A A
HCCC 103/2022
HCCC 104/2022
B HCCC 127/2023 B
(Heard together)
[2024] HKCFI 280
C C
IN THE HIGH COURT OF THE
D
HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
CRIMINAL CASE NOS 103 AND 104 OF 2022 AND 127 OF 2023
E E
-----------------
F HKSAR F
G v G
Kwok Man-hei (A2/D2 in HCCC 103/2022)
H Ho Yu-wang (A1/D3 in HCCC 104/2022) H
Cheung Ho-yeung (A1/D8 in HCCC 127/2023)
I ----------------- I
J Before: Hon Alex Lee J J
Date: 28 December 2023 at 12.19 pm
Present: Ms Karen Ng, SPP of the Department of Justice, for
K HKSAR K
Mr Tien Kei-rui, instructed by Cheng & Co, for the 2nd
accused in HCCC 103/2022
L L
Miss Lai Wing-ting Kamina, instructed by Chiu, Szeto &
Cheng, for the 1st accused in HCCC 104/2022
M Mr Johnny So, instructed by Henry Chiu & Partners, for M
the 1st accused in HCCC 127/2023
Offence: (1) Conspiracy to commit terrorist activities (串 謀 恐 怖
N 活動) N
(2) Conspiracy to cause explosions likely to endanger
O life or property (串 謀 導 致 相 當 可 能 危 害 生 命 或 財 產 的 爆 O
炸)
P P
---------------------------------
Transcript of the Audio Recording
Q of the Sentence in the above Case Q
---------------------------------
R R
COURT: This case concerns the criminal activities of a group of
people who called themselves “光城者” (“Returning Valiant”
S S
(“RV”)). Originally, there were seven defendants, D1 to D7,
in the court below, and Ms Kwok in HCCC 103/2022 and Mr Ho
T in HCCC 104/2022 were then respectively D2 and D3. And for T
the sake of convenience, I will continue to address them by
their designations in the court below.
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CRT1/28.12.2023/AB 1 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
D1 to D7 were jointly charged with: (1) one charge of
conspiracy to commit terrorist activities, contrary to
B Article 24 of the National Security Law (“NSL”) and sections B
159A and 159C of the Crimes Ordinance, Cap 200 (“Charge 1”);
and (2) one charge of conspiracy to cause explosions likely
C to endanger life or property, contrary to sections 54(a), C
159A and 159C of the Crimes Ordinance (“Charge 2”), which
D
was an alternative to Charge 1. D
D2 and D3
E E
D1 to D7 were arrested and brought to court on different
occasions. After several court appearances, on the second
F Return Day on 20 April 2022, on the application of the F
prosecution, their cases were consolidated without
G objection. By consent, the magistrate adjourned the G
consolidated case to 27 June 2022 for the third Return Day.
H The magistrate further directed that: H
“If any defendant intends to plead, indicates to the
I prosecution by 24 May 2022”; I
“The prosecution to serve the first draft of the
J Admitted Facts on the defendants, who have indicated J
plea, by 6 June 2022”;
“The Defence confirms the final version of the Admitted
K Facts, if any, for plea by 20 June 2022”; K
“The final version be served on the remaining
defendants by 21 June 2022”; and
L L
“Submit that final version, if any, in court by 21 June
2022.”
M M
On 27 June 2022, D2’s counsel told the magistrate that he
had “instruction not to indicate her plea before 25 May
N 2022”, but then he received new instructions from D2’s N
family and said that D2 intended to plead guilty to Charge 2
but not Charge 1. Counsel applied for a six-week
O O
adjournment for the prosecution to consider D2’s offer. The
magistrate refused D2’s application for adjournment. In the
P event, D1 pleaded not guilty to both Charge 1 and Charge 2, P
whereas D2 pleaded not guilty to Charge 1 but guilty to
Charge 2. The prosecution was yet to consider D2’s offer at
Q the time. Therefore, the magistrate committed D1 and D2 for Q
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
R R
the prosecution. Upon their admission to the Summary of
Facts prepared by the prosecution, D3 to D7 were committed
S to this court for sentence (HCCC 104/2022). S
Subsequently, by a letter to the court dated 19 August 2022,
T the solicitors of D2 informed that they had been in T
discussion with the prosecution and that an agreement had
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V V
A A
been reached. Therefore, they requested for a plea and
sentence hearing. On 6 May 2023 before me, D2 to D7
B confirmed their respective pleas and their agreement to a B
set of consolidated Summary of Facts. Sentences were passed
on D4 to D7 on 23 May 2023 and the sentence of D2 and D3
C were adjourned for reasons which I will come to shortly. C
D
D8 D
As regards to Mr Cheung, he was originally not a defendant
E but a prosecution witness(PW1) listed for the trial of D1. E
However, the court was informed that the prosecution
intended not to proceed with the case against D1 but that Mr
F Cheung’s status had changed from a prosecution witness to an F
accused. In fact, on 12 May 2023(which was less than a week
G after the first appearance of D2 and D7 before me) Mr Cheung G
was committed for trial on two charges of conspiracy which
mirrored those of D1 to D7. Ironically, this time D1 became
H a prosecution witness, as did D2 and D3, in the case against H
Mr Cheung (HCCC 127/2023). In view of this and purely for
the sake of convenience, I would, from now on, address Mr
I Cheung as D8 even though he had never been so designated in I
the court below.
J J
After D8’s committal, on 15 September 2023 his former
solicitors indicated to the court for the first time a
K guilty plea only to Charge 2, that is, conspiracy to cause K
explosion. At the time, D8’s case was yet to be listed.
However, there had been no further news about D8 until this
L L
court was informed by D8’s former solicitors that there had
been then a change in D8’s legal representation. In order
M to ascertain D8’s position, I ordered a mention on 11 M
November 2023.
N At the mention, the parties informed that they were still N
unable to agree on the facts. Since the court was of the
view that sufficient time had already been allowed for the
O O
agreement of facts, therefore directions were given,
imposing deadline for the filing of the sentencing bundle,
P failing which for the fixing of a Newton hearing or a trial. P
Eventually, on the deadline on 8 December 2023, the parties
submitted to court D8’s bundle for plea and sentence, which
Q contained a Summary of Facts dated 7 December 2023. Today, Q
D8 pleads guilty to Charge 2 before me and admits to the
Summary of Facts.
R R
Charges
S S
D3 admits that between 1 April 2021 and 5 July 2021 (both
dates inclusive), he conspired with other persons, with a
T view to coercing the Central People’s Government or the T
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CRT1/28.12.2023/AB 3 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
Government of the Hong Kong Special Administrative Region,
or intimidating the public in order to pursue political
B agenda, to organise, plan, commit, participate in or B
threaten to commit terrorist activities intended to cause
grave harm to the society, namely, explosion, arson,
C sabotages of means of transport or transport facilities, or C
other dangerous activities which seriously jeopardised
D
public health, safety or security (Charge 1). D
D2 and D8 admit that during the same period of time, they
E conspired with other persons to unlawfully and maliciously E
cause by explosive substances explosions of a nature likely
to endanger life or to cause serious injury to property
F (Charge 2). F
G Brief Facts G
There are two sets of facts prepared by the prosecution, one
H for D2 to D7 and the other for D8 alone. I do not intend to H
recite everything stated in these two sets of facts
respectively. It suffices for me to say that I have full
I regard to their respective contents. I
J Having compared the two, I find that their contents are in J
the main similar but not identical. The major reason for
the differences between the two sets of Admitted Facts, I am
K given to understand, is that the facts pertaining to D2 to K
D7 are based (in part) on the witness statement of D8 (which
was then PW1). However, having been served with the
L L
committal bundle which contained the witness statements, D1
to D3, D8 now admits that he was in fact more involved and
M active in the offence than what he had told the police M
previously. Be that as it may, whenever there are
differences between the two sets of facts, the defendants
N are to be sentenced on the version which he or she has N
admitted.
O O
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
P another local political group called “Student Politicism” (“ P
賢學施政”). The two groups had disagreements. In April 2021,
the three of them met in the office of a District Councillor
Q in Mong Kok to resolve their differences. Subsequently, D8 Q
became acquainted with D1 and D2. Afterwards, D2 came to
R know that D8 had withdrawn from “Student Politicism”. R
In my reasons for sentence given on 23 May 2023, I have
S already outlined the roles of D4 to D7 and I am not going to S
repeat those. As regards D2, D3 and D8, their roles in this
case were as follows.
T T
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V V
A A
D2
B D2 admits that she and D1 met with D8 on several occasions B
after the latter had withdrawn from “Student Politicism”.
