HKSAR v. Tsang Tsz Fung
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DCCC548/2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 548 OF 2009 --------------------
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---------------------------------- Reasons for Sentence ---------------------------------- 1.The defendant pleaded guilty to very serious charges. The first charge to which is one of making an explosive substance. The particulars of the offence are that on 10 February at his home, Room 914, Yiu Hong House, Tin Yiu Estate in Yuen Long he made an explosive substance, namely an improvised explosive device consisting of one metal tube which was sealed at both ends and contained explosives and metal ball bearings. 2.The 2nd charge is a related charge of possession of explosive substances. On the same day at the same place he was in possession of explosive substances, namely three metal tubes, a broken metal tube, a metal tube that was sealed at both ends and containing metal ball bearings, two plastic bottles filled with powder obtained from toy gun caps, a plastic container containing powder obtained from toy gun caps, a plastic container containing metal rings and metal ball bearings, a section of an electric torch containing metal ball bearings. 3.The 3rd charge was possession of prohibited goods. The particulars of that offence are that on the same day at the same place he was in possession of four boxes containing a total of 288 packets of toy gun caps and some unpacked toy gun caps. 4.The amended Summary of Facts states that at the material time that he and his father, Mr Tsang - I will refer to him as PW1 - lived at this premises at Room 914 Yiu Hong House. At around 7.30 on 10 February when his father retuned to the flat the defendant was in his own bedroom. PW1 heard a sound of explosion coming from the defendant’s bedroom and noticed that both of the defendant’s hands had sustained serious injuries and he therefore shouted for assistance. The matter was reported to the police by neighbours. 5.At around 10.30 the Fire Services Department and ambulance personnel arrived at the scene. The ambulance staff provided first aid service to the defendant. At 0236 hours the following morning a senior station officer of the Fire Services Department entered the defendant’s bedroom and noticed a strong phosphorus smell and saw two pieces of finger part on the desk. As a result the flat and its nearby units were evacuated. The defendant was sent to Tuen Mun Hospital by ambulance and he was escorted there by two officers. On the way to the hospital he was asked how he was injured and he admitted that the injury was caused by a grenade that he had made. Bomb disposal officers arrived at the flat and seized a number of items and they are mentioned in the charges to which the defendant has pleaded guilty. 6.At Tuen Mun Hospital the defendant was treated by medical staff for the serious injuries that he had sustained for the serious injuries caused to the left hand, with a deep laceration to the right hand and a loss of the distal phalanx of the right index finger. Multiple superficial abrasions were scattered around the chest wall, right elbow and forearm of the defendant. 7.On 11 February a doctor performed an emergency surgical operation on the defendant in which the defendant’s left hand was amputated from the wrist. The defendant was discharged from Tuen Mun Hospital on 16 February. He was arrested by police on 11 February at the hospital and he was interviewed under caution. 8.In his interview he said that he had bought a lot of gun caps from a toy shop in Tai Tong Road, Yuen Long on 5 February 2009. He had learned how to make the IEDs from the internet. He said that the explosion in the flat occurred accidentally when he tried to open a plastic bottle containing powder obtained from the toy gun caps and he claimed to have no criminal intent in making the explosive devices. 9.In his second record of interview he made further admissions. He said that he intended to make the grenade to lighten himself up and he explained in detail as to how he made the devices. Expert Opinions 10.Having attended the flat on 10 February an expert, PW7, opined that an explosion was caused by an explosive substance in the flat. He opined that the defendant’s account as to how the explosion had occurred was consistent with his observation of the circumstances and the damage caused by the explosion at the flat. The expert took an X-ray image of one of the explosive devices. He confirmed that it contained suspected explosive and metal ball bearings. The device exploded when the expert intended to unscrew its end cap by a robot for a further study of the contents. 11.According to the expert he said that the device would have caused the following damage. It would have caused localised heat damage causing burning from the fireball out to approximately half a metre and fragments ejected from the device out to approximately 30 metres. These could be capable of causing puncture wound type injuries to any persons within that distance. It would have caused a blast causing temporary disorientation to any person up to approximately 5 metres in the open, and reasonable probability of damage to the ear for persons out to approximately 1 metre. Persons closer than that would have increased injury with any person holding the device having a high probability of traumatic amputation of the hand, and the fragments from the device likely to endanger life. The blast and fragments would also be able to shatter glass windows out to 10 metres and would be capable of cracking plaster walls up to 1 metre. 