Secretary for Justice v. S H Y

[English Translation – 英譯本]

CAAR 7/2020

[2020] HKCA 829

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 7 OF 2020

(ON REVIEW FROM TMCC 700010/2020)

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Before:  Hon Poon CJHC, Pang JA and Pang J in Court

Date of Hearing:  23 September and 14 October 2020

Date of Judgment:  14 October 2020

Date of Reasons for Judgment:  28 October 2020

REASONS FOR JUDGMENT

Hon Poon CJHC:

1.I agree with the judgment of Pang J.

2.Recently, the courts are required to sentence young offenders who have committed serious offences in quite a lot of cases.  In Secretary for Justice v SWS[2020] HKCA 788, I have, pursuant to long established legal principles, reiterated and expounded the principles of sentencing applicable to juvenile offenders aged between 14 and 16 as follows [1]:

“G. Discussion

G1. General principles in sentencing of juvenile offenders

45. Section 11(2) of the Juvenile Offenders Ordinance provides that no young person, i.e, a person who is, in the opinion of the court having cognizance of any case in relation to such person, 14 years of age or upwards and under the age of 16 years, shall be sentenced to imprisonment if such young person can be suitably dealt with in any other way. In other words, imprisonment is the last resort for sentencing young persons. As to other suitable options, section 15(1) of the same ordinance stipulates the ways in which the court may deal with a convicted young person, which include imposing a probation order, sending him/her to a reformatory school, sentencing him/her to imprisonment or to detention in a training centre or to detention in a rehabilitation centre, and for a male offender, sentencing him to detention in a detention centre. These are all sentencing options alternative to imprisonment, which are complementary to the provisions which restrict the imposition of a sentence of imprisonment on young persons, so as to perfect the sentencing regime applied to young persons. Reference may be made to Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12, page 21C-D for the related statutory intent.

46. The court is required by the Juvenile Offenders Ordinance not to sentence any young person to imprisonment unless he cannot be suitably dealt with in any other way because it is always the principle in law that, as far as practicable, the main concern of the court would be giving young offenders, in particular juveniles, the chance to rehabilitate and passing a rehabilitation-oriented sentence. Since imprisonment focuses more on factors such as punishment and deterrence than rehabilitation, it would naturally be the last resort in sentencing. As to the non-custodial sentencing options, probation order being one of them, the main consideration and aim are rehabilitation, whereas punishment and deterrence are of minor consideration. Reformatory school, training centre, rehabilitation centre and detention centre are custodial sentences which serve the consideration and aim of rehabilitation on one hand and cater for sentencing factors such as retribution and deterrence on the other. The court in deciding which non-custodial sentencing option to adopt should consider the relevant statutes and applicable legal principles together with the actual circumstances of the case.

47. In sentencing, the court is required to consider all applicable sentencing factors and give appropriate weight before deciding a commensurate sentence: see paragraph 108 in Wong Chi Fung (Court of Appeal). This principle is similarly applicable to the sentence of young persons who have committed serious offences. Generally speaking, the court’s main considerations are in two folds. On one hand, as a matter of public interest, a sentence passed by the court in respect of serious offences has to be commensurate with the seriousness of the offence and the circumstances of the case in order to serve the purposes of protection of the public, punishment, open condemnation and deterrence. On the other hand, the young age of an offender is always a mitigating factor: see paragraph 84 of Wong Chi Fung (Court of Final Appeal). This is also a consideration of public interest because rehabilitation and reformation can bring the young person away from crime, which not only caters for his own welfare and future prospect but also benefits the community as a whole. Therefore, even when the offence is serious, the court in sentencing has to consider the young offender’s circumstances, background, welfare and rehabilitation needs. The court must carefully balance all relevant sentencing factors and decide what weight to accord to them before deciding an appropriate sentence.

