Read the full judgment text of CAAR 1/2020 on BabelCite. This Court of Appeal judgment was delivered on 22 September 2020 before Poon CJHC, Pang JA and Pang J.
Criminal law – sentencing – arson – juvenile offender – review of sentence under s.81A Criminal Procedure Ordinance – respondent aged 15 threw three petrol bombs onto a public road at Yuen Long at about 12:10 a.m. on 8 January 2020 and was found in possession of two lighters, four towels, a cut towel, scissors, gloves, a wooden chopstick and two funnels – committed offence while on bail for a separate riot case (DCCC 293/2020) – pleaded guilty to arson (s.60(1) and 60(3) Crimes Ordinance) and possessing items with intent to destroy or damage property (s.62(a) Crimes Ordinance) – whether non-custodial sentence for arson is wrong in principle and/or manifestly inadequate – Court of Appeal held yes, arson is an offence of particular severity attracting 4 to 5 years' imprisonment for adults (Ching Kam Pui; Kung Pak Fu) and a probation order fails to address punishment, deterrence and public condemnation – whether probation order reflects gravity and culpability of Charge 1 – Court held no, multiple aggravating factors including use of petrol bombs, accelerant on clothes, multiple throws, T-junction location, and offending on bail (Leung Ting Fung; Loku) – whether probation order for arson by juvenile was wrong in principle and/or manifestly inadequate – Court held yes, rehabilitation is not the sole sentencing objective (Wong Chi Fung CFA; AG v Law Ying Cheung), and under s.11(2) Juvenile Offenders Ordinance the weight given to youth diminishes with seriousness of the offence (Law Ka Kit; Re Applications for Review of Sentences) – whether concurrent probation orders for both charges taken together were wrong – Court held yes (AG's Reference No 4 of 1989) – Court substituted sentence with concurrent detention centre orders – detention centre considered most suitable as it serves both rehabilitation and deterrence, with one year post-release supervision under s.5 Detention Centres Ordinance – sentencing math: maximum 6 months' detention under s.4(2)(b) Detention Centres Ordinance; aggregate with 3 months already spent in Tuen Mun Home approximately 9 months, comparable to original 9-month residential requirement – court warned against unduly lenient sentences which appear advantageous but invite review and cause greater anxiety and disruption to the offender (Cross and Cheung on Sentencing in Hong Kong, 9th ed, page 609).
Legal issues: Whether non-custodial sentence for arson is wrong in principle and/or manifestly inadequate · Whether non-custodial sentence is insufficient to reflect the gravity and criminal culpability · Whether probation order for arson was wrong in principle and/or manifestly inadequate · Whether the probation order was wrong in principle and/or manifestly inadequate when the two charges were taken together
Outcome: Probation order set aside as wrong in principle and manifestly inadequate; substituted with a detention centre order for each charge, sentences to run concurrently.
Cited by 92 cases · Cites 12 cases