HKSAR v. Yung Wai Shing and Another

[English Translation – 英譯本]

HCMA 101/2020

[2020] HKCFI 1808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 101 OF 2020

(ON APPEAL FROM FLCC 3420 OF 2019)

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JUDGMENT

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1.There were originally 3 defendants in this case. The 1^st Appellant and the 2^nd Appellant were respectively D1 and D2 at the trial.  The two of them pleaded guilty respectively to one count of possession of offensive weapons in a public place[1] and were respectively sentenced to 8 months’ imprisonment by the magistrate[2].  Both of them appealed against sentence.

Facts[3]

2.The offensive weapons possessed by D1 were an extendable police baton and a laser pen whereas those possessed by D2 a catapult and a pack of steel ball bearings.

3.The incident occurred at night on 27^th of July 2019 when thousands of people gathered on the streets of Yuen Long despite the police’s objection, during which clashes happened between protesters and the police. At 10:40 p.m, the clashes had already ended for a period of time, D1, D2 and the other defendant at the trial were intercepted by the police.  All three of them were found to have offensive weapons in their possession.

4.At the time, D1 was holding a shield similar to the one used by the lead actor of the movie “Captain America”.  His face was covered by a face cloth.  He was wearing a protective gear like a suit of armour on his upper body. He had gloves on his hands, knee pads and shin pads on his legs.  He had a rucksack on his back and an extendable police baton tucked between his left knee pad and shin pad.  Items inside his rucksack include:

(i)     A helmet;

(ii)     A laser pen;

(iii)     An air filter mask;

(iv)     Some adhesive tapes;

(v)     Two lighters:

(vi)     Some medical supplies;

(vii)     A knee pad; and

(viii)     Some badges showing “Civil Defence Force” (民衛隊)

5.The above-mentioned laser pen can emit green laser light at a wavelength of 532.18 nm.  It is a class 3B laser with the maximum emission power exceeding 5mW but lower than 500mW.  A direct shining of 0.25 second at a distance of less than 53 metres can cause damage to the eyes.  This laser pen and the abovementioned extendable police baton are the offensive weapons in question.

6.As regards D2, he was at the time wearing a helmet, eye goggles, face shield, gloves and shin pads.  Inside his rucksack, beside the above-mentioned catapult and metal balls, there were, inter-alia, the following items:

(i)     A helmet;

(ii)     A brand new filter for gas mask;

(iii)     A multi-purpose flick knife; and

(iv)     Some plastic cable ties.

7.After D2 was arrested, he said under caution that the catapult he was carrying was intended to be given to a friend who lived in Yuen Long, but that person did not come.  The metal balls were bought a long time ago and were used for playing finger snooker.

Mitigation Submissions

D1[4]

8.D1 was 26 years of age, he was raised by his father alone.  He all along engaged in the trade of sales.  He was an employee previously but subsequently ran an online sales business.  He was pursuing an undergraduate degree in business administration in his spare time and will finish it in one year.

9.The main points of mitigation submissions at the trial were as follows:

(1)     D1 had no previous criminal record, pleaded guilty at the earliest opportunity and was deeply remorseful;

(2)     He came from a good background;

(3)     He was under immense psychological pressure because of this case and was admitted to the hospital due to an overdose of sleeping pills (according to the background report[5], he took the medication because he had a row with his girlfriend);

(4)     The laser pen in question belonged to class 3B, not the most powerful class 4.  Besides, D1 did not know at that time that the said laser pen was so powerful;

(5)     On that night, D1 intended to participate in the assembly, but was already intercepted for enquiries before he could do so.  The weapons were for self-defence, not targeting the police and had never been used; and

(6)     The observations[6] of the reporting officer of the background report.

10.The defence also submitted a letter written by D1 himself and mitigation letters written by a number of people.  The letters showed that D1 was remorseful, and that he was active in participating in volunteer activities, visiting elderlies and underprivileged communities.

D2[7]

11.D2 was 24 years old. He was an undergraduate of electronic engineering and ran a software development business.

12.The main points of mitigation submissions at the trial were as follows:

(1)     D2 had no previous criminal record, pleaded guilty at the earliest opportunity and was remorseful;

(2)     D2 possessed the catapult and steel ball bearings without the intention to attack the police or damage properties.  According to the experiment conducted by the police, a steel ball bearing shot with the catapult from a distance of 5 meters could penetrate a wooden board 1/8 inch in thickness.  If the wooden board was 1/4 inch thick, the shot could only dent it.  The quantity of steel ball bearings was unknown although definitely not insignificant.  Over 10 of them were already used for experiment.

