HKSAR v. LAU PO SING

DCCC 1057/2015
DCCC 1063/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1057 OF 2015

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CRIMINAL CASE NO 1063 OF 2015

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REASONS FOR SENTENCE

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INTRODUCTION

1.  The two sets of proceedings, both involving the defendant as the only person charged, were ordered by consent to be heard together. 

2.  In respect of DCCC 1063/2015, the defendant pleaded guilty to, and was therefore convicted of, two charges of arson being reckless as to whether life would be endangered, contrary to sections 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap 200, and one charge of possession of apparatus fit and intended for the smoking of a dangerous drug, laid against him under section 36(1) and (2) of the Dangerous Drug Ordinance, Cap 134, the three offences having taken place on 10 September 2015. 

3.  In relation to DCCC 1057/2015, the defendant was convicted, on his own plea, of one charge of burglary, preferred against him under section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.  That offence of burglary occurred on 26 October 2015, ie., subsequent to the three charges to which DCCC 1063/2015 relates. 

FACTS

DCCC 1063/2015

4.  At around 4:55am on 10 September 2015, a security guard found a burnt umbrella and some water outside Room 3102, Yiu Lung House, Tin Yiu (2) Estate, Tin Shui Wai, New Territories (the first charge).  He proceeded to the corridor of Wing A and saw some tissue aflame on the iron grille of Room 3106 (the second charge).  He opened the door leading to the rear staircase and saw the defendant whom he recognized to the occupier of Room 3203.  He asked the defendant whether he had started the fire.  The defendant fled, declaring that he had not done so.  The security guard alerted his colleague on the ground floor.  He returned to Room 3106 and found its occupier Ms KL Leung had already had the fire put out.  Firemen arrived shortly.  A female security guard saw the defendant on the ground floor; she intercepted him and had him handed over to the firemen.  They escorted him to the 31^st floor.  Next, the police arrived and arrested the defendant for two offences of arson; under caution, he said he had burned the iron grilles of both units.  The police found a lighter in his trouser pocket.

5.  A house search was conducted at the defendant’s residence at Room 3203.  The police found on the floor of the bedroom a plastic bottle containing what was later determined to be 173 ml of a liquid with traces of methamphetamine hydrochloride, commonly known as “ice”.  Under caution, the defendant said he used the “ice” paraphernalia for consuming “ice” (the third charge).

6.  Ms CC Yiu, occupier of Room 3102, confirmed that a 15cm rod affixed to the iron grille of her unit was blackened and that an iron plate was broken.  In addition, she discovered that her umbrella, which was originally hung on the iron grille, was burned.  The umbrella was worth $30; the cost of repair of the iron grille was $2,000.

DCCC 1057/2015

7.  On 6 October 2015, the defendant secured an employment with Wang Fai Electrics Company as a salesperson at Shop Nos.11-12, Ground Floor, Hop Yick Commercial Centre, No.33 Hop Choi Street, Yuen Long, New Territories.  On the morning of 27 October 2015, Madam Fan, proprietress of the company, arrived at the shop only to find its cash register ringing and that about $460 cash had gone missing from it.  Next to cash register, she found three RMB¥100 banknotes and one HK$100 banknote. On viewing the CCTV records of the shop, she discovered, first, the defendant had, after the close of business the previous evening, taken money from the cash register, and secondly, at around 8:00am on 27 October 2015, he returned to the shop and put some banknotes near the cash register.  The defendant did not turn up for work that day.  When he reported for duty the following day, ie., 28 October 2015, a police officer was called to the shop.  The officer conducted a body search on the defendant and found in his possession two keys which could open the side gates of the shop.  Madam Fan had never given the defendant any keys to enter the shop.  The police officer arrested the defendant.  Under caution, the defendant admitted that he had, without Madam Fan’s knowledge, kept the two duplicate keys with which to enter the shop on the evening of 26 October 2015 and stole $460 from the cash register because he needed money; on the morning of 27 October 2015, he placed RMB¥300 and HK$100 near the cash register as compensation.

