COURT: This case concerns the criminal activities of a group of people who called themselves “光城者” (“Returning Valiant” (“RV”)). Originally, there were seven defendants, D1 to D7, in the court below, and Ms Kwok in HCCC 103/2022 and Mr Ho in HCCC 104/2022 were then respectively D2 and D3. And for the sake of convenience, I will continue to address them by their designations in the court below.
D1 to D7 were jointly charged with: (1) one charge of conspiracy to commit terrorist activities, contrary to Article 24 of the National Security Law (“NSL”) and sections 159A and 159C of the Crimes Ordinance, Cap 200 (“Charge 1”); and (2) one charge of conspiracy to cause explosions likely to endanger life or property, contrary to sections 54(a), 159A and 159C of the Crimes Ordinance (“Charge 2”), which was an alternative to Charge 1.
D2 and D3
D1 to D7 were arrested and brought to court on different occasions. After several court appearances, on the second Return Day on 20 April 2022, on the application of the prosecution, their cases were consolidated without objection. By consent, the magistrate adjourned the consolidated case to 27 June 2022 for the third Return Day.
The magistrate further directed that:
“If any defendant intends to plead, indicates to the prosecution by 24 May 2022”;
“The prosecution to serve the first draft of the Admitted Facts on the defendants, who have indicated plea, by 6 June 2022”;
“The Defence confirms the final version of the Admitted Facts, if any, for plea by 20 June 2022”;
“The final version be served on the remaining defendants by 21 June 2022”; and
“Submit that final version, if any, in court by 21 June 2022.”
On 27 June 2022, D2’s counsel told the magistrate that he had “instruction not to indicate her plea before 25 May 2022”, but then he received new instructions from D2’s family and said that D2 intended to plead guilty to Charge 2 but not Charge 1. Counsel applied for a six-week adjournment for the prosecution to consider D2’s offer. The magistrate refused D2’s application for adjournment. In the event, D1 pleaded not guilty to both Charge 1 and Charge 2, whereas D2 pleaded not guilty to Charge 1 but guilty to Charge 2. The prosecution was yet to consider D2’s offer at the time. Therefore, the magistrate committed D1 and D2 for trial (HCCC 103/2022). On the other hand, the plea of D3 to Charge 1 and those of D4 to D7 to Charge 2 were accepted by the prosecution. Upon their admission to the Summary of Facts prepared by the prosecution, D3 to D7 were committed to this court for sentence (HCCC 104/2022).
Subsequently, by a letter to the court dated 19 August 2022, the solicitors of D2 informed that they had been in discussion with the prosecution and that an agreement had
been reached. Therefore, they requested for a plea and sentence hearing. On 6 May 2023 before me, D2 to D7
confirmed their respective pleas and their agreement to a set of consolidated Summary of Facts. Sentences were passed on D4 to D7 on 23 May 2023 and the sentence of D2 and D3 were adjourned for reasons which I will come to shortly.
D8
As regards to Mr Cheung, he was originally not a defendant but a prosecution witness(PW1) listed for the trial of D1. However, the court was informed that the prosecution intended not to proceed with the case against D1 but that Mr Cheung’s status had changed from a prosecution witness to an accused. In fact, on 12 May 2023(which was less than a week after the first appearance of D2 and D7 before me) Mr Cheung was committed for trial on two charges of conspiracy which mirrored those of D1 to D7. Ironically, this time D1 became a prosecution witness, as did D2 and D3, in the case against Mr Cheung (HCCC 127/2023). In view of this and purely for the sake of convenience, I would, from now on, address Mr Cheung as D8 even though he had never been so designated in the court below.
After D8’s committal, on 15 September 2023 his former solicitors indicated to the court for the first time a guilty plea only to Charge 2, that is, conspiracy to cause explosion. At the time, D8’s case was yet to be listed. However, there had been no further news about D8 until this court was informed by D8’s former solicitors that there had been then a change in D8’s legal representation. In order to ascertain D8’s position, I ordered a mention on 11 November 2023.
At the mention, the parties informed that they were still unable to agree on the facts. Since the court was of the view that sufficient time had already been allowed for the agreement of facts, therefore directions were given, imposing deadline for the filing of the sentencing bundle, failing which for the fixing of a Newton hearing or a trial. Eventually, on the deadline on 8 December 2023, the parties submitted to court D8’s bundle for plea and sentence, which contained a Summary of Facts dated 7 December 2023. Today, D8 pleads guilty to Charge 2 before me and admits to the Summary of Facts.
