Secretary for Justice v. Chow Kin Nok

[English Translation - 英譯本]

CAAR 1/2021

[2021] HKCA 540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 1 OF 2021

(ON REVIEW FROM STCC NO 2646 OF 2020)

________________________

BETWEEN

________________________

Before:  Hon Poon CJHC, Pang JA & M Poon J in Court

Date of Hearing:  18 March, 1 & 16 April 2021

Date of Judgment:  16 April 2021

Date of Reasons for Judgment:  21 April 2021

________________________

REASONS FOR JUDGMENT

________________________

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

A.  Introduction

1.On 16 November 2020, the respondent was convicted upon his guilty plea of a charge of ‘criminal damage’[1], contrary to sections 60(1)  and 63(2)  of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. The magistrate (Mr Jason Wan, Acting Principal Magistrate)  called for a probation officer’s report and a community service order report for the respondent. On 7 December 2020, the magistrate sentenced the respondent to a 200-hour community service order.

2.The applicant was dissatisfied with the sentence on the grounds that the sentence was wrong in principle and manifestly inadequate, and therefore made an application pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong, to the Court of Appeal for leave to apply for review. The application was granted on 7 January 2021.

3.On 18 March 2021, after the formal hearing, this Court found that the applicant’s application was made out, quashed the respondent’s original sentence and called for a Rehabilitation Centre report, a Detention Centre report and a Training Centre report for the respondent. On 1 April 2021, having received the above reports, this Court found it necessary to have a better understanding of the relevant contents and therefore called for further Rehabilitation Centre, Detention Centre and Training Centre reports. On 16 April 2021, the Court substituted the respondent’s sentence with a Rehabilitation Centre Order. The following are the reasons of the Court.

B.  Facts of the case

4.On the night of 13 May 2020, there was an unauthorized assembly called ‘Sing with You’ in New Town Plaza, Shatin, New Territories. At 7:30 p.m., the number of people assembled on the 4/F, 5/F and 6/F of the plaza were respectively over 150, 70 to 80 and 50. They chanted anti-government and anti-police slogans. Although the warnings of violating the prohibition on group gathering were broadcasted through the broadcasting system of the plaza, the people assembled ignored them.

5.‘Heytea’ was a tea shop situated on the 4/F of the plaza. On the night of the offence, two police officers (PW3 and PW4)  posed as customers inside the shop and kept it under surveillance. At 8:49 p.m. on the same day, male A, male C and the respondent who were wearing black clothes and black caps with their faces covered in black cloth suddenly rushed in, smashed the screens of two cash registers with stone, tore off an Octopus card reader and pushed down two poster display stands and two queue stands, while male B acted as a lookout outside the shop and stopped a security guard from approaching[2].

6.The shop manager of ‘Heytea’ saw the above incident and tried to stop the three of them from causing damage. PW3 and PW4 immediately went forward to reveal their identities. PW3 encountered vigorous resistance when trying to intercept male A and the respondent. The respondent pulled PW3’s upper garment, causing him to fall down and be dragged out of the shop. Meanwhile, male B approached but backed off when PW3 shouted at him.

7.PW3 eventually subdued the respondent, and PW4, who had failed to chase and intercept the other males, joined in to control him on the ground. Meanwhile, however, a group of people came closer; they surrounded the two police officers and kept scolding them loudly. A female even poked towards PW3’s face with the tip of an umbrella[3] and therefore, PW3 had to snatch away the umbrella and use pepper spray to protect himself.

8.Later, uniformed police officers arrived. At the scene, they found two stones, a black cap belonging to the respondent and a spray can without any liquid inside. Under caution, the respondent said that he disliked ‘Heytea’, so he smashed the screen of the cash register with a stone.

9.The police found in the respondent’s mobile phone a Whatsapp group which was created by male B 18 minutes before the offence. Its members included males A, B, C and the respondent. Male B informed the other three members of the number of security guards outside the shop ‘Heytea’, and suggested the escape route after the commission of the offence to the three of them. Upon male B’s indication to act, male A, male C and the respondent immediately rushed in to damage ‘Heytea’.

10.PW3 was injured during the incident. His right ring finger and left wrist were red and swollen, tender and abraded. The repair costs for the screens of two cash registers and the Octopus card reader amounted to HK$15,200.

