HKSAR v Tang Ho Yin

CRIMINAL SENTENCING

HKSAR v Tang Ho Yin
[2019] 3 HKLRD 502, [2019] HKCA 611, [2019] HKEC 1742
Court of Appeal
Criminal Appeal No 113 of 2018
Macrae V-P, Pang and Zervos JJA
28 May, 5 June 2019

Criminal sentencing — riot — sentencing principles

D was a man of clear criminal record and aged 24 at the time he committed the offence of riot. Appearing in the District Court, he tendered an early plea of guilty to that offence, and was sentenced to 2 years and 10 months’ imprisonment. The Judge adopted a starting point of 5 years and reduced it to 3 years and 4 months by way of a full one-third discount for the early plea of guilty. It was further reduced by 6 months in the light of a psychiatric report that D suffered from Attention Deficit/Hyperactivity Disorder (ADHD) which was said to have accounted for the impulsive way in which he involved himself in the riot, without fully recognising the potential consequences of his actions. With leave granted by the single Judge, D appealed against sentence. D argued that the starting point of 5 years’ imprisonment was manifestly excessive. As for the discount of 6 months for ADHD, D argued that that was a proper exercise of discretion with which the Court of Appeal ought not to interfere.

Held, dismissing the appeal, that:

  1. Three important sentencing principles were these. First, the gravity of an offence of riot was not to be judged merely by what the individual did (or did not do), but by what the group to whose number he lent his support did. Second, the offence might be aggravated by the commission of other crimes in the course of the riot. Third, those who resort to the company and association of others in order to inflict widespread violence and destruction must be strongly deterred. Of course, not all riots were the same in terms of scale of seriousness. In some, the police find themselves trying to keep order in disturbances caused by rival groups; in others, the police are themselves the target of group aggression (R v Caird (1970) 54 Cr App R 499, R v Pilgrim [1983] Cr App R (S) 140, R v Blackshaw [2012] 1 Cr App R (S) 114, HKSAR v Yeung Ka Lun (CACC 130/2017, [2018] CHKEC 392) applied). (See paras.24–25.)
  2. Applying the foregoing principles, it was immaterial whether D had, as he suggested, thrown one brick or, as he seemed to have admitted in the Summary of Facts, more than one brick. The police were outnumbered. They were subjected to a hail of bricks and bottles thrown by the rioters with whom D associated and to whom he lent support and encouragement. Unable to carry out their dispersal action, the police were forced to retreat under a hail of missiles. They were pursued by the rioters. Officers had objects hurled at them. Some officers fell to the ground and were kicked and beaten. Twenty-nine police officers were injured, some of them seriously. (See paras.26–28.)
  3. However, unlike a previous case in which a starting point of 5 years’ imprisonment was not disturbed on appeal, there was no evidence in the present case of the deliberate lighting of fires. The appropriate starting point for D was 4½ years’ imprisonment. A full one-third discount would have resulted in 3 years’ imprisonment (HKSAR v Yeung Ka Lun (CACC 130/2017, [2018] CHKEC 392) distinguished). (See paras.29–33.)
  4. D’s medical condition was not a reason or 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. Although D should not have received a discount for ADHD, his ultimate sentence would be left unaltered even though that meant his receiving a windfall discount of 2 months which he did not deserve. (See paras.34–36.)

Appeal against sentence

This was an appeal against sentence for rioting imposed by Judge Eddie Yip in the District Court. The facts are set out in the judgment.

[Editorial note: This judgment involves the distillation from previous cases of a set of sentencing principles for the offence of riot.]

Jurisdictions: 

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