48. In balancing various sentencing factors, as said above, the court would give young offenders, in particular young people, a chance to rehabilitate as far as practicable. However, this does not mean that the court focuses only on the youth factor and ignore other sentencing factors because the weight given to the youth factor would vary depending on the seriousness of the crime involved and the circumstances of the offence in each individual case. If, as a matter of public interest, the seriousness of the offence and the circumstances of the case call for a heavy or deterrent sentence, the offender’s young age and personal background would count very little or even pale into insignificance: Re Applications for Review of Sentences [1972] HKLR 370, 417; Law Ka Kit, paragraphs 27 and 29, because the need for a punitive or deterrent sentence far outweighs the rehabilitative need of the offender：see Wong [Chun] Cheong, page 22.

49. The above legal principles are basically similar to those stated in the guidelines of the UK Sentencing Council for sentencing children and young people and ‘The Beijing Rules’ (United Nations Standard Minimum Rules for the Administration of Juvenile Justice) cited by Mr Lee.”

The above legal principles are also applicable to young offenders under the age of 21.

3.I emphasize that lower courts have to comply with the above sentencing principles.

4.In the present case, the respondent was in possession of instrument and materials fit for making a petrol bomb and intended to use the same to make a petrol bomb for testing the power, which was undoubtedly a serious offence.  The magistrate put the respondent under probation for 12 months, which obviously contravened the above sentencing principles and completely ignored that the sentence in the present case must sufficiently reflect the two essential sentencing factors of punishment and deterrence.  This was wrong in principle, resulting in an inadequate sentence. Therefore, this court must intervene.

5.In addition to that, the magistrate also made one other mistake.

6.Upon hearing the mitigation preliminarily, the magistrate said:

“Since you have pleaded guilty today, and your item was yet completed, I at this stage accede to your counsel’s request and consider a probation report first. However, of course, all sentencing options are open. Well, er -- it doesn’t mean that if it comes back with the probation officer’s recommendation, then I will simply accept it without any thought. It all depends how matters develop. But what I hope is that you will mind your steps.”

7.Since the magistrate indicated that all sentencing options were open, meaning both custodial and non-custodial sentences were included, she should have called for all relevant reports in one go to obtain all relevant information so that she could sufficiently and comprehensively consider all appropriate sentencing options before making any decision. However, since she had not asked for other reports, she did not have sufficient basis or relevant information to consider other appropriate options except a probation order.  Further, since the magistrate had called for only a probation report without giving any explanation, she gave an impression that probation order was already the most suitable option in her mind right at the very early stage, and that was why only a probation report and no other report was requested.

8.In my view, unless there are exceptional circumstances, if the court, upon hearing the mitigation preliminarily in relation to the defendant’s culpability, finds it necessary to call for reports to consider various sentencing options, a proper way to deal with the matter is asking for all relevant reports in one go to enable the court to fully understand all the circumstances and information relevant to sentencing before imposing an appropriate sentence on the defendant.

Hon Pang JA:

9.I agree with the judgments of Poon CJHC and Pang J.

Hon Pang J:

A.    Introduction

10.The respondent was charged with one count of “possession of an instrument fit for unlawful purpose and with intent to use for unlawful purpose” [2].  On 26 May 2020, the respondent pleaded guilty before magistrate Ms Kelly Shui (the magistrate).  On 19 June 2020, the magistrate ordered her be put under probation for 12 months[3] (the said sentence).

11.The applicant considered that the said sentence was wrong in principle and manifestly inadequate, and therefore made an application to the Court of Appeal for a review of the said sentence[4].

12.On 14 July 2020, Poon CJHC granted leave to review.   On 23 September 2020, after the hearing, this court called for a community service report in respect of the respondent.  On 14 October 2020, we allowed the applicant’s application for review, set aside the said sentence, and upon considering the community service report, substituted it with an order of performing 120 hours of community service.  Here are our reasons.

B.    Facts of the case

13.On 29 September 2019, at around 11:15 pm, a taxi driver was driving past a secondary school in Tin Shui Wai and saw somebody put up posts onto the noise barrier on the road and some people were gathering on the pavement opposite to the noise barrier, and he therefore made a report to the police.

