The 1st count, the conspiracy to murder, is contrary to section 5 of the Offences against the Person Ordinance, Chapter 212. The particulars of offence were that Su David, that was the 1st defendant, and So Hon-to Stephen, between a day unknown in November 2018 and 31 December 2018, both dates inclusive, in Hong Kong, conspired together with Chak Wing-sze and other person or persons unknown, to murder a person known as Lam Ching-fung or otherwise known as Hobbit.
In respect of the 2nd count, it was a conspiracy to possess arms and ammunitions without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Chapter 238 and sections 159A and 159C of the Crimes Ordinance, Chapter 200. The particulars of offence are that Su David and So Hon-to Stephen, between a day unknown in or about March 2018 and 1 January 2019, both dates inclusive, in Hong Kong, conspired with Chak Wing-sze and other person or persons unknown, to possess arms and ammunition without a licence, namely, guns, silencers and ammunition.
The trial for this case lasted for 25 days involving both defendants who were jointly charged on both counts. The jury found the 1st defendant not guilty on both counts. The evidence the prosecution relied on in respect of the conspiracy to murder in Count 1 against the 1st and 2nd defendants came solely from Ms Chak Wing-sze who is an accomplice and a witness under an immunity. For Count 2 against the 2nd defendant, the prosecution relied on Ms Chak’s evidence and the admissions in the video-recorded interviews made by the 2nd defendant.
To have a better understanding of the case, I will set out the facts in some detail. D2 was born on 19 May 1990 and Chak Wing-sze, who I will call Chak, was born in October 2000. D2 was therefore about 10 years older than Chak.
In 2017 to 2018, D2 was 27 and 28 years old whilst Chak was 17 to 18 years old. At the end of 2016, Chak visited D2’s Facebook page called “I am 五毛Ng Mo, I am 鬼” Gwai. Chak said the content of D2’s Facebook page was that Hong Kong people should buy equipment to protect themselves during the protests. D2 told people to buy his equipment. She wanted to buy his equipment. She was told that she would receive a 25 per cent discount if she showed proof that she had bought a book written by 五毛鬼 Ng Mo Gwai called “Escape from Hong Kong Garden”. She bought the book. She was then able to purchase some equipment from D2 at a discount.
So towards the end of 2016, she met D2 for the first time face to face at Tai Wo Station when she bought equipment from him.
In 2017, Chak went out several times with D2 to have a meal. At that time, she treated him as a netizen, not yet as a friend. She did not know his name and only knew him by his codename 五毛鬼 Ng Mo Gwai. While they were netizens, they communicated by Facebook messenger.
By mid-2017, Chak, the 1st defendant, Su David, D2, and a person named Samuel Leung Chun-yan played war games about three times together at a derelict school in Tai Wo Hau called Kwai Chung Government School. They also played in about January 2018. During some of the war games, amongst others, Samuel joined the 1st and 2nd defendants and Chak. At that time, she came to know that D2’s name was Stephen. From then on, she referred to him as Stephen.
By January 2018, D2 knew Chak had an affection for him and had fallen for him. D2 asked and Chak agreed to be his SP, which was his sexual partner. This was a purely physical relationship with no ties such as boyfriend or girlfriend. They had sex on a number of occasions thereafter. Their communications then were made to each other by the use of the app Telegram.
On the instructions of D2, Chak and D1 followed Hobbit or Lam Ching-fung, that is the victim in Charge 1 in this case, in the middle of December 2017. At that time, D2 told Chak Hobbit was an untrustworthy person and to find out his address.
In November 2018, D2 suddenly told Chak to install an app called Wire, that is to change and use this application for communication instead of Telegram. Chak asked D2 why they needed to change to Wire. D2 explained he did not want Hobbit to know about their communication.
D2 told Chak that Hobbit had a coup and had told the police that D2 was a terrorist. D2 said Hobbit had disclosed everything about Chak, D2 and D1 to the police. D2 told Chak that the watchman downstairs of his home said there were strangers wandering in his vicinity and D2 was of the opinion it was Hobbit’s doing. D2 further said and asked Chak if he and D1 were arrested, could Chak help by killing Hobbit.
