HKSAR v. CHAN KEI SHING

DCCC 447/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 447 OF 2016

____________

REASONS FOR SENTENCE

1.   The defendant pleaded guilty to a charge of "Bomb hoax". He placed a bomb-like object in a male toilet of BP International House ("the Hotel") situated at Austin Road, Tsimshatsui.

Summary of Facts

2.  On 17 January 2016, Falun Gong held a conference at the ballroom on the Upper Ground Floor ("UG Floor") of the Hotel.

3.  About 11:10 a.m. on that day, the 999 hotline received a call made from a telephone number 6823 6474 ("the Number").  The caller claimed that 3 bombs had been placed inside the ballroom of the Hotel; and another 2, elsewhere.  The caller further claimed that those bombs would explode and requested the Police to attend the Hotel.

4.  About the same time, a cleaner of the Hotel (PW1 Madam MA) found a suspected bomb ("the Article") placed on top the water tank inside a cubicle in the male toilet on the UG Floor.  The Article was wrapped in multi-colour paper with black adhesive tapes.  A timer was attached to its surface and was running.  PW1 immediately informed her superior and the Security Department of the Hotel.

5.  Owing to the discovery of the Article, about 1,100 people (including staff and guests) were evacuated from the Hotel.  The normal operation of the Hotel did not resume until 4:00 p.m. that day.

6.  Other than the Article, the Police found nothing suspicious in the Hotel.  A Bomb Disposal Officer (PW9) deployed a robot to disrupt the Article by firing a disruptor at it.  PW9 later examined the Article and found, inter alia, 5 butane gas cylinders, some of which were attached with wire.  In his expert opinion, PW9 considered the Article a simulated improvised explosive device[1].

7.  Call records revealed that the Number was activated on the date of the offence. Only 3 calls were made that day.  One of which was an incoming call at 10:35 a.m. from a number 6706 1578 ("Number 2") and it lasted for 36 seconds.

8.  The defendant was arrested by the Police at 12:15 a.m. on 24 February 2016 in Mongkok.  Under caution, he admitted that he was paid $5,000 by someone named "Ah B" to place a package inside a toilet of the Hotel.  He claimed that he did not know the matter was such a big deal.

9.  In his video recorded interview and video re-enactment, the defendant admitted that he was the owner of Number 2 and had used that phone number on the date of the offence.  On 17 January 2016, the defendant met Ah B and a friend at a park near Kwun Chung Market in Jordan.  Ah B gave him $5,000 and a bag which contained a suspected bomb.  Then the defendant went to the Hotel alone and placed the suspected bomb in a cubicle in a male toilet on the UG Floor.

Mitigation & Sentence

10. The defendant is 35 and single. He has 9 conviction records, none of which was related to the present offence. Defence counsel Mr. CHENG informed me that the defendant became the father of a pair of twins (a son and a daughter) in October 2016. The twins currently stay with their mother. After he was arrested for the present offence, the defendant became a transportation worker earning at most $20,000 per month.

11. In mitigation, Mr. CHENG submitted that the defendant had only executed the plan by placing the Article in the toilet. He took no part in planning the incident or making the Article. The defendant committed the offence because he was unable to resist the temptation of earning some quick money. Mr. CHENG stressed that the defendant has no affiliation with any political groups or religious bodies.

12. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. At present times when international tensions are high, bomb-related incidents (regardless fake or real) would only create chaos, panic and disruption of public order. Even when no one was injured and no property was damaged, daily activities in our society (be they economic, social or cultural) would still be tremendously hindered or even paralyzed.

13. In HKSAR v LAW Chun Man [2012] 4 HKLRD 320, the Court of Appeal held "Bomb hoaxes can range from the obviously false to the deadly serious and this hoax was intended to be credible and to be taken seriously. …Because the range of culpability for this offence can be so great and the consequences in terms of disruption, evacuation and diversion of law enforcement and fire services resources potentially significant it may be thought surprising that the legislature has seen fit to enact for it a maximum penalty of only 5 years imprisonment. Three years imprisonment for the applicant's role in this offence is in our view not a day too long[2]." In relation to the bomb hoax aspect, both the applicant in LAW Chun Man and the defendant in the present case played the role of a courier.

14. In the present case, over 1,000 people were evacuated from the Hotel and its operation was disrupted for at least 5 hours. I accept that the defendant may not have any political or religious motive, but whoever orchestrated this scam probably had one. It is a strong inference to be drawn since there was a Falun Gong conference held at the Hotel on that day. The court has a duty to punish and deter all illegal activities which carry any flavour of terrorism. When people realize that the court would not treat those "gullible" couriers like the defendant lightly, there would be, hopefully, fewer willing "couriers"; thus making it difficult for criminals to exploit people with financial needs or other vulnerabilities.

15. I adopt a starting point of 3 years' imprisonment. With the guilty plea, the sentence is reduced to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 2 years' imprisonment.