(3)     There was no evidence in the case to show that D2 had participated in the clash on the night in question or had used any weapons concerned.  When the three of them were intercepted on that night, they were only standing there;

(4)     After D2 was arrested, he explained that he was possessing the items concerned for an innocent reason[8] ; and

(5)     D2 was a person of positive good character and deserved a further reduction in sentence.

13.The defence submitted mitigation letters written by some secondary school teachers of D2.  In the letters, D2 was described as a kind-hearted student who had not violated the school regulations or made any serious mistakes.  D2 had been a boy scout leader.  He had been a volunteer, served the community and often made blood donations.  He had also made donations to refugee organisations and local charity organisations all along.  

Report

D1

14.The magistrate had obtained the background report[9] of D1.  D1 told the officer who wrote the report that he went to Yuen Long for the purpose of expressing opinions on the 721 Incident at Yuen Long Station and supporting the others.  However, upon arriving at Yuen Long and learning that the activity was illegal, he did not go to the destination.  Regarding the gear on himself, he was wearing it for his own protection.  He expressed his remorse and the reporting officer opined that D1 might have committed the offence out of his impulsiveness without fully considering the seriousness of the consequences.

D2

15.The magistrate had obtained the Detention Centre Report of D2.  It was pointed out in the report[10] that D2 was not physically fit to be detained in the Detention Centre.

16.The report also pointed out that according to the school report, D2’s conduct was quite good at his secondary school. He also had participated actively in social services and was a boy scout leader.

17.D2 started working after he graduated from the university.  He worked as an employee initially and started a business with his university classmates after committing the offence in this case.

18.D2 admitted to the reporting officer that his law abiding awareness was weak and he was deeply remorseful.

The magistrate’s considerationsfor sentencing

19.The magistrate pointed out[11] the following in his brief reasons for sentence:

“Although the prosecution case did not show that they had used the abovementioned weapons to harm others, I am of the view that the potential danger of the weapons to the public cannot be ignored. Based on the fact that they were carrying quite a lot of comprehensive protective gear, I firmly believe that they had anticipated that their personal safety would definitely be at risk if they appeared there. I consider that they equipped themselves with these weapons that could harm people despite knowing the risk clearly. The danger posed to the police, protesters and public (including those who might have different opinions/political views) in the vicinity was very obvious.”

20.He adopted the same starting point, that is 12 months, for both appellants.  They were each given a 1/3 discount for their guilty pleas.  They were each sentenced to 8 months’ imprisonment.

Grounds of appeal

21.Mr Jack Chan Y K who represented D1 at the trial continued to represent him in the appeal hearing.  He put forward the following two grounds of appeal:

(1)     The magistrate erred in principle in that he erred in balancing the four principles of sentencing, namely, retribution, deterrence, prevention and rehabilitation, as a result of his failure to give the following factors sufficient or proper consideration:

(a)     Unique mitigating factors in the present case;

(b)     Mitigation submissions of D1; and

(c)     The background report of D1; and

(2)     A starting point of 12 months was manifestly excessive. 

22.D2 was represented by Mr Randy Shek[12] and Mr Marco Li Wai Kin, who put forward the following two grounds of appeal:

(1)     the magistrate erred in failing to consider or thoroughly consider the positive good character of D2 and give him a corresponding sentence reduction;

(2)     D2’s sentence was manifestly excessive compared to sentences imposed in similar cases.

Discussion

D1

Ground of Appeal (1)

23.I shall discuss and consider separately the matters which Mr Chan alleged the magistrate had failed to consider thoroughly or properly.

Unique mitigating factors in this case

24.Mr Chan pointed out that D1 was already prepared to plead guilty and accept an immediate custodial sentence in January this year.  However, the case was postponed due to various reasons and plea was only taken in April, which put him under tremendous psychological pressure.  He had even attempted to commit suicide because of it.

25.This case was postponed mainly due to the pandemic, and in any event, through no fault of the prosecution or the authorities.  In addition, the period of detention would be counted towards the sentence.  Therefore, postponement alone was not sufficient to constituent a ground of appeal with any prospect of success.

