HKSAR v. CHEUNG CHUN FU

[English Translation - 英譯本]

HCCC 164/2022 & HCCC 255/2023 (Consolidated)

[2024] HKCFI 2544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 164 OF 2022 AND 255 OF 2023

(CONSOLIDATED)

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REASONS FOR SENTENCE

1.  The defendant CHEUNG Chun-fu pleaded guilty to two counts before me:

(1)  The offence of possession of explosive substances (the fourth count on the indictment), contrary to section 55(1)  of the Crimes Ordinance, Cap 200, Laws of Hong Kong.

Particulars of offence

The particulars of offence are that CHEUNG Chun-fu and WONG Chun-keung, between the 3^rd day of December, 2019 and the 8^th day of December, 2019, both dates inclusive, at Room No. 2, Unit D, 19^th Floor, Glee Industrial Building, Nos. 77-81 Chai Wan Kok Street, Tsuen Wan, New Territories, in Hong Kong, knowingly had in their possession or custody or under their control explosive substances, namely 2 boxes of fireworks.

(2)  The offence of possession of arms without licence (the sixth count on the indictment), contrary to section 13(1)  and (2)  of the Firearms and Ammunition Ordinance, Cap 238, Laws of Hong Kong.

Particulars of offence

The particulars of offence are that CHEUNG Chun-fu, on the 8^th day of December, 2019, at Room No. 2, Unit D, 19^th Floor, Glee Industrial Building, Nos. 77-81 Chai Wan Kok Street, Tsuen Wan, New Territories, in Hong Kong, had in his possession arms, namely 4 spray canisters containing nonivamide, without a licence.

Admitted Facts

Background

2.  Public order events were held in multiple locations in Hong Kong since June 2019 due to the government’s proposed amendment to the Fugitive Offenders Ordinance (Cap 503)  and related legislation. Every weekend there were large-scale public meetings or processions involving thousands of protesters, and the events often turned into riots.

3.  Wong Chun-keung, Cheung Ming-yu, Yim Man-him, Lee Ka-tin Christian, Lam Ming-ho and Leung Ching-hei were members of the “Dragon Slaying Brigade”. Civil Human Rights Front held a public procession on Hong Kong Island on 8 December 2019.

Possession of explosive substances and possession of arms without licence

4.  In the early hours of 3 December 2019, WONG Chun-keung and CHEUNG Chun-fu, together with another man, stored two boxes of fireworks and firecrackers in a warehouse at Room No. 2, Unit D, 19^th Floor, Glee Industrial Building, 77-81 Chai Wan Kok Street, Tsuen Wan (hereinafter called “Tsuen Wan Warehouse”).

5.  On 8 December 2019, the police arrested Wong Chun-keung, Ng Chi-hung and Cheung Chun-fu.

6.  When Cheung Chun-fu was arrested at his home, he admitted under caution that he had been to the Tsuen Wan Warehouse, and was willing to take the police to the warehouse for a search. The police seized six keys from a room in his home and succeeded in opening the Tsuen Wan Warehouse with one of it.

7.  The police searched the Tsuen Wan Warehouse and seized some items, which included the following:

(1)  3 bulletproof plates and 1 bulletproof vest;

(2)  2 boxes of fireworks and firecrackers;

(3)  4 spray canisters containing nonivamide (i.e. pepper spray);

(4)  10 collapsible batons;

(5)  12 walkie-talkies;

(6)  1 laser pointer;

(7)  A large quantity of black clothing, black caps and 1 blue sweatshirt with a yellow word Dickies on it; and

(8)  A large amount of protest gear, including gas masks with filters, goggles, face masks, gloves, helmets, arm sleeves, shin guards, knee guards and lighters.

8.  At the time of the offence, CHEUNG Chun-fu was in possession of the said four canisters of pepper spray without a licence.

Telegram conversations

9.  CHEUNG Chun-fu used instant messaging software Telegram. His Telegram account name was “Ho./.” and his username was @ SKD1228.

10.  Wong Chun-keung (whose Telegram account name was “Happy healer” and username was @Happyhealer)  and Cheung Chun-fu had several conversations via Telegram, including the following:

(1)  On 15 September 2019, Cheung Chun-fu asked Wong Chun-keung, “Should both bottles of pepper water be given to you tomorrow or should I keep one?” Wong Chun-keung replied, “For your own use”; and Cheung Chun-fu said, “OK”.