MITIGATION

8.  The defendant was born on the mainland in June 1988 and is now 27 years old.  Single, he has worked as a part-time decoration worker for some five years after completing Form Five in Hong Kong.  He has four criminal conviction records involving five charges, two of which are for possessing dangerous drugs.  He is a drug addict.

9.  In his plea in mitigation, Mr Charles Chiu appearing for the defendant agrees that when he committed the burglary offence on 26 October 2015, the defendant was on bail for the offences which have taken on 10 September 2015.  Mr Chiu submits that the defendant has been abusing “ice” for six years up to September 2015 when he committed the arson offences.  The defendant has not, says Mr Chiu, considered the consequences when he started the fire, but he has made effort in extinguishing the flame.  In respect of the burglary offence, Mr Chiu says that the defendant has run out of cash, so he used the duplicate keys to enter his employer’s premises to steal the money; but he has compensated his employer shortly after the commission of the offence.

10.  At the sentencing hearing today, Mr Chiu hands up a letter written by the defendant himself in which the defendant explains he has now realized his own problems and pledges to turn over a new leaf.  Mr Chiu asks the court to consider the principle of totality and to pass a lenient sentence on the defendant.       

CONSIDERATION

DCCC1063/2015

11.  Arson committed in a multi-storey, residential building is an extremely serious offence, for fire once started is unpredictable and can get out of hand resulting in property damage, severe injuries, and even loss of life.  The arsons with which this court is concerned were committed in the dead of night when the occupiers of the building were, or were expected to be, sound asleep.  Worse, the defendant persisted in his conduct by setting fire at two locations in succession.

12.  The Court of Appeal has been reluctant in laying down a tariff sentence in this kind of cases, given that the degree of seriousness of the offence depends on the facts of the case.[1]  However, a starting point of at least four to five years[2] has been considered appropriate in situation where the defendant has acted in extreme stress[3]on the spur of the moment and where the degree of danger to persons is unclear[4].

13.  In HKSAR v Kung Pak Fu[5], a case in which the arsonist himself suffered second-degree burns covering 30% of his body, the Court of Appeal said:

“16. In order to protect the lives and properties of the public from serious threats, acts of arson – in particular those relating to triads or involving intimidation or revenge – must be sanctioned with heavy, deterrent sentences. …

22. In HKSAR v Cheung Wing Siu CACC 76/1998, … the defendant, who had an argument with his father, vented his anger by pouring inflammable liquid over the furniture in the house and setting it ablaze. Although the fire was contained quickly, the defendant’s conduct had plainly put the lives of his father and other residents at risk. The first instance judge adopted a starting point of 4 years, and this was upheld by the Court of Appeal. …

24. … In our view, this case stemmed from nothing more than a family dispute and the applicant committed the offence on the spur of the moment and in extreme anger. There was evidence that the applicant was an irascible person. The relevant psychologist’s report also indicated that the applicant was addicted to drinking and alcohol would diminish his ability to control himself. When drunk, the applicant would very easily become irritated and quarrel with his wife. …

26. We do not intend to make any comment to the effect that the present offence is trivial, still less to diminish the applicant’s culpability for that reason. As we see it, however, there are a number of mitigating factors in the present case. …

34. Had the applicant persistently committed the offence of arson, the court would, in the interests of the public, certainly have passed a sentence comparable in severity to the one imposed in the case of HKSAR v Lo Po Tak [1998] 3 HKC 485. We consider that there are circumstances in the present case that justify a merciful approach to sentencing. …

35. Notwithstanding the serious nature of the offence committed by the applicant, the original sentence of 6½ years’ imprisonment is, in light of the mitigating factors, manifestly excessive. In our judgment, a term of imprisonment of 4 years is sufficient.”

