HKSAR v. Lo Chun Hei

DCCC 909/2019

[2021] HKDC 292

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 909 OF 2019

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Reasons for Sentence

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1.The defendant, Mr Lo, has pleaded guilty to two charges on this indictment. The 1st charge of possession of explosive substance, contrary to section 55(1) of the Crimes Ordinance, substances being listed as potassium nitrate, sucrose (that is, sugar), sodium bicarbonate and magnesium carbonate. The defendant also pleaded guilty to a 3rd charge, which is under the Crimes Ordinance, section 62(a), possessing things with intent to damage property. Those items are not particularised in the charge but can be found in the agreed facts.

2.The defendant agreed the set of facts put forward by the prosecution, which set out the following, that:  on 1 August of 2019, a search warrant was executed at a premises where the defendant was resident, an un-partitioned premises in Tin Shui Wai. 

3.A search of those premises revealed a number of items.  The first search was conducted in the kitchen, where a number of items were found, particularly exhibits 4 to 7, which contain a total of 30 what are described as improvised devices comprising a paper roll sealed with adhesive tape.  Each sealed paper roll contained pyrotechnic mix, which are defined as explosive substances.  There were also 27 incomplete improvised devices also containing pyrotechnic mixes.  Another description of the pyrotechnic mix will be to describe these items as smoke bombs.  Together with these items, items were also found for the assembling of these improvised devices and a notebook with instructions on how to improvise these devices.

4.A further search of the premises found other matters and these are the items that will be dealt with under Charge 3.

5.In the area of the beds, some 19 beer bottles were found:  16 were empty, 3 had some residues in them.  10 bottles of lighter fluid, five of which were empty.  Five bottles of alcohol.  Some cotton balls, matches, further magnesium powder and potassium chloride.  Also found in that area were helmets and protective gear, cold packs, hammers, plastic pipes, extendable baton, and a knife.

6.The items found, particularly those concerning the bottles of lighter fluid, beer bottles and alcohol, were items from which flammable devices could be constructed.  These could properly be described as petrol bombs or Molotov cocktails.  They form the substance of Charge 3.

7.On arrest and caution, the defendant admitted the items in the kitchen belonged to him; the notebook and the handwriting belonged to him. 

8.There was an examination of the items seized. Samples of the various chemicals were taken.  The conclusions reached can be found in relation to the charges. 

9.As far as the 1st charge is concerned, the analysis showed and the conclusion is that the items discovered were explosive substances, namely solid mixtures of potassium nitrate, sucrose, sodium bicarbonate, magnesium carbonate.  These are substances used or manufactured with a view to producing a practical effect by way of a pyrotechnic effect.  The said explosive substances being placed and sealed inside what is described as exhibit 6 would generate a large amount of smoke when exhibit 6 is ignited at the protruded end of the straw.  It is said that the other incomplete devices would, if completed, have the same purpose.  That means the items that I am concerned with in Charge 1, relating to possession of explosives, are smoke bombs.

10.As far as Charge 3 is concerned, a different matter entirely, this is a charge of possessing things with intent to damage property.  The defendant had under his custody, and he admits this, exhibits 8 to 12.  These items could be used to damage property by setting fire.  It is agreed by the defendant he obtained the same without lawful excuse.  Exhibits 9 and 10 are the flammable devices and they can be used together with exhibit 8, which is the bottles, and exhibit 11, which would be cotton balls inflammable liquid can be poured into exhibit 8 and then ignited and thrown at a surface or object, which will cause damage to the said surface or object by fire.

11.Those are basically the facts that the defendant has admitted to in this case.

12.The defendant himself, Mr Lo, is aged 24 years. He is still a relatively young man.  He has a clear record and he would have been 23 at the time of these offences.  He lives together with his mother and elder sister at a flat in Tin Shui Wai.

13.I have obtained reports about the defendant:  background and psychological reports.  I think a summary of those without disclosing too much personal information, would say the defendant has had a difficult childhood with many family difficulties, but he has surmounted those and since the age of 18 has been employed and most recently employed in a container terminal working in the area of cranes.  There are commendations of his performance and work ethic.

14.Defendant himself has expressed regret for his actions.  He is remorseful and concerned for his family.  He has expressed his remorse in the form of letters and also in the background report.  He does express in the background report that the construction of the smoke bombs was for an experiment and he said he had come a long way towards their production.

15.The psychological report obtained on the defendant contains an assessment of him.  It says that his risk of general and violent re-offending against others is estimated to be low.  He has maintained stable employment and lived with his parents and shows no past tendency towards aggression or inter-personal problems.  There is no need for psychological intervention.

16.I turn to the general approach to sentencing in cases of this nature.

17.The first issue that must be made clear is the timing of these offences.  The offence occurred in August of 2019 and can be seen against the background of what the Final Court of Appeal in the case of Final Court of Appeal 6 of 2020, Kwok Wing Hang & 23 Ors, described as a period of disrupted social order that occurred from 9 June 2019 to 4 October 2019.  I am quoting from the Court of Appeal judgment, where they said over some 400 public order events arising from the Fugitive Offenders Bill were staged and led to significant numbers of outbreaks of violence, public order events taking place in various parts of Hong Kong at frequent intervals weekly involving hundreds and at times thousands of participants. 

18.The Court of Final Appeal goes on to describe the forms of violence that were perpetrated during these demonstrations: damaging private shopping malls, shops and restaurants; looting damaged shops; damaging residential premises, harassing residents; attacking members of the public.  Weapons included high-powered laser pointers, slingshots, sharpened objects, throwing petrol bombs at police vehicles and police stations, damaging and obstructing the operation of critical infrastructure, and it is against that background that these offences had been committed.

