must have kept them in his custody deliberately, intentionally and wilfully.

(2)  Sofar as the appellant’s outfit is concerned, except for his white jacket, he was dressed all in black, even the rucksack was black in colour. When all these are considered together, one can conclude that his carrying and having in his possession those articles was definitely not a coincidence but a premeditated and well-planned arrangement and that there was no possibility that someone would randomly hand them over to the appellant for temporary custody.

104.  In respect of the issue of whether the laser pointer in question could be used as an offensive weapon, the magistrate took into account the fact thatit was pointed out in PW3’s expert report:

(1)  This laser pointer was capable of emitting green laser or laser beam, and the laser it emitted was long and narrow;

(2)  According to its power, it should be classified as Class 3B (namely higher than Class 3R but lower than Class 4);

(3)  The power density of the laser it emitted exceeded the corneal Maximum Permissible Exposure by 1.6 times; and

(4)  In the event of skin exposure to the laser, minor burns may also be caused to the skin.

105.  The magistrate took the view that if the said laser pointer were misued, it could certainly be used as an offensive weapon.

106.  The magistrate reminded himself that the doctrine of judicial notice could not be applied to confirm that laser pointers had frequently been used by protesters as articles for shining at the police in public assemblies took place in Hong Kong since June 2019[86].

107.  While the magistrate rightly applied HKSAR v Sam Ka Lam, Sam[87] and took the view that the following findings could be made pursuant to the doctrine of judicial notice:

(1)  since June 2019, there had been widespread and continuous demonstrations trigged by the “anti-legislative-amendment incident” all over Hong Kong, which showed no sign of coming to an end as at New Year’s Day 2020; and

(2)  during those demonstrations, more often than not, there were aggressive protesters using violence[88],

in this case, it is clear from PW1’s testimony, which was accepted by the magistrate, that there were in fact protesters engaging in the unlawful act of blocking the roads in the vicinity of Nathan Road on the day in question. Thus, the magistrate pointed out that there was indeed no need for him to rely on the doctrine of judicial notice mentioned above.

108.  The magistrate cited HKSAR v Chan Yiu Shing[89], and took into account the following relevant circumstances[90] and his relevant observations:

(1)  The appellant must have been aware of the nature and condition of the items of exhibits P1 - P6 and P8, and further, he had the intention to possess and carry them;

(2)  While the appellant was walking at a quick pace at the material time, he was not crossing the road or entering the MTR station;

(3)  The appellant was wearing a black outfit;

(4)  The black rucksack the appellant was carrying contained articles such as laser pointer, respirator, goggles, hood, masks and gloves;

(5)  It was then 6:50 a.m.;

(6)  The location where the appellant was intercepted was Nathan Road near its junction with Argyle Street, and about 20 minutes earlier, i.e. at 6:30, on the day in question, there were people blocking the nearby streets and roads, including those in the vicinity of Nathan Road and Shanghai Street;

(7)  The presence of the appellant at Nathan Road at that time, judging by the way he was dressed and equipped, was definitely not something coincidental; and

(8)  At such a time, under such circumstances, wearing such an outfit and carrying such equipment, the appellant was definitely not going to school, going to work, going shopping or merely walking past.

109.  The magistrate also took into account the following characteristics of the laser pointer in question:

(1)  Outside the silver-coloured sticker, the words “Laser Pointer JD-850” were inscribed right on the body of the laser pointer.

(2)  On the body of the laser pointer, there was a silver-coloured sticker printed not only with the English word “Danger” in red, but also with a warning sign consisting of an eye with a slash on it, meaning it cannot be directed at the eyes.

110.  Having considered the evidence as a whole, the magistrate inferred as follows: the purpose of the appellant carrying the laser pointer was that he planned to participate in the imminent road blocking or the imminent protest in the vicinity of Nathan Road; and that in the event that people holding different views interfered with or thwarted his act of road blocking or unlawful protest, or in the event that he came across the police, he would intend to shine the said laser pointer at the eyes of those peole or police officers.

111.  The magistrate held that the above inference was the only inference supported by evidence and held accordingly that the appellant planned and intended to use the laser pointer P1 for the purpose of causing injury to others, namely to use it as an offensive weapon. In other words, the magistrate was sure that the appellant planned and intended to use the laser pointer P1 for unlawful purposes.

