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Hksar v Yiu Siu Hong

Judgment Cited authorities 5 Cited in 1 Precedent Map Related
Vincent
Judgment Date31 December 2020
Neutral Citation[2020] HKCA 1087
Year2020
Judgement NumberCACC96/2020
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC96/2020 HKSAR v. YIU SIU HONG

CACC 96/2020

[2020] HKCA 1087

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 96 OF 2020

(ON APPEAL FROM DCCC NO 57 OF 2020)

_______________

HKSAR Respondent
v
YIU SIU HONG (姚少康) Applicant

_______________

Before: Hon Zervos JA in Court

Date of Hearing: 29 December 2020

Date of Judgment: 31 December 2020

________________

J U D G M E N T

________________

Introduction

1. On 15 June 2020, the applicant appeared before District Judge Woodcock (the judge) and pleaded guilty to possession of offensive weapons in a public place, contrary to section 33(1) and (2) of the Public Order Ordinance, Cap 245 (Charge 1) and attempted arson with intent, contrary to sections 60(2) and (3), 63(1) and 159G of the Crimes Ordinance, Cap 200 (Charge 2).[1]

2. On 24 June 2020, the judge sentenced the applicant to 1 year and 8 months’ imprisonment on Charge 1 and 4 years’ imprisonment on Charge 2. She ordered that the sentences be served concurrently, resulting in a total sentence of 4 years’ imprisonment.[2]

3. On 16 July 2020, the applicant filed a notice of application for leave to appeal against sentence which was followed by the filing of Perfected Grounds of Appeal on 15 October 2020. The grounds of appeal only complained about the sentence on Charge 2.

The grounds of appeal

4. Mr Steven Kwan, for the applicant, advances the following broad issues in relation to the application:

(1) Whether the judge was correct in placing reliance on the sentencing guidelines published by the Sentencing Council of the United Kingdom (the UK Guidelines);

(i) without prior warning to the applicant (Ground 1); and

(ii) in respect of public order offences (as opposed to arson offences) (Ground 2).

(2) If the judge was correct in applying the elements of culpability and harm in public order offences referred to in the UK Guidelines to the offence of arson in this case, whether the starting point of 6 years’ imprisonment adopted by the judge was in any event manifestly excessive, having regard to the sentences passed in arson cases in Hong Kong (Ground 3).

The offence provisions and penalties

5. Whilst no complaint is made about the sentence imposed on the applicant in relation to Charge 1, it is appropriate to set out the offence and penalty provisions of the two charges to put the overall offending of the applicant in context.

6. The offence provision under Charge 1 is section 33(1) of the Public Order Ordinance, which reads:

“(1) Any person who, without lawful authority or reasonable excuse, has with him in any public place any offensive weapon shall be guilty of an offence and shall be sentenced, on summary conviction or conviction on indictment, in the manner specified in subsection (2).”

7. Under section 2 an offensive weapon “means any article made, or adapted for use, or suitable, for causing injury to the person, or intended by the person having it in his possession or under his control for such use by him or by some other person.”

8. The penalty provision of this offence is structured on the basis of the age of the offender and is set out under section 33(2), which reads:

“(2) A person convicted of an offence under subsection (1) shall—

(a) if under the age of 14 years, be dealt with in accordance with the provisions of the Juvenile Offenders Ordinance (Cap. 226);

(b) if he is not less than 14 years of age and has not attained 17 years of age, be sentenced—

(i) to imprisonment for not more than 3 years;

(ii) to a detention order under the provisions of the Detention Centres Ordinance (Cap. 239), but subject to the provisions of that Ordinance;

(iii) (Repealed)

(iv) subject to the provisions of the Training Centres Ordinance (Cap. 280), to detention in a training centre under that Ordinance; or

(v) subject to the provisions of the Rehabilitation Centres Ordinance (Cap. 567), to detention in a rehabilitation centre within the meaning of that Ordinance;

(c) if he is not less than 17 years of age and has not attained 25 years of age, be sentenced—

(i) to imprisonment for not more than 3 years;

(ii) to a detention order under the provisions of the Detention Centres Ordinance (Cap. 239), but subject to the provisions of that Ordinance; or

(iii) (Repealed)

(iv) subject to the provisions of the Rehabilitation Centres Ordinance (Cap. 567), to detention in a rehabilitation centre within the meaning of that Ordinance;

(d) if of the age of 25 years or more, be sentenced to imprisonment for not more than 3 years.”

