HKSAR v. Wong Kai Hin

DCCC 13/2021

[2021] HKDC 1035

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 13 OF 2021

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REASONS FOR SENTENCE

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1.The defendant faces 3 charges, namely (i)  2 charges of possession of explosive substance contrary to section 55(1)  of the Crimes Ordinance, Cap 200 (Charges 1 and 2)  and (ii)  1 charge of possession of dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134 (Charge 3).

2.The defendant pleaded guilty to Charge 1.  The prosecution has agreed to leave the two other charges on file, not to be proceeded with without the leave of court.

Admitted Facts

3.On 14 January 2020, the police conducted an operation targeting a suspected bomb-making group at 1/F, Lee Man Building, 104-116 Tung Choi Street, Mongkok, Hong Kong.

4.At about 13:13 hours on the same day, the defendant and 2 other persons left Flat B, 1/F, Lee Man Building (the Premises).

5.At about 13:15 hours, the defendant and 2 other persons were intercepted near the junction of Tung Choi Street and Fife Street.  The defendant acted furtively upon interception.  Upon search, 3 keys, an iPhone and other items were found on the defendant.

6.At about 13:34 hours, police officers broke into the Premises with the defendant. The Premises was partitioned into 3 rooms (Rooms A-C).  Room A of the Premises (Room A)  could be opened with one of the keys found on the defendant.

7.A house search was conducted at Room A at about 15:21 hours.  There was a living room and a bedroom inside Room A.  Upon search, the following items were found in Room A (in the areas depicted in a sketch attached as Annex A):-

(a)  Suspected cannabis in herbal form (item 2), found on the computer desk in the living room;

(b)  A suspected pipe bomb (item 51), found inside a resealable bag in a plastic box under the bed in the living room;

(c)  A large amount of matches (items 63-64)  and match heads (items 65-67), found under a desk in the living room;

(d)  Gear commonly possessed by protestors, including helmets, respirators and gloves; and

(e)  Other items including flak jackets, a bag of charcoal, 4 empty glass bottles, a can of acetone, a bottle of alcohol and a blender containing chilli pepper powder.

8.At about 17:00 hours, the defendant was arrested.  Under caution, he remained silent.

9.At about 21:28 hours, bomb disposal officer Mr Suryanto Chin Chiu arrived at the scene.  The subject floor, 1/F of Lee Man Building was vacated.

10.The pipe bomb (item 51)  is a metal pipe measuring approximately 20 cm in length and 5 cm in diameter.  Both ends of the metal tube were sealed with internal screwed caps with a white rope sticking out of one end.  One end was fitted with an intact metal screw end cap and one end was fitted with a metal screw front cap with a small hole and a white rope, suspected fuse, sticking out from inside the metal pipe.  Some dried glue was on the surface of the hole.

11.Mr Suryanto dismantled the pipe bomb into three pieces and some black substances weighing approximately 40 grammes was found inside the metal pipe, which are deflagrating explosive.

12.At about 23:59 hours, Mr Suryanto checked around the scene after the pipe bomb was detonated.  The metal door of the elevator was found damaged with a hole caused by the end cap of the pipe bomb.

13.Government Chemist, Mr Ho Siu Hong found that the Cannabis in herbal form (item 2)  contained 2.98 grammes of cannabis, in herbal form.

14.A sample of solid seized from the detonated pipe bomb (item 51)  was found to contain about 3.3 grammes of a mixture containing about 45% weight/weight of potassium chlorate, 9% weight/weight of Sulphur and 16% weight/weight of charcoal.

15.Trace amounts of potassium chlorate, Sulphur and charcoal were found from the segment of rope seized from the detonated pipe bomb.

16.Item 67 was found to be one bottle of solid mixture containing potassium chlorate, Sulphur and wood fragment.  Items 65-66 were found to be one bottle of a total of 29 pieces of broken match heads containing potassium chlorate, Sulphur and wood fragment and one bottle of a total of 15 pieces of broken match heads containing potassium chlorate, Sulphur and wood fragment.

17.The can of acetone was found to contain about 3360 millilitres of organic mixture containing acetone.  Acetone is a flammable organic solvent, which is a common constituent in paint thinner mixture.

18.The bottle of alcohol was found to contain about 2,260 millilitres of liquid containing mainly isopropyl alcohol.  Isopropyl alcohol is a flammable organic solvent, which is commonly found in household and personal care products such as rubbing alcohol.

19.The blender containing chilli pepper powder was found to contain about 21 grammes of orange red powdery solid containing capsaicin and dihydrocapsaicin.  Capsaicin and dihydrocapsaicin are natural compounds present in chilli peppers and they could elicit a burning sensation when contacted with soft mucosal tissues.

