HKSAR v. LEE WAI LEUNG

DCCC 189/2018

[2019] HKDC 220

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 189 OF 2018

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Reasons for Sentence

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1.  The defendant faced a total of three counts of arson in the charge sheet. Upon plea bargain, the defendant now pleaded guilty to Charges 2 and 3 and was convicted accordingly. Charge 1 is now left on the court file.

2.  In the light of the defendant’s psychiatric condition, I called for two psychiatrist reports and adjourned the sentence to 8 February. For some reasons unknown, despite the fact that on 2 August 2018 the presiding judge fixed the case for trial for 21 January 2019 and ordered that this trial be conducted in Chinese, the current proceedings are being conducted in English. No leave was applied for nor was there any notice in advance that the medium of language will be changed from Chinese to English.

Brief Facts

2nd Charge

3.  At about 1:42 am on 6 November 2017, upon a report, the fire fighters arrived at the flyover opposite to Chuk Yuen Estate multi-storey car park in Wong Tai Sin. They saw that two motorcycles bearing the registration number UP 3690(M2) and UM 6701 (M3) were on fire. The owner of M2 and M3 said that the value of M2 was around HK$16,800 and that of M3 was around HK$35,000 respectively. The defendant deliberately set fire on those motorbikes.

3rd Charge

4.  At about 1:05 am on 7 November 2017, three motorbikes, namely, UK 1117 (M4), UC 8013 (M5) and RB 2845 (M6) which were parked outside Wai Yuen House, Chuk Yuen North Estate, Wong Tai Sin, were set on fire. The defendant deliberately set fire on these motorbikes. The owner of the said three motorbikes said the value of M4 was about HK$58,000 odd and the cost of repair for M5 and M6 was HK$10,000 each.

Arrest of the Defendant

5.  On 14 November 2017 or at about midnight of 15 November, the defendant was seen walking and acting suspiciously when the defendant suddenly stopped and looked at a motorbike parked on the pavement near Sha Tin Pass Road and Lung Fung Street. The defendant was intercepted by a police officer.

6.  Upon verbal caution, the defendant admitted that he set fire thrice to the vehicles just for fun. The defendant said he was stressful and did not know the seriousness and consequences of the action.

The letter from the Defendant

7.  When the defendant was remanded in jail custody, he wrote a letter dated 10 December 2017 to the officer in charge of the case saying that another person called Chan Wai-leung also joined him in setting fire to the motorbikes and wanted the police to arrest Chan as soon as possible.

Mitigation

8.  The defendant is now aged 31, was born in Hong Kong and received up to Form 3 education.  He is single and lived with his parents and younger sister.  The defendant is a CSSA claimant.  He has previous records with one similar in November 2007, for which the defendant was sentenced to the rehabilitation centre.

9.  Defence counsel brought the court’s attention to paragraph 4 of Dr Siu’s report and paragraph 5 of Dr Lam’s report when the defendant told the psychiatrists that he denied having committed the index offences. Defence counsel maintained that the defendant knew his legal position and admitted that he did set fire to those motorbikes, subject matters of Charges 2 and 3.  It was submitted that the defendant is being taken well care of by CSD officers in that the defendant is taking medication as advised. Defence counsel asked the sentence of the two charges be made concurrent or at least mainly concurrent. When asked, defence counsel sought instructions from the defendant who said that he set fire to those motorbikes by using matches. However, the defendant does not smoke and he claimed that he just found the matches on the street.

10.  Defence counsel submitted two cases for consideration: HKSAR v Kong Man Lung CACC 408/2012 and HKSAR v Li Lin Shum CACC 82/2015. It was submitted that a starting point of 3½ years would not be too excessive, but counsel asks this court to be lenient to the defendant as he is suffering from mental illness. The defendant has been remanded since November 2017 and he cannot afford to compensate the victims financially. The defendant accepts that he cannot have a full one-third discount due to his late plea, but hopes that the court can allow 25% discount. The defendant’s mother and social worker are in court to show their support.

Sentence

11.  The 31-year-old defendant had a total of 47 criminal records since 2006. In November 2012 and March 2013, the defendant was convicted of a total of 32 counts of causing wasteful employment of police.

12.  In the present case, there is no evidence to show that the defendant was premeditated in setting fire to those motorbikes. If the defendant does not smoke, I would find it hard to believe that he happened to find some matches on the street before he committed the present offences. From the Summary of Facts, it seems that the defendant was fishing for those motorbikes which appealed to his eyes. The strength of the prosecution case relies on the defendant’s verbal admission and his plea.

13.  The two psychiatrist reports maintained similar approach saying that the defendant is fit to plead and stand trial. The defendant was known to mental health service since December 2011.  The psychiatrists are of the opinion that the defendant has been suffering from borderline to mild grade mental retardation with no or minimal impairment of behaviours and suspected psychosis. After his treatment when being remanded, the defendant showed that his mental condition had been improved. It was recommended that further inpatient treatment is not mandatory and continuation of psychiatric treatment with follow-up community psychiatric service is advisable.

14.  To some extent, it is fortunate that no one got injured because of the arson. But the defendant had caused total loss to several motorbikes. There is no information as to whether these motorbikes are covered by insurance or not, but as said by the Court of Appeal in R v Li Mun Tong CACC 309/1994, “Arson, because of the inherent danger in any uncontrolled fire, is always regarded as an offence of particular gravity.  Arsonists exhibit disregard for life and property.”  The court in HKSAR v Li Lin Shum (supra) further said, “given the need for the courts to deter likeminded people from committing similar conduct in vulnerable public places”, a heavier sentence might have to be imposed.

15.  From what was said by the defendant to the psychiatrists, I am of the view that the defendant could not be said to be remorseful. That said, I have to consider the defendant’s mental condition and he being diagnosed to have borderline to mild grade mental retardation. The fact that the defendant committed the two offences shortly demonstrates the danger that the defendant can pose to property which can become uncontrolled and has the potential to cause greater danger to life and property.

16.  Taking all circumstances into account, I will adopt a starting point of 3 years for both charges and reduce it by 25%. Hence I sentence the defendant to a term of 27-month imprisonment, both sentences to be served concurrently. I do hope that the defendant’s parents and younger sister can make sure and supervise the defendant to seek medical help and take medication regularly so that the defendant will not commit any criminal wrongs again.  It is not easy but that should be one of the goals in the Lunar New Year.