Charges
D3 admits that between 1 April 2021 and 5 July 2021 (both dates inclusive), he conspired with other persons, with a view to coercing the Central People’s Government or the
Government of the Hong Kong Special Administrative Region, or intimidating the public in order to pursue political
agenda, to organise, plan, commit, participate in or threaten to commit terrorist activities intended to cause grave harm to the society, namely, explosion, arson, sabotages of means of transport or transport facilities, or other dangerous activities which seriously jeopardised public health, safety or security (Charge 1).
D2 and D8 admit that during the same period of time, they conspired with other persons to unlawfully and maliciously cause by explosive substances explosions of a nature likely to endanger life or to cause serious injury to property (Charge 2).
Brief Facts
There are two sets of facts prepared by the prosecution, one for D2 to D7 and the other for D8 alone. I do not intend to recite everything stated in these two sets of facts respectively. It suffices for me to say that I have full regard to their respective contents.
Having compared the two, I find that their contents are in the main similar but not identical. The major reason for the differences between the two sets of Admitted Facts, I am given to understand, is that the facts pertaining to D2 to D7 are based (in part) on the witness statement of D8 (which was then PW1). However, having been served with the committal bundle which contained the witness statements, D1 to D3, D8 now admits that he was in fact more involved and active in the offence than what he had told the police previously. Be that as it may, whenever there are differences between the two sets of facts, the defendants are to be sentenced on the version which he or she has admitted.
To begin with, D1 and D2 were members of RV and they were in a relationship. D8, on the other hand, was a member of another local political group called “Student Politicism” (“賢學施政”). The two groups had disagreements. In April 2021, the three of them met in the office of a District Councillor in Mong Kok to resolve their differences. Subsequently, D8 became acquainted with D1 and D2. Afterwards, D2 came to know that D8 had withdrawn from “Student Politicism”.
In my reasons for sentence given on 23 May 2023, I have already outlined the roles of D4 to D7 and I am not going to repeat those. As regards D2, D3 and D8, their roles in this case were as follows.
D2
D2 admits that she and D1 met with D8 on several occasions after the latter had withdrawn from “Student Politicism”. The three of them had discussions of plans of causing explosions at various places in Hong Kong. She was told by D3 that he planned to connect the student unions of different universities in Hong Kong and make use of their influence and networks to seek finance and support of anti-government activities or resistance campaigns. She was also told by D3 that he had founded a radical political group called “矢名” (“Black Bloc”) which had a base in the UK and that “Black Bloc” was planning to do something big in Hong Kong. D2 was once told by D3 that he had set fire in Sha Tsui Road testing centre and that he planned to escalate his action against the government by using more radical means in order to solicit support and funds from other political groups or activists, and that his next target would be government offices, police quarters and court buildings. I pause here and note that the Sha Tsui incident was not a matter for the present case.
Subsequently, during one of her meetings with D3, D2 told D8 that there was a person who planned to make bombs and do something big. She then asked D3 for assistance. Therefore, D3 provided details of his Telegram account so that he could be contacted by the person whom D2 talked about.
D8
D8 admits that after he had withdrawn from “Student Politicism”, he met with D1, D2 and other people in a hotel room. During that meeting, he informed that:
(a) he planned to connect the student unions of local universities to search for funds and resources through their influence and networks, with a view to finance and support anti-government activities or resistance campaigns; and
(b) he had designed a logo for a radical political group called “矢名” (“Black Bloc”) which was based in the UK.
As regards the Ting Kau meeting, D8 admits that he told D1 and D2 that he planned to escalate his action against the government through more radical means in order to attract support and funds from other political groups or activists. He said that his target premises would be the government offices, police quarters and court buildings. He asked D1
and D2 to join his plan and help recruit other persons. D2 then told D8 that there was a person who planned to make bombs and she suggested putting D8 through to that person. For that purpose, D8 and D2 exchanged details of their Telegram accounts.
Afterwards, D8 was contacted by D3, who identified himself as the person whom D2 talked about. D8 was then informed of the details of D3’s bombing plan and that his targets were court buildings (“the Plan”). D8 undertook to assist by providing funds for buying the necessary equipment, conducting inspection of target premises, recruiting others to execute the Plan and helping D3 leave Hong Kong after execution. D8 also admits that he had sent D3 via Telegram information on making triacetone triperoxide (“TATP”) (“三過氧化三丙酮”), a kind of explosive substance, and had given D3 cash of HK$40,000 in an envelope.
