A HCCC 331/2020 A
[2022] HKCFI 1503
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 331 OF 2020
D ----------------- D
HKSAR
E E
v
F F
So Hon-to, Stephen (A2)
G ----------------- G
Before: Hon D’Almada Remedios J
H Date: 10 March 2022 at 9.49 am H
Present: Mr Adonis Cheung, on fiat, and Mr Jerome Ching, PP of
I
the Department of Justice, for HKSAR I
Mr David Boyton leading Ms Athena Cheung, instructed by
Tung & Associates, assigned by DLA, for the 2nd accused
J Offence: (1) Conspiracy to murder (串謀謀殺) J
(2) Conspiracy to possess arms and ammunition without
license (串謀無牌管有槍械或彈藥)
K K
---------------------------------
L L
Transcript of the Audio Recording
of the Sentence in the above Case
M --------------------------------- M
N COURT: The 2nd defendant was found guilty after trial by a jury N
on a majority verdict of six to one on Count 1, conspiracy
to murder, and a unanimous verdict on Count 2, conspiracy to
O possess arms and ammunition. O
The 1st count, the conspiracy to murder, is contrary to
P section 5 of the Offences against the Person Ordinance, P
Chapter 212. The particulars of offence were that Su David,
Q that was the 1st defendant, and So Hon-to Stephen, between a Q
day unknown in November 2018 and 31 December 2018, both
dates inclusive, in Hong Kong, conspired together with Chak
R Wing-sze and other person or persons unknown, to murder a R
person known as Lam Ching-fung or otherwise known as Hobbit.
S S
In respect of the 2nd count, it was a conspiracy to possess
arms and ammunitions without a licence, contrary to section
T 13(1) and (2) of the Firearms and Ammunition Ordinance, T
Chapter 238 and sections 159A and 159C of the Crimes
Ordinance, Chapter 200. The particulars of offence are that
U Su David and So Hon-to Stephen, between a day unknown in or U
CRT26/10.3.2022/JC 1 HCCC 331/2020(1)/Sentence A2
V V
A about March 2018 and 1 January 2019, both dates inclusive, A
in Hong Kong, conspired with Chak Wing-sze and other person
or persons unknown, to possess arms and ammunition without a
B licence, namely, guns, silencers and ammunition. B
The trial for this case lasted for 25 days involving both
C C
defendants who were jointly charged on both counts. The
jury found the 1st defendant not guilty on both counts. The
D evidence the prosecution relied on in respect of the D
conspiracy to murder in Count 1 against the 1st and
2nd defendants came solely from Ms Chak Wing-sze who is an
E accomplice and a witness under an immunity. For E
Count 2 against the 2nd defendant, the prosecution relied on
Ms Chak’s evidence and the admissions in the video-recorded
F F
interviews made by the 2nd defendant.
G To have a better understanding of the case, I will set out G
the facts in some detail. D2 was born on 19 May 1990 and
Chak Wing-sze, who I will call Chak, was born in
H October 2000. D2 was therefore about 10 years older than H
Chak.
I I
In 2017 to 2018, D2 was 27 and 28 years old whilst Chak was
17 to 18 years old. At the end of 2016, Chak visited D2’s
J Facebook page called “I am 五毛 Ng Mo, I am 鬼” Gwai. Chak J
said the content of D2’s Facebook page was that Hong Kong
people should buy equipment to protect themselves during the
K K
protests. D2 told people to buy his equipment. She wanted
to buy his equipment. She was told that she would receive a
L 25 per cent discount if she showed proof that she had bought L
a book written by 五毛鬼 Ng Mo Gwai called “Escape from Hong
Kong Garden”. She bought the book. She was then able to
M purchase some equipment from D2 at a discount. M
N So towards the end of 2016, she met D2 for the first time N
face to face at Tai Wo Station when she bought equipment
from him.
O O
In 2017, Chak went out several times with D2 to have a meal.
At that time, she treated him as a netizen, not yet as a
P friend. She did not know his name and only knew him by his P
codename 五毛鬼 Ng Mo Gwai. While they were netizens, they
Q communicated by Facebook messenger. Q
By mid-2017, Chak, the 1st defendant, Su David, D2, and a
R person named Samuel Leung Chun-yan played war games about R
three times together at a derelict school in Tai Wo Hau
called Kwai Chung Government School. They also played in
S S
about January 2018. During some of the war games, amongst
others, Samuel joined the 1st and 2nd defendants and Chak.
T At that time, she came to know that D2’s name was Stephen. T
From then on, she referred to him as Stephen.
U U
CRT26/10.3.2022/JC 2 HCCC 331/2020(1)/Sentence A2
V V
A By January 2018, D2 knew Chak had an affection for him and A
had fallen for him. D2 asked and Chak agreed to be his SP,
which was his sexual partner. This was a purely physical
B relationship with no ties such as boyfriend or girlfriend. B
They had sex on a number of occasions thereafter. Their
communications then were made to each other by the use of
C C
the app Telegram.
D On the instructions of D2, Chak and D1 followed Hobbit or D
Lam Ching-fung, that is the victim in Charge 1 in this case,
in the middle of December 2017. At that time, D2 told Chak
E Hobbit was an untrustworthy person and to find out his E
address.
F F
In November 2018, D2 suddenly told Chak to install an app
called Wire, that is to change and use this application for
G communication instead of Telegram. Chak asked D2 why they G
needed to change to Wire. D2 explained he did not want
Hobbit to know about their communication.
H H
D2 told Chak that Hobbit had a coup and had told the police
I
that D2 was a terrorist. D2 said Hobbit had disclosed I
everything about Chak, D2 and D1 to the police. D2 told
Chak that the watchman downstairs of his home said there
J were strangers wandering in his vicinity and D2 was of the J
opinion it was Hobbit’s doing. D2 further said and asked
Chak if he and D1 were arrested, could Chak help by killing
K Hobbit. K
L A small group, that is D2, D1, Chak and Samuel then used L
Wire for communications. All further communications between
D2 and Chak to possess arms and the agreement to kill Hobbit
M was made through Wire. Wire was a secure messaging app M
which would automatically delete messages so there would be
no recording of anything said between them.
N N
At the end of November 2018, D2 instructed Chak to follow
O Hobbit again, this time to see where Hobbit would go to dig O
up something and to look at what he would dig up. Several
days later, D2 gave Chak arms and ammunitions on two
P separate occasions. D2 told her that she would have to keep P
them for the time being because Hobbit was acquainted with
D2 and D1 and Hobbit did not know Chak. D2 said to her that
Q Q
should they, that is should he and D1 be arrested later,
these things would not be found and therefore should be kept
R with her for the time being. R
The giving of the arms and ammunitions took place at Tsui Wo
S House, that is the building where D2 lived. On the first S
occasion, D2 gave Chak a camouflage bag containing arms and
ammunition and on the second occasion, he gave her a rifle
T T
bag containing a rifle. The zippers on the two bags were
fastened with zip ties. Chak took them to her home in Siu
U Lek Yuen and kept them in her bedroom. U
CRT26/10.3.2022/JC 3 HCCC 331/2020(1)/Sentence A2
V V
A A
D2 told Chak when he gave them to her, he would go down
first and then she was to walk down the stairs from his
B residential building in Tsui Wo House, that is, there was to B
be no use of the lift. D2 gave her $100 to take a taxi home
on each occasion.
C C
In December 2018 before 6 December, D2 sent Chak a message
D to be played to Hobbit on Google translate. Chak tried to D
make the phone call to Hobbit at a phone booth in Fo Tan but
he did not answer. She said she used washed coins.
