HKSAR v. Lo Yat Sun Louis

CACC 110/2021

[2022] HKCA 553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 110 OF 2021

(ON APPEAL FROM HCCC NO 318 OF 2020)

__________________________

__________________________

Before:  Hon M Poon JA in Chambers

Date of Judgment:  25 April 2022

_________________

J U D G M E N T

_________________

Introduction

1.The applicant was convicted on his own plea of a single count of keeping explosive substance (namely, triacetone triperoxide, “TATP”) with intent to endanger life or property, contrary to section 54(b) of the Crimes Ordinance, Cap 200. On 23 April 2021, he was sentenced by Andrew Chan J (“the Judge”) to 12 years’ imprisonment.

2.By way of a Notice of application for leave to appeal (Form XI) filed on 21 May 2021, the applicant seeks leave to appeal against his sentence. There is no objection from the applicant and the respondent to the application being determined on the papers without a formal hearing.

Facts admitted by the applicant

3.On 19 July 2019 the applicant was intercepted by police officers outside Flat D, 20/F, Lung Shing Factory Building, Tsuen Wan (“the Premises”). Approximately 1,000 grammes of homemade TATP capable of detonation by heat, friction or impact was found at various locations inside the Premises.

4.Raw materials and equipment for making more TATP, 10 bottles of petrol bomb, slingshots with metal projectile, knives, protective gears and political pamphlets in the theme of the social unrest in Hong Kong since June 2019 were also found in the Premises.

5.The Premises were rented by the applicant through a friend. The applicant attended the Premises either alone or with other persons on 24 occasions. In the 9 days prior to his arrest, he attended the Premises alone. He was seen to carry items in and out of the Premises on various occasions.

6.Further search of the applicant’s residence uncovered more offensive weapons, books and political leaflets advocating “Hong Kong Independence” and “Secession and Subversion of Country”. Examination of the applicant’s mobile telephone revealed two documents which set out the properties of various explosives and the procedures in making and detonation of explosives of various degree of lethality and ignitability. The first document was said to be intended for terrorists.

Mitigation

7.The applicant, a 29 year-old at the time of sentence, has a clear record. He was a human resources officer in a logistic company and was living with his father and two younger sisters prior to his arrest.

8.Defence counsel submitted that there was no evidence to suggest that the applicant played a leading role or to show any concrete plot as to how and when the explosives were to be used. It was urged that the applicant was no more than a subordinate of a syndicate and a mere keeper of the explosives.

9.Counsel sought to distinguish the present case from the authority of HKSAR v Yip Kai Foon[1] in that Yip was a notorious criminal with a string of previous convictions of utmost serious crimes and one of the charges he faced was possession of 2,000 grammes of TNT. Counsel relied on an article published in a Journal Study in 2014 (Shockwave 2014) to submit that TNT was a more powerful explosive than TATP. Absent the multiple aggravating factors present in Yip’s case, counsel urged the judge to adopt a starting point of 12 years’ imprisonment.

Reasons for Sentence

10.The judge found the criminality of making explosives and keeping explosives has no significant difference in the present case. In giving his reasons[2]:

“Although the defendant was not charged with making bombs, he was in effect keeping the explosive in the course of its being made or after its being made with the intention of using them to inflict injuries to human life and/or causing damages to property.

In terms of criminality, I do not see any difference between the two scenarios in the present case. The same evils are there. The maximum sentence for this offence and indeed the other offence are the same, namely one of 20 years’ imprisonment.”

11.The judge found, from the facts admitted, that the applicant was indeed the mastermind behind the operation[3]. His intention was to subvert the existing Government and to advocate the independence of Hong Kong[4]. The judge viewed the applicant’s actions came close to declaring war on society[5] and that the potential risk and harm posed to the general public and the police is, if not more, as serious as the circumstances of Yip’s case[6].

12.Thus, a starting point of 18 years’ imprisonment was adopted and the judge sentenced the applicant to 12 years’ imprisonment giving him full credit for his timely plea.

Ground of appeal

13.The sole ground of appeal advanced by Mr David Ma, counsel for the applicant, is that the starting point of 18 years’ imprisonment is manifestly excessive. He submitted that the judge erred in:

(1)  treating the criminality of making and keeping explosives as the same;

(2)  concluding the applicant was the mastermind; and

(3)  finding that the applicant’s culpability was akin to Yip Kai Foon.

