區域法院（刑事）HH Judge A N Tse Ching15/8/2021[2021] HKDC 1035
DCCC13/2021
A A
B B
DCCC 13/2021
C [2021] HKDC 1035 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 13 OF 2021
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G G
HKSAR
H v H
WONG KAI HIN
I I
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Before: HH Judge A N Tse Ching in Open Court
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Date: 16 August 2021
L Present: Ms Tsoi Moonar, Senior Public Prosecutor (Acting), for L
HKSAR/Director of Public Prosecutions
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Mr Li Kwok Wai Marco, instructed by Bond Ng Solicitors by
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the Director of Legal Aid, for the defendant
O
Offences: [1]-[2] Possession of explosive substance (管有爆炸品) O
[3] Possession of dangerous drug (管有危險藥物)
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REASONS FOR SENTENCE
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1. The defendant faces 3 charges, namely (i) 2 charges of
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possession of explosive substance contrary to section 55(1) of the Crimes
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Ordinance, Cap 200 (Charges 1 and 2) and (ii) 1 charge of possession of
C dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs C
Ordinance, Cap 134 (Charge 3).
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E 2. The defendant pleaded guilty to Charge 1. The prosecution E
has agreed to leave the two other charges on file, not to be proceeded with
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without the leave of court.
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Admitted Facts
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I 3. On 14 January 2020, the police conducted an operation I
targeting a suspected bomb-making group at 1/F, Lee Man Building, 104-
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116 Tung Choi Street, Mongkok, Hong Kong.
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4. At about 13:13 hours on the same day, the defendant and
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2 other persons left Flat B, 1/F, Lee Man Building (the Premises).
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5. At about 13:15 hours, the defendant and 2 other persons were
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intercepted near the junction of Tung Choi Street and Fife Street. The
O defendant acted furtively upon interception. Upon search, 3 keys, an O
iPhone and other items were found on the defendant.
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Q 6. At about 13:34 hours, police officers broke into the Premises Q
with the defendant. The Premises was partitioned into 3 rooms (Rooms A-
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C). Room A of the Premises (Room A) could be opened with one of the
S keys found on the defendant. S
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A A
B B
7. A house search was conducted at Room A at about 15:21
C hours. There was a living room and a bedroom inside Room A. Upon C
search, the following items were found in Room A (in the areas depicted
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in a sketch attached as Annex A):-
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(a) Suspected cannabis in herbal form (item 2), found on
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the computer desk in the living room;
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(b) A suspected pipe bomb (item 51), found inside a
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resealable bag in a plastic box under the bed in the
I living room; I
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(c) A large amount of matches (items 63-64) and match
K heads (items 65-67), found under a desk in the living K
room;
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M (d) Gear commonly possessed by protestors, including M
helmets, respirators and gloves; and
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O (e) Other items including flak jackets, a bag of charcoal, O
4 empty glass bottles, a can of acetone, a bottle of
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alcohol and a blender containing chilli pepper powder.
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8. At about 17:00 hours, the defendant was arrested. Under
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caution, he remained silent.
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A A
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9. At about 21:28 hours, bomb disposal officer Mr Suryanto
C Chin Chiu arrived at the scene. The subject floor, 1/F of Lee Man Building C
was vacated.
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E 10. The pipe bomb (item 51) is a metal pipe measuring E
approximately 20 cm in length and 5 cm in diameter. Both ends of the
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metal tube were sealed with internal screwed caps with a white rope
G sticking out of one end. One end was fitted with an intact metal screw end G
cap and one end was fitted with a metal screw front cap with a small hole
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and a white rope, suspected fuse, sticking out from inside the metal pipe.
I Some dried glue was on the surface of the hole. I
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11. Mr Suryanto dismantled the pipe bomb into three pieces and
K some black substances weighing approximately 40 grammes was found K
inside the metal pipe, which are deflagrating explosive.
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M 12. At about 23:59 hours, Mr Suryanto checked around the scene M
after the pipe bomb was detonated. The metal door of the elevator was
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found damaged with a hole caused by the end cap of the pipe bomb.
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13. Government Chemist, Mr Ho Siu Hong found that the
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Cannabis in herbal form (item 2) contained 2.98 grammes of cannabis, in
Q herbal form. Q
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14. A sample of solid seized from the detonated pipe bomb (item
S 51) was found to contain about 3.3 grammes of a mixture containing about S
45% weight/weight of potassium chlorate, 9% weight/weight of Sulphur
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and 16% weight/weight of charcoal.
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C 15. Trace amounts of potassium chlorate, Sulphur and charcoal C
were found from the segment of rope seized from the detonated pipe bomb.
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E 16. Item 67 was found to be one bottle of solid mixture containing E
potassium chlorate, Sulphur and wood fragment. Items 65-66 were found
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to be one bottle of a total of 29 pieces of broken match heads containing
G potassium chlorate, Sulphur and wood fragment and one bottle of a total of G
15 pieces of broken match heads containing potassium chlorate, Sulphur
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and wood fragment.
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17. The can of acetone was found to contain about 3360 millilitres
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of organic mixture containing acetone. Acetone is a flammable organic
K solvent, which is a common constituent in paint thinner mixture. K
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18. The bottle of alcohol was found to contain about 2,260
M millilitres of liquid containing mainly isopropyl alcohol. Isopropyl alcohol M
is a flammable organic solvent, which is commonly found in household
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and personal care products such as rubbing alcohol.
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19. The blender containing chilli pepper powder was found to
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contain about 21 grammes of orange red powdery solid containing
Q capsaicin and dihydrocapsaicin. Capsaicin and dihydrocapsaicin are Q
natural compounds present in chilli peppers and they could elicit a burning
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sensation when contacted with soft mucosal tissues.
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20. The pipe bomb is a homemade explosive device. The metal
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pipe with both ends sealed with crew caps serve as confinement to the
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deflagration of the explosive. The white rope soaked with deflagrating
C explosive is a homemade safety fuse to the explosive device. The function C
of the rope is to provide a time gap between the ignition of the safety fuse
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and ignition of the deflagrating explosive inside the metal pipe. Once the
E safety fuse is ignited, it will burn along the rope to the inner part of the E
metal pipe, igniting the deflagrating explosive, thereby building up
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pressure inside. Deflagrating explosive causes the rapid combustion
G accompanied by flame and does not require atmospheric air to burn in a G
steady state nor need confinement. However, to deflagrate rather than to
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merely burn, they require a degree of confinement. The confinement of
I the metal pipe will withhold the built-up pressure until the pressure is so I
great that the metal pipe would burst. This process is an explosion.
