Secretary for Justice v. Chu Anson Pui Hang

[ENGLISH TRANSLATION - 英譯本]

CAAR 2/2021

[2021] HKCA 605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 2 OF 2021

(ON REVIEW FROM STCC 4180/2019)

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BETWEEN

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Before:  Pang JA, M Poon and Pang JJ in Court

Date of Hearing:  31 March and 21 April 2021

Date of Judgment:  21 April 2021

Date of Reasons for Judgment:  29 April 2021

REASONS FOR JUDGMENT

Hon Pang JA (giving the Reasons for Judgment of the Court):

A.  Introduction

1.On 29 June 2020, the respondent was convicted on his own plea of one charge of “criminal damage”, contrary to s 60(1), Criminal Procedure Ordinance, Cap 200, and the trial magistrate (Mr Wan Siu Ming, Acting Principal Magistrate)  ordered for a psychiatric report, a probation officer report and a community service order report in respect of the respondent.  On 10 August 2020, the trial magistrate sentenced the respondent to a 12-month probation order with additional conditions[1].

2.On 8 December 2020, pursuant to s 104, Magistrates Ordinance, Cap 227, the prosecution applied to the magistrate for a review (“104 Review”)  which was granted, and the magistrate again ordered for a community service order suitability report for the respondent.  On 22 December 2020, the trial magistrate re-sentenced the respondent to a 200-hour community service order.

3.The applicant contended that the sentence was wrong in principle and manifestly inadequately, and therefore applied to the Court of Appeal for leave to review pursuant to s 81A, Criminal Procedure Ordinance, Cap 221.  Leave was granted on 22 January 2021.

4.On 31 March 2021, upon a formal hearing, this court held that the applicant’s application was made out, quashed the respondent’s sentence and ordered for rehabilitation centre, detention centre and training centre suitability report for the respondent.  On 21 April 2021, this court sentenced the respondent to a training centre.  These are our written reasons.

B.  Facts

B1.  Agreed facts

5.This was how the offence was described by the written agreed facts.

6.In the afternoon on 22 July 2019, a crowd of people gathered outside the office of Legislative Councillor Junius Ho, located on the 2^nd Floor of Tsuen Fung Centre, a shopping arcade.

7.According to the video footages[2], different groups of people attacked the office separately between 4:15 and 6:30 pm on the same day, resulting in the collapse of the entire glass wall panel and damage to the furniture and equipment inside.  After checking, the financial loss was $1,000 for cleaning, $111,114 for repair and $182,000 for the rental paid during the six months when the office suspended operation.  After the incident, the original insurance company refused to continue the policy to insure the office, and the staff of the office encountered difficulties in taking out a new policy with other insurers.

8.According to the video footages, between 4:12 and 4:15 pm on that day, the respondent was walking about inside Tsuen Fung Centre.  On the same day, between 4:29 and 4:33 pm, the respondent together with at least three other persons struck the external glass wall panel of the office with metal stands, resulting in the collapse of the whole glass wall panel.  After that, different groups of people went into the office to vandalize it.

9.On 16 September 2019, after investigations, the police successfully arrested the respondent.  Under caution, the respondent said, “On that day, at Ho Kwan Yiu’s office in Tsuen Wan, I broke his pair of glass doors only for fun on the spur of the moment.”  In the subsequent video-recorded interview under caution, the respondent remained silent.

10.Four photographs were attached to the written agreed facts, showing, inter alia, the condition of the office at 8:31 pm after severe vandalism.

B2.  What was shown by the video footage

11.At the review hearing, the applicant played the video footages of the scene with screenshots to assist this court.  The video footages and the screenshots showed more details which included the following:

(1)  The respondent appeared outside the office back at 3:14 pm on the day of the offence, which was one hour before 4:12, ie the time stated in the written agreed facts.  At that time, a lot of people were already gathering outside the office and the level below the office was filled up with people. People had been spraying paint, putting up banners and chanting slogans outside the office.  Among them, some were wearing masks and goggles (although the COVID pandemic had yet broken out at that time).

(2)  At the time mentioned above (at 3:14), the respondent was outside the door of the office, wearing a cap, a mask and gloves; while a male who was masked, wearing gloves and a cap and a long towel over his head in a way like dog’s ears (later known as X)  was striking the door.  At 3:25, the crowd hurled eggs in the midst of lifted umbrellas and chanting of “shame”, but they suddenly retreated and left quickly upon someone shouting out “let’s go together” (the reporter at the scene explained that was due to the suspicion of police arrival [3]).  At 3:53, people gathered again and created sporadic disturbances.

(3)  At 4:12, ie the time mentioned in para 8 above, the respondent was wandering in the passageway outside the office.  Three other males including X were walking together with the respondent.  During that time, they stopped at times, talking and gesticulating.  By this time, the respondent’s outfit had changed: in addition to the mask and gloves which he originally had, he had also put on a pair of black elbow guards with silver buckles and one sand-coloured “tactical vest” [4], and held a sand-coloured helmet with his hands (no longer wearing a cap).