The three of them had discussions of plans of causing
C explosions at various places in Hong Kong. She was told by C
D3 that he planned to connect the student unions of
D
different universities in Hong Kong and make use of their D
influence and networks to seek finance and support of anti-
government activities or resistance campaigns. She was also
E told by D3 that he had founded a radical political group E
called “矢名” (“Black Bloc”) which had a base in the UK and
that “Black Bloc” was planning to do something big in Hong
F F
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
G action against the government by using more radical means in G
order to solicit support and funds from other political
groups or activists, and that his next target would be
H government offices, police quarters and court buildings. I H
pause here and note that the Sha Tsui incident was not a
matter for the present case.
I I
Subsequently, during one of her meetings with D3, D2 told D8
J that there was a person who planned to make bombs and do J
something big. She then asked D3 for assistance.
Therefore, D3 provided details of his Telegram account so
K that he could be contacted by the person whom D2 talked K
about.
L L
D8
M D8 admits that after he had withdrawn from “Student M
Politicism”, he met with D1, D2 and other people in a hotel
room. During that meeting, he informed that:
N N
(a) he planned to connect the student unions of local
O universities to search for funds and resources O
through their influence and networks, with a view
to finance and support anti-government activities
P or resistance campaigns; and P
(b) he had designed a logo for a radical political
Q Q
group called “矢名” (“Black Bloc”) which was based
in the UK.
R R
As regards the Ting Kau meeting, D8 admits that he told D1
and D2 that he planned to escalate his action against the
S government through more radical means in order to attract S
support and funds from other political groups or activists.
He said that his target premises would be the government
T T
offices, police quarters and court buildings. He asked D1
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CRT1/28.12.2023/AB 5 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
and D2 to join his plan and help recruit other persons. D2
then told D8 that there was a person who planned to make
B bombs and she suggested putting D8 through to that person. B
For that purpose, D8 and D2 exchanged details of their
Telegram accounts.
C C
Afterwards, D8 was contacted by D3, who identified himself
D
as the person whom D2 talked about. D8 was then informed of D
the details of D3’s bombing plan and that his targets were
court buildings (“the Plan”). D8 undertook to assist by
E providing funds for buying the necessary equipment, E
conducting inspection of target premises, recruiting others
to execute the Plan and helping D3 leave Hong Kong after
F execution. D8 also admits that he had sent D3 via Telegram F
information on making triacetone triperoxide (“TATP”) (“三過
G 氧化三丙酮”), a kind of explosive substance, and had given D3 G
cash of HK$40,000 in an envelope.
H In around mid-June 2021, D8 met with D1, D2 and other H
persons for barbecue in Yuen Long. On that occasion, he
I discussed with D1 and D2 plans of forming study groups to I
educate people on political culture, setting up a martial
arts club to enhance the physical strength and ability of
J the protesters and recruiting more people to join and J
support the social movement after execution of the Plan.
On the following day, D8 told D1 in a telephone conversation
K about the Plan that he, that is, D8, and D3 intended to K
carry out. In particular, he told D1 that the target
L premises were Tuen Mun and Kwun Tong Law Courts Buildings L
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
M D3. M
In late June 2021, D8 was told by D3 that D3 had already
N N
conducted site inspections of the targets. At D3’s request,
D8 agreed to help recruit at least 10 persons to act as
O lookouts on the day of the execution. The police O
subsequently retrieved the communication records between the
two of them, which show that D8 had received from D3
P photographs of D3’s notebook, photographs taken in the P
vicinity of the Tuen Mun and Kwun Tong Law Courts Buildings,
and the screen-captures of 3D Google Maps with some remarks
Q Q
drawn on it.
R In early July 2021, however, D8 was told by D3 that the Plan R
had to be indefinitely postponed because the latter was
being followed by the police.
S S
After D8’s arrest on 24 October 2022, he said under caution,
among other things, that:
T T
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CRT1/28.12.2023/AB 6 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
(i) he had referred a person called “阿勇” of “Black
Bloc” to D3 and “阿勇” later told him that he,
B that is, “阿勇” had provided funds to D3; and B
C (ii) he had told D3 that he could help find persons to C
act as lookouts.
D D
D3
E E
D3 admits that he had received from D8 information relating
to the ingredients and manufacturing of TATP via Telegram,
F and he saved the said information in his mobile phone. He F
also admits that he received from D3 an envelope containing
HK$40,000 in cash, some of which was spent on buying
G equipment for manufacturing TATP. And the remaining sum was G
kept for his leaving Hong Kong after the execution of the
Plan. D3 admits that he had asked D8 to help him recruit
H H
lookouts to be posted at or in the vicinity of Law Courts
Buildings in Tuen Mun and Kwun Tong. D3 also admits that he
I told D8 in July 2021 that the Plan had to be indefinitely I
postponed as he was being followed by the police.
J Besides, police investigation reveals that D3 had asked PW2 J
(his science teacher) on different occasions if he knew how
to make bombs and TATP, and how to store highly concentrated
K K
hydrogen peroxide (“高濃度雙氧水”) and other chemicals. D3
also revealed to PW2 that he would leave Hong Kong for
L Taiwan after placing the bombs. PW2 told D3 that he did not L
know how to make bombs.
M In June 2021, D3 and his schoolmate, D4, rented a room in a M
guesthouse in Tsim Sha Tsui (“the Room”). They resided
N there during the period between 7 June and 5 July 2021, N
where they planned and prepared for the manufacture of
homemade high explosives and construction of viable
O improvised explosive devices, ie IEDs. After the arrest O
action, the police found in the Room, among other things,
D3’s notebooks and papers which contained information
P P
pertaining to a plan of damaging the stable structure of
Hong Kong (“破壞香港之穩定結構”); intensifying the
Q contradiction between the Chinese Communist Party and the Q
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
R R
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
S and a sketch of Kwun Tong Law Courts Building and S
information about the vicinity of Kwun Tong Magistracy and
Tuen Mun Magistracy which could be served as observation
T T
posts, escape routes and estimation of the travelling time
from the courts buildings to the airport.
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CRT1/28.12.2023/AB 7 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
Besides, in D3’s documents, there were references to the
following matters:
B B
(a) remote-controlled cars and drones, including a
sketch of the chassis of a radio-controlled toy
C car along with a transmitter unit with graphics; C
D
(b) various explosives and effects, including TATP, D
hydrogen peroxide with purity beyond 30% (“雙氧水純
度30%以上”), acetone (“丙銅”), ammonium nitrate,
E NH4NO3, (“硝酸銨”), which was commonly known as E
fertiliser bomb (“肥料炸彈”), fuel oil, dynamite,
F cyclonite (“環三亞甲基三硝胺”), which was also known F
as hexogen (“黑索金”) with the abbreviation “RDX”,
G pressure pot and Schardin effect (“沙爾丁爆炸效應”), G
etc; and
H (c) escape routes and the possibility of police H
explosive search dog being able to detect any
odour at the airport.
I I
Apart from the aforesaid, there were also apparatus,
J laboratory equipment and other materials which could be used J
for manufacture or placement of explosive substances,
including droppers, measuring cups, measuring tubes, filter
K papers, glass bottles, glass rods, eyewash bottle, filter K
funnels, glass bowls, protective clothing, refrigerator,
bubble wrap, carton box, paraffin oil, watch glasses,
L L
measuring cylinders, beakers, thermometer, electronic
balance, spatulas, gloves, and Wellington boots.
M M
Police investigation also reveals that D3 had recruited
other people to join and execute the Plan. One of them was
N PW6, who was the classmate of D3 and D4. And according to N
PW6, in February 2021, she, D3 and another male had a dinner
gathering in Kwun Tong, during which D3 expressed that he
O O
wanted to do something big to raise public awareness and
revive the spirit of resistance among the Hong Kongers (“想
P 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 P
mentioned that one of the target facilities was MTR and he
would leave Hong Kong after doing this. D3 asked her and
Q Q
the male for help in placing bombs. D3 said that he would
leave Hong Kong after doing that and he could arrange for
R PW6 to study in Taiwan. Subsequently, on 19 June 2021, D3 R
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
S purpose of the Plan. On 23 June 2021, when D3 and PW6 met S
for the second time to discuss the Plan, D3 gave her more
details of the plan. He told her that he had brought about
T T
a dozen people on board to act as lookouts and that PW6 was
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CRT1/28.12.2023/AB 8 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
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
B early to mid-July. On the following day, PW6 met with D3, B
D4 and D5 outside Kwun Tong Law Courts Building, where D3
gave her a Nokia mobile phone as a “burner”.