9. The penalty provision is further qualified by section 33(3) and (4), which read:

“(3) Where any person, other than a person under the age of 14 years, is charged with an offence under this section, it shall not be open to the court to exercise either the powers conferred by section 36 of the Magistrates Ordinance (Cap. 227) or the powers conferred by section 3 of the Probation of Offenders Ordinance (Cap. 298).

(4) Where a person who is not less than 14 years of age and under 16 years of age is convicted of an offence under this section, section 11(2) of the Juvenile Offenders Ordinance (Cap. 226) shall not apply in relation to such person.”

10. The offence provision under Charge 2 is set out under section 60(2) and (3), which read:

“(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another—

(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered,

shall be guilty of an offence.

(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.”

11. The penalty provision for this offence is set out under section 63(1), which reads:

“(1) A person guilty of arson under section 60 or of an offence under section 60(2) (whether arson or not) shall be liable on conviction upon indictment to imprisonment for life.”

12. The offence committed by the applicant under this section was in its inchoate form because he unsuccessfully attempted arson and this is provided by section 159G of the Crimes Ordinance. Section 159J provides that a person found guilty by virtue of section 159G(1)(b) of attempting to commit an offence “shall be liable on conviction on indictment to any penalty to which he would have been liable on conviction on indictment of that offence.”

13. It is appropriate to note that the English Court of Appeal in R v Bouch [1983] 1 QB 246 held that a petrol bomb, comprising petrol in a bottle and a wick, which when lit and thrown causes a pyrotechnic effect, constitutes an “explosive substance” within the terms of section 9(1) of the Explosive Substances Act 1883. The equivalent provision in Hong Kong is section 52 of Part VII of the Crimes Ordinance. See HKSAR v Kwan Ka Hei,[3] in which the Court of Final Appeal discussed the definition of an “explosive substance”.

The background and facts of the case

14. The offence to which the applicant pleaded guilty took place in the early evening on 13 October 2019 in Tseung Kwan O where several hundreds of protesters had assembled. The prevailing conditions at this time were recently explained by the Court of Final Appeal in Kwok Wing Hang and others v the Secretary for Justice and Chief Executive in Council,[4] that “between June and October 2019, Hong Kong, a city long regarded as safe, experienced an exceptional and sustained outbreak of violent public lawlessness”, and as a consequence “by early October 2019 the situation in Hong Kong had become dire”.[5]

15. The facts outlined to the judge and admitted on behalf of the applicant,[6] show that at about 6:15 pm on 13 October 2019, around 40 to 50 protesters had set up barricades and blocked the junction of Tong Chun Street and Tong Ming Street, Tseung Kwan O. Police officers were deployed to restore order and facilitate the flow of traffic. Upon their arrival at about 6:35 pm, some protesters had dispersed.

16. At around 6:41 pm two layers of barricades were placed across the road. While the police officers were clearing the barricades, the applicant walked out from the direction of the second layer of barricades outside Tong Ming Street park. He had in one hand a petrol bomb, which was made of a glass bottle containing petrol with a cloth inserted inside the bottle, and in the other hand a lighter. The applicant walked towards the police officers who were clearing the barricades and attempted to ignite the petrol bomb with the lighter. His actions were witnessed by four off-duty police officers who immediately rushed toward the applicant to disarm him of the petrol bomb. One of the police officers grabbed his hand that was holding the petrol bomb and a struggle ensued. The applicant attempted to flee but he was prevented from doing so by the police officers who eventually subdued him.

17. It was admitted that the applicant was dressed in a black jacket, a blue T-shirt, black long trousers, a black cap, gloves and a black balaclava. He had in his rucksack another petrol bomb, a white cloth, a laser pointer, a helmet, a respirator, 15 plastic straps, a can of spray paint and a pair of forearm sleeves. Both petrol bombs contained flammable liquid. The applicant was arrested and remained silent after being cautioned.

18. In a subsequent video record of interview, the applicant admitted possessing the petrol bombs. He also admitted attempting to ignite the petrol bomb to throw it towards the barricades at the time of his arrest. He accepted that all the items found on him and in his rucksack...

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    • Court of Appeal (Hong Kong)
    • 9 April 2021
    ...[13] Reasons for Sentence, AB, p 17, para 8. [14] Annex 1 to the applicant’s supplemental written submissions. [15] HKSAR v Yiu Siu Hong [2020] HKCA 1087; HKSAR v Chong Yam Miu Lucas [2020] HKDC 216; HKSAR v Chan Chun Fai Kelvin [2020] HKDC 856; HKSAR v Lam Siu Hung [2020] HKDC 984; HKSAR v......

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