C.  The respondent’s background and mitigation

11.At the time of the offence, the respondent was 16 years old and studied in Form 5. Because his parents had separated, he lived with his father and grandparents. In mitigation, the defence said that the respondent was a first offender, remorseful and supported by his parents and family; he was zealous in taking part in student union elections and providing services in school; his teachers and the social worker had positive comments about him (mitigation letters attached); he loved football and was the vice-captain of the school football team, and he even participated in the district selection competition after the offence, hoping that this would get him into the Hong Kong Football Representative Team; he took the initiative to find someone to give him tutorial lessons pending trial and made considerable improvement in his academic performance; he used most of his savings in the sum of HK$4,000 to make partial compensation. In order to let this ‘young man full of ideals and passion’ be better rehabilitated, the defence urged the magistrate to deal with the respondent in a ‘lenient’ way[4].

D.  The report obtained by the magistrate

12.The probation officer cum community service order report stated the following[5]. The respondent’s academic performance and conduct were satisfactory[6]. He actively took part in class meetings, the student union and football activities. He was the school champion in running between 2016 and 2019. He did not have any triad background or vices. He was incited to take part in the opposition movement to the Fugitive Offenders Bill, and joined various lawful demonstrations and processions and even the ‘Occupy Chinese University of Hong Kong’ in November 2019, but did not attack anyone or damage any property. He was also very dissatisfied with the Government’s COVID-19 preventive measures. In response to the appeal on the social platform Telegram on the day before the offence, he joined the ‘Sing with You’ assembly in question the following day, and even orchestrated the damage of ‘Heytea’ with people of the same social platform because he was dissatisfied that the shop supported the police and sold unhealthy drinks at a high price. Upon talking to his teacher after the incident, the respondent realised that his acts were not acceptable, and felt remorseful for having damaged the shop and caused alarm to the staff and customers. In a nutshell, the probation officer was of the view that the respondent was simple-minded, had not considered the impact of his acts on other people and the legal consequences, and might have committed the offence out of his misconstruction of social justice. As the respondent was a first offender, remorseful, had a relatively self-restrained character and had the support of his family, the probation officer was of the view that he did not need to be put under probation, but instead recommended a community service order of a relatively long duration (161 to 240 hours)  to make reparation to society.

E.  The original sentence

13.On the day of the respondent entering a guilty plea, having heard the mitigation of the defence for a lenient sentence, the magistrate only called for a probation officer and community service order report without calling for any suitability report in relation to any custodial sentence.

14.On the day of sentence, the magistrate imposed a 200-hour community service order on the respondent in an extremely brief manner, orally stating[7]:

“The sentence is as follows: the court now deals with D1 of this case. Earlier, D1 pleaded guilty to Charge 1, criminal damage, which is undoubtedly a serious offence. Indeed, the facts of the case are also serious. In passing the sentence, the court has considered the following points: firstly, the defendant is very young and only 16 years old now; he pleaded guilty to indicate remorse; the court has read the report and believes that the defendant has shown genuine remorse and has deeply reflected on his acts; thirdly, the defendant has a clear record; fourthly, the defendant has very strong support of his family; in respect of his commission of the offence, his family did accom – that is, help him to get through the whole incident together, and also said that they would continue to supervise and support him, which is rather important in order for a juvenile delinquent to reform himself. Having had the experience of being in court, and having been convicted and sentenced, etc., it is the view of the court that the defendant should have learnt a very valuable lesson. In addition, the defendant has earlier made compensation. The report called for by the court is also positive, and in the end it suggests that [the court] can – the court can consider a community service order;

Having considered all of the above, the court is of the view that the suggestion is suitable and therefore accepts it. On Charge 1, the defendant is sentenced to performing 200 hours of community service.”

F.  The grounds of review

15.The following are the applicant’s grounds of review supplemented by oral submissions by Mr Siu Kai Yip William, Acting Assistant Director of Public Prosecutions, at the hearing.

F1.   Ground 1: The non-custodial sentence was wrong in principle

16.The Court of Appeal reiterated in Wong Chi Fung[8] that the weight to be given to the six classic sentencing factors (protection of the public, meting out punishment, open condemnation, deterrence, compensation, rehabilitation and reform)  should be different in accordance with the seriousness of the case in order to determine an appropriate sentence for the case.

