HKSAR v. LAI KEUNG, WILLIAM

DCCC656/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 656 OF 2012

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  Defendant, you have pleaded guilty to six charges before this court. Five charges relate to criminal damage, contrary to section 60(1) of the Crimes Ordinance. The 6th charge was arson being reckless as to whether life would be endangered, contrary to sections 60(2) and (3) and section 63(1) of the Crimes Ordinance. All these offences were committed on 14 April 2012 at On Ning Garden, Tseung Kwan O, New Territories in Hong Kong. The arson was committed at your flat on the 9th floor of Block 6 of the same address.

2.  On the morning of 14 April, at about 9.45, a security guard on duty at On Ning Garden heard a loud bang coming from the open space car park.  He looked up and saw that you had thrown miscellaneous items out of your window from your residence on the 9th floor.  Some of the items landed on the cars which were parked in the car park below.  He reported the case to the police and they arrived soon afterwards.

3.  While the police were inspecting the damage caused to the cars, you then threw a metal weightlifting plate out of your window which further damaged another car.  The police then cordoned off the area of the car park where these items were being thrown out of your window, but yet another weightlifting plate was thrown out of the window, causing damage to yet another car.  You had thrown various things, such as a plastic rubbish bin, a lamp, wooden boards and many other items as can be seen from the photographs.

4.  At about 10 am, police officers and officers from the Fire Services Department (FSD) arrived at your flat.  You refused to open the door.  About 40 minutes later, they saw dark smoke coming out from the flat.  The officers then broke into the flat and found you in there alone and the flat was blanketed by heavy smoke.  A cylinder of gas and a lighter were openly placed on a table in the flat.  The FSD officers put out the fire.  A wall and a door and some miscellaneous items were burnt down by the fire.  This again can be seen by the photographs.

5.  When you were apprehended, you were found to be mentally unstable.  You were therefore sent to hospital for treatment.  Urine toxicology revealed positive findings for methamphetamine which is commonly known as the drug “Ice.” Psychiatrists’ reports were then obtained and it was their opinion that your behaviour at the material time was likely due to “Ice” intoxication.  They, however, confirmed that you were mentally fit to plea.

6.  The Fire Services Department confirmed the cause of fire was the deliberate act by you.

7.  As a result of your throwing of the items out of the window of your flat, you caused damage to five cars.  The total estimated repairing cost of the five cars was about $81,000.

8.  Miss Cindy Lee made very full, detailed and thorough mitigation on your behalf.  I have taken into account all that she has had to say on your behalf.  I have also been meticulously taken through the bundles submitted to me by Miss Lee, of all your background with the medical officers, the psychiatrists, your work, family letters and your mother’s medical reports.  I have also had the benefit of and obtained a background CSO report, a Drug Addiction Training Centre Report (DATC) and a further psychiatrist’s report. 

9.  The DATC report says that you are not a drug dependent and therefore not suitable for admission to a drug addiction treatment centre.  As for community service, the probation officer was of the view that in light of your drug abuse experience and the violent and destructive acts flowing from your drug abuse for handling stress and your drug-induced delusions, community service is not a suitable option.

10.  The psychiatrist’s report says that the psychotic symptoms at the time of the offences were likely due to the use of “Ice.” Therefore, your mental and behavioural disorder at that time was due to “Ice” and your history of depression is now in remission.  There are no psychotic symptoms noted now and your current mental condition is stable.  

11.  I turn now to just deal briefly with your background.  You are 43 years of age and are of clear record.  You are single and have completed education up to university, receiving a bachelor degree in hotel management in 1993.  You have had very good jobs since your graduation.  Those being in the Mandarin Hotel, at the Hong Kong Jockey Club and, lastly, from 2005 till your present offence, at Hong Kong Disneyland and earning a good salary of $30,000.  You come from a large family with two elder sisters, one younger brother, and your two parents who are retired, father 75, mother 65.  You come from a modest background, coming to Hong Kong, living in a resettlement estate to working your way through education and eventually obtaining a degree and well-paid jobs.  You are described by your family and the employers as a self-reverent and hardworking person and also an obedient son and a person who gets along now with all your family members. 

12.  I turn to the reasons why you have committed this offence.  You had been in a same-sex partner relationship for approximately 10-odd years.  However, that ended in about February 2012.  Your partner moved out of your flat in about March 2012.  You were feeling unhappy due to the departure of your intimate partner. 

13.  On the day before the offence, a friend of yours had come to offer you a shoulder to cry on.  Unfortunately, he brought with him the drug “Ice,” to which he said would help relieve you of the difficulty and pain that you had been going through.  You then took “Ice” together with him.  However, after he left your house, you continued to take “Ice.”  You had continued to consume the drug from about midnight till 8 am of the morning of the offence.  You became paranoiac.  You had the feeling of being monitored and thought that you were seeing ghosts and the like.  You were under some hallucination.  You did not open the door to the police officers because you feared the ghosts would escape.  You only have a slight memory about throwing things out of the window but you cannot remember lighting fire to your house.  When the officers came as stated in the facts, they saw you to be mentally unstable.  You were then taken to the hospital and, as mentioned, the psychiatrist there believed that you were mentally unstable due to “Ice” intoxication.