(4)  At 4:27, crowds of people suddenly rushed up from the floor below, and opened umbrellas once reaching the floor where the office was.  After that, some people struck the door of the office (the reporter said that this was the third time that people did so).  At 4:30, the respondent struck at the bottom of the door or wall repeatedly with a metal stand (described by the reporter as trying to break open the door of the office), and the whole glass wall panel fell outward as a result (at 4:31).  The crowd got hold of the wall panel, set it upright and pushed it inward, the panel then fell into the office.

(5)  After the collapse of the glass wall panel, people began to shout “Revolution of Our Times. Liberate Hong Kong” and ran into the office to vandalize it.  The vandalism went on and did not end until sometime after eight in that evening.

12.It must be pointed out that the three video footages were not played before sentence was first imposed.  It was not until the “104 Review” that the prosecution played part of the recordings, and the trial magistrate had never on his own motion requested to watch the footages.

C.  The respondent’s background and mitigation

13.The respondent was aged 18 and a Form 5 student at the time of the offence.  He has lived with his mother since his parents’ divorce in his childhood.  In 2018, his mother remarried, but he did not get along well with his stepfather.  In 2019, he was purportedly assaulted because of having political views different from his stepfather’s.  Since then, the respondent moved out and lived at his girlfriend’s place.  He has kept in touch with his natural father and they enjoyed a good relationship.

14.The defence emphasised the following in the submissions for mitigation[5]: the respondent suffered from Attention Deficit and/ Hyperactivity Disorder (ADHD)  and Asperger’s syndrome (a type of autism)  since childhood, and has all along been followed up by the government psychiatric department (with relevant reports attached[6]).  ADHD has affected the respondent’s academic performance, and Asperger’s has affected his social interactions and ability to control his emotions.  Although the ADHD condition can be relieved by medication, the respondent is not fit for taking medicine because of bradycardia.

15.The defence emphasised[7] that the respondent committed the present offence because he did not know how to manage his emotion which arose after the incident known as the “7.21 incident”.  He did not carry any weapon, nor did he know other offenders.  He was “infected by the environment”, and on seeing some people “begin to hit the door”, he was “instigated” and became “out of control”, and it was only in such condition that he joined in to commit the offence.  After the door collapsed, he became scared, stopped making further trouble and left the scene.  The respondent had no violent disposition, and he liked helping others.  People from school, social worker and a Catholic cardinal wrote in mitigation on his behalf (with letters attached).  The respondent knew that he was wrong and was willing to pay $50,000 as compensation, of which $10,000 odd was his earnings from a part-time job while preparing for the DSE examination.

16.The above is the main thrust in mitigation put forward by the defence.  Apart from that, the respondent’s mother had just been diagnosed with cancer, and his family wished to send him back to Canada as soon as possible to study (the respondent was born in Canada and holding Canadian citizenship). The defence urged the court to consider placing the respondent on probation or making a community service order.

D.  First round of reports sought by the trial magistrate

17.The contents of the psychiatric reports[8] were consistent with the reports submitted by the defence in mitigation, which will be discussed later in this judgment.

18.The crucial parts in the probation officer cum community service suitability report[9] may be summarized as follows: The respondent’s conduct at school was on average at grade B.  While the report was being prepared, he completed Form Six and enrolled in the Yi Jin programme in sports management.  He was keen on playing football and was a member of the school and district team, and was also a member of the Hong Kong Football Representative Team.  Since June 2019, the respondent has participated in about fifteen meetings or processions against the Fugitive Offenders Ordinance, which were all lawful.  A day before the offence, upon seeing some video footages where Councillor Ho shook hands with some “people in white” and called them heroes, he believed that Ho was related to the “attack in train compartments”.  Out of anger, the respondent decided to answer the call on social media and go to Ho’s office to protest on the next day.  Before the incident, he had no plan to cause any damage to the office, he was only influenced by the high emotion at the scene and so picked up a metal stand within his easy reach to vent his anger.  Since he was worried about being arrested, immediately after breaking the glass wall panel, he fled from the scene without causing any further damage.  After being counselled by his school teacher, the respondent knew that he had been wrong, sincerely apologized to Ho and asked for his forgiveness.  He was willing to pay compensation and promised that he would express his political view with lawful means in future[10].

19.In conclusion, as the probation officer reported, the respondent said that his ADHD had gradually diminished in adolescence and had not much effect on his current daily life[11].  In the probation officer’s view, it was “possibly” due to a fit of anger, inability to solve problems and poor law-abiding concept that he committed the offence in the present case.  Nevertheless, she considered that the respondent was receptive to counsellor’s advice and willing to rehabilitate and had parental support, and therefore a probation order of 12 months with additional conditions was recommended whereas a community service order, which was work-oriented, was not considered suitable.