26.The magistrate was aware that D1 was under pressure psychologically and that he had even taken 50 tablets of sleeping pills to commit suicide a week before his plea was taken[13].  The magistrate was also aware of D1’s diagnosis of depression in 2019[14].

27.In R v Chan Kui Sheung[15], the Court of Appeal set out some principles for considering the effect of an accused’s ill health on sentencing.  In HKSAR v Lkhaijav Bayanmunkh[16], McWalters J[17] of the Court of First Instance of the High Court[18] also made some observations in this regard.  In gist, in view of the fact that medical care could be provided by the authority to prisoners, only under very exceptional or rare circumstances would an accused’s health condition be accepted as a reason for reducing sentence.

28.In this respect, firstly, there was no indication that D1’s health condition was sufficient to mitigate his culpability.  Secondly, he would receive treatment and follow-up arranged by the Correctional Services Department during his incarceration.   Having taken into account the above principles and observations, the magistrate could hardly be criticized for not adjusting the sentence on the ground of D1’s mental health condition.

Mitigation submissions and background report

29.In his submissions, Mr Chan said that the defence had already pointed out to the magistrate in the mitigation at the trial that the reason for D1’s possessing the relevant weapons was for self-defence instead of targeting other people or the police.  It was also not disputed that there was no evidence to show that the weapons had been used or how they were intended to be used[19]. However, the magistrate considered on the one hand that D1 knew he would put himself in danger by emerging at the scene, but implied on the other that he did not accept that D1 was possessing the weapons for the purpose of self-defence, pointing out that being equipped with the weapons, D1 was posing a danger to the police, protesters and the public.  Besides, it was also improper for the magistrate not to inform D1 that he had formed such a view so as to allow D1 an opportunity to address it in his submissions.

30.Mr Chan also criticized the magistrate for failing to consider D1’s background report thoroughly.  He submitted that D1 committed the offence on the spur of the moment without premeditation, according to the report.

31.Mr Chan pointed out that the defence case was not disputed at the trial. It is true that the prosecution did not raise objection.  However, it could not be overlooked that the prosecution only had a limited role in the sentencing process.  The burden of proof was on the defence when it came to issues upon which mitigation relied.

32.The magistrate’s observation was as stated in paragraph 19 above.  I do not consider that there exists any material inconsistency or conflict between his observation and the defence case that D1 was in possession of the weapons concerned for self-defence.  The fact that the weapons concerned were intended for self-defence entailed that D1 would use them in situations where he deemed necessary.  This is exactly what the enactment of the offence is targeting and guarding against.  In HKSAR v Chan Yiu Shing[20],  I pointed out that :

“This offence was enacted to prevent people from carrying weapons in the public place with the intent to cause injury to anyone, or intending to resort to violence to deal with their own problems in place of lawful means. The legislature has taken a serious view of this offence. If the offender is not less than 14 years of age, a custodial sentence shall be imposed. Nevertheless, on the other hand, the maximum penalty is merely 3 years’ imprisonment.”[21]

33.The observation made by the magistrate was consistent with objective common sense and reasoning.  It was neither beyond expectation nor contradictory to the defence case of self-defence. The magistrate’s failure in making his views known to the defence before did not constitute a ground of appeal with any prospect of success.

34.Mr Chan submitted that D1 only committed the offence on the spur of the moment.  He was relying on this sentence in the report: D1 probably committed the present offences out of his impulsiveness without consideration of the seriousness of the legal consequences[22].  This at most was the observation or judgment of the officer preparing the report. In any event, to say that D1 possessed the relevant weapons out of impulsiveness and without preparation would be taking an extremely loose view of the factual situation.  To be equipped with the relevant weapons and donning a set of gear on oneself[23],  there was no way that no arrangements were involved and the relevant arrangements would not be the type which was made casually and without any planning.  Moreover, taking into account the context, I do not consider that this was what it meant by the reporting officer of the report.

35.I do not consider that the sentence passed by the magistrate can reflect that he had erred in the matters put forward by the appellant.

Ground of Appeal (2)

36.Mr Chan criticized that the starting point of 12 months the magistrate adopted was excessive.  He also criticized the magistrate for failing to give thorough or appropriate consideration to the authorities which were submitted to the court and merely mentioning the case of Lee Chi Ching[24].

