HKSAR v. LAM CHUN KI AND ANOTHER

DCCC 1034/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1034 OF 2016

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REASONS FOR SENTENCE

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1.  Both defendants pleaded guilty to one joint charge of arson with intent, contrary to section 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap 200.

Facts

2.  At about 7:30 pm on 31 May 2016, Madam L S Yip was with her daughter at home, which was a public housing flat in Tin Yue House, Tuen Mun (“the Flat”), whilst her husband and son were out.  At about 9:28 pm on the same day, Madam Yip heard some noises coming from the corridor outside of the Flat.  She then looked through the door viewer and saw a bundle of newspaper on fire (‘the lighted newspaper”) placed between the bars of the iron gate of the Flat.  The fire was about 1 foot tall. 

3.  She then opened the door, took a picture of the lighted newspaper and used something to push it away.  A fire damage of 4 inches by 3 inches in dimensions was found on the iron gate.  A report was made to the police.

4.  Mr P K Pui living at a neighbouring unit on the same floor as that of the Flat was located by the police.  Investigation revealed that, having heard some noises coming from the corridor, Mr Pui opened his door and iron gate to check and saw one male standing outside the Flat and the lighted newspaper which was placed between the bars of the iron gate of the Flat. He also saw another male standing at the lift lobby of that floor waiting for the first male.  When the two males saw Mr Pui, they both went to the lift lobby direction and left.  Mr Pui had not seen them before.

5.  CCTV footage of Tin Yue House showed: (i) that both defendants, together with their girlfriends, entered Tin Yue House with newspapers; (ii) both defendants going up to and leaving 31^st Floor, and (iii) that D2’s T-shirt had a unique circle pattern on it.  D1 wrote his personal particulars on the visitor record sheet of Tin Yue House.

6.  On 2 and 8 June 2016, both defendants were identified as the two males in question and were subsequently arrested.  Under caution, D2 admitted putting bundles of newspapers between the bars of the iron gate.  A black T-shirt with unique circle pattern, which resembled the T-shirt worn by D2 as seen in the CCTV footage, was found in D2’s room.

7.  At subsequent video-recorded interviews, both D1 and D2 admitted under caution that:-

(i) D1 had an argument with his girlfriend, C W Cheung (Cheung), over the issue of her ex-boyfriend (“the Ex-boyfriend”);

(ii) D1 led Cheung, D2 and D2’s girlfriend, S Y So (So), to a 7-11 convenience store in Ting King Estate and bought a newspaper and some drinks from that store;

(iii) the four of them then went to Tin Yue House. D1 registered himself at the security counter before going up to 31^st Floor;

(iv) they then went up to 32^nd Floor by the stairs. Having pointed out the Flat, Cheung then left 32^nd Floor corridor with So.

8.  D1 also admitted under caution that:-

(i) the Ex-boyfriend was Madam Yip’s son living in the Flat;

(ii) he had another argument with Cheung over the issue of the Ex-boyfriend at the lift lobby of 32^nd Floor;

(iii) he put the bundles of newspapers between the bars of the iron gate of the Flat and also told D2 to do the same. Whilst putting the newspapers between the bars, he saw a female resident walk by;

(iv) after that, he used a lighter to light up the newspapers between the bars of the iron gate of the Flat; and

(v) the duration of setting the newspapers on fire was about 10 minutes.

9.  D2 also admitted under caution that:-

(i) he confirmed that his T-shirt was seized at his residence;

(ii) the reason of going up to Tin Yue House was to confront the Ex-boyfriend;

(iii) when he and D1 were alone at the corridor outside the Flat, a female resident walked by them. After that, they started to place the bundles of newspapers, which D bought at the convenience store, between the bars of the iron gate of the Flat;

(iv) he then went to the nearby staircase to wait for D1. D1 then came to that staircase and claimed that it was too windy at the corridor to light up the newspaper. D1 then took the lighted newspaper and went outside the Flat to further light up the newspapers which had already been placed between the bars of the iron gate;

(v) after lighting up all the newspapers, D1 returned to that staircase to meet with D2. Both of them then walked down to 31^st Floor and took the lift to the ground floor to leave Tin Yue House;

(vi) he called So and learned that she was still at another staircase with Cheung. He told them to leave Tin Yue House as well;

(vii) he knew D1 and the Ex-boyfriend had prior conflicts and grudges against each other over Cheung.

10.  CCTV footage of the 7-11 convenience store captured the 4 of them going inside the store and D1 purchasing a pack of newspaper and some beer.

