HKSAR v. Chan Chun Fai, Kelvin

DCCC 278/2020

[2020] HKDC 856

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 278 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 2 charges. He pleaded guilty to Attempted Arson, contrary to Section 60(1), 60(3), 63(1) and 159G of the Crimes Ordinance, Cap 200, Charge 1. On 29 January 2020, near the vehicular gate entrance of Kwai Chung police station, Kwai Foo road, Kwai Chung, in Hong Kong, the defendant together with 2 persons unknown, without lawful excuse, attempted to destroy or damage by fire, police vehicles inside the police station, property belonging to the Hong Kong government, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged.

2.He also pleaded guilty to Charge 2, Possession of things with intent to destroy or damage property, contrary to Section 62(a) and 63(2) of the same Ordinance. On 4 February 2020 in room G07, 11^th floor, Kingsford industrial building, Phase 2, 26–32 Kwai Hei Street in Kwai Chung, the defendant had 11 petrol bombs, one can of lighter fluid, 2 bottles of drain cleaners and 3 empty glass bottles in his custody or under his control, intending without lawful excuse to use the said things or cause or permit another to use the said things to destroy or damage property belonging to some other person.

Facts of the Case

3.The defendant admitted that on 29 January 2020 at about 8pm he was with 2 other black clad masked males near Kwai Chung police station before the 3 of them rushed at the vehicular gate entrance of the station and threw at least 3 petrol bombs at the gate. They all ignited and exploded outside the gate blackening the area. The 3 men ran away immediately.

4.There is CCTV footage of the defendant moving between Kingsford industrial building nearby and the police station as well as meeting up with the 2 other males. There is CCTV footage of them throwing, it appears, 4 petrol bombs at the station. The CCTV footage just inside and outside the police station was played in open court, MFI-1 and I have screenshots from the footage, MFI-2. The 3 people clad in black from head to toe can be seen lighting petrol bombs and throwing them towards the vehicular entrance of the station.

5.A pedestrian in a bright red jacket walking in front of that vehicular entrance was stopped dead in her tracks as petrol bombs were literally thrown in her direction. Luckily, the defendant and the others threw from behind a railing which meant they could not get closer or rather they were too afraid to get closer, otherwise she could have been hit by one of them. Fortunately for this pedestrian, they did not get close enough because of the railing to make it a complete offence hence it is an attempted charge.

6.On 4 February 2020 the police lay in wait outside Kingsford industrial building at about 6pm. At 10:45pm they saw the defendant riding a bicycle to leave the building. He was intercepted and arrested for arson. Under caution he admitted having thrown petrol bombs at the station with the intention of burning vehicles inside the compound. He did it for fun. He threw petrol bombs with 2 other people.

7.After his arrest he was searched and keys were found as well as a receipt dated 20 December 2019 for buying, amongst other things, lighter fuel and spray paint as well as another receipt for the same date for plastic wrap, lighters and aluminium foil. One of the keys was for room G07 on the 11^th floor of Kingsford industrial building.

8.Those premises were searched after his arrest and the police seized 11 more petrol bombs from inside or near a black rucksack in the premises. 9 of the bottles had plastic stoppers and were wrapped with cloth for better grip I assume, one was stuffed with a cloth wick and the other a plastic stopper. The defendant admitted under caution that these were 11 more petrol bombs made before the attack on the police station. The police also found a black ski mask, a black shirt and trousers as well as a pair of black shoes which the defendant said he wore when he threw petrol bombs at the station.

9.In addition to those petrol bombs, the police also found 2 more bottles of drain cleaner, one bottle of colourless lighter fluid, 3 empty glass bottles, one respirator, and a red cap and jacket. Photographs of the premises and items found are in MFI-4.

10.The tenant of room G of the 11^th floor told the police that she had subdivided room G into 8 rooms and that the defendant entered into a tenancy agreement to rent room G07 from 13 December 2019 to 12 December 2021 for a monthly rent of $6300 plus electricity. The defendant had 2 keys and the password code.

11.There was a video recorded interview where the defendant admitted that on 29 January 2020 at around 8 PM he and 2 other men all dressed in black threw 2 petrol bombs and 2 gas canisters at the police station intending to burn police vehicles inside. He had met these 2 other men at a protest about a month before this incident but refused to provide their contact details and identities to the police.

