HKSAR v. NG DOUGLAS

DCCC 82/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 82 OF 2015

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REASONS FOR SENTENCE

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1. The defendant pleaded guilty before me to a charge of possession of an explosive substance. The particulars are that he on 25 October 2014 outside “Watsons”, Shop Nos 204-5, 2^nd Floor, Dragon Centre, No 37K Yen Chow Street, Sham Shui Po, knowingly had in his possession an explosive substance, namely one plastic bottle containing hydrochloric acid and aluminium foils.

Concise summary of admitted facts

2. On 25 October 2014, at 10:25 pm, the defendant was seen acting suspiciously at 1/F of Dragon Centre in Sham Shui Po (“the Centre”).  The business hours there were until 11 pm.

3. At about 10:38 pm, the defendant took out a plastic bottle from his rucksack and placed it at the corridor outside the “Watsons” on 2/F of the Centre.  Half of the bottle was filled with liquid later found to be hydrochloric acid, together with some aluminium foils inside the bottle.  The defendant checked his watch and went up to 8/F of the Centre.

4. At about 10:43 pm, the bottle burst with a loud booming sound.  Some liquid and fragments of the bottle and aluminium foils were scattered around the ground and the ceiling.  The defendant was arrested on 8/F.

5. The Government chemist examined the plastic bottle, the liquid and the aluminium foils and had the following findings:-

(a) The bottle could have been filled with a hydrochloric acid at a concentration of 11% weight by weight in accompanying with the addition of aluminium foils prior to the explosion;

(b) upon screw-capped the bottle, the bottle could have exploded after a delay of about 4 minutes due to the excess pressure built up by the gaseous products generated by the reaction between hydrochloric acid and aluminium foils; and

(c) the bottle exploded and spilled out the acid in the form of fine droplets probably covering an area of a radial distance of about 3 metres.

6. A later house search of the defendant’s residence recovered a computer containing records of visits to web-pages in relation to the making of an acid bomb.

The defendant’s personal particulars

7. The defendant was born in the United States in 1962.  He was 52 years old at the time of the offence. The defendant is married and has one son (9 studying in Hong Kong) and three daughters (21 and 19 both studying in the United States and 13 studying in Hong Kong). The defendant has a clear record in Hong Kong.

8. The defendant was educated to Master’s degree level in the United States and before arrest was an investment consultant with a substantial yearly income.

9. The CV of the defendant shows that he has a bachelor of science degree and a master of science degree both in chemical engineering from MIT and an MBA from Harvard.

Mitigation

10. Mr Graham Harris SC and together with him Ms Charmine Cheung acting on behalf of the defendant have the following plea in mitigation.

11. Prior to the hearing they submitted a bundle of documents known as the Defence Bundle which is composed of several sections: they are expert reports, prosecution documents, personal particulars, character reference letters to various societies, and finally cases.

12. I shall make brief reference to each section in turn.

13. First section, expert reports.  This section contains in the main a lengthy psychological report by Professor Peter WH Lee.  The other two reports are psychiatric reports which can be dealt with quite speedily – they both concluded there was nothing psychiatrically wrong with the defendant.

14. Professor Lee’s service was engaged by the solicitors acting for the defendant for the purpose of psychological assessment and a report on the defendant’s psychological condition.  Professor Lee had interviewed the defendant and the defendant’s wife a number of times in order to produce this final report dated 18 March 2015.  The report is a lengthy one and I can only extract a small part of it here to remind myself of the most important professional opinions of Professor Lee on the defendant’s psychological condition.

15. Professor Lee assessed the defendant’s potential for criminality and propensity towards dangerousness and psychopathy ie disregard for other people’s well-being.

16. Professor Lee commented that although the defendant was “brilliant in science and technical knowhow, he had never been confronted with intense stresses and setbacks.  In face with his wife’s dysphoric emotions (which while undiagnosed was actually of the clinical intensity of a psychiatric condition) and his own work related frustrations, he found himself stranded alone in a deep sea of helplessness, guilt and frustration.”

