HKSAR v. Leung Yat Chi Frankie

DCCC 105/2020

[2020] HKDC 746

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 105 OF 2020

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Reasons for Sentence

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1.The defendant pleaded guilty to three charges. On the fourth day of September 2019 the defendant had in his possession one imitation firearm, an airgun (Charge 1). On the same day in a public place, without lawful authority or reasonable excuse, he had with him two offensive weapons, two knifes (Charge 2). Lastly, on the same day, he drove a vehicle on the road dangerously (Charge 3).

Summary of facts

2.At about 6.50 pm on 4 September 2019, three police officers were on board a police vehicle, AM8437, travelling along the Island Eastern Corridor westbound towards Causeway Bay when the defendant, in a light goods vehicle, VW3193, suddenly overtook AM8437 from the offside, so close that the police driver had to apply his brakes immediately in order to avoid a collision with the defendant’s vehicle.

3.The driver turned on the police flashing blue emergency lights and switched on the vehicle’s loudspeaker before requesting the defendant to pull over.  The defendant refused the request and then proceeded to drive dangerously through several streets of Causeway Bay and North Point.  AM8437 chased the defendant and repeatedly demanded he stop over the loudspeaker. The defendant weaved in and out of vehicles and jumped two red lights before pulling over.

4.AM8437 had a camera, which captured the chase through the streets at times at speed and the erratic driving manner as well as the defendant jumping red lights twice at busy junctions.  Luckily, no other driver or pedestrian was injured.  The CCTV of that camera was viewed in court during mitigation.

5.Whilst AM8437 was following the defendant’s vehicle, on at least four occasions, the defendant extended his right hand out of the driver’s window and pointed a pistol-like object, later known to be an airgun, at the police vehicle behind him.

6.During this car chase, the defendant stopped at a traffic light on King’s Road outside Metropole Building and alighted from his vehicle.  He then pointed the gun at AM8437 behind him before getting back into the vehicle and driving off.  This was also captured on CCTV.

7.Eventually the defendant stopped his vehicle on Kin Wah Street in North Point and got out of his vehicle, pointing the airgun at the police vehicle that had pulled up behind him.  Three police officers alighted from AM8437 and ordered the defendant to drop the airgun.  When he did, they went forward and subdued him.  He was arrested at the scene.  Under caution, he stated that he wanted revenge for the protestors because the police had beaten them up.

8.He was searched and the police found on him another magazine to fit the same airgun containing 24 plastic pellets.  They also found two surgical knives in a pouch at his waist area.  In the airgun that he had pointed at the police and subsequently dropped to the ground was a magazine containing 22 plastic pellets.  The police found another separate magazine for that airgun inside the defendant’s vehicle.

9.The police also seized a mobile phone from his waist-bag at the time of his arrest and found during a preliminary examination, messages and posts about killing police officers and killing those who supported the proposed extradition bill that were sent from and posted on the defendant’s WhatsApp and Facebook accounts.

10.He was subsequently taken to his home address where a search was conducted.  The police found another airgun, an air rifle that was not in working order, four more magazines, some parts resembling the components of a air rifle, and two sharpened samurai swords.  Those magazines found at the scene and in his home were designed to store 6mm calibre plastic pellets.

11.There was also a desktop computer seized and an examination of it found two Microsoft Word documents containing contents about beating up and/or killing police officers.

12.The defendant gave two video recorded interviews under caution and he told the police that he was working as a delivery driver. He was receiving regular psychological treatment.  He was referred to what he said under caution at the scene and he elaborated that it was the police who had abused their powers on 31 August 2019.  When asked about the two surgical knives he was carrying, he said he planned to use them to stab the police because they had made unreasonable arrests, fired tear gas, and used unreasonable force.  He was planning to kill an off-duty police officer at a police station but he had no specific officer nor a specific police station in mind.