E E
On D2’s instructions, Chak then collected a Motorola mobile
phone from Alan at Tai Wo. On D2’s instructions, Chak then
F F
used the Motorola phone to call Hobbit on a number provided
by D2 and made use of her mobile phone to play a paragraph
G from Google translate which D2 had already sent to her. The G
message was to Lam Ching-fung in English and as far as Chak
could remember it said, “Lam Ching-fung, I’m not going to
H say anything further to you over the phone as I previously H
have. Please, by a day in December before 10 pm, go to Tai
I
Wo Hau to see me. I will reveal to the police about the I
smuggling of firearms.”
J On a day unknown before 6 December, Chak came to know that J
the camouflage bag D2 had given her contained three pistols
and ammunition and silencers. That is because D2 went to
K her house to clean, dismantle and assemble the arms and K
ammunition.
L L
Whilst D2 was at her house, he cut the cable ties of the
camouflage bag and took out a golden and black barrel
M pistol, two magazines, loaded them with bullets and two M
silencers and placed them into a beige recycle bag. The
magazines and the silencers were all separated from the
N pistol. D2 then told Chak to give the beige bag to the N
1st defendant on a Thursday which was the first week in
O December and that was 6 December. O
On 6 December, Chak, as instructed by D2, bought chemicals
P and took two saws and left them at the derelict school at P
Tai Wo Hau. After leaving them there, as instructed by D2,
at about 7 pm, she gave the beige bag containing arms and
Q Q
ammunition, she says, to the 1st defendant and the Motorola
phone. As we know, the 1st defendant however was found not
R guilty. R
As regards the 1st defendant in the trial, the issue was
S mainly one of identification as D1 was saying she mistakenly S
identified him. If she was not mistaken, he did not know
what was in the bag and if he did see what was in the bag,
T T
he did not know they were real arms as opposed to air guns
or toy guns.
U U
CRT26/10.3.2022/JC 4 HCCC 331/2020(1)/Sentence A2
V V
A Chak said on 6 December at Kwai Chung Park, Chak, as A
instructed by D2, handed the beige bag containing the arms
and ammunition to D1, whom of course the jury did not find
B that the prosecution had proved the case. This Kwai Chung B
Park was a restricted area in a quiet location and was dark.
At the time there Chak said D1 was there. There was another
C C
person who looked very similar to D1. They were both
wearing facemasks and caps. Chak said the person who she
D identified as D1 took off his jacket, put it in a rucksack D
and kicked the rucksack in a ditch. Both these persons,
males, gave Chak their mobile phones and the person who she
E identified was D1 told her to go as far away from Tai Wo Hau E
as she possibly could.
F F
It was the prosecution case that the only reason the two
pistols and magazines loaded with bullets and silencers in
G the bag which were handed to that person in that location in G
those circumstances was because these people were in
possession of the arms and ammunition to kill. That person
H who Chak said was D1 said to her, “Did Stephen tell you what H
to do?”, she replied she was to wait at the downstairs of
I
Hobbit’s house as a lookout. I
After Chak and who she said were the two males departed, she
J went to act as lookout at Hobbit’s house. Chak believed the J
operation that evening, that is the handing over the guns
and the saws and chemicals she left at Tai Wo Hau at the
K derelict school was an operation to kill Hobbit. K
L The operation, however, failed as Chak did not give an extra L
phone to that male. She received a text from D2 saying
“abort”. As a result, the operation was aborted and that
M male returned the beige bag to her at Kwai Chung Park. M
She said sorry to that male and that male said, “No need to
N say sorry. That is how life is. We instead have to thank N
you, you go home first.” By saying thank you, it was the
O prosecution case, it was thank you for bringing and O
collecting the guns and ammunitions and mobile phones and
the phrase “that is how life is” indicated a willingness to
P act out the plan to kill and it was a relief that Chak had P
botched up the plan so that those males did not actually
have to kill.
Q Q
That was essentially the evidence against the 1st defendant
R which was at Kwai Chung Park in support of the two charges, R
that is everything that happened there at Kwai Chung Park.
As I mentioned, the 1st defendant was found not guilty.
S S
I have mentioned these facts to show that a killing was to
be carried out with the guns as they were loaded and there
T T
were two silencers. That was the intention and the
agreement. It transpired that only one silencer fitted the
U pistols after examination by the firearms expert. The place U
CRT26/10.3.2022/JC 5 HCCC 331/2020(1)/Sentence A2
V V
A of the killing was to be the abandoned school in Tai Wo Hau A
called Kwai Chung Primary School. These chemicals were
there probably for the burning of and hiding or covering up
B any evidence of a killing that would have taken place or may B
have taken place.
C C
After Chak had received the bag while she was on the bus on
the way home from Kwai Chung Park, D2 said to her in a text,
D “If next time again, you are so careless like this, next D
time you have to go kill Hobbit yourself.” D2 then
instructed her on a later date to open the recycle bag to
E take out the pistols. She saw that the two silencers were E
there and the magazines were inserted inside the guns.
F F
D2 instructed her to take out the magazines, assemble and
disassemble the guns and to place all the guns and
G ammunition back into the camouflage bag. D2 told her to G
remove the pistol ring from the golden barrel pistol. She
did so and placed it in her beige purse which was later
H found by the police in her house. H
I
She noticed that day in the camouflage bag there were three I
guns. She saw that there was the silver slide pistol inside
the camouflage bag. They were commonly known at the trial
J as the golden and black barrel pistol and the silver slide J
pistol.
K A few days later, D2 instructed her to buy chemicals and K
detergent in Sham Shui Po, giving her specifically the
L addresses and names of the shops. These were shops selling L
these chemicals and D2 told her to buy castor oil plant and
glycerine. She bought the chemicals but was unable to find
M castor oil and did not buy enough glycerine. D2 told her M
they were for blowing up Hobbit. She asked D2 how to blow
him up and D2 said to blow him up by sending them through
N courier. According to Chak, her understanding was that D2 N
wanted to kill him by way of explosion.
O O
Before 26 December, D2 had given Chak instructions to buy
two outfits and wigs and glasses with no prescription. He
P told her they were to be used when she went up to Hobbit’s P
place at the lobby to do Hobbit in. He told her how to kill
Hobbit using a pistol which was to be placed inside a sling
Q Q
bag. D2 told Chak she should, with one single hand, fire
two shots at the body of Hobbit at top speed, then withdraw
R the hand from the sling bag, grab the gun with both of her R
hands, fire three shots at Hobbit’s head. He told her to
tell D1, by using the code “Japan”, and she should meet D1
S after that nearby. S
After the killing, she was to change her outfit, give them
T T
and the pistol to D1 and go home on a route which was a
detour. D2 told her if she should run into police, she
U should just shoot. U
CRT26/10.3.2022/JC 6 HCCC 331/2020(1)/Sentence A2
V V
A A
D2 told her that he wanted Hobbit to be done only after
1 January 2019 as if they used the guns before that date,
B then their entire team would be apprehended. He told her if B
she was successful, he and Samuel would buy her a glock
pistol. If she was arrested or died, she or her family
C C
member would be compensated.
D On 26 December, as instructed by D2, Chak took the golden D
barrel gun which was fully loaded, to meet D2 and together
they went to a derelict school called Lin Hoi School in Tai
E Po. D2 tried to fire the gun but it could not be fired. He E
examined the gun and told her the reason why it failed to
shoot was because the firing pin had broken off.