Criminal Record

11.  D1 has one Superintendent’s Discretion for an offence of theft in 2012 and no criminal conviction. 

12.  D2 has one Superintendent’s discretion for an offence of indecent assault in 2012 and one criminal conviction for an offence of loitering in 2013.

Mitigation

D1

13.  D1, aged 19, was born in the Mainland and migrated to Hong Kong for family reunion.  He lives with his parents in a public housing estate unit in Tin Shui Wai.  He received education up to F3.  He is working as a waiter at a Japanese restaurant and earning about $11,000 per month.  He is single and the only child in the family.  His parents are in their forties.  His father is a salesman whereas his mother is a housewife.

14.  He did not appreciate the seriousness of the present offence.  He is very remorseful for what he did.  Without any intention to cause any serious damage, he only wanted to do “something stupid” to the Ex-boyfriend.  No fuel was used to start the fire.  He was going to wait there until the fire subsided.  He fled only when Mr. Pui opened his door and came to the corridor.  He admitted the offence upon arrest.  His relationship with Cheung ended after the incident.  He also offered to compensate Madam Yip’s family in the sum of $1,500 for the damage done to the iron gate.

15.  He wanted to learn more and benefit from performing the voluntary work.  So after the incident, he contacted Miss Lam, who is a social worker and was also present in court to support him, and has already done some voluntary work.

16.  Mitigation letters written by D1, his parents and colleagues were submitted to the court for consideration.  As revealed in the mitigation letters, his parents, superior and colleagues have all given positive comments about the defendant and asked the court to deal with him leniently. 

17.  Mr Tsu urged the court to consider dealing with D1 by way of a probation order or a community service order.

D2

18.  D2, aged 18, is single and lives with his parents and younger brother in a public housing unit in Tin Shui Wai.  He received education up to F3.  He is working as a waiter at a Japanese restaurant in Tsimshatsui and earning $550/day.  His father has retired and his mother is working as a waitress.  His younger brother is a primary school student.

19.  At the time of the offence, he was just slightly over 18.  He is remorseful and pleaded guilty to the offence.  He was very cooperative with the police and gave a detailed account of the offence to the police at the first possible opportunity.  What he told the police was verified during police investigation. 

20.  D1 was the mastermind.  D2 only played a lesser and supporting role.  D2 out of immaturity supported his friend in a wrong way.  No serious damage was done and no inflammable liquid was used.   He did stay at the scene for a while and only fled when a neighbour came out.

21.  He has only one previous dissimilar conviction and was put on probation.  However, he was eventually re-sentenced to a Detention Centre because of his breach of the probation order.

22.  After his release from the Detention Centre, he has turned a new leaf and been gainfully employed.  He has also done some volunteer work.

23.  Mitigation letters written by D2, his parents, girlfriend and case social worker were also submitted to the court for consideration.  They are all supportive to D2.

24.  Although D2 deserved some punishment, Mr Li submitted that rehabilitation should be on top of the mind and urged me to consider dealing with D2 by way of a community service order. 

Reports

25.  Pursuant to section 109A of the Criminal Procedure Ordinance, Cap 221, the court shall not sentence a person of or over 16 and under 21 years of age to imprisonment unless it is of the opinion that no other method of dealing with such person is appropriate.  In light of the both defendant’s young age, I called for various reports to explore sentencing options other than imprisonment and adjourned the sentence to 2 March 2017 pending reports. 

26.  On 2 March 2017, both defendants through their lawyers confirmed their agreements to contents of the reports except the adverse comments on their remorse/insights into their problems and the recommendations made in the reports.  Although both probation order and community service order were not recommended in respect of both defendants, Mr Tsu and Mr Li urged me to give both defendants one more chance to show their deep remorse and call for further probation officer’s and community service order suitability reports (“the further PO and CSO reports”).  I adjourned the sentence to today pending the said reports in respect of both defendants.

Sentence

27.  Mr Lui for the Prosecution submitted HKSAR v Ching Kam Pui, CACC 269/2002 to assist the court.  However, Mr Lui agreed with Mr Li that no accelerant was used and the facts of the present case did not fall within the most serious type of arson.  The Prosecution is of the stance that all sentencing options can be considered by the court.  Mr Tsu pointed out that the facts of Ching Kam Pui were different from and more serious those of the present case.  He also referred the court to HKSAR v Yu Cheuk Hui and Another, DCCC 314/2015, (without submitting the judgment) and submitted that sentencing would really be dependent on the facts of the case.  Mr Lui also confirmed that there was no request for compensation.

