Secretary for Justice v. Cwc

[English Translation - 英譯本]

CAAR 12/2020

[2021] HKCA 693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 12 OF 2020

(ON REVIEW FROM ESCC 700006/20[19])

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BETWEEN

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Before: Hon Poon CJHC, Pang JA and M Poon J

Dates of Respondent’s Written Submissions: 24 February and 22 March 2021

Date of Applicant’s Written Submissions: 12 March 2021

Date of Judgment: 12 May 2021

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JUDGMENT

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Hon Pang JA (Giving the Judgment of the Court of Appeal):

Background

1.On 19 May 2020, the respondent was convicted on his plea of guilty of one charge of “arson being reckless as to whether the life of another would be endangered”[1], and was sentenced by the magistrate (Mr Ho Chun Yiu, Magistrate) to probation for 3 years with additional conditions.

2.The applicant was not content with the sentence and applied to the Court of Appeal for leave to review[2]. This Court allowed the applicant’s application after the hearing and sentenced the respondent to detention in the training centre on 4 February 2021 in place of the original sentence. On 10 February 2021, this Court handed down the Reasons for Judgment.

3.On 25 February 2021, the respondent filed a notice of motion out of time, seeking an order from this Court to certify that two points of law of great and general importance were involved in the present case for him to appeal to the Court of Final Appeal[3]. The points of law concerned are as follows:

Point of law 1:

“In sentencing a young offender who is mentally impaired or disordered, even in a case involving the use of serious violence, should facilitating them to receive appropriate treatment be given more weight than retribution and deterrence?”

Point of law 2:

“ In assessing the culpability of a young offender who is mentally impaired or disordered, how should the sentencing court approach the relationship between his medical condition and the causes of his offending?”

4.On the same day, the respondent filed his written submission with this Court for the present motion. On 12 March 2021, the applicant filed their written submission with this Court. On 22 March 2021, the respondent filed with this Court the written reply to the applicant’s written submissions.

Reasons for being out of time

5.The request to the Court of Appeal for certification on the ground of “the decision involving a point of law of great and general importance” should be raised within seven days after the reasons for judgment has been handed down by the court[4]. In other words, the respondent was two weeks late in making his application. The solicitors for the respondent explained in the affidavit that the respondent’s father misunderstood, after hearing from others, that legal aid would not be considered until leave was granted by the Court of Final Appeal, and as a result wasted time in raising funds. It was not until 19 February 2021, ie after the Chinese New Year holidays, that the respondent’s father realized that the matters could be proceeded simultaneously, and he immediately instructed private lawyers to proceed with the appeal to the Court of Final Appeal, including making an application for legal aid. The applicant did not object to the respondent making the application out of time.

Basic facts

6.In the afternoon on 18 November 2019, the respondent and a female each threw a petrol bomb into the Chai Wan Police Married Quarters. The respondent’s petrol bomb hit the window of a unit on the first floor, and the window and the exterior wall were charred by fire. At the material time, the head tenant and a family member were inside the unit. The petrol bomb thrown by the said female only hit the driveway between the quarters and the perimeter wall, but the fireball ensued narrowly missed landing on a vehicle that happened to pass by. Both the respondent and the female wore balaclavas and face masks.

7.During the period pending sentence, the respondent explained to the probation officer that it was only because he had quarrelled with his father on political views that in a fit of anger, he followed a male with whom he had got acquainted from a social media platform (Telegram) and committed the offence. While he was interviewed by the psychologist, he then said (see para 32 of the Reasons for Judgment of this Court):

“… on the day in question, he did not want to stay home after having a row with his father and that was why he acceded to the request of a male with whom he had got acquainted through Telegram (a social media platform) and went with a female friend to the vicinity of the location of the offence to meet up with the male. At Yue Wan Estate, that male passed to him a petrol bomb made of a beer bottle and told him to throw the bomb to the police quarters, and it was not until then did he realize the real purpose of going there. Since that male was closely connected with the triad society, and it was only because of the fear of being beaten up hardly and getting the female friend into trouble, the respondent acted as the male instructed him to do.”

However, his claim of committing the offence under coercion was withdrawn at his second submissions in mitigation. The defence changed to say that all along the respondent had only acted by following the male with whom he had become acquainted with from the social media platform.

The respondent’s background, mitigation and sentence

8.The details and contents of each topic under this heading may be found in the corresponding paragraphs in the Reasons for Judgment of this Court, and the following is only a brief summary.