F F
On 28 December, D2 went to Chak’s house again. He cut open
G the cable ties on the rifle bag and checked the contents of G
the camouflage bag. With gloves on, D2 took out a
sand-coloured rifle from the black rifle bag. Chak asked
H D2, “Is the gun yours?”, D2 said “yes”. Then D2 said, H
“Actually, it is okay for you to touch the guns with your
I
hands because this gun would not be found by others.” She I
held the rifle in her hand and then she returned it to him.
J D2 then arranged for Samuel to go to Chak’s house. As J
instructed by D2, Chak then gave the arms and ammunition
which were kept at her house in the camouflage bag and the
K rifle bag to Samuel at a pagoda near her house. Samuel and K
D2 then left.
L L
On 29 December, as instructed by D2 at about 6 pm, Chak went
to Tai Wo and D2 gave her a sling bag in the corridor
M outside Tai Wo Shopping Mall containing the silver slide M
pistol and some ammunition and a magazine. They parted and
Chak went home. D2 told her to bring the sling bag out the
N next day to test-fire the gun, to try out the gun. N
O On 30 December, the next day, Chak brought this gun to Shing O
Ming Primary School as instructed by D2 to test-fire the
gun. They met each other at Tai Wo. CCTV footage was seen
P of them together there. Chak said it was D2 who fired the P
silver slide pistol at a wooden board.
Q Q
After firing the pistol, D2 took the bullet shell and threw
it away in the rubbish bin at the lobby of Tsui Wo House
R where he resides. There was CCTV footage to show D2 next to R
the bin in the lobby of his residential building shortly
after the firing of the gun and in admission by D2 that he
S had done so. The police found the bullet shell in the S
rubbish bin when they searched it in D2’s presence after the
arrest at about 1 am on 1 January 2019.
T T
It is apparent that the reason why D2 arranged to meet up
U with Chak on 30 December was to test-fire the silver slide U
CRT26/10.3.2022/JC 7 HCCC 331/2020(1)/Sentence A2
V V
A pistol to see if it was functional, to test if it was A
functional so that Chak could use it to kill Hobbit as D2
had instructed her to do.
B B
That afternoon, after the pistol had been test-fired, D2 was
captured on CCTV footage carrying an orange envelope and
C C
later no envelope was carried by D2 but an envelope was
carried by Samuel when they were together at Tai Wo Plaza on
D 30 December 2018. D2’s finger and palm prints were found on D
the envelope which contained a silencer in Samuel’s house in
his bedroom a day later on 31 December 2018. The camouflage
E bag with the arms and ammunition and a gun part with D2’s E
DNA was found inside of it at Samuel’s house.
F F
At about 7.55 am on 31 December 2018, D2 was arrested for
the offence of conspiracy to wound with intent outside
G Terminal 2 of the Hong Kong International Airport. After a G
search by the police of D2’s residence, numerous airguns and
ammunitions were found. They were, however, not illegal.
H H
In the early hours of 1 January, Chak was arrested at her
I
home in Siu Lek Yuen. Found in her home was the sling bag I
containing the silver slide pistol, the magazine containing
18 bullets and a further 31 bullets. The ring-shaped object
J that was a firearm component was found inside her purse. J
On 31 December 2018 and 1 January 2019 in Hung Hom, the
K police raided the residence of Leung Chun-yan Samuel. K
During the raid the police found the golden barrel pistol
L and the black barrel pistol and magazines and more than nine L
boxes each containing 50 light rounds of ammunition.
M On the evidence before the jury therefore, there is an M
agreement to possess three pistols, 500 rounds of ammunition
and a HK416 rifle. This rifle was not and has not been
N found or seized by the police but the three pistols and N
500 rounds of ammunitions were.
O O
I turn now to my discussion. D2 had fallen out with Hobbit.
He wanted him killed. He was instrumental in the agreement
P to kill and to possess arms and ammunition. He had P
instructed Chak to run around and do all his dirty work,
telling her what to do, when and how. Chak complied without
Q Q
question. Chak was blinded by her affection for D2. D2
knew of her adoration for him. He commenced a purely sexual
R relationship with her. He used this to his advantage, to R
manipulate her and influence her.
S He was able to remotely control her through his instructions S
to her through the app Wire. Their communications which
were via Wire were intentional so there would be no record
T T
of the contents of their communication. He had in fact told
her to stop using her student Octopus card and use a tourist
U U
CRT26/10.3.2022/JC 8 HCCC 331/2020(1)/Sentence A2
V V
A Octopus card to which she did. This was obviously to A
prevent any trace or record of her movements.
B D2 had arranged for two others, I note the jury found it was B
not D1 or the prosecution had not proved it was D1, to carry
out the killing on 6 December to take place at the Tai Wo
C C
Hau derelict school. D2 had prepared the pistols, loaded
the magazines and placed them in the bag with two silencers,
D for Chak to hand over to these two persons. D
The operation failed as Chak had botched it up by not giving
E the male another phone. This other phone was to be used to E
call Hobbit and play him the Google message to meet at Kwai
Chung Government derelict school in Tai Wo Hau.
F F
Calculating, D2 was not present at Kwai Chung Park. He had
G distanced himself and was lavishing in a cheese fondue G
dinner at Spaghetti House in Sha Tin with his girlfriend
whilst knowing that he had planned a killing to take place.
H Whilst at the same time, he was communicating with Chak over H
Wire to abort the operation, giving her instructions to
I
collect the chemicals and other matters from the derelict I
school and telling her that she had caused the operation to
fail.
J J
D2 had in fact taken her to show her where Kwai Chung Park
was previous to 6 December. Kwai Chung Park was a
K deliberately chosen location by D2 to pass over these K
lethal, dangerous weapons out of the public view, being a
L restricted area there would be few or no persons there. It L
was a strategic location to do the handover.
M As that planned operation to kill Hobbit had failed, on M
6 December, D2 instructed Chak to do the killing when he was
to be away from Hong Kong after 1 January. He knew he was
N to depart on 31 December 2018 to Japan for a holiday with N
his girlfriend. However, he was arrested at the airport
O before his departure. O
D2 had actual possession of these arms and ammunition. He
P had agreed with Chak and others to use them to kill Hobbit. P
They were but a step away from killing Hobbit had it not
been for Chak botching the plan. D2 knew he had no right to
Q Q
be in possession of these arms and ammunition. D2 was
extremely knowledgeable in airguns and ammunition. Even in
R cross-examination, he challenged the firearm expert on his R
knowledge of airguns. He knew that the airguns had to be
below two joules before they were considered not illegal.
S S
D2 had experience in using real guns in the United States of
America when he went to a firing range set up for tourists.
T T
He knew after examining the golden barrel pistol that it was
not functional because of the firing pin.
U U
CRT26/10.3.2022/JC 9 HCCC 331/2020(1)/Sentence A2
V V
A The three pistols and ammunition, not all 500, were intended A
to be used to kill Hobbit. D2 had gone with Chak to
test-fire the gun found in her house, that is the silver
B slide pistol, so that Chak could use it after D2 had gone to B
kill Hobbit.
C C
No firearms or ammunition were found in D2’s house after his
arrest. He was clever and astute enough to store or keep
D them with others and elsewhere, either with Chak or Samuel. D
He had told Chak that should he be arrested, they would not
be found in his possession. Until today, the HK416 rifle
E has not been found by the police. One must assume that this E
dangerous weapon is still somewhere in the community of
which perhaps only D2 know.
