HKSAR v. Ma Hei Yuk

[English Translation – 英譯本]
HCMA 724/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 724 OF 2014

(ON APPEAL FROM KCCC 3858 OF 2014)

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BETWEEN

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Reasons for Judgment

1.The appellant was charged with one charge of behaving disorderly in a public place, contrary to section 17B (2), Public Order Ordinance, Cap 245. The appellant was convicted on his own plea and was sentenced to 6 months’ imprisonment by Peter Law, Principal Magistrate sitting in the Kowloon City Magistrates’ Courts. The appellant now appeals against sentence.

2.The particulars of the offence state that:

“[the appellant], on the 22^nd day of October 2014, at Nathan Road near junction with Argyle Street, Mongkok, Kowloon, in Hong Kong, did behave in a disorderly manner in a public place, namely throwing two bottles of thinner onto the ground, whereby a breach of the peace is likely to be caused”.

3.I dismissed the appeal after the hearing. These are my reasons.

Facts of the case

4.I adopt the facts of this case, which Raymond Cheng, Senior Public Prosecutor for the respondent, has put in his written submissions as follows:

“Facts of the case”

2.  On 22 October 2014, a group of the “Occupy Movement” participants had occupied the northbound lane of Nathan Road, near intersection with Argyle Street in Mongkok. At about 6 pm, a man at the scene, surnamed Chan, heard sounds of shattering glass. After that, he saw the appellant, who was about 4 metres from him, throwing a glass bottle onto the ground. The glass bottle was broken. Chan went over to the appellant and saw him throw another glass bottle on the ground. Chan smelt flammable liquid.

3.  After that, Chan, together with a male named Wai and one named Ng there, all saw the appellant took out another glass bottle and a red lighter from his backpack.  Chan, Ng and another male at the scene, Choi, heard the appellant said “let’s go to hell together”.

4.  They went up to the appellant and put him under control. At that time, 3 to 4 supporters of the Occupy Movement hit the appellant’s head and body. Choi used his body to cover the appellant. [The appellant] passed out after saying the words “(see) what you have done to me”.

5.  Police officers attended the scene and found that the appellant was injured and had odor of alcohol. The appellant was taken to a hospital for treatment. Examination confirmed that the appellant had a pain in his right shoulder, his left knee was swollen and he had abrasions on his right forearm and left knee.

6.  Under caution, the appellant said, “I found the people occupying Central too annoying. I just wanted to scare them.”

Background and mitigation

5.The magistrate had set out the appellant’s background and mitigation in his reasons for sentence in detail:

“Background and mitigation

3. The defendant is 45 years of age. He has a clear record. The defendant came from China in 1996 and settled here since then. He is married and has a daughter who is now 14. He resides in Tin Shui Wai with his family and works as a security guard. Counsel submitted that the appellant was so annoyed and emotionally disturbed by the chaos in the occupation sites when he read the news. The day in question happened to be his rest day. Probably affected by diabetes and increased impulsivity after drinking, he decided to teach the protestors a lesson. He first went to Tin Shui Wai and bought 2 bottles of thinner. He then travelled to Mongkok, where he got more irritated when he saw the situation there. He threw the bottle containing thinner onto the ground and took out a lighter without igniting it. He was then subdued and got injured in the subsequent assault. Counsel further submitted that the appellant had no intent to harm anyone. His sole purpose was to scare the protestors and make them leave. He even stuck some tissue paper at the opening of the thinner bottles to avoid spilling and minimize risk. This incident has affected his relationship with his wife. The wife would like to divorce him. He suffers from diabetes. He was sacked after this incident. In the appellant’s letter asking for leniency, he mentioned “clearing the crap”. Counsel clarified that “the crap” he referred to was the obstacles. The defendant was merely trying to scare the protestors and to force them to clear the obstacles. He did not mean to seta fire at all. He was so remorseful for and reflected on what he had done and would never repeat the same mistake.”