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K 21. Mr Suryanto opines that the pipe bomb would create heat and K
fragmentation. The effect of heat would have been largely restricted to
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close proximity to the seat of explosion radiated approximately up to
M 1 metre from the seat of explosion. The actual damage will vary based on M
the physical and geographical factors at the time of explosion. The
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fragmentation would range up to 50 metres from the seat of explosion,
O potentially leading to death or serious injury. O
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22. Mr Suryanto opines that the match head substances are
Q commonly known as the source of deflagration explosive. The match Q
heads cutaway (Items 65-66) could not effectively deflagrate due to the
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presence of the wood in the middle of the cutaway. On the other hand, the
S 26 grammes of match head substance separated from the wooden stick S
(item 67) is therefore more refined as deflagrating explosive.
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A A
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23. The defendant’s DNA was found on various items in Room A,
C including:- C
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(a) Two cups placed on the laundry machine in the living
E room; E
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(b) Two brushes in the toilet;
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(c) A pair of glasses with its box placed on the computer
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desk, where the Cannabis in herbal form (item 2) was
I found; I
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(d) The keyboard and mouse placed on the computer desk,
K where the Cannabis in herbal form (item 2) was found; K
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(e) The resealable plastic bag containing the pipe bomb
M (item 51); M
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(f) A shaver on the desk, next to where the match heads
O (item 65-67) were found. O
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24. No fingerprint mark of any value was found.
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25. On 14 January 2020 in Room A, without lawful excuse, the
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defendant had in his possession or custody or under his control explosive
S substance, namely the pipe bomb. S
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A A
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The Defendant’s Background
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26. The defendant is now 22 years old. He was a part time tutor
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prior to his arrest. A number of letters have been submitted on his behalf.
E Basically, these letters say that the defendant is a hardworking and kind E
hearted person.
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G 27. The defendant was 21 years old at the time of the offence. He G
is single. He had a clear record.
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I 28. The defendant was born in Hong Kong and educated up to I
tertiary level. He obtained his Bachelor Degree in Creative and Interactive
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Media Production from the Community College of the City University of
K Hong Kong (now known as UOW College Hong Kong) in 2019. He has a K
strong interest in creative media and is determined to pursue it further.
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Upon graduation, he worked as a part time tutor to earn and save money
M for further studies. M
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29. His father is a retired civil servant whilst his mother and two
O elder sisters are all gainfully employed. The defendant has very strong ties O
with his family, who has given him support throughout the present
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proceedings. The defendant also has a very close bond with his paternal
Q grandmother, who is aged 90 and wheelchair bound. Q
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Mitigation
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30. Counsel submitted that the defendant has demonstrated
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genuine remorse by indicating his guilty plea at the very first opportunity.
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The defendant has been remanded in custody for one and a half years,
C during which he has reflected on his serious misbehavior. He has C
expressed his remorse in his mitigation letter. He repents his foolish acts
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and is deeply concerned for his family, in particular, his paternal
E grandmother whose health is deteriorating. He regretted letting his loved E
ones down and asks the court for leniency, so that he can make a fresh start
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and contribute to society.
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31. A letter from District Councillor, Ms Wu Sui Shan, Suzanne
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was also submitted. She mentioned that the defendant has repeatedly
I expressed his remorse and guilt during their conversations since his I
remand.
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K 32. Counsel also submitted that the defendant was of positive K
good character. I have received testimonials concerning the character of
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the defendant from his former employers, his father, his elder sister and
M long standing friends. There is also a letter from the Friends of Scouting M
Jockey Club Kai Yip Service Centre for Children and Youth which
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informed the court of the volunteer work that the defendant has done for
O the homeless, the disabled and ethnic minorities since he was a secondary O
student.
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Q Discussion Q
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33. The defendant has pleaded guilty to a charge under section
S 55(1) of the Crimes Ordinance, Cap 200. This is a very serious offence, S
the maximum penalty for which is 14 years’ imprisonment. There are no
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sentencing guidelines or tariffs for this offence; each case depends on its
C own facts. C
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34. In HKSAR v Chan Yiu Shing [2018] 1 HKLRD 421, the
E Honourable Mr Justice Zervos (as he then was) stated at paragraphs 1-3:- E
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“1. In a time where there is heightened concern both
domestically and internationally about the safety of the general
G public by indiscriminate acts of violence, sentences must be G
imposed for offending of this nature to reflect the gravity and
seriousness of the criminality disclosed. Offences for the
H possession or making of explosive substances fall within this H
category, and will normally demand the imposition of a
I custodial sentence that acts as both a specific and general I
deterrent. As is always the case, when passing sentence, the
Court’s preoccupation is with the facts and circumstances of the
J offence and of the offender as considered and evaluated by the J
application of relevant sentencing guidelines and principles.
K
Offences will vary greatly but it needs to be appreciated that K
persons involved in researching or making explosive substances
are likely to face severe punishment.
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2. As noted by the Court of Appeal of England and Wales
in R v Marcin Kasprzak [2014] 1 Cr App R (S) 20 (p.115), at
M M
p.119:
N [15] In our judgment, at a time when information about how N
to obtain ingredients for the making of explosives, as well as the
instructions themselves, are so readily available on the internet,
O deterrence must play a significant part in the sentencing process. O
P 3. I should also add that this is at a time when the P
substances and materials for improvised explosives are readily
available and generally found in commercial or household
Q items.” Q
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35. As was rightly pointed out by counsel, this offence was
S
committed during a time of public order events which posed potential S
threats to public safety. In HKSAR v Lo Chun Hei DCCC 909/2019, His
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Honour, Judge Casewell pointed out that the court must consider the timing
C of these offences as part of the sentencing exercise:- C
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“17. The first issue that must be made clear is the timing of
these offences. The offence occurred in August 2019 and can be
E seen against the background of what the Final Court of Appeal E
in the case of Final Court of Appeal 6/2020 Kwok Wing Hang &
23 Ors, described as a period of disrupted social order that
F occurred from 9 June 2019 to 4 October 2019. I am quoting from F
the Court of Appeal judgment, where they said over some 400
G public order events arising from the Fugitive Offenders Bill G
were staged and led to significant numbers of outbreaks of
violence, public order events taking place in various parts of
H Hong Kong at frequent intervals weekly involving hundreds and H
at times thousands of participants.
I I
18. The Court of Final Appeal goes on to describe the forms
of violence that were perpetrated during these demonstrations:
J damaging private shopping malls, shops and restaurants; J
looting damaged shops; damaging residential premises;
harassing residents; attacking members of the public. Weapons
K included high-powered laser pointers, slingshots, sharpened K
objects, throwing petrol bombs at police vehicles and police
L stations, damaging and obstructing the operation of critical L
infrastructure and it is against that background that these
offences had been committed.”
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The Court of Appeal also expressed similar sentiments in Secretary for
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Justice v Chan Yip Wan [2021] HKCA 794, CAAR 5/2021 and 律政司司
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長 訴 CWC [2021] HKCA 166, CAAR 12/2020.