F F
I consider the facts and the circumstances in this case to
G be extremely grave. D2 is a bright young man. He is a man G
of clear record. He is now aged 32. He is a graduate from
City University of Hong Kong in 2014. He carefully planned
H and schemed this agreement to kill Hobbit and agreement to H
possess arms and ammunition. He effectively used or
I
attempted to use two males to be the assassins. I
As regards Count 2, the conspiracy was to possess the three
J pistols, 500 rounds of ammunition, HK416 rifle and two J
silencers. As stated by the firearms expert in the trial, a
silencer’s functional characteristic is to reduce the sound
K when the bullet is discharged from a gun, that is to work K
against the muzzle blast to make it quiet.
L L
I have set out the laws regarding the possession of arms and
ammunition in the sentencing of Chak yesterday in
M HCCC 243/2020. I shall not repeat it again here. Suffice M
it to say, the factors to take into account for possession
of arms and ammunition and the usual starting point after
N trial under section 13 of the Firearms and Ammunitions N
Ordinance, Chapter 238, is one of 12 years’ imprisonment
O after trial as referred to by the Court of Appeal in O
Tsiang On Yan [2019] 5 HKLRD 100 where the court there,
Zervos JA, considered many of the authorities prior to that
P case for possession under section 13 and the appropriate P
starting point for this offence and the facts which may
warrant a departure from the starting point.
Q Q
D2, you are charged with the conspiracy under section 13. A
R maximum penalty of 14 years’ imprisonment is imposed for R
this offence. While for possession of arms and ammunition
that are used or intended to be used to endanger life or to
S commit a crime, a maximum penalty of life imprisonment is S
the maximum.
T T
Zervos JA also referred to section 16, 17, and 18 of the
ordinance. He went on to observe for the more serious
U offences where a person has in his possession arms or U
CRT26/10.3.2022/JC 10 HCCC 331/2020(1)/Sentence A2
V V
A ammunition that is used or intended to be used to endanger A
life or for some other criminal purpose, the penalty is the
maximum known to law of life imprisonment.
B B
In Tsiang, the case of Chan Chi Fun was referred to which is
a case which stated the appropriate sentence and determining
C C
the appropriate sentence, the mitigating and aggravating
factors. The court there said one should take into account:
D D
“(1) the types of firearm and ammunition involved;
E (2) whether the defendant physically carried the E
firearm and ammunition;
F F
(3) whether the firearm is loaded;
G (4) whether the firearm has been used; G
(5) whether the defendant intends to use the firearm
H for illegal purpose; H
I
(6) whether the firearm and ammunition are properly I
stored or whether they are accessible by others;
J (7) whether the defendant has a clear record.” J
And still referring to Chan at paragraph 47, the court said:
K K
“The court went on to emphasise that the level of
L sentence was dependent on the sentencing court’s view L
of the potential risk posed by the arms and ammunition
in the defendant’s possession, taking into account the
M circumstances of the case, the defendant’s background, M
and the possibility of the arms and ammunition in
question.”
N N
I note that D2 was charged with a conspiracy to possess arms
O and ammunition without a licence contrary to section 13. O
The maximum sentence of 14 years’ imprisonment is set down.
P The potential risk posed by the arms and ammunition in this P
agreement by the defendant and Chak and others, that risk
was to kill others. One of the firearms had been test-fired
Q Q
for the purpose of intending to use that to kill others. It
was used on 30 December 2018.
R R
Another gun, the golden barrel gun, was tested but was
non-functional. D2 was able to examine the gun and tell
S Chak the reason why it was so because of the firing pin. An S
expert had confirmed that.
T T
The firearms were loaded when it was returned to Chak on
6 December. D2 gave these ammunition to Chak to store in
U U
CRT26/10.3.2022/JC 11 HCCC 331/2020(1)/Sentence A2
V V
A her house. The storage of them, they were not secured or A
locked. These are all aggravating factors.
B For Count 2, I take a starting point of 12 years’ B
imprisonment and taking into account the aggravating
factors, I enhance the sentence by 2 years to the maximum
C C
14 years’ imprisonment. I understand that is the maximum
sentence but I cannot envisage a graver situation. Given
D the amount of ammunition, the arms, and the intention to be D
used of these arms.
E Turning now to the conspiracy to murder, Count 1. Section 5 E
of the Offences against the Person Ordinance, Chapter 221,
of conspiring or soliciting to commit murder, the sentence
F F
is also one of life imprisonment but it is not a mandatory
one. As it is for the offence of murder under section 2 of
G the same ordinance where a person convicted of murder shall G
be sentenced to imprisonment for life. In this case, the
defendant is liable to be sentenced to life imprisonment.
H H
The first plan to kill was aborted as a result of Chak’s
I
failure. Two guns, two silencers, magazines loaded with I
bullets were given to a male in the presence of another
male. The location was at a derelict school in Tai Wo Hau
J which he had instructed Chak to set up, to cover up any J
killing that might have taken place there and to be covered
up with chemicals.
K K
D2 had given Chak elaborate instructions to buy outfits and
L wigs to disguise her identity and he taught her how to fire L
the shots at Hobbit. Chak was an ignorant and young girl
who was manipulated by D2. She foolishly agreed to follow
M D2’s instructions to kill Hobbit. It was fortunate that she M
was arrested. It was fortunate that the police were able to
impede and hinder their agreement to carry out the killing.
N The police had arrested Chak, D2, Samuel and D1 on N
31 December 2018 and January 2019. The police are to be
O commended for their work as they were able to foil this O
heinous crime of murder that was to take place and they were
able to seize many arms and ammunition.
P P
The prosecution, Mr Cheung and Mr Ching, and Mr Boyton for
D2 have submitted a joint bundle of authorities. There is
Q Q
the case of HKSAR v Cheung Ning Yau, CACC 133/2000, where
the defendant was sentenced to 18 years for conspiracy to
R murder following a jury trial. Also HKSAR v Cheng Wui Yiu, R
CACC 532/2004, where the defendant was sentenced to life
imprisonment and the judge ordered that he shall serve,
S pursuant to section 67B of Criminal Procedure Ordinance, S
Chapter 221, a minimum of 22 years. In that case, the
accomplice was sentenced to 27 years’ imprisonment after
T T
trial of conspiracy to murder. That is at paragraph 20 of
the judgment.
U U
CRT26/10.3.2022/JC 12 HCCC 331/2020(1)/Sentence A2
V V
A Each case depends on its own facts. These are not A
guidelines. I bear in mind that life imprisonment is not
mandatory.
B B
The 2nd defendant played a major role in this agreement. He
was the planner, and he was instrumental in this conspiracy
C C
to murder. He had used what would appear, at least from the
6 December operation, two males far younger than him. Chak
D was 10 years his junior. He preyed on Chak’s naivety, D
adoration of him, young age and immaturity. They were his
foot soldiers while he was the commander. I consider him to
E be a major threat to society. I consider that only a E
lengthy sentence should be imposed.
F F
I would like to state that during the defendant’s evidence,
without any prompting, he spoke of his association with
G Edward Leung Tin-kei and Andy Chan Ho-tin and the fact that G
he was supplying equipment to the protesters during the
2019 social unrest in Hong Kong. It was apparent that he
H was implying what his political stance was. I have H
completely ignored and disregarded these matters in
I
considering the sentence I am going to impose. They have no I
bearing whatsoever on the sentence that I am about to pass.
J Taking into account all of the factors, I am of the view J
that a sentence of 27 years’ imprisonment is appropriate. I
order that this shall be served concurrent to Charge 2. D2,
K you shall therefore be sentenced to serve a total of K
27 years’ imprisonment.