37.At the trial, the defence had submitted the following 9 cases that involved police batons to the magistrate for reference:

Authorities	No. of baton/s	Starting point
Or Wai Tong[25] (transliteration) (柯偉堂)	1	9 months’ imprisonment
Leung Yat Chi, Frankie[26]	1	9 months’ imprisonment
Chan Hung To[27] (transliteration) (陳洪濤)	1	3 months’ imprisonment
Lee Chi Ching[28]	1	6 months’ imprisonment
HKSAR v Chan Siu Kit and Others[29]	6	12 months’ imprisonment
Yeung Chi Keung (transliteration) (楊志强) and 2 Others[30]	1	6 months’ imprisonment
Wong Ka Tuen[31]	1	Fine $5,000
Alan Edward Van Leuven[32]	2	6 months’ imprisonment
Wu Kim Wan[33]	1	Fine $2,500

38.The relevant authorities could serve as references to different extents. The court should also aim at arriving at relatively consistent sentences for cases of a similar nature and similar facts.  Being relatively consistent does not mean the sentence has to be exactly the same.  As long as the penalty is within a reasonable range in light of the circumstances, it would not be generally regarded as inappropriate.  Moreover, no two cases would be exactly the same in every aspect.  Unique circumstances and factors that would affect the sentence often exist.  Hence, the court all along emphasizes that it is of limited use to compare sentencing in different cases particularly in cases where the sentences are passed at the first instance.  Even in appeals against sentence, one should examine carefully whether a sentence which was found to be not excessive involved an original sentence that may actually be too lenient.

39.The key issue in the present case is whether the sentence passed on D1 is appropriate or manifestly excessive. There are no sentencing guidelines for this type of cases.  The sentencing in each case depends on the overall circumstances of the case including the nature of the relevant weapons and the degree of harm they can cause and the ultimate intention for possessing the weapons.[34]

40.In HKSAR v Leung Ying Ming[35] (transliteration), Deputy High Court Judge Johnny Chan examined the factors for consideration set out in a number of authorities.  In HKSAR v Lee Man Shing[36] (transliteration), Deputy High Court Judge C P Pang summarized those factors as follows[37]:

(1)     The quantity;

(2)     The type, such as whether it is a large weapon, a long knife or an axe for instance;

(3)     The nature, such as whether it is sharp or not;

(4)     Whether it is suitable or easy to use, such as whether the handle is wrapped;

(5)     The place where it is kept, such as whether it is in concealment; and

(6)     The intention of possession.

41.I agree that if applicable in the case, the above factors should be considered by the court in sentencing.  Since it is impossible for the court to set out each and every possible factor, the overall circumstances relevant to the case must be considered in sentencing.

42.If the circumstances of the case are related to protests and petitions, I have the following observations in the case of Chan Yiu Shing[38], which, if applicable, should also be taken into account:

“bringing [weapon[39]] to protest and petition locations, … it also affects the right of the public to participate in peaceful protests and petitions. When the possibility of people bringing offensive weapons to protest and petition locations becomes a worrying concern, the public who only intend to express their views in a peaceful manner would probably hold back and give up their right of peaceful protest and petition. This would affect the public in respect of the exercise of an important right, the consequences of which cannot be ignored.”[40]

43.Mr Chan also invited the court to refer to the Sentencing Council[41] of the United Kingdom for relevant guidance[42].  He pointed out that the guideline has the following main points:

(1)     The sentencing judge shall assess an offender’s culpability and the harm caused;

(2)     Culpability can be categorized into 4 types. They are respectively:

(a)     possession of a bladed article or highly dangerous article (such as corrosive liquid), or where the offence is related to a certain type of victims (such as based on race, religion, disability, sexual orientation etcetera);

(b)     possession of weapon (other than a bladed article /highly dangerous article), use(d) to threaten or cause fear to others;

(c)     possession of weapon (other than a bladed article/highly dangerous article), not use(d) to threaten or cause fear to others; and

(d)     where possession of weapon falls just short of reasonable excuse.

(3)     The level of harm that has been caused or was risked were the two major factors for considerations in categorizing harm:

(a)     Category 1 – offences committed at a school or other places where vulnerable people are likely to be present, offences committed in prison, offences committed in circumstances where there is a risk of causing serious alarm/distress; and

(b)      Category 2 – all other cases.

(4)     After determining the corresponding culpability category and harm category, a sentence with the corresponding starting point could then be arrived at.