In around mid-June 2021, D8 met with D1, D2 and other persons for barbecue in Yuen Long. On that occasion, he discussed with D1 and D2 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 execution of the Plan.
On the following day, D8 told D1 in a telephone conversation about the Plan that he, that is, D8, and D3 intended to carry out. In particular, he told D1 that the target premises were Tuen Mun and Kwun Tong Law Courts Buildings and that the explosive to be used would be TATP. Besides, D8 also told D1 that he had provided HK$40,000 in cash to D3.
In late June 2021, D8 was told by D3 that D3 had already conducted site inspections of the targets. At D3’s request, D8 agreed to help recruit at least 10 persons to act as lookouts on the day of the execution. The police subsequently retrieved the communication records between the two of them, which show that D8 had received from D3 photographs of D3’s notebook, photographs taken in the vicinity of the Tuen Mun and Kwun Tong Law Courts Buildings, and the screen-captures of 3D Google Maps with some remarks drawn on it.
In early July 2021, however, D8 was told by D3 that the Plan had to be indefinitely postponed because the latter was being followed by the police.
After D8’s arrest on 24 October 2022, he said under caution, among other things, that:
(i) he had referred a person called “阿勇” of “Black Bloc” to D3 and “阿勇” later told him that he, that is, “阿勇” had provided funds to D3; and
(ii) he had told D3 that he could help find persons to act as lookouts.
D3
D3 admits that he had received from D8 information relating to the ingredients and manufacturing of TATP via Telegram, and he saved the said information in his mobile phone. He also admits that he received from D3 an envelope containing HK$40,000 in cash, some of which was spent on buying equipment for manufacturing TATP. And the remaining sum was kept for his leaving Hong Kong after the execution of the Plan. D3 admits that he had asked D8 to help him recruit lookouts to be posted at or in the vicinity of Law Courts Buildings in Tuen Mun and Kwun Tong. D3 also admits that he told D8 in July 2021 that the Plan had to be indefinitely postponed as he was being followed by the police.
Besides, police investigation reveals that D3 had asked PW2 (his science teacher) on different occasions if he knew how to make bombs and TATP, and how to store highly concentrated hydrogen peroxide (“高濃度雙氧水”) and other chemicals. D3 also revealed to PW2 that he would leave Hong Kong for Taiwan after placing the bombs. PW2 told D3 that he did not know how to make bombs.
In June 2021, D3 and his schoolmate, D4, rented a room in a guesthouse in Tsim Sha Tsui (“the Room”). They 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, ie 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 (“破壞香港之穩定結構”); intensifying the contradiction between the Chinese Communist Party and the various groups (“促進中共與各方的矛盾”); triggering a domino effect (“嘗試引發骨牌效應”); and making use of the opportunity to establish a resistance organisation afterwards (“事後順水推舟建立反抗組織”). 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, in D3’s documents, there were 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% (“雙氧水純度30%以上”), acetone (“丙銅”), ammonium nitrate, NH4NO3, (“硝酸銨”), which was commonly known as fertiliser bomb (“肥料炸彈”), fuel oil, dynamite, cyclonite (“環三亞甲基三硝胺”), which was also known as hexogen (“黑索金”) with the abbreviation “RDX”, pressure pot and Schardin effect (“沙爾丁爆炸效應”), 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 manufacture or placement of explosive substances, including droppers, measuring cups, measuring tubes, filter papers, glass bottles, glass rods, eyewash bottle, filter funnels, glass bowls, protective clothing, refrigerator, bubble wrap, carton box, paraffin oil, watch glasses, measuring cylinders, beakers, thermometer, electronic balance, spatulas, gloves, and Wellington boots.