14.Mr Ma drew analogy from dangerous drugs case where the courts have always viewed that the manufacturer as having higher criminality that of a trafficker or someone in possession. Mr Ma’s successor, Mr Mughal, further submitted that, absent any direct evidence that the applicant took part in the making of the explosives, the judge erred in sentencing the applicant on the basis as if he was making or in the course of preparing explosives.

15.Mr Mughal also suggested that the fact that the prosecution’s acceptance of a plea to “keeping” explosives by the applicant was indicative of a distinction between the two offences.

16.It was also submitted that the facts admitted by the applicant, taken at their highest, could only demonstrate his knowledge and involvement but not the actual degree of his involvement. The political leaflets found at most demonstrated the applicant’s political views. None of these, taken together, could show any plan or plots of how the explosives were to be used, nor the exact role played by the applicant. The judge was wrong to sentence the applicant on the basis that he was the mastermind to the operation.

17.Mr Mughal contended that the judge was not justified in saying that the applicant’s culpability was comparable to Yip Kai Foon, there being no factual basis to find that the applicant was “going after” the Hong Kong Government. Although paraphernalia relating to the political events occurred in 2019 was found in the applicant’s possession, there was no direct evidence suggesting that the applicant intended to use explosives for injuring people. Thus, the judge erred in determining the applicant’s culpability against the backdrop of the social unrest.

18.Mr Mughal further supplemented his argument by saying that the judge, in adopting the same 18 years starting point as Yip’s case, equated the severity and the potential harm brought by 1 kilogram of TATP to that of 2 kilograms of TNT (the amount of explosives possessed by Yip Kai Foon) in the absence of any sufficient basis.

Respondent’s submissions

19.Mr Ivan Cheung for the respondent in reply submitted that the judge had rightly taken into consideration the key factors in sentencing for the present offence, namely, role of the offender, the qualities and quantities of the explosives, and the actual harm or potential harm that the explosives could cause. “Making” or “keeping” are merely means to the same end evil, to endanger lives and properties. Therefore, the actual and potential harm caused or to be caused by the explosives should be a major factor to be considered in sentencing.

20.It was submitted that the facts of the case clearly support the view that the applicant was not just a keeper watching over the explosives, or else, he would not have possessed materials in his mobile telephone relating to other explosives. Mr Cheung submitted that the judge was entitled to find that there is no real difference between the two scenarios (making vs keeping) in terms of criminality in the present case.

21.Furthermore, Mr Cheung contended that the facts admitted by the applicant entitled the judge to find that the applicant was a mastermind behind the operation, and the concept of a keeper and a mastermind are not necessarily mutually exclusive. It was clear from the facts that the applicant was actively involved.

22.The judge focused on the harm and/or the potential harm of the explosives that could bring to the society when he compared the applicant’s criminality to that of Yip. He found that TATP to be more dangerous than TNT by its higher sensitivity and instability causing them to be easily detonated, which posed a much greater potential harm to both the general public and police officers. The judge also took into account the applicant’s intent to subvert the government especially under the social unrest events occurred during 2019. With all these aggravating features, Mr Cheung submitted that the judge was correct in saying that the present case was at the most serious band of the sentencing spectrum and that the court would be failing its duty to the public if it does not impose heavy deterrent sentence in the circumstances such as the present case.

Discussion

23.Section 54(b) provides that:

“54. Any person who unlawfully and maliciously-

(a) …

(b) makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property,

… shall be liable on conviction upon indictment to imprisonment for 20 years, and the explosive substance shall be forfeited.”

24.The authority of HKSAR v Wong Fung Kei[7] cited by the applicant dealt with another section in the Crimes Ordinance, namely, section 55(1), “possession of an explosive substance” simpliciter.  It can be seen from the first paragraph of that judgment that:

“…He was acquitted by the jury on the same indictment of the more serious alternative charge of possessing an explosive substance with intent to endanger life or property, contrary to section 54(b) of the Crimes Ordinance.”

25.It is worth noting that the statutory maximum for the offence of possession simpliciter is 14 years’ imprisonment, as opposed to the 20 years for the more serious charge. The Court of Appeal in Wong’s case dismissed the appeal against a sentence of 12 years after trial.