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT26/10.3.2022/JC 13 HCCC 331/2020(1)/Sentence A2
V V
HCCC331/2020 HKSAR v. SO HON TO, STEPHEN - LawHero
A HCCC 331/2020 A
[2022] HKCFI 1503
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 331 OF 2020
D ----------------- D
HKSAR
E E
v
F F
So Hon-to, Stephen (A2)
G ----------------- G
Before: Hon D’Almada Remedios J
H Date: 10 March 2022 at 9.49 am H
Present: Mr Adonis Cheung, on fiat, and Mr Jerome Ching, PP of
I
the Department of Justice, for HKSAR I
Mr David Boyton leading Ms Athena Cheung, instructed by
Tung & Associates, assigned by DLA, for the 2nd accused
J Offence: (1) Conspiracy to murder (串謀謀殺) J
(2) Conspiracy to possess arms and ammunition without
license (串謀無牌管有槍械或彈藥)
K K
---------------------------------
L L
Transcript of the Audio Recording
of the Sentence in the above Case
M --------------------------------- M
N COURT: The 2nd defendant was found guilty after trial by a jury N
on a majority verdict of six to one on Count 1, conspiracy
to murder, and a unanimous verdict on Count 2, conspiracy to
O possess arms and ammunition. O
The 1st count, the conspiracy to murder, is contrary to
P section 5 of the Offences against the Person Ordinance, P
Chapter 212. The particulars of offence were that Su David,
Q that was the 1st defendant, and So Hon-to Stephen, between a Q
day unknown in November 2018 and 31 December 2018, both
dates inclusive, in Hong Kong, conspired together with Chak
R Wing-sze and other person or persons unknown, to murder a R
person known as Lam Ching-fung or otherwise known as Hobbit.
S S
In respect of the 2nd count, it was a conspiracy to possess
arms and ammunitions without a licence, contrary to section
T 13(1) and (2) of the Firearms and Ammunition Ordinance, T
Chapter 238 and sections 159A and 159C of the Crimes
Ordinance, Chapter 200. The particulars of offence are that
U Su David and So Hon-to Stephen, between a day unknown in or U
CRT26/10.3.2022/JC 1 HCCC 331/2020(1)/Sentence A2
V V
A about March 2018 and 1 January 2019, both dates inclusive, A
in Hong Kong, conspired with Chak Wing-sze and other person
or persons unknown, to possess arms and ammunition without a
B licence, namely, guns, silencers and ammunition. B
The trial for this case lasted for 25 days involving both
C C
defendants who were jointly charged on both counts. The
jury found the 1st defendant not guilty on both counts. The
D evidence the prosecution relied on in respect of the D
conspiracy to murder in Count 1 against the 1st and
2nd defendants came solely from Ms Chak Wing-sze who is an
E accomplice and a witness under an immunity. For E
Count 2 against the 2nd defendant, the prosecution relied on
Ms Chak’s evidence and the admissions in the video-recorded
F F
interviews made by the 2nd defendant.
G To have a better understanding of the case, I will set out G
the facts in some detail. D2 was born on 19 May 1990 and
Chak Wing-sze, who I will call Chak, was born in
H October 2000. D2 was therefore about 10 years older than H
Chak.
I I
In 2017 to 2018, D2 was 27 and 28 years old whilst Chak was
17 to 18 years old. At the end of 2016, Chak visited D2’s
J Facebook page called “I am 五毛 Ng Mo, I am 鬼” Gwai. Chak J
said the content of D2’s Facebook page was that Hong Kong
people should buy equipment to protect themselves during the
K K
protests. D2 told people to buy his equipment. She wanted
to buy his equipment. She was told that she would receive a
L 25 per cent discount if she showed proof that she had bought L
a book written by 五毛鬼 Ng Mo Gwai called “Escape from Hong
Kong Garden”. She bought the book. She was then able to
M purchase some equipment from D2 at a discount. M
N So towards the end of 2016, she met D2 for the first time N
face to face at Tai Wo Station when she bought equipment
from him.
O O
In 2017, Chak went out several times with D2 to have a meal.
At that time, she treated him as a netizen, not yet as a
P friend. She did not know his name and only knew him by his P
codename 五毛鬼 Ng Mo Gwai. While they were netizens, they
Q communicated by Facebook messenger. Q
By mid-2017, Chak, the 1st defendant, Su David, D2, and a
R person named Samuel Leung Chun-yan played war games about R
three times together at a derelict school in Tai Wo Hau
called Kwai Chung Government School. They also played in
S S
about January 2018. During some of the war games, amongst
others, Samuel joined the 1st and 2nd defendants and Chak.
T At that time, she came to know that D2’s name was Stephen. T
From then on, she referred to him as Stephen.
U U
CRT26/10.3.2022/JC 2 HCCC 331/2020(1)/Sentence A2
V V
A By January 2018, D2 knew Chak had an affection for him and A
had fallen for him. D2 asked and Chak agreed to be his SP,
which was his sexual partner. This was a purely physical
B relationship with no ties such as boyfriend or girlfriend. B
They had sex on a number of occasions thereafter. Their
communications then were made to each other by the use of
C C
the app Telegram.
D On the instructions of D2, Chak and D1 followed Hobbit or D
Lam Ching-fung, that is the victim in Charge 1 in this case,
in the middle of December 2017. At that time, D2 told Chak
E Hobbit was an untrustworthy person and to find out his E
address.
F F
In November 2018, D2 suddenly told Chak to install an app
called Wire, that is to change and use this application for
G communication instead of Telegram. Chak asked D2 why they G
needed to change to Wire. D2 explained he did not want
Hobbit to know about their communication.
H H
D2 told Chak that Hobbit had a coup and had told the police
I
that D2 was a terrorist. D2 said Hobbit had disclosed I
everything about Chak, D2 and D1 to the police. D2 told
Chak that the watchman downstairs of his home said there
J were strangers wandering in his vicinity and D2 was of the J
opinion it was Hobbit’s doing. D2 further said and asked
Chak if he and D1 were arrested, could Chak help by killing
K Hobbit. K
L A small group, that is D2, D1, Chak and Samuel then used L
Wire for communications. All further communications between
D2 and Chak to possess arms and the agreement to kill Hobbit
M was made through Wire. Wire was a secure messaging app M
which would automatically delete messages so there would be
no recording of anything said between them.
N N
At the end of November 2018, D2 instructed Chak to follow
O Hobbit again, this time to see where Hobbit would go to dig O
up something and to look at what he would dig up. Several
days later, D2 gave Chak arms and ammunitions on two
P separate occasions. D2 told her that she would have to keep P
them for the time being because Hobbit was acquainted with
D2 and D1 and Hobbit did not know Chak. D2 said to her that
Q Q
should they, that is should he and D1 be arrested later,
these things would not be found and therefore should be kept
R with her for the time being. R
The giving of the arms and ammunitions took place at Tsui Wo
S House, that is the building where D2 lived. On the first S
occasion, D2 gave Chak a camouflage bag containing arms and
ammunition and on the second occasion, he gave her a rifle
T T
bag containing a rifle. The zippers on the two bags were
fastened with zip ties. Chak took them to her home in Siu
U Lek Yuen and kept them in her bedroom. U
CRT26/10.3.2022/JC 3 HCCC 331/2020(1)/Sentence A2
V V
A A
D2 told Chak when he gave them to her, he would go down
first and then she was to walk down the stairs from his
B residential building in Tsui Wo House, that is, there was to B
be no use of the lift. D2 gave her $100 to take a taxi home
on each occasion.