20.The pipe bomb is a homemade explosive device.  The metal pipe with both ends sealed with crew caps serve as confinement to the deflagration of the explosive.  The white rope soaked with deflagrating explosive is a homemade safety fuse to the explosive device.  The function of the rope is to provide a time gap between the ignition of the safety fuse and ignition of the deflagrating explosive inside the metal pipe.  Once the safety fuse is ignited, it will burn along the rope to the inner part of the metal pipe, igniting the deflagrating explosive, thereby building up pressure inside.  Deflagrating explosive causes the rapid combustion accompanied by flame and does not require atmospheric air to burn in a steady state nor need confinement.  However, to deflagrate rather than to merely burn, they require a degree of confinement.  The confinement of the metal pipe will withhold the built-up pressure until the pressure is so great that the metal pipe would burst.  This process is an explosion.

21.Mr Suryanto opines that the pipe bomb would create heat and fragmentation.  The effect of heat would have been largely restricted to close proximity to the seat of explosion radiated approximately up to 1 metre from the seat of explosion.  The actual damage will vary based on the physical and geographical factors at the time of explosion.  The fragmentation would range up to 50 metres from the seat of explosion, potentially leading to death or serious injury.

22.Mr Suryanto opines that the match head substances are commonly known as the source of deflagration explosive.  The match heads cutaway (Items 65-66)  could not effectively deflagrate due to the presence of the wood in the middle of the cutaway.  On the other hand, the 26 grammes of match head substance separated from the wooden stick (item 67)  is therefore more refined as deflagrating explosive.

23.The defendant’s DNA was found on various items in Room A, including:-

(a)  Two cups placed on the laundry machine in the living room;

(b)  Two brushes in the toilet;

(c)  A pair of glasses with its box placed on the computer desk, where the Cannabis in herbal form (item 2)  was found;

(d)  The keyboard and mouse placed on the computer desk, where the Cannabis in herbal form (item 2)  was found;

(e)  The resealable plastic bag containing the pipe bomb (item 51);

(f)  A shaver on the desk, next to where the match heads (item 65-67)  were found.

24.No fingerprint mark of any value was found.

25.On 14 January 2020 in Room A, without lawful excuse, the defendant had in his possession or custody or under his control explosive substance, namely the pipe bomb.

The Defendant’s Background

26.The defendant is now 22 years old.  He was a part time tutor prior to his arrest.  A number of letters have been submitted on his behalf.  Basically, these letters say that the defendant is a hardworking and kind hearted person.

27.The defendant was 21 years old at the time of the offence.  He is single.  He had a clear record.

28.The defendant was born in Hong Kong and educated up to tertiary level.  He obtained his Bachelor Degree in Creative and Interactive Media Production from the Community College of the City University of Hong Kong (now known as UOW College Hong Kong)  in 2019.  He has a strong interest in creative media and is determined to pursue it further.  Upon graduation, he worked as a part time tutor to earn and save money for further studies.

29.His father is a retired civil servant whilst his mother and two elder sisters are all gainfully employed.  The defendant has very strong ties with his family, who has given him support throughout the present proceedings.  The defendant also has a very close bond with his paternal grandmother, who is aged 90 and wheelchair bound.

Mitigation

30.Counsel submitted that the defendant has demonstrated genuine remorse by indicating his guilty plea at the very first opportunity.  The defendant has been remanded in custody for one and a half years, during which he has reflected on his serious misbehavior.  He has expressed his remorse in his mitigation letter.  He repents his foolish acts and is deeply concerned for his family, in particular, his paternal grandmother whose health is deteriorating.  He regretted letting his loved ones down and asks the court for leniency, so that he can make a fresh start and contribute to society.

31.A letter from District Councillor, Ms Wu Sui Shan, Suzanne was also submitted.  She mentioned that the defendant has repeatedly expressed his remorse and guilt during their conversations since his remand.

32.Counsel also submitted that the defendant was of positive good character.  I have received testimonials concerning the character of the defendant from his former employers, his father, his elder sister and long standing friends. There is also a letter from the Friends of Scouting Jockey Club Kai Yip Service Centre for Children and Youth which informed the court of the volunteer work that the defendant has done for the homeless, the disabled and ethnic minorities since he was a secondary student.

Discussion

33.The defendant has pleaded guilty to a charge under section 55(1)  of the Crimes Ordinance, Cap 200.  This is a very serious offence, the maximum penalty for which is 14 years’ imprisonment.  There are no sentencing guidelines or tariffs for this offence; each case depends on its own facts.

