HKSAR v. CHONG YAM MIU, LUCAS

DCCC 890/2019

[2020] HKDC 216

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 890 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two charges of arson being reckless as to whether lives would be endangered, contrary to sections 60(2) and (3) of the Crimes Ordinance (Charges 1 and 4); one charge of resisting a police officer (Charge 7); four charges of driving offences (Charges 2,3,5 and 6) and two charges related to drugs (Charges 8 and 9). The case involved two petrol bomb attacks on the police which took place about 12 hours apart.

Charge 1 - Arson outside the Police Headquarters (PHQ)

2.  At around 03:32 hours on 7 June 2019, a police emergency unit van carrying 4 police officers on board arrived at the traffic light on Lockhart Road at the junction with Arsenal Street, outside the PHQ.  There was a petrol station beside the road junction.  The officers on board spotted a masked man (the defendant) on Arsenal Street holding an ignited bottle in his hand which he was about to throw towards the PHQ.  Upon seeing the police vehicle, the defendant lowered his head and walked back towards a black private car on Arsenal Street.  The car’s front licence plate was covered with plastic tape which concealed the registration mark.

3.  The police vehicle drove to the yellow box marking at the junction and stopped for the officers to alight and intercept the defendant.  Suddenly, the defendant turned back and threw the ignited bottle in his hand to the left side of the police van setting a fire.  The police vehicle immediately drove forward to avoid the blaze.  No one was injured.  The defendant boarded the black car and fled. 

4.  A black mark about two feet long was left on the road. A burn mark of about 1x2 sq. feet was found under the nearside front door of the left front passenger seat of the police vehicle.  Later the burn mark was cleaned with no damage found on the vehicle.  Traces of petrol were recovered from the green glass fragments seized at the road junction.

5.  The incident was captured by video cameras of vehicles travelling in the vicinity.  The black car driven by the defendant was a Mercedes Benz model and the car’s rear licence plate was covered at the time.  The car was also seen driving around the vicinity of the PHQ prior to the attack.

Charge 4 – Arson outside Happy Valley Police Station (HVPS)

6.  At about 15:45 hours on the same day, the defendant was seen alighting from a black Mercedes Benz with a glass bottle in his hand at Sing Woo Crescent.  He went to the direction of HVPS and used a lighter to ignite the glass bottle setting it ablaze.  He then hurled the burning glass bottle at HVPS setting a fire near the entrance of the police station outside its perimeter wall.  The defendant then fled with his car.  CCTV footages in the vicinity captured the incident.  The car’s licence plate was covered at the time. 

7.  An off-duty police officer happened to be driving along Sing Woo Road when he saw flames outside the police station.  He saw the black Mercedez speed off at high speed.  He followed the car and later found it stopped at Blue Pool Road when its rear plate number was not covered and showed the registration number VW 9651.  The driver of the car was wearing a black top and dark trousers with no cap or face mask.  The officer took a photo of the car plate number with his mobile phone.  The black car eventually left heading to Wanchai.

8.  The external metal and glass fences of the police station were blackened and damaged by the fire with repair cost of HK$2,500.  Traces of petrol were recovered from the green glass fragment seized at scene.

Arrest of the defendant

9.  At around 17:20 hours on the same day, the defendant’s vehicle was seen by another off-duty police officer parked at King’s Road, North Point.  The driver came out of the car and entered a building with a red bag in his hand. At 17:35 hours police officers were observing outside the building.  When the defendant turned up at the metal gate of the building, he immediately turned back and fled.  A sweep was then conducted at the building and another building adjacent to it.

10.  At about 17:47 hours, the defendant knocked on the door of a flat on 12/F of the building.  When an 89 years old woman opened the door, the defendant rushed inside and closed the door.  Police officers later knocked at the door, the old woman opened the door and the defendant was found inside the premises.  He struggled with police officers vigorously to escape but was finally subdued. Police officers noticed that the defendant’s hands had blackened smoke marks. The defendant was arrested for arson.  Under caution, he remained silent.

Charge 7 – Resisting police officers

11.  Prior to taking the defendant to North Point Police Station, police officers covered both hands of the defendant with paper bags for subsequent sample collection by the government chemist.  The defendant resisted and tore off the paper bags.  New paper bags were put on his hands, again he tore up the paper bags.

12.  On arrival at North Point Police Station, two pieces of paper were put on the table and the defendant was instructed to put his hands onto the paper. The defendant just tore up the paper into pieces.  The process was repeated for the second time when the defendant again tore the paper into pieces.  During the process for the third time, the defendant banged his head on the floor. Police officers tried to stop the defendant who struggled violently.  The defendant was finally subdued when 3 police officers had sustained injuries.

