HK protests: Court of Appeal rules magistrate made mistake when ordering probation for girl found with petrol bomb materials

25-Sep-2020 Intellasia | South China Morning Post | 6:02 AM Print This Post

The Court of Appeal on Wednesday concluded that a magistrate had erred in giving a teenage girl probation for possessing the raw materials for making petrol bombs amid Hong Kong’s social unrest last year, after prosecutors applied for a review of sentence.

But the three judges rejected prosecutors’ demand for the 16-year-old student to be placed in a rehabilitation centre, instead calling for reports to see if she was suitable for community service and adjourning the case until October 13.

The same panel of judges had earlier quashed a probation order given by the same magistrate in a separate case involving a 15-year-old boy who hurled three petrol bombs, replacing the original sentence by sending him to a detention centre.

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The girl, who cannot be identified because of her age, was sentenced to 12 months’ probation by Magistrate Kelly Shui in June, following her guilty plea to one count of possession of an instrument fit for unlawful purpose, an offence punishable by two years in prison and a HK$5,000 fine.

Tuen Mun Court heard the Form Four student was intercepted by police in the early hours of September 30 last year after a taxi driver reported seeing people putting up posters in support of the anti-government protests near a school in Tin Shui Wai.

She was found to be carrying a paper bag, which contained a glass bottle, antiseptic solution, lighter fluid, a towel and some white powder wrapped in tin foil.

She later admitted that she had wanted to use those items to make a petrol bomb following instructions on the encrypted messaging service Telegram out of “fun”, and to test the finished product by the riverside.

The lighter fluid was later certified as flammable light petroleum distillate.

In the application for review, deputy director of public prosecutions Vinci Lam Wing-sai argued that the probation being a non-custodial sentence could not reflect the seriousness of the case, which involved premeditation and the use of flammable liquid.

The prosecutor also argued that the sentencing magistrate had erred in placing too much weight on personal circumstances and the fact that the petrol bomb had not yet been assembled, neglecting other considerations such as deterrence, punishment and protection of the public.

“The court has to consider what she was planning to do with those items,” Lam said, after presenting arson cases for reference.

She also challenged the magistrate’s assessment of the girl being “a good student”, drawing the court’s attention to her school reports, dating back to Form One, which showed that she had been late five times and absent for 101/2 days that year.

But Madam Justice Anthea Pang Po-kam questioned if there should first be a manufactured bomb for one to argue that the defendant had intended to use it for arson. She also noted that prosecutors had no expert evidence to say whether those raw materials could be made into a petrol bomb.

Justice Jeremy Poon Shiu-chor, the chief judge of the High Court, similarly observed that the arson cases might not be helpful when they were clearly different from the present one.

Instead, Poon noted that the magistrate had erred when she said that all sentencing options were open without calling for the necessary reports to assess the suitability of each option.

Lam argued that the rehabilitation centre option would be most suitable, as she believed it would help correct the girl’s values and conduct, and deter her from repeat offending.

But the girl’s defence counsel, Victor Ho, maintained support for a non-custodial sentence, such as community service, which he argued would balance personal rehabilitation and public considerations.

“She’s not a bad student,” Ho said. “She is remorseful.”


Category: Hong Kong

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