HKSAR v. HO KWOK FAI CHAN SAN

DCCC 595/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 595 OF 2015

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Reasons for Sentence

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1.  D1 and D2 pleaded guilty to a charge of possession of an explosive substance.

2.  At about 4.40 pm on 29 November 2014, D1 was driving a light goods vehicle (LGV) with D2 at the front passenger seat to the Lion Rock Country Park.  The victim, Mr Liu observed the LGV driving slowly into the park and stopped at a downward slope near a path.  D2 was then seen holding a plastic bag and pouring something out.  D2 was also squatting and patting the ground and moving some stones.

3.  Mr Liu thought that D2 may intend to poison animals and pretended to offer help but was refused.  D2 then left with D1 driving away

4.  Mr Liu then came to the spot where D2 had been moving the stone and found that some corn kernels were there, and underneath a flat stone, he found an object, 2 x 3 inches, wrapped with tight string appeared to be roasted poultry skin.  Mr Liu and his friend, Ms Chum, believing that the object contained poison, they took it away to Hin Keng Shopping Centre for examination.

5.  Mr Liu then cut the string and removed the layer of the skin and found an oval object, about 2 inches in length, wrapped in red nylon string.  Mr Liu then covered his left hand with a plastic bag to hold the object and then poked it with a pair of scissors.  Suddenly, the object exploded and he was thrown 2 metres away.

6.  He was sent to hospital where his left hand was seriously injured.  His left thumb was partially amputated, left index finger degloved, middle fingers with laceration wound and there were also multiple abrasions over face, neck and chest.

7.  Numerous subsequent medical treatment has to take place where permanent disability was caused to his left thumb and index finger.

8.  Ms Chum was also injured with laceration over her forehead and right axillary region. 

9.  A bomb disposal officer came to the spot and found that the object satisfied the definition of explosive substance and the explosion was caused by gun powder. 

10.  Government forensic scientist found traces of arsenic sulphide and potassium chlorate in the object, the mixture of which could be explosive.

11.  Both defendants were later arrested where D1 claimed that he merely drove D2 to the “Monkey Mountain” to kill wild pigs.  While at the home search, there was found a piece of frozen wild pigs in D1’s refrigerator; while for D2, some hunting appliances were also found near D2’s dwelling place.

12.  In the video-recorded interview, D1 admitted merely intending to kill wild pigs by explosion and D2 proposed to catch it and he agreed.  He knew that the roasted poultry skin was wrapped to trap the wild pigs.  After D2’s setting up, they left and only found the other day the explosion hurt someone.  The frozen meat found was a pig killed in another explosion in October 2014 at Man Kam Road. 

13.  While for D2, on the day in question, he said he was with D1 at the “Monkey Mountain” and he claimed he never got off from the vehicle and nothing specially happened.

14.  Both defendants now admit in joint possession of the subject explosive device at the material times.

15.  D1 is aged 54, and D2, 55.  D1 is of clear record and D2 only got a spent conviction dated 1979. 

16.  Mr Yip for D1 submits that D1 pleaded guilty at the earliest opportunity and is more than willing to testify against other if necessary.  He has a stable job, as a foreman of a construction company.  Mr Yip further submits that D1 is a suitable candidate for a CSO despite that was not recommended for medical reason where Mr Yip now says that D1’s condition has improved and it was not the case where his attitude nor background being not suitable.

17.  His family members also submit various letters to the court saying that D1 is a responsible father and hardworking employee.

18.  Mr Yip lastly submitted that D1 now apologised to the victim and asked the court to see this as an isolated incident and pleaded for a non-custodial sentence.

19.  For D2, Ms Lau submitted that the CSO is positive and asked the court to adopt the recommendation. 

20.  D2 also worked as a handyman at various construction sites and he also regretted deeply for what he had done.

21.  Possession of an explosive substance is a very serious offence.   The maximum sentence is 14 years’ imprisonment.  There is no sentencing guideline in this offence where each case will be decided on its own facts. 

22.  In the present case, judging from the serious injuries suffered by Mr Liu, one may easily find that the power of explosion is great, not to mention that he had been thrown 2 metres away.  The latest medical report of Mr Liu shows that apart from the appearance of his left hand, it has caused adverse effect on his future career development.  He works as a veterinarian assistant and now could not easily perform his task and his palm could not bend completely nor could he use his left hand to break things.

23.  Both defendants could really count themselves lucky where fatal incident did not occur.  No doubt the potential and the actual hazard of possession of explosive substance is obvious, the court needs to deter others and prevent the public from being harmed. 

24.  Both defendants took part in setting up the plot with a premeditated plan and carried it out.  To place an explosive substance in the country park is indeed risk taking and very dangerous and hikers may get hurt easily. 

25.  For the seriousness of the offence and the facts of the case, CSO is not a suitable option.  I assess the starting point shall be 18 months’ imprisonment or more.  However, given the underlying motive for both defendants and that they are of clear record and considering all the mitigation submitted, I will adopt a starting point of 15 months’ imprisonment, to be reduced to 10 months upon guilty plea. Therefore, for this offence, both defendants are sentenced each to 10 months’ imprisonment.