The defendants Mr Au, Mr Chan, Mr Law, and Ms Su are respectively D4, D5, D6 and D7 in the court below and, for the sake of convenience I will continue to address them as such. D4 to D7 are jointly charged together and with other persons for:
(1) a charge of conspiracy to commit terrorist activities, contrary to Article 24 of the National Security Law and sections 159A and 159C, Crimes Ordinance, Cap 200; and
(2) a charge of conspiracy to cause explosions likely to endanger life or property, contrary to section 54(1), Crimes Ordinance, which is alternative to the 1st charge.
Their guilty plea to the alternative charge was accepted by the prosecution and therefore they were committed to this court for sentence.
On 6 May 2023, before this court the aforesaid defendants confirmed their plea and agreement to the Amended Summary of Facts prepared by the prosecution. I adjourned their mitigation and sentence to today pending training centre reports of D5 to D7. In so doing, D5 to D7 were told that all sentencing options were open. As regards D4, I did not obtain any report for him. I explained to his counsel, Mr Chau, my view that an imprisonment term would be the only viable option. As to this, Mr Chau agreed.
Brief Facts
It is agreed that between 1 April 2021 and 5 July 2021, both dates inclusive, the defendants and other persons unlawfully and maliciously conspired together to cause by explosive substances, including Triacetone Triperoxide (“TATP”), explosions of a nature likely to endanger life or to cause serious injury to property. I do not propose to recite everything said in the lengthy Summary of Facts. It suffices for me to say that I have fully considered its contents. In brief, the roles of D4 to D7 were as follows.
D4
Police investigation revealed that, in fulfilment of D4’s role in the aforesaid conspiracy, he together with the main culprit, that is Mr Ho Yu-wang (D3) rented a room in a guesthouse in Tsim Sha Tsui (“the Room”). After D4 had paid for the room charge, he and D3 checked in and resided there during the period between 7 June and 5 July 2021 where they planned and prepared for the manufacture of homemade high explosives and construction of viable improvised explosive devices (“IEDs”).
After the arrest action, the police found in the room, among other things, D3’s notebooks and papers which contained information pertaining to a plan of damaging the stable structure of Hong Kong (“破壞香港之稳定結構”); intensifying the contradiction between the Chinese Communist Party and various parties; triggering a domino effect; and making use of the opportunity to establish a resistance organisation afterwards.
The police also found a floor directory and a sketch of Kwun Tong Law Courts Building and information about the vicinity of Kwun Tong Magistracy and Tuen Mun Magistracy which could be served as observation posts, escape routes, and estimation of the travelling time from the courts buildings to the airport.
Besides, there were in D3’s documents references to the following matters:
(a) remote controlled cars and drones, including a sketch of the chassis of a radio-controlled toy car along with a transmitter unit with graphics;
(b) various explosives and effects, including TATP, hydrogen peroxide with purity beyond 30 per cent, acetone, ammonium nitrate, which was also known as fertiliser bomb, fuel oil, dynamite and cyclonie, which was also known as Hexogeon, with the abbreviation “RDX”, pressure pot and Schardin effect, etc; and
(c) escape routes and the possibility of police explosive search dog being able to detect any odour at the airport.
Apart from the aforesaid, there were also apparatus, laboratory equipment and other materials which could be used for the manufacture or placement of explosive substances, including droppers, measuring cups, measuring tubes, filter papers, glass bottles, glass rods, eye wash bottle, filter funnels, glass bowls, protective clothing, refrigerator, bubble wrap, carton box, paraffin oil, watch glasses, measuring cylinders, beakers, thermometers, electronic balance, spatulas, gloves, and wellington boots.
Recruitment of D5 and D6
Police investigation revealed that D5 was recruited by D3 to join and execute the plan. D5 then further engaged D6 to join and D6 agreed to place bombs in return for a reward. D6 understood that the purpose of the plan was to create a “resonance” to attract public attention and to incite others having the same political stance to take more radical actions against the government. In mid-June 2021, D5 and D6 met up at Wong Tai Sin MTR Station where D6 was given HK$500 as a reward. D5 and D6 then went to Apliu Street in Sham Shui Po where D5 bought a mobile phone and three SIM cards and gave them to D6 for communication.