9.The respondent was 15 years and 5.5 months old at the time of the offence, 11 days before turning 16 when he pleaded guilty and over 16 at the time of sentence. He was confirmed to have Asperger’s syndrome (one type of autism) at the age of seven, and he had a clear record before the present case. He was a student having “special educational need” in a mainstream school. The defence submitted in mitigation that the respondent was young and committed the offence under the influence of the Asperger’s syndrome. The psychologist’s report ordered by the magistrate further revealed that apart from Asperger’s syndrome, the respondent also suffered from Oppositional Defiant Disorder (ODD) and Attention-Deficit/Hyperactivity (ADHD), and suffered from Post-Traumatic Stress Disorder (PTSD) after the present case. The psychologist was of the view that the respondent’s violation of the law might have association with (literal translation) (original wording: were likely associated with) his Asperger’s syndrome and ADHD. Eventually, the magistrate in sentencing held: the respondent did not commit the offence for personal benefits, his commission of the offence could be largely attributable to his Asperger’s syndrome, and coupled with his young age, guilty plea and minor damage caused, rehabilitation could therefore be given more weight than punishment and deterrence.

Findings of this Court in the review

10.Paragraphs 66 to 69 set out the crucial findings made by this Court in the review:

“ 66. The trial magistrate was aware of the participation of a female in the crime but just ignored this piece of fact without pointing out in any way that such fact would aggravate the case; nor did he deal with the male with whom the respondent had got acquainted from social media. That male’s outfit was the same as the other two, including having the balaclava pulled up and wearing a mask, and he had kept holding the backdoor of Yue Shun House to prevent it from closing until the female in question ran back (after throwing the petrol bomb), and then he together with her disappeared inside Yue Shun House. This court also pointed out at the hearing that the perimeter wall of the quarters in question was not low, and there was also a two-lane driveway between the wall and the flat under attack, hence if one was to throw a petrol bomb across the wall and hit the target, one had to be very accurate in managing the power, angle and distance. It is hard to imagine that this could be done without any preparation or any knowledge of the environment at the scene. All the above circumstances indicate that the three persons in question were in joint enterprise, and there was premeditation to the extent that even the route of escape had been planned, save and except that the respondent was immediately intercepted after committing the offence. The respondent said that he had quarrelled with his father and committed the offence in a fit of anger. Such submission was not challenged, but the court had to assess it on the basis of the above objective facts at the least. The trial magistrate nevertheless completely ignored this issue.

67. When the trial magistrate pointed out the place under attack was a residence, his focus was on the risk of causing death and injury to human life. He did not specifically point out the significance of the target being police quarters. However, as emphasised by the applicant, in view of the date of the offence, the respondent’s purport that he had quarrelled with his father because of political views, and as noted by this Court, some teachers’ mention of the respondent having become “radical” in the “social event”, the present case was undoubtedly related to the social confrontation which was at its peak at the material time, which was illustrated by the random and indiscriminate attack on police officers and their families. This was a serious attack and harm to public order and safety, and its gravity should not be underestimated by any court. As to the trial magistrate’s observations that the small volume of the petrol bomb could only hold little accelerant and hence the relevant aggravating effect on the sentence was limited, and that the damage caused by the petrol bomb was minor because it had been blocked by the tightly closed windows and not gone into the flat and so on, it was so obvious that he misplaced his focus, and we do not think any elaboration is required. This Court would only add this: the applicant has correctly pointed out that a petrol bomb itself is unstable in nature and can hardly land accurately, and glass fragments can scatter widely after its landing. Moreover, since a petrol bomb has a certain shooting range and it can be used to launch attack at its target from a certain distance, it is an extremely dangerous weapon which the court must treat seriously. The female involved in this case threw the bomb and nearly hit a vehicle which happened to pass by (which, in an unfortunate event, could have been a human being). Since it was a joint enterprise, the respondent is liable jointly.

68. Finally, the trial magistrate remarked that the respondent’s commission of crime “could be largely attributable to” his various conditions, which is not completely correct. The original wording in the report is “may have association with” (literal translation). Moreover, as far as “association” is concerned, it means that the conditions can affect the patient’s judgment and empathetic ability so that he is easily subject to peer influence and cannot appreciate the victim’s situation. In any event, as pointed out by the applicant, the respondent knew what he did violated the law and even expressed regret for having damaged property, but he was indifferent to the tenants of the quarters, and hence the risk of re-offending would still exist. This has been clearly pointed out by the psychologist. In this regard, the observation of Macrae VP in Tang Ho Yin is undoubtedly most appropriate: The defendant knew exactly what he was doing. He could have controlled his condition but decided to forgo. Therefore his condition could not amount to a reason or an excuse for his involvement in such a serious offence. Those who suffer from such conditions must equally be deterred from voluntarily involving themselves in mob violence. Macrae VP concluded that the sentence should not be mitigated by the defendant’s condition.