C C
In December 2018 before 6 December, D2 sent Chak a message
D to be played to Hobbit on Google translate. Chak tried to D
make the phone call to Hobbit at a phone booth in Fo Tan but
he did not answer. She said she used washed coins.
E E
On D2’s instructions, Chak then collected a Motorola mobile
phone from Alan at Tai Wo. On D2’s instructions, Chak then
F F
used the Motorola phone to call Hobbit on a number provided
by D2 and made use of her mobile phone to play a paragraph
G from Google translate which D2 had already sent to her. The G
message was to Lam Ching-fung in English and as far as Chak
could remember it said, “Lam Ching-fung, I’m not going to
H say anything further to you over the phone as I previously H
have. Please, by a day in December before 10 pm, go to Tai
I
Wo Hau to see me. I will reveal to the police about the I
smuggling of firearms.”
J On a day unknown before 6 December, Chak came to know that J
the camouflage bag D2 had given her contained three pistols
and ammunition and silencers. That is because D2 went to
K her house to clean, dismantle and assemble the arms and K
ammunition.
L L
Whilst D2 was at her house, he cut the cable ties of the
camouflage bag and took out a golden and black barrel
M pistol, two magazines, loaded them with bullets and two M
silencers and placed them into a beige recycle bag. The
magazines and the silencers were all separated from the
N pistol. D2 then told Chak to give the beige bag to the N
1st defendant on a Thursday which was the first week in
O December and that was 6 December. O
On 6 December, Chak, as instructed by D2, bought chemicals
P and took two saws and left them at the derelict school at P
Tai Wo Hau. After leaving them there, as instructed by D2,
at about 7 pm, she gave the beige bag containing arms and
Q Q
ammunition, she says, to the 1st defendant and the Motorola
phone. As we know, the 1st defendant however was found not
R guilty. R
As regards the 1st defendant in the trial, the issue was
S mainly one of identification as D1 was saying she mistakenly S
identified him. If she was not mistaken, he did not know
what was in the bag and if he did see what was in the bag,
T T
he did not know they were real arms as opposed to air guns
or toy guns.
U U
CRT26/10.3.2022/JC 4 HCCC 331/2020(1)/Sentence A2
V V
A Chak said on 6 December at Kwai Chung Park, Chak, as A
instructed by D2, handed the beige bag containing the arms
and ammunition to D1, whom of course the jury did not find
B that the prosecution had proved the case. This Kwai Chung B
Park was a restricted area in a quiet location and was dark.
At the time there Chak said D1 was there. There was another
C C
person who looked very similar to D1. They were both
wearing facemasks and caps. Chak said the person who she
D identified as D1 took off his jacket, put it in a rucksack D
and kicked the rucksack in a ditch. Both these persons,
males, gave Chak their mobile phones and the person who she
E identified was D1 told her to go as far away from Tai Wo Hau E
as she possibly could.
F F
It was the prosecution case that the only reason the two
pistols and magazines loaded with bullets and silencers in
G the bag which were handed to that person in that location in G
those circumstances was because these people were in
possession of the arms and ammunition to kill. That person
H who Chak said was D1 said to her, “Did Stephen tell you what H
to do?”, she replied she was to wait at the downstairs of
I
Hobbit’s house as a lookout. I
After Chak and who she said were the two males departed, she
J went to act as lookout at Hobbit’s house. Chak believed the J
operation that evening, that is the handing over the guns
and the saws and chemicals she left at Tai Wo Hau at the
K derelict school was an operation to kill Hobbit. K
L The operation, however, failed as Chak did not give an extra L
phone to that male. She received a text from D2 saying
“abort”. As a result, the operation was aborted and that
M male returned the beige bag to her at Kwai Chung Park. M
She said sorry to that male and that male said, “No need to
N say sorry. That is how life is. We instead have to thank N
you, you go home first.” By saying thank you, it was the
O prosecution case, it was thank you for bringing and O
collecting the guns and ammunitions and mobile phones and
the phrase “that is how life is” indicated a willingness to
P act out the plan to kill and it was a relief that Chak had P
botched up the plan so that those males did not actually
have to kill.
Q Q
That was essentially the evidence against the 1st defendant
R which was at Kwai Chung Park in support of the two charges, R
that is everything that happened there at Kwai Chung Park.
As I mentioned, the 1st defendant was found not guilty.
S S
I have mentioned these facts to show that a killing was to
be carried out with the guns as they were loaded and there
T T
were two silencers. That was the intention and the
agreement. It transpired that only one silencer fitted the
U pistols after examination by the firearms expert. The place U
CRT26/10.3.2022/JC 5 HCCC 331/2020(1)/Sentence A2
V V
A of the killing was to be the abandoned school in Tai Wo Hau A
called Kwai Chung Primary School. These chemicals were
there probably for the burning of and hiding or covering up
B any evidence of a killing that would have taken place or may B
have taken place.
C C
After Chak had received the bag while she was on the bus on
the way home from Kwai Chung Park, D2 said to her in a text,
D “If next time again, you are so careless like this, next D
time you have to go kill Hobbit yourself.” D2 then
instructed her on a later date to open the recycle bag to
E take out the pistols. She saw that the two silencers were E
there and the magazines were inserted inside the guns.
F F
D2 instructed her to take out the magazines, assemble and
disassemble the guns and to place all the guns and
G ammunition back into the camouflage bag. D2 told her to G
remove the pistol ring from the golden barrel pistol. She
did so and placed it in her beige purse which was later
H found by the police in her house. H
I
She noticed that day in the camouflage bag there were three I
guns. She saw that there was the silver slide pistol inside
the camouflage bag. They were commonly known at the trial
J as the golden and black barrel pistol and the silver slide J
pistol.
K A few days later, D2 instructed her to buy chemicals and K
detergent in Sham Shui Po, giving her specifically the
L addresses and names of the shops. These were shops selling L
these chemicals and D2 told her to buy castor oil plant and
glycerine. She bought the chemicals but was unable to find
M castor oil and did not buy enough glycerine. D2 told her M
they were for blowing up Hobbit. She asked D2 how to blow
him up and D2 said to blow him up by sending them through
N courier. According to Chak, her understanding was that D2 N
wanted to kill him by way of explosion.
O O
Before 26 December, D2 had given Chak instructions to buy
two outfits and wigs and glasses with no prescription. He
P told her they were to be used when she went up to Hobbit’s P
place at the lobby to do Hobbit in. He told her how to kill
Hobbit using a pistol which was to be placed inside a sling
Q Q
bag. D2 told Chak she should, with one single hand, fire
two shots at the body of Hobbit at top speed, then withdraw
R the hand from the sling bag, grab the gun with both of her R
hands, fire three shots at Hobbit’s head. He told her to
tell D1, by using the code “Japan”, and she should meet D1
S after that nearby. S
After the killing, she was to change her outfit, give them
T T
and the pistol to D1 and go home on a route which was a
detour. D2 told her if she should run into police, she
U should just shoot. U
CRT26/10.3.2022/JC 6 HCCC 331/2020(1)/Sentence A2
V V
A A
D2 told her that he wanted Hobbit to be done only after
1 January 2019 as if they used the guns before that date,
B then their entire team would be apprehended. He told her if B
she was successful, he and Samuel would buy her a glock
pistol. If she was arrested or died, she or her family
C C
member would be compensated.