17. Professor Lee continued, “The best [the defendant] could do was to keep himself afloat.  He resorted to habitual coping tactics by compartmentalizing his life, distracting himself, not thinking about it, and taking his periodic “medicines” by enthralling himself with scientific experiments – repairing appliances, building a radio with his daughter, researching on alternative energy and the like, which however, from their short-lived palliative function, served no useful purpose in solving his family and work issues …… as difficulties at work and at home continued, he became more entrenched in his scientific hobbies and projects.  When the children were interested and regarded daddy’s little “pop” experiment being very cool”, the experiments also served to boost [the defendant’s] shaky self-confidence and esteem as a father, as well as provide some respite against his own negative emotions.”

18. This little “pop” experiment that Professor Lee referred to was the experiment he first tried in the balcony of his home and which he repeated at the scene of crime.

19. Professor Lee described the two occurrences in this way: “About a year ago, as [the defendant] was browsing the internet, he noted while reading news online that “kids in the United States could expand and pop a bottle”.  He felt “that’s fascinating …… and that’s only with household stuffs”.  He was convinced that “the pop” is totally safe as kids play with it, could buy it, and it’s available in supermarkets as regular cleaners.  He used his scientific mind and figured that he could make the same pop with dry ice and water but discounted the option because of impracticality.  He looked up technical information, easily understood it, and thought it was clever to be able to generate the gas when you needed it.  He figured that if he could use the smallest bottle and with the least amount of toilet cleaner, he should still safely “make a pop much louder than a balloon”.  He researched the contents used for the pop and was satisfied that they were safe having only 11% hydrochloric acid.  He tested the pop at home with reducing amounts of the cleaner, sometimes having fun with the two children around.  He felt good that his daughter J was interested and his son A was also curious.  He tested the pop with a small amount of the toilet cleaner and aluminium foil in the balcony at home.  After successfully creating the pop, he felt great that “science works”, and that “it makes sense …… I felt excited”.  He was further thrilled when the children were excited and thought “that was really cool”.  He was delighted that he had embarked on such “a simple and elegant creation” – that he could use everyday household objects to create “a pretty good pop””.

20. Regarding the incident the subject of the charge, Professor Lee reported as follows: “A few weeks prior to the alleged offence, [the defendant] had been taking J to the Dragon Centre in the evening for ice hockey practice and matches.  He was interested to note that the Dragon Centre was of open design with the centre of the building extending all the way upwards towards the atrium at tenth floor. He wondered how much of an echo the pop would create in that setting.  On the evening of the …… offence, [the defendant and his wife] had agreed to take J to the Dragon Centre for ice hockey together after dinner.  Unfortunately, during dinner, [the defendant’s wife] lapsed into a depressed and woeful mood.  She commented during dinner that “what happens after 50 …….. you just wait to die”.  The two children who were present just looked at each other, flabbergasted.  [The defendant] felt “really sad, helpless and useless”.  He did not know what to say or how to respond to make [his wife] feel better.  She went back to her room and declined to go out.  [The defendant] had thought of perhaps not going out but on second thought that J did not cause this and should not be penalized.  Eventually he decided “we have to go”.  Yet on going out, he was burdened with a very heavy heart and intense sadness.  He felt “so super useless” so much as that just before he left the house, he quickly packed the preparations for the pop.  He felt “I needed the pop”.  On their way to the Dragon Centre, his daughter cried.  He could only tell his daughter that “you know mom is sad and she loves you.”  Deep down, he felt “really bad” himself because that was the first time that “J really reacted emotionally to mom’s unhappiness”, yet he felt totally powerless in helping out.”

21. Apparently, the defendant wished to see for himself and I suppose demonstrate to his youngest daughter how far the pop would echo up in the dome-shaped hollow building structure of the Dragon Centre.

22. Professor Lee was convinced that “at the time of the offence, [the defendant] had been under enormous stresses and hardships and which resulted in him feeling chronically helpless, guilty conscious, sad and frustrated” and which resulted in the loss of his better judgment.

23. That was how the defence would seek to explain why and how a man with the defendant’s imbeccable background could have committed a serious offence like the present one.