14.About 50 minutes afterwards, the police arrived in response to the report and found that the respondent and four other people squatted on the ground and looked suspicious.  They ran away upon seeing the police.  The respondent was eventually stopped.  She had in her hand a paper bag containing a glass bottle with traces of alcohol, a bottle of antiseptic solution, a can of lighter fluid (109 ml), a towel and a piece of tinfoil holding some washing powder (articles in question).  Under caution, the respondent admitted that she had obtained some online information and intended to make a petrol bomb with the articles in question, but indicated that she just thought of “having fun” at that moment and pleaded for a chance.

C.    Respondent’s background and factors for mitigation

15.At the time of the offence, the respondent was 15 years and 4 months old.  She was a Form 4 student having a clear record.  She just turned 16 at the time of sentence.

16.In mitigation, her counsel submitted that the case occurred in midnight, the respondent was not at the scene of possession, riot or unlawful assembly, but was posting propaganda material and doing nothing radical.  Although lighter fluid was inflammable, the respondent had no lighter or match with her, and whether any petrol bomb could be successfully made by putting the articles in question together was still unknown.  Counsel also said that the respondent always held a peaceful and rational belief, and this incident was just one out of character.

17.Counsel stressed that the respondent had been under tremendous pressure because of the present case. She had been detained at a police station and a girls’ home for a total of three nights[5], and was remorseful after reflection.  Her academic performance was not bad and kept on making progress.  She also actively took part in extra-curricular activities and got a number of awards.  The headmaster and many teachers of her school wrote letters for mitigation for the respondent, commenting that she was empathetic and responsible and overall assessed to be good.  The respondent’s parents cared and supported her very much and hoped that she could return to school to continue her studies.

D.   Reasons for sentence

18.The magistrate upon defence’s request called for a probation report before passing sentence.  According to the report, the respondent’s family was harmonious and her performance at school was satisfactory.  The respondent told the probation officer that she had taken part in protest and procession since June 2019 but that was limited only to those not objected by the police, and that she had also posted propaganda material at school.  She had obtained some information from social media and proposed to senior schoolmate(s) about testing a petrol bomb.  Her father bought her [lighter fluid] at her request, thinking that it was only for removing the coloured water from water cannon vehicles.  The respondent emphasized that she had no intention to harm anyone or damage anything.  The probation officer concluded that the respondent was a young girl who was immature in thinking and she committed the offence without considering the consequences. Nevertheless, since she was remorseful, an order of probation for 12 months was recommended.

19.The magistrate in passing sentence indicated that if the respondent had successfully made any petrol bomb, the court would definitely not be lenient.  However, in view of that no petrol bomb was made, that she had pleaded guilty, that she was young and a good student, and that the juvenile court generally gave rehabilitation priority over punishment in consideration, the court accepted the probation officer’s recommendation and made an order of probation for 12 months.

E.   Grounds for review

E1.  Ground (1) – non-custodial sentence insufficient to reflect the seriousness of the facts and the culpability of the respondent

20.Ms Vinci Lam, DDPP and Ms Hermina Ng, SPP for the applicant submitted that although there was no sentencing guideline in respect of the offence in the present case, the sentence must properly and sufficiently reflect the seriousness of the facts.   Ms Lam cited Attorney General v HO Chun Chau [1985] 1 HKC 40^[6], saying that the magistrate should have first made reference to the maximum penalty prescribed for the offence and then considered the facts of the present case and the respondent’s culpability so as to come up with a proper sentence.

21.The maximum penalty for the offence in the present case is a fine of $5,000 or two years’ imprisonment.  Ms Lam said there were the following aggravating factors in the case:

(1)  The respondent admitted her possession of a number of materials fit and intended for the making of a petrol bomb. It was obvious that there was premeditation;

(2)  The respondent did not act alone but committed the offence jointly with four others; and

(3)  Making and testing a petrol bomb had potentially serious consequences. Like arson, the court could not ignore the possibility of causing loss of life and property by the conduct in question^[7].  In any event, lighter fluid was a kind of inflammable substance which might not only endanger the respondent’s own personal safety but also put others’ in danger (such as rescuers).