E.  Initial sentence imposed by the magistrate

20.Having only heard the mitigation submissions from the defence without watching any video footages and having no suitability report for any custodial sentence, the trial magistrate accepted the probation officer’s recommendation and put the respondent on probation.

21.The trial magistrate explained[12]: This case “is serious to a certain extent”, and the incident has caused to the office “quite serious damage”.  However, at the time of the offence, the respondent “was only eighteen”, “it must be out of impulsiveness … that [he] committed the offence”, “by referring to the reports … there was real influence by the atmosphere in society and social movements”.  While the damage was not caused by the respondent alone, he was willing to pay a relatively large amount for compensation.  In addition, the respondent has been suffering from “ADHD” since childhood, and the court believed that on one hand he “was not really mentally mature”, on the other hand he “was possibly affected by the illness” and “had difficulty in making observations and managing his emotion”.  As a whole, in respect of the respondent who “was only nineteen years old” at the time with a clear record, being remorseful, supported by family and with positive comments from the probation officer, the court “must place particular weight” on rehabilitation.

F.  “104 Review” and the sentence

22.As said above, the prosecution played some of the video footages of the scene at the “104 Review” hearing, which came from news reports and the CCTV inside the office (exhibits 1 and 2).

23.In their submissions, the prosecution said that the respondent’s behaviour did not only cause damage to the office, but also attracted others’ imitation that wrecked further damage.  Since the present case happened on the day following the “7.21 incident” in a crowded shopping arcade, various other crimes and clashes among people with different political views would happen at any time as a result of the respondent’s acts.  Having participated in about fifteen meetings or processions against the Fugitive Offenders Ordinance, the respondent must be well aware of the risk that matters might deteriorate in a split second.  Although the respondent was suffering from ADHD, he was well equipped with a mask and gloves and fully knew when he should retreat.  Applying the latest decisions handed down by the Court of Appeal in respect of the above points and other relevant principles, the respondent’s young age was definitely not a mitigating factor[13].

24.The defence in reply emphasised that the respondent could not take medication although he was ill, and therefore it was really more difficult for him than others to control his emotion.  He committed the offence under influence by the atmosphere at the scene.  Incidents like “7.21” did not often happen, and therefore his chance of re-offending was very low, and he really intended to return to Canada to study[14].

25.After submissions from both sides, the trial magistrate granted the application made by the prosecution, however, he only called for a fresh report on a community service order.  The prosecution reminded him that since the court should obtain all information which may assist in sentencing, it would be more desirable that the suitability reports for all possible sentences were obtained in one go.  However, the trial magistrate said that he had already given relevant consideration and refused the suggestion.  The respondent was allowed bail pending sentence[15].

26.Eventually, the second community service report confirmed that the respondent had performed well under probation in the previous four months.  Other matters, such as the respondent’s medical condition, conduct at school and the progress in playing football, did not differ much from what were in the first round of reports.  This report suggested putting the respondent under a medium-length community service order (81 to 160 hours).

27.The trial magistrate accepted the recommendation in the said report but adjusted the number of hours up to 200 hours.  He explained as follows[16]:

“ The facts and the charge in this case are themselves serious and so are the facts, which the court is not going to repeat here. The defendant was 18 years of age at the time of the offence, he was and is still very young. He has pleaded guilty and expressed remorse. He has a clear record. The court also accepts that the defendant was impulsive at the time of the offence. In considering the sentence, the court has also considered the important principles, including sentencing, including deterrence, punishment, rehabilitation and so on.

In respect of deterrence, the court thinks that in fact, the court experience on this occasion and also on the previous occasions in this case has given substantial deterrence to the defendant in that on each occasion he came to court having in mind the possibility of losing liberty. As I believe, while there was a review after sentence, and then upon the review was allowed, there was consideration of whether a community service order could be made and so on, the court thinks that such experience must have left an indelible impression on the defendant, and that is to say, perhaps in future, he will definitely behave prudently. As to deterrence to others, the court is of the view that apart from this case of the defendant, there has also been a series of cases having the same background, and in those cases the higher courts have already made many decisions on sentencing, and I believe that those cases are sufficiently deterrent to all people.

In addition, in respect of punishment, the defendant has in fact gone through probation for four months, and the court thinks that if a community service order of not a short term is added, the punishment on the defendant would be substantial. Taking into account that community service order is in fact, in particular, one form of sentence involving loss of liberty in its execution, the court thinks — of course, the higher courts have stressed that rehabilitation may not be the most important factor in this type of cases, which the court has nevertheless also given consideration. The court finds a community service order an option of sentence which could address the rehabilitation of the defendant. The court also learns from the report that the defendant has in fact re-commenced his studies, and it is hoped that he can start afresh.

On the other hand, the court has also considered that the defendant’s criminal acts at the time of the offence had caused really substantial damage, but at the same time, he has offered a substantial amount for compensation, to which the court must give credit.

As a whole, in the court’s view, the probability for the defendant to re-offend is quite low.