C C
The aforesaid D5 was also recruited by D3. D5, in turn,
D
engaged D6, who also agreed to placing bombs in return for a D
reward. Afterwards, D3, D4 and D5 conducted reconnaissance
at and in the vicinity of court buildings:
E E
(1) On the morning of 25 June 2021, D3 and D4 went to
Tuen Mun Law Courts Building to conduct a site
F inspection; F
G (2) Later, on the same day, D3 and D4 met up with D5 G
at Yau Hong Street, and then the trio walked to
Kwun Tong Law Courts Building for a site
H inspection. During the site inspection, D3 used H
his mobile phone to take photos of the Law Courts
Building (including the main entrance and the back
I door), the roads nearby and the route to Sai Tso I
Wan Neighbourhood Community Centre. Subsequently,
J D5 asked D3 why he took photos of Kwun Tong Law J
Courts Building and nearby places, and D3 replied
that he planned to place bombs and explosive
K substances thereat; and K
(3) In the evening of 29 June 2021, D3 and D5
L L
conducted a site inspection at the target
buildings again. Photos were taken of Kwun Tong
M Law Courts Building, Kowloon East Government M
Offices, and Kwun Tong Police Station.
Afterwards, D3 and D5 boarded a private vehicle
N outside Laguna Plaza and went to Tuen Mun. They N
stayed outside Tuen Mun Magistracy, observing the
vicinity and took photos.
O O
Later, D3 told D5 that he, that is, D5, was to place a
P package, luggage or backpack containing a bomb at Kwun Tong P
Law Courts between 10 July and 20 July 2021. D3 said they
had to carry out the Plan before August 2021 and the Law
Q Courts Buildings were chosen as the target premises to Q
create a greater impact. D5 was told that after planting
the bomb, he could leave by getting on a vehicle in the
R R
vicinity of Sai Tso Wan Neighbourhood Community Centre. The
vehicle would then take him to the airport where D5 would
S take a flight first to Singapore, where he would take a S
transit to the UK. D3 elaborated that the intended bombing
of Kwun Tong courts would involve two bombs. D5 were to
T place one bomb into a recycling bin on the sixth floor lift T
lobby and then to make a phone call to detonate the bomb.
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CRT1/28.12.2023/AB 9 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
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
B objected to putting D6 in harm’s way. However, D3 said that B
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
C C
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
D famous and people would treat them seriously. If the D
bombing campaign was successful, they would publicly admit
responsibility in the name of “浮城”. And thereafter, “浮城”
E E
would become a recognised organisation and they would
continue to carry out future plans under that name.
F F
D7, a friend of D3, was yet another person recruited by him
and her role was to source essential chemicals, namely,
G hydrogen peroxide and hydrochloric acid, for him to G
manufacture TATP. D3 told her that it would be most likely
that the bomb(s) would be placed at Tuen Mun Law Courts
H H
Building because the location was close to the airport, and
that would make his fleeing from Hong Kong easier. D3 said
I that the plan had to be carried out in early-July 2021 and I
that he would leave Hong Kong by mid-July 2021, whether or
not the Plan had been carried out, even though he would
J continue to give instructions to those remaining in Hong J
Kong to continue with the Plan. In the event, D7 was unable
to procure any hydrogen peroxide or hydrochloric acid.
K K
The Expert Opinion
L L
PW56, a Senior Superintendent of the Explosive Ordinance
Disposal Bureau, had attended the Room and reviewed the
M relevant documents and exhibits. He opined that there was M
both the intention and a developing capability to carry out
bombing attacks on targets. The Plan had developed beyond a
N N
concept and actions, including planning, procurement of
bomb-making items, and reconnaissance had commenced. The
O dates specified for attacks provide a realistic frame to O
complete the capability, including manufacturing both
explosives and bombs. Preparatory actions had been taken
P for the manufacturing of homemade high explosives, P
specifically TATP, the constructions of viable IEDs, and the
Q placement of IEDs. Q
Antecedents
R D2 R
D2 is now aged 21 and was 18 at the time of the offence.
S She was a student before her arrest. She has a conviction S
of “conspiracy to incite the commission by other persons of
T the offence of subversion”, which was a NSL offence, the T
offence period of which was between 10 January 2021 and 6
May 2021. For that NSL offence, she was charged on 28
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CRT1/28.12.2023/AB 10 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
September 2021 (during her remand for the present case) and
was sentenced by the District Court to Training Centre on 8
B October 2022. Up to today, she is still serving that order. B
D3
C C
D3 is now aged 20 and he was 17 at the time of the offence.
D
He was still a secondary student at the time of the offence D
even though he did not attend school. He had a clear
record.
E E
D8
F D8 is now aged 23 and he was 20 at the time of the offence. F
He was a university student at the time of the arrest and he
G had a clear record. G
Mitigation Letters
H H
Mitigation letters written by or for D2, D3 and D8 were
received by the court. I am prepared to accept that before
I the social unrest in 2019, these defendants might be I
described as good students and I bear this in mind in
J sentencing. On the other hand, there was, in my view, a J
huge disconnect between their descriptions of the defendants
and those revealed by the facts which the defendants
K themselves have admitted. It is apparent that the authors K
of those letters do not have any idea of the extent of the
terrible crimes that the defendants had committed.
L L
I readily accept that the hostile social atmosphere in 2019
M and 2020 was such that it could easily cloud people’s moral M
judgment. The corrosive nature of the whole event might
also have turned some ordinarily harmless people with
N previous good characters into radicals. From the Admitted N
Facts which I have outlined above, no matter what the
defendants’ purpose might have been, the Plan was without
O O
any doubt an evil one. Moreover, the defendants had by
then, sadly, become the kind of persons who are determined
P to achieve their ends regardless of the means. In the case P
of D3 and D8, in particular, their respective involvements
in the Plan were not only persistent, but also deep and
Q well-thought through such that their offences could not be Q
brushed aside as mere impulsive acts committed at the heat
of the moment.
R R
That said, in the present case, the defendants can rest
S assured that this court would not hold against them for S
anything which might have been inaccurately stated by other
people about them in the mitigation letters.
T T
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V V
A A
Sentencing Considerations
D3
B B
I shall now deal with his case first. The charge to which
he pleads guilty is one brought under the NSL and the
C sentencing approach is authoritatively laid down by the C
Court of Final Appeal in HKSAR v Lui Sai Yu (FACC 7/2023)
D
which I need not repeat here. The offence D3 committed is D
in any view a serious one. He was the mastermind of the
Plan. He recruited other people in the execution of the
E offence and was the ringleader of D4 to D7. What is more, E
D8 had taken steps to carry out the Plan and conduct the
site inspections. I bear in mind also that the offence took
F place against the backdrop of a social unrest in Hong Kong F
where many people resorted to criminal and violent
G activities in the expression of their political views. What G
D3 intended to do would have caused the societal condition
to change from bad to worse, Secretary for Justice v Leung
H Wing Hong [2021] 4 HKLRD 811. H
Furthermore, D3 displaced wanton disregard to the rule of
I law by choosing court premises as his targets. That he was I
determined to cause damage and bring chaos to Hong Kong was
J evidenced by the degree and extent of his planning and the J
steps he had taken in implementing the Plan. In pursuit of
his vanity, he became callous as to the harm which other
K people might suffer as a result of his misdeeds. Not only K
that, he even disregarded the risk to which his fellow
gangsters might exposed in the execution of the Plan. Last
L L
but not least, his action came close to declaring war on
society, the government, and court, and members of the
M public were exposed to terrible risk, Yip Kai Foon v HKSAR M
[2003] 3 HKFCAR 31.
N I also bear in mind section 109A of the Criminal Procedure N
Ordinance, Cap 221, and it gives me no pleasure in
sentencing young people to prison. However, despite D3’s
O O
relatively young age and clear record at the time and what
his family and teachers said about him in the mitigation
P letters, I am of the firm view that deterrence, public P
condemnation and protection of the society, instead of
rehabilitation, must be the dominant sentencing policies:
Q see for example, Secretary for Justice v Wong Chi Fung & 2 Q
Ors [2018] 21 HKCFAR 35. In my assessment, a lengthy term
of imprisonment is the only appropriate sentence in D3’s
R R
case.
S I have not forgotten that since D3 was unable to procure all S
the necessary ingredients for making the bombs and due to
the commendable and prompt investigation by the police, D3’s
T evil plan did not result in any serious bodily injury, death T
or significant loss of public or private property. In
U
fixing the starting point, I note that by section 159C(4), U
Crimes Ordinance, the sentence of Charge 1 shall not exceed
CRT1/28.12.2023/AB 12 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
the maximum term provided for in the substantive offence of
NSL 24. And in this regard, NSL 24 provides:
B B
“A person who commits the offence causing serious bodily
injury, death or significant loss of public or private
C property shall be sentenced to life imprisonment or fixed- C
term imprisonment of not less than ten years; in other
D
circumstances, a person who commits the offence shall be D
sentenced to fixed-term imprisonment of not less than three
years but not more than ten years.”
E E
However, I am unable to accept the submission of counsel
that D3’s sentence could not be more than 10 years’
F imprisonment just because his offence had yet to cause F
serious bodily injury or significant property loss.