A small group, that is D2, D1, Chak and Samuel then used Wire for communications. All further communications between D2 and Chak to possess arms and the agreement to kill Hobbit was made through Wire. Wire was a secure messaging app which would automatically delete messages so there would be no recording of anything said between them.
At the end of November 2018, D2 instructed Chak to follow Hobbit again, this time to see where Hobbit would go to dig up something and to look at what he would dig up. Several days later, D2 gave Chak arms and ammunitions on two separate occasions. D2 told her that she would have to keep them for the time being because Hobbit was acquainted with D2 and D1 and Hobbit did not know Chak. D2 said to her that should they, that is should he and D1 be arrested later, these things would not be found and therefore should be kept with her for the time being.
The giving of the arms and ammunitions took place at Tsui Wo House, that is the building where D2 lived. On the first occasion, D2 gave Chak a camouflage bag containing arms and ammunition and on the second occasion, he gave her a rifle bag containing a rifle. The zippers on the two bags were fastened with zip ties. Chak took them to her home in Siu Lek Yuen and kept them in her bedroom.
D2 told Chak when he gave them to her, he would go down first and then she was to walk down the stairs from his residential building in Tsui Wo House, that is, there was to be no use of the lift. D2 gave her $100 to take a taxi home on each occasion.
In December 2018 before 6 December, D2 sent Chak a message to be played to Hobbit on Google translate. Chak tried to make the phone call to Hobbit at a phone booth in Fo Tan but he did not answer. She said she used washed coins.
On D2’s instructions, Chak then collected a Motorola mobile phone from Alan at Tai Wo. On D2’s instructions, Chak then used the Motorola phone to call Hobbit on a number provided by D2 and made use of her mobile phone to play a paragraph from Google translate which D2 had already sent to her. The message was to Lam Ching-fung in English and as far as Chak could remember it said, “Lam Ching-fung, I’m not going to say anything further to you over the phone as I previously have. Please, by a day in December before 10 pm, go to Tai Wo Hau to see me. I will reveal to the police about the smuggling of firearms.”
On a day unknown before 6 December, Chak came to know that the camouflage bag D2 had given her contained three pistols and ammunition and silencers. That is because D2 went to her house to clean, dismantle and assemble the arms and ammunition.
Whilst D2 was at her house, he cut the cable ties of the camouflage bag and took out a golden and black barrel pistol, two magazines, loaded them with bullets and two silencers and placed them into a beige recycle bag. The magazines and the silencers were all separated from the pistol. D2 then told Chak to give the beige bag to the 1st defendant on a Thursday which was the first week in December and that was 6 December.
On 6 December, Chak, as instructed by D2, bought chemicals and took two saws and left them at the derelict school at Tai Wo Hau. After leaving them there, as instructed by D2, at about 7 pm, she gave the beige bag containing arms and ammunition, she says, to the 1st defendant and the Motorola phone. As we know, the 1st defendant however was found not guilty.
As regards the 1st defendant in the trial, the issue was mainly one of identification as D1 was saying she mistakenly identified him. If she was not mistaken, he did not know what was in the bag and if he did see what was in the bag, he did not know they were real arms as opposed to air guns or toy guns.
Chak said on 6 December at Kwai Chung Park, Chak, as instructed by D2, handed the beige bag containing the arms and ammunition to D1, whom of course the jury did not find that the prosecution had proved the case. This Kwai Chung Park was a restricted area in a quiet location and was dark. At the time there Chak said D1 was there. There was another person who looked very similar to D1. They were both wearing facemasks and caps. Chak said the person who she identified as D1 took off his jacket, put it in a rucksack and kicked the rucksack in a ditch. Both these persons, males, gave Chak their mobile phones and the person who she identified was D1 told her to go as far away from Tai Wo Hau as she possibly could.
It was the prosecution case that the only reason the two pistols and magazines loaded with bullets and silencers in the bag which were handed to that person in that location in those circumstances was because these people were in possession of the arms and ammunition to kill. That person who Chak said was D1 said to her, “Did Stephen tell you what to do?”, she replied she was to wait at the downstairs of Hobbit’s house as a lookout.
After Chak and who she said were the two males departed, she went to act as lookout at Hobbit’s house. Chak believed the operation that evening, that is the handing over the guns and the saws and chemicals she left at Tai Wo Hau at the derelict school was an operation to kill Hobbit.