Charges 8 and 9 – Possession of dangerous drug and part I poison

13.  The defendant’s vehicle was subsequently searched with a plastic bag containing traces of ketamine and a tablet of zolpidem found on board. 

Charges 2, 3, 5 and 6 -Vehicle offences

14.  Since 12 December 2018, the defendant had been the registered owner of VW 9651.  While the vehicle was covered by insurance, its vehicle licence had been expired on 22 April 2019.  Therefore, on the day when the arson offences were committed, the vehicle was driven without a valid vehicle licence.  It was also driven when the registration mark was not properly displayed.

CCTV footages

15.  CCTV footages of a petrol station and a convenience store at Electric Road, North Point showed that prior to the two arson attacks, the defendant bought a can of petrol from the petrol station and a bottled beer from the convenience store.

The defendant’s antecedent

16.  The defendant is aged 25.  He has 5 previous criminal convictions, 3 of them relating to violence and one for claiming to be a member of triad society.  Mr Oliver Davies, counsel for the defendant, told the court that prior to his arrest, the defendant worked for a car cleaning company and lived with his parents in the family home.  Counsel pointed out that the defendant’s last conviction was more than 6 years ago, when the defendant was only 18 years old.

Mitigation submission

17.  In his mitigation on behalf of the defendant, Mr Davies emphasized that no police officers were injured in the two arson attacks.  In relation to the first arson offence, counsel pointed out that the petrol station was one road length from the spot where the petrol bomb landed.  Therefore, the actual risk of danger caused to the gas station was not significant.  No actual injury was caused and no real damage was caused to the police vehicle.  With regard to the second arson attack, the bomb landed outside the police station at the ground.  The fire was not set inside a building and would not have stopped people from escaping.  Damage was only caused to the metal and glass barriers of the police station which cost $2,500 to repair. 

18.  It was emphasized that the arson offences were committed in an amateurish manner. The defendant used his own car to commit the offences with a tape to cover the number plates, which would only make the car conspicuous.  Counsel submitted the offences were not related to triad activities.

19.  The defence submitted a medical report dated 2 March 2020 prepared by Dr Siu Wei Man Bonnie, a Government Visiting Consultant Psychiatrist and Chief of Service of Siu Lam Psychiatric Centre, in support of the mitigation that the defendant had been receiving treatment for psychiatric problems for years.  Mr Davies described the defendant as a “sick man” who is now remorseful.  The defendant’s reactions of banging his head on the floor and on the table after his arrest were indicative of his mental state.

20.  Counsel urged that the sentence for the resisting charge, not being the most serious of its kind, and the sentences for the drug offences should run concurrently with the arson charges.  As to the driving offences, they can be dealt with by way of fines.

21.  Mr Davies handed up mitigation letters written by the defendant’s employer and the principal of a school where the defendant received his form 4 education for one year.  The school principal pleaded for leniency.  The employer said the defendant was a diligent employee and they worked as voluntary workers together to help the elderly.  The employer indicated he would continue to employ the defendant after he is discharged from prison. 

22.  I have considered the contents of these two letters, as well as everything said by defence counsel on behalf of the defendant.

Discussion

Arson

23.  There is no question that the gravamen of the charges is the arson offences.  Arson is a very serious offence which carries a maximum sentence of life imprisonment.  While there is no tariff for the offence, arson has always been regarded by courts as an offence of particular gravity because of the inherent danger to life and property in an uncontrolled fire.  A charge under s.69(2) of the Crimes Ordinance, which the defendant is facing, is more serious than a charge under s.69(1); as the former has to be sentenced on basis for arson endangering the life of another, while the latter only involves damage to property.  Under s.69(2), the offence would become more serious if it alleges an intent to endanger life (the defendant is not facing such allegation).  What was alleged by the prosecution and admitted by the defendant was his recklessness as to the endangerment of life.

24.  Both parties submitted judgments on sentence in arson cases.  Despite the endeavor of counsel, these cases are not of much assistance to the court as the facts of these cases are very different from the instant case.  I do not think it would be helpful to cite and repeat the facts of these cases.  Suffice it for me to say that the cases do confirm a principle that arson has always been regarded by courts as a very serious offence for which a deterrent sentence is called for.  I would only repeat what the Court of Appeal said in The Queen v Li Mun Tong CACC 309/1994 (unreported), a case cited by both parties.  The Court of Appeal stated “Arson, because of the inherent danger in any uncontrolled fire, is always regarded as an offence of particular gravity.  Arsonists exhibit reckless disregard for life and property.”

25.  In determining the proper sentence, the courts looked at both the culpability of the defendant and the harm caused or at risk.