12.The defendant has a clear record. When he appeared before the court on the first occasion he entered a plea of guilty to all charges. I was told by his counsel that he had been suffering from severe personality disorder problems. I adjourned the case for reports to be prepared. The defendant was observed whilst in custody by two psychiatric officers. They noted that as a child the defendant had been suffering from attention deficit and hyperactivity disorder. He is also suffering from conduct disorder. They say that he is currently suffering from personality disorder, likely of anti-social type with psychopathic traits. They described him as a dangerous person with high risk of re-offending and they said that further psychiatric follow-up was mandatory to ensure the safety of himself and the general public. They were of the view that he did not have other psychiatric problems that would warrant compulsory in-patient treatment. 13.I obtained a Training Centre Report from the Commissioner for Correctional Services and that report concludes that after general assessment of his behaviour and attitude whilst on remand he was suitable for detention in a training centre. I have also been supplied with the reports by the defence counsel from Professor Kelly Lai, an associate professor in psychiatry from the Chinese University of Hong Kong. She has been dealing with the defendant for a number of years and she has prepared two reports for the court and she is most anxious that the defendant be kept in the community and continue with the support of his father and sisters. 14.I asked the probation officer also to prepare a report and a very comprehensive probation report has been prepared and conclusively probation order is not recommended in respect of this defendant. The probation officer also says that the short-term suggestion for residence in a halfway house for marginal users may not be effective in bringing him positive changes. 15.I have had a number of letters submitted to the court supporting the defendant and asking for leniency. I consider the contents of those letters. There is no doubt that this defendant has had severe problems to cope with in his life. He was deserted by his mother at a very young age, his mother being unable to cope with the various problems which the defendant had and she herself needed psychiatric treatment. The father was left as the main carer but was unable to cope with the defendant and needed the assistance of psychiatrists and other helpers to assist with bringing up the defendant. 16.The defendant was a hyperactive child and the father had great difficulty in controlling him. He had severe problems at school. He was hyperactive. He easily displayed temper tantrums and he was weak to concentrate and backward in his schooling. He was isolated and seclusive and did not have friends and he was teased and bullied by classmates. He received two year vocational training in the Tuen Mun Skills Centre. After that he got a job as a warehouse worker in Tuen Mun and was ill-treated allegedly by his colleagues who found fault with his work. To relieve his tension from work he used to cycle. In September in 2008 he worked as a delivery worker. He alleged that he had difficulties at the initial stage as he had to remember the code numbers of various items to be delivered and he said he had difficulties with his colleagues. That assertion is at variance with a letter that has been handed to the court from that firm describing him as being hardworking and willing to learn and it was out of the frustration that he allegedly browsed the website, looking up various types of explosives starting in February 2008. Into the explosive devices he put papers with the names of the people with whom he had difficulties and, by letting off the explosive, he relieved his tension. 17.I referred this case to the Young Offender Assessment Panel to get their views on the way in which this case should be dealt with. They opined that the defendant is a reckless teenager who had poor emotion control and interpersonal skills. He committed the current offences even though he was aware of their serious legal consequences. They state that having considered his prolonged behavioural and emotional problems, his weak family sanction and the severity of the offences, the panel had no doubt that he is in dire need of a period of long-term character training in a disciplinary setting to help rectify his social values and behaviour. They take the view that the training centre programme with its vocational and educational disciplines coupled with the three year statutory supervision that entails his release is recommended as the most appropriate training measure for the defendant. 18.As I said at the outset, these offences are extremely serious. Had the defendant not been suffering from the problems he does suffer from, a substantial custodial sentence would be appropriate. Having considered all the information that has been placed before the court I take the view that a training centre order is the most appropriate way of disposing of this matter. 19.In respect of all three offences I order that the defendant be detained in a training centre.
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