44.Besides, the guideline also sets out an unexhausted list of factors for sentence enhancement and reduction.

45.I agree that the factors for considerations set out in the United Kingdom guideline have certain reference value.  However, the situation in the United Kingdom is considerably different from that in Hong Kong after all. Therefore, adopting the yardstick for sentencing suggested in the guideline directly is not appropriate.  In respect of the factors for enhancement and reduction set out in the guideline, they are basically similar to the usual views taken by the courts in Hong Kong.

46.I have considered the circumstances stated by Mr Chan in his submissions and the authorities submitted.  I have also taken into account the following submissions made by Senior Public Prosecutor Mr Franco Kuan Bak-on:

(1)     Police baton is a weapon that can be used repeatedly;

(2)     D1 can retrieve the police baton for use from where he concealed it at any time with ease;

(3)     D1’s other gear should also be taken into account; and

(4)     At that time, he was with D2 and another person and each of them had weapons in their possession.

47.I agree that all the above matters can be taken into account in sentencing.

48.Police baton is a very effective weapon.  No training is required to use it. The actual lethality depends on the circumstances under which it is used, the technique, ability and strength of the user and the body parts which are attacked.

49.When D1 appeared at the location where he was arrested, the clash was already over.  It was not known what the situation at the scene was and what the atmosphere was.  There is no information since when D1 was present in that area.  In mitigation at the trial, the defence submitted D1 had just arrived.  The Respondent also accepted the possibility that D1 had just arrived prior to his arrest and such possibility could not be ruled out in the absence of evidence to the contrary.  There was also no evidence in the case to show what D1’s understanding or grasp of the actual environment of that area at that time was.

50.In respect of D1, sentencing shall be considered on the following premises:

(1)     What the court is required to determine is the culpability of D1 merely having the relevant weapons in his possession.  D1 said that he had not used the weapons concerned at that time.  This shall be the basis for consideration; and

(2)     It cannot be on the basis that D1 was going to a place where protest or public assembly was actually happening at the time, let alone a place where violence had erupted, in view of the circumstances stated in the paragraph above.

51.As mentioned by the magistrate, there was no evidence that D1 had used the weapons concerned.^[43] However, what cannot be ignored is that even D1 himself reckoned that situations involving the use of force would arise where he intended to go. This was not something beyond his expectation.  Nonetheless, in terms of the social atmosphere at the time, the matters that had taken place in Yuen Long, the circumstances at the scene, as well as what he understood to be the purpose of the assembly, it was not unreasonable to come up with such expectation. It is believed that many of the people who took part in the assembly or those who headed over there more or less would have such thought in their minds inevitably.  However, the problem is: not everyone would carry weapons with them.  From the fact that D1 was carrying a baton with him, as well as the full set of gear he was donning or carrying, it can be seen that his inclination to resort to force when necessary is not insignificant.

52.As regards the laser pen in question, though it is not itself an offensive weapon, D1 has pleaded guilty to the charge,and according to the submissions in mitigation, D1 would use it when acting in self-defence.  This means that when he was in possession of the said laser pen, he would use it to attack others if necessary.

53.As to the degree of harm that could be caused by this type of laser pens, no assessment could be made based on common sense.  According to the facts admitted by D1, harm could be caused to the eye by aiming the beam directly at it for 0.25 second from a distance of less than 53 metres.  However, no further information was available as to the nature and degree of such harm. Hence, there is no solid basis for passing a sentence based on any greater harm that it could cause. It would not be very easy to aim the beam of a laser pen deliberately at the eye of a person from a distance, but if the beam was directed at a crowd, there is still a possibility that the beam would hit the eye by accident. Despite the lack of sufficient information as to the extent of the actual harm caused, harm is after all caused to such a vital organ like the eye.  Even if one accepts that D1 was not aware of the actual power of this laser pen, it is obvious that when he was in possession of this article, and he did so with the anticipation of using it to attack others.

54.Mr Chan stressed that, if the court accepted D1’s possession of the weapon concerned was for the purpose of self-defence, a distinction should be made between using the weapon on one’s own accord and using the weapon passively for the purpose of self-defence, and a determination that the latter entailed lower culpability should be made.

