Two Hongkongers accused of producing bombs had their charges withdrawn at their first court appearance on Thursday, after prosecutors admitted they had not obtained the prior consent from the secretary for justice required for a “serious crime”.
But the accused pair, part-time waiter Tung Sheung-lam, 23, and student Ting Chin-fung, 17, were each charged with one count of making or possessing explosive nonetheless, after the prosecution applied to charge them in a separate case.
Senior public prosecutor Karen Yuen Siu-yin told West Kowloon Court on Thursday the problem rose from a “procedural error”, which led to a delay in the proceedings by more than 2½ hours.
Under section 55(3) of the Crimes Ordinance, no prosecution for the offence in this case can be instituted without the written consent of the secretary for justice.
The law also requires the secretary for justice to give his or her consent before certain kinds of prosecution can be undertaken – as a safeguard to ensure the exercise of an appropriate level of scrutiny in serious crimes.
A lawyer familiar with prosecution procedures said it was a usual practice for police to seek such consent in this type of cases, before delivering files to prosecutors in the Department of Justice.
Yuen said outside the court that the justice department came to know of the error on Thursday morning, and the prosecution could obtain a written consent from the secretary only after 3pm.
Tung and Ting were charged with knowingly having in their possession or under their control certain explosive substances at a flat in Tai Kok Tsui on Tuesday. They were arrested that night after police officers spotted them near the flat.
In the initial allegation, the pair were accused of possessing explosive powders and two modified phone devices attached with a circuit board – as part of an improvised explosive device.
But the prosecution opted to accuse the two in the new allegation of handling potassium nitrate and sulphur, commonly used to produce gunpowder.
Yuen explained outside the court they had made an amendment to the charges after her colleagues who were familiar with handling these types of cases reviewed the prosecution files right before the case was brought to court.
At the hearing before Principal Magistrate Peter Law Tak-chuen, Yuen asked no plea be taken from the two defendants and applied to adjourn the case to December 12 for further police inquiry, both of which Law subsequently ordered.
Law refused bail to the two and ordered them to be remanded in custody.
Separately, construction worker Poon Yung-wai, 36, faced one count of incitement to unlawful assembly at West Kowloon Court on Thursday.
Court documents said he allegedly incited others to assemble outside San Uk Ling Holding Centre, where some arrested anti-government protesters said they were physically abused by police. Poon was alleged to have incited others to “conduct themselves in a disorderly, intimidating, insulting or provocative manner” and commit a breach of the peace.
Law, who also handled Poon’s case, adjourned it to November 28 for further police inquiry, and released him on a HK$1,000 (US$127) cash bail. Law also imposed a travel ban on him and ordered him not to spread any information that may incite violence.
Over at Tuen Mun Court, janitor Yeung Wah-mong, 62, pleaded guilty to one count of possession of offensive weapon, when he pointed a box cutter towards students at a secondary school who formed a human chain in support of the anti-government protests on September 9.
He will receive his sentence on November 4 upon receipt of a community service order report.
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