Having considered all the circumstances of this case, the court finds that after setting aside the probation order, a community service order is an appropriate sentence to enable the defendant to give restitution to the community and rehabilitate himself while receiving punishment.

It is noted that the probation officer has recommended a community service order of a medium length. However, having considered the gravity of this case, the court is of the view that a greater length can better reflect the actual circumstances of the case, and therefore after taking all circumstances into consideration, the defendant is sentenced to perform community service for 200 hours.”

G.  Grounds for this review

28.The applicant was represented by Mr William Siu, Acting Assistant Director of Public Prosecutions and Mr Edward Lau, Public Prosecutor. These are the applicant’s grounds for review.

G.1  Ground 1: Non-custodial sentence was wrong in principle

29.The Court of Appeal has reiterated in Wong Chi Fung[17]that the six classical factors of sentencing (protection of the public, meting out punishment, open condemnation, deterrence, remedy and rehabilitation)  should be given weights in accordance with the gravity of the case in order to come up with a sentence appropriate to a particular case.

30.The Court of Appeal held in both SWS and SHY[18], that the above principle was also applicable to cases involving young offenders (below 21)  and juveniles (below 16).  If a case was really serious, more weight should be accorded to the factors of punishment and deterrence in order to protect the public.  Unless the offender’s personal circumstances were extremely exceptional, a custodial sentence with a rehabilitative element was inevitable.

31.In Law Man Chung[19], the Court of Appeal stated that in sentencing the offence of desecration of the national flag, in assessing the overall gravity of the case, the court had to consider the date, time, location, occasion and the number of people involved when the offence was committed, as well as whether other people would be incited to join in to commit the same offence or other offence(s), and whether people with different attitudes would have their emotion aroused and resulting in clashes. 

32.The above principle was applied to the recent cases of “assaulting a police officer” (Kung Yat Kan, Clifford[20])  and “unlawful assembly” (Chung Ka Ho[21]).  Both cases are related to public order events arising out from the Fugitive Offenders Ordinance.

33.As to imposing sentences in similar cases (ie in the context of frequent large-scale public protests), the Court of Final Appeal held in Wong Chi Fung[22] that it was necessary to emphasise deterrence and punishment in dealing with large-scale unlawful meetings involving violence.  This principle has also been applied by the Court of Appeal in Kong Yat Kan, Clifford[23].

34.The present case happened on the day following the “7.21 incident”.  A lot of people went to the office in question inside a large shopping arcade to protest, and therefore the respondent’s acts would certainly attract other protestors’ participation.  The collapse of the whole glass wall panel as a result of strikes on the glass not only endangered the safety of people in the vicinity, but might also lead to the discontent of people holding different views and result in clashes between the two sides, causing substantial injuries and deaths and serious loss of property.  In the light of the various circumstances mentioned above, the present case was in fact more serious than ordinary cases of “criminal damage”, and the court must deal with it by a sentence with more weight to be placed on punishment and deterrence.  Non-custodial sentence such as probation order or community service order would not have such effect, and therefore were wrong in principle.

G.2  Ground 2: Sentence inadequate to reflect the seriousness of the facts and the respondent’s culpability

35.The culpability in the present case was aggravated by the following factors:

(1)  At the time of the offence, confrontations in the community happened frequently, attacks and vandalism were not uncommon.  The respondent revealed to the probation officer that he had committed the present offence to vent his anger against people having views different from his and by way of vandalism giving a lesson to people whom he thought were wrong.

(2)  The damage caused in the present case was substantial, in that not only did the office have to spend a lot on restoration, its operation was also suspended for six months.  When the whole glass panel wall fell, people in the vicinity might be injured as well.

(3)  The respondent committed the offence with a tool, ie the metal stand.  Moreover, the video recordings of the scene revealed that he had struck the glass door or wall nine times in total on three separate occasions.

(4)  The respondent not only committed the offence jointly with three other males, but also encouraged other people to go inside the office to cause further damage after the collapse of the glass wall panel.

(5)  The respondent was equipped with a mask, gloves and elbow guards when he committed the offence, from which premeditation and his expectation of having conflicts with others were obvious.  He wore the mask to conceal his identity, making his apprehension more difficult for the police.

(6)  By violating the law in front of a lot of people in a public place, the respondent demonstrated a complete disregard of law and order, which might also arouse vigorous responses from people having different stances.

36.The sentence of a community service order reflected that too much weight has been put on the respondent’s rehabilitation, ignoring the sentencing factors such as protection of the public (from being harmed by anti-Fugitive Offenders Ordinance acts that were colloquially called “renovation”), punishment (by heavily punishing people deliberately participating in such activities, including young and juveniles offenders), open condemnation (reflecting societal disapproval against those who cause harm to people holding views different from theirs)  and deterrence (preventing the respondent and others from re-offending or repeating the same acts)  and so on.