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36. In Chan Yip Wan, the Court of Appeal said at paragraph 45:-
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R “It is important to consider the gravity of the two offences R
[criminal damage and possession of things with intent to
damage property] committed by the respondent in context, i.e.
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with a backdrop of a riotous unrest in Wanchai, and not in
isolation”.
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37. In CWC, the Court of Appeal emphasised at paragraph 50 that
C the following factors ought to be considered, amongst others, in C
sentencing:-
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E
“50. 本案情節嚴重… E
(一) 保護公眾：為避免因汽油彈而造成的傷害，判刑應側重於保
F 護社會大眾而非犯案者的更生；尤其是當大規模的示威和動 F
亂事件日增。
G G
(二) 加諸懲罰：縱火威脅市民大眾的生命和財產，判刑應與罪行
的嚴重性相稱；”
H H
I 38. There are very few cases in Hong Kong in respect of pipe I
bombs. In HKSAR v Lui Fui CACC 237/2007, [2008] 3 HKU 218, the
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defendant pleaded guilty to one count of possession of ammunition without
K a licence and was sentenced to 33 months’ imprisonment. Police raided K
the defendant’s premises and he was found to possess a grenade, two
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pistols and an airgun. The grenade contained explosive substance but the
M other items were just toy guns. The applicant claimed that these items were M
given to him by a group of war games players and the grenade was intended
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for war games purposes only. However, he admitted that he knew that the
O grenade contained explosive substance and he had wrapped it carefully to O
reduce the risk of explosion. An expert testified that it was a stun grenade
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from the Mainland designed by the military for law enforcement purpose.
Q The judge took the view that the defendant, by his possession of the Q
grenade, had created a situation of grave risk to the community, as it could
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fall into the wrong hands and be used for illegal purposes. The defendant
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had 8 previous convictions, none of which was similar. On appeal against
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sentence, the applicant argued that the judge erred in rejecting his T
explanation that the grenade was for fun and for war game only and the
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judge had failed to consider that he had taken measures to avoid the risk of
C an explosion. It was submitted that a non-custodial sentence was C
appropriate on the facts of the case.
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E 39. Dismissing the appeal, the Court of Appeal held that:- E
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(a) The maximum sentence for the offence of possession
G of arms or ammunition without a licence was 14 years’ G
imprisonment. There could be varying degrees of
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seriousness, depending on the facts of each case, and
I therefore a tariff sentence for such offence was not I
feasible. At the top of the scale was possession for
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illegal purposes, such as robbery, injuries to persons or
K damages to properties, whereas possession as a hobby K
with no risks of the firearms or ammunition being used
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for any illegal purpose or posing any threat to the public
M would bring the case to the lower end of the scale; M
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(b) In view of the nature of the grenade and the expert’s
O evidence, the judge was perfectly entitled to reject the O
suggestion that the grenade was for fun when it was
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capable of causing serious injuries and when the
Q defendant was unable to provide the name and contact Q
means of any of his alleged war game players: R v Hirai
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Hirotsugu (HCCC 30/1995, unreported) distinguished;
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(c) There was no evidence to suggest that the defendant
C had intended to use the grenade for any illegal purpose, C
and the judge did not sentence him on that basis;
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E (d) The judge was entitled to take the view that what the E
defendant did posed a real threat to the public. On the
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facts as found by the judge particularly the nature of the
G grenade, and bearing in mind also the applicant’s G
criminal record, neither the 4½ year starting point
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adopted by the judge nor the ultimate sentence of 33
I months’ imprisonment was manifestly excessive. I
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40. In the recent case of HKSAR v Lo Kwok Wah DCCC 21/2019;
K [2021] HKDC 810 this court had to consider the sentence for another case K
involving one single charge of possession of an explosive substance. The
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explosive substance was also a pipe bomb. The defendant pleaded guilty
M to one charge of possession of an explosive substance. He was seen with M
3 other people in Man Yee Reservoir in the early hours of the morning.
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The police heard a loud bang and saw smoke rising up. The defendant and
O his friends were intercepted by the police. A pipe bomb was found in the O
defendant’s waist bag. In the light of the timing of the offence, the expert
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evidence as to the strength of the pipe bomb and the mitigation put forward
Q on the defendant’s behalf, this court adopted a starting point of 5 years Q
which was reduced to 40 months for the defendant’s guilty plea.
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S 41. Counsel submitted that the facts of the present case are very S
similar to those in Lo Kwok Wah and invited the court to adopt a similar
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approach.
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C 42. There are in fact marked differences between the facts of the C
present case and those in Lui Fui and Lo Kwok Wah:-
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E (1) The pipe bomb in the present case was a homemade E
device whereas the grenade in Lui Fui was a military
F F
grenade made in the Mainland. Such homemade
G devices are notoriously unstable; G
H H
(2) In Lo Kwok Wah, the defendant was found in
I possession of the pipe bomb in a deserted area in the I
early hours of the morning. There was no evidence as
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to where the pipe bomb was usually kept. In the present
K case, the pipe bomb was kept in a partitioned room in K
Mongkok, one of the busiest and most densely
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populated areas in Hong Kong. Only the most needy
M and vulnerable members of our society live in these M
partitioned rooms. The pipe bomb was also kept in the
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same premises with other highly flammable substances.
O In the event of an accident, these other occupants may O
be seriously injured or killed;
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Q (3) In Lo Kwok Wah, there was no evidence as to who made Q
the pipe bomb. In the present case, it was the
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prosecution’s case that the explosive substances were
S scraped off from the match heads and used to make pipe S
bombs. Not only was the defendant’s DNA found on
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the resealable plastic bag containing the pipe bomb, it
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B B
was also found on a razor blade where the match heads
C were found. However, the defendant has not been C
charged with manufacturing the bomb and the court
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will not sentence him on that basis.
E E
(4) There is no direct evidence as to what the defendant
F intended to do with the pipe bomb. However, as F
explained in Chan Yiu Shing (supra):
G G
H “…there is no reason for D1 to have had the explosive H
substances other than for some untoward purpose.”
I I
(5) Further, in addition to the explosive substances, items
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commonly used by protestors at the time were found
K inside the premises, including 1 black combat helmet; K
3 pairs of brown gloves; 1 can of thinner; 1 white
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helmet; 2 filtering respirators; 2 pairs of dark grey
M sleeves; 2 pairs of black gloves; 2 black raincoats;, 1 M
black backpack; I pair of goggles; 1 black jacket; 2
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pairs of black trousers; 1 pair of 3M gloves, 1 black
O neck warmer; 1 pair of black shoe-covers; 4 lighter fuel O
refills; 1 black and silver coloured bicycle helmet; 1
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pair of grey gloves; 1 black cooling sleeve; 1 black
Q hood; 1 black short sleeved top, 1 box of disposable Q
gloves, 3 funnels; 1 can of acetone; a bottle of alcohol;
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2 black waist bags; 81 bottles of saline solution; 7 V
S vendetta masks; 13 lighters. In addition, there were 5 S
bullet proof vests and a blender with chili powder
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inside.