112.  The magistrate also pointed out that before making the finding, he took into consideration the following two issues:

(1)  The defence might say that if the appellant fails to aim the laser pointer at someone else’s eyes, he cannot be said to be in possession of the laser pointer with intent to use it for the purpose of causing injury to others. So long as there is evidence to show that the appellant regards the article in his possession as an implement for causing injury to others, that article will be an offensive weapon at that very moment; and there will be no need for the prosecution to prove that the appellant must be able to successfully injure others by means of the article involved in the case.[91]

(2)  The defence might also say that on the basis of the existing evidence, the appellant would probably use P1 as a tool for expressing his views and would not necessarily use it as a weapon for causing injury to others. However, the defence had never called any evidence on the use of the laser pointer. Furthermore, regard must be had to the way the appellant was dressed and equipped at the material time as well as the time, place and circumstances surrounding his appearance.

113.  In my view, the magistrate’s finding in this regard was reasonable, well-founded and supported by sufficient evidence. It was not making assumption upon assumption or reversing the onus of proof or close to reversing the onus of proof as submitted by Mr Cheung.

114.  Even though Mr Cheung emphasized that there was no road blocking or unlawful event taking place at the time when the appellant was arrested, when considered in the context of the overall circumstances as revealed in the evidence, I agree with the magistrate’s finding set out in paras 111 and 112 above.

115.  Grounds of appeal (1) and (2) are also not established.

Judgment on appeal against conviction

116.  All grounds of appeal are not established. I have carefully examined the overall evidence at trial. In my view, the conviction is safe and supported by sufficient evidence. Accordingly, the appeal against conviction is dismissed.

Appeal against sentence

117.  At first instance, in sentencing, the magistrate took into account the nature and circumstances of the case, defence counsel’s submission in mitigation and called for community service order suitability, rehabilitation centre and detention centre reports.

118.  The magistrate pointed out that he took into account the following matters:

(1)  All the factors involved in the case, including the gravamen of the offence, the facts of the case, the background against which the offence was committed and the appellant’s personal background;

(2)  The statutory maximum for the offence in this case was two years’ imprisonment. It was a serious offence. A convicted person would normally receive a custodial sentence;

(3)  The main purpose of this charge was to protect the public, deter members of the public from committing the offence, deter the appellant from reoffending and condemn the appellant’s conduct. Such factors outweighed the rehabilitation of the appellant. If a community service order or non-custodial sentence were imposed on the appellant, it would only be wrong in principle or manifestly inadequate;

(4)  The Court of Appeal in Szeto Ho-san pointed out that the reason for and purpose of prohibiting the possession of offensive weapons in public places was to promote a safe social environment and also to reduce effectively the likelihood of citizens resorting to unlawful force in confrontations^[92];

(5)  This case happened to take place when social movement events occurred. On the morning of the day of the offence, there were road blocking incident(s) in the vicinity of Nathan Road, Mong Kok. At that time, apart from the laser pointer in question, the appellant was also carrying in his rucksack equipment such as goggles, respirator and gloves as earlier referred to. It had already been pointed out in the expert report that laser pointers could be used for shining at eyes;

(6)  The appellant just turned 15 not long before the day of the offence and was 16 and a half years old at the time of sentence;

(7)  He had a clear record prior to the present case;

(8)  He was in form four at the time of the arrest. Whilst on bail, he continued his studies and was promoted to form five;

(9)  The appellant was the only child of the family and was a filial son in the eyes of his parents. The family of three and his paternal aunt lived together;

(10)  When the appellant was in primary school, he was one of the top students and obtained grade A- in conduct;

(11)  When he was in secondary school, his academic performance was still good and he got B+ in conduct;

(12)  He held posts such as class monitor, member of the school volleyball team and vice house captain and won prizes in the inter-school speech competitions;

(13)  Having read all the letters and certificates of award submitted by the defence and taken account of the appellant’s background, character, results and conduct, the magistrate was moved;

(14)  The probation officer and the correctional services officer who prepared the reports both made positive comments on the appellant. Both of them pointed out that the appellant was cooperative, polite and willing to disclose information about his personal background;

(15)  The probation officer recommended that the appellant be placed on a community service order whereas the correctional services officer opined that while the appellant was fit for detention in a rehabilitation centre or a dentention centre, the latter was more suitable for him;

(16)  The submission that the appellant was remorseful was questionable; and

(17)  In principle, a custodial sentence had to be imposed on the appellant. The report said that the appellant was more suitable for detention in a dentention centre. However, the defence submitted that the appellant would prefer to be sent to a rehabilitation centre and produced a medical certificate saying that the appellant suffered from asthma when he was seven years old. The magistrate considered that it would be difficult to reject the assessment and recommendation made by the correctional services officer by relying solely on this medical certificate.