G Counsel’s argument, with respect, ignores the fact that the G
charge is one of conspiracy the gravamen of which was the
making of the agreement to commit the offence rather than
H the commission of the offence. Judging from the Admitted H
Facts, it was clearly D3’s intention to cause significant
loss to the targeted court premises and he was at least
I reckless as to the safety of people who would happen to be I
inside or in the vicinity of the target buildings. If
J counsel’s argument were right, then it would lead to the J
surprising result that an accused charged with a conspiracy
to commit a NSL 24 offence could never be sentenced to more
K than 10 years’ imprisonment, no matter how serious the K
agreed course of conduct was intended to be unless it had
been successfully executed. That, in my view, cannot be the
L L
legislative intent behind NSL 24.
M This is not to say that the absence of personal injury or M
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
N is not relevant when it comes to sentence. When dealing N
with young people, the court would try not to impose a
sentence so crushing that would eliminate all hopes of
O O
rehabilitation. What is required of the court is passing a
commensurate sentence on the defendants: Secretary for
P Justice v Tang King Wa [2023] 2 HKLRD 1440. In the light of P
all the circumstances, I adopt 10 years’ imprisonment as the
starting point of D3’s sentence. This starting point is
Q already a lenient one, as it could have been higher. Q
As regards mitigation, in my view, the factors which may
R R
reduce D3’s sentence are his timely plea and his assistance
to the police. As to the latter, the prosecution confirms
S that D3’s assistance was of practical use in the case S
against D8. On the other hand, there is nothing to suggest
that D3 belongs to the supergrass category or that he had
T exposed himself or his family to any personal risk by T
U U
CRT1/28.12.2023/AB 13 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
assisting the prosecution. Based on Lui Sai Yu’s case and Z
v HKSAR [2007] 10 HKCFAR 183, taking into account the nature
B and degree of D3’s assistance and in the exercise of my B
discretion, a discount of 4 years is granted to D3 for the
aforesaid two factors combined: HKSAR v Y [2005] 3 HKC 337;
C and HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799. C
D
Therefore, D3 is sentenced to 6 years’ imprisonment. D
D2 and D8
E E
Charge 2 to which D2 and D8 plead guilty carries a maximum
sentence of 20 years’ imprisonment on conviction upon
F indictment. No sentencing tariffs has been laid down by the F
Court of Appeal. Given the variety of situations in which
G the offence can be committed, what would be appropriate in a G
given case must be fact specific.
H As I have said in the sentencing remarks of the other H
defendants in this case on 23 May 2023, the local
environment and the prevailing social setting in which the
I offence took place would also be a relevant sentencing I
factor. For this reason, although foreign cases on
J sentencing principles and sentencing considerations of J
similar offences may be of reference value, the actual
sentences imposed in those cases are not directly applicable
K to Hong Kong. K
Similarly, I bear in mind that the offence was nipped in the
L L
bud by the police so that no explosive had been actually
manufactured; no explosions had been caused; and therefore
M no casualties or damages had been resulted. These features M
distinguish the present case from local sentencing
authorities like Attorney General v Cheung Shui-tai and
N Others [1995] 1 HKCLR 186; HKSAR v Yip Kai Foon, CACC N
138/1997; and HKSAR v Lo Yat San Louis [2022] HKCA 553.
O O
I bear in mind section 109A of the Criminal Procedure
Ordinance, Cap 221. However, despite the fact that the
P offence did not lead to any actual harm to people or P
property and even taking into account what was said in
mitigation on their behalf, I am of the view that the only
Q sentencing option appropriate in their respective cases is a Q
substantial term of imprisonment:
R R
(1) the societal condition at the time of the offence;
(2) whilst a distinction could probably be drawn between
S planting an explosive device with the primary purpose of S
endangering life and doing so with the primary purpose
of causing damage to property, in the present case, the
T defendants’ objective was to destabilise the community T
and they were at least reckless as to the number of
U
people who might be killed or maimed as a consequence of U
the bombing, compare with R v Byrne and Others [1976] 62
CRT1/28.12.2023/AB 14 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
Cr App R 159; and R v Martin [1999] 1 Cr App R (S) 477;
and
B (3) similar to the case of D3, what D2 and D8 conspired to B
do came close to declaring war on society, the
government and the court, and members of the public were
C exposed to terrible risk. C
D
That said, between D2 and D8, even though they were parties D
to the same conspiracy, their respective culpability were
different so that their respective sentences would not be
E the same. E
For D2, as revealed from the facts to which she has
F admitted, her role in the conspiracy was limited to bringing F
two dangerous radicals, D3 and D8, together, knowing full
G well that they intended to make and place bombs at court G
buildings. I accept that she was not involved in the
planning or execution of the Plan. However, without her
H help, D8 might not have access to the necessary finance or H
manpower. Looking the matter in the round, I adopt 5½
years’ imprisonment as the starting point of her sentence.
I I
I note that she was diagnosed to have major depressive
J episode with underlying dysthymia. However, I cannot see J
how her condition can reduce her culpability, there being
nothing to suggest that she could not tell right from wrong
K or that her condition had in any way contributed to her K
offence. As to her mother’s hospitalisation from early-June
to late-September 2023, the courts have said time and again
L L
that those who commit offences should keep in mind “the
principle that adverse effect of imprisonment upon an
M offender’s family is not a factor normally to be taken into M
account”: HKSAR v Chan Kin Chung [2002] 4 HKC 314.
N In my view, there are two factors which can reduce D2’s N
sentence: (a) her guilty plea; and (b) her assistance to
the police. As to (a), in view of the procedural history
O O
outlined above, she should not be taken to have tendered a
timely plea at committal. The blunt fact is that she failed
P to take heed of the magistrate’s warning by indicating her P
plea in time with the result that she had to seek an
adjournment. She must be taken to know that there is a
Q price to pay for her tardiness. Bearing in mind that she Q
did reach an agreement with the prosecution on her plea
before listing, in the exercise of my discretion, I grant
R R
her a reduction of 18 months for the plea. As to (b), the
prosecution confirms that her assistance was of practical
S use in the case against D8. For this, I grant her a further S
7 months’ reduction. And subject to the issue of totality,
I can see no other factors which may further reduce D2’s
T sentence. T
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CRT1/28.12.2023/AB 15 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
Now, turning to the issue of totality, I note that the dates
of D2’s previous NSL case overlapped with the dates of the
B present case. Although the two cases are separate and B
distinct offences, had they been dealt with together, D2
might be able to benefit from the totality principle. I
C accept the explanation given by the prosecution in their C
letter dated 22 December 2023 as to why it was not
D
reasonably practicable for D2’s two cases to be dealt with D
together. Still, as the matter turns out, D2’s detention in
the training centre (between 8 October 2022 to present)
E would not be counted towards her sentence in the present E
case. In the circumstances, having stepped back and looked
at the two cases in the round, I consider it appropriate to
F grant her a further deduction of 11 months: R v Ng Chun F
Keung [1993] 2 HKC 171.
G G
Therefore, D2’s sentence for the present case is 66 minus 18
minus 7 minus 11, equal to 30 months’ imprisonment. In
H passing the aforesaid sentence, I have factored in the H
operation of section 5A of the Training Centre Ordinance,
Cap 280, such that D2’s current Training Centre Order will
I cease to have effect. I
J D8 J
In my assessment, D8 is more culpable than D2. He took the
K initiative of asking D1 and D2 to help him. He provided K
finance for D3 and agreed to help him recruit others for the
execution of the Plan. Under caution, he admitted that he
L L
had referred “阿勇”, who he said was a member of “Black
Bloc”, to D3. Besides, D8 helped D3 by sending to the
M latter information on how to make TATP. This act calls for M
deterrence in the sentencing process as researching
explosive substances was one step away from making them and
N another step away from using them, R v Marcin Kasprzak N
[2014] 1 Cr App R (S) 20, applied in HKSAR v Chan Yiu Shing
O [2018] 1 HKLRD 421. I also note that D8 was a university O
student at the time and he is older than D2 and D3, and
therefore he should have know better. But for D8’s
P involvement and encouragement, D3’s plan might have remained P
as a plan only. As aforesaid, D8’s course of conduct, which
spanned a lengthy period of time and obviously involved
Q careful planning and liaising with other people, was no mere Q
impulsive act.
R R
Looking the matter in the round, I adopt 8 years’
imprisonment as the starting point of his sentence, which is
S reduced to 6 years’ imprisonment for his plea after S
committal but before listing.
T T
As regards D8’s provision of a witness statement to the
prosecution, I do not consider that he should be entitled to
U any discount in this regard. This is because he had U
CRT1/28.12.2023/AB 16 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
previously downplayed his role in the offence and misled the
prosecution in the assessment of his and others’
B culpability. Had it not been his misleading statement, he B
would not have been listed as a prosecution witness in the
first place.
C C
Therefore, D8 is sentenced to 6 years’ imprisonment.