The operation, however, failed as Chak did not give an extra phone to that male. She received a text from D2 saying “abort”. As a result, the operation was aborted and that male returned the beige bag to her at Kwai Chung Park.
She said sorry to that male and that male said, “No need to say sorry. That is how life is. We instead have to thank you, you go home first.” By saying thank you, it was the prosecution case, it was thank you for bringing and collecting the guns and ammunitions and mobile phones and the phrase “that is how life is” indicated a willingness to act out the plan to kill and it was a relief that Chak had botched up the plan so that those males did not actually have to kill.
That was essentially the evidence against the 1st defendant which was at Kwai Chung Park in support of the two charges, that is everything that happened there at Kwai Chung Park. As I mentioned, the 1st defendant was found not guilty.
I have mentioned these facts to show that a killing was to be carried out with the guns as they were loaded and there were two silencers. That was the intention and the agreement. It transpired that only one silencer fitted the pistols after examination by the firearms expert. The place of the killing was to be the abandoned school in Tai Wo Hau called Kwai Chung Primary School. These chemicals were there probably for the burning of and hiding or covering up any evidence of a killing that would have taken place or may have taken place.
After Chak had received the bag while she was on the bus on the way home from Kwai Chung Park, D2 said to her in a text, “If next time again, you are so careless like this, next time you have to go kill Hobbit yourself.” D2 then instructed her on a later date to open the recycle bag to take out the pistols. She saw that the two silencers were there and the magazines were inserted inside the guns.
D2 instructed her to take out the magazines, assemble and disassemble the guns and to place all the guns and ammunition back into the camouflage bag. D2 told her to remove the pistol ring from the golden barrel pistol. She did so and placed it in her beige purse which was later found by the police in her house.
She noticed that day in the camouflage bag there were three guns. She saw that there was the silver slide pistol inside the camouflage bag. They were commonly known at the trial as the golden and black barrel pistol and the silver slide pistol.
A few days later, D2 instructed her to buy chemicals and detergent in Sham Shui Po, giving her specifically the addresses and names of the shops. These were shops selling these chemicals and D2 told her to buy castor oil plant and glycerine. She bought the chemicals but was unable to find castor oil and did not buy enough glycerine. D2 told her they were for blowing up Hobbit. She asked D2 how to blow him up and D2 said to blow him up by sending them through courier. According to Chak, her understanding was that D2 wanted to kill him by way of explosion.
Before 26 December, D2 had given Chak instructions to buy two outfits and wigs and glasses with no prescription. He told her they were to be used when she went up to Hobbit’s place at the lobby to do Hobbit in. He told her how to kill Hobbit using a pistol which was to be placed inside a sling bag. D2 told Chak she should, with one single hand, fire two shots at the body of Hobbit at top speed, then withdraw the hand from the sling bag, grab the gun with both of her hands, fire three shots at Hobbit’s head. He told her to tell D1, by using the code “Japan”, and she should meet D1 after that nearby.
After the killing, she was to change her outfit, give them and the pistol to D1 and go home on a route which was a detour. D2 told her if she should run into police, she should just shoot.
D2 told her that he wanted Hobbit to be done only after 1 January 2019 as if they used the guns before that date, then their entire team would be apprehended. He told her if she was successful, he and Samuel would buy her a glock pistol. If she was arrested or died, she or her family member would be compensated.
On 26 December, as instructed by D2, Chak took the golden barrel gun which was fully loaded, to meet D2 and together they went to a derelict school called Lin Hoi School in Tai Po. D2 tried to fire the gun but it could not be fired. He examined the gun and told her the reason why it failed to shoot was because the firing pin had broken off.
On 28 December, D2 went to Chak’s house again. He cut open the cable ties on the rifle bag and checked the contents of the camouflage bag. With gloves on, D2 took out a sand-coloured rifle from the black rifle bag. Chak asked D2, “Is the gun yours?”, D2 said “yes”. Then D2 said, “Actually, it is okay for you to touch the guns with your hands because this gun would not be found by others.” She held the rifle in her hand and then she returned it to him.
D2 then arranged for Samuel to go to Chak’s house. As instructed by D2, Chak then gave the arms and ammunition which were kept at her house in the camouflage bag and the rifle bag to Samuel at a pagoda near her house. Samuel and D2 then left.
