HKSAR v. Yiu Siu Hong
Read the full judgment text of CACC 96/2020 on BabelCite. This Court of Appeal judgment was delivered on 31 December 2020 before Zervos JA.
Criminal law – sentencing – attempted arson with intent – possession of offensive weapons in a public place – petrol bombs – 2019 Hong Kong social unrest protests – police operation to clear barricades in Tseung Kwan O – plea of guilty – one-third discount – starting point – aggravating factors – reliance on UK Sentencing Council guidelines for public order offences – whether reliance on UK Guidelines without prior warning to the defence amounted to a denial of natural justice – whether the elements of culpability and harm in the UK public order guidelines can inform sentencing for arson in Hong Kong – whether a 6-year starting point for attempted arson with petrol bombs was manifestly excessive – held that the judge did not follow or apply the UK Guidelines' approach but only drew upon them in general terms to identify relevant sentencing principles – held that the principles of culpability and harm are well known to this jurisdiction and their use did not warrant appellate intervention – held that arson warrants heavy deterrent sentences and a customary starting point of 4 to 6 years' imprisonment applies in Hong Kong – held that the 6-year starting point was not manifestly excessive in the light of aggravating features – premeditation, manufacture of petrol bombs, disguise to evade detection, and direct targeting of police officers clearing barricades – District Court arson cases arising from the 2019 protests adopted starting points of 5 years or more – application for leave to appeal refused – applicant reminded of right to renew application with warning as to possible loss of time direction – sentencing: Charge 1 starting point 2 years 6 months reduced by one-third for guilty plea to 1 year 8 months; Charge 2 starting point 6 years reduced by one-third for guilty plea to 4 years; sentences concurrent, total 4 years' imprisonment.
Legal issues: Reliance on UK Sentencing Guidelines without prior warning · Applicability of UK public order guidelines to arson offence · Whether 6-year starting point for attempted arson was manifestly excessive
Outcome: Application for leave to appeal against sentence refused.
Cited by 22 cases · Cites 15 cases
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CACC 96/2020 [2020] HKCA 1087 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 96 OF 2020 (ON APPEAL FROM DCCC NO 57 OF 2020) _______________
_______________ Before: Hon Zervos JA in Court Date of Hearing: 29 December 2020 Date of Judgment: 31 December 2020 ________________ J U D G M E N T ________________ Introduction 1.On 15 June 2020, the applicant appeared before District Judge Woodcock (the judge) and pleaded guilty to possession of offensive weapons in a public place, contrary to section 33(1) and (2) of the Public Order Ordinance, Cap 245 (Charge 1) and attempted arson with intent, contrary to sections 60(2) and (3), 63(1) and 159G of the Crimes Ordinance, Cap 200 (Charge 2).[1] 2.On 24 June 2020, the judge sentenced the applicant to 1 year and 8 months’ imprisonment on Charge 1 and 4 years’ imprisonment on Charge 2. She ordered that the sentences be served concurrently, resulting in a total sentence of 4 years’ imprisonment.[2] 3.On 16 July 2020, the applicant filed a notice of application for leave to appeal against sentence which was followed by the filing of Perfected Grounds of Appeal on 15 October 2020. The grounds of appeal only complained about the sentence on Charge 2. The grounds of appeal 4.Mr Steven Kwan, for the applicant, advances the following broad issues in relation to the application:
The offence provisions and penalties 5.Whilst no complaint is made about the sentence imposed on the applicant in relation to Charge 1, it is appropriate to set out the offence and penalty provisions of the two charges to put the overall offending of the applicant in context. 6.The offence provision under Charge 1 is section 33(1) of the Public Order Ordinance, which reads:
7.Under section 2 an offensive weapon “means any article made, or adapted for use, or suitable, for causing injury to the person, or intended by the person having it in his possession or under his control for such use by him or by some other person.” 8.The penalty provision of this offence is structured on the basis of the age of the offender and is set out under section 33(2), which reads:
9.The penalty provision is further qualified by section 33(3) and (4), which read:
10.The offence provision under Charge 2 is set out under section 60(2) and (3), which read:
11.The penalty provision for this offence is set out under section 63(1), which reads:
12.The offence committed by the applicant under this section was in its inchoate form because he unsuccessfully attempted arson and this is provided by section 159G of the Crimes Ordinance. Section 159J provides that a person found guilty by virtue of section 159G(1)(b) of attempting to commit an offence “shall be liable on conviction on indictment to any penalty to which he would have been liable on conviction on indictment of that offence.” 13.It is appropriate to note that the English Court of Appeal in R v Bouch [1983] 1 QB 246 held that a petrol bomb, comprising petrol in a bottle and a wick, which when lit and thrown causes a pyrotechnic effect, constitutes an “explosive substance” within the terms of section 9(1) of the Explosive Substances Act 1883. The equivalent provision in Hong Kong is section 52 of Part VII of the Crimes Ordinance. See HKSAR v Kwan Ka Hei,[3] in which the Court of Final Appeal discussed the definition of an “explosive substance”. The background and facts of the case 14.The offence to which the applicant pleaded guilty took place in the early evening on 13 October 2019 in Tseung Kwan O where several hundreds of protesters had assembled. The prevailing conditions at this time were recently explained by the Court of Final Appeal in Kwok Wing Hang and others v the Secretary for Justice and Chief Executive in Council,[4] that “between June and October 2019, Hong Kong, a city long regarded as safe, experienced an exceptional and sustained outbreak of violent public lawlessness”, and as a consequence “by early October 2019 the situation in Hong Kong had become dire”.[5] 15.The facts outlined to the judge and admitted on behalf of the applicant,[6] show that at about 6:15 pm on 13 October 2019, around 40 to 50 protesters had set up barricades and blocked the junction of Tong Chun Street and Tong Ming Street, Tseung Kwan O. Police officers were deployed to restore order and facilitate the flow of traffic. Upon their arrival at about 6:35 pm, some protesters had dispersed. 16.At around 6:41 pm two layers of barricades were placed across the road. While the police officers were clearing the barricades, the applicant walked out from the direction of the second layer of barricades outside Tong Ming Street park. He had in one hand a petrol bomb, which was made of a glass bottle containing petrol with a cloth inserted inside the bottle, and in the other hand a lighter. The applicant walked towards the police officers who were clearing the barricades and attempted to ignite the petrol bomb with the lighter. His actions were witnessed by four off-duty police officers who immediately rushed toward the applicant to disarm him of the petrol bomb. One of the police officers grabbed his hand that was holding the petrol bomb and a struggle ensued. The applicant attempted to flee but he was prevented from doing so by the police officers who eventually subdued him. 17.It was admitted that the applicant was dressed in a black jacket, a blue T-shirt, black long trousers, a black cap, gloves and a black balaclava. He had in his rucksack another petrol bomb, a white cloth, a laser pointer, a helmet, a respirator, 15 plastic straps, a can of spray paint and a pair of forearm sleeves. Both petrol bombs contained flammable liquid. The applicant was arrested and remained silent after being cautioned. 18.In a subsequent video record of interview, the applicant admitted possessing the petrol bombs. He also admitted attempting to ignite the petrol bomb to throw it towards the barricades at the time of his arrest. He accepted that all the items found on him and in his rucksack belonged to him. He admitted making the petrol bombs by procuring Naphtha from a hardware store and pouring the flammable liquid into two glass bottles. It was his intention to ignite and throw the petrol bombs towards the barricades and his objective was “to stop the police from proceeding during confrontation”. He explained that he would use the lighter to light the cloths of the petrol bombs, and admitted that the purpose of wearing a black cap and a balaclava was to hide his identity during the protest. The other items, the helmet, gloves, respirator and filters were for self-protection. 19.During the course of the interview, the applicant admitted that he was in possession of offensive weapons, namely two petrol bombs, and that he held a petrol bomb in his right hand and a lighter in his left hand, intending to ignite the petrol bomb and throw it at the barricades. The background and mitigation of the applicant 20.At the time of sentence, the applicant was 23 years of age with a clear record. He was an only child and received education up to Form 6 level. 21.In mitigation, Mr Kwan, who represented the applicant in the court below, submitted that this case was only attempted arson in the sense that the offence was not completed. No property was actually damaged, nor was anybody injured. He further submitted that the attempted arson took place in an open space, during daylight when any fire would have been easily detected, and promptly put out given that some of the police officers at the scene were equipped with fire extinguishers. He emphasised that the applicant’s guilty plea to the second charge was tendered on the basis that he was intending to throw the petrol bombs at the barricades and was “reckless as to whether the life of another would be endangered (as opposed to intent to endanger the life of another)”. 