HKSAR v. LAI CHUN PONG

[English Translation – 英譯本]

HCCC 164/2022 & 255/2023(Consolidated)

165/2022, 256/2023(Consolidated Hearing)

[2024] HKCFI 3635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 164 OF 2022 & 255 OF 2023 (Consolidated)

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Reasons for Sentence

1.  The defendant, Lai Chun Pong (Lai), faced three charges, the first being “Conspiracy to commit bombing of prescribed objects”[1], the second being “Conspiracy to cause explosions of a nature likely to endanger life or to cause serious injury to property”[2], an alternative charge; and the third being “Conspiracy to commit murder”[3].

2.  Lai pleaded not guilty to the charges. After trial, he was found guilty by the jury of the alternative charge (i.e. Charge 2) and acquitted of the other two charges.

The Facts

3.  The circumstances of the case to be considered are: Lai was one of the defendants at a trial that spanned over 80 days. The prosecution’s case centred on a conspiracy referred to as the “12.8 Plan”, which allegedly would involve the use of bombs and arms by the conspirators to kill police officers during a procession scheduled for 8 December. Lai, according to the prosecution, was one of the conspirators of the “12.8 Plan”, hence the first and third charges.

4.  Details of the “12.8 Plan” were set out in my Reasons for Sentence concerning the other six defendants (namely Wong Chun Keung, Ng Chi Hung (Ng), David Su, Eddie Pang Kwan Ho (Pang), Choi Hoi Ming, and Chan Yuk Lung). They will not be repeated here.[4]

5.  The evidence against Lai came primarily from Pang, the tainted witness who testified for the prosecution after pleading guilty. The prosecution alleged that the defendant mainly committed the following acts: (a) stealing chemicals during the break-ins at two universities; (b) being present when Ng tested a detonator at the back stairway of Lai’s 3C Repair Studio; and most importantly (c) assisting Ng on the night of 7 December or in the small hours of 8 December at Wah Yan College as Ng encountered difficulties in assembling two Improvised Explosive Devices (IEDs).

6.  In addition to Pang’s testimony, the prosecution also relied on a mobile phone (Exhibit P880) seized at 3C Repair Studio where Lai worked. The messages and photos stored on the phone likewise served to implicate the defendant. According to the expert’s evidence, the photos retrieved from that phone included an image of the two IEDs then still sitting inside Wah Yan College. The expert pointed out that the photo was taken with P880.

7.  Besides, the prosecution also relied on messages sent from Telegram user account “Lau Fau Shan Knifer”, which were known to be sent by Ng, and identified Telegram user account “Finished folding (homophone) the paper crane(s)?” to be Lai. These two accounts did communicate by phone via Telegram on 7 December. The prosecution contended that such communication served to prove that when Ng encountered difficulties on 7 December, he did ask Lai to go to Wah Yan College to assist with assembling the bombs. As a matter of fact, Pang also testified that Lai did go to Wah Yan College and assist.

8.  Before the jury was formally empanelled, Lai had challenged the admissibility of Exhibit P880 (i.e. the contents of the phone). Having heard the submissions, I ruled that Exhibit P880 was admissible as evidence.[5]

9.  It was therefore for the prosecution to formally adduce evidence to prove the guilt of Lai. After the prosecution concluded its case, Lai elected not to give evidence, nor did he call any witnesses.

10.  The jurors found Lai guilty only of the alternative charge despite the evidence presented, which included Pang’s testimony that Lai was present at the scene, as well as the expert’s statement that the photographs retrieved from Lai’s phone (Exhibit P880) were indeed taken with that same device. The photographs showed that the two bombs were still at Wah Yan College. Additionally, there were phone records which showed telephone communication between “Lau Fau Shan Knifer” and “Finished folding the paper crane(s)?”. In the circumstances, the jury nonetheless convicted the defendant only of Charge 2. In my view, this likely indicates that the jury did not accept the evidence that the defendant had physically travelled to Wah Yan College. Had they accepted the evidence, they would not possibly have acquitted the defendant of Charge 1. In my directions to the jury, I clearly explained the meaning of a “prescribed object”. A “prescribed object” means an infrastructure facility, a place of public use, a public transportation system, or a state or government facility. I further clarified that the prosecution in this case relied on “a place of public use”, the definition of which is broadly inclusive. It refers to those parts of any building, land, street, waterway or other location that are accessible or open to the public, whether continuously, periodically or occasionally, and whether or not upon the payment of any fee, and includes any commercial, business, cultural, historical, educational, religious, governmental, entertainment, recreational or similar place that is so accessible or open to the public.