22.Ms Lam also cited HKSAR v Law Chun Man[2012] 4 HKLRD 320^[8], saying that just like arson, even if the offender might not have intended to endanger others or might not have been reckless to the possibility of endangering others, the court could not ignore that such conduct might cause danger to other people.

23.Therefore, the sentence in the present case must have deterrence, in that not only the respondent had to be deterred from re-offending, but others had to be deterred from committing the same offence as well.  The magistrate was wrong in giving too much weight on the factors that the respondent was a juvenile offender and that the petrol bomb was yet finished and passed only a non-custodial sentence. This failed to attain the sentencing purpose of deterrence.

E2. Ground (2) – probation order is wrong in principle and/or manifestly inadequate

24.Ms Lam went on to say that although rehabilitation had certain significance in the sentencing of an offender, it was not the only purpose of sentencing, and the court was also required to consider other factors of public policy, including: (1) protection of the public; (2) punishment; (3) open condemnation; and (4) deterrence.   Therefore, even though section 11(2) of the Juvenile Offenders Ordinance[9] expressly provided, “No young person shall be sentenced to imprisonment if he can be suitably dealt with in any other way,” the magistrate in the present case was wrong to give too much weight on personal rehabilitation and ignored the following sentencing factors:

(1)  Protection of the public: At present, there are increasing incidents of unrest and a rising number of large-scale protests in Hong Kong, it was necessary to emphasize protection of the public in sentencing;

(2)  Punishment: The facts of the present case were serious. The life and property of the general public were threatened. Thus the sentence should be commensurate with the offence.  Moreover, by proposing her senior schoolmate(s) to test the petrol bomb, the respondent was more culpable than those who merely participated;

(3)  Open condemnation: The magistrate should not have ordered open probation because of the respondent’s young age and explanation of “seeking fun”; a non-custodial sentence could not reflect that the conduct involved in the present case was an offence that the society disapproved, and on the contrary, it gave out a wrong message to potential offenders (especially youngsters) that youth and “seeking fun” were effective mitigating factors; and

(4)  Deterrence: Due to the seriousness of the offence, the respondent’s age paled into insignificance when compared with the public interest.  The court must send an unequivocal message to youngsters that their young age could not help them in getting mercy from the court when it comes to the commission of serious offences^[10].

25.Ms Lam said that in the overall circumstances, the magistrate had failed to give sufficient weight to the seriousness of the case but paid too much regard on the respondent’s character and thus became too lenient.  Probation orders were designed primarily for the rehabilitation of offenders, teaching them to become responsible members of the community^[11]. However, having regard to the seriousness of the case, making a probation order in the present case could neither deter the respondent nor others from committing similar offences[12].  Therefore, the sentence imposed by the magistrate was wrong in principle and/or manifestly inadequate, and was one that a judge, applying his mind to all the relevant factors, would not reasonably consider to be falling within the appropriate range^[13].

F.   Respondent’s stance

F1.  Argument in response (1) - seriousness of facts and culpability of respondent

26.Mr Victor Ho and Ms Priscilla Tsang, both counsel for the respondent, submitted that the respondent was not charged with arson or attempted arson[14], nor the offence of possessing articles with intent to destroy or damage property[15]. This showed that the facts of the present case were relatively minor.  Nevertheless, the applicant at this stage suggested that the court should consider the sentence on the basis of acts of arson, such as lighting and throwing a petrol bomb, and the possible loss of life and property.  This was very unfair to the respondent.  She should not be punished in respect of the offence of arson which she was not charged with[16].

27.Mr Ho also contended that at the time of the offence, the respondent was not making any petrol bomb and did not even have any lighter.  Even on the purported making of a petrol bomb, it was only mentioned under caution that some online information had been obtained.  The respondent had no professional knowledge whatsoever, and whether any petrol bomb could be made was still unknown.  The applicant just had no factual basis to compare her acts with arson, and the allegations of endangering pedestrians and drivers, etc were nothing more than speculation.

