HKSAR v. CHAN YIU SHING AND OTHERS

HCCC 41/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 41 OF 2016

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REASONS FOR SENTENCE

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Introduction

1.  In a time where there is heightened concern both domestically and internationally about the safety of the general public by indiscriminate acts of violence, sentences must be imposed for offending of this nature to reflect the gravity and seriousness of the criminality disclosed. Offences for the possession or making of explosive substances fall within this category, and will normally demand the imposition of a custodial sentence that acts as both a specific and general deterrent.  As is always the case, when passing sentence, the court’s preoccupation is with the facts and circumstances of the offence and of the offender as considered and evaluated by the application of relevant sentencing guidelines and principles.  Offences will vary greatly but it needs to be appreciated that persons involved in researching or making explosive substances are likely to face severe punishment.

2.  As noted by the Court of Appeal of English and Wales in R v Marcin Kasprzak [2014] 1 Cr App R (S) 20 115 at 119:

“15 In our judgment, at a time when information about how to obtain ingredients for the making of explosives, as well as the instructions themselves, are so readily available on the internet, deterrence must play a significant part in the sentencing process.”

3.  I should also add that this is at a time when the substances and materials for improvised explosives are readily available and generally found in commercial or household items.  

The offence and penalty provision

4.  The offences of possession or making of an explosive substance are contained in section 55(1) of the Crimes Ordinance, Cap 200, and in relation to both offences the maximum penalty on conviction upon indictment is a term of imprisonment of 14 years.

5.  The equivalent penalty provision in the United Kingdom is section 4 of the Explosive Substances Act 1883 which provides a maximum sentence of life imprisonment.  The maximum penalty had been increased from 14 years’ imprisonment effective on 13 April 2015. 

6.  This needs to be borne in mind when considering cases where sentences have in the past been imposed for offences relating to explosive substances.

The verdicts of the jury

7.  The five defendants in this case stood trial on an indictment containing five counts.  Count 1 alleged a conspiracy to make explosive substances against all five defendants.  The remaining counts alleged possession of explosive substances where Count 2 was against D2, Counts 3 and 5 were against D3 and Count 4 was against D1.

8.  After a very long trial, the jury returned verdicts of guilty against D2 and D3, and not guilty against D1, D4 and D5, on Count 1; guilty against D2 on Count 2; guilty against D3 on Counts 3 and 5; and guilty against D1 on Count 4.

9.  It now remains for me to sentence D1, D2 and D3 in relation to the offences for which they have been found guilty by the jury. I will provide a brief summary of the facts giving rise to these offences.

As to Count 1 the conspiracy count

10.  In respect of Count 1, the jury by its verdict has found that D2 and D3 had conspired together to make explosive substances which were particularised in Count 1 as “a mixture of nitrate salts, capable of producing a pyrotechnic effect”.  The generic description of the explosive substances is smoke bombs.  

11.  The prosecution case against the defendants focussed on events on two separate occasions, namely events on 27 and 28 May 2015 and events on 14 June 2015.  The prosecution case mainly consisted of surveillance of the defendants and the seizure of substances and items by police officers as well as expert opinion on aspects of this evidence. 

12.  The events on 27 and 28 May 2015 concerned surveillance of the five defendants.  They were initially seen coming out of the residence of D1 and go to a nearby McDonald’s restaurant.  They returned to D1’s residence where D1 is observed carrying a blue cooler box which he together with D4 and D5 are observed taking to the ATV building in Sai Kung.  D2 and D3 left separately from the other three.  Later in the early hours of 28 May 2015, police observed a series of flashes and smoke.  It was the prosecution case that this evidenced the testing of smoke bombs.  However, the prosecution’s own experts gave ambivalent evidence about whether the observations of the police were consistent with the testing of smoke bombs.  It was the prosecution case that D2 had later joined the other three, while D3 did not attend.  Clearly by the jury’s verdict, they were not sure that the events of the early morning of 28 May 2015 evidenced the testing of smoke bombs. Hence, as D1, D4 and D5 were only involved in the events of those two days, they were acquitted of Count 1. 