28.  I have carefully considered everything said by Mr Tsu and Mr Li on behalf of D1 and D2 in mitigation respectively and the reports obtained in respect of both defendants.

29.  The Court of Appeal in Ching Kam Pui pointed out that the sentence for an offence of arson was generally in the range of 4 to 5 years of imprisonment and the appropriate sentence would be dependent on the facts of the particular case.

30.  As observed by the Court of Appeal in HKSAR v Kung Pak Fu, CACC 429/2007, Hong Kong is such a densely populated city that unexpected occurrences of fire are bound to cause extremely serious injuries and deaths/or losses of properties, and deliberate act of arson, especially when done in a multi-storey residential building, would very likely cause extremely grave consequences. Nevertheless, there are no sentencing guidelines for offences of arson, as the gravity of offence differs from case to case, particularly in cases involving family disputes or souring of relationships.  The sentence to be imposed must properly reflect the gravity of the particular case. 

31.  I note that there were two bundles of newspapers tied around the metal bars in the middle section of the iron gate and one more bundle of some larger but folded up newspapers placed between the gaps of the metal bars at a higher up position [see Photo 4 to 7 of the Prosecution’s photo album].  At time of the incident, only one bundle of newspapers was on fire [see Photo 8] and got pushed away by Madam Yip.  However, I am of the view that the fire could have easily escalated in view of the number of bundles of newspapers involved even if, as submitted, serious damage might not have been intended. 

32.  The present case did not involve triad or the use of accelerant or inflammable liquid.  But, as revealed in the reports, D1 committed the present offence as he wanted to intimidate the Ex-boyfriend, in order to protect Cheung and stop him from disturbing her.  His intention to intimidate the Ex-boyfriend is clearly, in my view, an aggravating fact, even though he did not mean to harm anyone. Although D2 appeared to be in the supporting role, he was aware of D1’s grudges against the Ex-boyfriend and still chose to go along with D1 to commit the present offence.  In my view, he is equally culpable.

D1

33.  According to the CSD reports, D1 first transgressed the law in 2012.  Due to his playfulness and greediness, he was involved in an offence of theft and was cautioned under the SP discretion scheme.  He later associated with some triad elements when seeking fun with his dubious peers.  His waywardness and carefree attitude eventually led him to committing the present offence.  A period of disciplinary training coupled with statutory supervision is considered to be beneficial to D1's rehabilitation for the purpose of strengthening his law abiding concept.  D1 is medically unfit for Detention Centre because of his poor exercise tolerance. He is mentally and physically fit for detention in a Rehabilitation Centre and a Training Centre.  However, he is considered to be more suitable for detention in a Rehabilitation Centre.

34.  The probation officer in the first report takes the view that despite the cessation of his relationship with Cheung, he has neither got any insight nor learned a hard lesson as to how handle courtship relationship properly in future.  His parents also anticipated that D1 would benefit from training in a confined setting as opposed to probation supervision and community service in an open setting.  Also taking into account defendant’s loose life style and his need for disciplinary training for reformation in the long run, the probation officer does not recommend probation order and/or community service order.

35.  The YOAP interviewed D1 and is of the opinion that his insight into his problems is weak, he has a low sense of both lawfulness and awareness of the serious nature of the present offence and a period of disciplinary training is desirable for him to rebuild self-discipline and a law abiding life.  Rehabilitation Centre program for D1 is recommended. 

36.  As revealed in the further PO and CSO reports, D1 admitted that he had previously lied about his having no association with the triad society.  But he did not join any triad activities including illegal acts.  His parents did not have any knowledge about his triad association in the past and have no confidence in D1’s cutting linkage with dubious friends in an open setting.  In view of D1’s weak insight into his problems and introspection to his proneness to adverse peer influence and his need for disciplinary training, the probation officer is of the view that both probation order and community service order are not suitable options.

37.  Mr Tsu referred to the further PO and CSO reports and pointed out that D1 had indeed disassociated himself with the triad member in 2014.  He also informed me that D1’s parents would support his reform.  As to the part of the report regarding his parents having no confidence in D1 cutting linkage with dubious peers in an open setting, he explained that it was the result of a communication breakdown between his parents and the probation officer.

38.  Having carefully considered all the facts of the case, the contents of the reports and the mitigation before me and balancing rehabilitation as well as punishment, I agree with the latest views of the probation officer and don’t consider either probation order or community service order as a realistic and viable option.  I also agree with the views of YOAP and sentence D1 to detention in a Rehabilitation Centre.