37.The trial magistrate also put excessive weight on the respondent’s grounds of mitigation, in particular the respondent’s young age (which was not an effective mitigating factor in serious offences[24]), clear record (which was not a reason for disregarding the need for deterrence in sentencing in public order cases[25])  and having ADHD (an illness which did not amount to an excuse for his violation of the law[26]).

38.Viewing the present case as a whole and based on the consideration of public interest, punishment and deterrence were far more important than the respondent’s rehabilitation [27].

39.Finally, the applicant cited four precedent cases of “criminal damage”[28]. Among them was Tai Chi Shing where the offences were committed in 2014.  In that case, three defendants out of the four had to serve imprisonment for three and a half months in total respectively (on their own pleas of guilty)  for the charges of “criminal damage” and “unlawful assembly”, they having caused serious damage to the glass wall panels of the Legislative Council Complex.  In dismissing their appeals, the Court of First Instance stated that the former offence occurred in riotous circumstances and therefore the starting point should be six months instead of the original one month.  The reason was that even whilst one exercises the right of freedom of expression and freedom to take part in an assembly, one must respect law and order, and destructive behaviour would definitely not be tolerated (the defendants caused destructions in the hope of stopping the Legislative Council discussion on a bill unacceptable to them), and even a first offender would be sentenced to immediate imprisonment.

G.3  Ground 3: Community service order was wrong in principle and manifestly inadequate

40.It has been explained in many precedent cases that although a community service order was not a soft option[29], it was still a softer option than a custodial sentence[30].  Even if all six criteria for suitability for community service were fully satisfied, a community service order was not necessarily the automatic result[31]. Unless a defendant’s personal circumstances were extremely exceptional, for a serious offence which clearly called for a deterrent sentence, a community service order should not be imposed even if the offender was assessed to be suitable for it[32]. 

41.In any event, the respondent was only a student who had work experience solely from part-time jobs.  He had left his mother and step-father because of disagreement in political views but could not live with his natural father.  He therefore might not satisfy the prerequisite conditions for community service order.  In fact, the first suitability report clearly stated that a community service order was not suitable for the respondent.

42.Apart from the psychiatric report, the trial magistrate only asked for a report for probation and community service order after hearing the preliminary submissions for mitigation.  By doing so, he not only gave an impression that custodial sentences had been ruled out in advance, but also deprived himself of the necessary information required for considering all possible sentencing options[33].

43.Imposition of a custodial sentence on young offenders does not mean that their rehabilitation is not the primary consideration.  Many detention facilities are highly rehabilitative, through which rehabilitation could be best achieved for certain young offenders[34].

H.  Respondent’s reply

44.Mr Hector Pun SC and Ms Ferrida Chan appearing for the respondent in this review but not below, objected to the present application for the reasons below.

H1.  Basic stance

45.The trial magistrate could not possibly be unfamiliar with the six classical factors of sentencing.  He decided not to impose a custodial sentence on the respondent twice obviously because there were exceptional circumstances in the present case, ie the respondent had ADHD but could not use medication to relieve it, and by the time he was sentenced on the second occasion, he had been on probation for four months and had performed well.

46.Regarding the respondent’s ADHD condition, it was stated on page 216 of D. A. Thomas, Principles of Sentencing, 2^nd ed., that  Ill health will have a greater effect in mitigation where it can be shown to be a causative factor in the commission of the offence[35].  The fact that a respondent had undergone probation successfully for a period was the reason for which the Court of Appeal in Yeung Wing Hong[36] refused the application by the Department of Justice for review of the erroneous sentence.

47.In relation to the facts of the case, the respondent was definitely not the “ringleader”.  It was only after an opening had been made in the door of the office and people had begun to chant slogans that he was instigated and took part.  This was consistent with what the respondent told the probation officer, namely that he had no premeditation.

H.2  First and second grounds of review

48.The respondent did not agree that imposition of a non-custodial sentence was wrong in principle.

49.As there was no tariff of sentence for the offence of “criminal damage”, whether the principles were observed would depend on individual cases.  For example, in one of the four cases cited by the applicant, Tai Chi Shing, the fourth defendant (who was younger and did not appeal)  was sentenced to perform community service; whereas the other three defendants had criminal records and/or were adults.  The above four cases (see para 39 above)  had been cited in the “104 Review”, to which the trial magistrate could not possibly have given no consideration.

50.The allegation that the trial magistrate had ignored certain sentencing factors was unfounded.  In passing sentence on the second occasion, he clearly stated that punishment and deterrence had to be taken into account. He increased the number of hours of community service substantially from the recommendation in the report to 200 hours, clearly demonstrating the aims of open condemnation and protection of the public.  Applying precedent cases, the applicant could not ask for review merely because she disagreed with the weight that the trial magistrate had accorded to various factors in sentencing, nor could the Court of Appeal do so.

