HKSAR v. CHAN TSZ HIN AND ANOTHER

DCCC 147/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 147 OF 2013

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Reasons for Sentence

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1. D1 and D2 both pleaded guilty to Charges 1 and 2. Charge 1 is criminal damage, Charge 2 being arson.

2. The facts are as follows.

3. D1 once had a grudge with his colleague surnamed Siu.  Siu and his family lived in a flat in a public housing estate in New Territories, the premises stated in the charges.  I will call it the flat.  At 7.30 pm on 5 June 2012, Siu’s mother heard a loud bang coming from the corridor.  She opened the door to check.  She found that the corridor was on fire.  The iron gate and the wooden door to the flat had been splashed with red paint (see Photos 8 and 13).  The wall and the floor of the corridor were burnt to a certain extent.  Repair and refurbishment were required subsequently (see Photos 4, 6 and 7).

4. Police attended the scene.  They found a broken beer glass bottle on the corridor outside the flat.  There was a can of red paint and a bag containing a T-shirt with a strong smell of thinner at the staircase between the ground floor and the 1st floor of the building.

5. The CCTV of the building captured two persons entering the building at around 7.13 that evening.  One blocked the camera with an umbrella when they entered.  The two left the building around half an hour later via the same exit with their heads down.

6. D1’s DNA was found on the bag, D2’s found on the T‑shirt.

7. On 14 October 2012 D1 was arrested.  He admitted to bringing the paint and the beer bottle with inflammable material inside to the flat.  Some people would call this kind of device, i.e. a bottle containing inflammable material for burning, a Molotov cocktail.

8. D1 at first told police that he was only a lookout. Later, he admitted to having a grudge with someone called Cowboy living in the flat.  He thus bought thinner and paint and brought those substances there; he had poured the thinner into the beer bottle; he went with D2 to the flat in order to frighten Cowboy; he blocked the CCTV camera when they entered the building with an umbrella.  D1 said he watched on while D2 threw the paint and the beer bottle at the flat.

9. D2 was arrested on the same day.  He told police that D1 recruited him as an accomplice.  Originally he was to act as a lookout only.  But in the event, D2 threw the paint at the flat.  He also rolled the beer bottle containing the thinner towards the flat.  The bottle exploded near the door of the flat.  The floor mat outside the flat was set alight.  D2 said D1 had promised to give him $500 for the job.  He also expected D1 to offer him some kind of work, but D2 had got neither.

10. Defence counsel asked this court to obtain training centre reports in respect of both defendants before sentencing them. That is a reasonable request given the young age of both defendants.  D1 is aged 19; D2, 20.

11. The Correctional Services Department returned with two very detailed training centre reports, one for each defendant.  The reports set out in detail both defendants’ family background and their route to delinquency.

12. D1 has two previous convictions.  In April 2008 he was convicted of theft and put on probation for 12 months, but 5 months later he was convicted of trafficking in DD.  He was sent to rehabilitation centre.

13. D2 has more records.  In May 2007 he was convicted of common assault offences.  He was put on probation.  A month later he was again convicted of common assault; again he was put on probation.  Half a year later he was sent to rehabilitation centre for breach of the probation orders.  One and a half years’ later he was convicted of unlawful sexual intercourse with a girl under 16.  He was again put on probation.

14. The assessment officer says D1 maintained a remorseless attitude and defied assistance.  The officer says D1 has no insight into his problems.  The officer concludes that a period of comprehensive disciplinary training coupled with statutory supervision would be beneficial to D1.  D1 is suitable for detention in the training centre.

15. For D2, he appeared to be co-operative during the remand.  The assessment officer says that he was frank.  D2 told the officer that D1 was his triad peer.  A youngster surnamed Siu owed D2 and his triad peers some money so both defendants plotted the crimes in order to teach Siu a lesson.

16. In mitigation, counsel urges me to send both defendants to the training centre instead of prison, saying that they are both young and should be rehabilitated.  Counsel says D1’s case is a harder one because he has not shown any remorse and has held a bad attitude towards rehabilitation.  Counsel says if this court is not minded to send D1 to the training centre, then the court should consider such cases as DCCC 815/2012, Hung Pang Chi, and the appeal case CACC 429/2007, Kung Pak Foo, in considering the right sentence for him.  

17. The case of Kung Pak Foo says there is no tariff for arson cases.

18. Counsel says D1 is ambiguous in expressing his wish about going to the training centre.  I asked D1 personally in court. Indeed, he is very ambiguous.  And to me, he actually does not quite want to go to the training centre.  He does not quite want to be rehabilitated.  He just wants to sit for some time in the prison to waste more of his life.

19. I asked the same question of D2.  D2 is more frank.  He said he does not want to go to the training centre.  He said he does not know why.  I am sure he holds the same reasons as D1, unspoken.  Again, he does not want to be rehabilitated in the training centre because that kind of disciplinary training would be considered as hard by young delinquents.  Like D1, he just wants to sit in the prison for some time to waste more of his life. 

20. Nevertheless, counsel says D2’s case is a more hopeful one. He said D2 in this case was only influenced by D1; he had expressed remorse to the CSD officer; he has parental support for rehabilitation.  Counsel urges me to send both defendants to the training centre in this case. 

21. Both defendants are young. Unfortunately, they have become hardened delinquents.  If not guided to go back on the right track, I am sure they would become hardened criminals when they grow older.

22. Both defendants had committed a very serious crime in this case.  The results of their acts can be quite disastrous to others’ lives and properties.  Fortunately, those disastrous results did not occur.

23. Whoever is the instigator, whether it is D1 or D2, it does not really matter.  Both were willing parties to such serious crimes.  They are as culpable as each other. 

24. Both defendants have been held in custody since their arrest in mid-October 2012, so they have been in custody for 5 months. 

25. It is sad to see that D1 has not changed for any better.  He has not shown the slightest remorse despite the remand and his pleading guilty to both charges.  He certainly wishes for a prison term, which to him would be an easier treat.  I am sure any prison term would do him no good.  In his case, I am sure training centre is the best place for him at this stage.  He should go there.  He should go there to think about his life, to correct his attitude, to reflect on what he had done in the past, in particular about this case, and most important of all, he should go there to be helped to reform himself.  So on both charges, I send D1 to training centre.

26. D2’s situation is not much better than D1’s, although he had shown some superficial remorse to the CSD officer.  As I said, he was just as culpable as D1. He has demonstrated himself to be a hardened delinquent.  He was given chances to rehabilitate himself but he wasted those chances of being put on probation and going to the rehabilitation centre.  I am sure nothing short of a training centre would be sufficient for him to rehabilitate himself.  So on both charges, I send D2 to training centre.