HKSAR v. Lee Kai Fat

[English Translation – 英譯本]

HCMA 165/2020

[2020] HKCFI 2854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 165 OF 2020

(ON APPEAL FROM TMCC NO 121 OF 2020)

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BETWEEN

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Before: Hon Alex Lee J in Court

Date of Hearing: 4 November 2020

Date of Judgment: 4 November 2020

Date of Reasons for Judgment: 13 November 2020

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Reasons for Judgment

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Introduction

1.On 12 June 2020, before Acting Principal Magistrate Katie Cheung (“the magistrate”) the appellant pleaded guilty to one count of “possession of offensive weapon”, contrary to section 17 of Summary Offences Ordinance, Cap 228. He was sentenced to 8 months’ imprisonment. The appellant was aggrieved and now appeals against his sentence.

2.This case involves two offensive weapons:

• A glass bottle containing hydrochloric acid (P2) and a can of butane (liquefied petroleum gas) (P3), both tied together with a yellow plastic strap, and

• A device that can emit laser beam (laser pointer) (exhibit P4).

It was alleged that on 22 January 2020, in Tuen Mun, New Territories, near Ho Tin Light Rail Station, he possessed the above two items with intent to use the same for any unlawful purpose.

Admitted Facts

3.According to the admitted facts, at 01:15 am that day, an off- duty police officer (PW1) interrogated the appellant when he saw him acting suspiciously near the light rail station in question. Later, a police officer (PW2) found P2 and P3 tied together with a yellow plastic strap, as well as P4, in the appellant’s rucksack, and two lighters in the appellant’s green camouflage vest. PW2 arrested the appellant for arson. Under caution, the appellant said, “I have never thrown any petrol bomb. I learnt how to make the petrol bomb from YouTube.” As for P4, the appellant said under caution, “I bought the laser pointer on Taobao to test its degree of power.”

4.After examining P2, the Government Laboratory confirmed that P2 contained 538 mL of liquid, 31% of which was hydrochloric acid, a substance that can normally be found in toilet bowl cleaners with a potential to cause corrosive damage to skin and eyes. P3 contained butane, a highly flammable gas that is normally used as fuel for portable stoves or lighters. P4 was a class 3B laser product, the laser beam emitted from which could cause eye damage within 40 metres.

5.The appellant admitted that he possessed exhibits P2, P3 and P4 with intent to use the same for any unlawful purpose.

The appellant’s background and IQ

6.The 32-year-old appellant was born in Hong Kong. He was classified, at his age of 5 years, as mildly intellectually disabled. He has a mental age of 11 or 12[1]. The appellant went to a special school for secondary education. Following that, he received two years’ vocational training. Before the arrest he was doing two jobs – as a cleaner and as a waste paper collector.

7.Regarding the appellant’s family, his father passed away in 2015. The appellant’s elder brother has lost contact with the family for years. His mother has been suffering from mental illness since young. She has been staying in an elderly home since deterioration of her health in recent years. The appellant’s elder sister, also suffering from mental illness since she was young, is residing in a halfway house.

8.Ms Wong told the Court that the appellant used to live in a public housing flat where his elder sister was the registered tenant. Since the sister had been residing in a halfway house and their relationship had turned sour, the appellant could not stay at his sister’s public housing flat anymore and indeed, had no roof over his head. According to Ms Wong, after the appellant was granted bail pending appeal, he had been staying at a hostel run by Yang Memorial Methodist Social Service where he would be allowed to stay indefinitely.

9.With regard to his criminal record, the appellant appeared in court on two occasions resulting in five convictions, including a count of “assault occasioning actual bodily harm” in 2007, and four counts of “common assault” in 2015. All these offences were disposed of by way of conditional discharge or binding over.

10.Before passing sentence, the defence submitted a psychiatrist’s report prepared by Dr Henry Kwok. Dr Kwok’s assessment of the appellant’s IQ is essentially similar to that in the two medical reports prepared by Siu Lam Psychiatric Centre. Dr Kwok pointed out that the 32-year-old appellant had an IQ score of 66, that is of mild grade intellectual disability, with a mental age of a normal 11-year or 12-year old child. He found that the appellant exhibited deficiency in conceptual ability, social skills, daily living and etc. An adult with mild grade intellectual disability, the appellant had impairment in reasoning, problem-solving, judgment, planning, prioritizing and strategic decision making, being prone to manipulation, exploitation and even torture. Dr Kwok opined that most people with mild grade intellectual disability could live independently, but when faced with complicated tasks and decisions, particularly crisis, assistance would be necessary.