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C (6) In the light of the timing of the offence and the items C
found, there is a very high probability that the pipe
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bomb would be used in public events;
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(7) The pipe bomb in the present case is also much more
F F
powerful than the pipe bombs in Lui Fui and Lo Kwok
G Wah. In Lui Fui, the expert stated that the pipe bomb G
would cause an explosion in the form of a loud bang
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and a bright flash simulating an explosion. The heat
I generated by the bomb upon explosion would cause I
burning up to a range of 0.5 metres and the blast would
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cause temporary disorientation to anyone within 2 to 3
K metres in a confined space and deafness for several K
minutes. The fragments produced would be plastic
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casing, which could cause minor injuries at close range.
M In Lo Kwok Wah, the expert opined that the heat M
generated upon detonation would be confined to a
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radius of 1 metre, which could cause injury and damage
O to property. However, the fragmentation had a range O
of 10 metres and could cause serious injury or death.
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The pipe bomb in the present case could generate heat
Q up to a radius of 1 metre from the seat of explosion. Q
The fragmentation of the metal casing had a range of
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up to 50 metres, potentially leading to death or serious
S injury. According to the expert report, the pipe bomb S
was detonated at the premises. The metal door of the
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elevator was found damaged with a hole caused by the
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end cap of the pipe bomb. If this pipe bomb were used
C in a public event, it is likely to cause serious injury or C
death to many people, including the police, firemen,
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reporters, medical volunteers, pedestrians and other
E protestors. This pipe bomb clearly posed a threat to the E
safety of the general public;
F F
G 43. The court understands that the defendant was only 21 years G
old at the time of the offence and had a clear record. However, he does not
H H
come within the definition of extreme youth. A bundle of letters in
I mitigation has been submitted to the court. They invariably described the I
defendant as a kind hearted, filial person and responsible and caring
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teacher. Both counsel and a district councillor stated that the defendant is
K truly remorseful. K
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44. The general principles in sentencing of juvenile offenders are
M set out in Secretary for Justice v SWS [2020] HKCA 788:- M
N N
“G. Discussion
G1. General principles in sentencing of juvenile offenders
O O
45. Section 11(2) of the Juvenile Offenders Ordinance
P provides that no young person, i.e. a person who is, in the P
opinion of the Court having cognizance of any case in relation
to such person, 14 years of age or upwards and under the age of
Q 16 years, shall be sentenced to imprisonment if such young Q
person can be suitably dealt with in any other way. In other
words, imprisonment is the last resort for sentencing young
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persons…
S 46. … S
47. In sentencing, the Court is required to consider all
T applicable sentencing factors and give appropriate weight T
before deciding a commensurate sentence: see paragraph 108
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A A
B in Wong Chi Fung (Court of Appeal). This principle is similarly B
applicable to the sentence of young persons who have committed
C serious offences. Generally speaking, the Court’s main C
consideration are in two folds. On one hand, as a matter of
public interest, a sentence passed by the Court in respect of
D serious offences has to be commensurate with the seriousness of D
the offences and the circumstances of the case in order to serve
E
the purposes of protection of the public, punishment, open E
condemnation and deterrence. On the other hand, the young age
of an offender is always a mitigating factor: see paragraph 84
F of Wong Chi Fung (Court of Final Appeal). This is also a F
consideration of public interest because rehabilitation and
reformation can bring the young person away from crime, which
G G
not only caters for his own welfare and future prospect but also
benefits the community as a whole. Therefore, even when the
H offence is serious, the Court in sentencing has to consider the H
young offender’s circumstances, background, welfare and
rehabilitation needs. The Court must carefully balance all
I relevant sentencing factors and decide what weight to accord to I
them before deciding an appropriate sentence.
J J
48. In balancing various sentencing factors, as said above,
the Court would give young offenders, in particular young
K people, a chance to rehabilitate as far as practicable. However, K
this does not mean that the Court focuses only on the youth
factor and ignore other sentencing factors because the weight
L L
given to the youth factors would vary depending on the serious
ness of the crime involved and the circumstances of the offence
M of each individual case. If, as a matter of public interest, the M
seriousness of the offence and the circumstances of the case call
for a heavy or deterrent sentence, the offender’s young age and
N personal background would count very little or even pale into N
insignificance: Re Application for Review of Sentences [1972]
O HKLR 370, 417; Law Ka Kit, paragraphs 27 and 29, because O
the need for a punitive or deterrent sentence far outweighs the
rehabilitative need of the offender: see Wong [Chun] Cheong,
P page 22. P
Q
49. The above legal principles are basically similar to those Q
stated in the guidelines of the UK Sentencing Council for
sentencing children and young people and ‘the Beijing Rules’
R (United Nations Standard Minimum Rules for the R
Administration of Juvenile Justice)….”
S S
45. The defendant was described as a responsible and caring
T T
teacher. The defendant had a pipe bomb in premises with highly
U U
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A A
B B
flammable substances with total disregard of the safety of others. There is
C no dispute that apart from explosive substances, drugs were also found in C
the premises. This does not sit well with the description of the defendant
D D
in the mitigation letters. The defendant was 21 years old at the time of the
E offence. He does not come within the definition of ‘extreme youth’. In the E
light of the seriousness of the offence and the circumstances of the offence,
F F
his youth and personal background pales into insignificance. The court is
G duty bound to send out a clear message that such offences would not be G
tolerated and would be visited with heavy sentences. The defendant stated
H H
that he was very concerned about his grandmother, who is in her 90s and
I whose health is deteriorating. He should have thought about his I
grandmother before committing an offence.
J J
K 46. By reason of the matters mentioned above, I adopt a starting K
point of 6 years and 6 months. The defendant has pleaded guilty at the first
L L
opportunity and is entitled to a full one third discount. The sentence is
M reduced to 4 years and 4 months. M
N N
O O
P P
Q ( A N Tse Ching ) Q
District Judge
R R
S S
T T
U U
V V
A A
B B
DCCC 13/2021
C [2021] HKDC 1035 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 13 OF 2021
F F
---------------------------
G G
HKSAR
H v H
WONG KAI HIN
I I
----------------------------
J J
Before: HH Judge A N Tse Ching in Open Court
K K
Date: 16 August 2021
L Present: Ms Tsoi Moonar, Senior Public Prosecutor (Acting), for L
HKSAR/Director of Public Prosecutions
M M
Mr Li Kwok Wai Marco, instructed by Bond Ng Solicitors by
N N
the Director of Legal Aid, for the defendant
O
Offences: [1]-[2] Possession of explosive substance (管有爆炸品) O
[3] Possession of dangerous drug (管有危險藥物)
P P
Q ----------------------------------------- Q
REASONS FOR SENTENCE
R R
-----------------------------------------
S S
1. The defendant faces 3 charges, namely (i) 2 charges of
T T
possession of explosive substance contrary to section 55(1) of the Crimes
U U
V V
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A A
B B
Ordinance, Cap 200 (Charges 1 and 2) and (ii) 1 charge of possession of
C dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs C
Ordinance, Cap 134 (Charge 3).