Reasons for sentence

6.The magistrate had considered the following factors before he passed sentence:

“Considerations

4. I have taken into account the facts of this case, the mitigation, the reports (including the psychiatrist’s report) as well as the letters asking for leniency. I find this case a very serious one. The defendant did not just say it, he took actions, too. The site of the occupy movement was a crowded, chaotic and complicated environment where order crisis might explode at any time. The defendant joined the scene by breaking glass bottles containing inflammable liquid, taking out a lighter and shouting “let’s go hell together”. Try to imagine panic-stricken people run for their lives when they were facing life threats and chaos, order crisis had never been worse. I understand that the case happened on 22 October, where the social movement by then had been going on for quite some time. It affected the everyday life of people one way or the other regardless of their political views and stance. Most people felt helpless, worried and frustrated when they faced the deep rooted contradiction, especially when there did not seem to be any resolution to the difficult situation. I understand the defendant felt despondent as he grew increasingly worried every day. Everyone had different levels of tolerance when they faced such stress. It is not hard to understand how the defendant felt. But on the other hand, the acts of the defendant were indeed extremely dangerous and reckless. Although it was his intention to scare protestors instead of causing harm or setting fire to anyone, it is obvious that horrible casualties could be expected when things just went wrong.

Conclusion

5.  In general, it is easy to imagine such scaring acts were likely to cause a serious breach of peace. When such acts were being committed, it brought the risk of fatal disaster that I find this case one of the most serious of its kind. I adopt the maximum penalty as starting point. One third discount will be given for his plea of guilty, which will reduce 12 months to 8 months. I will exercise discretion and further reduce the sentence by 2 months because the defendant’s self-control was sapped by alcohol when he committed the offence and he was emotionally affected by the deadlock in our society. As for the injuries he sustained  during the assault after being subdued on the spot, the defendant only had himself to blame and could not claim this as a mitigating factor to reduce his sentence. I see no other factors that can warrant any further reduction.”

Grounds of appeal

7.James Tze, counsel for the appellant, put forward the following grounds of appeal:

(1)   The starting point of 12 months imprisonment, which is the maximum penalty, and eventually the 6 months imprisonment were manifestly excessive;

(2)   The trial magistrate did not take into full consideration the appellant’s clear record; and as far as the circumstances of this case and that of the appellant were concerned, the charge only alleged that the appellant had thrown 2 bottles of thinner, there was not any intent to harm anyone and the only purpose of doing so was to make the protestors clear the obstacles off the road. The appellant caused no casualties, but he was beaten by the protestors at the scene and sustained injuries. The appellant was under the influence of alcohol at the time in question. The 6 months’ imprisonment passed by the trial magistrate was manifestly excessive for a plea of guilty;

(3)   In general, the sentence was manifestly excessive.

8.The appellant’s main argument was that the maximum sentence had been adopted as the starting point in the present case, and that 6 months’ imprisonment was manifestly excessively, given the exceptional background of the appellant.

9.The appellant also argued that it was an out-of-character offence that took place during, and was attributable to, the largest social movement in decades which was unprecedentedly large in scale and long in duration.  

10.The appellant had cited cases that involve section 17B(2) of the Public Order Ordinance or causing disorder to the community[1]. It was submitted that the sentence imposed in this case was relatively excessive, and more so for the appellant who had a clear record.

11.The appellant contended that, according to the admitted facts, the appellant merely threw 2 bottles of thinner onto the ground. He never cast them at anyone or anything. The appellant was the only person who got injured in this incident. It did not cause any actual harm or damage to anyone or anything, only 3 protesters took action. It did not cause serious scare or chaos. 3 to 4 Occupy protesters punched and kicked the appellant, they even stomped on his head. He sustained multiple injuries and eventually passed out. His injuries were far more serious than the harm he caused. The fact that the attackers were never arrested should also be treated as a mitigating factor.

12.The appellant also claimed that the lighter he was carrying then could not produce any flame, hence no real intent to make fire.

13.The appellant reiterated the mitigation already submitted before the trial magistrate. It was also stressed that due to this incident the appellant had lost his job and had since fallen out with his daughter who had entirely different political views. The appellant had learnt a bitter lesson.

14.The appellant agreed that immediate custodial sentence was inevitable, given the facts of the case, a starting point of 9 months was appropriate; however, it was still hoped that this court would exercise discretion and reduce the sentence.

The respondent’s reply

15.The respondent referred to the psychiatrist’s report of the appellant which says that though the appellant had neither mental illness nor emotional problem, he had a drinking problem.