19.In respect of the 1st charge, there are no general guideline sentences from the Court of Appeal.  However, an approach to sentence can be seen from a case in the High Court, Chan Yiu Shing & Ors [2018] 1 HKLRD 421.  Some general observations were made in that case about the nature of the 1st charge, the explosive charge.

20.The High Court judgment sets out that offences for the possession or making of explosive substances fall within the category of sentences where sentences must be imposed for offending of this nature must reflect the gravity and seriousness of the criminality disclosed.  They normally demand the imposition of a custodial sentence that acts both as a specific and general deterrent.  The court’s preoccupation in sentencing will be the facts and circumstances of the offence and of the offender as considered and evaluated by an application of the relevant sentencing guidelines. Offences will vary greatly but it needs to be appreciated that persons involved in researching or making explosive substances are likely to face severe punishments.  It is noted that the offences of possession or making an explosive substance are contained in section 55(1) of the Crimes Ordinance, Cap 200.  In relation to offences, the maximum penalty on conviction upon indictment can be a term of up to 14 years’ imprisonment.

21.In that case, the court dealt with in Count 1 a conspiracy count, where it is said by the court that the two defendants convicted had conspired together to make explosive substances which were particularised in Count 1 as “a mixture of nitrate salts capable of producing a pyrotechnic effect”. The generic description of the explosive substances is smoke bombs.  That again is the generic description of the explosive substances that I am dealing with in the facts of this case.

22.The final outcome of that case, after consideration of a number of similar cases in Hong Kong, was that in Count 1, conspiracy to make a mixture of nitrate salts capable of producing a pyrotechnic effect, a starting point of 2 years’ imprisonment was adopted by the court.

23.In respect of the 3rd charge, to which the defendant pleaded guilty, the possession of things with intent to damage property, what is alleged and agreed here in the facts is possession of things from which flammable devices can be made:  simply stated, petrol bombs. 

24.Again, there is no guideline sentence for possession of these items.  The Court of Appeal has looked at cases where petrol bombs have been used in demonstrations and have been ignited or attempted to be ignited.  In that case, they are charged as arson offences or attempted arson offences where there is an attempt to endanger life and can carry, on conviction, a life sentence. 

25.In HKSAR v Yiu Siu Hong [2020] HKCA 1087, the Court of Appeal observed, “From an overview of these cases in the District Court, it seems that a starting point of about 5 years has been adopted”. Sentences can range up to 6 years. 

26.However, I do note in sentencing this defendant that the charge in this case is a different charge entirely, under Charge 62(a) of the Crimes Ordinance, Cap 200, and the allegation in this case is these items were possessed with the intent to use the thing to damage property belonging to some other person.  This charge is different in that it alleges an intent to damage property, a less serious iteration of the possession of such items than the arson charges, which the Court of Appeal has dealt with. 

27.There again is again no authority relevant to the possession of such items under section 62(a) of Cap 200.  However, an examination of comparable sentences in this court have ranged between 3 to 4½ years’ imprisonment as a starting point.

28.I bear in mind all those factors when passing sentence on this defendant.

29.In determining the starting point for sentences on both the 1st and the 3rd charge, I bear in mind the quantities of explosive materials and flammable materials found by the investigating officers when they conducted searches at the defendant’s premises on 1 August 2019.  I also note the number of potential inflammable petrol device objects that could be constructed in relation to Charge 3.  These charges, as set out in the authorities I have already referred to, require deterrent sentences, where the personal or individual factors of the defendant are less relevant. Furthermore, their possession at a time of violent civil disorder is also an aggravating factor, as these items would have represented a clear escalation of such disorder at that time.

30.Balanced against this is the fact that a large number of the devices in Charge 1 remained to be assembled and that the devices themselves are purely designed to produce smoke.  Also, in Charge 3, the items themselves were not assembled and were possessed in the home of the defendant. They were not deployed on the street or at a place of disorder, although they may have been the end use intended for these items.

31.I also bear in mind the defendant’s clear record, the fact he has shown remorse, his low likelihood of re-offending, and the fact he has no tendency to use aggression to solve interpersonal problems and he has generally positive reports.

32.Taking all those factors into consideration, I will adopt the following starting points for sentence on these charges.

33.On Charge 1, I will adopt a starting point which reflects the items’ seriousness.  That will be a starting point of 24 months’ imprisonment.  This will be reduced to 16 months’ imprisonment, having regard to the defendant’s plea of guilty.

34.Again, on Charge 3, I will adopt a starting point for sentence that reflects the seriousness of the offences and the necessity for a deterrent sentence.  The starting point for sentence will be 45 months’ imprisonment.  That will be reduced to 30 months’ imprisonment for the defendant’s plea of guilty.

35.I must now determine what the overall total sentence to be imposed must be.

36.These items were all found in the same place and at the same time.  However, they constitute separate offences and so they can be served, if necessary, consecutively.  To order a consecutive sentence -- consecutive serving these sentences would, in my view, lead to a sentence that would be excessive in this case, so I must consider what element of these should be served consecutively and concurrently. 

37.I do bear in mind when making this determination that the possession of two items together may well have a multiplication effect involved in the use and production of different types of explosive and inflammatory devices. 

38.I have determined that an overall sentence of 38 months’ imprisonment should be imposed for these two offences.  I will achieve that by ordering that 8 months of Charge 1 be served consecutively to Charge 3 and the balance concurrently.