HKSAR v. Tang Ho Yin

DCCC 581/2017

[2018] HKDC 393

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 581 OF 2017

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Reasons for Sentence

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Charge

1.The Defendant pleads guilty to a charge of riot, contrary to section 19(1) and (2) of the Public Order Ordinance, Cap. 245.  The Particulars of Charge states that on 9/2/2016, at Shantung Street and Nathan Road, Mong Kok, he took part in a riot with other persons. 

Facts

2.Between the evening of 8/2/2016 and the early morning of 9/2/2016, there were sporadic confrontations between civilians and police officers who were performing the duty to maintain public order at Shantung Street near the junction with Nathan Road southbound.   

3.The Defendant took part in a riot at about 0400h to 0412h on 9/2/2016 (“one of the Rioters” or “the Riot”, as the context requires).  As a result of the Riot, 29 police officers sustained injuries as described in Annex 1 of the Summary of Facts.   Such injuries on the head, torso or limbs included tenderness, abrasions, swelling, bruising, and fracture of bone. Sick leave ranged from mostly a few days, a few months (in the case of PW23), to nearly a year (in the case of PW7) was granted. 

4.Video footages depicted the Rioters assembling on the carriageway of Shantung Street at a distance of about 10 to 20 metres in front of the checkline formed by the police.  There were about 100 Rioters against no more than 30 police officers.  There were two fires made by the rioters.  They hurled missiles of bricks and glass bottles at the police officers.  Some of them got bricks from the floor of a signpost which they shook loose.  Time and again these objects struck the helmets or shields of the police officers, if not on their bodies.  Despite warnings given by the police through loudspeakers to dissolve or desist from hurling objects, they refused to cooperate.  They pushed against the police with home-made shields.  The police officers had to use peppers spray at times.  The Defendant was seen at the forefront when he hurled a brick at the police officers.  He did not wear a cap or a face mask. 

5.On 10/11/2016, he was arrested at his residence.  In the subsequent enquiries under caution he admitted to have shaken a signpost and hurled a brick when others were also hurling bricks during the incident.  He said it was for fun.  He wanted to scare the police away.  After the enquiries, he led the police to the place where he hurled the brick at the police.    

Mitigation

6.The Defendant was 24 on the offence date and is now 26.  He has a clear record.  His chief mitigating factors are his timely plea of guilty and his condition of Attention Deficit/Hyperactivity Disorder (“ADHD”). 

7.As regards his ADHD, a psychiatric report was prepared by Dr. Gabriel Hung.  Dr. Hung had perused the charge sheet and the summary of facts when he interviewed him.  He was diagnosed to have ADHD in primary school.  This has been an ongoing condition up to the interview.  He had defaulted medications due to its side effect of keeping him awake at night time.  Unable to focus on his studies or work, he could not achieve much in these pursuits.  One of the distinctive features of ADHD patients is impulsivity.  Dr. Hung is of the opinion that he committed the present offence in an impulsive manner, without considering or analysing the potential consequences of his actions.  He knew what he did was wrong but acted impulsively due to lapse in judgment (para. 16.4 of Report).

8.Dr. Hung anticipates that his condition can be monitored properly if he continues with medical consultation and medication.  

Relevant Sentencing Principles

9.In R v Pilgrim (1983) 5 Cr App R (S) 140, 144 Lord Lane L.C.J. lists the relevant factors as follows in sentencing cases of riot or affray:

What a court has to pay regard to is the level of violence used, the scale of the riot or affray as described by witnesses, the extent to which it is premeditated, or on the other hand spontaneously arises, finally the number of people engaged in its execution.

10.These factors are adopted by the Hong Kong Court of Appeal in A. G. v Tse Ka-wah & Others [1992] 2 HKCLR 16 and S.J. v Cheung Chun Chin & Others [2002] 2 HKLRD 233. 

11.In R v Caird (1970) 54 Cr. App. R 499, 507 – 508 Sachs L.J. explains that the acts of a rioter cannot be considered in isolation: 

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

Over and over again it was submitted on behalf of the applicants that their individual acts should be regarded as if they had been committed in isolation. Attempts were made on this footing to make light of such matters as pushing a police-officer on one side, breaking a window, or throwing a lighted mole fuse at one of the officers. In the view of this Court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.

12.In R v Keys & Others (1987) 84 Cr. App R 204, 207, though a case of affray, the principle appears equally applicable for riot.  LCJ has a similar approach as Caird:

… Even though a particular defendant himself never actually hit an opponent, never threw a missile, never physically threatened anyone, nevertheless, even if he participated simply by encouraging others and by shouting insults and threats, he thereby helps to promote the totality of the affray. He must accordingly take some share of the blame for the overall picture. It scarcely needs stating that the more he is shown to have done in promoting the affray, the greater must be his punishment.

Relevant Sentencing Examples

13.In HKSAR v Hui Ka Ki & 2 Others DCCC 710/2016, there is a riot involving 20 – 30 civilians against the police in Mong Kok on the second day of Lunar Chinese New Year in 2016.  The rioters hurled glass bottles and sundry objects when they pushed back the police officers who were equipped with helmets and shields from the police checkline.  D1 and D3 hurled glass bottles at them.  D2 hurled a bamboo stick at them.  No police officers were injured.  Their sentences after trial were each 3 years. 

14.In HKSAR v Yeung Tsz Hin Chris & 2 Others DCCC 860/2016, another riot that took place on the second day of Lunar Chinese New Year in 2016, about 100 rioters hurled bricks and sundry objects at the police officers.  Some of them made a big fire, causing a lot of smoke.   The trial judge regarded 2 of the defendants as active participants as they were holding glass bottles at the forefront near the fire and facing the police officers.  The other defendant hurled bricks at the police officers. The riot lasted more than 10 minutes.  The starting point taken was 3 years 6 months. 

15.In HKSAR v Yeung Ka Lun DCCC 875/2016, another riot that took place on the second day of Lunar Chinese New Year in 2016, about 50 – 60 rioters hurled bricks and sundry objects at the police officers.  A taxi parked on the road side and signposts were damaged. Some rioters made fires at different locations, including the damaged taxi.  A police officer had his arm hit and injured by the falling brick.  The defendant wore a cap that covered his hair and ears.  He was identified on a photo taken at a moment he pulled down his face mask.  He took part in burning the damaged taxi.  He stood at the forefront of the group that hurled bricks in confrontation with the police officers.  The starting point taken was 5 years.

Sentencing the Defendant

16.The police were vastly outnumbered in the Riot.  The number and aspects of police officers injured were astounding.  The Defendant was at the forefront of the line confronting the police.  In the Riot, he was seen to have hurled a brick.  In the subsequent enquiries he admitted to have shaken loose a signpost from its based on the ground.  Video footages showed people picking up the bricks under the signpost.  Police officers were injured by the bricks hurled by the rioters.  His act was an egregious and wicked way to have fun at the expense of others’ safety.  I take a starting point of 5 years.  After a one-third discount for the plea of guilty, the sentence becomes 3 years 4 months. 

17.There is evidence of his condition of ADHD at the time of offence and sentence.  Dr Hung regarded that he was impulsive when committing the offence.  From the fact that he was not having or wearing a cap or a face mask, while many rioters were, suggested no prior planning on his part and it possibly true that he was trying to have fun in his acts with little regard for their serious consequences.  I reduce his sentence by 6 months.   

18.His sentence is 2 years 10 months.