16.The respondent submitted that this case had the following aggravating factors:

(a)   The “Occupy Movement”, which started in September, was at its climax on 22 October 2014. It happened that the High Court had just granted an interim injunction to restrain participants of the “Occupy Movement” from occupying the roads in Mongkok and obstructing the clearing of barriers. Tension between supporters and opponents in Mongkok was palpable, conflict might break out anytime;

(b)   The appellant had gone all the trouble to buy thinner in Tin Shui Wai and bring it to the occupation site in Mongkok. This showed that the appellant’s act was not impulsive but premeditated;

(c)   The appellant did not have just 1 bottle of thinner. He had 3. He had a lighter, too. One could see that the appellant did not just intend to scare people once, but thrice. It is not what the appellant suggested that he flew into a fit of rage and threw the bottle on the ground;

(d)   The 3 bottles, all stuffed with tissue papers in the openings, did look similar to a petrol bomb;

(e)   The case took place at about 6 pm on a Wednesday. Mongkok was crowded and chaotic then. Without warning the appellant broke 2 bottles of thinner. After that he took out another bottle of thinner and a lighter to scare people there. Even the appellant was not throwing the thinner at anyone, his act was extraordinarily provocative under the ambience of the area.  And as a matter of fact, he was beaten up by the people right then and there;

(f)   The conduct of the appellant was extremely dangerous and reckless. Thinner is highly inflammable and volatile. In case of accident ignition of the lighter, catastrophic loss of lives and damage could be caused; 

(g)   Although the appellant claimed that the openings of the bottles were stuffed with tissue paper, the respondent submitted that once the glass bottle broke on the ground, the thinner would certainly spill on people and things around, thus putting them in danger; also, the tissue paper could not absorb much thinner;

(h)   Not only did the appellant throw two bottles of thinner on the ground, he took out a lighter and even said “let’s go to hell together”, a statement which was so outrageous. Obviously he was trying to cause disorder by drawing more attention from people around. In other words, his target was not an individual but a group of people, the consequence could have been dreadful;

(i)   The appellant did not put away the thinner and lighter of his own accord. Had it not been lucky enough that he was subdued by the people at the scene and stopped from taking further action, the eventual casualty could have been unpredictable;

(j)   In case anything untoward happened, a stampede might occur when people tried to run away. The chaotic situation would make rescue operations more difficult and result in more casualties;

(k)   It was absolutely appalling behavior by the appellant as public peace was concerned, for a huge number of people both pro and against the “Occupy Movement” were gathering there, it was quite possible that the appellant’s behavior would be a trigger for violence from people with opposite views, thus cause ripple effect;

(l)   Moreover, the behavior of the appellant might trigger copycat crimes, causing more disorderly conducts; and

(m)   The appellant behaved like a rioter himself.

17.In reply to the proposition that the lighters the appellant was holding could not produce any flame, the respondent submitted that according to the statement of an eye-witness, the appellant was holding a red lighter. Later, the police found a metal lighter on the ground. The 2 lighters had been sent for an examination and a report was released on 19 December 2014. The report says that the red lighter was working properly and could produce flame, but the metal lighter was not working and could produce no flame. The report was not produced during the hearing as the appellant had pleaded guilty on 24 November 2014.

18.The respondent cited HKSAR v Chan Mo Kong, Ken[2] that, although the appellant, being a first offender, had pleaded guilty, the facts were sufficiently grave that the court must impose a deterrent sentence and let the general public know that the court would never condone such unlawful acts.

19.The respondent submitted that this case and those cited by the appellant concerning the same offence were different in nature and background. For cases involving other offences, they were different in nature and their sentences were not comparable to this case.

20.The respondent even replied to the appellant’s submissions on mitigation one by one:

(a)   The appellant was diabetic: there was no evidence that the commission of the offence was connected to his health problems, not to mention that his ill health could explain or mitigate the criminality involved in the offences at all(Clarkson v R[3]);

(b)   The appellant was under the influence of alcohol: the appellant had a drinking problem. Before committing this case the appellant had voluntarily consumed 6 cans of beer but he admitted that though a little tipsy, he was sober when he got to the scene. Even if the appellant’s self-control was possibly affected by alcohol, this was just not a valid mitigating factor (HKSAR v Lai Ka Lun[4]). If the appellant consumed only 2 cans of beer at home but then drank 4 more cans after buying thinner, it was very likely that he consumed beer to strengthen his courage for the subsequent commission of his crime. This can even be an aggravating factor in enhancing the sentence.