17.The Court of Appeal held in SWS and SHY[9] that the above principles were also applicable to cases involving young offenders (below 21 years old)  and juvenile offenders (below 16 years old). If it is in fact a serious case, the weight to be attached to the two factors of punishment and deterrence should be greater in order to protect the public. Unless the offender’s personal circumstances are extremely exceptional, a custodial sentence with the elements of rehabilitation is indeed inevitable.

18.In Law Man Chung[10], the Court of Appeal pointed out that when imposing the sentence for the offence of desecration of the national flag, in assessing the overall seriousness of the case, the court has to consider the date, time, location and occasion when the offence was committed, the number of people present, as well as whether other people would be instigated to join in and commit the same or other offences, and whether people who held different views would be incited and clash with each other.

19.The above principles were applied by the Court of Appeal in the recent cases of ‘assaulting a police officer’ (Kung Yat Kan, Clifford[11])  and ‘unlawful assembly’ (Chung Ka Ho[12]). Both cases are also related to matters of public order triggered by the Fugitive Offenders Ordinance.

20.When imposing a sentence in similar cases, i.e., where there is a background of frequent large scale public protests, the Court of Final Appeal stated in Wong Chi Fung[13] that it is necessary to emphasize punishment and deterrence in dealing with large scale unlawful assembly cases involving violence. This principle was also applied by the Court of Appeal in Kung Yat Kan, Clifford[14].

21.The respondent admitted that this case was connected with the unauthorized assembly at the scene on that day, and his acts instigated others to become riled up and even besiege, revile and attack police officers who were executing their duties. Therefore, it was indeed necessary to impose a deterrent sentence to reflect the seriousness of the case; a community service order in an open setting was wrong in principle.

F2.   Ground 2: The sentence was inadequate to reflect the seriousness of the facts and the respondent’s culpability

22.The facts of this case were not particularly minor, and there were aggravating factors as follows:

(1)  The offence took place in a shopping arcade with a heavy flow of people. At the time, there was an unauthorized assembly of several hundred people. The protesters were chanting anti-government and anti-police slogans.

(2)  The respondent committed the offence with three others. The offence was planned and pre-meditated, and even the number of security guards in the shopping arcade and the escape route were also considered.

(3)  The respondent and his accomplices were all dressed in black with their heads and faces covered to conceal their identities so that it would be difficult for others to identify them, facilitating their escape.

(4)  The loss suffered by the shop was not inconsiderable and the police officer involved was injured.

(5)  The incident caused a commotion and stirred up the people present to commit other offences (such as assaulting a police officer). As there was a great disparity in the numbers of police officers and protesters, the risk of a large scale clash was higher.

23.The sentence of a community service order overemphasized the respondent’s rehabilitation but ignored sentencing factors such as the protection of the public (not to be harmed by the so-called ‘decoration’ acts carried out in the name of opposition to the Fugitive Offenders Ordinance), meting out punishment (to severely punish those who deliberately participated in such acts, including young and juvenile offenders), open condemnation (to reflect that society does not accept those who harm people holding different stances)  and deterrence (to prevent the respondent and other people from repeating or performing the same acts).  

24.The magistrate accorded too much weight to the respondent’s mitigation, particularly that the respondent was young (which had very little mitigating effect on a serious offence[15], moreover, the respondent was not of ‘extreme youth’ as stated in the precedents[16]), had a clear record (which was not a ground to exempt him from a deterrent sentence in cases where public order was concerned[17])  and had the support of his family (the respondent’s parents initially had no idea of him joining the opposition to the Fugitive Offenders Ordinance[18]).

25.After considering all the circumstances of this case and as a matter of public interest, punishment and deterrence were far more important than the respondent’s rehabilitation[19].

