At 22.30 on 19 July 2019, the defendant was intercepted by police officers outside Flat D, 20th Floor, Lung Shing Factory Building, Texaco Road, Tsuen Wan (the Flat).
Upon entry into one of the rooms inside the Flat, police officers found 10 petrol bombs inside a cabinet. The room in question was rented by the defendant back in February 2019 through the assistance of a friend, one Mr Chan.
Between 20 June 2019 and 19 July 2019, (ie one month before the defendant’s arrest) CCTV depicted that the defendant went to the Flat on 24 days. Between 10 July 2019 and 19 July 2019, only the defendant attended the Flat. On various occasions, the defendant was seen to carry items into and out of the Flat.
Apart from the petrol bombs, at the centre of the Flat, 18 piles of TATP (Triacetone Triperoxide) were also found on a folding table. The weight of one of the piles was measured to be approximately 40 grammes in weight. As a result, 720 grammes of TATP was estimated to be placed on that folding table. Senior bomb disposal officer from the Explosive Ordnance Disposal Bureau (EOD) confirmed that the condition and location of the TATP was consistent with a homemade primary detonating explosive.
To the left of the folding table and on top of one freezer, another pile of TATP was found. Inside the freezer, TATP was also located on a glass beaker. Three packets containing TATP were also uncovered inside the freezer.
Inside the toilet, precipitate of TATP was also detected. In total, approximately 1,000 grammes of TATP was found inside the Flat. The TATP was capable of detonation which could be caused by heat, friction or impact.
According to the Senior Superintendent’s report, TATP is inherently more dangerous than TNT. Whereas TNT requires a detonator, TATP can be used as an explosive in its own right and spontaneously explode even with static discharge generated by the human body.
When comparing the two explosive substances, I do not find the materials submitted by Mr Ma, namely the note titled “Study of TATP: Blast characteristics and TNT equivalency of small charges” to be convincing because the study took place in a controlled environment and was not reflective of a real-world explosion.
I am of the view that given the TATP’s greater sensitivities and thus ease of detonation, the potential harm to the public was even greater. Because of its instability and danger posed to the general public, the EOD officer decided to detonate the TATP on-site after evacuation of all the occupants of the factory building in question and the nearby buildings as well.
The TATP found on the folding table, ie 720 grammes, was detonated on the roof of the factory building. A video capturing the explosion was shown to the court on the last occasion. Extensive structural damage to the concrete wall and the metal gate on the roof could be seen. According to the EOD officer, the explosion was consistent with a detonation of high explosives.
Apart from explosives, raw materials and equipment for making TATP, offensive weapons such as slingshots with metal projectile, knives, protective gear such as gloves, helmets, facemasks and political pamphlets were also found inside the Flat, the room.
Chemicals including sulphuric acid, hydrogen peroxide, acetone and sodium hydroxide were also found. Acetone, hydrogen peroxide and concentrated sulphuric acid are essential for the making of TATP. According to the EOD officer, due to the explosive and shock-sensitive nature of the TATP, TATP should not be stored in their solid form.
A search of the defendant’s residence uncovered more offensive weapons and books, in particular, one with the title “Theory of Hong Kong Independence”, “香港獨立論”. Political leaflets advocating Hong Kong independence, secession of country and subversion of country were also found. The Chinese title is “香港獨立,分裂國家,顛覆國家”.
An examination of the defendant’s mobile phone also uncovered two documents. The first document was said to be intended for terrorists. It sets out the properties of different explosive substances and procedure in making those explosive substances and detonation system with details on the degree of lethality, ignitabilities and harm and injury caused. The second document again sets out the properties of different forms of explosives, etc.
Although the defendant was not charged with making bombs, he was in effect keeping the explosive in the course of its being made or after its being made with the intention of using them to inflict injuries to human life and/or causing damages to property.
In terms of criminality, I do not see any difference between the two scenarios in the present case. The same evils are there. The maximum sentence for this offence and indeed the other offence are the same, namely one of 20 years’ imprisonment.
The defendant, no doubt with other people, was in the course of preparing high explosive bombs. Given the seizure of various paraphernalia from the Flat, his residence and his mobile phone, his intention was to subvert the existing SAR Government and to advocate the independence of Hong Kong.
One also must not forget the event took place on 1 July 2019, where large crowds of demonstrators and/or rioters charged into the Legislative Council chambers and caused extensive damage to its interior. There is of course no evidence to link the defendant to the event on 1 July 2019. Nevertheless, this is one of the events that had taken place in the very turbulent 2019, year 2019.
The defendant is 29 and has a clear record. He received secondary education. One month prior to his arrest, he was a human resource officer in a logistic company.
There is no sentencing guideline for this offence. Having considered the circumstances of the case, this case, however, in my view, can be placed at the most serious band of the sentencing spectrum.
All the circumstances, namely the taking out of the lease, the frequency of his visit to the Flat, the items found from his home, from the Flat, from his mobile phone, all indicated to me that he was the mastermind behind this operation.
Various authorities have been placed before me for consideration. In HKSAR v Yip Kai Foon, CACC 138, 139/1997 unreported, day of judgment 23 August 1999, the appellant, Mr Yip, was sentenced to 18 years’ imprisonment for possession of 2 kilogrammes of TNT, an explosive with intent to endanger life or property.
On appeal, the Court of Appeal made the following remarks:
“The explosive consisted of almost 2 kilogrammes of TNT. We do not, as we have said, know to what use it was intended this explosive be put but we do know that it had the capacity to inflict terrible damage to life and property in a crowded city such as Hong Kong.”
Again, this court does not know to what use the TATP was intended to be put but again I know it has the capacity to inflict very serious damage to life and property, judging from the video. I agree with the sentiment expressed by the Court of Appeal and concurred by the Court of Final Appeal that this court would be failing in its duty to the public if it does not impose heavy deterrent sentence in circumstances such as this.
Although the amount of explosive in the present case is less than the one in Yip Kai Foon’s case, the defendant’s actions, in my view, similarly came close to declaring war on the society. The potential risk and harm posed to the general public, the police, is much greater in the present case than in Yip’s case. As described by the Senior Superintendent McWhirter:
“TATP is inherently dangerous in and of itself, and in comparison with all other explosives which we handled, we operate with the reality that these dangers cannot be eliminated when handling TATP.”
He went on to say:
“The quantity of TATP at scene meant that in the event of an explosion during handling, it was highly unlikely to be survivable by the bomb disposal officer.”
In other words, the EOD officer will die instantly. In other words, even the life of a highly trained explosive disposal officer would be put in great jeopardy.
Mr Yip Kai-foon, for all purposes and intent, together with his gang of criminals sneaked back to Hong Kong was, in my view, more likely than not going after money. The defendant in this case was going after the HKSAR Government, the stability of the region, with the intention of creating fear and terror amongst citizens within the society. His criminality is just as serious, if not more, as Mr Yip.
After careful consideration and given the statutory maximum of the offence, I am of the view that the starting point should be similarly set at 18 years’ imprisonment.
The only mitigating factor in this case is the defendant’s plea at the earliest opportunity. For his earliest plea, he will be given the usual one-third discount.
In conclusion, for the offence the defendant stands convicted, he is sentenced to 12 years’ imprisonment.