Police investigation also reveals that D3 had recruited other people to join and execute the Plan. One of them was PW6, who was the classmate of D3 and D4. And according to PW6, in February 2021, she, D3 and another male had a dinner gathering in Kwun Tong, during which D3 expressed that he wanted to do something big to raise public awareness and revive the spirit of resistance among the Hong Kongers (“想做一件大事，引起全香港人關注，去喚醒香港人嘅抗爭意識”). D3 also mentioned that one of the target facilities was MTR and he would leave Hong Kong after doing this. D3 asked her and the male for help in placing bombs. D3 said that he would leave Hong Kong after doing that and he could arrange for PW6 to study in Taiwan. Subsequently, on 19 June 2021, D3 took PW6 to a stall in Apliu Street, where he bought about 10 pre-paid SIM cards and gave PW6 one of those for the purpose of the Plan. On 23 June 2021, when D3 and PW6 met for the second time to discuss the Plan, D3 gave her more details of the plan. He told her that he had brought about a dozen people on board to act as lookouts and that PW6 was
to be a carrier. PW6 was told that each participant would be given HK$1,000 and that the Plan would be carried out in early to mid-July. On the following day, PW6 met with D3, D4 and D5 outside Kwun Tong Law Courts Building, where D3 gave her a Nokia mobile phone as a “burner”.
The aforesaid D5 was also recruited by D3. D5, in turn, engaged D6, who also agreed to placing bombs in return for a reward. 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 the 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 Courts 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 target 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, D3 told D5 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 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 would take a transit to the UK. D3 elaborated that the intended bombing of Kwun Tong courts would involve two bombs. D5 were to place one bomb into a recycling bin on the sixth floor lift lobby and then to make a phone call to detonate the bomb.
If the bomb did not go off, the fall-back plan was to ask D6 to go there to 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 (“做大事一定會有人犧牲”) and that “We get dirty, but the world stay clean” (“污糟嘢總要有人要做”). D3 told D5 that only if they could create a strong resonance would they become famous and people would treat them seriously. If the bombing campaign was successful, they would publicly admit responsibility in the name of “浮城”. And thereafter, “浮城” would become a recognised organisation and they would continue to carry out future plans under that name.
D7, a friend of D3, was yet another person recruited by him and her role was to source essential chemicals, namely, hydrogen peroxide and hydrochloric acid, for him to manufacture TATP. D3 told her that it would be most likely that the bomb(s) would 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. D3 said that the plan had to be carried out in early-July 2021 and that he would leave Hong Kong by mid-July 2021, whether or not the Plan had been carried out, even though he would continue to give instructions to those remaining in Hong Kong to continue with the Plan. In the event, D7 was unable to procure any hydrogen peroxide or hydrochloric acid.
The Expert Opinion
PW56, a Senior Superintendent of the Explosive Ordinance Disposal Bureau, had attended the Room and reviewed the relevant documents and exhibits. He opined 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 a realistic frame to complete the capability, including manufacturing both explosives and bombs. Preparatory actions had been taken for the manufacturing of homemade high explosives, specifically TATP, the constructions of viable IEDs, and the placement of IEDs.
Antecedents
D2
D2 is now aged 21 and was 18 at the time of the offence. She was a student before her arrest. She has a conviction of “conspiracy to incite the commission by other persons of the offence of subversion”, which was a NSL offence, the offence period of which was between 10 January 2021 and 6 May 2021. For that NSL offence, she was charged on 28
September 2021 (during her remand for the present case) and was sentenced by the District Court to Training Centre on 8 October 2022. Up to today, she is still serving that order.
D3
D3 is now aged 20 and he was 17 at the time of the offence. He was still a secondary student at the time of the offence even though he did not attend school. He had a clear record.
D8
D8 is now aged 23 and he was 20 at the time of the offence. He was a university student at the time of the arrest and he had a clear record.
Mitigation Letters
Mitigation letters written by or for D2, D3 and D8 were received by the court. I am prepared to accept that before the social unrest in 2019, these defendants might be described as good students and I bear this in mind in sentencing. On the other hand, there was, in my view, a huge disconnect between their descriptions of the defendants and those revealed by the facts which the defendants themselves have admitted. It is apparent that the authors of those letters do not have any idea of the extent of the terrible crimes that the defendants had committed.
I readily accept that the hostile social atmosphere in 2019 and 2020 was such that it could easily cloud people’s moral judgment. The corrosive nature of the whole event might also have turned some ordinarily harmless people with previous good characters into radicals. From the Admitted Facts which I have outlined above, no matter what the defendants’ purpose might have been, the Plan was without any doubt an evil one. Moreover, the defendants had by then, sadly, become the kind of persons who are determined to achieve their ends regardless of the means. In the case of D3 and D8, in particular, their respective involvements in the Plan were not only persistent, but also deep and well-thought through such that their offences could not be brushed aside as mere impulsive acts committed at the heat of the moment.
That said, in the present case, the defendants can rest assured that this court would not hold against them for anything which might have been inaccurately stated by other people about them in the mitigation letters.