26.Finally, the applicant cited two precedents: Lai Ho Kit[20] and Tai Chi Shing[21]. The former case had nothing to do with the opposition to the Fugitive Offenders Ordinance. The 15-year-old defendant was sentenced to Training Centre for ‘criminal damage’ and ‘assaulting a police officer’, and later his appeal against sentence was dismissed. The latter case happened in 2014 where three of the four defendants, who severely damaged the curtain walls of the Legislative Council Complex, were each imprisoned for a total of 3½ months for the two offences of ‘criminal damage’ and ‘unlawful assembly’ (after a guilty plea). In dismissing their appeal, the Court of the First Instance stated that the former offence occurred in circumstances similar to those in a riot case, and therefore the starting point should in fact be 6 months’ imprisonment instead of the original 1 month’s imprisonment. The reasons were that law and order must be respected even when one is exercising one’s freedom of speech and assembly, acts of damage are not to be tolerated (the defendants caused damage because they intended to stop the debate in the Legislative Council on a piece of legislation which they did not accept), and even a first offender would be sentenced to immediate imprisonment.

F.3   Ground 3: A sentence by way of a community service order was wrong in principle and manifestly inadequate

27.Numerous precedents illustrate that although a community service order is not a soft option[22], it is still a softer option than a custodial sentence[23]. Even if the six criteria regarding suitability for community service are all satisfied, that does not mean such an order must be imposed by the court[24]. Unless there are very exceptional personal circumstances, for cases that are serious and clearly call for a deterrent sentence, even if the offender is assessed to be suitable for a community service order, it is generally not appropriate for the court to impose one[25].

28.In any event, the respondent was only a Form 5 student, and had no previous work experience; he had a radical view of the political situation at the time and had participated in large scale protests without the knowledge of his family[26] – therefore, the criteria for a community service order might not be satisfied. 

29.The magistrate only called for a report from the probation officer and on a community service order after hearing preliminary submissions for mitigation. Not only did this give the impression that he had already ruled out the possibility of a custodial sentence, he also deprived himself of the necessary information for considering all sentencing options[27].

30.A month or two after the respondent was sentenced, in two of the proceedings that dealt with D2 of the same case, the magistrate admitted that ‘he had subsequently re-examined the evidence’, and believed that he ‘might have failed to give full consideration to matters such as the organized nature of the case, etc.’ when sentencing the respondent. He made it clear that the recent decisions of the higher courts were binding on him, and told D2 not to harbour any ‘unnecessary illusions’[28]. D2 was eventually sentenced to detention in a Rehabilitation Centre. In other words, even the magistrate realised that a sentence of a community service order was wrong.

G.  Respondent’s reply

31.The following is the respondent’s reply, supplemented by oral submissions by Mr Paul Wu at the present hearing (Mr Wu was not the counsel for the defence in the court below).

32.There had been a plea bargain in the present case where the charge of ‘resisting a police officer’ would be withdrawn on the condition of a guilty plea to the offence of ‘criminal damage’. Making compensation to the victim shop was not part of the plea bargain but an initiative put forward by the respondent.

33.Although the live video recordings of the scene were produced, the prosecution did not request the magistrate to view them. It was only when D2 of the present case pleaded guilty that the prosecution asked for the recordings to be played in court in order to assist the magistrate with sentencing. D2 was eventually sentenced to the Rehabilitation Centre.

34.Viewing as a whole the video recordings at the scene, the admitted facts and the various reports and information, the circumstances of the respondent’s offence were minor in nature. The stone used to commit the offence was only picked up outside the shopping arcade in question, and not much loss was suffered by the victim shop; after the respondent was subdued, he at once indicated that he would ‘surrender’, and he admitted the offence at the police station; the respondent did not convene the mass to cause disturbance or damage to the shopping arcade, and he was not the convener or mastermind of the group of four who committed the offence; the acts of the group of four who committed the offence did not incite or cause others to create an uproar and further damage the victim shop; the report in relation to the respondent was positive, and the mitigation letters suggested that he was lauded by various teachers in school; there is a very low risk of the respondent re-offending.

35.On the contrary, the applicant placed too much emphasis on the factors mentioned in Wong Chi Fung and other similar cases but which were not applicable to the present case. The sentencing considerations over-emphasized by the applicant included:

(1)  The opposition movement background in the present case (although such background did exist, the present case was not the worst ‘activity’ of its kind, as its object was just ‘singing’ and ‘celebrating the birthday of the Chief Executive’, and the prosecution did not present any evidence to prove that large-scale and riotous disorder had taken place in the shopping arcade).

