HKSAR v. Chan Kwok Ching

DCCC 248/2020

[2020] HKDC 490

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 248 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to charge 1, Possession of things with intent to destroy or damage property, contrary to section 62 (a) and 63 (2) of the Crimes Ordinance, Cap 200. On 10 November 2019 at Siu Lun Court, Tuen Mun, New Territories he had in his custody or under his control three petrol bombs stoppered with white fabric strip, two spanners, three bottles containing cyclohexane and Methyl-cyclohexane, one container containing light petroleum distillate, one bag of white powdery solid containing calcium hypochlorite, 14 pieces of white fabric, one funnel, four lighters and one pair of scissors, intending without lawful excuse to use the said things or cause or permit another to use the things to destroy or damage any property belonging to some other person.

2.He faced a second charge of possession of apparatus for telecommunications without a licence, a set of radio transceivers but he pleaded not guilty and the charge was kept on the court file not to be dealt with unless there is an order of this Court or the Court of Appeal.

Facts of the case

3.The defendant admitted the amended Summary of Facts. In the afternoon of 10 November 2019, a Sunday, a team of police officers were in a police vehicle patrolling the Tuen Mun area. At about 3:10 PM they drove past Siu Lun Court where they saw a group of people clad in black walking into the area. The police immediately alighted to give chase and stopped the defendant as well as the rest of the group.

4.The defendant was dressed entirely in black with a black mask or facial covering and wearing black gloves. He was carrying a black rucksack and wearing a black waist bag with three black bottle pouches strapped onto the waist bag. In each of the bottle pouches was a petrol bomb. When the defendant was subdued by the police, one of the petrol bombs fell out of the pouch onto the ground. All three had fabric strips inserted in the glass bottles; ready-made petrol bombs.

5.In his waist bag there were four lighters, two spanners, three buckles, one handkerchief and three octopus cards. In his rucksack was a plastic bottle with 409 g of a white powdery solid of calcium hypochlorite which is commonly found in bleaching powder. There were three plastic bottles containing 1.88L of a liquid containing an organic mixture of mainly cyclohexane and Methyl-cyclohexane. There was also another canister containing 95mL of a liquid containing an organic mixture of mainly light petroleum distillate, a highly flammable organic solvent. There was also one funnel, 14 pieces of white fabric, a pair of scissors, respirator, goggles, gloves, more handkerchiefs and saline.

6.Those three petrol bombs strapped to his waist bag respectively contained 122 mL, 175 mL and 260 mL of a liquid containing an organic mixture of mainly cyclohexane and Methyl-cyclohexane. These are also highly flammable organic solvents and are the common constituents in paint thinner mixtures.

Mitigation

7.The defendant was 17 years old at the time of his arrest and will be 18 next month. He has just recently sat the Hong Kong diploma of secondary education exams (HKDSE). He lives with his mother and elder sister. He had a previous clear record.

8.The defendant is hoping to study mechanical engineering in higher education. He applied for a place at the Santa Barbara City College, a public college in California to study an engineering program. He received an email in March this year offering him a place. He still has aspirations of higher education in his words, in the hope of being a useful person. His elder siblings are willing to assist him financially in further education.

9.In mitigation I have received a letter from the defendant expressing his remorse and a hope of leniency. There are letters also from his mother, other family members, his school assistant principal and teacher. There is also letters from several social workers who testified to the defendant’s voluntary work and charitable nature.

10.The defendant explained in his own mitigation letter that he acted impulsively due to his ignorance and now he feels genuinely sorry. He feels sorry for making his family worry. He did not consider the consequences of his acts. He accepts responsibility and with his family continuing to support him, he will pursue higher education. He asked the court for leniency so he could study engineering.

11.The defendant’s mother, two sisters and a brother-in-law also write on his behalf. They say his remorse is genuine and he is no longer acting out of impulse and recklessness. He has matured. He comes from a loving family and is the youngest of four and the only male. He grew up with much love. They will nevertheless continue to support him. He worked hard at school and tried to achieve the best results he could. It appears he might have been influenced by others and peers, perhaps to gain recognition. One member of his family says just prior to his arrest his mindset and behaviour had changed. He distanced himself from his family somewhat. That is one of the reasons I called for a psychologist’s report.

12.Those letters from his school say he was popular, respectful and an active participant in all types of activities especially sports and music. They put his actions down to immaturity and using the wrong way to express his demands. They both feel he is genuinely remorseful.

