Secretary for Justice v. Sws

[English Translation – 英譯本]

CAAR1/2020

[2020] HKCA 788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 1 OF 2020

(ON REVIEW FROM TMCC700003/2020)

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REASONS FOR JUDGMENT

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Hon Poon CJHC:

A.      Introduction

1.On 8 May 2020, the respondent pleaded guilty to one count of arson, contrary to section 60(1) and 60(3) of the Crimes Ordinance[1] (Charge 1), and one count of possessing items with intent to destroy or damage property, contrary to section 62(a) of the same Ordinance (Charge 2), before Ms Kelly Shui, Magistrate (trial magistrate), and was convicted accordingly.  Having heard the preliminary mitigation, the trial magistrate ordered that a probation officer’s report, detention centre, training centre and rehabilitation centre reports, as well as a juvenile home report be obtained for the respondent, and adjourned the case for sentence.  On 26 May 2020, taking into consideration the reports and having heard further submission, the trial magistrate accepted the probation officer’s report and put the respondent under probation for 18 months in respect of each charge, with 9 months of which he was to reside in the Tuen Mun Children and Juvenile Home[2] (“Tuen Mun Home”) for residential training, and the sentences of both charges were to run concurrently (“the probation order”).

2.The applicant made an application to the Court of Appeal for leave to review the sentence pursuant to section 81A of the Criminal Procedure Ordinance[3]on the grounds that the probation order was wrong in principle and manifestly inadequate.  Leave to apply was granted by the court on 17 June 2020.

3.On 3 September 2020, after hearing the matter, we held that the sentence imposed by the trial magistrate was wrong in principle and manifestly inadequate, and the appropriate sentence should be a custodial sentence. Hence, the probation order was discharged. Detention centre, training centre and rehabilitation centre reports were called for the respondent, and the case was adjourned to 17 September for sentence.

4.According to the reports submitted to the court on 14 September 2020 by the Commissioner of Correctional Services, the respondent was physically and mentally fit for detention in the detention centre, training centre or rehabilitation centre, and, upon assessment of his behaviour and conduct when he was being remanded, detention centre was considered more suitable.

5.At the hearing on 17 September 2020, the respondent indicated through his legal representative that he had no objection to the report made by the Commissioner of Correctional Services, and that he agreed to be detained in detention centre.  We found that the most commensurate sentence to the respondent in the present case was a concurrent detention centre order for each charge, and hence it was so ordered.  These are our reasons for judgment.

B.      The prosecution case

6.The particulars of Charge 1 alleged that the respondent, on 8 January 2020, near lamp post GD0091, Fung Cheung Road, Yuen Long, New Territories, damaged a road, property belonging to the Hong Kong Special Administrative Region Government, by fire without lawful excuse, intending to damage such property or being reckless as to whether such property would be damaged.

7.The particulars of Charge 2 alleged that on the same day, near lamp post FB2483, outside Fortune Centre, Nos.15-21 Fung Kam Street, Yuen Long, New Territories, the respondent had in his custody two lighters, four towels, a towel which had been cut into three pieces, a pair of scissors, five gloves, a wooden chopstick and two funnels, intending without lawful excuse to use the said items to destroy or damage a road belonging to the Hong Kong Special Administrative Region Government.

8.The respondent admitted the following facts.

9.At about 12:10 a.m. on 8 January 2020, PW1 parked his car in Fung Cheung Road, Yuen Long[4]. He heard a “bang” as he got out of the car and saw flames over one spot of the road.  He also saw the respondent throwing two petrol bombs, causing scorch marks on two other spots of the road.  After that, the respondent fled the scene.  The incident was captured by the car camcorder fitted on PW1’s car[5]. Upon receiving a report, the police arrived and on three spots of the road found and seized shattered glass.

10.About 40 minutes after the time of the offence, PW2 and PW3 intercepted the respondent on Fung Kam Street, Yuen Long, during their search.  Items including two lighters, four towels, a towel which had been cut into three pieces, a pair of scissors, five gloves, a wooden chopstick and two funnels were seized from his backpack[6]. Upon chemical analysis, it was confirmed that the clothes that the respondent was wearing at that time had traces of a highly flammable organic solvent.

11.On the same day, the respondent, in the presence of his mother and legal representative, had a record of interview in Yuen Long Police Station.  He remained silent under caution.

C.      The respondent’s background and mitigation

12.The respondent is a secondary school student.  He was aged 15 years and 1 month at the time of the offence and almost 15 years and 6 months at the time of sentence.  He had been arrested earlier for a riot case and committed the current offence while he was on bail.  He had no previous criminal conviction.

13.In mitigation, defence counsel submitted that the respondent, being discontented with the government, was unable to keep his emotion under control.  Influenced by the social movement, he imitated the radical acts of some protesters by throwing petrol bombs as a way of venting.  He did it on the spur of the moment with no intent to harm any specific target. At the material time there was not much traffic nor many pedestrians, and the road was not permanently damaged.  There was no other loss of property, nor was anyone injured in the case.