11.  There was no evidence to show that the defendant Lai knew where the two bombs were to be placed. According to the evidence, Ng, Wong Chun Keung and David Su each had a map marked with the intended locations of the two bombs, and they obviously knew that the bombs were to be placed on Hennessy Road. However, there was no evidence to suggest that Lai shared this knowledge. Had the jurors accepted that Lai went to Wah Yan College to give assistance, it would mean that Lai must have been aware that the two bombs would be placed somewhere in Wan Chai within a short time rather than remaining at Wah Yan College. Even if the defendant did not understand the legal definition of a “prescribed object”, the Court had already explained that it would definitely be a public place, which includes any street. Therefore, had the jury concluded that Lai went to Wah Yan College to give assistance, they could not possibly have acquitted him of Charge 1. I am of the view that the jurors were sure about the defendant’s knowledge of the bombs, but they were not sure that he was part of the conspiracy.

12.  In sentencing, I shall take into account the testimony of Pang, save for the part concerning Wah Yan College. All the rest will be considered in determining the sentence.

Background

13.  According to the submissions by the two counsel for Lai, Lai was born in Hong Kong in 1991. He was 28 years old at the time of the offence and is now 33. He is unmarried. He lost his father as a child and was raised in a family with three elder sisters and his mother who later remarried. At the time of the offence, Lai was living in a public housing unit with his mother and stepfather, and he was the primary breadwinner of the family.

14.  Lai was educated up to Form 5. After completing secondary school, he attended the Hong Kong Institute of Vocational Education (IVE), where he majored in automotive engineering. However, during his time at IVE, he realized a lack of interest in repairing vehicles and dropped out. Subsequently, he worked as a full-time automotive advertisement installer and a part-time performer at Ocean Park. In December 2013, he established the 3C Repair Studio, which mainly provided mobile phone repair services. On top of his regular business, he offered repair services to students with financial difficulties and organised free tutorials to help underprivileged children, young people, and the elderly learn how to use smartphones.

15.  The defence submitted a number of mitigation letters written by the defendant’s family members, friends, teachers, and individuals he met while he was on remand, asking for leniency. While I do not intend to detail the contents of all the letters, they collectively describe the defendant as a dutiful son, a caring family member, and a helpful individual who treats others with sincerity and kindness. It is noted that during his time on remand, the defendant has not given up on himself. Instead, he has sought to improve himself by learning multiple languages and reading books on history, philosophy, literature, and economics within the limitations of the prison’s book quota. The defendant has also enrolled in a distance-learning course in economics and plans to pursue further studies in the future by taking degree programmes in economics, computer science and translation.

16.  Lai was deprived of time with his family during his remand, and he knew that his mother visited him daily despite her ill-health. He felt that he had not fulfilled his responsibilities as a son and was deeply remorseful. He hoped to finish serving his sentence as soon as possible in order to return to the community and to fulfill his filial duty by caring for his elderly mother.

17.  In mitigation, the defence submitted the case of Martin[6] for the Court’s consideration. That case is about the likely result of any explosion or the target of any conspiracy, the role of the individual defendant, the nature, size and likely effect of any explosive device, the motivation of the defendant and, where death, injury, or damage had been caused, the nature and extent of the death, injury and damage in question.

18.  The defence also cited the case of Kwan Ka Yiu[7], a recent one in which Lai J passed sentence on 30 July 2024. The defence submitted that the nature of the offence in that case is similar to the present one. It concerns a conspiracy among the defendants to remotely detonate an improvised radio-frequency explosive device likely to endanger life or to cause serious injury to property. The offence took place amidst the social events in 2019, and the intended targets of the conspiracy were likewise police officers. The conspiracy involved triggering explosions at roadblocks or police stations. The trial judge adopted a starting point of 12 years’ imprisonment for D1 who assumed the role of a coordinator; and one of 11 years for the other two defendants who played assisting roles. The defence submitted that in the present case, as far as the facts were concerned, the defendant only provided limited assistance and invited the Court to consider a starting point of less than 10 years.

Considerations of the Court

19.  “Conspiracy to cause explosions of a nature likely to endanger life or to cause serious injury to property” carries a maximum term of 20 years’ imprisonment. There are no sentencing guidelines for this offence.

20.  The Court takes account that the defendant was not the mastermind, and it was clear that he just assisted Ng, the principal offender. The Court accepts that, in light of the verdict of the jury, the size, nature, and strength of the two bombs found at Wah Yan College could not be taken as a basis for sentencing. Since the jury convicted the defendant of “Conspiracy to cause explosions of a nature likely to endanger life or to cause serious injury to property”, it was evident that in the jury’s view, the defendant was aware of the more than light severity of the explosion he conspired to cause, which would likely endanger life or cause serious injury to property.  Moreover, the jury must have taken into account the 2019 Anti-ELAB Movement as background.

21.  Having considered all the circumstances, I take 11 years as the appropriate starting point for sentence. As the defendant pleaded not guilty, he is not entitled to any discount for a guilty plea.

22.  In view of the defendant’s good character at the time of the offence, and the fact that he often helped those in need, I would exercise my discretion and grant the defendant a two-month reduction of sentence.

Sentence

23.  For Charge 2, i.e. the alternative charge of “Conspiracy to cause explosions of a nature likely to endanger life or to cause serious injury to property”, I sentence Lai Chun Pong to a term of 10 years and 10 months’ imprisonment.

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