26.  As said, there is no tariff sentencing guideline case for the offence of arson.  The sentence is very much case specific.

27.  The Court of Appeal in Chau Yuk Kuen v The Queen (CACC 402/1980) said “We feel that the tariff sentence for this type of appeal should be at least 4 to 5 years.”  The learned authors of Sentencing in Hong Kong, eighth edition, comment at page 721 that the customary sentences of arson tend to start at about 5 years’ imprisonment, although they may be very much higher when life and property is seriously endangered by the actions of the arsonist. The learned authors of Archbold Hong Kong 2020 at paragraph 24-24 suggest if no actual injury to other persons is involved, a customary range of between 4 to 6 years of imprisonment should be used as a starting point.

28.  In my view, an attack by petrol bomb is a very serious crime indeed, as it gives rise to a very substantial risk of serious harm to the public.  Petrol bombs are well known that they can potentially cause horrific injuries.  A fire bomb with petrol as its accelerant is a most dangerous weapon.  Once ignited and thrown, the fire ablaze by petrol will be unstable and uncontrollable when the bottle breaks.  It harms indiscriminately.  Using such weapon will have to receive condign punishment.  The behavior of arson by throwing petrol bomb cannot be tolerated and in all circumstances must result in a long custodial sentence.

29.  There were also aggravating features in the attacks. 

30.  The first attack occurred outside the police headquarters.  The projectile was no doubt targeted at the police van, though the original target might have been the PHQ.  It can be seen from the video clips played in court that the fire bomb landed on the ground very near to the vehicle, the petrol splashed from the broken bottle setting a fire at and under the van. Fortunately, the police car could safely drive away.  The defendant was certainly aware that there were people on board the police car.  Four police officers were actually on board.  Had the police vehicle caught fire, the officers within the confined space of the cabin would have been exposed to a very high risk of serious harm and possible death. 

31.  Targeting at the police vehicle, the fire bomb was also hurled in the direction near the petrol station which was located in a busy and central part of the city.  Mr Davies emphasized that the spot where the glass bottle landed was at some distance from the gas station.  I accept that the actual risk of fire and explosion in the station was not particularly high, but the potential risk must not be totally ignored.

32.  The second attack occurred only about 12 hours after the first incident on the same day.  The fire bomb landed right outside the perimeter wall of the police station.  I agree with defence counsel that the blaze was not set on a spot very near to the entrance of the building and did not prevent occupiers of the police building from escaping.  However, the ignited bottle was hurled across a road when vehicles were travelling on it.  It is to be noted that when the bottled broke and set the blaze on the pedestrian pavement, a private car was just passing at a distance of only a few metres away.  It was fortunate that the passing vehicle could pass the flames without accidents.  Had the fire bomb been accidentally struck at the car window, the consequences would have been horrible.  Therefore, the acts of the defendant were very dangerous with the potential to cause very serious harm.  Moreover, it occurred in broad daylight when a pedestrian could be seen walking on the pavement.  Many vehicles were travelling on the road.  Any people nearby seeing the defendant holding the ignited fire bomb in his hand would no doubt be terrified.  This was also the defendant’s second attack at the police on the same day. 

33.  Furthermore, both offences were committed with a degree of premeditation, targeting at the police.  The defendant made the fire bombs beforehand and the attacks were not spontaneous reactions.  His acts were direct challenge to law and order of Hong Kong.  All law enforcement officers in due execution of duty, especially those who are in the front line to maintain law and order, must be protected.  A general deterrent sentence is called for to deter others from similar criminal activity and to send a clear message to the public that this kind of violent conduct is totally intolerable and must be condemned. 

34.  The defendant has an unattractive record for 3 previous offences of violence, including 2 for wounding or inflicting grievous bodily harm.  He had a propensity to commit a crime of violence.

35.  On the other hand, it must also be borne in mind the reality that no injuries were actually caused and the actual damage of property was very small. The defendant pleaded guilty to arson being reckless as to endangerment of life, not with intent to endanger life.  That was the prosecution’s case clarified in court and accepted by the defence.  The culpability of the defendant can only be assessed on this basis.

36.  The court was not clearly told why the defendant committed the arson offences.  Despite the defendant’s triad background, there is no evidence to connect the offences with triad activities.  Nor was there any suggestion from either the prosecution or the defence that the offences were related to any controversial issues being debated in Hong Kong society.  As the defendant’s psychiatric report disclosed, the motive might stem from his animosity towards the police.  Whatever the reason, arson by using petrol bomb remains a very serious crime which will be followed by a long custodial sentence.