On 29 December, as instructed by D2 at about 6 pm, Chak went to Tai Wo and D2 gave her a sling bag in the corridor outside Tai Wo Shopping Mall containing the silver slide pistol and some ammunition and a magazine. They parted and Chak went home. D2 told her to bring the sling bag out the next day to test-fire the gun, to try out the gun.
On 30 December, the next day, Chak brought this gun to Shing Ming Primary School as instructed by D2 to test-fire the gun. They met each other at Tai Wo. CCTV footage was seen of them together there. Chak said it was D2 who fired the silver slide pistol at a wooden board.
After firing the pistol, D2 took the bullet shell and threw it away in the rubbish bin at the lobby of Tsui Wo House where he resides. There was CCTV footage to show D2 next to the bin in the lobby of his residential building shortly after the firing of the gun and in admission by D2 that he had done so. The police found the bullet shell in the rubbish bin when they searched it in D2’s presence after the arrest at about 1 am on 1 January 2019.
It is apparent that the reason why D2 arranged to meet up with Chak on 30 December was to test-fire the silver slide pistol to see if it was functional, to test if it was functional so that Chak could use it to kill Hobbit as D2 had instructed her to do.
That afternoon, after the pistol had been test-fired, D2 was captured on CCTV footage carrying an orange envelope and later no envelope was carried by D2 but an envelope was carried by Samuel when they were together at Tai Wo Plaza on 30 December 2018. D2’s finger and palm prints were found on the envelope which contained a silencer in Samuel’s house in his bedroom a day later on 31 December 2018. The camouflage bag with the arms and ammunition and a gun part with D2’s DNA was found inside of it at Samuel’s house.
At about 7.55 am on 31 December 2018, D2 was arrested for the offence of conspiracy to wound with intent outside Terminal 2 of the Hong Kong International Airport. After a search by the police of D2’s residence, numerous airguns and ammunitions were found. They were, however, not illegal.
In the early hours of 1 January, Chak was arrested at her home in Siu Lek Yuen. Found in her home was the sling bag containing the silver slide pistol, the magazine containing 18 bullets and a further 31 bullets. The ring-shaped object that was a firearm component was found inside her purse.
On 31 December 2018 and 1 January 2019 in Hung Hom, the police raided the residence of Leung Chun-yan Samuel. During the raid the police found the golden barrel pistol and the black barrel pistol and magazines and more than nine boxes each containing 50 light rounds of ammunition.
On the evidence before the jury therefore, there is an agreement to possess three pistols, 500 rounds of ammunition and a HK416 rifle. This rifle was not and has not been found or seized by the police but the three pistols and 500 rounds of ammunitions were.
I turn now to my discussion. D2 had fallen out with Hobbit. He wanted him killed. He was instrumental in the agreement to kill and to possess arms and ammunition. He had instructed Chak to run around and do all his dirty work, telling her what to do, when and how. Chak complied without question. Chak was blinded by her affection for D2. D2 knew of her adoration for him. He commenced a purely sexual relationship with her. He used this to his advantage, to manipulate her and influence her.
He was able to remotely control her through his instructions to her through the app Wire. Their communications which were via Wire were intentional so there would be no record of the contents of their communication. He had in fact told her to stop using her student Octopus card and use a tourist Octopus card to which she did. This was obviously to prevent any trace or record of her movements.
D2 had arranged for two others, I note the jury found it was not D1 or the prosecution had not proved it was D1, to carry out the killing on 6 December to take place at the Tai Wo Hau derelict school. D2 had prepared the pistols, loaded the magazines and placed them in the bag with two silencers, for Chak to hand over to these two persons.
The operation failed as Chak had botched it up by not giving the male another phone. This other phone was to be used to call Hobbit and play him the Google message to meet at Kwai Chung Government derelict school in Tai Wo Hau.
Calculating, D2 was not present at Kwai Chung Park. He had distanced himself and was lavishing in a cheese fondue dinner at Spaghetti House in Sha Tin with his girlfriend whilst knowing that he had planned a killing to take place. Whilst at the same time, he was communicating with Chak over Wire to abort the operation, giving her instructions to collect the chemicals and other matters from the derelict school and telling her that she had caused the operation to fail.