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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CRT1/28.12.2023/AB 17 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
HCCC 103/2022
HCCC 104/2022
B HCCC 127/2023 B
(Heard together)
[2024] HKCFI 280
C C
IN THE HIGH COURT OF THE
D
HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
CRIMINAL CASE NOS 103 AND 104 OF 2022 AND 127 OF 2023
E E
-----------------
F HKSAR F
G v G
Kwok Man-hei (A2/D2 in HCCC 103/2022)
H Ho Yu-wang (A1/D3 in HCCC 104/2022) H
Cheung Ho-yeung (A1/D8 in HCCC 127/2023)
I ----------------- I
J Before: Hon Alex Lee J J
Date: 28 December 2023 at 12.19 pm
Present: Ms Karen Ng, SPP of the Department of Justice, for
K HKSAR K
Mr Tien Kei-rui, instructed by Cheng & Co, for the 2nd
accused in HCCC 103/2022
L L
Miss Lai Wing-ting Kamina, instructed by Chiu, Szeto &
Cheng, for the 1st accused in HCCC 104/2022
M Mr Johnny So, instructed by Henry Chiu & Partners, for M
the 1st accused in HCCC 127/2023
Offence: (1) Conspiracy to commit terrorist activities (串 謀 恐 怖
N 活動) N
(2) Conspiracy to cause explosions likely to endanger
O life or property (串 謀 導 致 相 當 可 能 危 害 生 命 或 財 產 的 爆 O
炸)
P P
---------------------------------
Transcript of the Audio Recording
Q of the Sentence in the above Case Q
---------------------------------
R R
COURT: This case concerns the criminal activities of a group of
people who called themselves “光城者” (“Returning Valiant”
S S
(“RV”)). Originally, there were seven defendants, D1 to D7,
in the court below, and Ms Kwok in HCCC 103/2022 and Mr Ho
T in HCCC 104/2022 were then respectively D2 and D3. And for T
the sake of convenience, I will continue to address them by
their designations in the court below.
U U
CRT1/28.12.2023/AB 1 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
D1 to D7 were jointly charged with: (1) one charge of
conspiracy to commit terrorist activities, contrary to
B Article 24 of the National Security Law (“NSL”) and sections B
159A and 159C of the Crimes Ordinance, Cap 200 (“Charge 1”);
and (2) one charge of conspiracy to cause explosions likely
C to endanger life or property, contrary to sections 54(a), C
159A and 159C of the Crimes Ordinance (“Charge 2”), which
D
was an alternative to Charge 1. D
D2 and D3
E E
D1 to D7 were arrested and brought to court on different
occasions. After several court appearances, on the second
F Return Day on 20 April 2022, on the application of the F
prosecution, their cases were consolidated without
G objection. By consent, the magistrate adjourned the G
consolidated case to 27 June 2022 for the third Return Day.
H The magistrate further directed that: H
“If any defendant intends to plead, indicates to the
I prosecution by 24 May 2022”; I
“The prosecution to serve the first draft of the
J Admitted Facts on the defendants, who have indicated J
plea, by 6 June 2022”;
“The Defence confirms the final version of the Admitted
K Facts, if any, for plea by 20 June 2022”; K
“The final version be served on the remaining
defendants by 21 June 2022”; and
L L
“Submit that final version, if any, in court by 21 June
2022.”
M M
On 27 June 2022, D2’s counsel told the magistrate that he
had “instruction not to indicate her plea before 25 May
N 2022”, but then he received new instructions from D2’s N
family and said that D2 intended to plead guilty to Charge 2
but not Charge 1. Counsel applied for a six-week
O O
adjournment for the prosecution to consider D2’s offer. The
magistrate refused D2’s application for adjournment. In the
P event, D1 pleaded not guilty to both Charge 1 and Charge 2, P
whereas D2 pleaded not guilty to Charge 1 but guilty to
Charge 2. The prosecution was yet to consider D2’s offer at
Q the time. Therefore, the magistrate committed D1 and D2 for Q
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
R R
the prosecution. Upon their admission to the Summary of
Facts prepared by the prosecution, D3 to D7 were committed
S to this court for sentence (HCCC 104/2022). S
Subsequently, by a letter to the court dated 19 August 2022,
T the solicitors of D2 informed that they had been in T
discussion with the prosecution and that an agreement had
U U
CRT1/28.12.2023/AB 2 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
been reached. Therefore, they requested for a plea and
sentence hearing. On 6 May 2023 before me, D2 to D7
B confirmed their respective pleas and their agreement to a B
set of consolidated Summary of Facts. Sentences were passed
on D4 to D7 on 23 May 2023 and the sentence of D2 and D3
C were adjourned for reasons which I will come to shortly. C
D
D8 D
As regards to Mr Cheung, he was originally not a defendant
E but a prosecution witness(PW1) listed for the trial of D1. E
However, the court was informed that the prosecution
intended not to proceed with the case against D1 but that Mr
F Cheung’s status had changed from a prosecution witness to an F
accused. In fact, on 12 May 2023(which was less than a week
G after the first appearance of D2 and D7 before me) Mr Cheung G
was committed for trial on two charges of conspiracy which
mirrored those of D1 to D7. Ironically, this time D1 became
H a prosecution witness, as did D2 and D3, in the case against H
Mr Cheung (HCCC 127/2023). In view of this and purely for
the sake of convenience, I would, from now on, address Mr
I Cheung as D8 even though he had never been so designated in I
the court below.
J J
After D8’s committal, on 15 September 2023 his former
solicitors indicated to the court for the first time a
K guilty plea only to Charge 2, that is, conspiracy to cause K
explosion. At the time, D8’s case was yet to be listed.
However, there had been no further news about D8 until this
L L
court was informed by D8’s former solicitors that there had
been then a change in D8’s legal representation. In order
M to ascertain D8’s position, I ordered a mention on 11 M
November 2023.
N At the mention, the parties informed that they were still N
unable to agree on the facts. Since the court was of the
view that sufficient time had already been allowed for the
O O
agreement of facts, therefore directions were given,
imposing deadline for the filing of the sentencing bundle,
P failing which for the fixing of a Newton hearing or a trial. P
Eventually, on the deadline on 8 December 2023, the parties
submitted to court D8’s bundle for plea and sentence, which
Q contained a Summary of Facts dated 7 December 2023. Today, Q
D8 pleads guilty to Charge 2 before me and admits to the
Summary of Facts.
R R
Charges
S S
D3 admits that between 1 April 2021 and 5 July 2021 (both
dates inclusive), he conspired with other persons, with a
T view to coercing the Central People’s Government or the T
U U
CRT1/28.12.2023/AB 3 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
Government of the Hong Kong Special Administrative Region,
or intimidating the public in order to pursue political
B agenda, to organise, plan, commit, participate in or B
threaten to commit terrorist activities intended to cause
grave harm to the society, namely, explosion, arson,
C sabotages of means of transport or transport facilities, or C
other dangerous activities which seriously jeopardised
D
public health, safety or security (Charge 1). D
D2 and D8 admit that during the same period of time, they
E conspired with other persons to unlawfully and maliciously E
cause by explosive substances explosions of a nature likely
to endanger life or to cause serious injury to property
F (Charge 2). F
G Brief Facts G
There are two sets of facts prepared by the prosecution, one
H for D2 to D7 and the other for D8 alone. I do not intend to H
recite everything stated in these two sets of facts
respectively. It suffices for me to say that I have full
I regard to their respective contents. I
J Having compared the two, I find that their contents are in J
the main similar but not identical. The major reason for
the differences between the two sets of Admitted Facts, I am
K given to understand, is that the facts pertaining to D2 to K
D7 are based (in part) on the witness statement of D8 (which
was then PW1). However, having been served with the
L L
committal bundle which contained the witness statements, D1
to D3, D8 now admits that he was in fact more involved and
M active in the offence than what he had told the police M
previously. Be that as it may, whenever there are
differences between the two sets of facts, the defendants
N are to be sentenced on the version which he or she has N
admitted.
O O
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
P another local political group called “Student Politicism” (“ P
賢學施政”). The two groups had disagreements. In April 2021,
the three of them met in the office of a District Councillor
Q in Mong Kok to resolve their differences. Subsequently, D8 Q
became acquainted with D1 and D2. Afterwards, D2 came to
R know that D8 had withdrawn from “Student Politicism”. R
In my reasons for sentence given on 23 May 2023, I have
S already outlined the roles of D4 to D7 and I am not going to S
repeat those. As regards D2, D3 and D8, their roles in this
case were as follows.
T T
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CRT1/28.12.2023/AB 4 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
D2
B D2 admits that she and D1 met with D8 on several occasions B
after the latter had withdrawn from “Student Politicism”.