14.Counsel added that the respondent was a youngster who used to behave well, being polite and helpful to classmates, and he received positive comments from his teachers.  He was a very clever and self-motivated youth.  During remand at the Tuen Mun Home, he behaved well and made good use of his time there.  Upon serious reflection, the respondent attributed his commission of the crime to his weak law-abiding awareness and impulsiveness.  He hoped that he would be given a chance to rehabilitate so that he could contribute to society in future.  He particularly aspired to be a district councillor, being able to participate in different services.  His family members, neighbour(s), teacher(s) and social worker have written letters of mitigation to support him.

15.The probation officer’s report recommended that an 18-month probation order be imposed on the respondent, out of which he had to reside at the Tuen Mun Home for 9 months for residential training.  According to the detention centre, training centre and rehabilitation centre suitability reports, the respondent was physically and mentally fit for detention in the said three centres, with detention centre being the most suitable. The juvenile home report was also positive.  It considered that the respondent behaved well during remand and was able to integrate into the way of living in the residential home.

D.      Reasons for sentence

16.In sentencing, the trial magistrate began with the following:

“...From all the reports and all the mitigation letters, I know that you used to be a fairly good youth. However, I want to give you a piece of advice. You have breached the law. I know that you have another case pending. My advice is that before you become an adult, listen to your parents more. If you take a look at how your transgression of the law has distressed your parents … well, neither impulse nor mere passion is a real solution to everything.

I firmly believe, you are now here, though you are so young, only 15 years old, what I appreciate is that I believe you genuinely love and treasure this city, albeit you are so young. Every person who really treasures Hong Kong would very much want to contribute to the city regardless of how little can be done. Perhaps every person is at a different position. Everyone sitting in this courtroom is at a different position. Not everyone is going to do something as great as your aspiration, such as becoming a councillor. Not everyone is going to enter politics. However, everyone who genuinely cares about Hong Kong does very much wish to make an effort at one’s own post to make Hong Kong a better place.

I appreciate you because you, at such a young age, have been so active and ready to serve Hong Kong. You should really understand your way of helping Hong Kong, it doesn’t work. When you yourself … your conduct leads to detention by the court, or imprisonment imposed by the court, what can bring about is nothing except a severe blow to your parents.

Therefore, as far as the court is concerned, constantly faced with young offenders like you, and who, as in your case, in the past were really very fine kids, good kids, this to the court is no pleasure at all. However, the court -- I can only hope that you have really learnt a lesson. If you hope that one day in future you can get to the District Council, or even one day you will (sic). No one can look down on you, because once you have equipped yourself well and that you truly have a passionate love for Hong Kong, no one would -- no one can stop you because perhaps you have a conviction record or so.

However, you really have to give some thoughts. When you become more and more mature, equip yourself well and make good judgment on everything, on what can be done and what cannot be done, on what should be done and be done wholeheartedly; only then can you proceed to do it. In the meantime, listen to your parents. I know that many families are riven, children do not listen to their parents no matter what, and things go wrong eventually. As a result, who knows how many families are riven by it, and that is what’s happening now.

Therefore, I do very much hope that before you say you love Hong Kong, first love your parents, try to understand their hearts, don’t be so wayward and reckless. You know that your -- in everything you do, if there’s something that you don’t do right, you are only dealing a blow to them.”

17.In the hearing on 8 May 2020, the trial magistrate pointed out that the starting point for arson for an adult was generally 5 years’ imprisonment.  In sentencing, she was of the view that although the case was serious and the respondent had another case pending, he was not bad in nature, and despite being at a young age he was ready to serve Hong Kong. Having taken into account the respondent’s guilty plea, that the test throw of petrol bombs took place at midnight[7] when pedestrian and vehicular traffic was scarce in the vicinity, that he did not aim to harm anyone, and that he had been remanded for over 4 months, the trial magistrate adopted the recommendation of the probation officer and made the probation order.

18.Finally, the trial magistrate encouraged the respondent to “take this painful lesson to heart”, “start afresh”, and equip himself well for the chance to contribute to Hong Kong in future.

E.      Grounds for review

19.Ms Vinci Lam, Deputy Director of Public Prosecutions, and Ms Hermina Ng, Senior Public Prosecutor, acting for the applicant have put forward four grounds for reviewing the sentence.

E1     Ground 1: Imposing a non-custodial sentence for arson is wrong in principle and/or manifestly inadequate

20.Ms Lam pointed out that arson was an extremely serious offence, and the maximum sentence of which was life imprisonment.  Citing cases such as R v Li Mun Tong, CACC 309/1994 (unreported, 16 May 1995) and HKSAR v Kung Pak Fu [2008] 2 HKCLRT 235, she submitted that Hong Kong was a densely populated city and occurrences of fire could cause extremely serious injuries and deaths as well as losses of properties.  Given the inherent danger of uncontrolled fire, a deliberate act of arson could cause extremely grave consequences and exhibited the arsonist’s disregard for life and property.