D2 had in fact taken her to show her where Kwai Chung Park was previous to 6 December. Kwai Chung Park was a deliberately chosen location by D2 to pass over these lethal, dangerous weapons out of the public view, being a restricted area there would be few or no persons there. It was a strategic location to do the handover.
As that planned operation to kill Hobbit had failed, on 6 December, D2 instructed Chak to do the killing when he was to be away from Hong Kong after 1 January. He knew he was to depart on 31 December 2018 to Japan for a holiday with his girlfriend. However, he was arrested at the airport before his departure.
D2 had actual possession of these arms and ammunition. He had agreed with Chak and others to use them to kill Hobbit. They were but a step away from killing Hobbit had it not been for Chak botching the plan. D2 knew he had no right to be in possession of these arms and ammunition. D2 was extremely knowledgeable in airguns and ammunition. Even in cross-examination, he challenged the firearm expert on his knowledge of airguns. He knew that the airguns had to be below two joules before they were considered not illegal.
D2 had experience in using real guns in the United States of America when he went to a firing range set up for tourists. He knew after examining the golden barrel pistol that it was not functional because of the firing pin.
The three pistols and ammunition, not all 500, were intended to be used to kill Hobbit. D2 had gone with Chak to test-fire the gun found in her house, that is the silver slide pistol, so that Chak could use it after D2 had gone to kill Hobbit.
No firearms or ammunition were found in D2’s house after his arrest. He was clever and astute enough to store or keep them with others and elsewhere, either with Chak or Samuel. He had told Chak that should he be arrested, they would not be found in his possession. Until today, the HK416 rifle has not been found by the police. One must assume that this dangerous weapon is still somewhere in the community of which perhaps only D2 know.
I consider the facts and the circumstances in this case to be extremely grave. D2 is a bright young man. He is a man of clear record. He is now aged 32. He is a graduate from City University of Hong Kong in 2014. He carefully planned and schemed this agreement to kill Hobbit and agreement to possess arms and ammunition. He effectively used or attempted to use two males to be the assassins.
As regards Count 2, the conspiracy was to possess the three pistols, 500 rounds of ammunition, HK416 rifle and two silencers. As stated by the firearms expert in the trial, a silencer’s functional characteristic is to reduce the sound when the bullet is discharged from a gun, that is to work against the muzzle blast to make it quiet.
I have set out the laws regarding the possession of arms and ammunition in the sentencing of Chak yesterday in HCCC 243/2020. I shall not repeat it again here. Suffice it to say, the factors to take into account for possession of arms and ammunition and the usual starting point after trial under section 13 of the Firearms and Ammunitions Ordinance, Chapter 238, is one of 12 years’ imprisonment after trial as referred to by the Court of Appeal in Tsiang On Yan [2019] 5 HKLRD 100 where the court there, Zervos JA, considered many of the authorities prior to that case for possession under section 13 and the appropriate starting point for this offence and the facts which may warrant a departure from the starting point.
D2, you are charged with the conspiracy under section 13. A maximum penalty of 14 years’ imprisonment is imposed for this offence. While for possession of arms and ammunition that are used or intended to be used to endanger life or to commit a crime, a maximum penalty of life imprisonment is the maximum.
Zervos JA also referred to section 16, 17, and 18 of the ordinance. He went on to observe for the more serious offences where a person has in his possession arms or ammunition that is used or intended to be used to endanger life or for some other criminal purpose, the penalty is the maximum known to law of life imprisonment.
In Tsiang, the case of Chan Chi Fun was referred to which is a case which stated the appropriate sentence and determining the appropriate sentence, the mitigating and aggravating factors. The court there said one should take into account:
“(1) the types of firearm and ammunition involved;
(2) whether the defendant physically carried the firearm and ammunition;
(3) whether the firearm is loaded;
(4) whether the firearm has been used;
(5) whether the defendant intends to use the firearm for illegal purpose;
(6) whether the firearm and ammunition are properly stored or whether they are accessible by others;
(7) whether the defendant has a clear record.”
And still referring to Chan at paragraph 47, the court said:
“The court went on to emphasise that the level of sentence was dependent on the sentencing court’s view of the potential risk posed by the arms and ammunition in the defendant’s possession, taking into account the circumstances of the case, the defendant’s background, and the possibility of the arms and ammunition in question.”