119.  Mr Cheung submitted as follows:

(1)  The magistrate took an excessively harsh view about the appellant’s attitude of showing no remorse after his conviction. Given the appellant’s previous clear record and young age, it should be appropriate to impose a community service order on him. But eventually, in order to detain the appellant for educating him and instilling in him the concept that he is required to observe discipline in the future, the magistrate improperly imposed on him such a deterrent sentence as the detention centre order.

(2)  The magistrate failed to take cognizance of the fact that at the time of the offence, apart from inconvenience caused by the barricades on public roads, there were no public emergency incidents such as unlawful protests that threatened the safety of the community taking place simultaneously.

(3)  The magistrate failed to give sufficient regard to the principle that under the circumstances that punishing the appellant for his wrongdoing by means of rehabilitation was also an acceptable and equally appropriate penalty (even if not far more appropriate than a custodial sentence), the imposition of a custodial sentence should be the last resort for sentencing young persons.

(4)  In view of all the circumstances of this case, the court still had other options of punishing the appellant by means of rehabilitation (namely by means of a non-custodial sentence). In particular, the appellant had a previous clear record and there was no evidence to suggest that the appellant wished to use any weapon to pose an imminent threat to others.

(5)  It was too harsh and manifestly excessive to impose a custodial sentence on the appellant.

120.  At the hearing on 18 February, the appellant who was unrepresented made detailed submissions to the court. He gave a detailed account of his personal background and elaborated on the submissions made on his behalf by Mr Cheung. He also submitted that it was not the case that he had no remorse.

121.  At the hearing on 11 March, the appellant was represented by Mr Timothy Ryan Wong of counsel who submitted that he was willing to perform unpaid work under a community service order. However, Mr Wong stressed that the appellant had been remanded for a considerable period of time and submitted that it would be appropriate and fair to impose a short term custodial sentence on the appellant so as to allow for his immediate release given that the facts of this case were not that serious.

122.  The offence in this case is “possession of an offensive weapon with intent to use it for an unlawful purpose”. In view of the scene of the commission of the offence and the overall circumstances, this case is of considerable gravity.

123.  The offence in this case was committed against the background of the social unrest. The Court of Appeal in Secretary for Justice v Wong Chi Fung & others[93] emphasized the importance of the right to peaceful assembly, but also pointed out that citizens must exercise that right in a lawful and peaceful manner without disrupting or threatening to disrupt public order, or without using or threatening to use violence. If an offender used or threatened to use force in the context of public assembly, the court should consider imposing a deterrent sentence. However, the Court of Appeal also pointed out that if the facts of the case were of a relatively minor nature,proportionally less weight might be given to the need for deterrence.

124.  That case was concerned with the offence of unlawful assembly, which is different from the offence in this case. Nevertheless, the present case is of considerable gravity in that it involved, against the backdrop of the social unrest, the appellant carrying the article in question, namely the laser pointer with intent to use it for attacking others, to which the line of reasoning the Court of Appeal referred to is applicable. In Wong Chi Fung, Poon JA[94] pointed out that for offences concerning public peace, generally speaking, even if the facts of the cases are not that serious, the court is still required to ensure that public order is effectively maintained. So there remains a need for sentences to be suitably deterrent. However, as the Court of Appeal set out in HKSAR v Leung Tin Kei & others[95], the court in sentencing must have regard to the actual circumstances of individual cases.

125.  The offence of which the appellant was convicted involved possession of an offensive weapon. The nature of the offence was serious. However, as the prosecution was brought under section 17 of the Summary Offences Ordinance[96] instead of section 33 of the Public Order Ordinance, the court would have more options in sentencing.