24. On likelihood of repetition, Professor Lee had the following to say: “Detailed analyses show that [the defendant] did not show any indications for criminality, dangerousness, or psychopathology.  Moreover, the defendant did not show any signs of compulsion or irresistible urge which might be relevant in predicting future risk of re-offences.”

25. The defendant impressed Professor Lee as being a simple, decent, and straightforward person. In his opinion, Professor Lee commented that the chance of the defendant having any risk of reoffending was practically zero.  He added that the defendant being in prison over the intervening period – the “dosage” of deterrent was far above that required for a peace loving person such as the defendant; that the past few months of incarceration would have more than given the defendant (and his wife) a thunderous wake-up call to seek professional help to deal with each of their problems in order to create a much better future for the second halves of their lives.

26. In Professor Lee’s opinion, the defendant should have a very positive prognosis with the requisite psychological help.

27. Second section, prosecution documents.  Defence seeks to show by various letters (earliest being one dated 10 November 2014) written by the defence to the prosecution that the defendant intended to plead guilty to the charge.  He had upon request of the prosecution voluntarily supplied information about the chemical contents of the explosive substance.

28. The photographs in this section show the scene of crime in particular the final resting place of the distorted plastic bottle in between pop-up stalls just outside a Watsons store.  Although no obvious physical damage to any surrounding area could be seen, the corrosive liquid which erupted as a result of the explosion seemed to have landed on and defaced (albeit partially) the nearby metal paneling.

29. Third section, personal particulars.  This section contains the defendant’s CV, details and proof of his academic achievements, a summary of the charitable donations he made, but most important of all, an apology letter written by the defendant himself.

30. I merely wish to recite some extracts from the defendant’s letter: “My confinement has had a severe impact on my life, especially on my family and on a longstanding career, and is a life-changing event I will never forget …… I have the resolve and understanding never to commit such an act again.  Nevertheless, I am committed to working with a psychiatrist/psychologist on a continuing basis to handle the stresses which contributed to this event.”  The defendant said that his first and biggest apology must be to the Hong Kong public.

31. Fourth section, character reference letters.  There were 14 mitigation letters written by the defendant’s wife, two eldest daughters, his brother, colleagues, ex-colleagues, and acquaintances.  The central theme of the letters are that the defendant is a family man, a loving and responsible husband and caring father, a nice and kind person, that he acted out of character, had a lapse in judgement in the one-off event, that he had o intention to harm and was remorseful, and would never repeat the same or similar conduct.

32. Fifth section, letters to various societies.  The defendant had written to the Hong Kong Federation of Youth Groups and the Society of Rehabilitation and Crime Prevention offering volunteer services to young people who, like him, had fallen by taking a wrong step in life.  The Hong Kong Federation of Youth Groups had written back accepting the offer and provided a contact so that follow-ip action may be taken.

33. Sixth section, previous cases.  The defence submitted the District Court sentencing case of HKSAR v Chan Yiu Shing, DCCC  912/2009, and Cheung Man Tsun v The Queen, CA 207/1975.

Government reports

34. During the last hearing, I called for a psychological report, a background report and a community service report.

35. As regards the immediate background to the index offence, the government clinical psychologist had this to say: “[the defendant] allegedly learnt from a news article that a screw-capped bottle would explode with a loud pop if a strip of aluminium foil was mixed with the toilet cleaner with hydrochloric acid as an active ingredient.  He found the chemical reaction fascinating.  He had repeated this experiment many times at home.  He even showed it to his children and explained to them the chemical mechanism behind [it].  [The defendant] thought that the experiment was beautiful as it was simple and the materials could be easily found at home.  He reportedly experienced excitement every time when he did the experiment.  He also felt a sense of relief after he saw the bottle explode and heard the pop sound ……  He revealed that he had an urge to do the experiment in a public place.”

36. The clinical psychologist assessed the defendant psychologically and had this to say about him: “[the defendant] was a rational, serious, tense, joyless, and unrelaxed person ……  However, his scientific orientation might narrow his perspective especially when he was confronted with a human rather than a technical problem.  He did not take into account the human factors such as relationship, emotions, and personal biases when dealing with matters in relation to his wife, work and personal well being ….. the excitement which he experienced from seeing a bottle exploded with a loud pop relieved him from the stresses.  He conducted the explosion experiment in a public place for coping with his personal stresses.  Given his background, his level of stress must have gone beyond his tolerance and coping ability.”