22.In an endeavour to explain the applicant’s conduct and to illustrate that it was out of character, Mr Kwan submitted that the applicant did not stand to gain financially or personally from this offence, and that it was his “justifiable grievance towards certain public policy” which caused him to protest and resort to violence to vent his anger. The reasons for sentence 23.Having extensively reviewed the facts of the case and the mitigation advanced on behalf of the applicant, the judge in her lengthy reasons for sentence noted the relevant sentencing principles and the fact that the offence of arson was viewed with the utmost seriousness because of the extreme danger such criminal conduct posed to life and property. She quoted the comments of the Court of Appeal in R v Li Mun Tong[7]: “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.” 24.The judge noted that the offence provision incorporated the additional mental element “intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered”. She explained that the defendant’s culpability would be assessed on the basis that he intended to damage the barricades on the road with fire and was reckless as to whether the life of another would be endangered. The lives that were endangered were the police officers who were clearing the barricades at the time. 25.The judge noted that arson attracted a maximum penalty of life imprisonment, which highlighted the seriousness to which deliberately starting fires was viewed. She explained that each case depended upon its own facts and circumstances and that the sentence to be imposed should properly reflect the gravity of the particular case. She referred to Cross and Cheung, “Sentencing in Hong Kong”, Eight Edition, where it was suggested that sentences for arson tend to start at about 5 years’ imprisonment although they may be very much higher when life and property is seriously endangered. She also noted that the Court of Appeal in Chau Yuk Kuen v R,[8] expressed the view that in arson cases the tariff sentence should be at least 4 to 5 years’ imprisonment. 26.After rejecting Mr Kwan’s submissions that the circumstances of the present offence were not as serious as other cases and that a sentence of 24 months’ imprisonment or less would be appropriate for the arson charge, the judge went on to canvas in detail the relevant sentencing considerations in relation to public order offences involving violence. She focused primarily on the use of petrol bombs or incendiary devices, by reference to relevant authorities both here and abroad. 27.It was in this context, the judge made reference to the approach taken in the United Kingdom and discussed the sentencing guidelines for public order offences (including riot, violent disorder, affray and other offences in the Public Order Act 1986) published by the Sentencing Council in October 2019. She noted that the guidelines directed the court to determine the level of culpability and harm. A high level of culpability included where an offender used or intended to use a petrol bomb or incendiary device. A high level of harm was illustrated by incidents which result in serious physical injury or very serious fear and distress, disruption or severe detrimental impact to the community, attacks on police or public servants, and extensive damage to property. She noted that the Sentencing Council suggested a range of starting points depending upon the level of culpability and harm as well as a list of aggravating factors that may warrant enhancement of the starting point, which included an offender being masked or disguised to evade detection. Immediately after discussing the approach taken in the United Kingdom for this type of offending, the judge went on to explain:
28.It is relevant to note that Mr Kwan in mitigating on behalf of the applicant submitted that the applicant had tendered his plea of guilty to Charge 2 on the basis that he intended to use the two petrol bombs referred to in Charge 1 to damage barricades on the road and was reckless as to whether the life of another would be thereby endangered. He sought to abrogate the present offence by highlighting that the applicant had not completed the offence and was reckless as to whether the life of another would be endangered by throwing petrol bombs at the barricades. He acknowledged that the maximum sentence for arson carries a penalty of life imprisonment but noted that no sentencing guidelines had been laid down for the offence, which typically involved arson inside multi-storey buildings or other premises. Even though he acknowledged that the facts and circumstances of the present case were different from the typical case of arson, he sought to rely on a District Court case of HKSAR v Wong Chun Kit,[10] which he submitted was more serious and where a starting point of 24 months’ imprisonment was adopted. In his oral submissions, he explained to the judge that he was unable to find a case in Hong Kong where the arson alleged occurred in the context of a public protest. Clearly from the submissions he presented, he was urging the judge to treat the applicant’s conduct as not falling in the most serious category of offending. 