21.Ms Lam accepted that the Court of Appeal did not lay down any sentencing guidelines for the offence of arson and was of the view that appropriate sentence was necessary based on the gravity of the case.  However, she cited HKSAR v Ching Kam Pui, CACC 269/2002 (unreported, 29 January 2003) and pointed out that arson attracted 4 to 5 years’ imprisonment in general (see paragraph 11).  Although Ching Kam Pui involved an offence under section 60(2) of the Crimes Ordinance (i.e. intending to endanger the life of another or being reckless as to whether the life of another would be endangered), which was more serious than the offence in the present case (section 60(1) of the said Ordinance), the maximum sentence for both offences was the same, namely, life imprisonment.  This showed that both offences were of a serious nature.  Life imprisonment might be imposed even in less serious forms of arson, where the life of another was not in fact endangered: see HKSAR v Li Lin Shum also known as Li Sum, CACC 82/2015 (unreported, 26 August 2015), paragraph 9; and HKSAR v Law Chun Man [2012] 4 HKLRD 320, paragraph 29.  Therefore, where the usual sentence should be imprisonment or at least a custodial sentence even for an offence of arson under section 60(1), the non-custodial sentence imposed by the trial magistrate on Charge 1 was wrong in principle and/or manifestly inadequate.

E2.    Ground 2: Non-custodial sentence is insufficient to reflect the gravity and criminal culpability of Charge 1

22.Ms Lam, citing Law Chun Man, said that the sentencing factors in respect of arson include: motive of the offender, the actual damage done to property and the actual injury caused to any person, risks that might have been posed (including to the safety of rescuers), and whether the offender’s act was an isolated incident or was part of a wider campaign. Even when there was no intent to endanger or no recklessness as to the safety of others, the fact that danger was brought to others cannot be ignored.

23.Ms Lam asserted that the trial magistrate had erred in attaching too much weight to such factors as the absence of the respondent’s intent to injure anyone and the scarce pedestrian and vehicular traffic at the time, while overlooking the underlying reasons for which he tested the power of the petrol bombs, and failed to pay sufficient regard to the following matters:

(1)     As seen from the video footage played in court, the respondent did not stop after he succeeded in setting fire with his first throw of petrol bomb.  He carried on committing the crime and further hurled two other petrol bombs shortly afterwards: HKSAR v Kong Man Lung CACC 408/2012 (unreported, 7 May 2013), paragraph 10.  Moreover, the respondent tested the power of petrol bombs whilst on bail for a riot offence which he was suspected to have committed, showing a serious disregard for the law.  The court should adopt a higher starting point in sentencing.  HKSAR v Leung Ting Fung & Another [2015] 1 HKC 290, paragraphs 29-30.

(2)     The power of the petrol bombs was reflected by their clearly visible flames which lasted for at least 45 seconds and resulted in a charred road surface.

(3)     The glass fragments left at the scene indicated that actual harm could possibly be caused to people or property nearby.

(4)     There were traces of highly flammable organic solvent on the clothes worn by the respondent, and the use of accelerant was a factor of considerable aggravation in the commission of arson: HKSAR v Loku Galappaththige Pramuka Salinda, CACC 46/2016 (unreported, 29 September 2016), paragraph 29.

(5)     Although the respondent did not aim at causing harm to any specific target, he did not purposely go to a desolate place to throw petrol bombs either.  Rather, he committed the offence near his residence to reduce the risk of arrest.

(6)     The location of the offence was a T-junction.  A certain amount of traffic and pedestrians could still be expected even in the small hours, and the danger brought upon other road users should not be neglected.

(7)     The respondent was then on bail for a case of riot.  Test throw of petrol bombs suggested an ulterior motive.  It was part of a bigger plan and the real intention was obvious. Therefore, the notion that he did not have a specific target to harm was not a valid mitigating factor.

Ground 3:   The imposition of a probation order for Charge 1 was wrong in principle and/or manifestly inadequate

24.Citing cases such as AG v Law Ying Cheung [1981] HKC 161, and Secretary for Justice v Wong Chi Fung & Two others (2018) 21 HKCFAR 35 (Court of Final Appeal) and [2018] 2 HKLRD 657 (Court of Appeal), Ms Lam contended that the rehabilitation of an offender, albeit a matter of considerable importance, was not the sole objective of sentencing.  There are wider issues of public policy which, in addition, concern the court.   Even though section 11(2) of the Juvenile Offenders Ordinance[8] stipulated that no young person should be sentenced to imprisonment if he could be suitably dealt with in any other way, given the magnitude of Charge 1, youth might pale into insignificance when compared with public interest.  Public interest required the court to deliver an unequivocal message to youngsters that they must expect little quarter from the court when it came to the commission of such serious offences:  HKSAR v Law Ka Kit & Others [2003] 2 HKC 178.

25.Ms Lam asserted that the trial magistrate neglected or failed to put sufficient weight to the following factors:

(1)     In the prevailing circumstances in Hong Kong, there were increasing incidents of unrest and a rising number of large-scale protests. The sentence ought to emphasise the protection of general public;

(2)     Arson was a very serious offence in that it endangered the lives of general public and the safety of property.  The sentence should be commensurate with the seriousness of the offence;

(3)     A probation order could not reflect the societal disapproval against arson and the offender’s behaviour.  Instead, it sent the following wrong messages and gave rise to the idea of throwing petrol bombs among potential offenders (especially young people):

(a)     Young offenders would be sentenced leniently regardless of how serious the charge and facts of the case were;

(b)     Even though the offence of arson was serious, for which adult offenders should generally be sentenced to imprisonment for several years, young offenders would merely be placed on probation, which indirectly attracted or encouraged other youngsters to commit the same offence;

(c)     Committing a crime out of one’s love for Hong Kong would be accepted as a valid mitigating factor, regardless of how serious the circumstances of the case were; and

(d)     Committing a crime whilst on bail had no bearing on the sentence.