D2

39.  The information of the reports showed that D2 became playful and rebellious after promoting to secondary school.  He first infringed the law in 2012 and was cautioned under SP discretion scheme for an offence of indecent assault on a female classmate.  However, he re-associated himself with adverse peers.  In 2013, he was put on probation for 12 months for two offences of loitering involving making nuisances to two girls.  Since his performance under probation was far from satisfactory, the court extended his probation order to 18 months with a requirement that he was to reside in the Tuen Mun Children and Juvenile Home (“the TMCJH”) for 11 months.  In August 2014, he was released from the TMCJH.  He soon reverted to his previous misbehaviour and hung out with his bad peers again.  In January 2015, under repeated inducement of his protector, he inhaled “Ice” once.  Due to his poor performance, he was re-sentenced to the Detention Centre for breach of probation order.  On 25 July 2015, he was released and subject to one year statutory supervision.  During the supervision period, he breached the curfew requirement and was recalled to the Detention Centre for further training on 5 January 2016.  He was released from the recall training on 21 March 2016. 

40.  Views of his parents have also been ascertained.  They are concerned about D2, but they do not have confidence on his motivation to turn afresh.  They are disappointed at his failure to reform himself and do not consider external professional invention as well as a short term training at the Detention Centre helpful to D2’s reform.  For D2’s reform and to cut off his triad linkages, both parents want him to undergo a longer period of disciplinary and character training in a residential setting.

41.  Regarding the pregnancy of D2’s girlfriend, the Probation Officer contacted her and was informed that it was just the positive test results via the pregnancy test bars and she had not yet consulted the doctor to confirm it.  If the doctor confirmed her pregnancy and D2 was not granted a sentence to rehabilitate in the open community, she would deliver the baby and wait for D2 to be released. She declined the referrals made by the Probation Officer to offer her childcare and financial assistance, claiming that her mother would help her taking care of the baby while she continued to work as a waitress to support the living.

42.  In view of his belittling his role in and responsibility for the present offence, and his continuing to live in an unruly pattern including triad affiliations and his parents’ lack of confidence on him, the probation officer does not recommend putting D2 on probation.  Nor community service order is recommended. 

43.  The CSD reports show that he is not considered suitable for detention in Detention Centre as he had received training in Detention Centre before and showed poor response to supervision including his breach of supervision requirements and having been recalled for further training.  He is considered suitable for detention in a Training Centre.

44.  The YOAP interviewed D2 and, in view of his loose discipline and poor sense of lawfulness, considers a period of long term character training in a disciplinary setting to be desirable for D2’s social rehabilitation.

45.  According to the further PO and CSO reports,  D2 admitted lying about his having no involvement in illegal activities led by triad societies in the past.  His father stopped him from joining the triad gang fights.  He also toyed with drugs by taking cocaine and crystal methamphetamine from 27 January 2017 to 7 February 2017.  He again downplayed his role in and responsibility for the offence.  The probation officer again recommends neither probation supervision nor community service order and takes the view that D2 is in need of a period of strict disciplinary and character training with vocational and educational element in a residential setting for his complete social rehabilitation.

46.  Mr Li referred to the further PO and CSO reports and informed me that D2 withdrew his allegation of frame up against the police in relation to his cautioned statement and his denial of role in and responsibility for the present offence.  Mr Li also explained that the above allegation and denial were the results of a communication problem between D2 and the probation officer.

47.  The issue of disparity of sentence was raised by Mr Li.  Mr Li also invited me to consider imprisonment as an option.  I note that pursuant to section 4(2) of the Rehabilitation Centres Ordinance, Cap 567, D2 is not eligible for detention in a Rehabilitation Centre as he has previously been sentenced to detention in a Detention Centre.  It is clear from the history that probation order, detention order and further training at the detention centre could not bring D2 back to the right track.  He even committed the present offence in less than 2 months after his release from further training at the Detention Centre.  Taking into account all the facts of the case, the contents of the reports and the mitigation before me and balancing rehabilitation as well as punishment, I agree with the latest views of the probation officer and don’t consider either probation order or community service order as a realistic and viable option.  I also don’t find imprisonment is an appropriate option.  D2’s situation is, in my view, markedly different from that of D1.  I agree with the views of the YOAP and, in the circumstances, a Training Centre order is fully justified.  I therefore sentence D2 to detention in a Training Centre.