69. It can be seen from the above analysis that the trial magistrate was wrong in the assessment of both the overall seriousness of the present case and the respondent’s personal culpability. Therefore, even though he adopted the statutory maximum term for the probation order, it is still wrong in principle and manifestly inadequate. Although the respondent is young and his rehabilitation should not be neglected, it is necessary to place more weight on punishment and deterrence in his sentence so as to reflect the seriousness of the case.”

Respondent’s submissions

(Point of law 1)

11.The respondent’s intended application for appeal to the Court of Final Appeal was taken over by Mr Joey Chan of counsel. He referred to the case of HKSAR v Chiu Yu To [2001] 3 HKC 186 and stressed that regardless of whether the disorder was the root cause of the offence, the court in passing sentence on a mentally disordered offender should let him receive treatment as far as possible. Paragraphs 24 to 25 of the judgment are set out below:

“24. This section is set out in very similar terms to section 37 of the Mental Health Act, 1983, which in England superseded section 60 of the Mental Health Act 1959 on which the Hong Kong Ordinance was modelled. Bearing this in mind, Mr Reading, SC, on the Respondent’s behalf, most helpfully referred this court to a number of English and Hong Kong decisions which demonstrate that the reasons given in the English courts for the making of hospital orders have been in large measure adopted by the Court of Appeal in Hong Kong. Essentially, mentally disordered offenders, whether or not the disorder has been the root cause of the offence, are approached on the basis that the law, where possible, should facilitate treatment in hospital.

25. The general tenor of the courts’ approach to this aspect of sentencing has been summarised in an article, entitled Sentencing the Mentally Disturbed Offender, (1965) Crim. L. R. 685 which, at p. 698, reads:

‘A survey of decisions of the Court since the passing of the Mental Health Act,1959, suggests that the powers given by the Act are being used whenever possible. The Court is quite prepared to abandon concepts of retribution and deterrence when dealing with a mentally-disturbed offender who has committed even a serious offence of violence which would in the normal way attract a deterrent sentence, and sentences of imprisonment are used only where a hospital order or probation order with a condition for treatment are unsuitable; in such cases an indeterminate sentence is used wherever possible, although there is some reluctance to do so where the offence concerned is not in the most serious category.’ ”

12.Mr Chan pointed out that the said principle had been applied in the case of HKSAR v方俊威 HCMA 26/2013 (see paras 18 and 19 of the said judgment).

13.Mr Chan submitted that the said principle should even further be applied to mentally impaired juvenile offenders so that they could receive the most appropriate treatment as soon as possible.

14.Mr Chan referred to the five reports in the case (the psychologist’s report[5], and the first and second probation officer’s reports ordered by the trial magistrate[6]; the progress report on probation requested by the defence for dealing with the review on sentence[7]; and the community service order report requested by this Court before re-sentencing[8]), and emphasised that a probation order with condition(s) but remaining in an open setting could in fact enable the respondent rehabilitate effectively and has already achieved some result.

15.Mr Chan argued that this Court was wrong in considering the training centre as facilities which “could provide psychological and other forms of counselling and different courses” (see para 73 of the Reasons for Judgment given by this Court). In Mr Chan’s view:

“…. In fact, the suitability report for detention centre/rehabilitation centre/training centre merely points out that the respondent’s mental, psychological and physical condition is fit for the detention in the rehabilitation centre and training centre, and there is no mention of what kind of treatment/courses are provided in these institutions, nor does it explain whether such facilities are suitable for the respondent and whether they would help in his recovery and so on. It is the general understanding that the training centre can only provide ordinary medical services, and the training emphasises on unified discipline with no recovery plan formulated for individual juveniles having special educational needs. This suggests that the respondent’s progress in continued social rehabilitation would be interrupted.”

16.Finally, Mr Chan submitted:

(1) The sentence imposed by this Court “was not made under the premise of the availability of the most appropriate treatment to the respondent, and on the contrary excessive weight was placed on factors such as punishment and deterrent”.

(2) So far, “no precedent has ever provided any sentencing guideline (in particular in serious cases) in respect of mentally impaired juveniles, which is an issue having great and general importance and is also reasonably arguable”.