55.I agree that, generally speaking, possessing an offensive weapon with the intention of using it on one’s own accord would indicate higher culpability than using the same for self-defence, and this is more so if it was for an unlawful purpose. However, in sentencing, one must bear in mind that the creation of this offence is to reflect the society’s intolerance against ordinary citizens equipping themselves with offensive weapons in a public place.  Its main purpose is to promote a relatively safe social environment, and to prevent people from resorting to violence to resolve conflicts, or to impose punishment by themselves, in place of lawful means.  This offence is preventive in nature, and offenders are subject to severe legal liabilities, which could be seen by the regulation^[44] on sentencing specified by the legislature.  In other words, the mere act of possessing an offensive weapon already carries substantial culpability, even if it is for the purpose of self-defence^[45]. The culpability would be more substantial if there exist other aggravating factors such as the existence of an unlawful purpose.

56.D1 was not residing in Yuen Long^[46]. At some time past 10 p.m. that day, he was present in, objectively speaking, a very sensitive area.  He himself also had a negative view of the area.  The outbreak of violent incidents was not beyond his expectation. However, not only was he donning a whole set of gear, he was also carrying two types of offensive weapons with him.  The possible lethality of the extendable baton, in particular, was not inconsequential. The baton was being carried in a conspicuous manner, and was easily accessible. In view of the circumstances as a whole, a starting point of 12 months to reflect the culpability is perhaps on the high side of the reasonable range, but it is still within the reasonable range, and is not manifestly excessive.  It is appropriate for the magistrate to give D1 a 1/3 discount for his guilty plea.  In light of the circumstances in this case, the magistrate could not be faulted for not giving any further discount to D1.

D2

57.I will first deal with Ground of Appeal (2).

58.Mr Li was responsible for advancing this ground of appeal.  He cited 4 cases in support of his submissions that the sentence imposed on D2 was excessive.

59.The relevant particulars of these 4 cases are as follows:

Authorities	Offensive Weapons involved	Starting Point
So Kwok Ho (transliteration) (蘇國豪)[47]	ninja star with 12 blades	12 months
Wong Miu Lung (transliteration) (黃淼龍)[48]	2-foot-long metal bar	9 months
Ip Chi Wang[49]	large kukri knife	9 months
Chan Yiu Shing (陳耀成)[50]	liquid containing capsaicin,  dihydrocapsaicin and  Isopropyl alcohol	9 months

60.Mr Li pointed out that the circumstances in the present case were distinguishable from those in some of the above-mentioned authorities:

(1)     In the case of Wong Miu Lung (transliteration)^[51], the acts of the appellant involved elements of “road rage” – first came verbal threats, then came throwing a metal can at a taxi, followed by an attempt to assault the driver, who was unarmed, with a 2-foot-long metal bar [i.e. the offensive weapon in question].

(2)     In the case of Ip Chi Wang^[52], the appellant carried the large kukri knife in question in a public place in a concealed manner, thus the court was of the view that the appellant intended to use it for criminal activity.

(3)     In the case of Chan Yiu Shing^[53], the court was of the view that the appellant must have paid great efforts in preparing such chili spray or arranging for such spray to be obtained from others, which involved considerable planning.  Besides, the appellant had a total of 5 bottles of such liquid in his possession, which suggested that he had the intention of using them continuously.  The risk that some could have fallen in the hands of other people for unlawful use could not be ignored either. Moreover, the possession of such spray by the appellant in a large-scale protest would also affect the right of the public to participate in peaceful protests and petitions.

Mr Li stressed that, in the present case, [1] there was no evidence suggesting the appellant intended to use or had used the offensive weapon in question; [2] there was no risk of distributing the catapult to others, as the appellant was only in possession of one catapult; [3] the location where the appellant was stopped and searched by the police was quite distant from the location where the protestors had previously clashed with the police, and there was also a long time gap between the two incidents.

61.Mr Li submitted that, the lethality of the offensive weapons in the present case was lower than that of the offensive weapons in the above-mentioned authorities. According to the experiment carried out by the police, even though a steel ball bearing shot with the said catapult was able to penetrate a cardboard target at a distance of 30 metres, it could only penetrate a 1/8-inch wooden board but not a 1/4-inch wooden board at a distance of 5 metres.  Hence, it can be seen that the lethality of the offensive weapons in question was very limited.

62.It is right for Mr Li to accept that the articles concerned are offensive weapons in nature.  Mr Li also submitted that this was the basis for D2’s guilty plea.