28.Although inflammable substance was potentially dangerous, Mr Ho stressed that the case happened late at night, and the articles in questions remained inside a paper bag when the respondent was stopped.  Besides, the prosecution had never had any evidence showing how many petrol bombs could in fact be made with 109 ml lighter fluid and what the destructive and sustainable power would be. The applicant was not proper to assume that the articles in question could cause serious danger to the community or to make the case comparable with arson.

29.Mr Ho said that there was no loss of property or personal injury or death in the present case, and comparing with other cases of possession of petrol bomb materials, the danger was definitely not one of the most serious type.  The respondent was dealt with before the juvenile court, where it was nothing wrong to give rehabilitation priority over punishment.  The probation order was commensurate with the respondent’s culpability.  Besides, as far as young offenders were concerned, a lenient sentence would do better than a punitive and deterrent sentence in the prevention of re-offending[17].

30.For the reasons above, Mr Ho said that the first ground for review was not established.

F2.  Argument in response (2) – probation order was wrong in principle and/or manifestly inadequate

31.Mr Ho stressed that the magistrate had not ignored the harm caused to the community by petrol bomb making and deterrent sentence was warranted for this type of offence.  In fact, by pointing out that the articles in question had yet turned into any petrol bomb, the magistrate correctly distinguished the present case from those more serious ones.  She did not err.

32.Furthermore, according to the prosecution case, the respondent upon being arrested indicated on the spot that she committed the offence for “seeking fun”, which was also the explanation she gave to the probation officer and the basis of her submission for mitigation.  Since there was no evidence before the magistrate to suggest that the explanation was not true, she was not wrong in principle to accept that the respondent was only “seeking fun”.

33.The probation officer’s report is very positive.  Mr Ho said that the magistrate had not ignored the seriousness of the offence and had indeed considered the overall circumstances, including the nature of the offence and personal factors before deciding to focus on rehabilitation and generously making a probation order.  Since there was no guideline requiring the offence in question to be dealt with by a custodial sentence, the sentence imposed by her, as the magistrate of the juvenile court, was neither wrong in principle nor manifestly inadequate, and it was also within the reasonable range of sentence.

34.As to the applicant’s suggestion that there were increasing incidents of unrest and a rising number of large-scale public protests, and it was therefore necessary to place more emphasis on protecting the public in passing sentence, Mr Ho reiterated that the present case did not involve any protest or riot, and there was no evidence showing that the respondent had the intent to use the articles in question at the scene of any protest or riot.

35.Finally, Mr Ho referred to Secretary for Justice v Yeung Wing Hong [2013] 3 HKLRD 800^[18], saying that even if the Court of Appeal found the sentence passed by the magistrate was too lenient and outside the range of appropriate sentences, the court still had the discretion to consider all the relevant factors, including what happened post-sentence, to decide if the sentence should be changed.  The following factors of the present case all supported that the sentence should remain unchanged:

(a)  The tremendous pressure that the respondent and her family had been under in facing the review of sentence was by itself a punishment;

(b)  The respondent had all along strictly complied with the probation order, including observing the curfew daily between 7 pm and 6 am on the next day;

(c)  At school, the respondent performed well and up to the satisfaction of the school, showing that she treasured the chance given by the court for her to reform; and

(d)  The respondent was now studying in Form 5 and diligently preparing for the DSE due to take place next year.  Any custodial sentence in any form at the present stage would definitely impact on her academic progress and her chance to enter university.

G.         Discussion

36.As the applicant has pointed out in the written submissions, the focus of this review is the sentencing factors which the court should take into account in dealing with young offenders who have been in possession of instrument fit for making a petrol bomb with intent to use the same for such purpose.

37.The applicant put forward the above two arguments on this basis in support of the review, but after all, the main complaint is that the probation order, which is a non-custodial sentence, is not sufficient to reflect the seriousness of the offence and the facts, and the respondent’s overall culpability in the present case.