(Point of law 2)

17.Mr Chan criticised that even though this Court had noted that Asperger’s syndrome and ADHD “can affect the patient’s judgment and empathetic ability so that he is easily subject to peer influence and cannot appreciate the victim’s situation”, the court still applied the observation in HKSAR v Tang Ho Yin [2019] 3 HKLRD 502, namely, “The defendant knew exactly what he was doing. He could have controlled his condition but chose to forgo”, as a reason for not upholding the original sentence of the respondent (see para 68 of the Reasons for Judgment given by this Court).

18.Mr Chan contended that in relation to the defendant in Tang Ho Yin (aged 24), firstly, he had admitted having shaken loose a lamppost and dug out bricks, and then stood at the forefront among the rioters and took part in provoking the police and throwing objects at the police; and secondly, according to the psychiatric report, his symptoms could be relieved simply by switching to a medication that did not lead to insomnia, the Court of Appeal therefore concluded that he had himself chosen to forgo the control of his condition and did not commit the offence out of impulsiveness caused by ADHD. That is to say, his conditions were completely different from the respondent who was merely 15 years old at the time of the offence and suffering from several types of mental impairment simultaneously, in particular that the respondent had not forgone the control of his medical problems.

19.Mr Chan emphasised that no matter whether or not the respondent had committed the offence for the reason of coercion, he maintained that before the meeting, “he did not know what would be done, and it was only after they had met up that (the said male) passed him a beer bottle containing inflammable liquid and insisted that he threw it out”, he as a result felt “panic and helpless”, and it was only under such circumstances that [he] “finally followed the instruction of (the said male) and committed this offence”. It was Mr Chan’s view that according to the above “factual background”, the reason for which the respondent had committed the offence had sufficient association with his medical condition, for example, he was unable to make rational judgment and decision under the male’s persuasion.

20.Mr Chan went on to refer to HKSAR v Chiu Peng [2002] 1 HKLRD 185, saying that even if the condition of a defendant’s mental illness was not so serious that he did not know what he himself was doing, his culpability might still be mitigated. Below is para 16 of the judgment:

“16. If an accused is suffering from mental illness which played a part in the commission of the offence, the court may properly allow a discount of sentence. See Cross and Cheung: Sentencing in Hong Kong, 3rd Ed, pp 308-309 and the cases cited thereat. The reasoning was described as “allowing a diminished role for the element of deterrence to reflect the mental condition” in Parnis v R (1994) 126 ALR 423, 426. That, as we understand, means that while the sentence normally imposed by the court is for deterring an accused unaffected by any abnormal mental condition in the commission of the offence and for general deterrence, the necessity for both kinds of deterrence is reduced because the accused was not operating under a normal mental condition. While this reasoning has its attraction, we prefer to lay emphasis on the justification for a discount of sentence in these circumstances as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened. Or, as in this case, the accused’s mental illness made him gullible and easily susceptible to persuasion by the perpetrator of the crime, reducing his responsibility for participating.”

21.Mr Chan referred to the recommendations of the Sentencing Council for England and Wales in Sentencing Offenders with Mental Disorders, Developmental Disorders, or Neurological Impairments, which state that the court should take the following points into consideration as a starting point in sentencing an offender who has mental illness: (1) whether at the time of the offence the offender’s impairment or disorder undermined his ability to exercise judgment, to make rational choices and to understand the nature of his action; (2) whether the offender’s impairment or disorder caused him to behave in an uninhibited way at the time of the offence; and (3) whether there was any other impairment or disorder which might reduce the offender’s culpability.

22.Mr Chan referred to the psychologist’s report in the present case, stressed that it could support the mitigation of the respondent’s culpability. In Mr Chan’s view, “likely associated with” in the English report should be translated as“多數因病症而起”(likely to be caused by illness) in Chinese instead of “可能與此有關” (might have association with) in Chinese as suggested by Court of Appeal[9]:

“18. From the clinical observation and information gathered at the interviews, [the respondent] appeared to have committed the offence out of peer influence and poor judgment. He severely underestimated the consequence of his behavior. He acknowledged that the offending act was illegal but failed to consider the legal consequence. He demonstrated no empathy on the potential victims during or after the offence. His significant deficits in taking others’ perspectives and problem solving were likely associated with the diagnoses of ASD and ADHD, which compromised his decision-making and made him prone to irrational judgment as evident in the index offence.”

23.In conclusion, Mr Chan said “[this Court], in assessing the respondent’s culpability, erred in refusing to give any weight to his illness, and this was a reasonably arguable point”.