13.  The prosecution case, however, was that the blue cooler box which was exhibit P714 was left at the ATV building and contained substances and items for the making of smoke bombs and was later used by D2 and D3 who on 14 June 2015 retrieved it from its hiding place under a staircase in the ATV building.  There was evidence that certain items in the box were similar or the same to items in the possession of D3.  Also found in the ATV building in a cistern in the male toilets was a McDonald’s cup which contained a substance that when ignited by a bomb disposal expert emitted a large volume of smoke.  McDonald’s cups were also found in the box.

14.  The events of 14 June 2015 are relevant to the jury’s verdict on Count 1 against D2 and D3.  A little after 6 pm, on 14 June 2015, D2 and D3 were observed entering the ATV building and seen on the rooftop, mixing and putting substances into two bottles.  The prosecution case was that they had with them the blue cooler box, exhibit P714.  Later, D2 and D3 are observed leaving the rooftop with D3 carrying the box. 

15.  At about 7:24 pm, a police officer observed white smoke bellowing from a window on the top floor of the ATV building which rose as high as 3 to 4 stories.  D3 confirmed in his evidence that he was there with D2 and that smoke may have been emitted when D2 ignited the residue of a thermite mixture.  He said that they were testing thermite for welding but this was rejected by the jury in light of their verdict. 

16.  As D2 and D3 left the building, they were arrested by the police.  The police recovered from D2 the substances found in his possession as alleged by Count 2.  The police also recovered from D3 the substances found in his possession as alleged by Count 3 and later the substances found in D3’s residence as alleged by Count 5.

17.  Police officers also located a blue cooler box, exhibit P714, and found inside nitrate salts and sugar which are ingredients for making smoke bombs. 

18.  As mentioned, various items were found in the box and in the possession of D3 at the time of his arrest and later at his home that connected him to the box.  There was also electronic and other data from D3 that revealed inquiries by him in relation to the making of smoke bombs. 

19.  The bomb disposal officers gave expert evidence about the observations of the police officer on 14 June 2015 and together with evidence from a government forensic scientist, it was put that an analysis of the substances and items recovered from the box and at the site established that what took place was the testing or making of a mixture containing nitrate salts, capable of producing a pyrotechnic effect.

20.  As noted, D4 and D5 were found not guilty by the jury of Count 1.  That was the only offence that these two defendants faced. The evidence against D5 included several video recorded interviews and a case reconstruction video.  In these out-of-court statements, D5 stated that he was a member of a group known as the National Independent Party to which D1, D2 and D3 were also members, and that they, in particular D3, were seeking to make smoke bombs for the purpose of using them in public demonstrations that were due to take place.  D5 as part of his case alleged that the caution statements had been improperly obtained and therefore should be ignored, and/or did not contain admissions by him that he was a party to the conspiracy as alleged in Count 1. It is for this reason that counsel for D2 and D3 have urged upon me to ignore what is contained in D5’s out-of-court statements for the purpose of sentencing the two defendants.

21.  I should note, however, that D3, who was the only defendant to testify, said in his evidence that he was a member of a group known as the Hong Kong, Macau, Taiwan Group, which seemed to have some connection through others with the National Independent Party, and that the Group was involved in local affairs and sharing information.  He also said that he had been asked to make inquiries by a person known as Danny Cole in relation to the making of smoke bombs which were intended to be used at demonstrations. He said that he ignored this request but it would appear that the jury has rejected D3’s explanation that Danny Cole was the instigator and the one responsible for inquiring about and making smoke bombs.  The browsing history of D3’s computer as set out in exhibit P1004(4) displays a series of inquiries about the making of smoke bombs.  The jury has clearly rejected D3’s evidence that these inquiries were made by Danny Cole. 

22.  In relation to Count 1, it can be briefly stated that the jury by its verdict has found that D2 and D3 had conspired together to make smoke bombs, and I find on the evidence that they had planned to do so in order to eventually use them at scheduled public demonstrations that were about to take place.  I find that the explosive substances that they agreed to make were capable of producing a pyrotechnic effect in that they were seeking to create explosive substances that would emit a large volume of smoke.  I further find that the smoke bombs that they had planned to make were rudimentary and designed only to emit smoke. 

As to Counts 2 to 5 the possession counts

23.  As to Count 2, D2 was convicted that on 14 June 2015, at the ATV building, he knowingly had in his possession aluminium powder (P763) and iron oxide (P766) for making a thermite mixture which were explosive substances.  Thermite when ignited practically produces pyrotechnic effects, namely extreme heat and light, which can cause serious harm to persons and damage to property.  D2 at trial claimed that he had a lawful object for possessing the materials for making thermite for welding.  This was rejected by the jury.