The three of them had discussions of plans of causing
C explosions at various places in Hong Kong. She was told by C
D3 that he planned to connect the student unions of
D
different universities in Hong Kong and make use of their D
influence and networks to seek finance and support of anti-
government activities or resistance campaigns. She was also
E told by D3 that he had founded a radical political group E
called “矢名” (“Black Bloc”) which had a base in the UK and
that “Black Bloc” was planning to do something big in Hong
F F
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
G action against the government by using more radical means in G
order to solicit support and funds from other political
groups or activists, and that his next target would be
H government offices, police quarters and court buildings. I H
pause here and note that the Sha Tsui incident was not a
matter for the present case.
I I
Subsequently, during one of her meetings with D3, D2 told D8
J that there was a person who planned to make bombs and do J
something big. She then asked D3 for assistance.
Therefore, D3 provided details of his Telegram account so
K that he could be contacted by the person whom D2 talked K
about.
L L
D8
M D8 admits that after he had withdrawn from “Student M
Politicism”, he met with D1, D2 and other people in a hotel
room. During that meeting, he informed that:
N N
(a) he planned to connect the student unions of local
O universities to search for funds and resources O
through their influence and networks, with a view
to finance and support anti-government activities
P or resistance campaigns; and P
(b) he had designed a logo for a radical political
Q Q
group called “矢名” (“Black Bloc”) which was based
in the UK.
R R
As regards the Ting Kau meeting, D8 admits that he told D1
and D2 that he planned to escalate his action against the
S government through more radical means in order to attract S
support and funds from other political groups or activists.
He said that his target premises would be the government
T T
offices, police quarters and court buildings. He asked D1
U U
CRT1/28.12.2023/AB 5 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
and D2 to join his plan and help recruit other persons. D2
then told D8 that there was a person who planned to make
B bombs and she suggested putting D8 through to that person. B
For that purpose, D8 and D2 exchanged details of their
Telegram accounts.
C C
Afterwards, D8 was contacted by D3, who identified himself
D
as the person whom D2 talked about. D8 was then informed of D
the details of D3’s bombing plan and that his targets were
court buildings (“the Plan”). D8 undertook to assist by
E providing funds for buying the necessary equipment, E
conducting inspection of target premises, recruiting others
to execute the Plan and helping D3 leave Hong Kong after
F execution. D8 also admits that he had sent D3 via Telegram F
information on making triacetone triperoxide (“TATP”) (“三過
G 氧化三丙酮”), a kind of explosive substance, and had given D3 G
cash of HK$40,000 in an envelope.
H In around mid-June 2021, D8 met with D1, D2 and other H
persons for barbecue in Yuen Long. On that occasion, he
I discussed with D1 and D2 plans of forming study groups to I
educate people on political culture, setting up a martial
arts club to enhance the physical strength and ability of
J the protesters and recruiting more people to join and J
support the social movement after execution of the Plan.
On the following day, D8 told D1 in a telephone conversation
K about the Plan that he, that is, D8, and D3 intended to K
carry out. In particular, he told D1 that the target
L premises were Tuen Mun and Kwun Tong Law Courts Buildings L
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
M D3. M
In late June 2021, D8 was told by D3 that D3 had already
N N
conducted site inspections of the targets. At D3’s request,
D8 agreed to help recruit at least 10 persons to act as
O lookouts on the day of the execution. The police O
subsequently retrieved the communication records between the
two of them, which show that D8 had received from D3
P photographs of D3’s notebook, photographs taken in the P
vicinity of the Tuen Mun and Kwun Tong Law Courts Buildings,
and the screen-captures of 3D Google Maps with some remarks
Q Q
drawn on it.
R In early July 2021, however, D8 was told by D3 that the Plan R
had to be indefinitely postponed because the latter was
being followed by the police.
S S
After D8’s arrest on 24 October 2022, he said under caution,
among other things, that:
T T
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CRT1/28.12.2023/AB 6 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
(i) he had referred a person called “阿勇” of “Black
Bloc” to D3 and “阿勇” later told him that he,
B that is, “阿勇” had provided funds to D3; and B
C (ii) he had told D3 that he could help find persons to C
act as lookouts.
D D
D3
E E
D3 admits that he had received from D8 information relating
to the ingredients and manufacturing of TATP via Telegram,
F and he saved the said information in his mobile phone. He F
also admits that he received from D3 an envelope containing
HK$40,000 in cash, some of which was spent on buying
G equipment for manufacturing TATP. And the remaining sum was G
kept for his leaving Hong Kong after the execution of the
Plan. D3 admits that he had asked D8 to help him recruit
H H
lookouts to be posted at or in the vicinity of Law Courts
Buildings in Tuen Mun and Kwun Tong. D3 also admits that he
I told D8 in July 2021 that the Plan had to be indefinitely I
postponed as he was being followed by the police.
J Besides, police investigation reveals that D3 had asked PW2 J
(his science teacher) on different occasions if he knew how
to make bombs and TATP, and how to store highly concentrated
K K
hydrogen peroxide (“高濃度雙氧水”) and other chemicals. D3
also revealed to PW2 that he would leave Hong Kong for
L Taiwan after placing the bombs. PW2 told D3 that he did not L
know how to make bombs.
M In June 2021, D3 and his schoolmate, D4, rented a room in a M
guesthouse in Tsim Sha Tsui (“the Room”). They resided
N there during the period between 7 June and 5 July 2021, N
where they planned and prepared for the manufacture of
homemade high explosives and construction of viable
O improvised explosive devices, ie IEDs. After the arrest O
action, the police found in the Room, among other things,
D3’s notebooks and papers which contained information
P P
pertaining to a plan of damaging the stable structure of
Hong Kong (“破壞香港之穩定結構”); intensifying the
Q contradiction between the Chinese Communist Party and the Q
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
R R
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
S and a sketch of Kwun Tong Law Courts Building and S
information about the vicinity of Kwun Tong Magistracy and
Tuen Mun Magistracy which could be served as observation
T T
posts, escape routes and estimation of the travelling time
from the courts buildings to the airport.
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CRT1/28.12.2023/AB 7 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
Besides, in D3’s documents, there were references to the
following matters:
B B
(a) remote-controlled cars and drones, including a
sketch of the chassis of a radio-controlled toy
C car along with a transmitter unit with graphics; C
D
(b) various explosives and effects, including TATP, D
hydrogen peroxide with purity beyond 30% (“雙氧水純
度30%以上”), acetone (“丙銅”), ammonium nitrate,
E NH4NO3, (“硝酸銨”), which was commonly known as E
fertiliser bomb (“肥料炸彈”), fuel oil, dynamite,
F cyclonite (“環三亞甲基三硝胺”), which was also known F
as hexogen (“黑索金”) with the abbreviation “RDX”,
G pressure pot and Schardin effect (“沙爾丁爆炸效應”), G
etc; and
H (c) escape routes and the possibility of police H
explosive search dog being able to detect any
odour at the airport.
I I
Apart from the aforesaid, there were also apparatus,
J laboratory equipment and other materials which could be used J
for manufacture or placement of explosive substances,
including droppers, measuring cups, measuring tubes, filter
K papers, glass bottles, glass rods, eyewash bottle, filter K
funnels, glass bowls, protective clothing, refrigerator,
bubble wrap, carton box, paraffin oil, watch glasses,
L L
measuring cylinders, beakers, thermometer, electronic
balance, spatulas, gloves, and Wellington boots.
M M
Police investigation also reveals that D3 had recruited
other people to join and execute the Plan. One of them was
N PW6, who was the classmate of D3 and D4. And according to N
PW6, in February 2021, she, D3 and another male had a dinner
gathering in Kwun Tong, during which D3 expressed that he
O O
wanted to do something big to raise public awareness and
revive the spirit of resistance among the Hong Kongers (“想
P 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 P
mentioned that one of the target facilities was MTR and he
would leave Hong Kong after doing this. D3 asked her and
Q Q
the male for help in placing bombs. D3 said that he would
leave Hong Kong after doing that and he could arrange for
R PW6 to study in Taiwan. Subsequently, on 19 June 2021, D3 R
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
S purpose of the Plan. On 23 June 2021, when D3 and PW6 met S
for the second time to discuss the Plan, D3 gave her more
details of the plan. He told her that he had brought about
T T
a dozen people on board to act as lookouts and that PW6 was
U U
CRT1/28.12.2023/AB 8 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
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
B early to mid-July. On the following day, PW6 met with D3, B
D4 and D5 outside Kwun Tong Law Courts Building, where D3
gave her a Nokia mobile phone as a “burner”.
