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Hksar v Chan Kwok Ching

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date09 April 2021
Neutral Citation[2021] HKCA 488
Judgement NumberCACC97/2020
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC97/2020 HKSAR v. CHAN KWOK CHING

CACC 97 /2020

[2021] HKCA 488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 97 OF 2020

(ON APPEAL FROM DCCC NO 248 OF 2020)

________________________

BETWEEN
HKSAR Respondent
and
Chan Kwok Ching (陳國靖) Applicant

________________________

Before: Hon Macrae VP in Court
Date of Hearing: 31 March 2021
Date of Judgment: 31 March 2021
Date of Reasons for Judgment: 9 April 2021

__________________________________

REASONS FOR JUDGMENT

__________________________________

1. The applicant sought leave to appeal against his sentence, following his plea of guilty, entered on 12 June 2020 before HH Judge Woodcock (“the judge”) in the District Court, to a charge of possession of things with intent to destroy or damage property, contrary to sections 62(a) and 63(2) of the Crimes Ordinance, Cap 200 (Charge 1). A further charge of possession of apparatus for radio-communications without a licence, contrary to sections 8(1)(b) and 20 of the Telecommunications Ordinance, Cap 106 (Charge 2), to which the applicant pleaded not guilty, was marked not to be proceeded with, without leave of the court or the Court of Appeal.

2. The particulars of Charge 1 were that on 10 November 2019, at Siu Lun Court, Tuen Mun, in the New Territories, the applicant had in his custody or under his control, 3 petrol bombs stoppered with white fabric strip, 2 spanners, 3 bottles containing cyclohexane and methyl‑cyclohexane, 1 container containing light petroleum distillate, 1 bag of white powdery solids containing calcium hypochlorite, 14 pieces of white fabric, 1 funnel, 4 lighters and 1 pair of scissors, intending without lawful excuse to use, or cause or permit another to use, those things to destroy or damage any property belonging to some other person.

3. The judge adjourned the original sentencing hearing pending the preparation of a Detention Centre/Training Centre suitability report, as well as a psychologist’s report. At the resumed hearing on 29 June 2020, having read the reports and heard further submissions, the judge sentenced the applicant to 2 years and 8 months’ imprisonment.

The facts

4. In the afternoon of 10 November 2019, a team of police officers were patrolling in Tuen Mun in a police vehicle. At 3:09 pm, they were driving past Siu Lun Court near the junction of Heung Sze Wui Road and Hoi Wing Road, where they saw a group of persons clad in black making their way through Siu Lun Court. The applicant, who was among the group, was holding a radio transceiver set (commonly known as a “walkie-talkie”). The officers gave chase and eventually stopped the group, including the applicant, in Siu Lun Court.

5. At the time, the applicant was dressed in black, with a black facial covering and a pair of black gloves. He was also carrying a black rucksack and a black waist bag, onto which were strapped three black bottle pouches. In each of the pouches was what is commonly known as a “petrol bomb”. The three petrol bombs comprised glass bottles respectively containing 122 millilitres (“ml”), 175 ml and 260 ml of a colourless liquid containing an organic mixture of mainly cyclohexane and methyl-cyclohexane, which are both highly flammable organic solvents and common ingredients in paint-thinning mixtures. Two of the petrol bombs were stoppered with a fabric strip, while the third had no stopper, although a fabric strip was found inside the bottle. One of the petrol bombs fell to the ground, when the applicant was being subdued. In the applicant’s black waist bag, amongst other things, were 4 lighters, 2 spanners and 3 Octopus cards.

6. In the applicant’s rucksack, further related items were found, namely:

(a) 1 plastic bag with approximately 409 grammes of a white powdery solid containing calcium hypochorite, which is commonly found in bleaching powder;

(b) 3 plastic bottles containing a total of about 1.88 litres of a colourless liquid containing an organic mixture of mainly cyclohexane and methyl-cyclohexane;

(c) 1 canister containing about 95 ml of a colourless liquid containing an organic mixture of mainly light petroleum distillate, which is a highly flammable organic solvent and a common constituent in lighter fluid;

(d) a funnel;

(e) 14 pieces of white fabric;

(f) a pair of scissors;

(g) a respirator, a filter canister, goggles, gloves and what was described as a “kerchief”; and

(h) 5 packets and 1 bottle of saline.