Sentencing Considerations
D3
I shall now deal with his case first. The charge to which he pleads guilty is one brought under the NSL and the sentencing approach is authoritatively laid down by the Court of Final Appeal in HKSAR v Lui Sai Yu (FACC 7/2023) which I need not repeat here. The offence D3 committed is in any view a serious one. He was the mastermind of the Plan. He recruited other people in the execution of the offence and was the ringleader of D4 to D7. What is more, D8 had taken steps to carry out the Plan and conduct the site inspections. I bear in mind also that the offence took place against the backdrop of a social unrest in Hong Kong where many people resorted to criminal and violent activities in the expression of their political views. What D3 intended to do would have caused the societal condition to change from bad to worse, Secretary for Justice v Leung Wing Hong [2021] 4 HKLRD 811.
Furthermore, D3 displaced wanton disregard to the rule of law by choosing court premises as his targets. That he was determined to cause damage and bring chaos to Hong Kong was evidenced by the degree and extent of his planning and the steps he had taken in implementing the Plan. In pursuit of his vanity, he became callous as to the harm which other people might suffer as a result of his misdeeds. Not only that, he even disregarded the risk to which his fellow gangsters might exposed in the execution of the Plan. Last but not least, his action came close to declaring war on society, the government, and court, and members of the public were exposed to terrible risk, Yip Kai Foon v HKSAR [2003] 3 HKFCAR 31.
I also bear in mind section 109A of the Criminal Procedure Ordinance, Cap 221, and it gives me no pleasure in sentencing young people to prison. However, despite D3’s relatively young age and clear record at the time and what his family and teachers said about him in the mitigation letters, I am of the firm view that 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 & 2 Ors [2018] 21 HKCFAR 35. In my assessment, a lengthy term of imprisonment is the only appropriate sentence in D3’s case.
I have not forgotten that since D3 was unable to procure all the necessary ingredients for making the bombs and due to the commendable and prompt investigation by the police, D3’s evil plan did not result in any serious bodily injury, death or significant loss of public or private property. In fixing the starting point, I note that by section 159C(4), Crimes Ordinance, the sentence of Charge 1 shall not exceed the maximum term provided for in the substantive offence of NSL 24. And in this regard, NSL 24 provides:
“A person who commits the offence causing serious bodily injury, death or significant loss of public or private property shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years; in other circumstances, a person who commits the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.”
However, I am unable to accept the submission of counsel that D3’s sentence could not be more than 10 years’ imprisonment just because his offence had yet to cause serious bodily injury or significant property loss. Counsel’s argument, with respect, ignores the fact that the charge is one of conspiracy the gravamen of which was the making of the agreement to commit the offence rather than the commission of the offence. Judging from the Admitted Facts, it was clearly D3’s intention to cause significant loss to the targeted court premises and he was at least reckless as to the safety of people who would happen to be inside or in the vicinity of the target buildings. If counsel’s argument were right, then it would lead to the surprising result that an accused charged with a conspiracy to commit a NSL 24 offence could never be sentenced to more than 10 years’ imprisonment, no matter how serious the agreed course of conduct was intended to be unless it had been successfully executed. That, in my view, cannot be the legislative intent behind NSL 24.
This is not to say that the absence of personal injury or property loss does not come into the equation in the fixing of the starting point. Nor is it right to say that D3’s age is not relevant when it comes to sentence. When dealing with young people, the court would try not to impose a sentence so crushing that would eliminate all hopes of rehabilitation. What is required of the court is passing a commensurate sentence on the defendants: Secretary for Justice v Tang King Wa [2023] 2 HKLRD 1440. In the light of all the circumstances, I adopt 10 years’ imprisonment as the starting point of D3’s sentence. This starting point is already a lenient one, as it could have been higher.
As regards mitigation, in my view, the factors which may reduce D3’s sentence are his timely plea and his assistance to the police. As to the latter, the prosecution confirms that D3’s assistance was of practical use in the case against D8. On the other hand, there is nothing to suggest that D3 belongs to the supergrass category or that he had exposed himself or his family to any personal risk by
assisting the prosecution. Based on Lui Sai Yu’s case and Z v HKSAR [2007] 10 HKCFAR 183, taking into account the nature and degree of D3’s assistance and in the exercise of my discretion, a discount of 4 years is granted to D3 for the aforesaid two factors combined: HKSAR v Y [2005] 3 HKC 337; and HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799.