13.There is a letter from a social worker from the defendant’s local integrated Services Jockey Club Youth Express. She has known the defendant for five years and vouches for his continuous participation in volunteering services and activities in his local community. He has volunteered in many ways helping the young, the old and the community. He is always helpful and loving. She can feel his regret for disappointing his parents and has learnt a lesson.

14.After his arrest, the defendant received some counselling from a school social worker. He was counselled about his further education, employment prospects and his emotional distress. He was positive and took advice. He continued to study and sit exams despite being on bail and he strives to become an engineer.

15.Mr. Wong, Counsel for the defendant stressed that the defendant was young and had a clear record. His plea of guilty shows his remorse. In fact, his best mitigation is his plea of guilty. Mr. Wong asked me to consider obtaining the full range of reports because he was only 17 years old before I considered sentence.

16.Bearing in mind the seriousness of the offence and the facts I found it appropriate only to call for a training centre and detention centre report as well as a psychologist’s report. One of the main reasons I called for these reports was to ensure I have every relevant detail and fact about the defendant to consider before sentencing.

17.I have read those reports and their contents. The family composition and his home life details tally with what I have been told in mitigation. It would appear that the defendant was a below-average student but had no behavioural problems. The defendant was polite and cooperated with the officer compiling these reports. He admitted his culpability and attributed it to his impulsiveness and weak law-abiding concept. He said he was remorseful and asked for leniency, promising to live a law-abiding life and study hard in the future.

18.The report is of the opinion that the defendant is mentally, psychologically and physically fit for detention in either a detention centre or a training centre but the recommendation is he would be more suitable for detention in a detention centre.

19.The psychologist assessed and interviewed the defendant. She found his cognitive assessment in the range of normal and he had the ability to differentiate right from wrong as well as understand the consequences of his behaviour. She found he had no indication of psychopathology during the assessment.

20.However, she found there were some risk factors for reoffending. His respect for the law and criminal justice system is weak. She found anti-law enforcement sentiment present and some thoughts that violation of the law was justified. He was highly influenced by social media and identified with other social media participants. She found that if he continues to receive biased information from online news and social media, continues to identify with participants in contemporary social events, maintains his sentiment against law enforcement agencies and his disrespect for the law and criminal justice system, then, his risk of reoffending increases.

21.In her conclusion she found that he would benefit from psychological intervention on consequential thinking and decision-making processes to benefit his reintegration.

22.It appears that the defendant did give the psychologist an explanation for his actions. Until October 2019 he had not participated in any protests but he read online news and other information from social media which led to his disagreeing with the police action against protesters. He identified himself with the protesters. He then learnt how to make petrol bombs and believed petrol bombs was a way to fight against the police. He claimed that he was unaware of the consequences of making and throwing petrol bombs before and during this offence. He now has had an opportunity to reflect and feels guilty. He also feels guilty for disappointing his family.

23.In further mitigation Mr. Wong submits a detention centre order would be the most appropriate sentence. He believes that this is where the defendant will benefit from the detention centre program so that there is a reduction in his risk of reoffending. I have had a second letter of mitigation from the defendant and he stresses his true remorse and pain in disappointing his family. He promises that he will turn over a new leaf and become a law-abiding citizen.

24.Mr Wong submitted that a term of imprisonment may not take into account the important rehabilitative principle of sentencing I should not ignore. He stresses that a detention centre order would be more helpful and a better place to rehabilitate the defendant or reform the defendant with a long term of supervision after his release. Mr Wong has said all he can say on behalf of the defendant.

Reasons for sentence

25.I bear in mind that this charge carries a maximum sentence of 10 years’ imprisonment. The intent behind the offence is serious and harmful. There should be no doubt in anyone’s mind that an offence of this nature, irrespective of motive or reason is to be taken and viewed with the utmost gravity. The defendant intended to destroy or damage property with those petrol bombs or Molotov cocktails in his possession.

26.Such criminal acts should never be confused or associated with legitimate and peaceful protest. The defendant’s reasons for making and possession of petrol bombs and his intent to destroy or damage property with petrol bombs makes him a criminal, not a protester. If he had proceeded to throw those petrol bombs to start fires and become an arsonist, his crime would have been regarded as an offence of particular gravity carrying a maximum term of imprisonment of life. Arsonists exhibit reckless disregard for property as well as the lives of others.