34.In HKSAR v Chan Yiu Shing [2018] 1 HKLRD 421, the Honourable Mr Justice Zervos (as he then was)  stated at paragraphs 1-3:-

“1. In a time where there is heightened concern both domestically and internationally about the safety of the general public by indiscriminate acts of violence, sentences must be imposed for offending of this nature to reflect the gravity and seriousness of the criminality disclosed. Offences for the possession or making of explosive substances fall within this category, and will normally demand the imposition of a custodial sentence that acts as both a specific and general deterrent. As is always the case, when passing sentence, the Court’s preoccupation is with the facts and circumstances of the offence and of the offender as considered and evaluated by the application of relevant sentencing guidelines and principles. Offences will vary greatly but it needs to be appreciated that persons involved in researching or making explosive substances are likely to face severe punishment.

2. As noted by the Court of Appeal of England and Wales in R v Marcin Kasprzak [2014] 1 Cr App R (S)  20 (p.115), at p.119:

[15] In our judgment, at a time when information about how to obtain ingredients for the making of explosives, as well as the instructions themselves, are so readily available on the internet, deterrence must play a significant part in the sentencing process.

3. I should also add that this is at a time when the substances and materials for improvised explosives are readily available and generally found in commercial or household items.”

35.As was rightly pointed out by counsel, this offence was committed during a time of public order events which posed potential threats to public safety.  In HKSAR v Lo Chun Hei DCCC 909/2019, His Honour, Judge Casewell pointed out that the court must consider the timing of these offences as part of the sentencing exercise:-

“17. The first issue that must be made clear is the timing of these offences. The offence occurred in August 2019 and can be seen against the background of what the Final Court of Appeal in the case of Final Court of Appeal 6/2020 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.”

The Court of Appeal also expressed similar sentiments in Secretary for Justice v Chan Yip Wan [2021] HKCA 794, CAAR 5/2021 and 律政司司長 訴 CWC [2021] HKCA 166, CAAR 12/2020.

36.In Chan Yip Wan, the Court of Appeal said at paragraph 45:-

“It is important to consider the gravity of the two offences [criminal damage and possession of things with intent to damage property] committed by the respondent in context, i.e. with a backdrop of a riotous unrest in Wanchai, and not in isolation”.

37.In CWC, the Court of Appeal emphasised at paragraph 50 that the following factors ought to be considered, amongst others, in sentencing:-

“50. 本案情節嚴重…

(一) 保護公眾：為避免因汽油彈而造成的傷害，判刑應側重於保護社會大眾而非犯案者的更生；尤其是當大規模的示威和動亂事件日增。

(二) 加諸懲罰：縱火威脅市民大眾的生命和財產，判刑應與罪行的嚴重性相稱；”

38.There are very few cases in Hong Kong in respect of pipe bombs.  In HKSAR v Lui Fui CACC 237/2007, [2008] 3 HKU 218, the defendant pleaded guilty to one count of possession of ammunition without a licence and was sentenced to 33 months’ imprisonment.  Police raided the defendant’s premises and he was found to possess a grenade, two pistols and an airgun.  The grenade contained explosive substance but the other items were just toy guns.  The applicant claimed that these items were given to him by a group of war games players and the grenade was intended for war games purposes only.  However, he admitted that he knew that the grenade contained explosive substance and he had wrapped it carefully to reduce the risk of explosion.  An expert testified that it was a stun grenade from the Mainland designed by the military for law enforcement purpose.  The judge took the view that the defendant, by his possession of the grenade, had created a situation of grave risk to the community, as it could fall into the wrong hands and be used for illegal purposes.  The defendant had 8 previous convictions, none of which was similar.  On appeal against sentence, the applicant argued that the judge erred in rejecting his explanation that the grenade was for fun and for war game only and the judge had failed to consider that he had taken measures to avoid the risk of an explosion.  It was submitted that a non-custodial sentence was appropriate on the facts of the case.