37.  In all the circumstances, the starting point for Charge 1 to be taken will be 5½ years’ imprisonment.  I would adopt 4 years’ imprisonment as the starting point for Charge 4.

38.  The defendant’s mental condition was put forward as a mitigating factor.  Not disputing the mental capacity of the defendant to commit the reckless arsons, Mr Davies described the defendant as a “sick man” suffering from serious mental illness.  Dr Siu has seen the defendant since 4 July 2019.  In her medical report, Dr Siu stated that the defendant told her he first consulted a private psychiatrist for post-traumatic stress disorder symptoms after he was chopped in a fight.  His symptoms subsided after he took medication.  He subsequently consulted two other psychiatrists for hearing multiple voices.  According to his mother, she would sometimes attend the private psychiatrist’s clinic to obtain medication for the defendant.  She noticed that the defendant was mentally unwell since December 2018 when he had gestures to jump from height and told his mother that someone wanted to chop him.  During the visit of Dr Siu, the defendant told her that he was provoked by the triad and the police.  Regarding the present offences, he understood the charges and his position in legal proceedings.  Dr Siu is of the view that the defendant had delusion of misidentification and persecution that the triad and the police had been provoking him.  He is opined to have psychosis (probably schizophrenia) with history of substance misuse.  His mental condition had been largely improved and psychiatric inpatient treatment is not required now.  Dr Siu recommends the defendant to attend psychiatric outpatient clinic for continuation of treatment.  The opinion of Dr Siu was not challenged and is accepted by this court. 

39.  Given the admitted mental capacity to commit the offences, the defendant’s mental history and condition cannot count too much in mitigation for this kind of serious offence.  But I can accept that the defendant might lack ability as an ordinary person to control his impulse out of animosity towards the police.  I accept that he is now remorseful.  I also bear in mind that the defendant needs further care of his mental condition, but there can be no doubt that he will be given proper treatment in prison.

40.  For these reasons, I would lower the starting point for both offences by 6 months, and reduce the sentences to 5 years (Charge 1) and 3½ years (Charge 4) respectively.

41.  The defendant entered a timely plea of guilty which entitles him to a further one third reduction of the sentence.  I am afraid that the asserted voluntary work provided by him is not to such an extent that a further discount of sentence can be given.  Giving him the proper discount for his guilty plea, I sentence the defendant to 3 years and 4 months’ imprisonment on Charge 1, and 2 years 4 months’ imprisonment on Charge_4.

Resisting police officers

42.  At North Point police station, the defendant had a violent struggle with police officers causing three officers to sustain injuries.  The first officer sustained injuries including swelling and mallet finger deformity on left little finger.  The second officer sustained abrasion on his 4^th metacarpal joint dorsum and tenderness on right hip.  The third officer had bruising on his 4^th and 5^th right hand metacarpal phalangeal joint.  The injuries were not very minor.  Taking into account of the defendant’s mental illness, I take 9 weeks’ imprisonment as the starting point for Charge 7 and reduce it to 6 weeks for his plea of guilty.

The vehicle offences

43.  I agree with Mr Davies that a fine is proper for the unlicensed vehicle offences.  The registration mark offences are more serious as the defendant covered the registration mark obviously to conceal his identity.  The offence under the charges is however only liable to a fine at level 1 ($2,000).  I bear in mind the defendant is sentenced at the same time to a substantial custodial sentence.  Credit also given for pleas of guilty and the offences being committed on the same day, the defendant is fined $500 each on Charges 2 and 5, and $1,500 each for Charges 3 and 6.

The drug offences

44.  Charge 8 involves traces of ketamine, a dangerous drug.  Due reduction given for guilty plea, he is sentenced to 4 weeks’ imprisonment.  Charge 9, concerning one tablet of “sleeping pill”, will be fined $1,000.

Total sentence

45.  The final question is the total length of imprisonment terms.  I have had regard to the principle of totality.

46.  As said, the gravamen of the offences is the arson attacks.  If I were to pass totally consecutive sentences of the two offences, the eventual sentence would be very long indeed.  Wholly concurrent sentences would be ignoring the fact that the two attacks were separate incidents.  Having assessed the total culpability of the defendant, I order one year of the sentence in Charge 4 to run consecutively to the sentence in Charge1, the rest be served concurrently.  That makes a total of 4 years and 4 months.

47.  The sentences in Charges 7 and 8 should normally be served consecutively to the arson charges.  However, as the total term of imprisonment for the arson charges is a substantial one, an order for sentences in Charges 7 and 8 to run concurrently with the arson charges is justifiable having regard again to the totality principle.  And I so order.

48.  As a result, the defendant will serve the total sentence of 4 years and 4 months in prison.