Reconnaissance
Afterwards, D3, D4 and D5 conducted reconnaissance at and in the vicinity of court buildings:
(1) On the morning of 25 June 2021, D3 and D4 went to Tuen Mun Law Courts Building to conduct a site inspection;
(2) later on the same day, D3 and D4 met up with D5 at Yau Hong Street and then trio walked to Kwun Tong Law Courts Building for a site inspection. During the site inspection, D3 used his mobile phone to take photos of the Law Courts Building (including the main entrance and the back door), the roads nearby and the route to Sai Tso Wan Neighbourhood Community Centre. Subsequently, D5 asked D3 why he took photos of Kwun Tong Law Court Building and nearby places and D3 replied that he planned to place bombs and explosive substances thereat; and
(3) in the evening of 29 June 2021, D3 and D5 conducted a site inspection at the targeted buildings again. Photos were taken of Kwun Tong Law Courts Building, Kowloon East Government Offices, and Kwun Tong Police Station. Afterwards, D3 and D5 boarded a private vehicle outside Laguna Plaza and went to Tuen Mun. They stayed outside Tuen Mun Magistracy observing the vicinity and took photos.
Later, D5 was told by D3 that he, that is D5, was to place a package, luggage or backpack containing a bomb at Kwun Tong Law Courts between 10 July and 20 July 2021. D3 said that they had to carry out the plan before August 2021 and the Law Courts Buildings were chosen as the target premises to create a greater impact. D5 was told that after planting the bomb, he could leave by getting on a vehicle in the vicinity of Sai Tso Wan Neighbourhood Community Centre. The vehicle would then take him to the Airport where D5 would take a flight first to Singapore where he could take a transit to the UK.
D3 elaborated that the intended bombing of Kwun Tong Courts would involve two bombs. D5 was to place one bomb into a recycling bin on 6th floor lift lobby and then to make a phone-call to detonate the bomb. If the bomb did not go off, then the fall-back plan was to ask D6 to go there and trigger it without letting D6 know. D5 objected to putting D6 in harm’s way. However, D3 said that casualties would be inevitable if they were to do something big and that “We get dirty but the world will stay clean”.
D3 told D5 that only if they could create a strong resonance would they became famous and people would treat them seriously. And if the bombing campaign was successful, they would publicly admit responsibility in the name of “浮城”. Thereafter, “浮城” would become a recognised organisation and they could continue to carry out their future plans under such name.
D7
D7 was a friend of D3. Her role in the conspiracy was to source essential chemicals, namely hydrogen peroxide and hydrochloric acid, for D3 to manufacture TATP. Now, she was told by D3 that it would be most likely that the bombs be placed at Tuen Mun Law Courts Building because the location was close to the Airport and that would make his fleeing from Hong Kong easier. She was told by D3 that the plan had to be carried out in early July 2021 and he would leave Hong Kong by mid-July 2021, whether or not the Plan had been carried out, even if D3 said that he would continue to give instructions to those remaining in Hong Kong to continue with the plan. D7 did not expressly tell D3 if she would participate in the Plan but she agreed to source chemicals for him.
In or around late June 2021, in furtherance of the conspiracy D7 contacted her former boyfriend PW3 and sought to obtain through him hydrogen peroxide and hydrochloric acid but without success.
The Arrest
Eventually, D4, D5 and D7 were arrested by the police on 5 July 2021 and D6 on 12 July 2021.
The Expert Opinion
PW56, a Senior Superintendent of the Explosive Ordnance Disposal Bureau, had attended the Room and reviewed the relevant documents and exhibits. He opined that there was both the intention and the developing culpability to carry out bombing attacks on targets. The Plan had developed beyond a concept and actions including planning, procurement of bomb-making items, and reconnaissance had commenced. The dates specified for the attacks provide for a realistic timeframe to complete the capability, including manufacturing both explosives and bombs. Preparatory actions had been taken for the manufacture of homemade high explosives (specifically TATP), the construction of viable IEDs, and the placement of IEDs.
Antecedents
Whilst D4 is already aged 21, both D5 and D6 are only 17 years of age even now. The three of them were students before their arrest. As regards D7, she is now aged 20. All four of them had a clear record.
Sentencing Considerations
The charge to which the defendants have pleaded guilty carries a maximum sentence of 20 years’ imprisonment on conviction upon indictment. No sentencing tariffs has been laid down by the Court of Appeal. Given the variety of situations in which the offence can be committed, what would be appropriate in the given case must be fact specific. In this regard, the local environment and the prevailing social setting in which the offence took place would also be a relevant sentencing factor, compared with Secretary for Justice v Leung Wing Hong. For this reason, although foreign cases on sentencing principles and sentencing consideration of similar offences may be of reference value, the actual sentences imposed in those cases are not directly applicable to Hong Kong.
Having regard to the seriousness of what each of the defendants had agreed to do and had actually done as mentioned in the Amended Summary of Facts, it goes without saying that the offence is a very serious one. I have not lost sight of the fact, thanks to the effort and effective move of the police, the offence was nipped at the bud so that no explosive had actually been manufactured, no explosions had been caused and therefore no casualties or damages has been resulted. These features distinguish the present case from local sentencing authorities like Attorney General v Cheung Shu Tai and Others, HKSAR v Yip Kai Foon and HKSAR v Lo Yat Sun Louis.