13.On that day he had received a parking ticket when illegally parked earlier and he was angry.  When he saw the police vehicle AM8437, he wanted to provoke the police.  He admitted that when he was driving dangerously and on several occasions he pointed his airgun out of the driver’s window at the police vehicle and he fired pellets from his airgun at it.

14.He explained that the WhatsApp messages and Facebook posts were sent and posted by him.  They were about killing police officers and killing supporters of the extradition bill.  He did say that he was making comments in those posts and had no actual intention to kill anybody.

15.The airguns and magazines found in his home were used by him when he played war games and he had recently purchased those samurai swords.  He did sharpen them and had thought of using them to kill police officers and people from Fujian.  However, he had no actual intention to kill anybody.

16.The defendant admitted the Summary of Facts and the elements of all three charges.  He is not a man with a clear record.  He has five previous convictions.  In 2008 he was ordered to serve a probation order for an indecent assault conviction.  In 2010 he was fined for a common assault.  In 2018 he was convicted of two charges of indecent assault and one charge of possession of an offensive weapon in a public place after a plea.  It was this court that sentenced him to 1 year and 8 months’ imprisonment after a plea.

Mitigation

17.The defendant is now 38 years old and before his arrest he was working as a driver, earning $15,000 a month.  He lives alone after his parents passed away.  I have been told previously that he is close to his aunt but not close to his only sibling.

18.Back in 2018, for the purposes of sentencing the defendant, I had called for medical reports.  A psychologist said the defendant was a man with a mild grade intellectual disability.  In an updated psychiatric report from the Castle Peak Hospital, where the defendant has been receiving treatment since 2018, which I now mark as MFI-1, a psychiatrist said the defendant was impressed to have autistic spectrum traits given his social and speech deficits.  After his release from his last prison sentence, he continued to have outpatient follow-up treatment.  He was on medication.

19.He was seen by this psychiatrist after his arrest for these offences and he told the doctor he was having some emotional fluctuation because of the social unrest and that he was disgruntled with the police in how they executed their duties.  He had developed a hatred towards police officers and said he began to carry on him an airgun and knives when he went out since late August 2019 as he felt unsafe travelling around in areas where there were frequent protests. 

20.He told the psychiatrist that on the material day he tried to overtake the police vehicle which led to the police ordering him to pull over.  He felt he was being provoked by those police officers and was angry.  He then took out his airgun and shot a few times aiming at the body of their vehicle.  He owned the airgun because he was fond of playing war games.  The doctor’s conclusion was that he had traits of autism spectrum disorder and an underlying paraphilia disorder.  Continued treatment is recommended.

21.I referred myself to my Reasons for Sentence in DCCC 262/2018, when I sentenced the defendant to a term of imprisonment.  I was given an insight into the defendant’s upbringing by his aunt.  She wrote and said that his mother had had a difficult birth with him.  He had been starved of oxygen during the birth, which led to him having a mild grade intellectual disability.  He was originally studying at a special school when he started school because of an autism diagnosis but he later transferred to a mainstream school.  However, there he was mercilessly bullied by the children because he had a noticeable speech impediment.

22.I was told he developed behavioural problems at school and was referred to a psychologist even then.  He dropped out of school in Form 4.  In 2008, when he committed his first offence, he did get proper psychological help and treatment but that stopped when his probation order ended, which was very unfortunate.  He was close to his mother but she died in 2011, leaving him to fend for himself.

23.In mitigation, Mr Ng for the defendant has said all he can say on his behalf and I thank him for his written submissions.  He explained that just prior to the offence date the defendant had damaged his employers vehicle and had to pay compensation.  This left him struggling to make ends meet financially.  He had no close friends nor family able or willing to lend him money or financially support him.  He even had trouble with everyday expenses.  This left him under great stress emotionally.

24.On the date of the offence he had no money for food or parking fees.  He had asked his employer for an advance from his salary due in two weeks but his request was refused.  He was upset and sad by this refusal and his stress was amplified.