G1. Young offenders and serious offences

38.In respect of the considerations for sentencing young offenders who have committed serious offences, Poon CJHC has reiterated in the reasons for judgment handed down recently in Secretary for Justice v SWS that the court (including the juvenile court) has to consider the relevant sentencing factors and give appropriate weight before passing a commensurate sentence.  In balancing various sentencing factors, the court will give young offenders a chance to rehabilitate as far as practicable.  However, if, as a matter of public interest, the seriousness of the offence or the circumstances of the case call for a deterrent sentence, the offender’s young age and personal background would count very little or even pale into insignificance.  Mr Ho has raised no objection to this principle, and he has only tried to persuade this court that the present case and the respondent’s culpability do not fall into the serious category.

39.Therefore, in considering this application for review, this court has to examine the charge and facts of the present case together with the respondent’s culpability to see if they fall into the serious category as suggested by Ms Lam.

G2.Charge, facts and culpability

40.The offence in the present case may include various types of instrument, and an extremely wide range of unlawful purposes may be intended.  Therefore, no sentencing guideline was laid down for the offence.

41.The charge in the present case attracts a maximum sentence of a fine of $5,000 or two years’ imprisonment.  Whether or not imprisonment is warranted in a particular case or the length of the term depends heavily on factors such as the background of the crime and the facts concerned and cannot simply be generalized.

42.In the present case, the respondent did not face the offence of arson, and the charge only alleged that she was by herself in possession of the articles in question with intent to use them for unlawful purposes, and it was not alleged in the charge that she possessed those articles jointly with others, or that she had a common intent with others to use those articles for unlawful purposes.  Therefore, it was not appropriate to consider the present case in terms of the offence of arson or that she committed the offence jointly with others as suggested by the applicant.  Having said that, relevant factors, such as the circumstances at the material time as revealed by the facts admitted by the respondent, her intent to make a petrol bomb and her plan to test the petrol bomb, and that the maximum sentence of the charge is two years’ imprisonment, are all to be taken into account in sentencing.

43.Obviously, the circumstances that a person possesses any article with intent to use the same to make a petrol bomb, or even plans to test the power of the petrol bomb upon completion are all serious.  Hong Kong is densely populated and most people are living in crowded condition.  The potential danger involved in possessing articles, including lighter fluid as in the present case, in a public place with intent to make a petrol bomb is undoubtedly great.

44.Although Mr Ho said in response that whether any petrol bomb could be successfully made with the articles in question was still unknown, in our view, since those articles included a can of inflammable lighter fluid, and the respondent admitted that she had purposefully asked her father to buy the lighter fluid for her to make petrol bomb, regardless of whether any petrol bomb could be successfully made, solely on the respondent’s possession of inflammable substance in a public place, of which the intent was making a petrol bomb, she obviously had the plan to commit the offence.  These circumstances show that the facts admitted by the respondent fall into the serious category.

45.Furthermore, I agree with the applicant that although no petrol bomb had been completely made, the respondent’s intent of making a petrol bomb is one of the factual bases that the court must take into account, and the court should also consider the potential danger involved with the intent concerned and the public disapproval against such criminal intent.

46.In addition, the respondent told the probation officer that she had intended to test the power of the petrol bomb.  Although she said that the test would be done by the riverside, it was already clear that she intended not only to make a petrol bomb with the articles in question but also to throw the bomb for a test.

47.We do not agree with Mr Ho that since the respondent was not at the scene of any protest or unlawful assembly at the time of the offence, the facts did not fall into the serious category.  Conversely, had the respondent possessed those articles in question at the scene where people gathered with intent to make a petrol bomb, it would have been an obvious aggravating factor.

48.This Court of course has not ignored the respondent’s claim of “seeking fun” at that moment, but in our view, even if the magistrate accepted this explanation, it does not mean that the seriousness of the case or the respondent’s culpability can hence be reduced.  The respondent’s intent remains the key issue which the court has to consider.  As stated above, it is serious that the respondent had the intent of using the instrument in her possession to make a petrol bomb.  Even if it was true that the respondent had such intent just because of “seeking fun”, the sentence in the case should nevertheless show the possible serious consequences of the offence even more clearly so as to make it known to the respondent that she cannot act merely on a whim without paying regard to the life and property of the general public.  The court should also by way of a deterrent sentence make it known to those who intend to commit similar offences the serious consequences of committing the offences and that the court would give absolutely no allowance.