C C
The aforesaid D5 was also recruited by D3. D5, in turn,
D
engaged D6, who also agreed to placing bombs in return for a D
reward. Afterwards, D3, D4 and D5 conducted reconnaissance
at and in the vicinity of court buildings:
E E
(1) On the morning of 25 June 2021, D3 and D4 went to
Tuen Mun Law Courts Building to conduct a site
F inspection; F
G (2) Later, on the same day, D3 and D4 met up with D5 G
at Yau Hong Street, and then the trio walked to
Kwun Tong Law Courts Building for a site
H inspection. During the site inspection, D3 used H
his mobile phone to take photos of the Law Courts
Building (including the main entrance and the back
I door), the roads nearby and the route to Sai Tso I
Wan Neighbourhood Community Centre. Subsequently,
J D5 asked D3 why he took photos of Kwun Tong Law J
Courts Building and nearby places, and D3 replied
that he planned to place bombs and explosive
K substances thereat; and K
(3) In the evening of 29 June 2021, D3 and D5
L L
conducted a site inspection at the target
buildings again. Photos were taken of Kwun Tong
M Law Courts Building, Kowloon East Government M
Offices, and Kwun Tong Police Station.
Afterwards, D3 and D5 boarded a private vehicle
N outside Laguna Plaza and went to Tuen Mun. They N
stayed outside Tuen Mun Magistracy, observing the
vicinity and took photos.
O O
Later, D3 told D5 that he, that is, D5, was to place a
P package, luggage or backpack containing a bomb at Kwun Tong P
Law Courts between 10 July and 20 July 2021. D3 said they
had to carry out the Plan before August 2021 and the Law
Q Courts Buildings were chosen as the target premises to Q
create a greater impact. D5 was told that after planting
the bomb, he could leave by getting on a vehicle in the
R R
vicinity of Sai Tso Wan Neighbourhood Community Centre. The
vehicle would then take him to the airport where D5 would
S take a flight first to Singapore, where he would take a S
transit to the UK. D3 elaborated that the intended bombing
of Kwun Tong courts would involve two bombs. D5 were to
T place one bomb into a recycling bin on the sixth floor lift T
lobby and then to make a phone call to detonate the bomb.
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V V
A A
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
B objected to putting D6 in harm’s way. However, D3 said that B
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
C C
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
D famous and people would treat them seriously. If the D
bombing campaign was successful, they would publicly admit
responsibility in the name of “浮城”. And thereafter, “浮城”
E E
would become a recognised organisation and they would
continue to carry out future plans under that name.
F F
D7, a friend of D3, was yet another person recruited by him
and her role was to source essential chemicals, namely,
G hydrogen peroxide and hydrochloric acid, for him to G
manufacture TATP. D3 told her that it would be most likely
that the bomb(s) would be placed at Tuen Mun Law Courts
H H
Building because the location was close to the airport, and
that would make his fleeing from Hong Kong easier. D3 said
I that the plan had to be carried out in early-July 2021 and I
that he would leave Hong Kong by mid-July 2021, whether or
not the Plan had been carried out, even though he would
J continue to give instructions to those remaining in Hong J
Kong to continue with the Plan. In the event, D7 was unable
to procure any hydrogen peroxide or hydrochloric acid.
K K
The Expert Opinion
L L
PW56, a Senior Superintendent of the Explosive Ordinance
Disposal Bureau, had attended the Room and reviewed the
M relevant documents and exhibits. He opined that there was M
both the intention and a developing capability to carry out
bombing attacks on targets. The Plan had developed beyond a
N N
concept and actions, including planning, procurement of
bomb-making items, and reconnaissance had commenced. The
O dates specified for attacks provide a realistic frame to O
complete the capability, including manufacturing both
explosives and bombs. Preparatory actions had been taken
P for the manufacturing of homemade high explosives, P
specifically TATP, the constructions of viable IEDs, and the
Q placement of IEDs. Q
Antecedents
R D2 R
D2 is now aged 21 and was 18 at the time of the offence.
S She was a student before her arrest. She has a conviction S
of “conspiracy to incite the commission by other persons of
T the offence of subversion”, which was a NSL offence, the T
offence period of which was between 10 January 2021 and 6
May 2021. For that NSL offence, she was charged on 28
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V V
A A
September 2021 (during her remand for the present case) and
was sentenced by the District Court to Training Centre on 8
B October 2022. Up to today, she is still serving that order. B
D3
C C
D3 is now aged 20 and he was 17 at the time of the offence.
D
He was still a secondary student at the time of the offence D
even though he did not attend school. He had a clear
record.
E E
D8
F D8 is now aged 23 and he was 20 at the time of the offence. F
He was a university student at the time of the arrest and he
G had a clear record. G
Mitigation Letters
H H
Mitigation letters written by or for D2, D3 and D8 were
received by the court. I am prepared to accept that before
I the social unrest in 2019, these defendants might be I
described as good students and I bear this in mind in
J sentencing. On the other hand, there was, in my view, a J
huge disconnect between their descriptions of the defendants
and those revealed by the facts which the defendants
K themselves have admitted. It is apparent that the authors K
of those letters do not have any idea of the extent of the
terrible crimes that the defendants had committed.
L L
I readily accept that the hostile social atmosphere in 2019
M and 2020 was such that it could easily cloud people’s moral M
judgment. The corrosive nature of the whole event might
also have turned some ordinarily harmless people with
N previous good characters into radicals. From the Admitted N
Facts which I have outlined above, no matter what the
defendants’ purpose might have been, the Plan was without
O O
any doubt an evil one. Moreover, the defendants had by
then, sadly, become the kind of persons who are determined
P to achieve their ends regardless of the means. In the case P
of D3 and D8, in particular, their respective involvements
in the Plan were not only persistent, but also deep and
Q well-thought through such that their offences could not be Q
brushed aside as mere impulsive acts committed at the heat
of the moment.
R R
That said, in the present case, the defendants can rest
S assured that this court would not hold against them for S
anything which might have been inaccurately stated by other
people about them in the mitigation letters.
T T
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A A
Sentencing Considerations
D3
B B
I shall now deal with his case first. The charge to which
he pleads guilty is one brought under the NSL and the
C sentencing approach is authoritatively laid down by the C
Court of Final Appeal in HKSAR v Lui Sai Yu (FACC 7/2023)
D
which I need not repeat here. The offence D3 committed is D
in any view a serious one. He was the mastermind of the
Plan. He recruited other people in the execution of the
E offence and was the ringleader of D4 to D7. What is more, E
D8 had taken steps to carry out the Plan and conduct the
site inspections. I bear in mind also that the offence took
F place against the backdrop of a social unrest in Hong Kong F
where many people resorted to criminal and violent
G activities in the expression of their political views. What G
D3 intended to do would have caused the societal condition
to change from bad to worse, Secretary for Justice v Leung
H Wing Hong [2021] 4 HKLRD 811. H
Furthermore, D3 displaced wanton disregard to the rule of
I law by choosing court premises as his targets. That he was I
determined to cause damage and bring chaos to Hong Kong was
J evidenced by the degree and extent of his planning and the J
steps he had taken in implementing the Plan. In pursuit of
his vanity, he became callous as to the harm which other
K people might suffer as a result of his misdeeds. Not only K
that, he even disregarded the risk to which his fellow
gangsters might exposed in the execution of the Plan. Last
L L
but not least, his action came close to declaring war on
society, the government, and court, and members of the
M public were exposed to terrible risk, Yip Kai Foon v HKSAR M
[2003] 3 HKFCAR 31.
N I also bear in mind section 109A of the Criminal Procedure N
Ordinance, Cap 221, and it gives me no pleasure in
sentencing young people to prison. However, despite D3’s
O O
relatively young age and clear record at the time and what
his family and teachers said about him in the mitigation
P letters, I am of the firm view that deterrence, public P
condemnation and protection of the society, instead of
rehabilitation, must be the dominant sentencing policies:
Q see for example, Secretary for Justice v Wong Chi Fung & 2 Q
Ors [2018] 21 HKCFAR 35. In my assessment, a lengthy term
of imprisonment is the only appropriate sentence in D3’s
R R
case.
S I have not forgotten that since D3 was unable to procure all S
the necessary ingredients for making the bombs and due to
the commendable and prompt investigation by the police, D3’s
T evil plan did not result in any serious bodily injury, death T
or significant loss of public or private property. In
U
fixing the starting point, I note that by section 159C(4), U
Crimes Ordinance, the sentence of Charge 1 shall not exceed
CRT1/28.12.2023/AB 12 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
the maximum term provided for in the substantive offence of
NSL 24. And in this regard, NSL 24 provides:
B B
“A person who commits the offence causing serious bodily
injury, death or significant loss of public or private
C property shall be sentenced to life imprisonment or fixed- C
term imprisonment of not less than ten years; in other
D
circumstances, a person who commits the offence shall be D
sentenced to fixed-term imprisonment of not less than three
years but not more than ten years.”
E E
However, I am unable to accept the submission of counsel
that D3’s sentence could not be more than 10 years’
F imprisonment just because his offence had yet to cause F
serious bodily injury or significant property loss.