26.Ms. Lam submitted that although the probation order required the respondent to reside in the Tuen Mun Home for 9 months, such period only covered half of the entire term of the probation order.  Moreover, the requirement of residence in the Tuen Mun institution was less stringent than a custodial sentence as leave of absence may be granted under rule 26 of the Probation of Offenders Rules[9]. Thus a probation order did not produce a commensurate deterrence effect or reflect the seriousness of the case.  Hence, the sentence was wrong in principle and/or manifestly inadequate.

E4.    Ground 4: The probation order was wrong in principle and/or manifestly inadequate when the two charges were taken together

27.Ms Lam submitted that although the trial magistrate had the power to order the two sentences to run concurrently, since probation order was not an appropriate sentence for charge one, the imposition of a probation order as the overall sentence was wrong in principle and/or manifestly inadequate.  It was further submitted that the only appropriate sentence for this case, even with the youth of the respondent taken into account, was one of a custodial sentence which was sufficiently deterrent and punitive in nature.  Moreover, a judge, applying himself to all relevant factors, would not reasonably consider a probation order as falling within the appropriate range of sentence: AG’s Reference No 4 of 1989 [1990] 1 WLR 41.

F.      The respondent’s position

28.Mr Dick Lee and Mr Ted Chan, counsel for the respondent, submitted by citing Wong Chi Fung (Court of Final Appeal) that the appellate court could intervene a sentence only when the sentence was not recognised by law, wrong in principle, manifestly excessive or manifestly inadequate.  The ambit of the power of review of sentence was subject also to the constitutionally protected right against double jeopardy, and by convention, the appellate court would mitigate the enhanced sentence.

29.Citing Secretary for Justice v Chan Sha Sha [2018] HKCA 783, Mr Lee stressed that the trial magistrate had the discretion to, within an appropriate extent, impose a more lenient sentence to certain defendant.  The present case was heard by a very experienced juvenile court magistrate, who deserved respect from the appellate court in respect of her understanding of the facts and judgment on the mitigation.  The trial magistrate was not wrong in principle, the imposition of the probation order was even both sensible and reasonable.  It was a sentence which a judge would find to be within an appropriate range upon applying himself/herself to all relevant factors.

F1.    Response to Ground 1: The sentence was not wrong in principle and/or manifestly inadequate in the absence of sentencing guideline for the offence of arson

30.Referring to Wong Chi Fung (CFA), Mr. Lee pointed out that there was no sentencing guideline in Hong Kong for the offence of arson committed by young offenders.  As such, the trial magistrate did not err in principle in imposing a probation order.  As the respondent was a young offender, his rehabilitation and reformation were extremely significant.  This was also an important sentencing principle.  Young offenders were mentally immature, hence, circumstances of individual cases must be taken care of in sentencing.   The “Sentencing Children and Young People: Definitive Guideline” of the UK’s Sentencing Council, quoted by Mr. Lee, states:

“1.2 While the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused. For a child or young person the sentence should focus on rehabilitation where possible. …

1.5 It is important to bear in mind any factors that may diminish the culpability of a child or young person. Children and young people are not fully developed and they have not attained full maturity. As such, this can impact on their decision making and risk taking behaviour. It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. They may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to the victims of their crimes. Children and young people are also likely to be susceptible to peer pressure and other external influences and changes taking place during adolescence can lead to experimentation, resulting in criminal behaviour. …”

31.Mr. Lee also referred to rule 17.1 and the relevant commentary in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”):

“(a) The reaction taken shall always be in proportion not only to the circumstances and the gravity of the offence but also to the circumstances and the needs of the juvenile as well as to the needs of the society;

(b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum;

(c) Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response;

(d) The well-being of the juvenile shall be the guiding factor in the consideration of her or his case.”

[Commentary]

“Rule 17.1(b) implies that strictly punitive approaches are not appropriate. Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just [deserts] and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and the future of the young person”

According to Mr. Lee, the Court of Appeal cited the Beijing Rules in HKSAR v. Bu Hua Lai & Others [2007]HKCLRT 680and confirmed, as the international community recognised, that the well-being of the juvenile shall be the guiding factor in the consideration of her or his sentence.

32.Mr. Lee cited Leung Ting Fung and submitted that the courts in Hong Kong always encouraged rehabilitation when handling young offenders, and the rehabilitative approach in sentencing was an appropriate approach which not only took the well-being of the young offenders as the guiding factor, but also addressed the interests of the community and the public.  The respondent contended that it would not convey any wrong message to the youth and would instead go in line with the international legal principle concerning the handling of juvenile offenders.  The respondent contended that the imposition of a non-custodial sentence (e.g. probation order) was neither wrong in principle and/or manifestly inadequate even though arson was a serious offence.