63.Mr Li further submitted that the prosecution did not adduce any evidence or make any allegations that D2 had the intention to use the said offensive weapons for harming others.  He stressed that, although the appellant was wearing protective gear at the time, this cannot be used to infer that the appellant had the intention to use the catapult and metal balls to harm others.  When the appellant was stopped and searched, the said offensive weapons were found inside his rucksack and were not held by the appellant to be  ready for use at any time.

64.As regards the circumstances of the offence, on the day in question, the clashes between the police and the public took place in Yuen Long On Lok Road, Tai Cheung Street, and Yuen Long MTR Station, while the appellant was stopped and searched in Long Lok Road, Yuen Long.  That location was at some distance, roughly 400 metres, away from On Lok Road, Tai Cheung Street, and Yuen Long MTR Station, and they were also on different streets.  There was also a time gap.  The clashes between the police and the public in On Lok Road and Tai Cheung Street took place around 5 p.m. on that day, while the incident at Yuen Long MTR Station took place around 10 p.m.. The appellant was stopped and searched at 10:40 p.m..  In view of these times and locations as a whole, it cannot be said that the appellant was present at the scene of the protest and clashes when stopped and searched, nor was there evidence to show that the appellant had participated or intended to participate in the clashes or the law-breaking incidents that took place in Yuen Long On Lok Road, Tai Cheung Street, and Yuen Long MTR Station.  As a matter of fact, the prosecution made no allegations in this regard.

65.According to the above-mentioned grounds, Mr Li submitted that the starting point of 12 months adopted by the magistrate was excessive.

66.Previously I have already stated the sentencing principles and factors to be considered in this type of cases.^[54]

67.I am of the view that the observations made by the magistrate^[55] were reasonable and justified, and they were also applicable to D2.  In sentencing D2, the magistrate was entitled to have regard to such matters.

68.What D2 had in possession were weapons that can be used to carry out an attack from a distance. The severity of the injury that they can inflict will depend on factors such as what the surroundings were like when the shot was made, how far away the target person was, and which part of that person’s body was hit.  It would not be difficult to envisage the consequences if shots were made within a close proximity and hit those body parts that were prone to injury, such as the eye or the head.  If shots were made in an environment where there were many people, the risk of hitting someone was high.

69.The factors highlighted by Mr Li, such as the disparity in time and location, are applicable, in view of the considerations set out in paragraph 49 above.  However, the situation surrounding D2 could hardly be described as having completely settled down and returned to the same safe environment as it ordinarily was.  In view of the set of gear on D2, it is self-deceiving to suggest that he did not expect any possible violent incidents to occur.  Although the weapons concerned were placed inside the rucksack, it would not be difficult to take them out for use.  The offence of possession of an offensive weapon is preventive in nature, and has a degree of gravity, but of course, on the other hand, the maximum sentence this offence carries is merely 3 years.^[56]  It was also put before the magistrate that there is no evidence that D2 had used the weapons concerned.  However, it is abundantly clear that, if the circumstances require, D2 would use them. There is otherwise no reason for D2 to appear in an area where he was not residing in at the time^[57], donning protective gear, and carrying with him one hundred-odd steel ball bearings^[58] (each with a diameter of 7.33 mm and weighted at 2 grams), with the potential lethality of shooting the steel ball bearings with the catapult of which D2 could not have been unaware.  Although Mr Li submitted that the weapons were placed inside the rucksack rather than readily available for use, it would not be difficult for one to take them out for use.

70.All in all, I reckon that, given the circumstances in this case as regards D2, a starting point of 12 months, although harsh, is not manifestly excessive, and is within the reasonable range.

Ground of Appeal (1)

71.Mr Shek was responsible for advancing this ground of appeal.  He cited the following authorities in support of his submissions that if the accused was a first offender as well as a person of positive good character^[59], the court can consider giving a further discount when passing sentence:

(1)     HKSAR v Leung Ping Nam^[60]

(2)     HKSAR v Cheng Kelly Kit Yin^[61]

(3)     AG v Yeung Kwong Chi^[62]

(4)     SJ v Tso Tsz Kin^[63]

(5)     HKSAR v Ng Ka Ki Robert^[64]

72.Mr Shek submitted that participating in voluntary community service and charity work is an act that can constitute “positive good character” in law, and the court, when passing sentence, should give a further discount in addition to the 1/3 discount for the guilty plea.  It can be seen from the abovementioned authorities that the discount given for this factor can be as much as 3 to 6 months.