51.The respondent did not agree with the allegation that the trial magistrate had attached excessive weight on the respondent’s grounds of mitigation, in particular on ADHD.  It was because the respondent’s mitigation in fact did not merely rely on the condition itself, his focus was his unfitness for taking ADHD medicine because of bradycardia.  Such exceptional circumstance was completely different from what was in Tang Ho Yin (See para 37 above and note 26).  The defendant in that case failed to attend follow up appointments, thereby voluntarily forgoing the control of his condition, and therefore it was held that he could not rely on ADHD for mitigation[37].  On the contrary, the respondent in the present case was not able to take medication, and as a result, he failed to control his emotion under the influence of the atmosphere at the scene.  This could be supported by the fact that he was not the first one who started the action and tools was just picked up within his reach.  The respondent’s mask, gloves, elbow guards, etc were protective gear and not the tool for vandalism, which therefore did not support the alleged premeditation.

H.3  Third ground of review

52.The respondent did not agree that imposition of a community service order was wrong in principle or manifestly inadequate.

53.According to case law, the court might still make a community service order even if the respondent could not satisfy all six pre-requisite conditions[38].  In any event, the respondent has demonstrated genuine remorse and had regular meetings with his natural parents.  He has had a harmonious relationship with his girlfriend’s family with whom he lived together[39].

54.Community service order was by itself an alternative to imprisonment.  It could restrict the defendant’s freedom and had considerably deterrence.  Nevertheless, even if the Court of Appeal did not find it sufficiently deterrent, based on the respondent’s two exceptional conditions (having ADHD but unfit for medication and having undergone probation for four months), the original sentence should be upheld.  In SHY[40], the Court of Appeal made a community service order (and not any heavier sentence)  in substitution of probation because the defendant had already received probation for a period of time.

H.4  To reinforce the current community service order

55.Finally, Mr Pun SC suggested that, where necessary, the Court of Appeal might consider adding conditions such as curfew and requirement for receiving counselling and so on to reinforce the current community service order instead of replacing it with another sentence[41].

I.  Discussion and analysis

I.1  Significance of playing the video recordings of the scene

56.As said above, the prosecution did not play any video footages of the scene at the proceedings of first instance, and even at the “104 Review” hearing, only the video recordings of news reports and CCTV inside the office were played.  In other words, prior to the present review, apart from striking the door, the respondent’s acts during most of the time inside the shopping arcade was not shown to the court.  This is difficult to understand. Similarly, it is quite unsatisfactory that the magistrate did not take the initiative to ask for watching all the relevant recordings.  After all, it is the court’s duty to pass the sentence ultimately, and the court is obliged to ascertain and understand all the circumstances relevant to the case as much as possible. Video recordings of the scene produced to the court as exhibits, if any, indeed provide a good means of ascertaining and understanding all the circumstances.  Unless there is a very good reason, the court should not refrain from watching the recordings and should not simply leave it even if the prosecution does not offer to play them.

I.2  Actual circumstances shown by the video recordings of the scene

57.As mentioned above, the trial magistrate did not have a good grasp of all the respondent’s acts inside the shopping arcade, in particular, what happened in the few minutes after 4:12 pm.  That is to say, he failed to note matters including: apart from wearing the original mask and gloves, the respondent also put on elbow guards and a tactical vest and prepared a helmet (which was clearly shown only by the footage that captured this particular moment). Moreover, it was 15 minutes before the crowds suddenly went up to the floor in question, opened umbrellas and attacked the office again.  At that time, the respondent was wandering outside the office at ease and talking and gesticulating calmly with the masked men in his company.  One of these masked men was X who did take part in striking the door at 3:14 At that time the respondent, who was extremely close to X and not yet in full gear, was simply standing there without even the slightest degree of agitation.

58.As seen from the above, Mr Pun SC, relating to this court the respondent’s instructions, said that the helmet, tactical vest, elbow guards and even the gloves were given to the respondent by others at the scene.  The respondent only knew the gloves were similar to those used by football players and had no idea at all as to the actual use of the other items.  However, this explanation was not only different from what the respondent had said at the “104 Review” (namely he had “put on the protective outfit concerned” because it was said on the internet that “people in white” would beat up people outside the office on that day[42]), but it was also irreconcilable with the only reasonable inference that he put on additional gear to prepare for the imminent attack on the office.  This inference was irrelevant to the source of the gear because even if the gear really belonged to others, the owner and the respondent must have had some consensus before the respondent could put it on.  Under the circumstances at the material time, such consensus must be launching an attack on the office.

59.This court put the above inference to Mr Pun SC and asked: if such inference was established, could the respondent’s assertion that he had committed the offence because of failing to control his emotion under the atmosphere at the scene stand?  Mr Pun SC replied that he accepted all the observations made by this court on the recordings of the scene, while he said the respondent committed the offence because he lost control of his emotion, referring to the overall circumstances and sequence of events shown by the video recordings of the scene.  Obviously, this submission was the best that could be put forward but without much force.  In view of the respondent’s self-contradictory explanations, this court is of the view that all the gear mentioned above was probably taken to the scene by the Respondent.  Even if this issue is put aside, the respondent’s failure to control his emotion was in no way the reason for which he committed the offence in the present case.