12.He admitted arranging to meet the 2 men that evening with 4 petrol bombs in his bag before they set off together for the police station. He threw the 1^st petrol bomb and the 2 other men threw one each after him. He then threw the last petrol bomb before they all immediately dispersed and went their own ways. He ran to his bicycle and cycled back to Kingsford Industrial Building. He identified himself as one of the 3 persons captured by the CCTV footage of the police station throwing petrol bombs. He had changed clothes before and after he threw petrol bombs to avoid being recognised or identified.

13.He admitted making those petrol bombs that were thrown as well as those found in the unit in the industrial building. He had made them by pouring lighter fluid and spray paint into glass bottles. He told the police where he bought the liquids. He learned how to make a petrol bomb on the Internet. He says he did it himself without help from others. He said the remaining 1L of drain cleaner and 2.2L of lighter fluid would be used to make more petrol bombs. The respirator was for future protests.

14.The defendant said that everything in the premises belong to him but for the red cap and red jacket which belonged to one of the other 2 men. He said he had rented the premises from mid-December 2019 to record music.

15.He did tell the police in his interview that he felt remorse and acted recklessly for the social movement. He had affected his future by committing these offences but had not helped the social movement in any way.

16.A government chemist examined the burned debris and damaged gas canisters found in front of the vehicular gate of the station and confirmed that they contain traces of highly flammable solvents and highly flammable compressed gas. Photographs in MFI-4 show the items recovered and the blackened road surfaces.

17.Similarly, the chemist found all 11 petrol bombs seized from the premises in Kingsford industrial building contained an organic mixture of highly flammable solvents whilst 3 of the 11 petrol bombs also contained a liquid containing sulphuric acid with high concentrations. This meant that they were highly corrosive and capable of causing severe skin burns and permanent visual damage. The 2 bottle of drain cleaners found contained a total of about 1 L of a liquid containing sulphuric acid of a high concentration, of 97%. The 2.2 L bottle of colourless lighter fluid found contained an organic mixture containing highly flammable solvents.

18.The defendant admitted throwing petrol bombs without lawful excuse intending to destroy or damage police vehicles inside the police station or was reckless as to whether such property would be destroyed or damaged.

19.He also admitted all items particularised in Charge 2 were in his custody or under his control to be used by him or others to damage property belonging to some other person by fire without lawful excuse.

Mitigation

20.The defendant is now 18 years old. At the time of these offences he was 17. He had a clear record and had left school a few months before his arrest having completed Form 4. He was working as a part-time transportation worker and trumpet tutor. He lives with his parents in Kwai Chung. In mitigation I have received a large number of letters which defence counsel, Mr Leung hopes will give me an insight into the defendant to assist me in sentencing.

21.I don’t intend to repeat the contents of all the letters. They come from principals and teachers from his primary school and secondary school. There are letters from those who have taught him trumpet and played musical instruments with the defendant. They praise his dedication and hard work. Lastly, there are letters from the defendant himself, family friends and relatives.

22.The defendant was diagnosed with attention deficit hyperactivity disorder (ADHD) with features of oppositional defiant behaviour disorder in his childhood. I have a recent psychiatrist’s memo dated 25 June 2019. It gives a brief history of the defendant’s diagnosis. At that time, he was worried about having to repeat Form 4 because of unsatisfactory academic performance. If he had started school in September 2019 he was willing to resume medical treatment for attention deficit and his impulse control issues.

23.That psychiatrist recommended he be promoted to Form 5 with better guidance and supervision from the school social worker. That psychiatrist also advised his parents how to deal with issues in the upcoming school year. In the end, he did not attend school from September 2019.

24.In the defendant’s own letter, he expresses remorse and says time spent already in remand makes him feel like he is wasting his life and youth. He has taken the time to write countless letters to his loved ones to warn them that the price of breaking the law is too high. He finds it particularly difficult not being able to play his musical instrument. He wants to pursue his musical dreams. He committed these crimes without considering the consequences and the social unrest made him act impulsively. He used the wrong method to express his emotions.

25.Many of the letters refer to his ADHD. I have been asked to take it into account. He has been described as impulsive at school, losing his temper easily and finally quitting out of frustration and disappointment. He was observed to be easily influenced by peers. It was suggested because of his ADHD he was more affected by the protests and social discontent which made him confrontational, reckless and have a need to impress peers.