126.  The purpose of creating this offence is to prevent unlawful use of weapons, maintain public order, safeguard the livelihood and safety of citizens as well as to prevent abuse of force.

127.  In considering the sentence, generally speaking, matters the court should take into account include the following:

(1)  the nature of the weapon concerned;

(2)  its lethality;

(3)  its quantity;

(4)  the background of and circumstances surrounding the possession;

(5)  the way of possessing it; and

(6)  the ultimate intention of possessing it.

128.  What the appellant had in his possession was a laser pointer, which in itself could be used for lawful and proper purposes and could be readily purchased without satisfying any conditions or rules. But in this case, having assessed the evidence, the court is sure that the appellant had in his possession the said laser pointer for attacking others as and when the need arose and apparently law enforcement officers were possible targets.

129.  Shining a laser pointer at the eyes will inevitably cause a certain degree of eye injury and may cause skin injury as well. The actual injury depends on various factors including the power of the laser pointer, the distance from and duration of exposure to the laser beam. According to the expert report, the power of this laser pointer is considerable but not of the highest class.

130.  This case occurred at a time when protests were common and unlawful acts took place from time to time. It was not the case that the weapon was found on the appellant under the circumstances that he was at the scene of a protest or there was an ongoing protest. However, the fact that that day was the day when there was a call for participation in the action known as “the three major stoppages” cannot be ignored.

131.  All in all, I am of the view that in respect of offences of this kind, the gravity of this case is below average.

132.  As this case is of considerable gravity and regard must be had to public interest, a deterrent sentence should be considered. However, the appellant just turned 15 not long before he committed the offence, that is what the court should take into account in sentencing. Poon CJHC in Secretary for Justice v SWS[97] expounded on the general principles in sentencing juvenileoffenders:

‘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; and 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.

...

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.’

133.  In that case, Pang JA pointed out:

‘75. Sentencing juvenile offenders always involves a tension. As pointed out by Poon CJHC, on one hand the court is required to give primary consideration to the rehabilitation of juvenile offenders, while on the other hand, other sentencing considerations such as punishment, open condemnation and deterrence must also be taken into account. The overall assessment depends on the gravity of the offence itself and the seriousness of specific facts of the case, and also in certain cases, apart from immediate imprisonment, whether there exists any sentencing option which fulfils the needs of both these two aspects. Such balancing exercise is not only long-standing and supported by Hong Kong law, but also consistent with the generally recognised approaches in place in other common law jurisdictions, if not internationally. The trial magistrate’s error in the present case lies in her failure in striving to achieve such balance, resulting in a sentence tilting towards one side. It is to be mentioned here that the imposition of a custodial sentence does not mean rehabilitation has not been a primary consideration. Admission to the detention centre, for example, is highly rehabilitative. It is just that for individual juvenile offenders, rehabilitation is best achieved by losing liberty for a short term, learning to stay disciplined and living a regulated life. I agree with Poon CJHC’s analysis and conclusion. The original sentence of this case is not only wrong in principle but also manifestly inadequate, and therefore must be corrected.’

134.  In view of the background of the social unrest in this case, in considering the sentence, the weight to be accorded to considerations such as protection of the public, punishment, open condemnation and deterrence should be increased accordingly. Nevertheless, I have taken into account that it is also in the interests of the community as a whole for the court to give young offenders a chance of rehabilitation as far as practicable.

135.  Mr Wong’s submission about imposing an immediate custodial sentence on the appellant, while understandable, is unacceptable to me because, as far as the gravity of this case is concerned, imposing an immediate custodial sentence on the appellant who is still a minor and was a juvenile aged only 15 at the time of the offence is against section 109B of the Crimes Ordinance[98] [sic] and the long-established sentencing principles set out in the authorities. I cannot sentence the appellant in an inappropriate way as a result of my consideration from a practical point of view alone.

136.  When considered in the context of the gravity of this case and the need to impose a deterrent sentence, in my view, the imposition of a probation orderis inadequate and inappropriate.

137.  I have taken into account a special circumstance in this case. It has been over two years since the incident occurred in November 2019. It was only after the appellant had been detained in a detention centre for six to seven weeks following his sentence on the first occasion that he was admitted to bail, and he had been remanded in custody for three weeks for the purpose of calling for reports during the appeal. In other words, the appellant had lost his liberty for at least nine weeks.