11.Dr Kwok found that the appellant’s fitness to plead is “just borderline” whereas the two psychiatrists from Siu Lam found him “fit to plead”. On this point, I do find that Dr Kwok and the two psychiatrists from Siu Lam are just of different focuses. Should there be any substantive difference among them, I shall adopt the opinion of the latter two, the reason being that as assessing a defendant’s fitness to plead is part of the daily routine of the psychiatrists at Siu Lam Psychiatric Centre, they must be relatively more experienced than private psychiatrists in this area. Furthermore, the appellant has been prosecuted twice before and has the experience of appearing in court. In this case, he has always been legally represented. His legal representative has never indicated that he is not fit to plead. As a result, I have ample reason to believe that he has the ability to tell right from wrong, to understand the charges, to know the difference between pleading guilty and not guilty, and to give sufficient instructions to his lawyers.

The sentence imposed by the magistrate

12.In mitigation, the defence submitted that the appellant had mild grade intellectual disability, which would justify a reduction in sentence. The cases and authorities submitted by the defence suggest that intellectual disability of a defendant has its bearing on sentence. On the other hand, the magistrate said when passing sentence, the court has to ensure that the public are appropriately protected: Sentencing in Hong Kong 2018 [30-232].

13.The magistrate found the defence had not referred to any authorities showing that intellectual disability could be a mitigation factor for defendants in similar cases. Given the gravity of the offence and the facts of this case, the magistrate did not consider the appellant’s intellectual disability a mitigating factor; nor did she think that non-custodial sentence was appropriate under the circumstances. The magistrate did find that immediate imprisonment was the only appropriate sentence for this case. She took 12 months’ imprisonment as a starting point and sentenced the appellant to 8 months’ imprisonment for his plea of guilty.

Grounds of appeal

14.Ms Wong, counsel for the appellant, advanced three grounds of appeal:

(1) The magistrate erred in law in finding the IQ of the appellant not a mitigating factor;

(2) The magistrate erred in law when she failed to consider that the hurdles caused by the appellant’s intellectual disability during incarceration that he might be faced with could be a mitigating factor; and

(3) The starting point of 12 months was manifestly excessive.

15.In answering my question, Ms Wong indicated that the appellant did not dispute the appropriateness of custodial sentence in this case. What the appellant is disputing is the excessive starting point adopted by the magistrate.

Legal principles

16.The appellant’s intellectual disability, if causative of or materially contributing to the offending, is capable of reducing moral culpability as distinguished from legal responsibility and thereby affecting the punishment: Henry v R[2].

17.However, it can be a mitigating factor if the defendant is mentally impaired with apprehension and judgment skills below average. The reasons include (but not limited to) the following:

(1) Although the defendant knows the difference between right and wrong, his social judgment and self-control skills are weak. With limited sense of morality, the defendant is not aware of the consequence and seriousness of the deviant behaviour: R v Taylor[3], R v Harvey[4], and R v James Walter B[5].

(2) The defendant’s intellectual disability may have bearing on the need for the court to impose a deterrent sentence. There are two types of deterrence: specifically on the defendant oneself and generally on others. For deterrence given to an individual offender, if the defendant’s disability is the cause of his difficulty in controlling his actions and thus his offence, such sentence would serve no purpose of deterrence and would be felt to be inappropriate: Muldrock v R[6]. On the other hand, when general deterrence is directed, circumstances personal to the defendant may not be given substantial weight: Secretary for Justice v Yan Shen[7], HKSAR v Tang Ho-yin[8] and HKSAR v Chan Sau-lan, Becky[9].

(3) Besides, if the offender’s intellectual disability will make imprisonment an “additional burden”: R v Van Boxtel[10] and refer to HKSAR v Ho Pang[11], or a “serious risk” to his mental health: R v Verdins[12], such conditions will then be taken into account as mitigating factors, causing the court to adopt a more lenient approach on passing sentence.

18.Can a defendant’s intellectual disability be a mitigating factor? If the answer is yes, what weight should be given? These depend on the nature and seriousness of the offence, the nature and severity of the defendant’s disability, any nexus between the defendant’s disability and the commission of the crime, and the impact of his disability on the defendant himself, as well as other special circumstances: R v Verdins[13]；R v Grossi[14]. Besides, when dealing with certain types of cases, including, but not limited to, sexual or violent offences, protection of society is a consideration: see R v Stabler[15] and Secretary for Justice and Lam Yu Wai[16].

Consideration

On ground of appeal (1)

19.Applying the above legal principles in this case, the appellant’s mild grade intellectual disability is not the causation of his commitment of the offence of “possession of offensive weapons”; nor such disability has any contribution, or any material contribution, to the offence he committed.