24.  As to Count 3, D3 was convicted that on 14 June 2015, at the ATV building, he knowingly had in his possession sodium nitrate, potassium nitrate (P754) and aluminium powder (P757) for making (a) a mixture containing nitrate salts (sodium nitrate/potassium nitrate (P754)) capable of and, used or manufactured with a view to producing pyrotechnic effect; (b) a thermite mixture (P757); and (c) a sodium nitrate/potassium nitrate and aluminium explosive mixture (P754 and P757) which were explosive substances.  D3 at trial claimed that he had a lawful object for possessing the materials as to (a) for making cooling packs, as to (b) for welding and as to (c) for making cooling packs and welding.  This was rejected by the jury.

25.  As to Count 5, D3 was convicted that on 14 June 2015, at his residence, he knowingly had in his possession acetone (P232), nitric acid (P263), potassium nitrate (P251) and five fluorescent tube heads (P246) as (a) material for making explosive substances capable of and, used or manufactured with a view to producing pyrotechnic effect (P251); (b) materials for making Triacetone triperoxide (TATP) (P232 and P263); and (c) apparatus or part of apparatus intended to be used or adapted to be used for causing explosion, namely detonating and/or igniting device (P246).  It should be noted that I directed the jury that the substances of hydrogen peroxide (P233) and sugar (P276) were of minute quantity and the jury should not find that D3 was in possession of these substances although they could take into account that it evidenced that he had been previously in possession of them.  D3 at trial claimed that he had a lawful object as to (a) for a cooling pack and the sugar for fermentation with yeast; (b) for thermite welding by using the acetone to clean aluminium cans and the hydrogen peroxide and nitric acid to make iron oxide; and (c) for making a vaporiser.  This was rejected by the jury.

26.  As to Count 4, D1 was convicted that on 14 June 2015, at and outside his residence, he knowingly had in his possession aluminium powder (P59) and iron (III) oxide (P58) for making a thermite mixture.  D1 at trial claimed that he had a lawful object for possessing the materials for a thermite welding experiment.  Other substances were particularised in this charge for the making of certain explosive substances but this was rejected by the jury.  This was rejected by the jury.

27.  In relation to the possession counts, I have taken into account the quantities involved in relation to each offence, in some instances the substances were of small quantity.  I have also taken into account that some of the substances needed to be combined with other substances or effected by apparatus which were not in the possession of the defendant concerned.

Mitigation for D1

28.  D1 is 36 years of age.  He has a number of prior convictions dating back to April 2000.  They are mainly for possessing or dealing in contraband such as illegal cigarettes.  On 8 June 2016, he was convicted for possession of an offensive weapon for which he was sentenced to 9 months’ imprisonment but this occurred prior to this offence and will not be take into account for the purposes of sentencing in this case. 

29.  I have received testimonials concerning the character of D1.  A medical practitioner who was acting as the convenor of the medical support team of the various demonstrations that occurred in late 2014, has stated that D1 was a member of one of the first aid teams and that he displayed a care and concern for others as evidenced by the assistance he rendered to demonstrators requiring first aid.  I have also been informed about the volunteer work that D1 has done as a swimming coach for children with special needs. 

30.  D1’s ex-wife has submitted a letter in which she stated that D1 is a caring and good person who has the consideration of others at heart and that he has been a good father to their two children, a daughter aged 16 and a son aged 12. 

31.  Mr Randy Shek, for D1, has addressed me on sentence in relation to Count 2.  Whilst he acknowledges that thermite produces intense heat that can have deleterious consequences, it also has a lawful purpose in the use of welding.  However, the jury has rejected that this was a lawful object available to D1 for possession of the materials in question.  He also points out that the quantity of the substances was small and that this should be taken into account when passing sentence.  He further notes that there was no actual end-product of thermite even though the ingredients were there. 

Mitigation for D2

32.  D2 is 31 years of age.  He has a prior conviction for possession of an offensive weapon in public place which relates to the same incident for which D1 was convicted and sentenced.  D2 was sentenced to 6 months’ imprisonment on 6 June 2016 in relation to this offence. 

