HKSAR v. Chan Yiu Shing and Others

(Ruling 9)

HCCC 41/2016

[2018] HKCFI 313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 41 OF 2016

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RULING ON THE 1^st, 2^nd AND 3^rd DEFENDANTS’ APPLICATIONS FOR BAIL

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1.Yesterday on the 13^th day of the 18days set aside for the trial of this case, I adjourned the case to 18 August 2017 with dates set aside for the trial from 1 September 2017. This was due to the ongoing issues concerning the nature and state of the prosecution case and the array of applications made by the defence that I had to address. So far I have handed down the following rulings: Reasons for Ruling on Amendments and the Indictment (Ruling 1); Ruling on the 3^rd Defendant’s Application for Bail (Ruling 2); Direction (Ruling 3); Ruling on the Admissibility of the 5^th Defendant’s Caution Statements and Reconstruction Video (Ruling 4); Ruling on the Admissibility of the 2^nd Defendant’s Identification Evidence (Ruling 5); Ruling on the Admissibility of the 3^rd Defendant’s Alleged Statement (Ruling 6); Ruling on the Application for Police Officer Witnesses to Give Evidence Behind a Screen (Ruling 7); and Reasons for Ruling on the Admissibility of Expert Evidence (Ruling 8). In addition, I will be handing down the following rulings: Ruling on the Application for Severance (Ruling 10); Ruling on the Application to Permanently Stay the Proceedings (Ruling 11); and Ruling on the Admissibility of Documentary Exhibits (Ruling 12). There is outstanding a further matter on the 3^rd defendant’s acquittal of the previous Count 5 on which I have heard argument on 16, 17 and 23 February 2017. However, the prosecution have requested to present further argument on this matter and this has been adjourned to 18 August 2017.

2.I have had to direct the prosecution to provide a case summary in relation to the conspiracy count (Count 1).  This was submitted on 15 February 2017.  However, during the course of hearing submissions in relation to the admissibility of documentary exhibits that the prosecution wish to rely upon, and as a result of the general state of the prosecution case and the recent filing of additional evidence, it was necessary that I further direct the prosecution to provide particulars as to (1) the object of the conspiracy alleged in Count 1 and the acts and declarations in furtherance of the conspiracy, including the overt acts of the conspiracy as alleged by the prosecution, and by reference to the evidence in relation to each of the defendants; and (2) the alleged explosive or explosives that the prosecution say were capable of being made by the explosive substances particularised in each of the remaining possession counts against the defendant concerned. 

3.As a result of the adjournment of these proceedings, I have received applications for bail from the 1^st, 2^nd and 3^rd defendants.  The prosecution opposed the applications. 

4.I note that the 4^th and 5^th defendants had been granted bail very early in these proceedings with conditions, including, that they make a cash deposit, not to leave Hong Kong and surrender all travel documents and that they report to the police. 

5.I have borne in mind the principles of bail in relation to these applications.  A court may take into account a range of relevant matters when deciding whether or not to grant bail.  The presumption of bail can be rebutted by the nature of the offence, the risk of danger to the public, or the likelihood that the trial could be affected by the defendant absconding or influencing the witness.  There is also the factor of unreasonable delay.  See HKSAR v Vu Thang Duong [2015] 2 HKLRD 502, at paragraphs 13 to 16.

6.I have taken into account when considering these applications the nature and state of the case, and the evidence against each of the defendants.  It is apparent that the allegations made against the defendants have changed and appear to be not as serious as the ones first made.  For instance, the principal count is no longer alleging a conspiracy under section 54 to cause an explosion, or making or keeping an explosive with intent to endanger life or property, but instead a conspiracy under section 55 of making explosive substances, namely, in the form of smoke bombs.  The offence is still serious because the circumstances in which such smoke bombs may be used could have serious consequences to the safety and wellbeing of others.  The possession counts variously allege certain explosive substances which concern particular types of explosives. 

7.I inquired of Mr Jonathan Man, for the prosecution, as to the nature and degree of dangerousness of the explosives that the prosecution allege were capable of being made from the ingredients particularised in each of the possession counts.  This matter had not been addressed, or not adequately addressed, in the two expert reports.  The prosecution allege the following explosives capable of being made under the possession counts: Count 2 against the 2^nd defendant is thermite, Count 3 against the 3^rd defendant is thermite, Count 4 against the 1^st defendant is TATP, thermite and smoke bombs, and Count 5 against the 3^rd defendant is TATP and smoke bombs.  From the prosecution materials and what I have been told by Mr Man, the thermite that was capable of being made would have emitted an extremely high temperature, and that any TATP capable of being made required the active ingredients of acetone and hydrogen peroxide.  I have borne in mind the ingredients in question in relation to each of the possession counts and the quantities involved. 

8.On 8 June 2016, the 1^st and 2^nd defendants were convicted of possession of an offensive weapon, namely chilli oil, for which they received a sentence of imprisonment of 9 months and 6 months respectively.  They have both served their sentences in relation to this offence although I am informed that they are appealing the conviction.  The 1^st defendant also has a prior conviction for making or possessing an explosive for which on 26 March 2010 he was ordered to serve 240 hours of community service.  The 1^st and 2^nd defendants were arrested for the offence of possession of an offensive weapon on 21 March 2015 who were both put on court bail.  It was whilst they were on court bail that they were arrested for this offence on 14 June 2015.  It was this matter in particular that caused me to give their applications anxious consideration.

9.It is primarily on the basis that the defendants are likely to reoffend that Mr Man opposes their applications. 

10.The 3^rd defendant has a clear record and I have addressed his particular background and circumstances in the ruling I gave on his previous application for bail on 7 February 2017 (Ruling 2). 

11.All three defendants are prepared to subject themselves to the usual conditions of bail, namely, providing a cash deposit, restrictions as to travel and reporting conditions.  There is an issue as to whether they are likely to reoffend whilst on bail but this needs to be taken into account together with all the other factors relevant to their applications. The defendants have been in custody since 14 June 2015 and as a result of the case now being adjourned to September of this year, it will mean that they would have been in custody for nearly 2 years and 3 months.  I have borne this matter in mind.

12.I have asked the defendants whether they are prepared to abide by the following condition:

“The defendant undertakes, as well as agrees as a condition of bail, that he will not make any form of inquiry into, or any form of dissemination of information or materials relating to, the making and use of any form of explosives, or like or related substances or devices, and will not discuss the making of, or attempt to make, or make any form of explosives, or like or related substances or devices, and will not in any way inquire into or deal with the ingredients of any form of explosives, or like or related substances or devices. For the avoidance of any doubt, the defendant can communicate with his legal representatives about his case in relation to these matters.”

13.Counsel for the defendants have discussed this undertaking and condition and confirm that their clients understand and agree with it.  I will also confirm the matter with each of the defendants directly. On this basis, I will grant bail and will discuss and fix other conditions of bail in light of the circumstances of each defendant.

Mr Jonathan Man, SADPP, and Mr Gary Leung, SPP of Department of Justice, for HKSAR

Mr Randy Shek, instructed by Bond Ng Solicitors, assigned by Director of Legal Aid, for the 1^st defendant

Mr Douglas Kwok, instructed JCC Cheung & Co., assigned by Director of Legal Aid, for the 2^nd defendant

Mr John Haynes, instructed by Krishnan & Tsang, assigned by Director of Legal Aid, for the 3^rd defendant