D D
E 2. The defendant pleaded guilty to Charge 1. The prosecution E
has agreed to leave the two other charges on file, not to be proceeded with
F F
without the leave of court.
G G
Admitted Facts
H H
I 3. On 14 January 2020, the police conducted an operation I
targeting a suspected bomb-making group at 1/F, Lee Man Building, 104-
J J
116 Tung Choi Street, Mongkok, Hong Kong.
K K
4. At about 13:13 hours on the same day, the defendant and
L L
2 other persons left Flat B, 1/F, Lee Man Building (the Premises).
M M
5. At about 13:15 hours, the defendant and 2 other persons were
N N
intercepted near the junction of Tung Choi Street and Fife Street. The
O defendant acted furtively upon interception. Upon search, 3 keys, an O
iPhone and other items were found on the defendant.
P P
Q 6. At about 13:34 hours, police officers broke into the Premises Q
with the defendant. The Premises was partitioned into 3 rooms (Rooms A-
R R
C). Room A of the Premises (Room A) could be opened with one of the
S keys found on the defendant. S
T T
U U
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A A
B B
7. A house search was conducted at Room A at about 15:21
C hours. There was a living room and a bedroom inside Room A. Upon C
search, the following items were found in Room A (in the areas depicted
D D
in a sketch attached as Annex A):-
E E
(a) Suspected cannabis in herbal form (item 2), found on
F F
the computer desk in the living room;
G G
(b) A suspected pipe bomb (item 51), found inside a
H H
resealable bag in a plastic box under the bed in the
I living room; I
J J
(c) A large amount of matches (items 63-64) and match
K heads (items 65-67), found under a desk in the living K
room;
L L
M (d) Gear commonly possessed by protestors, including M
helmets, respirators and gloves; and
N N
O (e) Other items including flak jackets, a bag of charcoal, O
4 empty glass bottles, a can of acetone, a bottle of
P P
alcohol and a blender containing chilli pepper powder.
Q Q
8. At about 17:00 hours, the defendant was arrested. Under
R R
caution, he remained silent.
S S
T T
U U
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A A
B B
9. At about 21:28 hours, bomb disposal officer Mr Suryanto
C Chin Chiu arrived at the scene. The subject floor, 1/F of Lee Man Building C
was vacated.
D D
E 10. The pipe bomb (item 51) is a metal pipe measuring E
approximately 20 cm in length and 5 cm in diameter. Both ends of the
F F
metal tube were sealed with internal screwed caps with a white rope
G sticking out of one end. One end was fitted with an intact metal screw end G
cap and one end was fitted with a metal screw front cap with a small hole
H H
and a white rope, suspected fuse, sticking out from inside the metal pipe.
I Some dried glue was on the surface of the hole. I
J J
11. Mr Suryanto dismantled the pipe bomb into three pieces and
K some black substances weighing approximately 40 grammes was found K
inside the metal pipe, which are deflagrating explosive.
L L
M 12. At about 23:59 hours, Mr Suryanto checked around the scene M
after the pipe bomb was detonated. The metal door of the elevator was
N N
found damaged with a hole caused by the end cap of the pipe bomb.
O O
13. Government Chemist, Mr Ho Siu Hong found that the
P P
Cannabis in herbal form (item 2) contained 2.98 grammes of cannabis, in
Q herbal form. Q
R R
14. A sample of solid seized from the detonated pipe bomb (item
S 51) was found to contain about 3.3 grammes of a mixture containing about S
45% weight/weight of potassium chlorate, 9% weight/weight of Sulphur
T T
and 16% weight/weight of charcoal.
U U
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A A
B B
C 15. Trace amounts of potassium chlorate, Sulphur and charcoal C
were found from the segment of rope seized from the detonated pipe bomb.
D D
E 16. Item 67 was found to be one bottle of solid mixture containing E
potassium chlorate, Sulphur and wood fragment. Items 65-66 were found
F F
to be one bottle of a total of 29 pieces of broken match heads containing
G potassium chlorate, Sulphur and wood fragment and one bottle of a total of G
15 pieces of broken match heads containing potassium chlorate, Sulphur
H H
and wood fragment.
I I
17. The can of acetone was found to contain about 3360 millilitres
J J
of organic mixture containing acetone. Acetone is a flammable organic
K solvent, which is a common constituent in paint thinner mixture. K
L L
18. The bottle of alcohol was found to contain about 2,260
M millilitres of liquid containing mainly isopropyl alcohol. Isopropyl alcohol M
is a flammable organic solvent, which is commonly found in household
N N
and personal care products such as rubbing alcohol.
O O
19. The blender containing chilli pepper powder was found to
P P
contain about 21 grammes of orange red powdery solid containing
Q capsaicin and dihydrocapsaicin. Capsaicin and dihydrocapsaicin are Q
natural compounds present in chilli peppers and they could elicit a burning
R R
sensation when contacted with soft mucosal tissues.
S S
20. The pipe bomb is a homemade explosive device. The metal
T T
pipe with both ends sealed with crew caps serve as confinement to the
U U
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A A
B B
deflagration of the explosive. The white rope soaked with deflagrating
C explosive is a homemade safety fuse to the explosive device. The function C
of the rope is to provide a time gap between the ignition of the safety fuse
D D
and ignition of the deflagrating explosive inside the metal pipe. Once the
E safety fuse is ignited, it will burn along the rope to the inner part of the E
metal pipe, igniting the deflagrating explosive, thereby building up
F F
pressure inside. Deflagrating explosive causes the rapid combustion
G accompanied by flame and does not require atmospheric air to burn in a G
steady state nor need confinement. However, to deflagrate rather than to
H H
merely burn, they require a degree of confinement. The confinement of
I the metal pipe will withhold the built-up pressure until the pressure is so I
great that the metal pipe would burst. This process is an explosion.