D On 26 December, as instructed by D2, Chak took the golden D
barrel gun which was fully loaded, to meet D2 and together
they went to a derelict school called Lin Hoi School in Tai
E Po. D2 tried to fire the gun but it could not be fired. He E
examined the gun and told her the reason why it failed to
shoot was because the firing pin had broken off.
F F
On 28 December, D2 went to Chak’s house again. He cut open
G the cable ties on the rifle bag and checked the contents of G
the camouflage bag. With gloves on, D2 took out a
sand-coloured rifle from the black rifle bag. Chak asked
H D2, “Is the gun yours?”, D2 said “yes”. Then D2 said, H
“Actually, it is okay for you to touch the guns with your
I
hands because this gun would not be found by others.” She I
held the rifle in her hand and then she returned it to him.
J D2 then arranged for Samuel to go to Chak’s house. As J
instructed by D2, Chak then gave the arms and ammunition
which were kept at her house in the camouflage bag and the
K rifle bag to Samuel at a pagoda near her house. Samuel and K
D2 then left.
L L
On 29 December, as instructed by D2 at about 6 pm, Chak went
to Tai Wo and D2 gave her a sling bag in the corridor
M outside Tai Wo Shopping Mall containing the silver slide M
pistol and some ammunition and a magazine. They parted and
Chak went home. D2 told her to bring the sling bag out the
N next day to test-fire the gun, to try out the gun. N
O On 30 December, the next day, Chak brought this gun to Shing O
Ming Primary School as instructed by D2 to test-fire the
gun. They met each other at Tai Wo. CCTV footage was seen
P of them together there. Chak said it was D2 who fired the P
silver slide pistol at a wooden board.
Q Q
After firing the pistol, D2 took the bullet shell and threw
it away in the rubbish bin at the lobby of Tsui Wo House
R where he resides. There was CCTV footage to show D2 next to R
the bin in the lobby of his residential building shortly
after the firing of the gun and in admission by D2 that he
S had done so. The police found the bullet shell in the S
rubbish bin when they searched it in D2’s presence after the
arrest at about 1 am on 1 January 2019.
T T
It is apparent that the reason why D2 arranged to meet up
U with Chak on 30 December was to test-fire the silver slide U
CRT26/10.3.2022/JC 7 HCCC 331/2020(1)/Sentence A2
V V
A pistol to see if it was functional, to test if it was A
functional so that Chak could use it to kill Hobbit as D2
had instructed her to do.
B B
That afternoon, after the pistol had been test-fired, D2 was
captured on CCTV footage carrying an orange envelope and
C C
later no envelope was carried by D2 but an envelope was
carried by Samuel when they were together at Tai Wo Plaza on
D 30 December 2018. D2’s finger and palm prints were found on D
the envelope which contained a silencer in Samuel’s house in
his bedroom a day later on 31 December 2018. The camouflage
E bag with the arms and ammunition and a gun part with D2’s E
DNA was found inside of it at Samuel’s house.
F F
At about 7.55 am on 31 December 2018, D2 was arrested for
the offence of conspiracy to wound with intent outside
G Terminal 2 of the Hong Kong International Airport. After a G
search by the police of D2’s residence, numerous airguns and
ammunitions were found. They were, however, not illegal.
H H
In the early hours of 1 January, Chak was arrested at her
I
home in Siu Lek Yuen. Found in her home was the sling bag I
containing the silver slide pistol, the magazine containing
18 bullets and a further 31 bullets. The ring-shaped object
J that was a firearm component was found inside her purse. J
On 31 December 2018 and 1 January 2019 in Hung Hom, the
K police raided the residence of Leung Chun-yan Samuel. K
During the raid the police found the golden barrel pistol
L and the black barrel pistol and magazines and more than nine L
boxes each containing 50 light rounds of ammunition.
M On the evidence before the jury therefore, there is an M
agreement to possess three pistols, 500 rounds of ammunition
and a HK416 rifle. This rifle was not and has not been
N found or seized by the police but the three pistols and N
500 rounds of ammunitions were.
O O
I turn now to my discussion. D2 had fallen out with Hobbit.
He wanted him killed. He was instrumental in the agreement
P to kill and to possess arms and ammunition. He had P
instructed Chak to run around and do all his dirty work,
telling her what to do, when and how. Chak complied without
Q Q
question. Chak was blinded by her affection for D2. D2
knew of her adoration for him. He commenced a purely sexual
R relationship with her. He used this to his advantage, to R
manipulate her and influence her.
S He was able to remotely control her through his instructions S
to her through the app Wire. Their communications which
were via Wire were intentional so there would be no record
T T
of the contents of their communication. He had in fact told
her to stop using her student Octopus card and use a tourist
U U
CRT26/10.3.2022/JC 8 HCCC 331/2020(1)/Sentence A2
V V
A Octopus card to which she did. This was obviously to A
prevent any trace or record of her movements.
B D2 had arranged for two others, I note the jury found it was B
not D1 or the prosecution had not proved it was D1, to carry
out the killing on 6 December to take place at the Tai Wo
C C
Hau derelict school. D2 had prepared the pistols, loaded
the magazines and placed them in the bag with two silencers,
D for Chak to hand over to these two persons. D
The operation failed as Chak had botched it up by not giving
E the male another phone. This other phone was to be used to E
call Hobbit and play him the Google message to meet at Kwai
Chung Government derelict school in Tai Wo Hau.
F F
Calculating, D2 was not present at Kwai Chung Park. He had
G distanced himself and was lavishing in a cheese fondue G
dinner at Spaghetti House in Sha Tin with his girlfriend
whilst knowing that he had planned a killing to take place.
H Whilst at the same time, he was communicating with Chak over H
Wire to abort the operation, giving her instructions to
I
collect the chemicals and other matters from the derelict I
school and telling her that she had caused the operation to
fail.
J J
D2 had in fact taken her to show her where Kwai Chung Park
was previous to 6 December. Kwai Chung Park was a
K deliberately chosen location by D2 to pass over these K
lethal, dangerous weapons out of the public view, being a
L restricted area there would be few or no persons there. It L
was a strategic location to do the handover.
M As that planned operation to kill Hobbit had failed, on M
6 December, D2 instructed Chak to do the killing when he was
to be away from Hong Kong after 1 January. He knew he was
N to depart on 31 December 2018 to Japan for a holiday with N
his girlfriend. However, he was arrested at the airport
O before his departure. O
D2 had actual possession of these arms and ammunition. He
P had agreed with Chak and others to use them to kill Hobbit. P
They were but a step away from killing Hobbit had it not
been for Chak botching the plan. D2 knew he had no right to
Q Q
be in possession of these arms and ammunition. D2 was
extremely knowledgeable in airguns and ammunition. Even in
R cross-examination, he challenged the firearm expert on his R
knowledge of airguns. He knew that the airguns had to be
below two joules before they were considered not illegal.
S S
D2 had experience in using real guns in the United States of
America when he went to a firing range set up for tourists.
T T
He knew after examining the golden barrel pistol that it was
not functional because of the firing pin.
U U
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A The three pistols and ammunition, not all 500, were intended A
to be used to kill Hobbit. D2 had gone with Chak to
test-fire the gun found in her house, that is the silver
B slide pistol, so that Chak could use it after D2 had gone to B
kill Hobbit.
C C
No firearms or ammunition were found in D2’s house after his
arrest. He was clever and astute enough to store or keep
D them with others and elsewhere, either with Chak or Samuel. D
He had told Chak that should he be arrested, they would not
be found in his possession. Until today, the HK416 rifle
E has not been found by the police. One must assume that this E
dangerous weapon is still somewhere in the community of
which perhaps only D2 know.