39.Dismissing the appeal, the Court of Appeal held that:-

(a)  The maximum sentence for the offence of possession of arms or ammunition without a licence was 14 years’ imprisonment. There could be varying degrees of seriousness, depending on the facts of each case, and therefore a tariff sentence for such offence was not feasible. At the top of the scale was possession for illegal purposes, such as robbery, injuries to persons or damages to properties, whereas possession as a hobby with no risks of the firearms or ammunition being used for any illegal purpose or posing any threat to the public would bring the case to the lower end of the scale;

(b)  In view of the nature of the grenade and the expert’s evidence, the judge was perfectly entitled to reject the suggestion that the grenade was for fun when it was capable of causing serious injuries and when the defendant was unable to provide the name and contact means of any of his alleged war game players: R v Hirai Hirotsugu (HCCC 30/1995, unreported)  distinguished;

(c)  There was no evidence to suggest that the defendant had intended to use the grenade for any illegal purpose, and the judge did not sentence him on that basis;

(d)  The judge was entitled to take the view that what the defendant did posed a real threat to the public. On the facts as found by the judge particularly the nature of the grenade, and bearing in mind also the applicant’s criminal record, neither the 4½ year starting point adopted by the judge nor the ultimate sentence of 33 months’ imprisonment was manifestly excessive.

40.In the recent case of HKSAR v Lo Kwok Wah DCCC 21/2019; [2021] HKDC 810 this court had to consider the sentence for another case involving one single charge of possession of an explosive substance.  The explosive substance was also a pipe bomb.  The defendant pleaded guilty to one charge of possession of an explosive substance.  He was seen with 3 other people in Man Yee Reservoir in the early hours of the morning.  The police heard a loud bang and saw smoke rising up.  The defendant and his friends were intercepted by the police.  A pipe bomb was found in the defendant’s waist bag.  In the light of the timing of the offence, the expert evidence as to the strength of the pipe bomb and the mitigation put forward on the defendant’s behalf, this court adopted a starting point of 5 years which was reduced to 40 months for the defendant’s guilty plea.

41.Counsel submitted that the facts of the present case are very similar to those in Lo Kwok Wah and invited the court to adopt a similar approach.

42.There are in fact marked differences between the facts of the present case and those in Lui Fui and Lo Kwok Wah:-

(1)  The pipe bomb in the present case was a homemade device whereas the grenade in Lui Fui was a military grenade made in the Mainland. Such homemade devices are notoriously unstable;

(2)  In Lo Kwok Wah, the defendant was found in possession of the pipe bomb in a deserted area in the early hours of the morning. There was no evidence as to where the pipe bomb was usually kept. In the present case, the pipe bomb was kept in a partitioned room in Mongkok, one of the busiest and most densely populated areas in Hong Kong. Only the most needy and vulnerable members of our society live in these partitioned rooms. The pipe bomb was also kept in the same premises with other highly flammable substances. In the event of an accident, these other occupants may be seriously injured or killed;

(3)  In Lo Kwok Wah, there was no evidence as to who made the pipe bomb. In the present case, it was the prosecution’s case that the explosive substances were scraped off from the match heads and used to make pipe bombs. Not only was the defendant’s DNA found on the resealable plastic bag containing the pipe bomb, it was also found on a razor blade where the match heads were found. However, the defendant has not been charged with manufacturing the bomb and the court will not sentence him on that basis.

(4)  There is no direct evidence as to what the defendant intended to do with the pipe bomb. However, as explained in Chan Yiu Shing (supra):

“…there is no reason for D1 to have had the explosive substances other than for some untoward purpose.”

(5)  Further, in addition to the explosive substances, items commonly used by protestors at the time were found inside the premises, including 1 black combat helmet; 3 pairs of brown gloves; 1 can of thinner; 1 white helmet; 2 filtering respirators; 2 pairs of dark grey sleeves; 2 pairs of black gloves; 2 black raincoats;, 1 black backpack; I pair of goggles; 1 black jacket; 2 pairs of black trousers; 1 pair of 3M gloves, 1 black neck warmer; 1 pair of black shoe-covers; 4 lighter fuel refills; 1 black and silver coloured bicycle helmet; 1 pair of grey gloves; 1 black cooling sleeve; 1 black hood; 1 black short sleeved top, 1 box of disposable gloves, 3 funnels; 1 can of acetone; a bottle of alcohol; 2 black waist bags; 81 bottles of saline solution; 7 V vendetta masks; 13 lighters. In addition, there were 5 bullet proof vests and a blender with chili powder inside.

