HKSAR v. CHEUNG HO YEUNG

CACC 16/2024, [2026] HKCA 1755

On Appeal From [2024] HKCFI 280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 16 OF 2024

(ON APPEAL FROM HCCC NO 127 OF 2023)

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REASONS FOR JUDGMENT

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Hon Pang JA (giving the Reasons for Judgment of the Court):

1.  The applicant was the sole defendant in HCCC 127/2023 which involves two charges, namely ‘‘conspiracy to commit terrorist activities’’, contrary to Article 24 of the National Security Law and sections 159A and 159C of the Crimes Ordinance (Count 1) and, in the alternative, ‘‘conspiracy to cause explosions likely to endanger life or property’’, contrary to section 54(a) of the Crimes Ordinance (Count 2). The applicant pleaded guilty to Count 2 and was sentenced to 6 years’ imprisonment by Alex Lee J (‘the Judge’) in the Court of First Instance. He applied for leave to appeal against sentence.

2.  HCCC 127/2023 was a split-off case of HCCC 103/2023 in which the applicant was one of seven defendants[1]. The core allegations against him and three of his co-accused were as stated in the following paragraphs of a long summary of facts in which they were known as “the Defendant” and “A1 to A3”:

“ 4. In around January 2021, the Defendant joined a local political group called ‘Student Politicism / 賢學思政’. On the other hand, A1 and A2 had been a member of another local group named ‘Returning Valiant / 光城者’ (‘RV’) since early 2021. A1 and A2 were in a relationship; and they were responsible for the operation of RV.

5. In around mid-April 2021, the Defendant’s political group and RV had some disputes. In late April 2021, the Defendant together with another person from his political group met A1 in person at a district councillor’s office. They resolved the dispute and planned to have the two political groups working together with a view to achieving their political objects. The Defendant became acquainted with A1.

6. In early May 2021, the Defendant withdrew from his own political group. He approached A1 and A2 and arranged to meet them in person to discuss some ‘important matters’. One or two days later, the Defendant met A1 and A2 in a hotel room together with other persons from the student union of a university in Hong Kong:-

(a) The Defendant told A1, A2 and others that he planned to connect the student unions of local universities, to search for funds and resources through their influence and network, with a view to finance and support anti-government activities or resistance campaigns;

(b) The Defendant also told A1, A2 and others that he had designed a logo for a radical political group named ‘矢名’ with its foreign branch named ‘Black Bloc’ based in the UK.

7. In early June 2021, the Defendant, A1 and A2 met again. A1 and A2 came to pick up the Defendant in a private car and they drove to an open carpark in Ting Kau where the three first discussed the Plan (i.e., the conspiracy concerned in Charges 1 and 2). The Defendant told A1 and A2 that he had planned to escalate his actions against the government through more radical means in order to attract support and funds from other political groups or activists, and that his next target premises would be the government offices, police quarters and court buildings etc. The Defendant asked A1 and A2 to join his plan and help recruit other persons. A2 told the Defendant that there was a person, later identified to be A3, who held similar views as the Defendant and was planning to make bombs. A1 and A2 suggested to put the Defendant through to A3 so that they could formulate and execute the Plan together. The Defendant agreed. The Defendant and A2 then exchanged the details of their Telegram accounts.

8. Few days later, A3 approached the Defendant via Telegram, saying that he was the person whom A2 introduced. The Defendant mentioned to A3 that he could provide funds and help recruit others to execute the Plan that A3 had in mind. A3 told the Defendant the details of his Plan, in particular the target for bombing was court buildings. The Defendant then undertook to finance the buying of necessary equipment for the explosive substances and assisting A3 to leave Hong Kong after the execution of the Plan. A3 claimed that the Defendant would put HKD40,000 in an envelope and then placed it in a washroom cubicle at Olympian City for A3 to take it. The Defendant also told A3 that he might help conduct inspection at the target premises of bombing and recruit lookouts.

9. The Defendant then sent information about the making of TATP to A3 via Telegram, and A3 saved the information in his mobile phone [Annex A: screen captures of the information provided by the Defendant to A3].

10. In around mid-June 2021, the Defendant called A3 and asked him to go to a washroom at Olympian City. Following the Defendant’s instruction, A3 collected the envelope which contained HKD 40,000 cash. A3 used some of the cash provided to purchase the necessary equipment for the manufacture of TATP and kept the remaining sum (approximately HKD 34,720) at the Premises. A3 made entries in his notebooks recording that he had received the funds from the Defendant. A3’s notebooks were seized by the police at the Premises … [Annex B: copy of the relevant records].

11. In mid-June 2021, the Defendant contacted A1 and A2 through Telegram and arranged to meet them in Kwai Chung to discuss the future of social movement in Hong Kong. In around mid or late June 2021, the Defendant, A1, A2 and other persons had a barbecue in Yuen Long. A1, A2 and the Defendant discussed plans of forming study groups to educate people on political culture, setting up a martial arts club to enhance the physical strength and ability of the protesters, and recruiting more people to join and support the social movement after the execution of the Plan.

12. On the next day, the Defendant called A1 about the Plan that he and A3 intended to carry out, in particular the targets of bombing was Tuen Mun and Kwun Tong Law Courts Buildings and that the explosive to be used would be TATP. The Defendant also told A1 that he had provided HKD 40,000 cash to A3.

