Protester, 18, gets detention instead of probation on prosecutors’ appeal to court

2021.06.11

A young protester who threw bricks at a police vehicle early last year was ordered into custody on Thursday in place of probation, as Hong Kong government prosecutors won an appeal in court against the lighter sentence.

The length of Chan Yip-wan’s detention is indeterminate as young offenders sentenced to a correctional facility do not serve a fixed term. According to the law, people under the age of 21 cannot spend less than a month at a correctional facility, but not more than six months either.

Chan, 18, had pleaded guilty in Eastern Magistrates’ Court to hurling bricks at a water cannon vehicle during a Jan. 1 protest last year in Causeway Bay, where police caught him with a cutter, a hammer, a lighter and flammable liquid. He admitted one count of criminal damage and one of possessing goods with intent to damage property.

The defendant had asked not to be given custodial punishment as it would prevent him from entering his second year in university. Magistrate Bina Chainrai then handed him 18 months’ probation and a fine of close to HK$10,000 (US$1,290), a sentence that was challenged by the Department of Justice.

At the Court of Appeal, prosecutors said that Chan hid behind reporters before suddenly rushing out to throw the bricks.

Defense barrister James Tze argued that Chan was not the one who set the fires and laid the roadblocks at the scene. Although he had a cutter in his possession, he had no fixed target, while the flammable liquid was given to him by others.

Chan was doing a degree in business management and had been improving on his grades. If he was incarcerated, it would greatly affect his studies, Tze said.

The lawyer argued against a report that recommended sending Chan to a correctional facility, saying it would cause him to miss school enrollment in September. Tze hoped that the three presiding judges would order detention in a rehabilitation center, which often had shorter terms.

Mr Justice Derek Pang said universities had flexible enrollment schedules, so Chan could start school later. Pang, along with Mr Justice Jeremy Poon and Madam Justice Judianna Barnes, said that a correctional facility was more appropriate due to the severity of the case and also the recommended sentence for boys.

They found Chainrai’s sentencing inappropriate as she had placed too much emphasis on the defendant’s personal situation.

The three judges ruled that probation might not reflect the seriousness of the crime and sent him to a correctional center. If the defendant behaved well, he could leave the facility in September, in time for the academic term, the court said.

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