49.As a whole, it is the view of this Court that the magistrate should have found the present case one in the serious category in the light of the facts of the case and the respondent’s own admission. Also, because the conduct in the present case involved public safety, a deterrent sentence should have been imposed, and only by so doing could the purposes of protecting the public, openly condemning the offence and conduct in question and punishing the offender be achieved.

50.However, although the magistrate in adjourning the case for sentence expressly stated that all sentencing options remained open, we notice that save and except a probation report, she did not at the time call for any other report in relation to custodial sentences (such as training centre or rehabilitation centre) or community service report, giving the impression that at that stage she had already decided to make an order of open probation.  As Poon CJHC has indicated, this was wrong and not desirable.

51.In any event, the applicant is not criticizing the magistrate for rashly making a probation order without calling for other reports but suggesting that a probation order is simply not an option within the appropriate range of sentence in respect of the respondent in the present case.  Therefore, our main consideration is whether the probation order imposed by the magistrate in the present case is wrong in principle and/or manifestly inadequate.

52.In the light of the above analysis, we are of the view that the magistrate merely focused on the rehabilitation of the respondent and thus made a probation order. This was in fact wrong in principle and manifestly inadequate. A magistrate, applying his mind to all the relevant factors, would not reasonably consider the said sentence as falling within the appropriate range.

H.   Sentence in the present case

53.This court called for a community service order report for the respondent in the hearing on 23 September 2020.  According to the said report, the respondent’s academic performance is satisfactory, and she in general listens to her parents and teachers, but is not mature in her mind and lacks comprehensive thinking in respect of the consequence of her own behaviour. Having considered the respondent’s good personal background, her remorse, support from her family and school and her own wish, the probation officer recommends to this court that the respondent is suitable to serve a community service order.

54.The Community Service Orders Ordinance[19] makes it clear right at the outset, “[It is the aim of this Ordinance] to make provision for criminal offenders to be required to perform unpaid work of benefit to the community in place of, or in addition to, other sentences, and for incidental matters.”

55.Community service order on one hand comprises the element of retribution and on the other hand caters for the offenders’ rehabilitation.  In terms of retribution, it involves not only requiring the offenders to work without pay, but also imposing restrictions on their personal liberty during their work.  Just as Chan CJHC (as he then was) indicated in Secretary for Justice v Li Cheuk Ming[1999] 1 HKC 124[20]:

“A community service order is an alternative to custodial sentence. It comprises the element of retribution as well as the function of rehabilitation. Such type of sentence is punitive to the extent that it imposes restrictions on the accused and curtails his free time. Besides, it is rehabilitative in that when performing the service, the accused can ‘have the opportunity for character building, restoring their personal dignity, and improving their standing in the community’ and will be able ‘to establish constructive interests, develop worthwhile patterns of behaviour’.”

56.This Court has pointed out above that the said sentence focused only on the rehabilitation of the respondent without sufficiently reflecting the punitive and deterrent elements, and was not a commensurate sentence for the present case.  If this had not been an application for review and the respondent had not been under probation for some time, we would have agreed with the applicant’s suggestion that even on a guilty plea, a non-custodial sentence is not sufficient to reflect the charge and facts in the present case and the respondent’s culpability.  Nevertheless, having regard to the current circumstances, imposing a community service order on the respondent can achieve the purpose of rehabilitation and also impose sufficient punishment to deter the respondent and those who intend to commit the offence in question.

57.In our view, substituting the said sentence with performance of community service for 120 hours is appropriate and is also commensurate with the seriousness of the charge and the facts in the present case and also the respondent’s culpability.

58.Therefore, the applicant’s application for review is allowed with the sentence set aside, and in substitution, the respondent is to perform community services for 120 hours with additional conditions such as curfew [21].

Ms Vinci Lam, DDPP and Ms Hermina Ng, SPP, of the Department of Justice, for the applicant

Mr Victor Ho and Ms Priscilla Tsang, instructed by Messrs Li and Lai, for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.