33.  Mr Douglas Kwok, for D2, has submitted testimonial letters in relation to his community work.  A District Councillor from his area has written letter on his behalf and mentions his community activities and assistance that he has rendered others through community projects.  During the course of the trial, evidence was presented that D2 had a scaffolding business although I am unsure as to the current status of the business. 

Mitigation for D3

34.  D3 is 24 years of age.  Character evidence was presented on his behalf at trial.  Former and current employers spoke very highly of him as to his professional and personal qualities.  He is a university graduate in aeronautical engineering and has a keen interest in science and it would appear also in local affairs.  His mother is Chinese and his natural father is Italian.  His parents divorced and his mother has remarried.  His stepfather is English.  The three of them are on good terms and are in close contact with each other and have provided strong and devoted support to D3.  They have attended court throughout these protracted proceedings clearly in support of and out of concern for D3.  In a combined letter, they have urged me to treat D3 leniently and vouch for his good character and integrity. 

35.  D3 himself has also submitted a brief letter to the Court in which he apologises for the imposition that this case has caused and states that he wishes to make a useful contribution to the future of Hong Kong. 

36.  Mr John Haynes, for D3, made a number of points in mitigation.  First, he complained about the way the case was initially portrayed by the authorities where the defendants were branded as terrorists and accused of making dangerous explosives.  He noted that the more serious offence under section 54 of making explosive with intent to endanger life or property was initially charged but later dropped and that just prior to trial the prosecution offered no evidence on a charge of attempting to make TATP.  I must say that there is something in what Mr Haynes has submitted.  Mr Haynes referred to various newspaper articles that gave an extreme and sometimes false account of events.  This was most unfortunate and would have placed the defendants under a fair degree of hardship.  The relevant authorities after having taken arrest action and bringing the case to court should be careful and restrained as to how they inform the general public about a case, bearing in mind the administration of justice.  Of course, that applies to the reporting of the case as well.

37.  Mr Haynes also submitted that D3 together with others were young members of the community expressing their views and exercising their right to demonstrate.  That may be so, but it is a right to a lawful and peaceful demonstration.  The use of explosive devices, in the form of smoke bombs, at a public gathering can have dangerous and deleterious consequences to the general public, and is totally unacceptable.

38.  In relation to the possession counts, Mr Haynes submitted that this merely reflected D3’s interest in science and experimentation and in any event the quantities involved were small and no end-product had been made or recovered. 

As to Count 1

39.  I have had submitted a number of authorities from both here and the United Kingdom in relation to sentencing of offences for possession or making of explosive substances.  I have already noted the difference between the two jurisdictions in relation to the penalty provision. In Hong Kong for an offence under section 55(1), the maximum term of imprisonment is 14 years. 

40.  The prosecution have made inquiries in relation to cases concerned with the sentences passed where the explosive substances were smoke bombs.  From their records, no cases were found relating to thermite or ingredients for making thermite.  In relation to smoke bombs or ingredients for making of smoke bombs, only two cases were found.  The first case is HKSAR v Kwan Ka Hei, ESCC 413/2015, 22161, 22163, and 22165/2016.  In that case, the defendant was convicted after trial of possession of an explosive substance, consisting of 1 kg of a powder crystalline solid containing about 0.5 kg of potassium chlorate, that is 16 smoke cakes.  The defendant was sentenced to 3 months’ imprisonment.  The second case is HKSAR v Pun Cheuk Yin, KTCC 6860/2008.  The defendant was charged with possession of prohibited goods under sections 7 and 14 (1) of the Dangerous Goods Ordinance, Cap 295, namely 5 smoke grenades containing potassium chlorate and sulphur.  The defendant was convicted after trial and fined $10,000.  I did not find these cases particularly useful as they appeared to be fact sensitive from which no significant guidance can be obtained other than noting the quantity of substances involved and that they were dealt with in the Magistrate’s Court.

41.  I found the judgment in the case of Marcin Kasprzak generally helpful in its discussion on the role of an offender in researching and taking steps in the making of explosives.  I was referred to other cases which I have not mentioned as they were mostly relied upon as a comparison of how other courts have sentenced for this type of offence. 