(c)   The appellant had a clear record: the appellant was given a one-third discount which is normally to be regarded as the high watermark of the discount accorded to a defendant pleading guilty, whether or not a defendant has a clear record (HKSAR v Wen Zelang[5]).

(d)   The appellant were beaten up by the people at the scene and sustained injuries: revenge attack could not form the basis for the exceptional circumstances for a discount unless the offender sustained injuries of great severity (see Secretary for Justice v Sukhmander[6]). The injuries of the appellant in this case were not serious. He had shoulder pain, and swelling and abrasions on his hands and feet, but he suffered no permanent disability. The acts of the attackers were no doubt illegal, but the appellant could only blame himself and the injuries he sustained as a result could not be considered a mitigation factor;

(e)   The appellant had a divorce and was out of a job: he only had himself to blame. Divorce and being jobless are not valid mitigating factors. The appellant must bear the consequences of his crime.

21.The respondent submitted the trial magistrate was improper to give a reduction of 2 months to take into account the emotional disturbance the appellant was suffering and that his self-control was sapped by alcohol; the appellant’s only mitigating factor was his plea of guilty. Based on the final sentence of 6 months imprisonment, the starting point was only 9 months, which still fell short of the maximum sentence of 12 months. 6 months was neither manifestly excessive nor inconsistent with the legal principles in sentencing in this regard.

This court’s considerations

22.This is a case of behaving disorderly in a public place, contrary to section 17B(2), Public Order Ordinance, Cap 245. A person who is guilty of the offence shall be liable to a fine at level 2 (i.e. $5,000) and to imprisonment for 12 months. There is no tariff for offence of this type.

23.I entirely agree with the analysis made by the magistrate on the seriousness of this case. My only reservation is, is this case serious enough to warrant the maximum sentence? Having considered all the circumstances (including the frustration brought by the Occupy Movement to the appellant), I find the appropriate starting point is 9 months.

24.I agree with the respondent’s argument. There were indeed aggravating factors in this case – particularly when the appellant took out a lighter and shouted “let’s go to hell together” after breaking glass bottles containing inflammable liquid. Even the appellant did not light a fire, people at the scene did fear that the appellant would do so and thus cause serious harm. It was lucky that people did not try to get away in panic and no human stampede occurred.

25.The appellant is entitled to one third discount for his plea of guilty. While it is true that the appellant was assaulted at the time in question, given the circumstances, it is quite possible that those people were trying to stop the appellant from igniting, or they hit him in furious rage. The appellant did not suffer any permanent disability as a result of the assault and being subdued, this cannot warrant any reduction of the sentence.

26.The appellant could only blame himself for losing his job after committing this offence. The marriage problem between the appellant and his wife was not caused by this offence. The offence this time was just an immediate cause that reinforced the determination of the wife, who was already considering a divorce, to leave the appellant. I do not find this a factor to reduce his sentence either.

27.Having different political views and therefore tension with his daughter is possibly a problem faced by many families in Hong Kong. Again, I do not find this a factor to reduce his sentence.

28.Hong Kong is a diverse city where people are free to have different political views or opinions, but no one can do whatever they like, or use force or violence against those who are your political opposite. The court must impose a heavy and deterrent punishment on people like the appellant who caused serious disorder in public places.

29.This is a serious case, nonetheless I find the starting point of 12 months adopted by the magistrate manifestly excessive. On the other hand, I find the exercise of discretion to reduce the sentence by 2 months because the appellant “committed the offence when emotionally affected by the deadlock in society and self-control being sapped by alcohol”, which was on top of the one third discount given for his plea of guilty, too lenient.

30.With a starting point of 9 months, the sentence should be 6 months’ imprisonment after the appellant pleaded guilty.

31.For the reasons above, the final sentence passed by the learned magistrate was not manifestly excessive and the appeal against sentence is dismissed.

Mr Raymond Cheng, SPP of the Department of Justice, for the respondent

Mr James Tze, instructed by Messrs Sun Lawyers, assigned by Director of Legal Aid, for the appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.