26.Family members have told me he did not come from a particular happy family home and he was exposed to much argument and conflict. His parents started divorce proceedings recently which had an impact on the defendant himself. He was left to his own devices often; even to feed himself.

27.Mr Leung has said all he can say on behalf of the defendant. The defendant did have good academic grades which got him into an academic secondary school. He was musically talented. It appears his schooling was affected by his then untreated ADHD which led to him leaving school early. Letters from relatives and family friends emphasise that he was a kind boy growing up. One comments how she is proud he is admitting his crimes and taking responsibilities for his actions. Defence counsel does not try to justify the actions and intentions of the defendant but does stress his regret.

28.It was also suggested that although he made the petrol bombs and packed 4 in a rucksack to go and meet the other 2 wanted males, he did have second thoughts. He was scared to go and meet them to carry out their plan but in the end, he did.

Reasons for Sentence

29.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 seriousness.  The Court of Appeal said in The Queen v Li Mun Tong CACC 309/1994 “Arson, because of the inherent danger in any uncontrolled fire, is always regarded as an offence of particular gravity.  Arsonists exhibit reckless disregard for life and property.”

30.The 1^st charge under s 60(1) of the Crimes Ordinance, which the defendant is facing, is less serious than a charge under s 60(2); as the latter has to be sentenced on the basis of arson endangering the life of another, while the former only involves damage to property.  What was accepted by the prosecution and admitted by the defendant was his intention to destroy or damage vehicles inside a police station or being reckless as to whether such property would be destroyed or damaged.  

31.Arson is a very serious offence which carries a maximum sentence of life imprisonment.  Such a maximum sentence highlights the seriousness with which deliberately starting fires must be viewed.  There are no tariff guidelines for arson.  Each case very much depends on its own facts and circumstances; these vary so much in cases of arson.  The 2^nd charge carries a maximum sentence of 10 years’ imprisonment.

32.In HKSAR v Kung Pak Fu 2008 2 HKCLRT 240 the Court of Appeal reviewed a number of arson cases and said at paragraph 23:-

“….. arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for this offence because its gravity differs from case to case, particularly in cases involving family disputes or souring of relationships. The court must impose a sentence which properly reflects the gravity of the particular case.”

33.In Hong Kong there are no previous authorities with similar facts.  The scenario where petrol bombs are intentionally thrown at a police station with the intention to damage property inside the compound is unprecedented here as far as sentencing in the District Court is concerned.  Charge 1 involved an attack on a police station and public property. It was a direct attack on law and order in our city.

34.By January 2020 Hong Kong had seen and dealt with citywide conflicts, protests, destruction of property and countless incidents of petrol bombs being thrown indiscriminately. The defendant’s actions were perpetuating this type of violence.

35.The fact the defendant was young and of previous good character does not carry significant weight when the intention is to cause serious damage to property by arson. Such an intention would be enough to warrant a sentence of significant length.

36.Sentencing is a balancing act and in some cases the serious nature, circumstances and the prevalence of the offence at that time requires a custodial sentence that serves as a deterrent to others and will therefore take priority over the personal details and mitigation of an individual defendant. Courts will impose a sentence that is punitive and sufficiently deterrent in accordance with principles established in applicable case law. 

37.Sentencing emphasis is not on rehabilitation in serious arson cases. The public must be protected. The punishment must reflect the gravity of the offence and be deterrent. Only in very few instances would the principle of rehabilitation be the more important consideration over a deterrent approach. On this, I have taken into account what has recently been said in HKSAR v SWS CAAR 1/2020by the Court of Appeal. That court also emphasised how extremely dangerous petrol bombs can be, not only to those that throw them but also to those around them.

38.I took into account the defendant is 18 years old and despite the serious facts and full mitigation I had already heard, I called for a Training Centre report. I also called for a psychiatrist report as it was submitted his childhood diagnosis may have something to do with the commission of these offences. These reports ensure I have all relevant facts and mitigation before me before I sentence.

39.I won’t repeat the contents of either reports here. The reports go through the history of his diagnosis of ADHD in childhood and his non-compliance with medication during his adolescent years. There is no evidence or suggestion ADHD played any part in these offences. The Training Centre report says the Medical Officer has deemed the defendant medically unfit for detention in a Training Centre. His opinion is unrelated to ADHD. In any event, I would not have ultimately considered a Training Centre order. The facts and the charges are too serious to consider a Training Centre order appropriate.