(2)  Circumstances unrelated to the respondent (i.e., the total number of people in the shopping arcade, the behaviour of those present but who were not arrested, and the chaos in other areas of the shopping arcade not caused by the respondent).

36.Based on the factors mentioned in paragraph 34 above, the sentence passed by the magistrate, which required the respondent to serve in an open setting, was lenient, but not wrong in principle or manifestly inadequate. If the appellate court indeed finds that the original sentence was inappropriate, the fact that D2 was sentenced to detention in a Rehabilitation Centre should be taken into account, and the Court should impose the same sentence on the respondent. As the respondent would be sitting for DSE examinations, a Rehabilitation Centre Order would affect his studies the least.

H.  Discussion and analysis

H1.   General gravity of the present case

37.The present case was one with premeditation and sophisticated planning. It involved accomplices who played different roles, and the acts included not only attacks on the victim tea shop but also obstructions to security guards who were discharging their duties. As the culprits had their heads and faces covered, it was not easy to track them down afterwards. The above were the most basic and obvious serious features, but the magistrate did not specifically point them out and explicitly deal with them. He simply said ‘the offence is no doubt serious, and so are the facts of the case’[29], and then turned to the factors that were in favour of the respondent, and stressed the importance of allowing ‘young offenders’ to turn a new leaf[30]. This practice was neither usual nor correct, and the details are open to question. For example, on the day of sentencing, the respondent was one day short of 17 years old, and the courts, in general, would not describe that as ‘very young’[31]. It would be even more inappropriate to treat him as a juvenile offender (below 16 years old). The magistrate only called for a probation officer’s report and a community service report before sentencing, which would give the impression that he had already formed a certain view on the matter.

H2.   Context of the present case

38.The above are the most fundamental aggravating factors in the present case. Apart from these, what the magistrate had failed to distinguish and deal with was the anti-Fugitive Offenders Ordinance background, yet this is a consideration not to be overlooked in sentencing, for we have made clear the reason in Chung Ka Ho[32]:

“ 70.  In fact, back in Law Man Chung, the case of desecrating the national flag (date of judgment: 24 April 2020), the Court of Appeal already discussed how the factors such as date, time, location and occasion affected the overall seriousness of cases, which was repeated in Kung Yat Kan, Clifford, a recent case of assaulting a police officer during the “three major suspensions” (date of reasons for judgment: 9 November 2020). Courts of various levels should refer to them. It is specifically pointed out here that the above factors are completely unrelated to the offenders’ political stance. The court’s only concern is whether people at the scene would kick up a row because of the criminal acts under the influence of the said factors, thereby raising the risk of violent clashes. This must be considered at the time of passing sentence.”

39.The Reasons for Judgment of Chung Ka Ho was dated 3 December 2020, and the judgments of Law Man Chung[33] and Kung Yat Kan, Clifford[34], the two cases mentioned in the above excerpt, were dated even earlier; therefore, on the date of sentencing in the present case, these three cases were precedents that the courts below should have known about and should have applied if applicable. This Court wishes to emphasize that it should be applied as needed because considering the context of a case in sentencing is not a new concept; on the contrary, it is a long-established principle based on common sense and is applicable to all charges. Let us take the example of a young defendant who intimidated another person by way of telephone voicemail: if it was committed in isolation, perhaps it could be dealt with as if it was a prank; but if it was a series of acts carried out by some triad society for some unlawful purposes, it would certainly attract a completely different sentence.

40.Blackshaw[35] was one of the cases we cited in Wong Chi Fung[36]. The English Court of Appeal clearly stated the above principle, which was applicable in ten public order cases, on page 683 paragraph 8 of the judgment[37]:

“ It is elementary that sentencing courts cannot ignore the context in which the crime or crimes for which sentence was to be passed was committed. It is an essential feature in the assessment of culpability. In some cases, the context would provide the most powerful mitigation, for example, a genuine mercy killing as a final act of love and devotion. In other cases, including the present appeals, the context hugely aggravated [aggravates] the seriousness of each individual offence. None of the [these] crimes before the Court was committed in isolation. Eight of them were intrinsic to or arose from widespread lawlessness and two more were intended to contribute to or aggravate it at the time when disorders were at their most destructive [disruptive] and alarming.”