37. On future prognosis, the clinical psychologist took note of the fact that the defendant had agreed to receive psychological treatment for his stresses and mood management; his motivation to change was high and his family was very supportive which would be a protective factor against reoffending; that no violent tendency was observed in the defendant and the risk of reoffending was assessed to be very low.

38. The background report had little to add save that it was said the defendant now realized that he had made poor judgement and displayed lack of sensitivity of the subject act which might affect other people leading to chaos in the shopping mall.

39. Regarding the defendant’s suitability for performing community service, the probation officer was of the view he was not so suitable.  The reasoning is that.  Given that the defendant suffered from poor emotions and from failure to cope with his work stress and handling his wife’s emotions and that he was required to receive psychological treatments at his private psychologist after the present incident, putting him on CSO may impose additional stress on him such that it might not be beneficial to his psychological rehabilitation.

Sentence and reasons for sentence

40. Even someone who is unfamiliar with the law will immediately recognize that possession of an explosive substance must be a serious offence in a civilized society like Hong Kong.

41. This offence carries a maximum sentence of 14 years’ imprisonment.  The Secretary for Justice’s consent is required to prosecute it.

42. It is apparent from the various reports placed before me that although the defendant is a bright and highly educated man in terms of scientific matters, he is weak in dealing with frustrations in work and family lives.  Maybe that is because he had been so successful for too long, due partly to his ability and partly to sheer luck.  When the wind turned against him in work and in family life contemporaneously, he found himself unable to cope; but instead of finding ways to resolve these personal problems, he retreated to something he knew well and which he was fond of, and which he thought he had the ability to control.

43. He started by conducting experiments at home, and then a mini-explosion in the balcony of his home, even in the presence of his children.  But then when his stresses could not be alleviated, he found that he had to find a place in which to conduct the explosion which would have a bigger sound effect such that on hearing it, his high stresses would somehow be released.

44. He finally realized that this selfish and perverted way of dealing with his personal problems at the expense of the public had the potential effect of causing large-scale apprehension and chaos among the public who had every right to enjoy their shopping and leisure time in the shopping mall in question peacefully and quietly.

45. I have considered the two sentencing cases urged upon me but I do not find them useful.

46. I certainly agree that the defendant in committing the present offence had acted out of his usual character as perceived by those around him. He is a person with a previous clear record.  He had been in custody now for almost 6 months.  For his psychological problems, he is receiving treatment and he has promised to continue with it after his release from prison.

47. Quite obviously, for this type of offence, deterrence must be a major factor; and there are two aspects to it: deterrence against the defendant himself, and deterrence against like-minded persons who might, in the absence of a deterrent, be tempted to do what the defendant had done.  Although as regards the former, I am quite satisfied that the chances of the defendant reoffending are slim, I cannot ignore the fact that in the internet age, information for making explosive substance of the kind made by the defendant here, and other similarly dangerous devices is readily available on the computer.  It is a horrifying thought that the ingredients for making such an explosive device are so easily available too.

48. There is also an element of aggravation here because the defendant not only possessed the substance, he actually caused an explosion with it.  Although I accept that the defendant had no intention to injure other people from the place and time that he chose for the explosion, he must at least be held to be reckless as to what damage that could be caused by the corrosive acid that splashed out.

49. Although I am not bound by the recommendation of the community service report, I choose to adopt it.  In this case, bearing in mind the foregoing considerations, the only realistic sentencing option is immediate imprisonment.

50. In the case of the defendant who was previously of good character and who had no intention to injure, and having regard to the nature, design and scale of the explosive substance in this case, I adopt a starting point of 12 months’ imprisonment for the possession offence.  I add to it 3 months to reflect the fact the defendant actually caused an explosion in a public place, albeit in a deserted corner and at late hours.

51. The defendant pleaded guilty and is entitled to a 1/3 discount.  There is no other valid mitigation factor.  The defendant is to serve a term of 10 months’ imprisonment.