HKSAR v. LEUNG KWOK HUNG

HCCC 274/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 274 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant has pleaded guilty to two counts. The 1st count being that he, between 24 October 2014 and 28 October 2014 at his home, made explosives, namely triacetone triperoxide, which is referred to as TATP in short form, with intent by means thereof to endanger life or cause serious injury to property and the 2nd count is that he attempted to cause explosion at the report room of the Aberdeen Police Station with intent to cause by the explosion which is likely to endanger life or to cause serious injury to property. Both are offences under section 54 of the Crimes Ordinance, Cap 200. Each of them carry a maximum sentence of 20 years’ imprisonment.

The facts show that on 28 October at about 6.10 pm, the defendant entered the report room at the Aberdeen Police Station and approached the front desk. He put a paper box on the desk and the box contained five transparent test tubes containing white powder. He said that these were explosives and that he would detonate them. He then proceeded to open one of the tubes and removed the lid, and then he took out a lighter from his trouser pocket and attempted to ignite it. Fortunately, for all concerned, he did not succeed and he was finally overpowered by the officers present. Subsequently, the defendant threw a piece of paper on the floor upon which he had written that he had been thinking of doing this for three years. He had tried making TATP before but had failed and this was his last time.

The white powder in the five tubes were examined later and found to contain TATP. It was also found that the opened tube in the defendant’s hand, had it exploded, would have caused serious injury to the defendant’s hand and body and also serious injury to officers in close proximity, which is up to 0.5 metre radius. Needless to say had all five tubes exploded, it would have caused even more major injuries.

The police subsequently searched the defendant’s home where he lived with his parents. Inside the home were found, amongst other things, chemicals which were precursor chemicals for manufacturing TATP. The bomb disposal expert officer says that it was in his opinion that the TATP which the defendant brought with him to the Aberdeen Police Station were manufactured at his home. The lighter which the defendant had was found to be functional and a naked flame could be generated from it. Subsequently, the technology crime division of the police force examined the defendant’s computer and found that he had used his computer for internet browsing regarding the making of TATP.

Under caution, the defendant admitted that he had brought the explosives to the Aberdeen Police Station for revenge and also that he did not want to face the world anymore. He wanted to avenge himself because of the way he was treated when he was arrested for a burglary three years before these offences. The defendant admitted he knew that the explosion, if it happened, would cause injuries. He also explained how he made the TATP at his home. He said he had used his pocket money to buy all the chemicals and tools that were needed to manufacture the TATP.

The defendant was born in 1998 and will be, in a few months, 18 years old. He had indeed committed criminal offences before and in 2011, was sentenced to probation for 36 months for burglary and common assault.

It is trite or needless to say that these are very serious offences and normally a sentence of over 10 years’ imprisonment would be merited. This case causes me great difficulty in assessing the right sentence in order to balance the protection of the public as against the defendant’s youth and punishment and his reform.

First, I must say that I recognise and am encouraged by the love and support that the defendant’s parents have shown towards him and his rehabilitation. Despite the advanced years of the defendant’s father and his mother, they nevertheless have continued to visit him recently at least twice a month. I have also been given letters written by the defendant’s relatives pleading for leniency. Miss Ho, the social worker, has also written a letter to this court which shows her continued care and concern about the defendant’s rehabilitation despite all that has happened. So in the midst of these unfortunate events, the defendant is a very lucky young man and hopefully he can recognise that.

The picture I can discern from all the reports show that the defendant is an intelligent young man and has, in previous years, been a helpful and caring son as evidenced by the incidents disclosed by his parents. What went wrong perhaps was due to the fact that despite being diagnosed with dyslexia when he was in Form 1, there was no follow-up in the form of medication and medical consultation, and which probably explained his bad academic performance and his bad temper tantrums. When the defendant was told by his school that he had to repeat Form 2, he gave up his formal education. Though he started working, he eventually stopped working and spent his time at home on computer games. He became more and more socially withdrawn and according to the probation officer, he became one of the “hidden youths” in our society.

It is a shame, because from the many certificates that Mr Hui, his counsel had shown to me, the defendant during his school years had excelled in sports and also he had good grades in his final year relating to computer technology. It was only after the defendant committed his burglary that he came to the attention of the Social Services. Therefore, it shows to me that if the defendant had received the proper guidance and treatment at the correct time, he would have led a more positive and constructive life, but instead he started on the path of his own destruction and leading to his appearance in court today.