14.  In light of the above authorities, the appropriate starting point for each of the two arson offences should be one of four and a half years’ imprisonment.  The defendant is entitled to one-third discount for his guilty pleas.  For each of the arson offences in the first and second charges in DCCC1063/2015, the defendant is sentenced tothree years’ imprisonment.  The proper starting point for the third charge in this case is one of three months’ imprisonment, which is reduced, on account of the defendant’s guilty plea, to two months.  In consideration of the totality principle, the sentences for the three charges are to be served concurrently, resulting in a total sentence of three years’ imprisonment.

DCCC1057/2015

15.  The guideline sentence for a burglary offence committed in non-domestic premises is one of two and a half years’ imprisonment.[6]

16.  In SJ v Tsang Ho Yin, Anthony[7], the Court of Appeal said:

9. More recently, in a case to which Mr Zervos also referred, it was stated in the judgment given on 30 May 2001 in HKSAR v Sim Ka-wing, CACC 450/2000 (unreported) that:

“The conventional starting-point of 2½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.” (emphasis supplied)

10. It is plain, as Mr Zervos accepted, that the respondent had long since ceased to work at the estate for the company which was responsible for its maintenance. It is apparent that this was not a ‘breach of trust’ case in the sense referred to in R v Barrick [1985] 81 Cr.App. 78. Nevertheless, the fact remains that this was not by any means an opportunistic burglary. The respondent had kept the key to the premises, from the time his employment had been terminated in mid-2002, until 30 December 2003 which is indicative of premeditation on his part. Furthermore, he was able to use his particular knowledge as a former employee at the estate to commit the offence and it is not without interest that the respondent was equipped with a handcart to take this sizable stolen item away which is indicative of an awareness on his part of the property he was likely to find inside the premises which, we note, had no window. (emphasis supplied)

11. Realistically, Mr Coghlan for the respondent did not seek to suggest that the judge’s starting point could be supported. He accepted that there was no good reason for such a dramatic departure from the guidelines, and that the sentence would, in normal circumstances, necessarily have to be increased.

12. In our view, a sentence falling well below the recognised guidelines, as here, can only be justified where the circumstances are wholly exceptional. We do not consider that this was the situation in the present case. It was a relatively standard burglary.

17.  On the other hand, the Court of Appeal has had the occasion to examine opportunistic burglary in HKSAR v Cheung To Ming[8]. There was insufficient evidence in that case to support a finding that the offender had himself broken into the burgled premises at which to consume some cup noodles.  The Court of Appeal said:

12. We are satisfied in the present case that the only safe basis for dealing with the appellant is to regard him as having been in the same position as a “sneak thief” who was able to walk into the Centre at some stage after one or more others had broken into it. On this basis, the appellant was entitled to receive a lesser sentence than would usually be given for a burglary of this type. We consider that an 18-month starting point would meet the justice of the case having regard to the most unusual circumstances in which it seems the appellant committed this burglary. As the appellant pleaded guilty, the starting point must be reduced by a third to reflect this.

18.  In the present case, the defendant was most certainly not a sneak thief in the traditional sense: he was an employee of the shop from which he has chosen to steal.  That said, there was an absence of any act of “breaking-in”.  The defendant has kept the duplicate keys with which to enter the shop after hours, not to take whatever valuables that might be found there, but to steal a small amount of cash which he returned – substantially,  if not in whole.  A breach of trust case as the present case no doubt is, the degree of breach cannot be described as considerable.  In all the circumstances, a starting point of 18 months’ imprisonment would be sufficient to meet the justice of the case, which is reduced to 12 months for the defendant’s guilty plea.  A further reduction of two months in sentence is appropriate for the substantial restitution the defendant has effected prior to his arrest.  The final sentence is one of ten months’ imprisonment.

CONCLUSION

19.  In view of the fact that the burglary offence was committed while the defendant was on bail, and applying the principle of totality, it is ordered that six months of the sentence in DCCC 1057/2015 is to be served consecutively to the three-year sentence in DCCC 1063/2015, making a total sentence of three and a half years’ imprisonment for the two cases combined.