F2.    Response to Ground 2: probation with residential requirement is sufficient to reflect the seriousness and culpability of Charge (1)

33.Mr Lee stated that the trial magistrate had fully taken into account the circumstances of the case and attached appropriate weights to different matters before imposing the probation order with residential requirement.  He stressed that the respondent had been remanded for over 4 months before being sentenced, two weeks of which he was under the custody of the Correctional Services Department.  The respondent had seriously reflected; and his remorse was undeniably evident.  Mr Lee also pointed out that even if he was sentenced to the detention centre, he would be detained there for 6 months at most (section 4(2)(b) of the Detention Centres Ordinance[10]), and the period for which the respondent was remanded would not be counted for remission.  As such, the trial magistrate was entitled to disregard committing a crime whilst on bail as a factor, having considered the duration of the respondent’s detention and his performance therein.

34.The basis of the prosecution did not include the possible injury or damage that could be caused to the people or properties nearby.  The trial magistrate on her own initiative requested the playing of the video footage and watched it closely.  Citing Wong Chi Fung (CFA), Mr Lee argued that the applicant could not depart from the basis of the prosecution.  From the video footage, there was indeed not much pedestrian or vehicular traffic at the material time.  The fact that there were traces of flammable substance on the respondent’s person was of little relevance and that had already been covered by Charge 2. The proximity of the location in question to the respondent’s residence just reduced the risk of an accident arising from the respondent's carrying petrol bombs in a public area.

35.As to the applicant’s contention that this case was part of a bigger plan, Mr Lee remarked that it was too much of a speculation without any substantial evidential support.  It was not even the prosecution case at trial, so the trial magistrate was entitled to disregard it.  The Court of Appeal should not even take it into account when dealing with the review of sentence.

36.Mr Lee expressed the view that a probation order with residential requirement was sufficient to reflect the seriousness and culpability of Charge 1.

F3.    Response to Ground 3: probation with confinement was not wrong in principle and/or manifestly inadequate

37.Mr Lee asserted that the trial magistrate never ignored the seriousness of the offence.  It was noteworthy that when counsel for the respondent submitted for mitigation, the trial magistrate did not simply call for a probation Report upon his request without any thought.  On the contrary, she requested counsel to make further submissions at different times for her consideration as to the appropriateness of obtaining a probation order report.

38.In connection with Law Ka Kit relied upon by the applicant, Mr Lee pointed out that the case involved a concerted armed robbery in which the young defendant not only occasioned actual harm to others, but did so for his personal gain.  As such, he was sentenced to a long term of imprisonment for the interest of the public.  Quite the opposite, the respondent’s clear record, remorseful attitude and motive for committing the offence in the present case were all different from those in Law Ka Kit.

39.Mr. Lee further submitted that the objectives of all non-custodial sentences involving some sort of confinement were always connected with young defendants’ need of rehabilitation.  Rehabilitation was a primary consideration for the sentencing of all juvenile offenders.  Referring to Secretary for Justice v. CHAN Chi Tao [2020] HKCA 296, Mr Lee suggested that the effect of a probation order involving some form of confinement was confirmed by the Court of Appeal.  Moreover, as the respondent was required to receive 9 months of residential training, his overall loss of liberty was much longer than the time of detention in a detention centre (no more than 6 months).  This was no lack of deterrent effect to a young person aged under 16.  Besides, as confirmed by the social worker in charge, leave of absence was deemed unsuitable in the respondent’s case as he was involved in another case which had yet concluded.  Given the severe epidemic situation, all arrangements of absence were suspended.  In other words, rule 26 of the Probation of Offenders Rules was not applicable to the respondent.  For these reasons, probation in confinement was not wrong in principle and/or manifestly inadequate.

F4.    Response to Ground 4: Taking the two charges together, probation order was not wrong in principle and/or manifestly inadequate

40.Mr Lee pointed out that the trial magistrate was entitled to order the sentences for Charges 1 and 2 to run concurrently.  If the applicant’s other grounds were not established, it followed that Ground 4 was not made out either.

F5.    Disposal

41.Citing Secretary for Justice v Yeung Wing Hong [2013] 3 HKLRD 794, Mr Lee asked the Court of Appeal not to review and change the sentence, even if this court found that the original sentence passed was outside the appropriate range.

42.Mr Lee submitted that the Court of Appeal, in determining whether the sentence should be changed, should take the following factors into consideration:

(1)     The respondent had already been remanded in custody for over 4 months by the time of sentence;

(2)     In Hong Kong, there was no sentencing guideline for arson committed by juveniles at the time of sentence;

(3)     The respondent had already received probation in confinement for 3 months by the time of review of sentence;

(4)     The respondent has performed extremely well in the Tuen Mun Home and has been receptive to counselling;

(5)     The respondent has been under tremendous psychological pressure since he came to know about the application for review of sentence.  The effect of such pressure to a young person who is only 15 years old was worthy of the court’s consideration on a discretionary basis.

43.Mr Lee opined that substituting the respondent’s sentence with a detention centre order or imprisonment was excessively harsh, infringed the protection “against double punishment”, and was obviously unfair. It would be more desirable to let him continue with the probation in confinement.

44.Lastly, citing Wong Chi Fung (CFA), Mr Lee said that even if the Court of Appeal was minded to lay down sentencing guidelines for arson committed by juveniles through this case, the guidelines should not be applied on the respondent, otherwise, it amounted to retrospectively imposing a more severe sentence.