20.There is no evidence before the magistrate or this Court that imprisonment will be a serious risk to the appellant’s mental health.

21.However, I accept the opinion of Dr Kwok and agree that the appellant’s intellectual disability adversely affects his judgment to the extent that he is not able to recognise the consequence and seriousness of his deviant behaviour like ordinary people. Therefore, I find it contradictory to the established sentencing principles summarised above, and hence inappropriate, to focus only on the gravity of the offence and the facts of the case but ignore his intellectual disability as a relevant factor for sentencing. For cases which are way more serious than this one, the Court of Appeal will pass a rather lenient sentence because the defendant suffers from intellectual disability, with ability to understand and sense of judgment below average, and failing to recognise the consequences and the seriousness of their defiant behaviour: see HKSAR v Cheung Kam Ming^[17]. I will get back to the weight that should be given to such mitigating factor in this case later.

On ground of appeal (2)

22.I have considered the circumstances of the appellant, including his IQ equivalent to a child of 11 or 12 years, the education he has received, his experience of work and living an independent life etc. I have also considered Dr Kwok’s opinion that most people with mild grade intellectual disability can live an independent life. I find that for an offender with mild intellectual disability, the regular and disciplined lifestyle organised by and inside the correctional institutions may not necessarily be more difficult to cope with than living alone outside with no one to turn to.

23.Ms Wong submits that the appellant encountered problems such as intimidation and bullying in prison during the remand. To rely on this ground to appeal against his sentence, the appellant has to adduce relevant and credible evidence. However, there is no such evidence before me. The respondent was not given any opportunity to respond to this either. As a result, I cannot rely on Ms Wong’s assertion. In any event, according to Ms Wong, the situation had improved after the appellant was transferred to another cell. Accordingly, I will not attach any weight to this assertion.

24.Moreover, psychiatrists from Siu Lam Psychiatric Centre have suggested that the appellant should continue with follow-up psychiatric treatment[18]. It is also Dr Kwok’s suggestion that the appellant should accept assistance from teams of specialists including psychiatrists, psychologists, community nurses and occupational therapists. I am sure that the Correctional Services Department will, if and when necessary, provide the appellant with proper medical care and arrangement when he is serving his sentence. The appellant can also receive follow-up treatment at Siu Lam Psychiatric Centre.

25.Besides, if the appellant is given a work assignment while in jail, I verily believe the Correctional Services Department will not ignore his capability and make him do what he cannot cope with.

26.For the reasons above, this ground must fail.

On ground of appeal (3)

27.The maximum penalty for “possession of offensive weapon” under Section 17 of the Summary Offences Ordinance is a fine of five thousand dollars or imprisonment for two years. There are no tariff sentences for this offence. When imposing sentence, the court will consider factors including, but not limited to, (1) the quantity, (2) the type, (3) the nature and lethality, (4) the condition such as suitability or ease of use, of the offensive weapon involved, (5) where or how it was kept, and (6) the intention of keeping it: HKSAR v Leung Ying Ming[19].

28.Ms Wong submitted that this case was not serious, the things involved were just a laser pointer (P4), a can of petrol gas for gas cooker (P3) and a glass bottle containing cleaning detergent (P2). According to the admitted facts, the hydrochloric acid in P2 is “an ingredient that can be normally found in toilet bowl cleaners”. For P3, it is “normally used as fuel for portable stoves or lighters”. Ms Wong disagreed with the magistrate that “these things are to some degree dangerous and lethal”.  Ms Wong argued that P2 and P3 would neither cause an explosion nor were they gas bombs. She also said that P3 was covered with a lid when it was found and the opening of the bottle containing P2 was covered with tissue paper.

29.In answering the submissions above, Mr Kwong cited the following cases:

(1) In HKSAR v Yung Wai Shing & Another[20], D1 admitted that he possessed an extendable police baton and a laser pen of class 3B (in the same class as P4 of this case) in a public place. On the night in question, the defendant intended to participate in an assembly but had been intercepted for enquiries before he got there. The weapons were for self-defence, not targeting the police and had never been used. Wong J said a starting point of 12 months was not manifestly excessive.

(2) D1 and D2 in HKSAR v Chan Yiu Shing & Another[21] were found to have carried 5 bottles and 1 bottle of chili spray respectively. D1 was sentenced to 9 months’ imprisonment after trial. Although Wong J found that the actual bodily harm that could be brought by the pepper spray was mild and temporary, there was a high degree of planning. He had a total of 5 bottles of such liquid in his possession, which suggested that he had the intention of using them continuously. There was also a risk that some could have fallen in the hands of other people for illegal use. Bringing chili spray to protest might cause the public to hold back their right of peaceful protest and petition and so 9 months’ imprisonment was not manifestly excessive.