Therefore, D3 is sentenced to 6 years’ imprisonment.
D2 and D8
Charge 2 to which D2 and D8 plead 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 a given case must be fact specific.
As I have said in the sentencing remarks of the other defendants in this case on 23 May 2023, the local environment and the prevailing social setting in which the offence took place would also be a relevant sentencing factor. For this reason, although foreign cases on sentencing principles and sentencing considerations of similar offences may be of reference value, the actual sentences imposed in those cases are not directly applicable to Hong Kong.
Similarly, I bear in mind that the offence was nipped in the bud by the police so that no explosive had been actually manufactured; no explosions had been caused; and therefore no casualties or damages had been resulted. These features distinguish the present case from local sentencing authorities like Attorney General v Cheung Shui-tai and Others [1995] 1 HKCLR 186; HKSAR v Yip Kai Foon, CACC 138/1997; and HKSAR v Lo Yat San Louis [2022] HKCA 553.
I bear in mind section 109A of the Criminal Procedure Ordinance, Cap 221. However, despite the fact that the offence did not lead to any actual harm to people or property and even taking into account what was said in mitigation on their behalf, I am of the view that the only sentencing option appropriate in their respective cases is a substantial term of imprisonment:
(1) the societal condition at the time of the offence;
(2) whilst a distinction could probably 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 at least reckless as to the number of people who might be killed or maimed as a consequence of the bombing, compare with R v Byrne and Others [1976] 62 Cr App R 159; and R v Martin [1999] 1 Cr App R (S) 477; and
(3) similar to the case of D3, what D2 and D8 conspired to do came close to declaring war on society, the government and the court, and members of the public were exposed to terrible risk.
That said, between D2 and D8, even though they were parties to the same conspiracy, their respective culpability were different so that their respective sentences would not be the same.
For D2, as revealed from the facts to which she has admitted, her role in the conspiracy was limited to bringing two dangerous radicals, D3 and D8, together, knowing full well that they intended to make and place bombs at court buildings. I accept that she was not involved in the planning or execution of the Plan. However, without her help, D8 might not have access to the necessary finance or manpower. Looking the matter in the round, I adopt 5½ years’ imprisonment as the starting point of her sentence.
I note that she was diagnosed to have major depressive episode with underlying dysthymia. However, I cannot see how her condition can reduce her culpability, there being nothing to suggest that she could not tell right from wrong or that her condition had in any way contributed to her offence. As to her mother’s hospitalisation from early-June to late-September 2023, the courts have said time and again that those who commit offences should keep in mind “the principle that adverse effect of imprisonment upon an offender’s family is not a factor normally to be taken into account”: HKSAR v Chan Kin Chung [2002] 4 HKC 314.
In my view, there are two factors which can reduce D2’s sentence: (a) her guilty plea; and (b) her assistance to the police. As to (a), in view of the procedural history outlined above, she should not be taken to have tendered a timely plea at committal. The blunt fact is that she failed to take heed of the magistrate’s warning by indicating her plea in time with the result that she had to seek an adjournment. She must be taken to know that there is a price to pay for her tardiness. Bearing in mind that she did reach an agreement with the prosecution on her plea before listing, in the exercise of my discretion, I grant her a reduction of 18 months for the plea. As to (b), the prosecution confirms that her assistance was of practical use in the case against D8. For this, I grant her a further 7 months’ reduction. And subject to the issue of totality, I can see no other factors which may further reduce D2’s sentence.
Now, turning to the issue of totality, I note that the dates of D2’s previous NSL case overlapped with the dates of the present case. Although the two cases are separate and distinct offences, had they been dealt with together, D2 might be able to benefit from the totality principle. I accept the explanation given by the prosecution in their letter dated 22 December 2023 as to why it was not reasonably practicable for D2’s two cases to be dealt with together. Still, as the matter turns out, D2’s detention in the training centre (between 8 October 2022 to present) would not be counted towards her sentence in the present case. In the circumstances, having stepped back and looked at the two cases in the round, I consider it appropriate to grant her a further deduction of 11 months: R v Ng Chun Keung [1993] 2 HKC 171.
Therefore, D2’s sentence for the present case is 66 minus 18 minus 7 minus 11, equal to 30 months’ imprisonment. In passing the aforesaid sentence, I have factored in the operation of section 5A of the Training Centre Ordinance, Cap 280, such that D2’s current Training Centre Order will cease to have effect.
D8
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 others 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.