J J
K 21. Mr Suryanto opines that the pipe bomb would create heat and K
fragmentation. The effect of heat would have been largely restricted to
L L
close proximity to the seat of explosion radiated approximately up to
M 1 metre from the seat of explosion. The actual damage will vary based on M
the physical and geographical factors at the time of explosion. The
N N
fragmentation would range up to 50 metres from the seat of explosion,
O potentially leading to death or serious injury. O
P P
22. Mr Suryanto opines that the match head substances are
Q commonly known as the source of deflagration explosive. The match Q
heads cutaway (Items 65-66) could not effectively deflagrate due to the
R R
presence of the wood in the middle of the cutaway. On the other hand, the
S 26 grammes of match head substance separated from the wooden stick S
(item 67) is therefore more refined as deflagrating explosive.
T T
U U
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A A
B B
23. The defendant’s DNA was found on various items in Room A,
C including:- C
D D
(a) Two cups placed on the laundry machine in the living
E room; E
F F
(b) Two brushes in the toilet;
G G
(c) A pair of glasses with its box placed on the computer
H H
desk, where the Cannabis in herbal form (item 2) was
I found; I
J J
(d) The keyboard and mouse placed on the computer desk,
K where the Cannabis in herbal form (item 2) was found; K
L L
(e) The resealable plastic bag containing the pipe bomb
M (item 51); M
N N
(f) A shaver on the desk, next to where the match heads
O (item 65-67) were found. O
P P
24. No fingerprint mark of any value was found.
Q Q
25. On 14 January 2020 in Room A, without lawful excuse, the
R R
defendant had in his possession or custody or under his control explosive
S substance, namely the pipe bomb. S
T T
U U
V V
-8-
A A
B B
The Defendant’s Background
C C
26. The defendant is now 22 years old. He was a part time tutor
D D
prior to his arrest. A number of letters have been submitted on his behalf.
E Basically, these letters say that the defendant is a hardworking and kind E
hearted person.
F F
G 27. The defendant was 21 years old at the time of the offence. He G
is single. He had a clear record.
H H
I 28. The defendant was born in Hong Kong and educated up to I
tertiary level. He obtained his Bachelor Degree in Creative and Interactive
J J
Media Production from the Community College of the City University of
K Hong Kong (now known as UOW College Hong Kong) in 2019. He has a K
strong interest in creative media and is determined to pursue it further.
L L
Upon graduation, he worked as a part time tutor to earn and save money
M for further studies. M
N N
29. His father is a retired civil servant whilst his mother and two
O elder sisters are all gainfully employed. The defendant has very strong ties O
with his family, who has given him support throughout the present
P P
proceedings. The defendant also has a very close bond with his paternal
Q grandmother, who is aged 90 and wheelchair bound. Q
R R
Mitigation
S S
30. Counsel submitted that the defendant has demonstrated
T T
genuine remorse by indicating his guilty plea at the very first opportunity.
U U
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A A
B B
The defendant has been remanded in custody for one and a half years,
C during which he has reflected on his serious misbehavior. He has C
expressed his remorse in his mitigation letter. He repents his foolish acts
D D
and is deeply concerned for his family, in particular, his paternal
E grandmother whose health is deteriorating. He regretted letting his loved E
ones down and asks the court for leniency, so that he can make a fresh start
F F
and contribute to society.
G G
31. A letter from District Councillor, Ms Wu Sui Shan, Suzanne
H H
was also submitted. She mentioned that the defendant has repeatedly
I expressed his remorse and guilt during their conversations since his I
remand.
J J
K 32. Counsel also submitted that the defendant was of positive K
good character. I have received testimonials concerning the character of
L L
the defendant from his former employers, his father, his elder sister and
M long standing friends. There is also a letter from the Friends of Scouting M
Jockey Club Kai Yip Service Centre for Children and Youth which
N N
informed the court of the volunteer work that the defendant has done for
O the homeless, the disabled and ethnic minorities since he was a secondary O
student.
P P
Q Discussion Q
R R
33. The defendant has pleaded guilty to a charge under section
S 55(1) of the Crimes Ordinance, Cap 200. This is a very serious offence, S
the maximum penalty for which is 14 years’ imprisonment. There are no
T T
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A A
B B
sentencing guidelines or tariffs for this offence; each case depends on its
C own facts. C
D D
34. In HKSAR v Chan Yiu Shing [2018] 1 HKLRD 421, the
E Honourable Mr Justice Zervos (as he then was) stated at paragraphs 1-3:- E
F F
“1. In a time where there is heightened concern both
domestically and internationally about the safety of the general
G public by indiscriminate acts of violence, sentences must be G
imposed for offending of this nature to reflect the gravity and
seriousness of the criminality disclosed. Offences for the
H possession or making of explosive substances fall within this H
category, and will normally demand the imposition of a
I custodial sentence that acts as both a specific and general I
deterrent. As is always the case, when passing sentence, the
Court’s preoccupation is with the facts and circumstances of the
J offence and of the offender as considered and evaluated by the J
application of relevant sentencing guidelines and principles.
K
Offences will vary greatly but it needs to be appreciated that K
persons involved in researching or making explosive substances
are likely to face severe punishment.
L L
2. As noted by the Court of Appeal of England and Wales
in R v Marcin Kasprzak [2014] 1 Cr App R (S) 20 (p.115), at
M M
p.119:
N [15] In our judgment, at a time when information about how N
to obtain ingredients for the making of explosives, as well as the
instructions themselves, are so readily available on the internet,
O deterrence must play a significant part in the sentencing process. O
P 3. I should also add that this is at a time when the P
substances and materials for improvised explosives are readily
available and generally found in commercial or household
Q items.” Q
R R
35. As was rightly pointed out by counsel, this offence was
S
committed during a time of public order events which posed potential S
threats to public safety. In HKSAR v Lo Chun Hei DCCC 909/2019, His
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A A
B B
Honour, Judge Casewell pointed out that the court must consider the timing
C of these offences as part of the sentencing exercise:- C
D D
“17. The first issue that must be made clear is the timing of
these offences. The offence occurred in August 2019 and can be
E seen against the background of what the Final Court of Appeal E
in the case of Final Court of Appeal 6/2020 Kwok Wing Hang &
23 Ors, described as a period of disrupted social order that
F occurred from 9 June 2019 to 4 October 2019. I am quoting from F
the Court of Appeal judgment, where they said over some 400
G public order events arising from the Fugitive Offenders Bill G
were staged and led to significant numbers of outbreaks of
violence, public order events taking place in various parts of
H Hong Kong at frequent intervals weekly involving hundreds and H
at times thousands of participants.
I I
18. The Court of Final Appeal goes on to describe the forms
of violence that were perpetrated during these demonstrations:
J damaging private shopping malls, shops and restaurants; J
looting damaged shops; damaging residential premises;
harassing residents; attacking members of the public. Weapons
K included high-powered laser pointers, slingshots, sharpened K
objects, throwing petrol bombs at police vehicles and police
L stations, damaging and obstructing the operation of critical L
infrastructure and it is against that background that these
offences had been committed.”