Count 4: D1

42.  On Count 4, D1 has been found guilty of possessing of materials that are explosive substances for making a thermite mixture.  Thermite is a dangerous product that produces extreme heat, and there is no reason for D1 to have had the explosive substances other than for some untoward purpose. The quantities were relatively small but the harm and damage that they could cause was great.  I will adopt a starting point of 2 years and 2 months’ imprisonment.  I sentence D1 to 2 years and 2 months’ imprisonment. 

Count 1: D2 and D3

43.  On Count 1, D2 and D3 have been found guilty of conspiring to make a mixture of nitrate salts, capable of producing a pyrotechnic effect.  In light of the findings that I have made in relation to this count, I adopt a starting point of 2 years’ imprisonment.  I sentence D2 and D3 to 2 years’ imprisonment on this count. 

Count 2: D2

44.  On Count 2, D2 has been found guilty of possessing materials that are explosive substances for making a thermite mixture.  As I have mentioned in relation to Count 4, this is a dangerous product and there is no reason for D2 to have had the explosive substances other than for some untoward purpose.  I adopt a starting point of 2 years and 2 months’ imprisonment.  I sentence D2 to 2 years and 2 months’ imprisonment.

Counts 3 and 5: D3

45.  The materials and the apparatus under Counts 3 and 5 that D3 had in his possession concerned the making of explosive substances that include the making of smoke bombs, of TATP, of a thermite mixture, a nitrate explosive mixture and apparatus for detonation.  As I have already mentioned, these were all explosive substances that were potentially very dangerous and there was no reason for D3 to have them in his possession other than for some untoward purpose.

46.  Count 5 reflects greater culpability on the part of D3 because of the materials for making TATP.  This is a dangerous and well-known explosive that can cause loss of life and serious harm to persons as well as serious damage to property.  The quantity of acetone (P232) was small and the bomb disposal expert testified that an end-product would have caused serious injury to anybody nearby and demonstrated this by indicating that it would put a hole through a wooden table.  However, I do bear in mind that the quantity of acetone was small and there was no end-product.  The evidence at trial which the jury must have accepted was that he was making inquiries about and researching TATP and other explosives.  It should be borne in mind that researching explosive substances is one step away from making them and another step away from using them.  The possession of the acetone for the purpose of making TATP is supported by the inquiries and note that he made about this explosive.  Although it was limited to a Post-it note and electronic data that addressed this subject together with other general references concerning explosives.  I will impose a starting point on the basis that it was limited to general inquiries and that there was no end-product of TATP.  This of course is supported by the prosecution’s position of offering no evidence to the charge against D3 of attempting to make TATP. 

47.  On Count 3, I adopt a starting point of 2 years and 6 months’ imprisonment, bearing in mind the substances and the quantities involved.  Similarly, on Count 5, I bear in mind the substances and the quantities involved but note that it included the substances for the making of TATP, an apparatus to be used for detonation and therefore I adopt a starting point of 3 years and 2 months’ imprisonment. 

Overall sentence

48.  I have borne in mind the mitigation advanced on behalf of the defendants but I find that there are no mitigating factors that warrant a reduction of the sentence because of the grievousness of the offences involved.  That is particularly the case in relation to D3, who prior to these offences was a person of good character and of relatively young age when these offences were committed.  See R v David Riding [2010] 1 Cr App R (S) 7 37 at 40 at paragraph 20. 

49.  The present case suggests that there was a worrying and unacceptable interest by the defendants in substances for the making of explosive or incendiary devices and although no end-product was produced or recovered, the ingredients and the know-how to make them were there. 

50.  As for D1, he is sentenced to 2 years and 2 months’ imprisonment on Count 4. 

51.  As for D2, he is sentenced to 2 years’ imprisonment on Count 1, and to 2 years and 2 months’ imprisonment on Count 2.  Taking into account the totality principle, I order that 8 months of the sentence on Count 1 is to run consecutively to the sentence on Count 2.  He is therefore sentenced to 2 years and 10 months’ imprisonment.

52.  As for D3, he is sentenced to 2 years’ imprisonment on Count 1, to 2 years and 6 months’ imprisonment on Count 3, and to 3 years and 2 months’ imprisonment on Count 5.  Taking into account the totality principle, I order that the sentences on Counts 3 and 5 run concurrently to each other and that 8 months of the sentence on Count 1 run consecutively to the concurrent sentences on Counts 3 and 5.  He is therefore sentenced to 3 years and 10 months’ imprisonment.