The applicant’s response

24.The applicant submitted that the two points drafted by Mr Chan both described the juvenile offender in question as “mentally impaired or disordered” in English, whereas the terms “psychopathic disorder” and “mentally disordered” had their specific definitions under s 2 of the Mental Health Ordinance, Cap 136 of the Laws of Hong Kong[10]. The defendants in Chiu Yu To and方俊威 both fell within the definition of mentally disordered[11], whereas the respondent’s various symptoms plainly did not satisfy the meaning of mentally impaired, mentally disordered or mental illness under s 2 of the said Ordinance. In fact, the progress report on the probation order showed that simply by taking medication as scheduled, attending monthly follow-up appointment at the hospital, having assistance from the social worker, the probation officer and the psychologist, the respondent has already been able to make obvious improvement in emotional management, interpersonal relationship and problem solving ability.[12] Therefore, the two points of law advanced by Mr Chan neither covered the respondent nor “were concerned with the decision of the case”.

25.The applicant emphasised: how the court attached weight to factors such as treatment, punishment and deterrence in sentencing was a balancing exercise, the result depended on the circumstances of each case and should not be over-generalized. As to the connection between the respondent’s medical condition and his commission of the offence, the Court of Appeal had already considered and analysed the psychologist’s report and concluded that detention in a training centre would be the sentence which best addressed all aspects concerned. Mr Chan’s arguments, which aimed at challenging the conclusion made by the Court of Appeal, just did not involve any law, not to mention any point of law of great and general importance.

Respondent’s last written submissions

26.Mr Chan refuted the applicant’s allegations and said: The “mental impairment” or “mental illness” which he had mentioned was only used as a “general description” and not limited to the specific circumstances under the Mental Health Ordinance. Taking the document issued by the Sentencing Council of England and Wales as an example, ADHD appeared within Annex A - main classes of mental disorders and presenting features. Both the submissions in mitigation and the subsequent psychologist report have specifically relied on and could prove that the respondent committed the offence under the influence of his illness.

27.Mr Chan asserted: in respect of the first point of law, there had yet been any precedent in Hong Kong on whether or not punishment and deterrence should be given priority over medical treatment in sentencing a juvenile offender, and in respect of the sentencing guideline on this issue, and therefore it was a point of law of great and general importance (which was reasonably arguable). In respect of the second point of law, that the Court of Appeal referred to Tang Ho Yin and refused to uphold the original sentence of probation order for the reason that the respondent knew what he was doing and forwent the choice to control his illness by himself was relevant to how the court should assess the association between illness and commission of offence by a defendant, and was therefore a point of law of great and general importance (which was reasonably arguable).

G. Discussion and analysis

28.Leaving the definitions under s 2 of the Mental Health Ordinance aside for the moment, it is quite obvious that treatment on the defendants should be the main concern in the precedents cited by Mr Chan. Those defendants were all seriously ill.

29.For example, the defendant in Chiu Yu To suffered from the illnesses set out under footnote 11 in this judgment, and he tried to get away from the voice in his head and the so-called persecution by others by breaking the law and getting arrested, and that was why he acted in a bizarre way during the robbery, such as producing his proof of identity and address, not accepting the money and quietly waiting for the police arrival. Under such circumstances, the trial judge did not accept the psychiatrists’ recommendations of making a hospital order but treated the defendant as an ordinary robber and sent him to prison. Such sentence must certainly be substituted. Similarly, 方俊威 (transliteration: Fong Chun Wai), who poked a female’s breast once with his finger, not only behaved strangely and suffered those various illnesses under footnote 11, but had also been admittedinto a mental hospital four times. Even the experts had to debate on whether he was fit for plea. Accordingly, the court obviously had to give first priority to his treatment.

30.As to AG v Ng Chak Hung CAAR 1/1994 cited in his last written submissions, Mr Chan intended to take it as an example to demonstrate that even if a defendant had not been proved to be a patient within the meaning under the Mental Health Ordinance in accordance with the legal requirement, the court would still pass a sentence which facilitated his treatment as far as possible. However, this Court has also noted that the Court of Appeal in that case expressly indicated that they would honour the trial judge’s decision of treating the defendant leniently and just varied the suspended sentence to a probation order with the condition of attending follow-up appointment regularly for well justified grounds. Although the charge was one of “wounding with intent”, the injuries that the victim suffered were minor. The defendant was a hardworking person with a clear record, while the victim had multiple records of serious offences. At the time of the offence, the victim not only forcibly occupied the defendant’s residence, but also drank in excess, borrowed money from the defendant and had been extremely difficult to get along with. The case stemmed from a quarrel which drove the defendant furious. Before committing the offence, the defendant’s mental condition was not a great problem, and regular follow-up treatments were sufficient after the case.