M M
The Court of Appeal also expressed similar sentiments in Secretary for
N N
Justice v Chan Yip Wan [2021] HKCA 794, CAAR 5/2021 and 律政司司
O O
長 訴 CWC [2021] HKCA 166, CAAR 12/2020.
P P
36. In Chan Yip Wan, the Court of Appeal said at paragraph 45:-
Q Q
R “It is important to consider the gravity of the two offences R
[criminal damage and possession of things with intent to
damage property] committed by the respondent in context, i.e.
S S
with a backdrop of a riotous unrest in Wanchai, and not in
isolation”.
T T
U U
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A A
B B
37. In CWC, the Court of Appeal emphasised at paragraph 50 that
C the following factors ought to be considered, amongst others, in C
sentencing:-
D D
E
“50. 本案情節嚴重… E
(一) 保護公眾：為避免因汽油彈而造成的傷害，判刑應側重於保
F 護社會大眾而非犯案者的更生；尤其是當大規模的示威和動 F
亂事件日增。
G G
(二) 加諸懲罰：縱火威脅市民大眾的生命和財產，判刑應與罪行
的嚴重性相稱；”
H H
I 38. There are very few cases in Hong Kong in respect of pipe I
bombs. In HKSAR v Lui Fui CACC 237/2007, [2008] 3 HKU 218, the
J J
defendant pleaded guilty to one count of possession of ammunition without
K a licence and was sentenced to 33 months’ imprisonment. Police raided K
the defendant’s premises and he was found to possess a grenade, two
L L
pistols and an airgun. The grenade contained explosive substance but the
M other items were just toy guns. The applicant claimed that these items were M
given to him by a group of war games players and the grenade was intended
N N
for war games purposes only. However, he admitted that he knew that the
O grenade contained explosive substance and he had wrapped it carefully to O
reduce the risk of explosion. An expert testified that it was a stun grenade
P P
from the Mainland designed by the military for law enforcement purpose.
Q The judge took the view that the defendant, by his possession of the Q
grenade, had created a situation of grave risk to the community, as it could
R R
fall into the wrong hands and be used for illegal purposes. The defendant
S S
had 8 previous convictions, none of which was similar. On appeal against
T
sentence, the applicant argued that the judge erred in rejecting his T
explanation that the grenade was for fun and for war game only and the
U U
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A A
B B
judge had failed to consider that he had taken measures to avoid the risk of
C an explosion. It was submitted that a non-custodial sentence was C
appropriate on the facts of the case.
D D
E 39. Dismissing the appeal, the Court of Appeal held that:- E
F F
(a) The maximum sentence for the offence of possession
G of arms or ammunition without a licence was 14 years’ G
imprisonment. There could be varying degrees of
H H
seriousness, depending on the facts of each case, and
I therefore a tariff sentence for such offence was not I
feasible. At the top of the scale was possession for
J J
illegal purposes, such as robbery, injuries to persons or
K damages to properties, whereas possession as a hobby K
with no risks of the firearms or ammunition being used
L L
for any illegal purpose or posing any threat to the public
M would bring the case to the lower end of the scale; M
N N
(b) In view of the nature of the grenade and the expert’s
O evidence, the judge was perfectly entitled to reject the O
suggestion that the grenade was for fun when it was
P P
capable of causing serious injuries and when the
Q defendant was unable to provide the name and contact Q
means of any of his alleged war game players: R v Hirai
R R
Hirotsugu (HCCC 30/1995, unreported) distinguished;
S S
T T
U U
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A A
B B
(c) There was no evidence to suggest that the defendant
C had intended to use the grenade for any illegal purpose, C
and the judge did not sentence him on that basis;
D D
E (d) The judge was entitled to take the view that what the E
defendant did posed a real threat to the public. On the
F F
facts as found by the judge particularly the nature of the
G grenade, and bearing in mind also the applicant’s G
criminal record, neither the 4½ year starting point
H H
adopted by the judge nor the ultimate sentence of 33
I months’ imprisonment was manifestly excessive. I
J J
40. In the recent case of HKSAR v Lo Kwok Wah DCCC 21/2019;
K [2021] HKDC 810 this court had to consider the sentence for another case K
involving one single charge of possession of an explosive substance. The
L L
explosive substance was also a pipe bomb. The defendant pleaded guilty
M to one charge of possession of an explosive substance. He was seen with M
3 other people in Man Yee Reservoir in the early hours of the morning.
N N
The police heard a loud bang and saw smoke rising up. The defendant and
O his friends were intercepted by the police. A pipe bomb was found in the O
defendant’s waist bag. In the light of the timing of the offence, the expert
P P
evidence as to the strength of the pipe bomb and the mitigation put forward
Q on the defendant’s behalf, this court adopted a starting point of 5 years Q
which was reduced to 40 months for the defendant’s guilty plea.
R R
S 41. Counsel submitted that the facts of the present case are very S
similar to those in Lo Kwok Wah and invited the court to adopt a similar
T T
approach.
U U
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A A
B B
C 42. There are in fact marked differences between the facts of the C
present case and those in Lui Fui and Lo Kwok Wah:-
D D
E (1) The pipe bomb in the present case was a homemade E
device whereas the grenade in Lui Fui was a military
F F
grenade made in the Mainland. Such homemade
G devices are notoriously unstable; G
H H
(2) In Lo Kwok Wah, the defendant was found in
I possession of the pipe bomb in a deserted area in the I
early hours of the morning. There was no evidence as
J J
to where the pipe bomb was usually kept. In the present
K case, the pipe bomb was kept in a partitioned room in K
Mongkok, one of the busiest and most densely
L L
populated areas in Hong Kong. Only the most needy
M and vulnerable members of our society live in these M
partitioned rooms. The pipe bomb was also kept in the
N N
same premises with other highly flammable substances.
O In the event of an accident, these other occupants may O
be seriously injured or killed;
P P
Q (3) In Lo Kwok Wah, there was no evidence as to who made Q
the pipe bomb. In the present case, it was the
R R
prosecution’s case that the explosive substances were
S scraped off from the match heads and used to make pipe S
bombs. Not only was the defendant’s DNA found on
T T
the resealable plastic bag containing the pipe bomb, it
U U
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A A
B B
was also found on a razor blade where the match heads
C were found. However, the defendant has not been C
charged with manufacturing the bomb and the court
D D
will not sentence him on that basis.
E E
(4) There is no direct evidence as to what the defendant
F intended to do with the pipe bomb. However, as F
explained in Chan Yiu Shing (supra):
G G
H “…there is no reason for D1 to have had the explosive H
substances other than for some untoward purpose.”