138.  I have called for detention centre, rehabilitation centre, community service order suitability and Young Offender Assessment Panel reports. The Young Offender Assessment Panel comprises officers jointly from the Correctional Services Department and the Social Welfare Department and is responsible for providing co-ordinated professional views to the court for its reference in sentencing.

139.  The purpose of imposing a sentence of detention in a detention centre can be seen from the information paper for the Legislative Council Panel on Security meeting on 3 December 1998:

‘The programme is designed to instill among the inmates a respect for the law, the creation of self respect, an awareness of neglected capabilities in legitimate pursuits, and an ability to live with other people in harmony. Emphasis is placed on hard work, strenuous exercise, and the highest standard of discipline; the intention being to provide the inmate with a “Short, Sharp, Shock” in the early stage of his deviation from law and order. The high tempo and brisk pace are designed to extract the very best effort from the inmates… A progressive system is adopted and a Board of Review assesses the progress, attitude, effort and response of each inmate at monthly intervals. …’

140.  Under section 4(1) of the Detention Centres Ordinance[99], before making a detention centre order, the court is required to consider and have regard to:

(1)  the circumstances of the case;

(2)  the character and previous conduct of the convicted young offender; and

(3)  whether it is in his interest and the public interest to make the detention order.

141.  Regarding the applicability, nature and effect of a community service order, Pang J^[100] said^[101] in Secretary for Justice v SHY^[102]：

‘54. The Community Service Orders Ordinance makes it clear right at the outset, “[It is the aim of this Ordinance] to make provision for criminal offenders to be required to perform unpaid work of benefit to the community in place of, or in addition to, other sentences, and for incidental matters.”

55. Community service order on one hand comprises the element of retribution and on the other hand caters for the offenders’ rehabilitation. In terms of retribution, it involves not only requiring the offenders to work without pay, but also imposing restrictions on their personal liberty during their work. Just as Chan CJHC (as he then was) indicated in Secretary for Justice v Li Cheuk Ming [1999] 1 HKC 124:

“A community service order is an alternative to custodial sentence. It comprises the element of retribution as well as the function of rehabilitation. Such type of sentence is punitive to the extent that it imposes restrictions on the accused and curtails his free time. Besides, it is rehabilitative in that when performing the service, the accused can ‘have the opportunity for character building, restoring their personal dignity, and improving their standing in the community’ and will be able ‘to establish constructive interests, develop worthwhile patterns of behaviour’.”’

142.  In Wong Chi Fung[103], Poon JA also pointed out that in cases where the circumstances are not serious, if the facts of the case are suitable and the accused’s personal circumstances meet the criteria for imposing a community service order, a community service order can be an appropriate sentencing option, especially for young offenders, becasuse it may help them turn over a new leaf.^[104]

143.  I havecarefully considered the overall circumstances of this case. Despite the fact that there was no violence involved in this case, I agree with the magistrate’s observations set out in paras 103, 104, 106, 110 and 111 above and take the view that the nature and circumstances of this case are of considerable gravity. The appellant was only aged 15 at the time of the offence and is now 17 years of age. He had a previous clear record. Having considered the assessments made separately by the officers of the Correctional Services Department and the Social Welfare Department, the Young Offender Assessment Panel recommended a sentence of a community service order[105]. In considering whether a community service order should be imposed, the court will attach much weight to whether the offender is truly remorseful. It is true that the appellant pleaded not guilty to the charge and appealed against his conviction. However, from the reports recently called for, it seems that after going through these procedures, with the passage of time, he has learnt a lesson and gained insight into the matter.  

144.  Under the aforesaid overall circumstances, in accordance with my assessment of the gravity of this case[106], having regard to the Young Offender Assessment Panel report and the fact that the appellant had been remanded for quite a period of time and that a balance must be struck between the need for deterrence, the interests of the community and the rehabilitation of the appellant, while I consider that the magistrate’s decision to sentence the appellant to detention in a detention centre at the time is not wrong, I am of the view that under the special circumstance in this case, a community service order[107] can be imposed in substitution for the sentence passed by the magistrate. Accordingly, I allow the appellant’s appeal against sentence and order that the sentence be substituted with one of a community service order of 200 hours.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.