HKSAR v. LAM FUK LUNG

DCCC1185/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1185 OF 2008

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Reasons for Sentence

1.  Defendants, you are each convicted of a joint offence of possession of articles with intent to destroy or damage property, contrary to section 62(a) of the Crimes Ordinance, Cap.200.

2.  The facts have been dealt with fully in my verdict which I delivered some two weeks ago.  Suffice it to say that you were each caught at the entrance to Yeung Uk Road Market, Tsuen Wan, in the early hours of the morning with petrol bombs, dressed to make identification as difficult as possible, and D1, you were seen to be preparing to light the cloth to complete the incendiary nature of that device.

3.  The evidence against each of you was clear and overwhelming.  From the facts, the only possible inference that this court could draw was that you were about to commit an act of damage.  You each admitted to previous convictions, D1 to 4 and D2 to three previous convictions, one being similar.

4.  As you know, I adjourned the case until today for preparation of the probation officer’s background report.  Those reports are now before me, and I have given them full consideration.  In respect of you, D1, the most significant aspect of that report is the partial admission to the effect that you acknowledged possession of the petrol but claimed this was not for damage.

5.  Prior to commencing the mitigation, I made enquiries of the prosecution, the results of which are as follows.  It is in fact favourable to your position.  I was told that the building in question is just a market, not one with residential units above it.  Had that been the case, it might have been for you a significant aggravating feature.  Although I was informed that there were two attendants resident within the market, but it would seem that they are not near the entrance.  On your behalf, your counsel seemed to accept this.

6.  Mitigation was entered on behalf of each of you.  I deal first of all with your position, D1.  Mr Sherry informed me that you accepted the contents of the probation officer’s report.  You are a young man, married but separated with a child.  Your work record was commended especially between 2003 and 2006 when you were employed at a supermarket.  Also Mr Sherry asked me to accept that the admission to being involved with petrol demonstrated a degree of remorse.  But any damage contemplated would be restricted and no lives were endangered.  I was asked to consider a concurrent sentence with your present sentence which is one of 16 months for an offence of trafficking in dangerous drugs.

7.  Mr Sherry did refer me to some sentencing precedents but they seemed to me to be a very different type of offence involving computer damage. 

8.  D2, on your behalf, Mr Leung entered mitigation.  Part of that mitigation involved the production of three letters from your mother, sister and girlfriend.  I have read those letters and taken them into account.  All begged for leniency.  You are presented as a young man, comfortable within your family and one who works hard.  Again, the request for leniency was echoed. 

9.  In sentencing you both, I took into account the facts of the case, the contents of the reports and the mitigation entered.  I noted that each of you have a criminal record, D2 for one similar.  You are both relatively young men.  I take into account that any intent to commit an act of damage by fire is extremely serious.  However, I do accept that given the construction of the entrance of the market and its surrounding area shown in the photographs, the damage would have been limited.  I also accept that there did not appear to me any immediate and obvious threat of injury or loss of life.  The only persons being in danger would be of course yourselves.  I take also into account the time at which this offence was committed which was in the early hours of the morning with few people around.

10.  D1, you did make some partial confession and I agree this does show some indicative remorse.  Taking all the factors into account that I have mentioned,  you will each be sentenced to 3 years’ imprisonment.  And in respect of you, D1, I take into account the principle of totality, 2½ years will be consecutive to your existing sentence and 6 months concurrent.