26.That said, it is clear that the gravamen of the section 54(b) offence, whether it be “making” or “keeping”, is the intent to endanger life and property. When the intent is there, it matters not whether an accused participated physically in the making of the explosives or was found to be in possession of such. Contrary to the written submission by Mr Ma[8] that “there is no evidence to suggest that the Applicant intended to use the explosive for the purpose of injuring people”, the applicant, by pleading guilty to the section 54(b) charge, has admitted that the explosive substances kept inside the Premises were so intended.

27.The analogy made by counsel for the applicant with the dangerous drugs offences is inappropriate. The gravamen of drug related offences is in the act rather than the intent, hence the distinction between the manufacturer and the trafficker.

28.With the emphasis on the intent, the actual and potential harm caused or to be caused by the explosives should be a major factor to be considered by a court in sentencing. An expert report from a Specialist Senior Superintendent refuting the Journal Study submitted by defence counsel as not reflective of a real-world situation was produced by the prosecution at the request of the judge. The judge further had the benefit of viewing the video capturing the on-site detonation showing the extent of explosion. He was entitled to come to the view that the TATP seized were high explosives which had the capacity to inflict very serious damage to life and property and such damage or injury was intended by the applicant.

29.Turning to the role of the applicant, it is useful to quote the relevant passage in the summary of facts:

“24. CCTV of the lift of Lung Shing Factory Building showed that between 20 June 2019 and 19 July 2019 (i.e., a month before D was arrested), D went to the premises and stayed for durations for a total of 24 days. Out of those 24 days, D went alone to the premises on 14 days. For the other 10 days, he went to the premises together with other persons. Since 10 July 2019, only D attended the premises. He last attended the premises on 17 July 2019 when he left at around 1529 hours that day. On various occasions, D was seen to be carrying bags of items into and out of the premises although the contents inside could not be seen.”

30.Mr Mughal sought to argue that “the fact that the applicant had taken out the lease of the Flat and had been visiting the Flat frequently could only demonstrate his knowledge and involvement in the scheme/operation, but not the actual degree of involvement therein”[9]. This argument is untenable given the existence of the two files containing inherent properties of the explosives stored in his mobile telephone and his admission that the intent of keeping the explosives was to endanger lives by his guilty plea. It is unthinkable that a mere subordinate/keeper with full knowledge of the properties of the explosives stored in the Premises would place his own life in jeopardy by frequenting the Premises the way the applicant did. It is obvious that the applicant’s role was active, persistent and pivotal and the judge was entitled to find that he was a mastermind.

31.Lastly, the argument that the judge wrongly compared 1 kilogram of TATP to 2 kilograms of TNT was flawed. What counsel for the applicant advocated is that the judge, by adopting the same starting point as Yip, was implicitly doing a conversion of the two different explosives when the basis for him to do so was lacking. The dicta in Yip’s case was quoted in the judge’s reasons for sentence in order to show that the explosives in the present case likewise has the capacity to inflict very serious damage to life and property[10]. Account was taken of the context of the present offence, that it was committed during the turbulent year of 2019; the applicant was in possession of material advocating for subversion of the existing government and Hong Kong independence. Apart from the 1 kilogram TATP seized, further raw material (chemicals and equipment) capable of producing more explosives were found in the Premises, as were other items commonly used by rioter in 2019. In those circumstances, the view taken by the judge that the potential risk and harm posed to the general public and the police is much greater in the present case than Yip’s case is not unrealistic. With these aggravating features, the judge rightly concluded that whilst Yip was going after money, the applicant was “going after the HKSAR Government, the stability of the region, with the intention of creating fear and terror amongst citizens within the society”. The conversion approach taken by the applicant’s counsel was a futile exercise.

32.I am not persuaded that the ground advanced by the applicant is reasonably arguable and leave to appeal is refused. The applicant is reminded of his right to renew his application for leave to the Court of Appeal. If the Court were to conclude that there was no justification for the renewal of his application on that ground, the applicant may face the consequences of a direction for any loss of time spent in custody pending his appeal.

Mr Ivan Cheung, ADPP(Ag.) and Ms Angela Wong, PP of the Department of Justice, for the respondent

Mr David Ma, instructed by Ho, Tse, Wai & Partners and Mr Hanif Mohamed Mughal, instructed by Morley Chow Seto (assigned by Director of Legal Aid) for the applicant