(2)  On 7 October 2019, WONG Chun-keung asked CHEUNG Chun-fu for the address of the safe house; CHEUNG Chun-fu indicated that the Tsuen Wan safe house was across the street from a petrol station on Chai Wan Kok Street.

(3)  On 27 November 2019, Cheung Chun-fu sent the telephone number 5xxxxxx8 (of which Cheung Chun-fu was the registrant)  to Wong Chun-keung.

(4)  On 1 December 2019, Wong Chun-keung indicated to Cheung Chun-fu, “Ah Chan (transliteration), I bought some fireworks and firecrackers. Put them in the warehouse first. We will use them soon”; Cheung Chun-fu replied, “OK”.

(5)  On 2 December 2019, Wong Chun-keung said, “We will call you when approaching Tsuen Wan. Then you will set out to get there”; Cheung Chun-fu replied “Ok”; Wong Chun-keung also asked Cheung Chun-fu for “the location of the warehouse”; Cheung Chun-fu then sent an address link for the Tsuen Wan Warehouse.

11.  In addition, Wong Chun-keung had a Telegram group called “Destroying dragons” (literal translation), which consisted of the following members:

(1)	Account Name	Y Tsz Sze (transliteration)  🐩
(2)	Account Name	Happy TT
(3)	Account Name	Lui Siu Po (transliteration)
(4)	Account Name	Kan
(5)	Account Name	I am reinforce Jr.
(6)	Account Name	Lui Tai Po (transliteration)
(7)	Account Name	Stephen
(8)	Account Name	Night Parade of One Hundred Demons
(9)	Account Name	Winnie the Pooh (Letter-T Gang) (literal translation)
(10)	Account Name	Ho./. (i.e. Cheung Chun-fu)
(11)	Account Name	Ken
(12)	Account Name	President of the Iron Blooded Planet Alliance (literal translation)

12.  On 1 December 2019, Wong Chun-keung posted 2 pictures in the “Destroying Dragons” group about buying fireworks and firecrackers, and their types and prices.

13.  On 3 December 2019 at 0058 hours, a member in the “Destroying Dragons” group told Cheung Chun-fu to set out.

Results of examination

14.  The government laboratory’s findings on the four canisters of pepper spray seized from the Tsuen Wan Warehouse are as follows:

(1)  Each of the 3 spray canisters was equipped with an operating button associated with a nozzle found at the top of the spray canister. When the button of each of the spray canisters was pressed downwards, a pale pink liquid was discharged from the nozzle in the form of a fine spray. The pale pink liquid collected from the spray canisters was found to contain nonivamide.

(2)  One spray canister was equipped with an operating button associated with a nozzle found at the top of the spray canister. When the button was pressed downwards, an orange liquid was discharged from the nozzle in the form of a fine spray. The orange liquid collected from the spray canister was found to contain nonivamide.

(3)  Given that it was packaged inside a canister and meant to be delivered as a discharge over a range, the nonivamide is not for general household use. In fact, nonivamide is often found in personal protection devices, which target the subject in the eyes or face. When used in this context, the ability of nonivamide to elicit a burning sensation on the soft mucosal tissues qualifies it as a noxious chemical.

15.  The Explosive Ordnance Disposal Bureau of the Hong Kong Police Force had the following findings on the two boxes of fireworks and firecrackers seized from the Tsuen Wan Warehouse:

(1)  One of the boxes contained cracker-type fireworks used at major festivals and the other box was mortar-type fireworks, with an estimated total weight of approximately 5 to 7 kilograms.

(2)  The firecrackers and fireworks were destroyed on the Explosive Ordnance Disposal Range. They were destroyed by burning in a cage, and during this process, they reacted like fireworks by giving loud reports (multiple bang sounds).

(3)  The Explosive Ordnance Disposal Bureau opined that the two boxes contained approximately 5 to 7 kilograms of manufactured fireworks.