G Counsel’s argument, with respect, ignores the fact that the G
charge is one of conspiracy the gravamen of which was the
making of the agreement to commit the offence rather than
H the commission of the offence. Judging from the Admitted H
Facts, it was clearly D3’s intention to cause significant
loss to the targeted court premises and he was at least
I reckless as to the safety of people who would happen to be I
inside or in the vicinity of the target buildings. If
J counsel’s argument were right, then it would lead to the J
surprising result that an accused charged with a conspiracy
to commit a NSL 24 offence could never be sentenced to more
K than 10 years’ imprisonment, no matter how serious the K
agreed course of conduct was intended to be unless it had
been successfully executed. That, in my view, cannot be the
L L
legislative intent behind NSL 24.
M This is not to say that the absence of personal injury or M
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
N is not relevant when it comes to sentence. When dealing N
with young people, the court would try not to impose a
sentence so crushing that would eliminate all hopes of
O O
rehabilitation. What is required of the court is passing a
commensurate sentence on the defendants: Secretary for
P Justice v Tang King Wa [2023] 2 HKLRD 1440. In the light of P
all the circumstances, I adopt 10 years’ imprisonment as the
starting point of D3’s sentence. This starting point is
Q already a lenient one, as it could have been higher. Q
As regards mitigation, in my view, the factors which may
R R
reduce D3’s sentence are his timely plea and his assistance
to the police. As to the latter, the prosecution confirms
S that D3’s assistance was of practical use in the case S
against D8. On the other hand, there is nothing to suggest
that D3 belongs to the supergrass category or that he had
T exposed himself or his family to any personal risk by T
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CRT1/28.12.2023/AB 13 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
assisting the prosecution. Based on Lui Sai Yu’s case and Z
v HKSAR [2007] 10 HKCFAR 183, taking into account the nature
B and degree of D3’s assistance and in the exercise of my B
discretion, a discount of 4 years is granted to D3 for the
aforesaid two factors combined: HKSAR v Y [2005] 3 HKC 337;
C and HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799. C
D
Therefore, D3 is sentenced to 6 years’ imprisonment. D
D2 and D8
E E
Charge 2 to which D2 and D8 plead guilty carries a maximum
sentence of 20 years’ imprisonment on conviction upon
F indictment. No sentencing tariffs has been laid down by the F
Court of Appeal. Given the variety of situations in which
G the offence can be committed, what would be appropriate in a G
given case must be fact specific.
H As I have said in the sentencing remarks of the other H
defendants in this case on 23 May 2023, the local
environment and the prevailing social setting in which the
I offence took place would also be a relevant sentencing I
factor. For this reason, although foreign cases on
J sentencing principles and sentencing considerations of J
similar offences may be of reference value, the actual
sentences imposed in those cases are not directly applicable
K to Hong Kong. K
Similarly, I bear in mind that the offence was nipped in the
L L
bud by the police so that no explosive had been actually
manufactured; no explosions had been caused; and therefore
M no casualties or damages had been resulted. These features M
distinguish the present case from local sentencing
authorities like Attorney General v Cheung Shui-tai and
N Others [1995] 1 HKCLR 186; HKSAR v Yip Kai Foon, CACC N
138/1997; and HKSAR v Lo Yat San Louis [2022] HKCA 553.
O O
I bear in mind section 109A of the Criminal Procedure
Ordinance, Cap 221. However, despite the fact that the
P offence did not lead to any actual harm to people or P
property and even taking into account what was said in
mitigation on their behalf, I am of the view that the only
Q sentencing option appropriate in their respective cases is a Q
substantial term of imprisonment:
R R
(1) the societal condition at the time of the offence;
(2) whilst a distinction could probably be drawn between
S planting an explosive device with the primary purpose of S
endangering life and doing so with the primary purpose
of causing damage to property, in the present case, the
T defendants’ objective was to destabilise the community T
and they were at least reckless as to the number of
U
people who might be killed or maimed as a consequence of U
the bombing, compare with R v Byrne and Others [1976] 62
CRT1/28.12.2023/AB 14 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
Cr App R 159; and R v Martin [1999] 1 Cr App R (S) 477;
and
B (3) similar to the case of D3, what D2 and D8 conspired to B
do came close to declaring war on society, the
government and the court, and members of the public were
C exposed to terrible risk. C
D
That said, between D2 and D8, even though they were parties D
to the same conspiracy, their respective culpability were
different so that their respective sentences would not be
E the same. E
For D2, as revealed from the facts to which she has
F admitted, her role in the conspiracy was limited to bringing F
two dangerous radicals, D3 and D8, together, knowing full
G well that they intended to make and place bombs at court G
buildings. I accept that she was not involved in the
planning or execution of the Plan. However, without her
H help, D8 might not have access to the necessary finance or H
manpower. Looking the matter in the round, I adopt 5½
years’ imprisonment as the starting point of her sentence.
I I
I note that she was diagnosed to have major depressive
J episode with underlying dysthymia. However, I cannot see J
how her condition can reduce her culpability, there being
nothing to suggest that she could not tell right from wrong
K or that her condition had in any way contributed to her K
offence. As to her mother’s hospitalisation from early-June
to late-September 2023, the courts have said time and again
L L
that those who commit offences should keep in mind “the
principle that adverse effect of imprisonment upon an
M offender’s family is not a factor normally to be taken into M
account”: HKSAR v Chan Kin Chung [2002] 4 HKC 314.
N In my view, there are two factors which can reduce D2’s N
sentence: (a) her guilty plea; and (b) her assistance to
the police. As to (a), in view of the procedural history
O O
outlined above, she should not be taken to have tendered a
timely plea at committal. The blunt fact is that she failed
P to take heed of the magistrate’s warning by indicating her P
plea in time with the result that she had to seek an
adjournment. She must be taken to know that there is a
Q price to pay for her tardiness. Bearing in mind that she Q
did reach an agreement with the prosecution on her plea
before listing, in the exercise of my discretion, I grant
R R
her a reduction of 18 months for the plea. As to (b), the
prosecution confirms that her assistance was of practical
S use in the case against D8. For this, I grant her a further S
7 months’ reduction. And subject to the issue of totality,
I can see no other factors which may further reduce D2’s
T sentence. T
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V V
A A
Now, turning to the issue of totality, I note that the dates
of D2’s previous NSL case overlapped with the dates of the
B present case. Although the two cases are separate and B
distinct offences, had they been dealt with together, D2
might be able to benefit from the totality principle. I
C accept the explanation given by the prosecution in their C
letter dated 22 December 2023 as to why it was not
D
reasonably practicable for D2’s two cases to be dealt with D
together. Still, as the matter turns out, D2’s detention in
the training centre (between 8 October 2022 to present)
E would not be counted towards her sentence in the present E
case. In the circumstances, having stepped back and looked
at the two cases in the round, I consider it appropriate to
F grant her a further deduction of 11 months: R v Ng Chun F
Keung [1993] 2 HKC 171.
G G
Therefore, D2’s sentence for the present case is 66 minus 18
minus 7 minus 11, equal to 30 months’ imprisonment. In
H passing the aforesaid sentence, I have factored in the H
operation of section 5A of the Training Centre Ordinance,
Cap 280, such that D2’s current Training Centre Order will
I cease to have effect. I
J D8 J
In my assessment, D8 is more culpable than D2. He took the
K initiative of asking D1 and D2 to help him. He provided K
finance for D3 and agreed to help him recruit others for the
execution of the Plan. Under caution, he admitted that he
L L
had referred “阿勇”, who he said was a member of “Black
Bloc”, to D3. Besides, D8 helped D3 by sending to the
M latter information on how to make TATP. This act calls for M
deterrence in the sentencing process as researching
explosive substances was one step away from making them and
N another step away from using them, R v Marcin Kasprzak N
[2014] 1 Cr App R (S) 20, applied in HKSAR v Chan Yiu Shing
O [2018] 1 HKLRD 421. I also note that D8 was a university O
student at the time and he is older than D2 and D3, and
therefore he should have know better. But for D8’s
P involvement and encouragement, D3’s plan might have remained P
as a plan only. As aforesaid, D8’s course of conduct, which
spanned a lengthy period of time and obviously involved
Q careful planning and liaising with other people, was no mere Q
impulsive act.
R R
Looking the matter in the round, I adopt 8 years’
imprisonment as the starting point of his sentence, which is
S reduced to 6 years’ imprisonment for his plea after S
committal but before listing.
T T
As regards D8’s provision of a witness statement to the
prosecution, I do not consider that he should be entitled to
U any discount in this regard. This is because he had U
CRT1/28.12.2023/AB 16 HCCC 103(1) & 104/2022 & 127/2023/Sentence
V V
A A
previously downplayed his role in the offence and misled the
prosecution in the assessment of his and others’
B culpability. Had it not been his misleading statement, he B
would not have been listed as a prosecution witness in the
first place.
C C
Therefore, D8 is sentenced to 6 years’ imprisonment.
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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V V