25.He was on his way to make a delivery when he saw the police vehicle AM8437.  This made him think of the recent clashes between the police and protestors.  These thoughts, coupled with his unhappy, stressed state of mind, led him to commit these offences impulsively.  He wanted to vent his unhappiness and resentment towards the police so he pointed his airgun at their vehicle.  He only intended to aim at the vehicle, not at police officers or anybody else.

26.He did carry around two surgical scalpels he had bought online but for his own sense of security rather than because he had a real intention to stab somebody.  It was said in mitigation that in fact he dared not harm anybody.  I have a letter from the defendant himself stressing this mitigation.  I also have a letter from a ministry officer of a Christian group who has come to know the defendant well since his incarceration in 2018.

27.Mr Ng rightly points out that, according to the Firearms and Ammunition Ordinance, Cap 238, a person would be liable to a maximum term of imprisonment of 2 years for possession of an imitation firearm, unless they, within 10 years of being convicted of an offence specified in the schedule or an offence under that same ordinance, commit that offence of possession of an imitation firearm.  If they fall foul of that section, then they are liable to imprisonment a maximum term of 7 years.  The defendant was convicted of indecent assault in 2018 and common assault in 2010, which are offences under that schedule.  Therefore he now faces a maximum term of imprisonment of 7 years for Charge 1.

28.I have been referred to the official report of proceedings in the Legislative Council dated 8 July 1981, where there was a second reading of the Arms and Ammunition bill to replace the former Arms and Ammunition Ordinance.  I have now marked it as MFI-2.  Mr Ng stresses the legislative intent in enhancing the maximum sentence if an offender has been convicted of an offence under the schedule in the previous 10 years was to penalise and deter the possession of imitation firearms for illegal purposes. I have been referred to page 1025.

29.Mr Ng submits that the possession of an imitation firearm in this case was not related to an offence such as common assault and indecent assault, these being his past convictions that enhance the maximum sentence to one of 7 years.  Therefore, the current case and facts lack the requisite aggravating factor to impose a sentence that is higher than the normal maximum penalty of 2 years’ imprisonment.  The defendant did not carry an airgun to commit an offence related to violence or an offence of a sexual nature.

30.With respect, I do not agree.  By his own admissions, the defendant used the airgun to shoot at the police vehicle in a very public place; that is during rush hour in the busy streets of Causeway Bay and North Point.

31.I have been referred to many previous sentences involving possession of an imitation firearm, possession of an offensive weapon in a public place, and dangerous driving.  Most of those cases and authorities have very different facts to this case.  None of these offences have guidelines or tariffs.  Sentences therefore will be decided on the individual facts of each individual case.

32.What is stressed in mitigation is the defendant did not use the firearm to rob a victim or the scalpels to commit a similar offence.  He committed the current offences because of his anger towards the police.  His anger was amplified by his own financial difficulties.  He saw the police vehicle and vented his emotions impulsively.  It is stressed that no police officer was injured nor was any member of the public as a result of his actions and dangerous driving.

33.I take into account everything said on behalf of the defendant and being angry with the police or indeed any public body or person is not an offence but actions arising from that anger, even if impulsively, that are criminal in nature bears consequences.

34.His actions of overtaking the police vehicle too closely and then driving dangerously may not have been premeditated or planned but he did have in his vehicle an airgun with magazines containing plastic pellets which he subsequently aimed and fired as well as two sharp surgical scalpels in pouches on his waist.  He made a conscious decision to carry them on his person and in his vehicle. 

35.The defendant knows full well that carrying weapons out in public could lead to his arrest, conviction and imprisonment because I only sentenced him to prison for the same offence in August 2018; that is about one year before this offence.

Reasons for sentence

36.I have to balance the defendant’s personal mitigation and mental issues against the seriousness of the offences and his culpability.  I have taken into account he lives independently, has full-time employment, and knows the difference between right and wrong.

37.His posts on his mobile phone sent out on Facebook and WhatsApp as well as the documents on his home computer containing similar contents about beating up or killing police officers show that not only was he thinking about violent acts against the police and those that supported the extradition bill, but that he was verbalising them publicly as well.  Not only did he verbalise his opinions and hateful violent thoughts but carried an airgun and surgical scalpels out in public whilst such thoughts were running through his mind.