41.On the same subject,  Poon CJHC pointed out in the Reasons for Judgment in Poon Yung Wai handed down on the 20^th day of this month that[38]:

“ 38. … according to the general sentencing principles, the context of offending is of relevance to the gravity of an offence and the culpability of an offender: see Tse Chung, at p.458; Divin, at [20]. In the present case, the respondent committed the offence amid a series of persistent, serious and violent confrontations and illegal acts in Hong Kong, among which were many large-scale protracted riots or unlawful assemblies involving violence that affected extensive areas or quite a number of places. The respondent’s inciting others in this social context and under these circumstances to commit unlawful assembly involving violence clearly increased the risk of breaking social peace and order.”

42.The fact that the present case was related to the anti-Fugitive Offenders Ordinance was undisputable, nor had anybody ever tried to dispute the same. At the time of the offence, it was common knowledge that protests and unauthorized assemblies still happened frequently, that New Town Plaza in Shatin was a hotspot for this, and that ‘Sing with you’ would cause a large crowd of citizens to gather and this often sparked other incidents, etc. The blockade, revilement and even assault triggered immediately by the apprehension of suspects by PW3 and PW4 serve as the best portrayal of such background. No court can turn a blind eye to this.

H3.   Nature of the offence in question

43.At first blush, the offence in the present case is one of ‘criminal damage’, but on further reflection, such acts of ‘decoration’, as they were colloquially known, are in fact blatant assaults on people of a different background and/or with a different stance, and had characteristics and effects of hate, bullying, intimidation and silencing. Its nature is no different from that of what is commonly referred to as ‘private settlements’, i.e., causing bodily harm to the other party. Whether the assailant was conscious of such characteristics, or whether his assault was to achieve such effects, or even when his acts were plainly unable to cause the victim to cower, the vileness of such acts and damage caused to society would not be diminished, and the courts shall take a serious approach.

44.The reason for this was discussed in the judgment of this Court in Wong Chi Fung[39] back in 2017. Whether the subject offence was ‘unlawful assembly’, ‘criminal damage’, ‘wounding’ or others, as long as the offending act constituted a threat to public order, and in particular a threat to the freedom of individuals to exercise their rights peacefully, the relevant principles are absolutely applicable. This should be understood by judicial officers of all levels upon reading the judgment. However, the magistrate in the present case did not seem to have explicitly dealt with this. This Court now again excerpts the most relevant two paragraphs (paragraphs 118 and 119)  of the judgment of that case as below:

“ 118. Society is prone to descend into anarchy if public order is not preserved; once such a situation arises, the harm done to both society and its citizens cannot be understated. For society as a whole, preserving public order is indispensable to societal safety and public peace. Lawlessness in anarchic situations undermines social stability and hampers continuous development of a society. For the general public, preserving public order helps create a safe and stable social environment to enable individuals to exercise their rights (including human rights of which the freedom of assembly and expression is one), express their views and pursue their goals. In fact, the above-mentioned rights themselves will be lost in a situation of anarchy if public order is not preserved. That is exactly the rationale underlying Article 17 of the Hong Kong Bill of Rights in only safeguarding peaceful assembly: the legal protection of the right of assembly is effective only in a society where public order is preserved. Because preserving public order is so important to the society and the general public, the law must always remain vigilant to ensure that public order in Hong Kong is not under threat. That does not mean that the law is only concerned about public order, or that it will ignore the rights and freedoms enjoyed by citizens in accordance with law, lest society is likely to descend into a suppressed state, which would impede Hong Kong’s development and progress and deprive its citizens of their various freedoms and rights. The law must give consideration to both, and to strike a balance between the right of assembly and the need to preserve public order. That balance is embodied in the basic premise that assemblies must be held peacefully without disrupting or threatening to disrupt public order, or without involving any violence or threat to use violence.

119. In a civilized society, it is common for different people or sectors to have different opinions and different aspirations for a wide range of interests and rights. Therefore, its citizens should foster mutual respect and mutual understanding, and make mutual allowances among themselves so that different people or sectors are able to exercise their rights and express their views peacefully and lawfully all at the same time. This principle of mutual respect, understanding and allowances is a hallmark of any sophisticated, progressive, civilized and diverse society. The law must ensure the continued and effective operation of that principle in Hong Kong so that different people and sectors can get along peacefully and lawfully with one another, regardless of their divergent opinions and views. It would also enable people of different views to hold sensible and reasonable discussions over controversial issues in an atmosphere of mutual respect.”

