HKSAR v. Sie Hon Yu

HCCC 191/2018

[2019] HKCFI 69

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 191 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant has pleaded guilty in the lower court and been committed for sentence to this court. He has pleaded guilty to two charges of criminal damage and one charge of making explosive substance with intent to endanger life or property, and finally a charge of possessing explosive substance with intent to endanger life or property.

The background to these offences can be seen initially from the Summary of Facts to which the defendant had admitted. It all began with a love relationship between himself and the victim in this case. There is no doubt that when they broke up in October 2016, the defendant was emotionally overwrought and had asked repeatedly for a reunion but was rejected. So, under those circumstances, on 7 April last year, the defendant foolishly then decided to take his revenge by splashing the victim’s car with paint remover. Of course, the victim reported the matter to the police.

On 31 May 2017, the victim returned to her car and found that the brake light on the driving panel was on. She found the foot brake was not functioning, so she had the car towed to a garage for inspection and they found two brake hoses of the front wheels of the vehicle had been deliberately cut. She reported the matter to the police and on 5 June last year, the police then approached the defendant whereupon he immediately admitted his liability for these two criminal damage incidents. He even showed the police to his car where the paint remover and a pair of pliers used for the criminal damage were located.

Police also found some WhatsApp messages from the defendant’s mobile phone talking about making bombs and detonating gunpowder. So, a bomb disposal officer, Mr Roberts, was asked to come to the scene whereupon he inspected the defendant’s vehicle and found in the driver’s door pocket a small metal tin containing what subsequently was found to be a mixture of potassium nitrate, charcoal and sulphur.

Mr Roberts also located from the rear of the vehicle a cardboard box which contained, amongst other things, charcoal, sulphur and potassium nitrate and matches, and it is of the opinion of Mr Roberts that the metal tin content found was a homemade and, I quote, “Low or deflagrating explosive.”

Mr Roberts says that in the right circumstances it could produce an explosion, but that explosion would be of limited efficacy and that this tin was unlikely to produce what he called a practical explosion that could be used to destroy property or to cause serious injury unless the container was in close proximity to the face or hands. And he said that causing a practical explosion with the contents in the metal tin would be problematic. He also examined the contents of the box found at the back of the defendant’s vehicle and it would appear that similar contents like charcoal, sulphur and potassium nitrate was found, and they would provide ingredients for manufacturing an explosive substance, he said.

In the subsequent video-recorded interview, the defendant fully confessed to the police and he also mentioned that he had learned to make explosives from the internet and also from a friend who they were discussing it together. And he also openly confessed to the police that he intended to place the explosive under the victim’s car, but he had not figured how to detonate it.

Now, these are very serious charges that the defendant faces and the maximum sentence ranges from between 10 years to 20 years. I have had the benefit of reading the various letters submitted on the defendant’s behalf and in mitigation by people who knew him. I have no doubt from all these letters from his relatives, his former teacher, his family, classmates and friends, that the defendant is a nice person, a helpful and conscientious young man, and that the family of the defendant is a very decent and loving family. And I have no doubt from the probation officer’s background report also that the defendant was very close even to his grandparents whom he visited very regularly and was around at the time of these offences devastated by the passing of his grandmother. So, under these circumstances, in view of the fact that he probably, as the probation officer said, felt betrayed by his ex-girlfriend, he then chose this foolish way of acting out.

The defendant has expressed deep remorse for he now knows that what he had done was stupid and has caused a lot of trouble not only to himself but to his family. And hopefully now with the help of the prison pastor who also speaks of his confidence in the defendant being able to move on from this very tragic episode that the defendant will now be able to put this behind him and become a person that he used to be, a person with good civic conscience and helpful to his family.

Now, this is a very difficult case to sentence because I have to make sure that society, Hong Kong society, is protected from people who play or is tempted to make explosives. Because of the close proximity of people living with each other, it is very dangerous and the consequences can be difficult to imagine. On the other hand, I have a young man here who realises that what he did was wrong and is remorseful and he was acting out of character on this occasion.

Now, all the cases submitted are really not on point because I think each of these cases has to be looked at with its own facts. As Mr Leung for the defence said, without the defendant’s confession, he may not have faced the serious charges of count 3 and 4 for making explosives with intent. So, I am absolutely persuaded that the defendant is truly remorseful. So, I will in considering sentence temper justice with mercy in this case.

Taking into account what I have said already, I feel that a short time in prison will do the defendant a lot more good than if he is given a longer sentence.

So, on the 1st count of criminal damage, I would use a starting point of 12 months and reduce it to 8 months because of his plea. Similarly, on the 2nd count, I would also use a starting point of 12 months and reduce it to 8 months.

Now, on count 3, which is very serious because it is charged that he had intent to endanger life or property, I do take into account the fact that he would not have been charged under this more serious offence had he not fully confessed to the police.

I am also grateful on this charge to the second further opinion of Mr Roberts who clarified what he meant by when he mentioned a practical explosion and that he said that the energy released in this poorly manufactured and small amount of homemade explosives would have been highly unlikely to be capable of causing any effects such as pushing or fracturing. And so, really, he says, this type of device would have limited effect.

So, he was asked specifically to comment whether this explosive device in the metal tin would cause vehicle damage if placed underneath that vehicle and Mr Roberts had actually done a small test and said that this type of poorly manufactured homemade explosive, even if confined, would not inflict any significant and it is unlikely that this small quantity and type of poorly manufactured homemade explosive, even if confined, would inflict any significant damage on the underside of a vehicle unless placed near a very vulnerable component.

So, having taken all this into consideration, I determined that, therefore, a starting point of 2 years’ imprisonment would be imposed on count 3, reducing it to 16 months because of the plea. And, similarly, on the 4th count, I would also impose 2 years reduced to 16 months.

Now, I have to consider the totality principle. So what I am going to do is the defendant will be sentenced to 8 months on Count 1. On Count 2, the 8 months, 4 months will be served consecutive to Count 1 and 4 months concurrent. And then on the 3rd count, the 16 months will be consecutive to the 1st and 2nd counts. And the 4th count of 16 months, 4 months will be consecutive to Counts 1, 2 and 3. So that gives us 32 months.

So the defendant will go to prison for 2 years and 8 months.