(6)  In the light of the timing of the offence and the items found, there is a very high probability that the pipe bomb would be used in public events;

(7)  The pipe bomb in the present case is also much more powerful than the pipe bombs in Lui Fui and Lo Kwok Wah. In Lui Fui, the expert stated that the pipe bomb would cause an explosion in the form of a loud bang and a bright flash simulating an explosion. The heat generated by the bomb upon explosion would cause burning up to a range of 0.5 metres and the blast would cause temporary disorientation to anyone within 2 to 3 metres in a confined space and deafness for several minutes. The fragments produced would be plastic casing, which could cause minor injuries at close range. In Lo Kwok Wah, the expert opined that the heat generated upon detonation would be confined to a radius of 1 metre, which could cause injury and damage to property. However, the fragmentation had a range of 10 metres and could cause serious injury or death. The pipe bomb in the present case could generate heat up to a radius of 1 metre from the seat of explosion. The fragmentation of the metal casing had a range of up to 50 metres, potentially leading to death or serious injury. According to the expert report, the pipe bomb was detonated at the premises. The metal door of the elevator was found damaged with a hole caused by the end cap of the pipe bomb. If this pipe bomb were used in a public event, it is likely to cause serious injury or death to many people, including the police, firemen, reporters, medical volunteers, pedestrians and other protestors. This pipe bomb clearly posed a threat to the safety of the general public;

43.The court understands that the defendant was only 21 years old at the time of the offence and had a clear record.  However, he does not come within the definition of extreme youth.  A bundle of letters in mitigation has been submitted to the court.  They invariably described the defendant as a kind hearted, filial person and responsible and caring teacher.  Both counsel and a district councillor stated that the defendant is truly remorseful.

44.The general principles in sentencing of juvenile offenders are set out in Secretary for Justice v SWS [2020] HKCA 788:-

“G. Discussion

G1. General principles in sentencing of juvenile offenders

45. Section 11(2)  of the Juvenile Offenders Ordinance provides that no young person, i.e. a person who is, in the opinion of the Court having cognizance of any case in relation to such person, 14 years of age or upwards and under the age of 16 years, shall be sentenced to imprisonment if such young person can be suitably dealt with in any other way. In other words, imprisonment is the last resort for sentencing young persons…

46. …

47. In sentencing, the Court is required to consider all applicable sentencing factors and give appropriate weight before deciding a commensurate sentence: see paragraph 108 in Wong Chi Fung (Court of Appeal). This principle is similarly applicable to the sentence of young persons who have committed serious offences. Generally speaking, the Court’s main consideration are in two folds. On one hand, as a matter of public interest, a sentence passed by the Court in respect of serious offences has to be commensurate with the seriousness of the offences and the circumstances of the case in order to serve the purposes of protection of the public, punishment, open condemnation and deterrence. On the other hand, the young age of an offender is always a mitigating factor: see paragraph 84 of Wong Chi Fung (Court of Final Appeal). This is also a consideration of public interest because rehabilitation and reformation can bring the young person away from crime, which not only caters for his own welfare and future prospect but also benefits the community as a whole. Therefore, even when the offence is serious, the Court in sentencing has to consider the young offender’s circumstances, background, welfare and rehabilitation needs. The Court must carefully balance all relevant sentencing factors and decide what weight to accord to them before deciding an appropriate sentence.

48. In balancing various sentencing factors, as said above, the Court would give young offenders, in particular young people, a chance to rehabilitate as far as practicable. However, this does not mean that the Court focuses only on the youth factor and ignore other sentencing factors because the weight given to the youth factors would vary depending on the serious ness of the crime involved and the circumstances of the offence of each individual case. If, as a matter of public interest, the seriousness of the offence and the circumstances of the case call for a heavy or deterrent sentence, the offender’s young age and personal background would count very little or even pale into insignificance: Re Application for Review of Sentences [1972] HKLR 370, 417; Law Ka Kit, paragraphs 27 and 29, because the need for a punitive or deterrent sentence far outweighs the rehabilitative need of the offender: see Wong [Chun] Cheong, page 22.

49. The above legal principles are basically similar to those stated in the guidelines of the UK Sentencing Council for sentencing children and young people and ‘the Beijing Rules’ (United Nations Standard Minimum Rules for the Administration of Juvenile Justice)….”

45.The defendant was described as a responsible and caring teacher.  The defendant had a pipe bomb in premises with highly flammable substances with total disregard of the safety of others.  There is no dispute that apart from explosive substances, drugs were also found in the premises.  This does not sit well with the description of the defendant in the mitigation letters.  The defendant was 21 years old at the time of the offence.  He does not come within the definition of ‘extreme youth’.  In the light of the seriousness of the offence and the circumstances of the offence, his youth and personal background pales into insignificance.  The court is duty bound to send out a clear message that such offences would not be tolerated and would be visited with heavy sentences. The defendant stated that he was very concerned about his grandmother, who is in her 90s and whose health is deteriorating.  He should have thought about his grandmother before committing an offence.

46.By reason of the matters mentioned above, I adopt a starting point of 6 years and 6 months.  The defendant has pleaded guilty at the first opportunity and is entitled to a full one third discount.  The sentence is reduced to 4 years and 4 months.