Background and submissions in mitigation

16.  The two counsel for Cheung Chun-fu told me about Cheung Chun-fu’s personal background.

17.  Cheung Chun Fu was 22 years old at the time of the offence and he is now 27. At the material time, he was studying accounting at the Open University. His father used to work on construction sites, but he resigned from work due to illness afterwards. His father’s condition is currently stable and he can take care of the family. His mother works at a fruit stall in a wet market, earning $20,000 a month. She is in fact the major breadwinner of the family. In addition, Cheung Chun-fu has one older brother and one younger brother.

18.  Cheung Chun-fu had no criminal conviction record at the time of his arrest. However, since he left Hong Kong by speedboat on 23 August 2020 and was arrested in Chinese waters, he had been detained on the Mainland for seven months before being repatriated to Hong Kong. In view of his absconding, he was convicted of perverting the course of justice in the District Court and was sentenced to 10 months’ imprisonment.

19.  Defence counsel submitted that Cheung Chun-fu had been detained since 22 March 2021, and so far, he had been remanded in custody for 3 years and 5 months. If a one-third reduction of sentence is taken into account for good behaviour, the term he had served should be equivalent to one of 5 years and 2 months.

20.  Defence counsel also informed me of the relevant case authorities when making submissions in mitigation. As far as the offence of “possession of explosive substances” is concerned, a person guilty of the offence is liable on conviction upon indictment to imprisonment for 14 years. There is no sentencing guideline for this offence. The sentence will depend on the explosive substances involved and the circumstances of the case.

21.  Defence counsel cited the case of Chan Yiu-shing[1]for my considerations. Zervos J (as he then was)  pointed out in that case that the imposition of a custodial sentence was inevitable given the heightened concerned, both domestically and internationally, about the safety of the general public in relation to offences involving explosive substances, and that the sentence would depend on the facts of the case and the defendant’s overall situation.

22.  In Chan Yiu-shing, several defendants were involved in a conspiracy to manufacture smoke bombs for use in demonstrations and they were in possession of a heating mixture (literal translation)  (i.e. thermite)  and other chemicals including TATP (i.e. explosives). Defence counsel submitted that the firecrackers and fireworks associated with the defendant Cheung Chun-fu in the present case were not very similar to thermite and bombs (i.e. TATP explosives), but were similar to smoke bombs.

23.  Defence counsel also asked me to consider two District Court cases: the case of 鄺偉邦[2]and the case of 董上琳 [3].The former relates to possession of low-grade explosives and smoke cakes. The judge in that case adopted six months and four months as starting points. On the other hand, in 董上琳, which involved a conspiracy to manufacture black powder and thermite, the judge adopted three years and a half and two years and nine months as the starting points. Defence counsel submitted in mitigation that Cheung Chun-fu was charged with possession of firecrackers and fireworks, which were similar to smoke bombs and smoke cakes. Therefore, the starting point for sentence should not be more than two years.

24.  In respect of the four canisters of pepper spray, defence counsel invited me to consider the case of Chau Lap Pui [4]. The Court of Appeal pointed out in that case that carrying a bottle of pepper spray was obviously less serious than carrying a stun gun. There is no sentencing guideline for this type of cases either. The Court of Appeal stated that if the pepper spray is not to be used for an unlawful purpose, the starting point should be 6 months. However, if it is intended to be used for an unlawful purpose, the starting point should be 9 months.

25.  Defence counsel also provided me with two District Court cases, namely Kwok Chi-chung[5] and Chui Wai-keung[6]. In Kwok Chi-chung, it involved a pepper spray containing nonivamide, and the judge took a starting point of six months. In Chui Wai-keung, the defendant had in his possession two stunning devices and one spray canister containing nonivamide. At the time, the District Judge, relying on the case ofChau Lap Pui, held that a sentence of not less than 6 months’ imprisonment was warranted for carrying a spray canister which contained nonivamide.

26.  Defence counsel also submitted that as the facts in the present case did not indicate the purpose of the pepper spray, this court could not rule out the possibility that the defendant would have used it in self-defence and not for an unlawful purpose. Defence counsel submitted that the starting point should be 6 months.

27.  It is noted that Cheung Chun-fu did not plead guilty at the earliest opportunity. He pleaded guilty only after the case had been fixed for trial, before the trial was due to start. Defence counsel referred me to the case of Ngo Van Nam and asked for a 25% discount.