I.3  Psychiatric reports

60.The above conclusion is in fact substantially consistent with the respondent’s psychiatric history.  As we pointed out at the hearing, although the respondent had been found with symptoms of ADHD, he was not diagnosed or confirmed as such by any doctor until he was aged 10 (2011)  [43]. The respondent stopped attending any follow-up session since 2012, and his condition fluctuated for some time.  Nevertheless, his ADHD condition and hot-temper had improved in recent years as reported by his mother in September 2017 when she resumed taking the respondent to the follow-up sessions[44].  At the same follow-up session, the respondent and his mother both expressed the wish of not using medication and were content with continuous monitoring of his condition[45]. In January 2018, the respondent, then aged 17, requested medication for the first time, but the medication had to stop subsequently because of bradycardia[46]. Afterwards, although the respondent relied solely on counselling as the only treatment, he managed to be by and large emotionally stable and energetic, sit a public examination, and also work as a waiter in a restaurant on a part-time basis with the criminal proceedings hanging over his head[47].  In other words, the respondent’s medical history does not show that his ADHD condition is serious.

I.4  The general gravity of the present case

61.There are indications that the respondent committed the offence with premeditation, otherwise it would be difficult to explain why he was filmed wearing a mask and gloves (with a cap)  an hour or so prior to the offence (at 3:14), contradicting his assertion that he only went  to protest.  Leaving that aside, at least 15 minutes prior to the offence (at 4:12), he was already in full gear talking and gesticulating calmly with others; subsequently, when the crowd suddenly went into action, he took the opportunity to commit the offence. This in no way reflected his loss of emotional control and it would be extremely hard to insist that he had acted on impulse.  More importantly, the respondent did not commit the offence alone.  No matter whether he and others had reached an agreement beforehand or spontaneously came to a tacit mutual understanding, it was their purpose to “break open the door of the office” (as described by the reporter at the scene), and the aim must be providing access for other people to enter the office to vandalize it further (otherwise breaking any one part of the glass panel would have been sufficient to vent the rage).  Just the above few points already show that the present case is very serious.

I.5  Context of the present case

62.In sentencing, it is necessary to consider the context of the case.  This has been repeatedly pointed out by this court, and the latest occasion was in the reasons for judgment handed down on the 21^st day of this month in Chow Kin Nok[48].  The reasons for having regard to the context of the case and some relevant precedents have been discussed in Section H2 of Chow Kin Nok.  This court would only cite a sentence here, mainly to indicate that such consideration is not a new concept in sentencing[49]:

“Considering the context of a case in sentencing is in fact no new concept; on the contrary, it is a long-established principle based on common sense and is applicable to all charges.”

63.The present case happened against the background of anti-Fugitive Offenders Ordinance.  A lot of people gathered outside the office because of the “7.21 incident” which had caused a sensation and much controversy. These two undisputable facts both suggested an extremely high risk, meaning the respondent’s acts might at any time incite further and more extensive criminal acts carried out by individuals or groups, for example, arousing continuous vandalism (which actually happened)  and fights among people having different stances (which did not happen fortunately).  This is another aggravating factor in the present case.

I.6  Nature of the offence in question

64.The present case may be categorized as an incident colloquially called “renovation”.  Some other observations of this court made in Chow Kin Nok[50] are therefore also applicable here, indicating another important aggravating factor in the present case:

“ 43. The charge in the present case is ‘criminal damage’ on the face of it, but upon serious reflection, such behaviour which is commonly called ‘renovation’ is in fact wilful attack on people having different background and/or different stances, and at the same time carrying features and effects such as hatred, bullying, intimidation and silencing. Its nature is in no way different from what is colloquially called ‘private settlement’, meaning causing personal injury to the opposite party. Regardless of whether the attacker himself was aware of the existence of such features, and whether he aimed at achieving the relevant effects by his attack, and even if his behaviour in fact failed to scare off the victim, the gravity of such behaviour and the damage caused to society can in no way be diminished, and the court must deal with it seriously.”

65.Admittedly, the respondent in the first probation cum community service suitability report mentioned that he believed Councillor Ho had a connection with the “attack in train compartments”, and by looking at its wording, his explanation could be directed at the rights and wrongs of the incident.  However, having considered his zeal in anit-Fugitive Offenders Ordinance activities and all the circumstances in the case, his participation in attacking the office must have resulted from the influence of his stance.  As a matter of fact, in the same report, the respondent did promise the probation officer that he “would express political views by lawful means” in future (see para 18 above).  In the reports sought by this court, the respondent also indicated to officers of the Correctional Services Department that he went to the office in response to an appeal on Facebook for “showing unity among the people in black under attack”[51].