F.      Discussion

G1.    General principles in sentencing 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[11], shall be sentenced to imprisonment if such young person can be suitably dealt with in any other way[12]. 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[13], sending him/her to a reformatory school[14], sentencing him/her to imprisonment or to detention in a training centre or to detention in a rehabilitation centre[15] and for a male offender, sentencing him to detention in a detention centre[16].  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[17].

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; and 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” cited by Mr Lee.

G2.    Usual sentence for arson

50.Section 60 of the Crimes Ordinance provides:

“Destroying or damaging property

(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another –

(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

(b) 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,

shall be guilty of an offence.

(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.”

51.Generally speaking, the offence under section 60(2) is more serious than that under section 60(1), because the offender intended, by the destruction or damage, to endanger the life of another or was reckless as to whether the life of another would be thereby endangered: HKSAR v Lo Po Tak [1998] 3 HKC 485, page 488G.  Nevertheless, the maximum sentence for both offences is life imprisonment, so the offence under section 60(1) is also serious: see Li Lin Shum, paragraph 9.  Although the offence under section 60(1) is a less serious form of arson, it may be committed in circumstances where a sentence of life imprisonment will be appropriate: Law Chun Man, paragraph 29.

52.The Court of Appeal has pointed out time and again that arson is an offence of particular severity.  This is because Hong Kong is a densely populated city where the living and working environments are relatively crowded.  An occurrence of fire often causes extremely grave consequences, possibly resulting in serious injuries or losses of properties. The offence of arson aims at heavily combating deliberate acts of arson, preventing the public from being harmed by such acts.  Out of considerations of the public interest, the court must impose a heavy sentence for the offence of arson so as to protect the public, mete out penalties to and openly condemn the offenders, as well as to deter the offenders and others who intend to commit the crime from doing so; otherwise the lives and properties of the public will be under serious threat.  Therefore, it has been the practice of the court to impose immediate imprisonment on offenders of arson.  For relevant authorities, see Kung Pak Fu, paragraphs 15 and 16; and HKSAR v Shing Kaiser [2018] HKCA 572, paragraph 21.

53.As the facts of arson cases can take various different forms, the Court of Appeal did not find it appropriate to lay down sentencing guidelines: Kung Pak Fu, paragraph 23.  Generally, the sentence for an offence of arson is in the range of 4 to 5 years of imprisonment: Ching Kam Pui, paragraph 11.  Nevertheless, the actual term depends on the gravity of each individual case: Kung Pak Fu, paragraph 23.

54.Citing three unreported District Court cases, namely HKSAR v Kwok Man Ho (transliteration), DCCC 559/2020 (30 August 2010); HKSAR v Yu Cheuk Kiu (transliteration) & Another, DCCC 314/2015 (2 September 2015); and HKSAR v Yip Wai Hong & Another, DCCC 451/2015 (26 October 2015), Mr Lee contended that the court did not necessarily impose an immediate imprisonment for arson, but could impose a community service order, suspended sentence or a probation order instead.  It is not necessary for this court to discuss these three cases in detail.  It is only necessary to point out the following: In the case of Kwok Man Ho, Deputy District Judge Rickie Chan imposed a community service order on the defendant.  As seen from his reasons set out in paragraph 14, it was a very, or even overly, lenient way of dealing with the case by not imposing an immediate imprisonment.  In Yu Cheuk Kiu, Deputy District Judge E Lin (as he then was) admitted as much in paragraph 15 that imposing a probation order on both defendants was “unusually lenient”.  As for the case of Yip Wai Hong, District Judge Stanley Chan imposed a suspended sentence and a community service order respectively on the two defendants, while the judge did say in paragraph 21 that this was “cutting them some slack”.  In short, the sentences imposed in these three cases have departed from the sentencing norm set down by the Court of Appeal for the offence of arson and are not of much referential value for the lower courts, let alone for the Court of Appeal.

G3.    Usual sentence imposed on juvenile offenders of arson

55.Applying the aforesaid legal principles, the court shall give proper weight to sentencing factors such as protecting the public, meting out punishment, open condemnation and deterrence in sentencing juvenile offenders of arson, and not just focus on rehabilitation.  Moreover, given that arson is a serious crime, the former factors will naturally be given more weight than the latter one under normal circumstances.  In determining which sentencing option to adopt, the court must ensure that the sentence sufficiently includes elements of protecting the public, meting out punishment, open condemnation and deterrence etc, instead of focusing on rehabilitation as the sole or dominant purpose.  Imposing a probation order on a juvenile offender of arson is inappropriate, unless the facts of the case are particularly minor, or there are exceptionally special circumstances or strong mitigating factors in the case.  This is because the main objective of probation order is rehabilitation, and does not have sufficient regard to the needs of public interest, such as protection of the public, meting out punishment, open condemnation and deterrence, and is not a sentence commensurate with the seriousness of the offence of arson.

G4.    Sentences in this case

56.According to facts admitted by the respondent and the video footage played in court, what the respondent did was a serious act of arson.  Besides, there are two factors which aggravate the respondent’s culpability in the present case.

57.First, it was an extremely dangerous act to set fire by hurling petrol bombs.  Petrol bombs are made up of inflammable materials.  The use of inflammable material is a considerably aggravating factor in respect of arson because inflammable material by its nature speeds the progress of a fire while time is of the essence in fighting fires: Loku, paragraph 29.  Furthermore, it was confirmed by chemical analysis that traces of a highly inflammable organic solvent were present on the clothes of the respondent at the time of his arrest.  If his clothes had caught fire when he lit up the petrol bombs, the consequence could have been disastrous.  Undoubtedly, his acts of arson have significantly increased the potential danger posed to himself and others.