H4.   The lack of a valid reply from the respondent

45.Counsel for the defence in the court below described the respondent as a young man ‘full of ideals and passion’, and submitted that it was not easy for him to admit his guilt in open court[40]. Such a submission was entirely inappropriate because it seemed to have glorified acts of hate, bullying, intimidation, silencing and so on. Similarly, Mr Wu lost touch with reality completely by submitting that on the day the crowd aimed to ‘sing’ and ‘celebrate the Chief Executive’s birthday’. By submitting that there was no definite link between the respondent and the gathered crowd hence hoping to sever their relationship, this submission disregarded the context of the present case and the imminent risk to public order. By emphasizing that the stone used in committing the offence had been picked up from the vicinity, he sought to portray such an arrangement by the respondent (which arrangement was clearly made by the respondent in order to avoid having an offensive instrument found on him upon a search)  to be a mitigating feature. All in all, Mr Wu’s submissions, even the parts that were in fact favourable to the respondent (such as his young age and clear record), failed to effectively address the applicant’s complaints, in particular the level of vileness in the present case. When further questioned by this Court, Mr Wu agreed that the sentence imposed on D2 could not be of guidance and the sentence imposed on the respondent should only be one that is appropriate in the present case.

H5    Our conclusion

46.Based on the reasons as set out in Sections H1 to H3 above, the facts of the present case were indeed serious. In that light, the original sentence placed too much emphasis on the respondent’s rehabilitation. As to this, we have mentioned in the Reasons for Judgment of SWS, a sentence review case handed down on 22 September 2020[41], that when dealing with serious offences, the sentencing should not be lopsided onto the rehabilitation of juvenile offenders and/or ignore the elements of rehabilitation in certain detention facilities.  Such principle was applied to cases involving young offenders in the Reasons for Judgment of SHY handed down on 28 October of the same year[42]. The sentencing in the court below in the present case obviously departed from the abovementioned principle, and thus it was wrong in principle and manifestly inadequate, and must be rectified.

I.  Substitution of appropriate sentence

47.The first round of reports we called for stated that the respondent was suffering from asthma and that his physical capability had failed to meet the requirement for detention in the Detention Centre.  At the same time, the respondent’s self-introduction cited in the reports mentioned only the prizes he won in the inter-school speech competitions, but said not one word of the success he had in running and football. We asked Mr Wu why that was the case, but we were given ambiguous answers, such as: the person who had prepared the reports did not ask the respondent so the respondent did not say anything about that, and the respondent’s asthma had persisted since childhood and the lack of exercise during the pandemic period had led to his reduced physical fitness, and so on. In any event, upon our request for a second round of reports, the Correctional Services Department confirmed that the physical capability of the respondent had indeed failed to meet the standard required for detention in a Detention Centre. As to the claim of asthma, the latest medical report prepared by a private medical practitioner confirmed that the respondent is indeed suffering from such an ailment, although he has not sought further treatment since February 2016. According to the respondent’s mother, playing sports and football did help to improve his condition, but under the pandemic the situation has gradually deteriorated.

48.Having regard to all relevant circumstances in the case, there is no doubt a custodial sentence should have been imposed on the respondent. If his physical condition had allowed it, detention in a Detention Centre would have been the most appropriate option. However, given the reality and having regard to factors such as his age, current attitude, the limited extent of actual damage caused at the time of the offence and so on, we are of the view that detention in a Rehabilitation Centre is an acceptable sentence.

J.  Order

49.We allow the application of the applicant for review of sentence, set aside the original community service order, and order the respondent to be detained in the Rehabilitation Centre.

Mr Siu Kai Yip William, Assistant Director of Public Prosecution (Ag)  and Ms Lo Wing Shan Stella, Public Prosecutor of the Department of Justice, for the applicant

Mr Paul K N Wu and Ms Jessica K S Leung, instructed by Henry Chiu & Partners, assigned by the Legal Aid Department, for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Justin Yuen, solicitor.