I note that D2 was charged with a conspiracy to possess arms and ammunition without a licence contrary to section 13. The maximum sentence of 14 years’ imprisonment is set down.
The potential risk posed by the arms and ammunition in this agreement by the defendant and Chak and others, that risk was to kill others. One of the firearms had been test-fired for the purpose of intending to use that to kill others. It was used on 30 December 2018.
Another gun, the golden barrel gun, was tested but was non-functional. D2 was able to examine the gun and tell Chak the reason why it was so because of the firing pin. An expert had confirmed that.
The firearms were loaded when it was returned to Chak on 6 December. D2 gave these ammunition to Chak to store in her house. The storage of them, they were not secured or locked. These are all aggravating factors.
For Count 2, I take a starting point of 12 years’ imprisonment and taking into account the aggravating factors, I enhance the sentence by 2 years to the maximum 14 years’ imprisonment. I understand that is the maximum sentence but I cannot envisage a graver situation. Given the amount of ammunition, the arms, and the intention to be used of these arms.
Turning now to the conspiracy to murder, Count 1. Section 5 of the Offences against the Person Ordinance, Chapter 221, of conspiring or soliciting to commit murder, the sentence is also one of life imprisonment but it is not a mandatory one. As it is for the offence of murder under section 2 of the same ordinance where a person convicted of murder shall be sentenced to imprisonment for life. In this case, the defendant is liable to be sentenced to life imprisonment.
The first plan to kill was aborted as a result of Chak’s failure. Two guns, two silencers, magazines loaded with bullets were given to a male in the presence of another male. The location was at a derelict school in Tai Wo Hau which he had instructed Chak to set up, to cover up any killing that might have taken place there and to be covered up with chemicals.
D2 had given Chak elaborate instructions to buy outfits and wigs to disguise her identity and he taught her how to fire the shots at Hobbit. Chak was an ignorant and young girl who was manipulated by D2. She foolishly agreed to follow D2’s instructions to kill Hobbit. It was fortunate that she was arrested. It was fortunate that the police were able to impede and hinder their agreement to carry out the killing. The police had arrested Chak, D2, Samuel and D1 on 31 December 2018 and January 2019. The police are to be commended for their work as they were able to foil this heinous crime of murder that was to take place and they were able to seize many arms and ammunition.
The prosecution, Mr Cheung and Mr Ching, and Mr Boyton for D2 have submitted a joint bundle of authorities. There is the case of HKSAR v Cheung Ning Yau, CACC 133/2000, where the defendant was sentenced to 18 years for conspiracy to murder following a jury trial. Also HKSAR v Cheng Wui Yiu, CACC 532/2004, where the defendant was sentenced to life imprisonment and the judge ordered that he shall serve, pursuant to section 67B of Criminal Procedure Ordinance, Chapter 221, a minimum of 22 years. In that case, the accomplice was sentenced to 27 years’ imprisonment after trial of conspiracy to murder. That is at paragraph 20 of the judgment.
Each case depends on its own facts. These are not guidelines. I bear in mind that life imprisonment is not mandatory.
The 2nd defendant played a major role in this agreement. He was the planner, and he was instrumental in this conspiracy to murder. He had used what would appear, at least from the 6 December operation, two males far younger than him. Chak was 10 years his junior. He preyed on Chak’s naivety, adoration of him, young age and immaturity. They were his foot soldiers while he was the commander. I consider him to be a major threat to society. I consider that only a lengthy sentence should be imposed.
I would like to state that during the defendant’s evidence, without any prompting, he spoke of his association with Edward Leung Tin-kei and Andy Chan Ho-tin and the fact that he was supplying equipment to the protesters during the 2019 social unrest in Hong Kong. It was apparent that he was implying what his political stance was. I have completely ignored and disregarded these matters in considering the sentence I am going to impose. They have no bearing whatsoever on the sentence that I am about to pass.
Taking into account all of the factors, I am of the view that a sentence of 27 years’ imprisonment is appropriate. I order that this shall be served concurrent to Charge 2. D2, you shall therefore be sentenced to serve a total of 27 years’ imprisonment.