38.This, in my view, amplifies the seriousness of the facts and Charges 1 and 2.  The facts in this case show he is capable of foolish, impulsive acts driven by his emotions.  It is not unimaginable that he might have acted on some of those more violent thoughts.  After all, he acted on his emotions when he saw a police vehicle on the road.  When told to stop by the police after a particular bad piece of driving, he acted in an irrational manner and then drove dangerously.

39.I do take into account the fact that the imitation firearm, the airgun, was capable of discharging energy less than 2 joules and 6mm calibre plastic pellets.  It was not a powerful airgun.  There is no evidence to the contrary.  However, the police following him were not to know that at the time, nor were other drivers and pedestrians near him who watched him get out of his vehicle or lean out whilst driving and fire it at the police vehicle behind him.  There could have been other foreseeable consequences if drivers or pedestrians had been alarmed and frightened by his actions.

40.Having considered the facts of the case, mitigation put forward, the defendant’s remorse, and mitigation letters submitted, I find a starting point of 3 years and 6 months’ appropriate for Charge 1. 

41.Charge 2 carries a maximum of 3 years’ imprisonment on indictment and I find it appropriate to impose the maximum as a starting point, where the weapons were two surgical scalpels and he expressed an intention to use violence against a police officer.

42.Charge 3 carries a maximum sentence of 3 years’ imprisonment for dangerous driving and a fine of $25,000.  There is also a minimum disqualification period of 6 months and a requirement for an order for the defendant to attend and complete a driving improvement course.  The defendant has one previous for careless driving in 2014 and several speeding tickets.

43.The courts have often reminded motorists in sentencing that a motor vehicle, when not driven to requisite standards, can kill or maim.  A vehicle can become a dangerous weapon and normally deterrent sentences are called for.

44.This is not a case where a driver had a momentary lapse of judgment and drove dangerously, but a more serious and culpable case where the defendant had a selfish disregard to other road-users and pedestrians at that time.  There was a lot of traffic at that time and he weaved in and out of that traffic at speed to avoid the police.  He then jumped red lights, putting pedestrians and other road-users at risk.  This is made worse by the fact that he was disobeying and ignoring an order by the police to stop his vehicle, necessitating a chase through busy streets.

45.I find a starting point of 2 years and 6 months’ appropriate for Charge 3.  In addition to imprisonment, I make a disqualification order from driving all classes of vehicle for a period of 18 months.

46.The defendant pleaded guilty to all charges at the earliest opportunity and is therefore entitled to the full discount for that plea and demonstrable remorse.

47.After a discount of one-third is applied to all starting points for these pleas of guilty, the defendant is sentenced as follows:

(1) Charge 1: 2 years and 4 months’ imprisonment;

(2) Charge 2: 2 years’ imprisonment;

(3) Charge 3: 1 year and 8 months’ imprisonment.

48.I take into account the totality principle and how all the charges are linked.  I find the dangerous driving charge quite distinctly separate to Charges 1 and 2, even if committed at the same time.

49.Accordingly, I will order Charges 1 and 2 to be served concurrently and 8 months of Charge 3 to be served consecutively to Charge 1 and the balance concurrently.  Accordingly, the defendant is sentenced to 3 years’ imprisonment.

50.The 18-month driving disqualification period will start to run from the date of sentencing; that is, today.  The defendant is to complete a driving improvement course at his own expense within the last three months of the expiration of his disqualification period.  The defendant is also warned that it is an offence not to attend and complete this course and that he remains disqualified until he attends and completes the driving improvement course, notwithstanding the disqualification period may already have ended.

COURT: Can I ask you if you understand that sentence?

DEFENDANT: Understand.

COURT: And the disqualification order, period of it and the requirement to attend a driving improvement course, you understand that?

DEFENDANT: Understand.