I I
(5) Further, in addition to the explosive substances, items
J J
commonly used by protestors at the time were found
K inside the premises, including 1 black combat helmet; K
3 pairs of brown gloves; 1 can of thinner; 1 white
L L
helmet; 2 filtering respirators; 2 pairs of dark grey
M sleeves; 2 pairs of black gloves; 2 black raincoats;, 1 M
black backpack; I pair of goggles; 1 black jacket; 2
N N
pairs of black trousers; 1 pair of 3M gloves, 1 black
O neck warmer; 1 pair of black shoe-covers; 4 lighter fuel O
refills; 1 black and silver coloured bicycle helmet; 1
P P
pair of grey gloves; 1 black cooling sleeve; 1 black
Q hood; 1 black short sleeved top, 1 box of disposable Q
gloves, 3 funnels; 1 can of acetone; a bottle of alcohol;
R R
2 black waist bags; 81 bottles of saline solution; 7 V
S vendetta masks; 13 lighters. In addition, there were 5 S
bullet proof vests and a blender with chili powder
T T
inside.
U U
V V
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A A
B B
C (6) In the light of the timing of the offence and the items C
found, there is a very high probability that the pipe
D D
bomb would be used in public events;
E E
(7) The pipe bomb in the present case is also much more
F F
powerful than the pipe bombs in Lui Fui and Lo Kwok
G Wah. In Lui Fui, the expert stated that the pipe bomb G
would cause an explosion in the form of a loud bang
H H
and a bright flash simulating an explosion. The heat
I generated by the bomb upon explosion would cause I
burning up to a range of 0.5 metres and the blast would
J J
cause temporary disorientation to anyone within 2 to 3
K metres in a confined space and deafness for several K
minutes. The fragments produced would be plastic
L L
casing, which could cause minor injuries at close range.
M In Lo Kwok Wah, the expert opined that the heat M
generated upon detonation would be confined to a
N N
radius of 1 metre, which could cause injury and damage
O to property. However, the fragmentation had a range O
of 10 metres and could cause serious injury or death.
P P
The pipe bomb in the present case could generate heat
Q up to a radius of 1 metre from the seat of explosion. Q
The fragmentation of the metal casing had a range of
R R
up to 50 metres, potentially leading to death or serious
S injury. According to the expert report, the pipe bomb S
was detonated at the premises. The metal door of the
T T
elevator was found damaged with a hole caused by the
U U
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A A
B B
end cap of the pipe bomb. If this pipe bomb were used
C in a public event, it is likely to cause serious injury or C
death to many people, including the police, firemen,
D D
reporters, medical volunteers, pedestrians and other
E protestors. This pipe bomb clearly posed a threat to the E
safety of the general public;
F F
G 43. The court understands that the defendant was only 21 years G
old at the time of the offence and had a clear record. However, he does not
H H
come within the definition of extreme youth. A bundle of letters in
I mitigation has been submitted to the court. They invariably described the I
defendant as a kind hearted, filial person and responsible and caring
J J
teacher. Both counsel and a district councillor stated that the defendant is
K truly remorseful. K
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44. The general principles in sentencing of juvenile offenders are
M set out in Secretary for Justice v SWS [2020] HKCA 788:- M
N N
“G. Discussion
G1. General principles in sentencing of juvenile offenders
O O
45. Section 11(2) of the Juvenile Offenders Ordinance
P provides that no young person, i.e. a person who is, in the P
opinion of the Court having cognizance of any case in relation
to such person, 14 years of age or upwards and under the age of
Q 16 years, shall be sentenced to imprisonment if such young Q
person can be suitably dealt with in any other way. In other
words, imprisonment is the last resort for sentencing young
R R
persons…
S 46. … S
47. In sentencing, the Court is required to consider all
T applicable sentencing factors and give appropriate weight T
before deciding a commensurate sentence: see paragraph 108
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B in Wong Chi Fung (Court of Appeal). This principle is similarly B
applicable to the sentence of young persons who have committed
C serious offences. Generally speaking, the Court’s main C
consideration are in two folds. On one hand, as a matter of
public interest, a sentence passed by the Court in respect of
D serious offences has to be commensurate with the seriousness of D
the offences and the circumstances of the case in order to serve
E
the purposes of protection of the public, punishment, open E
condemnation and deterrence. On the other hand, the young age
of an offender is always a mitigating factor: see paragraph 84
F of Wong Chi Fung (Court of Final Appeal). This is also a F
consideration of public interest because rehabilitation and
reformation can bring the young person away from crime, which
G G
not only caters for his own welfare and future prospect but also
benefits the community as a whole. Therefore, even when the
H offence is serious, the Court in sentencing has to consider the H
young offender’s circumstances, background, welfare and
rehabilitation needs. The Court must carefully balance all
I relevant sentencing factors and decide what weight to accord to I
them before deciding an appropriate sentence.
J J
48. In balancing various sentencing factors, as said above,
the Court would give young offenders, in particular young
K people, a chance to rehabilitate as far as practicable. However, K
this does not mean that the Court focuses only on the youth
factor and ignore other sentencing factors because the weight
L L
given to the youth factors would vary depending on the serious
ness of the crime involved and the circumstances of the offence
M of each individual case. If, as a matter of public interest, the M
seriousness of the offence and the circumstances of the case call
for a heavy or deterrent sentence, the offender’s young age and
N personal background would count very little or even pale into N
insignificance: Re Application for Review of Sentences [1972]
O HKLR 370, 417; Law Ka Kit, paragraphs 27 and 29, because O
the need for a punitive or deterrent sentence far outweighs the
rehabilitative need of the offender: see Wong [Chun] Cheong,
P page 22. P
Q
49. The above legal principles are basically similar to those Q
stated in the guidelines of the UK Sentencing Council for
sentencing children and young people and ‘the Beijing Rules’
R (United Nations Standard Minimum Rules for the R
Administration of Juvenile Justice)….”
S S
45. The defendant was described as a responsible and caring
T T
teacher. The defendant had a pipe bomb in premises with highly
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A A
B B
flammable substances with total disregard of the safety of others. There is
C no dispute that apart from explosive substances, drugs were also found in C
the premises. This does not sit well with the description of the defendant
D D
in the mitigation letters. The defendant was 21 years old at the time of the
E offence. He does not come within the definition of ‘extreme youth’. In the E
light of the seriousness of the offence and the circumstances of the offence,
F F
his youth and personal background pales into insignificance. The court is
G duty bound to send out a clear message that such offences would not be G
tolerated and would be visited with heavy sentences. The defendant stated
H H
that he was very concerned about his grandmother, who is in her 90s and
I whose health is deteriorating. He should have thought about his I
grandmother before committing an offence.
J J
K 46. By reason of the matters mentioned above, I adopt a starting K
point of 6 years and 6 months. The defendant has pleaded guilty at the first
L L
opportunity and is entitled to a full one third discount. The sentence is
M reduced to 4 years and 4 months. M
N N
O O
P P
Q ( A N Tse Ching ) Q
District Judge
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S S
T T
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