27.The date of the defendant’s arrest was 10 November 2019. This was during the height of the recent disturbances when many petrol bombs were thrown indiscriminately all over Hong Kong. What is relevant is the defendant’s preparation. He clearly wanted to make his mark with petrol bombs. He had three readymade petrol bombs strapped very conveniently to his waist in water bottle pouches.

28.What is also disturbing and relevant is the paraphernalia in his rucksack capable of making more petrol bombs. There were three more plastic bottles containing 1880mL of mainly cyclohexane and methyl-cyclohexane. I have taken into account the three readymade bombs contained 122 mL, 175 mL and 260 mL of the same liquid. If the defendant were to make more bombs using 122 mL for each he could have made about 15 more. If he were to make more bombs using 260 mL for each he could have made about 7 more. These chemicals are highly flammable organic solvents. Then there is the fact that petrol bombs are notoriously unstable weapons. Once ignited and thrown, it is difficult to foresee the possible or likely consequences and the scale of harm caused.

29.I also find it relevant and an aggravating factor that he was masked or disguised to evade detection. He was dressed from head to toe in black which included a mask and gloves. He also had three octopus cards in his waist bag I am sure to try and avoid detection and tracing. From what he was wearing and what he was carrying, the defendant was obviously very well prepared. I would say ready to cause chaos, damage and out to destroy property with fire.

30.I have taken into account his age, previous clear record, mitigation and the contents of the letters and the reports. His voluntary assistance with many community projects is commendable. I am sure his remorse is genuine and it weighs heavy on him that he has disappointed his family. However, this was not a young man acting impulsively as he claims; much planning went into his premeditated scheme. He has not offered any explanation for his actions in mitigation. I take into account what he told the psychologist and that was his actions stem from his dissatisfaction with how the police dealt with protesters.

31.I find his plea that he was acting impulsively and out of ignorance not convincing. After all, it appears he learnt how and did make petrol bombs because he believed they were a way to fight against law enforcement. He may be young but not so young as to not know the difference between right and wrong. I am sure he was not so young that he did not know what he had made, was carrying and what he intended to do with those petrol bombs was malevolent and acts of reprisal. His actions and intention show a contempt and disdain for law and order which he admitted by way of an explanation.

32.If a young person commits a serious crime, they cannot expect to turn their youth to their advantage. The age of a defendant is always a relevant mitigating factor in sentencing but youth notwithstanding, a court must keep in mind the classic principles of sentencing which, apart from rehabilitation, includes retribution deterrence and prevention.

33.It is most difficult to sentence a young person who was only 17 years old with a clear record. However, the youth of a defendant who commits a serious crime carries little weight when I consider the interests of the community as a whole. At that material time there was volatility in the community which could have been exacerbated by the defendant’s intentions. Society is prone to descend into anarchy if public order is not preserved and maintained.

34.I have given it much thought whether a detention centre or a training centre order would be appropriate and conclude that the offence and facts are too serious for either institution despite his age. Sentencing is a balancing act and in some cases the serious nature of the offence, facts proved and the recent prevalence of the indiscriminate use of petrol bombs in our streets requires a custodial sentence that serves as a deterrent to others. It will therefore take priority over the personal details and mitigation of this particular defendant as well as the principle of rehabilitation. A term of imprisonment is inevitable.

35.I take on board Mr Wong’s submissions and urge the defendant to continue to study whilst serving a term of imprisonment and even perhaps start his further education. This is entirely possible. I urge him to make use of the time to carry through on his promise to turn over a new leaf and better himself.

36.I find a starting point of 4 years’ imprisonment appropriate. That takes into account a consideration of his age. If the defendant had been older, the starting point would have been higher. The defendant pleaded guilty at the earliest opportunity and he will receive a one third reduction in sentence. 4 years reduced by one third is 2 years and 8 months. If I had considered a training centre order appropriate, I note he would have served at least 18 months’ detention in that centre up to a maximum of three years with a long period of supervision upon release.

37.The defendant is sentenced to 2 years and 8 months’ imprisonment.

38.I order the defendant be seen by a psychologist whilst he serves his sentence as suggested by the psychologist’s report in paragraph 12, namely to provide him with psychological intervention on consequential thinking and decision-making processes to benefit his reintegration.