F F
I consider the facts and the circumstances in this case to
G be extremely grave. D2 is a bright young man. He is a man G
of clear record. He is now aged 32. He is a graduate from
City University of Hong Kong in 2014. He carefully planned
H and schemed this agreement to kill Hobbit and agreement to H
possess arms and ammunition. He effectively used or
I
attempted to use two males to be the assassins. I
As regards Count 2, the conspiracy was to possess the three
J pistols, 500 rounds of ammunition, HK416 rifle and two J
silencers. As stated by the firearms expert in the trial, a
silencer’s functional characteristic is to reduce the sound
K when the bullet is discharged from a gun, that is to work K
against the muzzle blast to make it quiet.
L L
I have set out the laws regarding the possession of arms and
ammunition in the sentencing of Chak yesterday in
M HCCC 243/2020. I shall not repeat it again here. Suffice M
it to say, the factors to take into account for possession
of arms and ammunition and the usual starting point after
N trial under section 13 of the Firearms and Ammunitions N
Ordinance, Chapter 238, is one of 12 years’ imprisonment
O after trial as referred to by the Court of Appeal in O
Tsiang On Yan [2019] 5 HKLRD 100 where the court there,
Zervos JA, considered many of the authorities prior to that
P case for possession under section 13 and the appropriate P
starting point for this offence and the facts which may
warrant a departure from the starting point.
Q Q
D2, you are charged with the conspiracy under section 13. A
R maximum penalty of 14 years’ imprisonment is imposed for R
this offence. While for possession of arms and ammunition
that are used or intended to be used to endanger life or to
S commit a crime, a maximum penalty of life imprisonment is S
the maximum.
T T
Zervos JA also referred to section 16, 17, and 18 of the
ordinance. He went on to observe for the more serious
U offences where a person has in his possession arms or U
CRT26/10.3.2022/JC 10 HCCC 331/2020(1)/Sentence A2
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A ammunition that is used or intended to be used to endanger A
life or for some other criminal purpose, the penalty is the
maximum known to law of life imprisonment.
B B
In Tsiang, the case of Chan Chi Fun was referred to which is
a case which stated the appropriate sentence and determining
C C
the appropriate sentence, the mitigating and aggravating
factors. The court there said one should take into account:
D D
“(1) the types of firearm and ammunition involved;
E (2) whether the defendant physically carried the E
firearm and ammunition;
F F
(3) whether the firearm is loaded;
G (4) whether the firearm has been used; G
(5) whether the defendant intends to use the firearm
H for illegal purpose; H
I
(6) whether the firearm and ammunition are properly I
stored or whether they are accessible by others;
J (7) whether the defendant has a clear record.” J
And still referring to Chan at paragraph 47, the court said:
K K
“The court went on to emphasise that the level of
L sentence was dependent on the sentencing court’s view L
of the potential risk posed by the arms and ammunition
in the defendant’s possession, taking into account the
M circumstances of the case, the defendant’s background, M
and the possibility of the arms and ammunition in
question.”
N N
I note that D2 was charged with a conspiracy to possess arms
O and ammunition without a licence contrary to section 13. O
The maximum sentence of 14 years’ imprisonment is set down.
P The potential risk posed by the arms and ammunition in this P
agreement by the defendant and Chak and others, that risk
was to kill others. One of the firearms had been test-fired
Q Q
for the purpose of intending to use that to kill others. It
was used on 30 December 2018.
R R
Another gun, the golden barrel gun, was tested but was
non-functional. D2 was able to examine the gun and tell
S Chak the reason why it was so because of the firing pin. An S
expert had confirmed that.
T T
The firearms were loaded when it was returned to Chak on
6 December. D2 gave these ammunition to Chak to store in
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A her house. The storage of them, they were not secured or A
locked. These are all aggravating factors.
B For Count 2, I take a starting point of 12 years’ B
imprisonment and taking into account the aggravating
factors, I enhance the sentence by 2 years to the maximum
C C
14 years’ imprisonment. I understand that is the maximum
sentence but I cannot envisage a graver situation. Given
D the amount of ammunition, the arms, and the intention to be D
used of these arms.
E Turning now to the conspiracy to murder, Count 1. Section 5 E
of the Offences against the Person Ordinance, Chapter 221,
of conspiring or soliciting to commit murder, the sentence
F F
is also one of life imprisonment but it is not a mandatory
one. As it is for the offence of murder under section 2 of
G the same ordinance where a person convicted of murder shall G
be sentenced to imprisonment for life. In this case, the
defendant is liable to be sentenced to life imprisonment.
H H
The first plan to kill was aborted as a result of Chak’s
I
failure. Two guns, two silencers, magazines loaded with I
bullets were given to a male in the presence of another
male. The location was at a derelict school in Tai Wo Hau
J which he had instructed Chak to set up, to cover up any J
killing that might have taken place there and to be covered
up with chemicals.
K K
D2 had given Chak elaborate instructions to buy outfits and
L wigs to disguise her identity and he taught her how to fire L
the shots at Hobbit. Chak was an ignorant and young girl
who was manipulated by D2. She foolishly agreed to follow
M D2’s instructions to kill Hobbit. It was fortunate that she M
was arrested. It was fortunate that the police were able to
impede and hinder their agreement to carry out the killing.
N The police had arrested Chak, D2, Samuel and D1 on N
31 December 2018 and January 2019. The police are to be
O commended for their work as they were able to foil this O
heinous crime of murder that was to take place and they were
able to seize many arms and ammunition.
P P
The prosecution, Mr Cheung and Mr Ching, and Mr Boyton for
D2 have submitted a joint bundle of authorities. There is
Q Q
the case of HKSAR v Cheung Ning Yau, CACC 133/2000, where
the defendant was sentenced to 18 years for conspiracy to
R murder following a jury trial. Also HKSAR v Cheng Wui Yiu, R
CACC 532/2004, where the defendant was sentenced to life
imprisonment and the judge ordered that he shall serve,
S pursuant to section 67B of Criminal Procedure Ordinance, S
Chapter 221, a minimum of 22 years. In that case, the
accomplice was sentenced to 27 years’ imprisonment after
T T
trial of conspiracy to murder. That is at paragraph 20 of
the judgment.
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A Each case depends on its own facts. These are not A
guidelines. I bear in mind that life imprisonment is not
mandatory.
B B
The 2nd defendant played a major role in this agreement. He
was the planner, and he was instrumental in this conspiracy
C C
to murder. He had used what would appear, at least from the
6 December operation, two males far younger than him. Chak
D was 10 years his junior. He preyed on Chak’s naivety, D
adoration of him, young age and immaturity. They were his
foot soldiers while he was the commander. I consider him to
E be a major threat to society. I consider that only a E
lengthy sentence should be imposed.
F F
I would like to state that during the defendant’s evidence,
without any prompting, he spoke of his association with
G Edward Leung Tin-kei and Andy Chan Ho-tin and the fact that G
he was supplying equipment to the protesters during the
2019 social unrest in Hong Kong. It was apparent that he
H was implying what his political stance was. I have H
completely ignored and disregarded these matters in
I
considering the sentence I am going to impose. They have no I
bearing whatsoever on the sentence that I am about to pass.
J Taking into account all of the factors, I am of the view J
that a sentence of 27 years’ imprisonment is appropriate. I
order that this shall be served concurrent to Charge 2. D2,
K you shall therefore be sentenced to serve a total of K
27 years’ imprisonment.
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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