In sentencing the defendants, I have the provision of section 109A, Criminal Procedure Ordinance, Cap 221 in the forefront of my mind. However, in my view, the present offence is aggravated by the following considerations:
(1) The offence took place against the backdrop of a social unrest in Hong Kong when many people resort to criminal and violent activities in the expression of their political views. What the defendants did would have caused the societal condition to change from bad to worse.
(2) Whilst a distinction may properly be drawn between planting an explosive device with the primary purpose of endangering life and doing so with the primary purpose of causing damage to property, in the present case, the defendants’ objective was to destabilise the community and they were reckless as to the number of people who might be killed or maimed as a consequence of the bombing, compared with R v Byrne and R v Martin.
(3) With court premises as its targets, the plan, if succeeded, would seriously undermine the dignity of the Judiciary and the very symbol of the rule of law in Hong Kong.
(4) At a time when information about how to obtain ingredients for making explosives, as well as the instruction themselves, were so readily available on the Internet and the materials for improvised explosives were generally found in commercial and household items, deterrence must play a significant part in the sentencing process (R v Marcin Kasprzak applied in HKSAR v Chan Yiu Shing).
Sentence
Even though the defendants were parties to the same conspiracy, the degree of their culpability are not all equal. Among them, D4 is obviously more culpable than D5 to D7, as he was involved in the renting of the Room, the planning and preparation for manufacturing bombs, as well as the reconnaissance of target premises. In contrast, D5 and D6 were just the foot soldiers in the conspiracy. As regards D7, her attempts to procure the ingredients for the manufacturing of explosive were unsuccessful.
D4
In my judgment, in the case of D4, having considered his overall criminality and all the relevant circumstances, deterrence, public condemnation and protection of the society instead of rehabilitation, must be the dominant sentencing policies (see for example Secretary for Justice v Wong Chi Fung and Two Others, HKSAR v Tang Ho Yin, Secretary for Justice v Chung Ka Ho and Secretary for Justice v CWC).
Having considered D4’s case in the round, I come to the conclusion that, apart from imprisonment, no other method of dealing with him is appropriate. This is not to say that his young age and other personal circumstances should be ignored completely when it comes to identifying the appropriate starting point HKSAR v Law Ka Kit and Others recently applied in Secretary for Justice v Tang King Wa. In my view, the public interest plainly requires that D4 be sent to prison for a substantial term. On the other hand, his sentence should not be so crushing as to stifle all hopes of his rehabilitation. On balance, I adopt 8½ years’ imprisonment as the starting point.
I believe that Mr Chau has said all that can be said on D4’s behalf in mitigation, both written and oral. However, in my judgment, the only mitigating factor which may reduce D4’s sentence is his timely plea. After giving the customary one-third discount for his plea, I sentence him to 5 years and 8 months’ imprisonment.
D5 to D7
I do not intend to go through the Training Centre Reports of D5 to D7 which can be found in the court’s file. It suffices for me to say that I have fully considered them which are favourable. Copies of the reports have been provided to the parties and no objections are taken of their contents. I am fully alive to the threshold condition of a Training Centre Order as elucidated in Wong Chun Cheong v HKSAR. As aforesaid, I note first that D5 and D7 are still under 20 years old and the offence to which they now stand convicted is punishable with imprisonment.
Secondly, in view of their relatively minor and secondary roles in the conspiracy, in my judgment it is not the case that the interest of the community requires that the rehabilitative approach should give way to a punitive or deterrent sentence.
Thirdly, I am satisfied that having regard to the respective character and previous conduct of D5, D6 and D7 and to the circumstances of the offence, it is expedient for their respective reformation and for the prevention of crime that each of them should undergo a period of training in a training centre.
Fourthly, I bear in mind that a period of detention in a training centre ranges from 6 months to 3 years, from the day of his or her sentence and the actual length of detention is for the Commissioner of Correctional Services to decide. That period of detention, however, would not be reduced by any period during which the defendant was in custody before sentence.
Within the institution, inmates attend half-day educational classes and receive half-day vocational training. They also receive character development training. After his or her release from a training centre, he or she may be subject to supervision for a period of 3 years.
Having regard to the facts of this case as well as the role and the circumstances of each of the defendant, I am satisfied also that a Training Centre Order is neither too lenient nor too harsh for D5, D6 and D7.
I am further of the view that Training Centre can suitably cater for the rehabilitative need of D5 to D7 on the one hand, and at the same time provide a certain degree of private and public deterrence on the other and is an appropriate sentencing option in all the circumstances.
Therefore D5, D6 and D7 are sentenced to Training Centre.