58.Second, the respondent committed the current offence whilst he was on bail.  On 29 September 2019, the respondent was arrested for suspected commission of a riot offence.  On 2 Oct in the same year, he was granted bail pending trial[18]. It is an established sentencing principle that committing another offence whilst on bail is an aggravating feature of culpabilityfor the reasons that, in terms of the offence, it demonstrates a serious disregard of the law and, in terms of the offender, it evidences a persistence in offending.  Both of these matters add to the culpability of the offender.  See Leung Ting Fung, paragraphs 29 to 30.

59.Given the very serious nature of the facts admitted by the respondent and the above aggravating factors, it is not necessary to discuss other aggravating matters here relied upon by Ms Lam or Mr Lee’s submission in reply.  However, it should be pointed out that those matters would further increase the culpability of the respondent if they are substantiated.

60.In the light of the seriousness of the facts of the case and the culpability of the respondent, the court must impose on him a sentence with sufficient punitive and deterrence effect.  A custodial sentence (but not to the extent of immediate imprisonment) is the only suitable sentencing option because, as explained below, there are other options of custodial sentence appropriate for his case.

61.Although the probation order requires the respondent to receive 9 months of residential training at the Tuen Mun Home and the confinement there, to a certain extent, is a limitation of personal liberty to the respondent, it is not comparable with detention in a correctional institute such as the detention centre.  The probation order would not turn into a custodial sentence as suggested by Mr Lee, nor would it turn the 9 months of training into a term of detention.  The probation order by its very nature remains a non-custodial sentence, which is not commensurate with the respondent’s culpability and the seriousness of the present case.

62.According to the trial magistrate, arson is a serious offence, the facts of this case were also serious (she described the matter as serious), and she was aware that the respondent had committed the offence whilst on bail. Nonetheless, she mentioned nothing about sentencing factors such as punishment and deterrence when passing the sentence, giving the impression that those factors were not taken into account.  If she did in fact consider those sentencing factors, then she had failed in explaining why emphasis was only placed on the factor of rehabilitation and imposed a probation order on the respondent.

63.Mr Lee submitted that the trial magistrate was an experienced juvenile court magistrate, she must have given thorough consideration to all the sentencing factors although it was not stated in the reasons for sentence.  I cannot accept Mr Lee’s submission.  The trial magistrate was duty bound to set out her reasoning in the reasons for sentence. There was no basis for the Court of Appeal to presume in the present case that she must have in fact properly dealt with all relevant sentencing factors because she was an experienced judicial officer even when it was not shown expressly in her reasons for sentence.  I am of the view that the trial magistrate had failed to give sufficient consideration to all relevant sentencing factors and only focused on rehabilitation, ignoring factors such as punishment and deterrence, thereby erring in principle.

64.The trial magistrate complimented the respondent for being a mature individual who cares about society and takes the initiative to serve the community despite his young age.  She even remarked that he used to be a “very fine” kid in the past.  It is obvious that the trial magistrate gave very high remarks about the respondent, which is, however, questionable.

65.According to the probation officer’s report and the letters for mitigation, a few years ago the respondent took part in an activity about restructuring the residents’ bus lines in his neighbourhood, and participated in the district services offered by a district councillor.  This shows he has interest and determination in serving the public, which has also been put into action.  That being said, it is somewhat an exaggeration to comment on him as being willing to serve Hong Kong.  One may at most say that he aspires to serve the public when he grows up.  Besides, the academic performance of the respondent was mediocre; he even had to repeat Form 3 because of unsatisfactory academic results.  He has some conduct issues too, although they are not very serious.  Given there is much room for improvement in the respondent’s academic performance and conduct, the trial magistrate’s comment of “very fine” might have been overrated, resulting in considering only the respondent’s rehabilitation. While the trial magistrate’s remark about the respondent was not a fair one, the applicant does not rely on bias as a reason for its application for review. Nevertheless, it remains necessary for me to stress that the trial magistrate in dealing with the factors advanced for the respondent’s mitigation, such as his background and character, must consider all relevant evidence and information and not to overgeneralize them, otherwise, she would place inappropriate weight on these mitigating factors and make mistakes.

66.The respondent is reckless, weak in law-abiding awareness, and susceptible to others’ influence; moreover, as pointed out by the probation officer, the respondent’s parents conceded that their supervision on him was ineffective.  Under such circumstances, the trial magistrate should have considered imposing a custodial sentence against the respondent so that he would receive training which was more stringent than residential training, and whether this would be more effective in improving his behaviour and law-abiding attitude, and making him receptive to his parents’ supervision in future.  This important consideration has been overlooked by the trial magistrate.

67.While the court has to impose a custodial sentence on the defendant, his rehabilitation must also be taken into account.  Therefore, imprisonment is not the most suitable sentencing option.  Among the sentencing options mentioned in section 15(1) of the Juvenile Offenders Ordinance, custodial sentences like detention centre, training centre and rehabilitation centre all address the respondent’s need for rehabilitation.  Accepting the report submitted by the Commissioner of Correctional Services, the court considered admission to the detention centre to be most suitable for the respondent.