28.  In addition, defence counsel asked me to take account of the fact that Cheung Chun-fu had already served 7 months’ imprisonment on the Mainland and had subsequently been sentenced in the District Court to 10 months’ imprisonment for the offence of “perverting the course of public justice”, in the hope that a further reduction could be granted.

29.  Along with the above, defence counsel also asked me to take into account that after his arrest, Cheung Chun-fu had led the police to the warehouse to conduct a search (i.e. assisted the police), which helped save time spent on searching. It was hoped that I could consider granting a greater reduction in the sentence.

My considerations

30.  In considering the sentence, the following factors have to be taken into account. First, a person is liable on conviction upon indictment to imprisonment for 14 years for the offence of “possession of explosive substances”, and he is also liable to imprisonment for 14 years for the offence of “possession of firearms without licence”.

31.  I fully agree with the observation of Zervos J in Chan Yiu Shing as to the necessity to impose a custodial sentence. However, in addition to that, I also have to consider the type of articles involved. In the present case, Cheung Chun-fu was in possession of firecrackers and fireworks. I agree that firecrackers and fireworks are relatively similar in nature and potential hazard to smoke bombs and smoke cakes, and very different from thermite and TATP explosives. However, considering the injuries (i.e. burns)  that can be caused by both firecrackers and fireworks, there is indeed some difference between smoke bombs and firecrackers.

32.  The firecrackers and fireworks were kept at the Tsuen Wan Warehouse of the Dragon Slaying Brigade and were apparently for use by members of the Dragon Slaying Brigade in their sabotage operations. I think the appropriate starting point is 20 months.

33.  As for the four canisters of pepper spray kept at the Tsuen Wan Warehouse, they were also apparently provided for use by members of the Dragon Slaying Brigade. I do not accept defence counsel’s submissions that the pepper spray could be used by the defendant in self-defence. It is clear that the pepper spray would be used by the Dragon Slaying Brigade in sabotage operations when they participated in demonstrations. If members of the Dragon Slaying Brigade (including Cheung Chun-fu)  needed to use the pepper spray, the only reasonable inference would be that they were using it against the police (i.e. to spray at the police). I am of the view that Cheung Chun-fu had in his possession the 4 canisters of pepper spray for an unlawful purpose. I therefore adopt a starting point of 12 months.

34.  I will give a 25% discount for Cheung Chun-fu’s guilty plea. Based on the starting points I have just mentioned, namely 20 months and 12 months, the sentences on the fourth and sixth counts will be 15 months’ and 9 months’ imprisonment respectively after the discount.

35.  The defendant Cheung Chun-fu left Hong Kong by speedboat and was arrested and detained by the relevant Chinese authorities for seven months before being repatriated to Hong Kong. On top of that, he was subsequently sentenced to 10 months’ imprisonment in the District Court for perverting the course of justice. I am of the view that if the defendant had not chosen to flee Hong Kong, he would not have been punished at all. Therefore, the fact that he has been punished is not a valid mitigating factor.

36.  As to the defence’s contention that the defendant was cooperative with the police after his arrest, generally speaking, the discount for the guilty plea has already taken that into account. As a matter of fact, the defendant pleaded guilty at a relatively late stage and I do not consider that there should be any further reduction other than the 25% discount.

Consideration of the totality principle

37.  In view of the two counts which carry two different terms of imprisonment, I must also consider the totality of the sentence.

38.  The common point between the two counts is that the defendant kept the articles in the warehouse used by the Dragon Slaying Brigade. However, firecrackers, fireworks and pepper spray are not completely identical in nature. Therefore, I am not ordering that all the sentences be served concurrently, but that only part of the sentences be served concurrently.

39.  I am of the view that 18 months’ imprisonment is an appropriate reflection of the culpability of the defendant.

Sentence

40.  The sentence for the fourth count is 15 months.

41.  The sentence for the sixth count is 9 months, 3 months of which are to run consecutively with the above 15 months, making a total of 18 months’ imprisonment.

Translated by the Court Language Section of the Judiciary and vetted by  Mr P Y Lo, Barrister-at-law.