73.In the present case, the appellant had participated regularly in the following voluntary community service and charity work both prior and subsequent to his arrest:

(1)     Between 2008 and 2018 [i.e. when D2 was studying in secondary school and university], active participation during his leisure time in voluntary service, such as participating in Respect for the Elderly Day voluntary service, giving free bridge lessons and performing other community service^[65];

(2)     Between April and December 2019, a total of HKD 900 was donated to the Hong Kong Red Cross^[66];

(3)     Blood donations to the Hong Kong Red Cross, 10 times up to 15 November 2019^[67]; and

(4)     Between December 2014 and December 2019, a regular monthly donation of HKD 100 was made to the United Nations Refugee Agency.

74.Based on the above, Mr Shek criticised that the magistrate had erred in not giving a further discount in addition to the 1/3 discount for the guilty plea.

75.I completely agree that if a convicted person can prove that he is a person of positive good character, the court can take into account of such factor and give a further discount when passing sentence.

76.In the case of HKSAR v Ng Ka Ki Robert^[68], the Court of Appeal has pointed out that a sentencing judge may, in the exercise of his discretion^[69], give a further discount because of the defendant’s positive good character and/or exceptional contribution to society.^[70]

77.Mr Shek submitted that in considering whether to accept the accused as a person of positive good character, focus should be put on the particulars of the case, including whether the acts of the accused could show that he was a person of positive good character, rather than making a quantitative assessment of his acts.  I am with him on this point.   There is perhaps nothing surprising for a wealthy person to make a donation of $10,000, but when a person of limited means makes a donation of $100, that may show that he is a person of positive good character.

78.However, this does not mean that in sentencing, the court must give a discount to those who had demonstrated acts of positive good character, as this is a matter of exercise of discretion. Before making a decision, the court should consider various factors, which include the nature and quality of the acts in question, with the assessment of the latter touching upon various aspects, such as what contribution was made to the society by such acts, their duration, how many people were benefited, the proportion of the contribution to the means of the accused etc..  After all, the court must consider whether certain charitable work performed by the accused warrants an exercise of discretion to give any further discount to the sentence.

79.It cannot be ignored that a series of authorities has already established that the 1/3 discount given to the accused for his guilty plea is already very generous, and has already subsumed various factors such as good character.^[71]

80.I am satisfied that D2 had all along been involved in doing voluntary work and serving the community, and that he had, despite having limited means, made donations to social welfare organisations when he was still a student, and even after he lost his job subsequently.  I also agree that D2’s acts deserve to be recognized and encouraged.

81.Mr Shek criticised that, in the original hearing, although D2’s good deeds were put forward in detail for the magistrate’s consideration during mitigation^[72], the magistrate had made no reference to it when passing sentence, which showed that he had overlooked this particular mitigating factor.

82.It is true that the magistrate failed to make clear his consideration in this regard, yet it is difficult for me to acknowledge that the magistrate would neglect to take into account such consideration notwithstanding the thorough submissions so diligently advanced by Mr Shek.  I believe that what the magistrate had omitted to do was to give a full account of his thinking process. There is obviously room for improvement in this aspect. Especially when imposing on a first offender a fairly harsh sentence, reasons for such sentence should be given in details.  However, having carefully considered the acts of the applicant which he relied on to support that he was a person of positive good character^[73], I am of the view that, it can hardly be said that the magistrate was wrong to give a mere 1/3 discount to the sentence eventually. I am also of the view that the circumstances of the case did not warrant the exercise of my power^[74] to reduce the sentence.

Conclusion

83.Taking into account of all the circumstances and the fact that the two appellants are both first offenders, I find that, in sentencing D1 and D2, the magistrate has not erred in principle, nor is the sentence imposed on each of them manifestly excessive.  Thus the appellants’ appeal against sentence is dismissed and their respective original sentence of 8 months’ imprisonment upheld.

Mr KUAN Bak On, Franco, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Jack CHAN Y K, instructed by Ho Tse Wai & Partners, for the 1^st Appellant

Mr Randy SHEK and Mr Marco LI Wai Kin, instructed by JCC Cheung & Co., for the 2^nd Appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Richard K. L. Man, Barrister-at-law.