CRIMINAL CASE NO. 341 OF 2010
COURT: After a 12-day trial before a jury, the 1st and 2nd defendants, who were charged jointly on Charge 1, were found guilty of that charge of conspiracy to commit arson, contrary to section 60(1) and (3) of the Crimes Ordinance, Cap 200, and sections 159A and 159C of the Crimes Ordinance, Cap 200.
The verdict for the 1st defendant was unanimous, and that for the 2nd defendant was six to one.
The 1st defendant was also found guilty by unanimous verdict of Charge 2, which was arson, contrary to section 60(1) and (3) of the Crimes Ordinance, Cap. 200. Charge 3 was placing an article with intent of inducing another to believe that it is likely to explode, contrary to section 28(1)(a) and (4) of the Public Order Ordinance, Cap 245. This charge was against the 1st defendant only, and the unanimous jury verdict was one of guilty.
The original Charge 4 was arson being reckless as to whether life would be endangered, contrary to section 60(2) and (3) of the Crimes Ordinance, Cap 200. However, the jury found the 1st defendant not guilty of that offence, but guilty, by unanimous verdict, of the alternative offence of arson, contrary to section 60(1) and (3) of the Crimes Ordinance, Cap 200.
The offences were directed apparently at a Mr Chun Chi‑wai, who, through his company structure, owned a scrap yard which was the locus for Charges 1, 2 and 4, and his registered office was the locus for the delivery of the hoax bomb in Charge 3.
No clear evidence of a background dispute or of the precise motive was led at trial, but it was clear that the offences were directed, organised and financed by one or more persons over an extended period.
The features on each charge were similar. In Charge 1, a conspiracy charge involving an agreement to commit arson between the 1st and 2nd defendants and persons unknown, both accused were to participate in the offence, the 1st defendant as a driver and lookout and the 2nd defendant as a lookout. In addition, four mainlanders were employed to set fire to the target, which was a barge at the scrap yard, and an abortive attack was made. The attack took place in the early morning hours when two security guards were on the barge. One guard was tied up and his mobile phone was stolen. The other guard raised the alarm, and the would-be attackers fled, leaving behind a significant quantity of petrol and some cotton waste.
Three of the four mainlanders were driven by the 1st defendant to the cross-border coach station immediately after the failed attack.
In overall charge was Liu King-fung, who was known as “Nam Chai”, who appeared to act as the co-ordinator in all of these incidents.
Charge 2, an arson charge, arose from a petrol bomb attack on two excavators which were being operated at the scrap yard. The 1st defendant was the driver, and acted on the instructions of “Nam Chai”. He conveyed three mainlanders to the scrap yard, knowing that they had petrol bombs with them. At the scrap yard, the men threw the petrol bombs directly at the operators’ cabs. The flames caused fire damage to the excavators which cost $17,000 to repair. One of the operators suffered burns, but also sustained damage to his back when he jumped from the cab to escape the flames, and this precluded him from working from 18 January 2009 to June 2011, approximately.
Events and personnel were orchestrated by “Nam Chai”, and the 1st defendant was paid $20,000 for his work.
Charge 3 involved the delivery of a simulated bomb to the registered office of Mr Chun Chi-wai. The 1st defendant was responsible for all the driving, for collection of personnel, delivery of the parcel and the return journeys. “Nam Chai” was the organiser and also accompanied the delivery boy and the parcel. The 1st defendant knew what the parcel contained. When a report was made to the police by staff who were fearful of the contents, the office was evacuated for some time, and the police bomb disposal expert was obliged to attend to deal with the parcel.
For this work, the 1st defendant was paid $3,000.
Charge 4 was another petrol bomb attack on the scrap yard. Three men from the mainland, the 1st defendant and “Nam Chai” all took part. The 1st defendant acted as transporter of participants and material. He waited to act as the getaway driver after the attack.
The three men threw at least six petrol bombs. A seventh petrol bomb was found unexploded. The attackers also brought with them coconut-head fireworks. Two unexploded fireworks were found.
The attack was quick, unannounced, and directed indiscriminately at people and property in the yard. A van and an excavator sustained fire damage, but by great good fortune, none of the three men on the vehicle, nor the excavator operator, nor any of the many people in the scrap yard were injured. The attack was on a Friday; about 11 am, when one would expect business to be brisk. PW1 had given evidence that the yard was busy all the time.
The 1st defendant was to have been paid $20,000 for his part in this attack, but he did not receive any money as he was arrested later on the same day.
By the time of his arrest, the Honda Accord registered in his name which had been used in all four incidents had disappeared, although whether that was D1’s doing or something organised by “Nam Chai” is not entirely clear. The car had not been recovered by the time of the trial, and “Nam Chai” was believed to have left Hong Kong.
The 1st defendant is aged 35 and is married, with one child aged 3 years. He claimed to work as a self-employed decoration worker earning $8,000 approximately a month. His wife is a civil servant earning $18,000 a month. He has a clear record except for one offence of driving whilst disqualified and an associated offence of driving without third party insurance. He was sentenced to 1 month’s imprisonment for those offences.