29.The judge in her reasons for sentence noted that the case of Wong Chun Kit concerned a defendant who was suffering from a mental illness, who barricaded himself on a rooftop of a multi-storey building and lit a fire, denying access to anyone else to the rooftop. She explained that this case and other similar cases that had been reviewed were of no assistance to her in passing sentence in the present case. She rightly pointed out the facts and circumstances of those cases were not comparable with those in the present case. In passing sentence on the applicant, the judge stated:
30.The judge adopted a starting point of 2 years and 6 months’ imprisonment and 6 years’ imprisonment on Charges 1 and 2 respectively. Apart from the one third discount for the applicant’s guilty pleas, the judge noted that there was nothing further that warranted a reduction to his sentences. This resulted in sentences of 1 year and 8 months’ imprisonment on Charge 1 and 4 years’ imprisonment on Charge 2, which the judge ordered to be served concurrently as the applicant attempted to commit the offence under Charge 2 with the offensive weapons under Charge 1. Accordingly, the applicant received a total sentence of 4 years’ imprisonment. Discussion 31.I turn now to address the grounds of appeal advanced by Mr Kwan on behalf of the applicant. Grounds 1 and 2 32.The first and second grounds can be dealt with together. The criticism levelled against the judge for her reference to the UK Guidelines is without substance. The judge did not take the approach as laid down in the UK Guidelines when sentencing the applicant, but rather she identified relevant principles that clearly apply in this jurisdiction. Given the nature of the mitigation and the lack of assistance that was provided to the judge, it seems unfair to criticise her for having extensively reviewed relevant authority both here and abroad in an endeavour to pass a just and appropriate sentence on the applicant. 33.It is specifically complained by Mr Kwan that the judge did not indicate her intent to rely on the UK Guidelines in passing sentence on the applicant. He contends that had the judge done so, he would have made submissions on (i) the differences in conditions in the two jurisdictions; and (ii) the inapplicability of the UK Guidelines in respect of public order offences, and the applicability of them in respect of arson. 34.Mr Kwan accepts that sentencing judges are generally not obliged to indicate their intention to rely on local authorities and guidelines which are expected to be known by counsel. However, he contends that the judge’s reliance on the UK Guidelines was tantamount to a denial of natural justice in the sentencing process, bearing in mind that this Court has on numerous occasions stated that the sentencing regime in England is not of direct relevance because the circumstances and conditions in Hong Kong are different. He refers to the comments made along these lines by this Court in HKSAR v Lee Tak Kwan;[12] HKSAR v Yee Yiu-Sam;[13] HKSAR v Kilima Abubakar Abbas;[14] and SJ v Chu Wing Yin Christine.[15] This Court’s comments in those cases need to be considered in context, which were dealing with particular sentencing policies and approaches in relation to certain offences. 35.This complaint can be disposed of fairly promptly. First, the judge did not follow, nor apply the approach suggested in the UK Guidelines. She discussed the UK Guidelines in general terms for the purpose of identifying relevant principles and factors that may apply in sentencing an offender for this type of offence. 36.The principles and factors extracted by the judge from the UK Guidelines are well known to this jurisdiction, emphasizing the need to determine the level of culpability and harm involved in a defendant’s offending conduct. 37.As noted by Mr Ira Lui,[16] for the respondent, the judge’s references to the UK Guidelines, without notice to the parties, did not prejudice the applicant in any way. She confined herself to drawing on the relevant sentencing considerations in the UK Guidelines and did not adopt the tariffs as stipulated therein. Furthermore, she was acutely aware that there were no sentencing tariffs or guidelines for arson in Hong Kong, and had properly considered the relevant aggravating and mitigating factors. That is apparent by there being no complaint from the applicant about the sentencing considerations and factors mentioned by the judge in her reasons for sentence. 