31.Viewing the above three cases together, the court in sentencing would obviously consider the seriousness of the charge and the facts of the case, the defendant’s personal culpability, the condition of the defendant’s illness, and the association (if any) between his illness and his commission of the offence as well. This is a balancing exercise, as said by the applicant, and it does not contradict the observations made by the Court of Appeal in Chiu Yu To. For example (see para 11 above), the then English courts were very willing to exercise the powers given by the new law, in particular hospital orders, including one with an indeterminate length which was quite harsh, but it was done wherever possible only. In the event that the facts in a case are bad and the defendant’s personal culpability is serious, and after considering all the factors, including but not limited to the factors identified by the Sentencing Council of England and Wales, the court comes to the view that the defendant’s illness is relatively minor and cannot not substantially reduce his culpability, should, and even can, the court not impose a relatively punitive and deterrent sentence? This could not possibly be the intention of the Court of Appeal.

32.The above approach of sentencing is in fact the one adopted by the Court of Appeal in Chiu Peng. In that case, the accused’s mental illness made him confused in his mind and highly susceptible to persuasion by others. However, since he appreciated that he was committing a serious crime, the Court of Appeal found the discount he received in his sentence was more than enough (para (2) of the headnote). It was clearly a decision based on the actual circumstances and having regard to various sentencing considerations. In Tang Ho Yin, since the defendant had stopped medication on his own, thereby forgoing the control of his illness, and there was also evidence showing that he did not commit the offence out of impulsiveness, the Court of Appeal found that he should not be given discount in sentence because of ADHD (paras 34 to 36 in the judgment). That was the same approach.

33.As to the connection between the respondent’s commission of the offence and his ADHD, regardless of whether it “might have association with” as translated by this Court, or “likely to be caused by illness” (see para 22 above) as suggested by Mr Chan, it is not that it “could be largely attributable to …” as stated by the trial magistrate. As the analysis made by this Court in paras 66 to 68 in the Reasons for Judgment (see para 10 above), although the illness concerned “can affect the patient’s judgment and empathetic ability so that he is easily subject to peer influence and cannot appreciate the victim’s situation”, the respondent knew that he was breaking the law, and by that time he had already “become radical” and would not possibly commit the offence because of the “fit of anger” as generally understood. On the contrary, regardless of whether he responded to an invitation or not, whether he went together with a female companion, whether he acted according to the instruction of the male at large, and whether he threw out the petrol bomb by trying hard and striving to aim at the victim unit and so on, he was no doubt considerably of his own self, but he chose not to control his own behaviour and committed the serious offence eventually. This was why this Court found the observations of Macrae VP in Tang Ho Yin appropriate. This Court has focused on the fact that the respondent had forgone the control and got involved in violent behaviour out of his own free will.

34.Finally, this Court do not accept Mr Chan’s allegation that we have misunderstood the facilities or services which can be provided by the training centre. The training centre definitely can and does provide [psychological] and other counselling services according to the needs of the individual inmate. This is the collective judicial experience of the three judges of this Court. In fact, it was directly pointed out in HKSAR v Chan Sin Ting HCMA66/2005 that this was a possible arrangement. The current website of the Correctional Services Department clearly indicates that their psychological services unit does provide tailor-made programmes upon taking into account the specific needs of juvenile inmates.

H. Conclusion

35.The points put forward by Mr Chan do not involve any legal principle to be determined. His suggestion of formulating relevant sentencing guidelines for juvenile offenders is also not necessary, because there are already established sentencing principles. Regardless of the age of the defendants, the court would definitely impose the sentence by considering the seriousness of the case, the defendant’s personal culpability, the defendant’s illness and the association between the defendant’s illness and his commission of the offence. The only point to note is to consider, as far as possible, rehabilitation which is most beneficial to juvenile offenders.

36.If what Mr Chan mainly complained of was not the approach taken by this Court but the result of the re-sentence, contending that the sentence was too harsh and/or the court had failed to give sufficient and proper consideration to the respondent’s illness, the application for leave to appeal should have been made directly to the Court of Final Appeal on the ground of “substantial and grave injustice having been done” in the decision.

37.The respondent’s application is dismissed.

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

Mr Joey HM Chan, instructed by Messrs JCC Cheung & Co, for the respondent

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