30.Mr Kwong submitted that the defendants of the above two cases were convicted under section 33 of the Public Order Ordinance, the maximum penalty for such offence being 3 years’ imprisonment. However, as Deputy High Court Judge Pang said in HKSAR v. Lee Man Shing[22] (transliteration), the sentence imposed under section 17 of the Summary Offences Ordinance may not necessarily be lighter than that of section 33 of the Public Order Ordinance.

31.I agree that the primary consideration for the sentencing is the facts and gravity of the case, not the offence that the defendant is charged with. That said, it does not mean that the offence itself is unimportant as the court has to look at what has been said in regard to the maximum sentence for the offence and to consider the criminality of the defendant, relative gravity to the kind of cases, as well as the mitigating factors of the defendant, and eventually to come up with a sentence which the Court feels is commensurate with the gravity of the offence: Attorney General v Ho Chun-chau[23] and Ho Mui v R[24].

32.Ms Wong submitted that the facts of this case were not serious: the items involved were kept in the appellant’s rucksack without being displayed causing any alarm to the public; the appellant did not use those items; no one was hurt nor any property damaged; and there was no evidence showing that the appellant had the intention to cause any harm to anyone. About the submissions above, the offence that the appellant has been convicted of is not “offensive weapon” but “possession”. In my view, the matters Ms Wong mentioned are aggravating, instead of mitigating, factors.

33.In his supplementary written submissions, Mr Kwong cited Secretary for Justice v. S H Y^[25] to explain the gravity of this case.  SHY is an application of review of sentence that the Court of Appeal has dealt with recently. The respondent of the case (a Form 4 student) pleaded guilty to one count of “possession of instrument fit for unlawful purposes with intent to use the same for any unlawful purpose”, contrary to section 17 of Summary Offences Ordinance. That is an offence similar to the one faced by the appellant in this case. The facts revealed that at the time of the arrest, SHY had in her hand a paper bag containing a glass bottle with traces of alcohol, a bottle of antiseptic solution, a can of lighter fluid (109 ml), a towel and a piece of tinfoil holding some washing powder. SHY admitted that she intended to make a petrol bomb with the articles in question after obtaining such information on the internet, but claimed she just thought of “seeking fun” at the moment. About SHY’s culpability, the Court of Appeal made these observations:

“[In] our view, since those articles included a can of inflammable lighter fluid, and the respondent admitted that she had purposefully asked her father to buy the lighter fluid for her to make petrol bomb, regardless of whether any petrol bomb could be successfully made, solely on the respondent’s possession of inflammable substance in a public place, of which the intent was making a petrol bomb, she obviously had the plan to commit the offence. These circumstances show that the facts admitted by the respondent fall into the serious category.”[26]

“Furthermore, I agree with the applicant that although no petrol bomb had been completely made, the respondent’s intent of making a petrol bomb is one of the factual bases that the court must take into account, and the court should also consider the potential danger involved with the intent concerned and the public disapproval against such criminal intent.” [27]

“In addition, the respondent told the probation officer that she had intended to test the power of the petrol bomb. Although she said that the test would be done by the riverside, it was already clear that she intended not only to make a petrol bomb with the articles in question but also to throw the bomb for a test. We do not agree … that since the respondent was not at the scene of any protest or unlawful assembly at the time of the offence, the facts did not fall into the serious category. Conversely, had the respondent possessed those articles in question at the scene where people gathered with intent to make a petrol bomb, it would have been an obvious aggravating factor.”[28]

“This Court of course has not ignored the respondent’s claim of “seeking fun” at that moment, but in our view, even if the magistrate accepted this explanation, it does not mean that the seriousness of the case or the respondent’s culpability can hence be reduced. The respondent’s intent remains the key issue which the court has to consider. As stated above, it is serious that the respondent had the intent of using the instrument in her possession to make a petrol bomb. Even if it was true that the respondent had such intent just because of “seeking fun”, the sentence in the case should nevertheless show the possible serious consequences of the offence even more clearly so as to make it known to the respondent that she cannot act merely on a whim without paying regard to the life and property of the general public. The court should also by way of a deterrent sentence make it known to those who intend to commit similar offences the serious consequences of committing the offences and that the court would give absolutely no allowance.”[29]

34.I accept Mr Kwong’s submissions that, similar to this case, the observations of the Court of Appeal can be drawn upon. In contrast, I do not agree with Ms Wong that the facts of this case are not that serious. As Mr Kwong said in his written submissions, there is no dispute that P2 contained hydrochloric acid that could cause corrosive damage to skin and eyes. Injuries could also be caused if the glass bottle was broken and shattered into pieces. Furthermore, P3 contained butane, a highly flammable gas, which was potentially dangerous to carry along outside. And the appellant had a lighter with him. On top of that, the P4 could emit laser beam capable of causing vision damage within 40 metres. The magistrate is right to find that the weapons in this case were to some degree dangerous and lethal.