68.A detention centre, which is operated by the Correctional Services Department, places emphasis on hard physical labour and discipline in order to administer a short sharp shock[19] on offenders so that they will not re-offend.  The Commissioner of Correctional Services determines the inmates’ length of detention with reference to their disciplinary performance and behaviour.  Upon release, they are usually subject to one year’s supervision to ensure they abide by the law and keep the peace[20].  Admission to detention centre can be a suitable sentence for first offenders: See HKSAR v Chung Tin Yau & Others,HCMA 926/2005(unreported, 16 December 2005).

69.Disciplinary training and labour in detention centre would strengthen the respondent’s law-abiding sense, improve his conduct and make him more receptive to parental supervision upon release, which would be most important to his rehabilitation and long-term development.  The post-release supervision for one year by the Commissioner of Correctional Services is also important in ensuring that he is on the right track.

70.Sentencing the respondent to the detention centre will not violate the principle against “double jeopardy” as alleged by Mr Lee.  The court’s main consideration is whether the time that the respondent is to be detained in the detention centre plus the time that he has spent in the Tuen Mun Home would exceed the time he is required to reside in the Tuen Mun Home under the probation order.  According to section 4(2)(b) of the Detention Centres Ordinance, the respondent shall not be detained in the detention centre for more than 6 months.  Even if the three months he has spent in the Tuen Mun Home is considered as detention, the time he is to be detained will not be more than 9 months or so, which is similar to the length of 9 months that he is required to stay in the Tuen Mun Home under the probation order.  The 4 months that the respondent had been remanded before being sentenced by the trial magistrate has no bearing on the length of residential training or detention in the detention centre.  In other words, the length of the respondent’s detention will not be increased as a result of our substitution of the existing sentence with a detention centre order.

71.For the foregoing reasons, in the present case, the most commensurate sentence is to send the respondent to the detention centre.

G.      Conclusion

72.This court holds that the probation order made by the trial magistrate against the respondent is wrong in principle and manifestly inadequate, which is therefore set aside and substituted with a detention centre order for each charge and to run concurrently.

73.Let me reiterate: as required by public interest, the court is duty bound to impose a commensurate sentence on the defendant before it pursuant to the relevant ordinances and applicable legal principles.  Where the law permits and it sits well with proportionality, the court may, at its own discretion, impose a more lenient sentence on the defendant.  In such a case, the Court of Appeal will not interfere.  However, as highlighted in quite a number of appeal cases, unduly lenient sentences which may be seemingly advantageous to the defendants turns out to do them no good in the end.  In case the Secretary for Justice applies for a review of the sentence, the defendant will inevitably be subject to anxieties pending any decision to be made by the Court of Appeal. If the review succeeds, the defendant will face a more severe sentence which will cause him disappointment or even a blow and may also interrupt the rehabilitation plan that he is undergoing. Reference may be made to Cross and Cheung on Sentencing in Hong Kong, 9^th ed, page 609, paragraphs 41-8 and 41-9.  Nevertheless, it is not meant to imply that the court is to be invariably harsh.  What is required of the court is passing a commensurate sentence on the defendants.

74.Finally, I recognise that a lot has been said by the trial magistrate to encourage the respondent[21] at the time of sentence, but her reasons for sentence were relatively, or even overly, simple.  I can understand that when dealing with juvenile offenders, the court sometimes needs to say something of encouragement, which may benefit them.  However, such words are not to be mixed with the reasons for sentence, otherwise the reasons would become unclear, and give the impression that the words of encouragement form part of it.  It would be better to set out the reasons for sentence before encouraging the respondent.

Hon Pang JA:

75.Sentencing juvenile offenders always involves a tension. As pointed out by Poon CJHC, on one hand the court is required to give primary consideration to the rehabilitation of juvenile offenders, while on the other hand, other sentencing considerations such as punishment, open condemnation and deterrence must also be taken into account. The overall assessment depends on the gravity of the offence itself and the seriousness of specific facts of the case, and also in certain cases, apart from immediate imprisonment, whether there exists any sentencing option which fulfils the needs of both these two aspects.  Such balancing exercise is not only long-standing and supported by Hong Kong law, but also consistent with the generally recognised approaches in place in other common law jurisdictions, if not internationally.  The trial magistrate’s error in the present case lies in her failure in striving to achieve such balance, resulting in a sentence tilting towards one side.  It is to be mentioned here that the imposition of a custodial sentence does not mean rehabilitation has not been a primary consideration.  Admission to the detention centre, for example, is highly rehabilitative.  It is just that for individual juvenile offenders, rehabilitation is best achieved by losing liberty for a short term, learning to stay disciplined and living a regulated life. I agree with Poon CJHC’s analysis and conclusion.  The original sentence of this case is not only wrong in principle but also manifestly inadequate, and therefore must be corrected.

Hon Pang J:

76.I agree with the judgments of Poon CJHC and Pang JA.

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

Mr Dick K.F. Lee, instructed by S.T. Cheng & Co., Solicitors, assigned by the Director of Legal Aid, and Mr Ted Noel Chan, instructed by S.T. Cheng & Co., Solicitors, for the respondent

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