I had called for many reports on the defendant apart from psychiatric and psychological reports, also training centre reports and the Young Offender Assessment Panel report. Perhaps due to the defendant’s lack of insight into his problems, he was not very co-operative and it was in the end decided that he was not suitable for training centre and the Young Offender Assessment Panel decided that the only avenue for this defendant is to be sent to prison. I hope, as his counsel, Mr Hui, has assured me, that now you have insight into your problems and he is willing now to accept psychological counselling and psychiatric assistance whilst he is being kept in prison and that the defendant will, over this time in prison, learn a trade or perhaps even complete his secondary school studies.

As I have said at the beginning, these are very serious offences but I do accept that by his pleas of guilty that the defendant is remorseful. I also accept that over the course of his young life, there has been mental problems from dyslexia to oppositional defiant disorder, conduct disorder and mixed anxiety depressive disorder.

Miss Becky Tong, the clinical psychologist in the Correctional Services Department said at paragraph 14 of her report that “the presence of psychotic symptoms and his negative symptoms such as diminished evolution, flat affect and poverty of speech suggested the diagnosis of schizophrenia”. She further said that “It should be noted that he committed the present offences with suicidal intent which was likely due to his persistent negative emotionality, nihilism and hopelessness”. In her opinion, the risk of your reoffending is in the moderate range. As for the future, Miss Tong recommended psychiatric intervention and psychological treatment whilst in prison.

Now, regarding sentence, as Mr Hui pointed out there is no guidelines as to sentence and there is a wide range of sentences in the past depending on the facts of each case. It is clear from the research of Mr Hui that sentences ranged from community service order up to 14 years’ imprisonment. In the Australian case of Leach v The Queen [2008] 183 A Crim R 1, at paragraph 12, it was said that:

“While mental impairment will often tend to diminish moral culpability, and hence tend to diminish the appropriate sentence, it may have other effects in some circumstances. As noted by the then Gleeson CJ in

“The existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public”.”

It is also appropriate to point out, as Mr Cheung did on behalf of the prosecution, that the facts of the case in Leach was vastly different from the present case. As in Leach, the defendant had pleaded guilty to the manslaughter of his seven-week old child and he was mentally retarded and was found unable to cope with the caring for the child and therefore was found unlikely to reoffend.

However, I find that the sentencing principle is suited for use in the present case. As was pointed out in the textbook, Sentencing in Hong Kong, 7th edition, at page 378, where it says that:

“If an accused suffers from a mental disorder, this may be of relevance in two ways. First, it affects the assessment of the extent of the objective criminality, and second, it influences the question of whether the case requires a deterrent sentence as such a person may lack effective powers of reasoning or control.”

The passage continues, as Spigelman CJ noted in R v Israil [2002] NSWCCA 255:

“To the extent that mental illness explains the offence ... then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law.”

As the court in Leach’s case had referred to the case of R v Verdins [2007], where the court in the case of Verdins actually set out a number of ways in which impaired mental functioning, whether temporary or permanent, was relevant to the exercise of a sentencing power and the principles are stated there and I do not need to repeat it here.

As I have said earlier, in a normal case these offences would have merited a total sentence of well over 10 years’ imprisonment. But in assessing a starting point sentence, I not only have to take into account public interest, I have also to balance the facts of the case, the background and the proportionality of the sentence, and also the fact that the sentence of imprisonment that I hand down would not be of such a length as to leave the defendant with a sense of hopelessness that he will not see the light at the end of the tunnel. Therefore, having considered all the above matters and the criminal culpability of the defendant, I have determined that an appropriate starting point would be a total sentence of 9 years’ imprisonment.

Therefore, I will sentence the defendant in the following way. In relation to Charge 1, the sentence will be 9 years but reduced to 6 years because of his plea. In relation to the 2nd count, similarly it will be 9 years reduced to 6 years because of his plea. Taking a step back, having regard to the totality principle, I will make both sentences concurrent. I will of course stress the need for the defendant to accept psychiatric intervention and psychological counselling during this time. I will make a special request to the commissioner of Correctional Services to look into these interventions as recommended by the clinical psychologist, Miss Becky Tong, of the Correctional Services Department.