66.It must be added here that the court would never tolerate anyone causing harm to other people’s person or property even if it is really done out of a sense of righteousness.  Such behaviour, colloquially called “private settlement”, is plainly an attempt to take the function and status of the law in one’s hands and to forcibly apply one’s standard of rightness on others and to take revenge.  Putting aside the possibility that one’s personal views of rights and wrongs may be incorrect; even if it is correct, so doing would lead to a vicious cycle, causing mutual attacks among people having different stances and bringing the community into an “anarchic” state.

I.7  Looking at the trial magistrate’s sentence

67.The trial magistrate had watched none of the video recordings of the scene, so he erroneously regarded the respondent (aged 18½ at the time of offence and 18 years and 11 months at the time of sentence)  as an indiscreet teenager who was totally unprepared and merely infected by the atmosphere at the scene and broke down the door without any purpose other than venting his rage.  This understanding of facts was  inadequate.

68.In passing the sentence, the trial magistrate said that the respondent was “possibly” under the influence of his ADHD (see para 21 above)  in committing the offence, which may still be considered as acceptable.  In comparison with the respondent’s description in the first probation cum community service order suitability report, saying that his condition had diminished gradually since adolescence and it did not affect his current life much (see para 19 above), the contradiction could be somehow resolved.  The account that he could not take medicine and was not able to keep effective control of his emotion in fact came from the submission in mitigation made by defence counsel in the proceedings of first instance[52]. Be that as it may, in the second community service order suitability report, the respondent himself did not put forward the connection between his commission of the offence and unfitness for medication; and he only said that he was so angry that he acted on impulse[53]. His mother even stressed that he was able to comply with rules and his conduct achieved grade B+ when he was in Form Six[54]. This was consistent with the comments given by his school, who described the respondent as punctual and polite and said that he had a harmonious relationship with schoolmates and had obtained quite some prizes in football games which required cooperation[55]. As such, coupled with the respondent’s medical history and the actual circumstances at the scene discussed above, the description of being unfit for medication with ill health was played up to be an exceptional condition in Mr Pun’s submissions, which had no basis in support at all.  On the contrary, the trial magistrate did not mention the respondent’s hyperactivity disorder at all at the final sentencing, which was understandable.

69.Since both the prosecutor and the trial magistrate failed to realize the existence of factors such as hatred, bullying, intimidation and silencing, there was inadequate assessment of the gravity of the case. Although in the “104 Review”, the prosecution did strive to point out the context of the present case, ie activities against the Fugitive Offenders Ordinance and the more closely related “7.21 incident”, the magistrate seemed not to pay sufficient attention to the same.  On the contrary, the magistrate explained at length how the factors of punishment and deterrence were satisfied but  his explanation was not completely sound in law.  For example, he said that the cases decided by the Court of Appeal had given a deterrent effect, and it was not necessary for the present case to be made an example to deter similar offenders, and that the respondent himself had been sufficiently deterred by the experience of going through the criminal proceedings.

70.Finally, we note that even though this court had clearly pointed out the actual circumstances revealed by the video recordings at the hearing, the respondent insisted to say in the subsequent report: the office was already under sabotage when he reached the office, and he just picked up a metal stand within his easy reach and joined in to strike the wall and the door[56].  This court has great doubt on the truthfulness of the respondent’s remorse which has been repeatedly mentioned by the trial magistrate.  Apologies made solely for seeking a lenient sentence without sincere self-reflection cannot be genuine remorse regardless of how many times they are made.

I.8  Our Conclusion

71.In light of the above analysis, the trial magistrate made rather serious misjudgment on the overall gravity of the present case and the personal culpability of the respondent.  As to the reasons for mitigation identified and put forward by the defence and even by Mr Pun SC, they are either unsustainable or wholly insufficient to mitigate the gravity and culpability stated above.  Therefore, the original sentence of a community service order of 200 hours was wrong in principle and manifestly inadequate.  This is the conclusion of this court.

J.  Appropriate alternative sentence

72.Because of the COVID-19 pandemic, the respondent has not performed any community service.  As to the four months’ probation that he has been on, we do not accept the submissions of Mr Pun SC that legally this would amount to an exceptional circumstance.  It is only one of the factors to be considered in passing a sentence in substitution.  However, since the original sentence in the present case was wrong and must be substituted by a custodial sentence, there is no room for reduction on this or any other ground.  In our view, taking into consideration all the circumstances related to the case including the respondent’s rehabilitation, detention in a training centre is the most appropriate sentence.  The time of release depends on the respondent’s performance in the institution, and hence there is nothing unfair to him.

K.  Order

73.The application for review of sentence is allowed, the original community service order is set aside, and the respondent is ordered to be detained in the training centre.

Mr William Siu, Acting Assistant Director of Public Prosecutions and Mr Edward Lau, Public Prosecutor, of the Department of Justice, for the applicant

Mr Hector Pun SC and Ms Ferrida Chan, instructed by S.T. Cheng & Co., for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.