13. In late June 2021, A3 told the Defendant that he had already conducted the site inspection and asked the Defendant to help recruit lookouts to station at various observation posts in the vicinity of Tuen Mun and Kwun Tong Law Courts Buildings. The Defendant agreed to help recruit at least 10 persons to act as lookouts on the day of executing the Plan. The screen captures of the relevant Telegram messages between A3 and the Defendant are at Annex C. A3 also made entries in his notebooks recording that the Defendant would recruit lookouts and provide funds for the Plan [Annex D: copy of the relevant A3’s notebook records].”

3.  For a full breakdown of the parts that they and the other co‑accused (“A4 to A7”) played during the charge period of 1 April 2021 to 5 July 2021, one goes to another paragraph of the summary as follows:

“ 3. The roles of A1 to A7 and the Defendant were briefly set out as follows:-

(1) A1 and A2 put the Defendant through to A3, so that A3 and the Defendant could work together in executing the Plan;

(2) A3 was the mastermind who engineered the Plan and recruited other persons to join it. He was also primarily responsible for making the explosives, TATP, IEDs or bomb(s);

(3) The Defendant had assisted A3 in financing and he also agreed to recruit other persons to act as lookouts on the day of executing the Plan;

(4) A3 and A4 rented a room at a guesthouse, namely Room 4, Champion Hotel, Flat C, 13/F, Golden Crown Court, 68 Nathan Road, Tsim Sha Tsui, Kowloon (‘the Premises’) for planning and preparing for the making of explosives, specifically TATP, and construction of viable IEDs;

(5) A3 recruited Miss Ng Yu-ching (‘PW6’) and A5 to execute the Plan. A5 further engaged A6. A6 agreed to place bombs in return for a payment;

(6) A3, A4 and A5 conducted reconnaissance or site inspections at and in the vicinity of court buildings as target premises; and

(7) A7 sourced essential chemicals, namely hydrogen peroxide and hydrochloric acid, for A3 to manufacture TATP.”

4.  For impact, there is yet another paragraph on how far the conspiracy had gone and the imminence of the threats that it posed, when foiled:

“ 41. PW56 (Senior Superintendent Alick Bryce McWhirter) or the Explosive Ordnance Disposal Bureau had attended the Premises on the day of raid (5 July 2021). He had also reviewed the relevant documents and exhibits subsequently. PW56 forms the opinion that there was both the intention and a developing capability 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 attacks provide for a realistic time frame 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.”

5.  The applicant was aged 20 and a university student at the time of the offence. He was aged 23 when sentenced. Before the present case, he had no previous criminal conviction. Be that as it may, and accepting that the social atmosphere at the time was “corrosive” and “might cloud people’s judgment”, the Judge nevertheless took a grim view of the conspiracy and called it “evil”. He noted that the applicant’s involvement was “not only persistent but also deep and well-thought through”[2].

6.  Having referred to a number of local and foreign cases on topics such as sentencing national security offences, giving regard to prevailing social settings, and the approach to dealing with violent conspiracies that have been timely detected, the Judge focused on the applicant and sentenced him as follows (“D8” in the text)[3]:

“ In my assessment, D8 is more culpable than D2. He took the initiative of asking D1 and D2 to help him. He provided finance for D3 and agreed to help him recruit other for the execution of the Plan. Under caution, he admitted that he had referred ‘阿勇’, who he said was a member of ‘Black Bloc’, to D3. Besides, D8 helped D3 by sending to the latter information on how to make TATP. This act calls for deterrence in the sentencing process as researching explosive substances was one step away from making them and another step away from using them, R v Marcin Kasprzak [2014] 1 Cr App R (s) 20, applied in HKSAR v Chan Yiu Shing [2018] 1 HKLRD 421. I also note that D8 was a university student at the time and he is older than D2 and D3, and therefore he should have know better. But for D8’s involvement and encouragement, D3’s plan might have remained as a plan only. As aforesaid, D8’s course of conduct, which spanned a lengthy period of time and obviously involved careful planning and liaising with other people, was no mere impulsive act.

Looking the matter in the round, I adopt 8 years’ imprisonment as the starting point of his sentence, which is reduced to 6 years’ imprisonment for his plea after committal but before listing.

As regards D8’s provision of a witness statement to the prosecution, I do not consider that he should be entitled to any discount in this regard. This is because he had previously downplayed his role in the offence and misled the prosecution in the assessment of his and others’ culpability. Had it not been his misleading statement, he would not have been listed as a prosecution witness in the first place.

Therefore, D8 is sentenced to 6 years’ imprisonment.”

7.  The foregoing is but a collection of excepts from both the summary of facts and the Judge’s oral reasons for sentence. Having read everything in full, we are of the view that the Judge’s conclusion was neither wrong in principle nor manifestly excessive. For matters that are disclosed in the case papers, however, we agree with the applicant that a further discount to his sentence is warranted. The respondent agreed and did not argue otherwise.

8.  Accordingly, the applicant’s application for leave to appeal against sentence was allowed. So was his appeal. His sentence of 6 years is reduced by another eight months to 5 years 4 months.