7. Officers of the Communications Authority later confirmed that the walkie-talkie, which had been held by the applicant, was a radio‑transmitting apparatus requiring a licence. However, the applicant did not have such a licence at the relevant time.

8. The applicant lived in a housing estate in Tuen Mun about 14 minutes’ drive from Siu Lun Court.

Reasons for sentence

9. After reciting the facts in the case, the judge noted that the applicant was 17 years of age at the time of offence, and almost 18 by the time of sentencing. He had a clear record and was the youngest of four children from a good family. Whilst on bail, he had sat the Hong Kong Diploma secondary education exams and was awaiting his results. The applicant, who was aspiring to be an engineer, was hoping to study an engineering programme at a College in Santa Barbara, California, in the United States, which had offered him a place for March 2020; an offer, which I am told, has now lapsed. Several mitigation letters written by social workers testified to the applicant’s continuous voluntary work and his charitable nature[1]. The applicant had also written a letter to the court himself to express his remorse and apologise for disappointing his family[2].

10. The judge referred to the Detention Centre/Training Centre suitability report prepared on the applicant. The report concluded that the applicant was mentally, psychologically and physically fit for detention in either a Detention Centre or a Training Centre, although the recommendation was that the applicant would be more suitable for rehabilitation in a Detention Centre[3].

11. The judge also considered the report of the psychologist, who found that the applicant had the ability to differentiate between right and wrong, as well as understand the consequences of his own behaviour. However, the psychologist had also found that the applicant exhibited “some risk factors for re-offending”[4]. The applicant was said to be relatively weak in his respect for the law and the criminal justice system, and exhibited certain negative attitudes towards law enforcement. The psychologist detailed in her report how the applicant had learnt to make petrol bombs online, yet he also claimed to be unaware of the consequences of making and throwing petrol bombs. She considered that the applicant had been highly influenced by social media and, if he continued to identify with social events and their participants, and maintain his current views towards law enforcement authorities, his risk of re-offending would increase. The psychologist concluded her report by saying that the applicant would benefit from psychological intervention, so as to challenge his thinking and decision-making for the purpose of re-integrating into society[5].

12. The judge observed that the charge carried a maximum sentence of 10 years’ imprisonment, which was an indication of how seriously the offence was viewed by the legislature. She also made it clear that such offences should never become confused with legitimate and peaceful protests. What the judge found particularly disturbing was the paraphernalia discovered in the applicant’s rucksack: judging by the fact that he had 3 ready-made petrol bombs in his possession, the items in his rucksack could be used to make between 7 and 15 further similar incendiary devices. Since petrol bombs were notoriously unstable weapons once ignited and thrown, she said it would be difficult to foresee the possible or likely consequences, as well as the scale of harm, which might be caused by their throwing[6].

13. The judge viewed the wearing of black from head to toe, including a face mask and gloves, as well as his possession of three Octopus cards, as aggravating features, since they were designed to avoid detection and tracing. The items he was wearing, and which were in his possession, showed that the applicant was well-prepared to cause damage and chaos. On the other hand, the judge expressly took account of the applicant’s young age, his previous clear record, the mitigation advanced and the contents of the various letters and the reports before her, whilst commending him for his voluntary work in various community projects[7].

14. However, the judge was not convinced by the applicant’s claim that he had acted impulsively, since considerable planning had obviously gone into his offence; moreover, according to the psychologist’s report, the applicant was motivated by his dissatisfaction with how the police had been dealing with protesters. The judge was sure the applicant knew what he had made, what he was carrying and that he intended to use the petrol bombs as acts of reprisal[8].

15. The judge considered that a young person who committed a serious crime could not turn youth to his/her advantage. Notwithstanding an offender’s youth, a court must keep in mind the classic principles of sentencing; namely, rehabilitation, retribution, deterrence and prevention. She held that youth weighed little against the interest of the community as a whole, which lay in the preservation of public order. Furthermore, a custodial sentence was required in order to deter others, particularly in light of the then prevalence and...

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