38.There is no substance to the complaints in Grounds 1 and 2. Grounds 3 39.Mr Kwan under Ground 3 complains that the starting point of 6 years’ imprisonment adopted by the judge on Charge 2 was manifestly excessive. 40.Mr Kwan submits that if the judge was correct to sentence the applicant in respect of Charge 1 in the context of “a public order event”, past riot cases may provide guidance on the factors to be considered in determining the level of sentence. He refers to the riot cases of R v Yim Tak-wai[17] and AG v Tse Ka-wah.[18] The first case involved a defendant charged with riot who was dealt with in the magistrate’s court. He received the maximum sentence of the court’s jurisdiction of 2 years’ imprisonment. The second case concerned the offence of riot involving inmates in the Vietnamese detention centre attacking others. Reliance on these cases to determine the quantum of sentence in the present case is misplaced. They are case and fact specific and provide no assistance in determining whether the starting point adopted by the judge was manifestly excessive in the particular circumstances of this offence and offender. 41.The cases that are more relevant, to which Mr Kwan refers, are HKSAR v Chong Yam Miu, Lucas;[19] HKSAR v Lam Siu Hung;[20] HKSAR v Kwong Man Chun;[21] and HKSAR v Lai Chun Hung.[22] I will briefly mention the approach taken in each of them. 42.In Chong Yam Miu, Lucas, the defendant, a 25-year-old man with a criminal record, pleaded guilty to charges of arson and other related offences. The first arson (Charge 1) took place at Police Headquarters on 7 June 2019. He was observed with an ignited bottle by police officers in a police vehicle which he threw at the direction of the vehicle, landing close to it. The second arson (Charge 4) took place about 12 hours later at the Happy Valley Police Station. He threw an ignited bottle near the entrance of the police station. It emerged in mitigation that the defendant was suffering from a serious mental illness. So far as relevant to the arson offences, the judge adopted a starting point of 5 years and 6 months’ imprisonment on Charge 1 and 4 years’ imprisonment on Charge 4. He reduced each starting point by 6 months because of the defendant’s mental illness and gave a further reduction of one third for the defendant’s guilty plea which resulted in sentences on Charges 1 and 4 of 3 years and 4 months’ imprisonment and 2 years and 4 months’ imprisonment respectively. 43.In Lam Siu Hung, the defendant, a 21-year-old man with a clear record, pleaded guilty in the District Court to one charge of attempted arson with intent. In the evening of 13 October 2019, the Mong Kok Police Station was surrounded by masked protesters, who were throwing petrol bombs at the main entrance of the police station. Later, in the early hours of 14 October 2019, the defendant, together with another person were observed each holding a petrol bomb. They both lit their bombs and threw them at the entrance of the police station. They then immediately fled the scene but were subsequently intercepted and arrested by police officers. 44.In passing sentence on the defendant, the judge stated that the defendant’s actions were a premeditated attack against the police and a direct challenge to the rule of law. However, the judge noted that the bombs did not ignite, and therefore adopted a starting point of 5 years’ imprisonment for sentence. He then reduced the notional starting point by one third for the defendant’s guilty plea to 3 years and 4 months’ imprisonment. 45.In Kwong Man Chun, the defendant, a 23-year-old man, pleaded guilty to arson with intent in the District Court. In the early evening of 20 October 2019, as part of a large protest at Nathan Road, Mong Kok, he was observed throwing an ignited petrol bomb at a police vehicle, which was set alight. He attempted to flee but was subdued by police officers. He was dressed in black attire and protective gear. He had in his possession a highly flammable solvent and a lighter. 46.The judge found that the defendant acted in a calculated and planned manner and the consequence of his actions could have been life-threatening if not for the intervention by the police. The judge stated that a usual starting point for this type of offence should be 5 years’ imprisonment or more. In light of the background and personal circumstances of the defendant, the judge adopted a starting point of 4 years and 9 months’ imprisonment, which he reduced by one third for his guilty plea to 3 years and 2 months’ imprisonment. 