35.Concerning the magistrate’s finding that “at least there was an intention to use these things to cause damage, and it was possible that injuries would be caused by accident”, Ms Wong submitted that it was a groundless conjecture. With respect, I disagree. “With intent to use [P2 to P4] for unlawful purpose” is one of the elements of the charge. The appellant has pled guilty. Based on the descriptions in the admitted facts about the nature of the “offensive weapons”, if there was no intention to use these things to cause damage”, what other “unlawful purpose” could the appellant have? As Mr Kwong pointed out in his written submission: carrying P2 to P4 with him outside during the early hours, the appellant under caution admitted that P2 and P3 were “petrol bombs” made by him whereas the purpose of P4 was to test its power. Although P2 and P3 were not “petrol bombs” per se, what the appellant said under caution revealed that he believed they were. Even though there is no evidence that the appellant has used them, he admitted that there was an intention to use them for unlawful purposes. Having ruled out the possibility that it was the intention of the appellant to throw these things specifically at certain people, the magistrate only took into consideration that the items in this case was for causing property damage, an approach which is indeed very fair to the appellant. I find the magistrate’s remark that the “offensive weapons” possessed by the appellant could cause injuries to other people by accident a reasonable one.

36.I find that the legislative intent of section 17 of the Summary Offences Ordinance is to protect public safety and to prevent crime and so the sentence must therefore be one of general deterrence. The magistrate adopted a starting point at 12 months and gave the appellant the usual one third discount for his guilty plea, reducing the sentence to 8 months. After taking into account cases such as HKSAR v Yung Wai Shing and HKSAR v Chan Yiu Shing, I find that for a right-minded person, the imprisonment of 8 months on his own plea may be on the high side, but is still in the reasonable ballpark and not manifestly excessive.

The appellant’s sentence

37.Going back to the ground of appeal (1), according to the undisputed comments of the psychiatrists before the magistrate, the IQ of the appellant is equivalent to a normal child of 11 or 12 years old. I understand the submissions of the respondent that even an immature child can understand that it is wrong and dangerous to create and carry imitated petrol bombs to the street. I also acknowledge the importance to safeguard public safety. On the other hand, I accept that the appellant was unable to understand the gravity of his action and its consequences due to his intellectual disability. This, to a certain extent, has made him morally less culpable and he should not be treated as an entirely normal adult. I find that given the condition of the appellant, a corresponding one-month reduction is appropriate. As a result, the appropriate sentence for the appellant in this case would have been 7 months’ imprisonment but for the following special circumstances.

38.Ms Wong informed the Court that having been receiving counselling services from the Society of Rehabilitation and Crime Prevention whilst on bail pending appeal, the appellant had had his social skills, emotion management, judgment and analysis skills improved. If the appellant is to serve the jail terms, the effort he has made to start anew will no doubt be ruined.

39.I understand that the intellectual disability of the defendant is neither a license to commit crime nor a shield from punishment. I also understand that a balanced sentence is one that takes into account appropriately relevant sentencing principles and policy except for special circumstances. Justice will not normally be served by departing from proper sentencing principles as a sympathetic response to a prisoner’s personal circumstances: HKSAR v Bayanmunkh[30].

40.On the other hand, I notice that the appellant had been in detention for 4 ½ months[31] before sentence. If the Correctional Services Department, would grant him remission on the ground of his industry and good conduct[32], his remaining term of imprisonment would be finishing in a matter of days. Given the above special circumstances, I find that there is room to exercise discretion and tamper justice with mercy to the extent  that the benefits of counselling that the appellant has received will not be adversely affected: Attorney General’s Reference No 4 of 1989[33].

Conclusion

41.For reasons above, I allow the appellant’s appeal against sentence and reduce his sentence so that he is immediately released.

42.I am grateful for the assistance provided by both counsel.

Mr Simon Kwong, SPP of Department of Justice, for HKSAR

Ms Linda Wong, instructed by Bond Ng Solicitors, for the Appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. W. S. Chow, Solicitor of HKSAR.