His counsel asked the court to note that this was not a revenge attack. That the four offences were spread over one year and were of a similar nature, and on that basis, counsel asked the court to consider concurrent sentences and to consider totality. Counsel submitted that the 1st defendant was unlikely to offend in a similar fashion again.
There was no evidence showing that these attacks were not revenge attacks. Indeed, the written abuse and threats that were obvious from Charge 3 indicates that they were.
I accept, however, that if they were revenge attacks, that the 1st defendant was not pursuing revenge on his own behalf, although in some ways it is worse to seek revenge in cold blood on behalf of another person than it is to seek it on the spur of the moment for oneself.
At the time of the offences the 2nd defendant was aged only 17. He lived with his parents and younger brother and had only one previous conviction for common assault, for which he had been placed on probation.
He completed Form 3 schooling, but left school after a few months in Form 4. He had taken casual work after that time. I sought a background report before sentencing in view of the defendant’s age. That report is not a pretty one. It shows that although he has a supportive family, that he was a law unto himself effectively from the time he left school. He had poor motivation to work and would work for a short period and then stop working. When he was placed on probation for common assault, he did not respond well to the probation order that was made against him. He was eventually discharged from the boys’ home where he had been required to live because of his unsatisfactory behaviour. When he returned home, he failed to comply with curfew requirements, and eventually he was dealt with for breach of probation.
After discharge from the rehabilitation centre in mid‑2008, the accused had worked as a delivery worker in Sheung Shui, again intermittently. His parents had noted that he was lacking attention in job seeking. He worked on and off as a casual restaurant and food delivery worker, earning $20 a day, and then would spend his time unemployed. He had been remanded for the current offence from December of 2010 to March of 2011, and during that period he had worked as a food delivery worker, again intermittently, and had taken a casual job as a cyber café assistant.
He maintained to the probation officer that he had not been involved in this offence, so it is difficult to see that he showed any particular remorse for this offence. Certainly there was nothing in the report that indicates to me anything other than that a sentence of imprisonment is required in the case of the 2nd defendant.
These are extremely serious offences. There were designated targets, or a target, if one considers the scrap yard alone. The offences were carefully thought out and organised. It appears that the actual attackers, or some of them, were brought in from the mainland for the task of throwing the bombs, and they left the Territory immediately after their work was completed. This presumably was to ensure that there was no trail for the police to follow.
The actual attacks were launched suddenly and without warning. The attackers did not shy away from directing the petrol bombs at property or persons, and were clearly oblivious to any physical harm or damage they might inflict.
Substantial sums were offered as payment to those who took part in the venture. This was in recognition of the physical danger involved, as well as recognising the risk that the participants ran of serious charges following their possible arrest. There were multiple attacks on the same scrap yard.
The 1st defendant had known “Nam Chai” for some years, and in 2009 he made himself available as a driver when called on by “Nam Chai”. The car appears to have been purchased with funds provided in part by “Nam Chai”, and the 1st defendant also had a mobile telephone dedicated to calls to and from “Nam Chai”, a telephone “Nam Chai” had told him to keep for his exclusive use and which was used on occasion by “Nam Chai” himself.
The same “Nam Chai” was a neighbour of the 2nd defendant, and, as the 2nd defendant said, had known him almost from the time he was born. He was recruited as a lookout by “Nam Chai” and was told to call “Nam Chai’s” mobile phone if he saw any police officers on the night of the attack in January 2009.
The 2nd defendant was in the car with the 1st defendant, “Nam Chai”, and the former 3rd defendant when the police stopped the car at a roadblock. At that time, the 2nd defendant was in breach of his supervision order. He said that he was to be paid $10,000 for acting as a lookout, but because the attack was not a success, he did not receive any payment.
I have considered the various cases referred to me and considered generally the range of sentence that should be imposed, given that arson is such a serious offence that it merits a maximum sentence of life imprisonment. “Arson, because of the inherent danger of any uncontrolled fire, is always regarded as an offence of particular gravity, and the arsonists exhibit reckless disregard for life and property.” The Queen v Li Mnn tong 1994 No 309. The case in which those words were quoted involved a revenge attack in the dead of night in a highly-populated area.
These offences before me were a concerted effort to scare or intimidate or exact revenge for some business dispute, and given the organisation and the extreme method chosen, which was petrol bombing, I consider that high sentences are called for, in particular to deter others from adopting such methods as common business practice.
In respect of the 1st defendant, on Charge 1 I sentence him to 8 years’ imprisonment. On Charge 2, I sentence him to 12 years’ imprisonment. On Charge 3, I sentence him to 3 years’ imprisonment. On Charge 4, I sentence him to 12 years’ imprisonment, and I order that 2 years of the sentence on Charge 4 run consecutively to that on Charge 2.
It is a total of 14 years’ imprisonment.
In respect of the 2nd defendant, who faces only the 1st charge of conspiracy, I take into account his age at the time of the offences, and consider that I should give a different sentence to that for D1. However, this was a serious offence, and it is quite obvious that at the time, the defendant knew what he was doing.
I sentence him to 6 years’ imprisonment on Charge 1.
(I) Please refer to CACC325/2011 for the relevant appeal(s) to the Court of Appeal. (II) Please refer to FACC3/2012 for the relevant appeal(s) to the Court of Appeal.