47.In Lai Chun Hung, the defendant, a 25-year-old man with a clear record, pleaded guilty to attempted arson. On 18 November 2019 in Mong Kok, amidst the gathering of protesters, the defendant threw a petrol bomb at a police vehicle that was attempting to disburse the protesters. It landed near the vehicle but did not explode. The defendant was dressed in black attire to conceal his identity and had offensive weapons in his rucksack. It is not without an element of irony that Mr Kwan represented the defendant before the same judge in this application and directed her attention to the UK Guidelines, albeit in respect of the guidelines for arson. 48.The judge adopted a starting point of 5 years’ imprisonment which she reduced by one third for the defendant’s guilty plea to 3 years and 4 months’ imprisonment. She passed a sentence of 1 year and 8 months’ imprisonment for the related offence of possession of offensive weapons after she reduced the starting point of 2 years and 6 months’ imprisonment by one third for the defendant’s guilty plea. The sentences were ordered to be served concurrently. 49.From an overview of these cases in the District Court, it seems that a starting point of about 5 years or more has been adopted by sentencing judges, depending upon the circumstances of the offence and the offender. 50.The offence of arson is an extremely serious one, particularly in Hong Kong, a city that is densely populated in a vast and compact array of multi-storey buildings. This Court has held in HKSAR v Kung Pak-fu[23]that whilst there are no sentencing guidelines for arson, “heavy, deterrent” sentences are called for “in order to protect the lives and properties of the public from serious threats, acts of arson”. 51.In Hong Kong Archbold, 2021, at Chapter 24, paragraph 24, it is stated that in cases of arson if no actual injury to other persons is involved, a customary range of between 4 to 6 years’ imprisonment would be used as a starting point. 52.Clearly, arson can be a very serious offence, but it will depend upon the particular circumstances of the case as to the gravity of the offending involved. It is in the context of the type of cases under consideration that arson committed in a public gathering can be extremely dangerous. It therefore warrants a sentence that will act as a specific and general deterrent. As noted in HKSAR v Tang Ho Yin[24] the rule of law is the cornerstone of any society, of which public order is an essential constituent element that serves to promote the safe and lawful functioning of that society. Whilst the courts will always safeguard the freedom of citizens to assemble peacefully in a permissible place to express their views in a lawful manner, they will respond to punish acts of violence that endanger life and property. 53.In his written submission, Mr Lui lists a number of aggravating factors that were present in this case. He submitted in the course of argument that the following factors distinguish the present case from the other cases relied on by Mr Kwan which warranted and justified the judge adopting a starting point of 6 years’ imprisonment:
54.These and other findings were made by the judge in her reasons for sentence and it was on this basis that she adopted a higher starting point of 6 years’ imprisonment. Despite his submission before the judge at the time of sentencing, Mr Kwan now accepts that a starting point of 5 years’ imprisonment would be appropriate on Charge 2.[25] However, the judge has explained in the extract of her reasons for sentence, which I have included in this judgment, why she considered 6 years’ imprisonment as an appropriate starting point in the circumstances of this offence and the offender. It cannot be said that the judge was wrong to have done so. Conclusion 55.It follows from what I have said that I am not satisfied that the grounds of appeal are reasonably arguable. I accordingly refuse the applicant leave to appeal against sentence. 56.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.
Mr Ira Lui, ADPP and Mr Edward Lau, PP of the Department of Justice, for the respondent Mr Steven Kwan, instructed by O Tse & Co, assigned by the Director of Legal Aid, for the applicant [1] Appeal Bundle, 1-2. [2] Appeal Bundle, 9-23. [4] FACV 6, 7, 8 and 9/2020, [2020] HKCFA 42. [5] Kwok Wing Hang, at [1]. [6] Appeal Bundle, 5-7. [7] Unrep., CACC 309/1994, 16 May 1995. In that case, the Court of Appeal upheld a starting point of 6 years’ imprisonment. [8] CACC 402/1980. [9] Appeal Bundle, 19. [11] Appeal Bundle, 19-22. [12] [1998] 2 HKLRD 46, at 51. [13] [2002] 3 HKC 21, at 33. [14] [2018] 5 HKLRD 88, at [52]-[53]. [15] [2020] 1 HKLR 771, at [41]. [16] Who appears with Mr Edward Lau. [17] [1967] HKLR 460. [18] [1992] 2 HKCLR 16. [23] [2008] 2 HKCLRT 240, at [15] and [16]. [24] [2019] 3 HKLRD 502, at [22]. [25] Mr Kwan in the court below suggested a starting point considerably lower by relying on Wong Chun Kit, in which the court adopted a starting point of 24 months’ imprisonment and ultimately passed a sentence of 15 months’ imprisonment in a very different circumstances to the present case. |
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