14.  I have given, as I mentioned to Miss Lee, anxious consideration to the appropriate sentence to be passed upon you for these offences, particularly to the very serious offence of arson.  Your background until the commission of these offences had been quite exemplary.  You have been a law-abiding, hardworking young man.  Unfortunately, due to this break-up with your partner, this tipped the scales and you did something wholly out of character.  I am told by Miss Lee that if you were to be sentenced to a period of imprisonment which would be more than six months then you may not be able to keep your job.  Life would be very difficult for you thereafter particularly as you are already in your 40s and to start life again would be very harsh upon you.

15.  I accept this is the case and I sympathise with you.  I have to say though, however, clearly, a courts errs in principle if it assesses a penalty on the basis of what is appropriate to the offender and does so without having due regard to the requirements of the public interests.  Public interest in these type of arson cases and as clearly laid down by the courts and particularly the Court of Appeal calls out for a sentence of deterrence which is that of an immediate sentence of imprisonment which is not short.

16.  The offence you have committed under section 60(2) is also a very far more serious offence where it is one of reckless endangerment of life.  The gravity is apparent from the maximum sentence of life imprisonment. 

17.  I have sought guidance from the case of, HKSAR v Law Chun Man CACC325/2011, (the date of judgment was 13 July 2012) on the factors to be taken into consideration when sentencing for arson. 

18.  At paragraph 23, the court stated that the maximum sentence of life imprisonment is there as the offence of arson is regarded as an offence of utmost gravity.  Such maximum is needed because irrespective of the outcome in any particular case, the potential for disastrous consequences is obvious, especially where the fire takes place in densely populated areas.  The court recognised at paragraph 24 that in many cases of arson, the arsonist was in a highly emotionally charged state of mind.  In such cases, the arsonist’s conduct is prompted by emotional distress.  

19.  You were in a state of emotional distress before and at the time of the offence.  You turned to “Ice” to release your distress. 

20.  In the case of HKSAR v Cheung Wing Siu Crim App No. 76 of 1998, the applicant pleaded guilty to arson being reckless as to whether life of another would be endangered as he had a family dispute, and on a momentary impulse, he set fire to the flat.  He had a quarrel with his father.  He acted on a momentary impulse and lit fire to the flat and fled the premises.  In that case, the judge took a starting point of 4 years’ imprisonment after trial, and the Court of Appeal upheld that was correct.

21.  I turn back to the case of Law Chun Man. The court said at paragraph 36:

“It is necessary to consider the potential damage to property and harm to person that could have resulted from the conduct of the arsonist. Irrespective of the intent of the arsonist, how bad might that outcome have been? Under this heading, regard must also be had to the risks that might have been posed to the lives of those who respond to emergencies; namely the police and Fire Services officers.”

22.  In this case, the potential damage to the property and harm to persons might have been very bad had it not been for the fortunate presence of the Fire Services Department.  This was a fire in a residential block, a Home Ownership block where there were many residential blocks nearby.  You were living in Block 6 on the 9th floor of Flat J. 

23.  There was a high potential of harm to persons and property in this densely populated area.  Even though the officers were there present outside your door, when they broke down the door, your flat was already heavily engulfed in heavy black smoke.  There was already considerable damage within your flat.  It was very fortunate I repeat, that the fire was put out as soon as it was.  Had it not been for the presence of the firemen already outside your flat, many items of property could have been completely destroyed and human lives may have been lost.  On that basis, this puts this case of arson in a very much more serious category.

24.  I wholly accept, however, Defendant, that this was an isolated incident committed under the influence of intoxication of the drug ice taken by you to release your emotional distress. There was no wider campaign.  Taking into account all the circumstances of the case, I consider that the appropriate sentence for the offence of arson under Charge 6, had I convicted you after trial, would have been a starting point of 4 years’ imprisonment.

25.  On Charges 1 to 5, those charges are ones of criminal damage to which quite extensive damage was carried out to each vehicle.  On each of those charges, you will be sentenced to 1-week imprisonment. 

26.  The offences of criminal damage and arson are separate and distinct offences.  They should be served partly consecutive and partly concurrent. 

27.  Defendant you have paid into court compensation of the exact amount as caused to the damage of the cars of $81,339.  This must be taken into account in mitigation in reducing whatever term of imprisonment I shall impose in total.  On this basis, I shall order the criminal-damage charges to run wholly concurrent to the arson charge.

28.  Defendant you have pleaded guilty to Charge 6.  I have taken a starting point of 4 years’ imprisonment.  Giving you full credit for your plea of guilty, I reduce that term by one-third to reflect your plea to 2 years and 8 months’ imprisonment.

29.  I have taken into regard Miss Lee’s submissions to me, that at your age of 40-odd, will probably have to start from afresh in your employment and life given your term of imprisonment that you will be serving.  I have also taken into consideration the fact that since the date of this offence, you have taken positive and constructive steps and acts to rectify yourself and your wrong doings committed.  You have been attending psychiatrists to deal with your depression and your emotions and you have also stayed away from taking drugs (as is seen in the reports which you submitted).  It is appropriate that you should be given credit for your efforts.  

30.  In those circumstances and reflecting those further mitigating factors, I reduce your sentence to one of 2 years and 2 months’ imprisonment.  That term will be the total term of imprisonment as the sentences for the criminal damage and arson charges are to run concurrent to each other.