40.There are features in this case which I have taken into account in considering an appropriate starting point. These were planned, calculated and premeditated offences; the defendant bought materials and made petrol bombs in premises he had rented away from his home. He was the one who took the time to learn how to make them from the Internet and spent money buying the materials to create weapons; dangerous and notoriously unstable weapons. There was prior preparation and certainly these were not offences committed on the spur of the moment or impulsively.

41.His manner of dress is relevant, the fact is the defendant was dressed head to toe in black to avoid arrest and identification if possible. He changed before and after throwing petrol bombs. He was prepared to carry out his plan to cause damage after making petrol bombs when it was arranged he meet 2 other assailants carrying some of the petrol bombs in his bag to go to the police station.

42.Lastly, it is an aggravating factor that for this arson offence the defendant intended to use petrol bombs to achieve his purpose. This was not a case of arson by setting fire to newspaper or rubbish. Damage could have been considerable because once a petrol bomb is ignited and thrown, it is quite impossible to foresee all the possible or likely consequences. An accelerant by its nature, speeds the progress of a fire considerably. That is why I describe a petrol bomb as a dangerous and unstable weapon.

43.The CCTV footage demonstrates how dangerous and unstable they are. One of the black clad men lit a petrol bomb and it appears to flare up whilst he is still holding it. I’m sure that was not intended. He throws it at 20:09:02 according to the time on the CCTV footage. The 4^th and last one is thrown at 20:09:08 before they run away. What can clearly be seen is that before the 1^st one is lit and thrown there is a lone woman in a bright red jacket walking outside the police station and is half way across the entrance of the car park. One of the petrol bombs landed close enough that its flames reached the pavement very near her. She, an innocent bystander, was very close to the fires and explosions caused by those petrol bombs.

44.Either the defendant and other 2 men did not see her, which I find hard to believe or they did not care. They are lucky she was not hit by a petrol bomb or glass fragments or its subsequent flames and the defendant is fortunate the prosecution did not consider the more serious arson charge contrary to section 60(2). A charge of being reckless as to whether the life of another would be thereby endangered.

45.I note that at 20:09:08 the 3 men run away and the woman in the bright red jacket hurries past the vehicular entrance and the fires to her right on the road. After that, vehicles have to stop because of the fires on the road which look like they are pettering out when suddenly at 20:09:41 there is an explosion from one of the fires. If anyone had approached those by then small fires or been near enough at that moment, one can only imagine the serious consequences.

46.The particulars of Charge 2 accuses the defendant of having possession of things with intent to destroy or damage property, namely 11 petrol bombs, lighter fluid, bottles of drain cleaners containing sulphuric acid with a very high concentration and other material capable of making more petrol bombs. He admits these things are for and purposely made to commit arson. I find it a relevant factor that 3 of the ready-made petrol bombs contained sulphuric acid at a concentration level of 97%, 82% and 80% respectively. This means that if that liquid had come into contact with a person, the liquid was highly corrosive and capable of causing severe skin burns and permanent visual damage.

47.I have considered all the facts and the factors I have highlighted above. I have also taken into account the defendants mitigation, background, his previous clear record and his age at the time of the offence. It was part of his mitigation that his childhood diagnosis of ADHD contributed to these offences. The Psychiatrist report does not support that mitigation. Nothing in the facts or the mitigation suggests to me that that diagnosis is a mitigating factor of any significant weight or even relevance. His best mitigation is his plea of guilty.

48.For Charge 1, I adopt a starting point of 5 years’ imprisonment. For Charge 2, I adopt a starting point of 3 years and 6 months’ imprisonment. The defendant pleaded guilty at the earliest opportunity, therefore he will receive a one-third reduction in his sentences. Other than this, there is nothing I find would warrant any further reduction.

49.Accordingly, the defendant is sentenced to 3 years and 4 months’ imprisonment for Charge 1 and 2 years and 4 months’ imprisonment for Charge 2.

50.Taking into account the totality principle and the fact that those things the defendant possessed with intent to destroy or damage property were found days after the attempted arson charge, I find it appropriate to order 6 months of Charge 2 to be served consecutively to the 3 years and 4 months of Charge 1 and the balance concurrently.

51.I am of the view that an overall sentence of 3 years and 10 months properly reflects the defendant’s criminality and culpability. Therefore, the defendant is sentenced to 3 years and 10 months imprisonment.