HKSAR v. AU KWOK WAI, DANIEL

DCCC1201/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1201 of 2011

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Reasons for Sentence

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1.  The defendant has pleaded today to three charges of arson, contrary to section 60(1) and (3) and section 63(1) of the Crimes Ordinance, Cap.200. All three charges are dated 30 August this year.

2.  The particulars are that the defendant, without lawful excuse, damaged a closed-circuit television camera by fire. 

3.  The facts of this case are very simple. 

4.  The defendant lived above the victim.  Prior to this incident, there was a verbal dispute between the parties that led to some bad feeling.  PW1, for his own reasons, installed two small CCTV cameras outside his premises in the stairwell.    

5.  On 30 August, on three separate occasions, this defendant used a lighter to burn the cameras themselves which caused them to blacken and obviously damaged them.  The defendant was subsequently arrested because he was, prior to the damage, caught on the CCTV camera footage. 

6.  He explained to the police frankly that he did not want to be captured on film by the CCTV cameras and so damaged them.  He had had a previous dispute with PW1 and was angry with PW1 and therefore damaged his property.  In a further subsequent record of interview, he felt that the cameras were installed to target him and he was unhappy.  He used a lighter to burn them to destroy them.  He wanted to make sure they no longer functioned.   

7.  The damage is estimated at HK$800.   

8.  The defendant is 27 years old.  He is not a man of clear record.  Since Year 2000, he has committed a series of mainly theft offences that has resulted in a series of punishments that range from probation to Training Centre to short periods of imprisonment. 

9.  He has no previous convictions that relate to arson, which shows he does not have this habit of setting things on fire. 

10.  The unusual fact here is that there is no evidence that anything caught fire.  He did not light a fire but he certainly burnt property with fire.  He has had prior to his arrest employment.  He was employed to work as a waiter, earning $5,000 a month.  

11.  His background is sad.  He was abandoned by his parents when he was 4 and admitted into an orphanage.  When he was some years older, his uncle took care of him.  He has only received education up to a standard of Form 3 and is single and lives alone. 

12.  I do not know if this is why, but he has been diagnosed as having personality problems. 

13.  I have before me two psychiatric reports obtained by Kowloon City Magistracy when the defendant was arrested.  Certainly there is no evidence that he is an arsonist.  There is no psychiatric diagnosis.  He is not suffering from any psychiatric disease or illness.  Both doctors describe him as suffering from personality problems. 

14.  A minor dispute has led to the defendant committing this offence.  An ordinary person may brush it off, but the defendant has personality problems, which may explain why he took this action or took some revenge on PW1.   

15.  Neither doctor recommends psychiatric treatment. However, one Doctor Chow does say the defendant could use follow-up treatment in an outpatient clinic.  I would recommend the defendant consider receiving such outpatient treatment because he may learn to control his emotions and contain his emotions.      

16.  I have before me a letter from a church, Christian Missionary Alliance Sun Kei Church in Tseung Kwan O.  An assistant pastor has written a letter supporting the defendant and asking for leniency.  The letter says the defendant has been an active member of the church for a year, which would coincide with the last time he was released from imprisonment.    

17.  I am sure he is an active member because the church would not go so far as to help him after his arrest to such an extent as clearing his rental property and promising to help him when he is released from custody.   

18.  I have also seen some photographs relating to the damage, and as I have said, this was not a fire lit by the defendant, but damage caused by fire from a lighter.

19.  It is arson but not the worst case of the nature for this offence, not the worst case scenario.  What it is is a very bad case of criminal damage that luckily did not escalate into a fire. 

20.  As has been pointed out by counsel for the defence, there is no tariff guidelines for offences of this nature and the gravity of each case differs from case to case.    

21.  Having considered the facts, the photographs, the gravity of the offence, the background of the defendant, his plea of guilty today, and the fact I am certain that he will not re-offend this particular offence, arson, plus he will not encounter the victim again - I am sure he will not be returning to live in that building - this is not a case that deserves years of imprisonment, but a short sharp shock.   

22.  Defendant, please stand up.

23.  After considering all those factors, I will take for each offence a 12 months’ starting point.  You pleaded guilty, you are entitled to a discount of one-third.  Each charge, you will be sentenced to 8 months’ imprisonment.  They were all committed on the same day within hours.  

24.  All three will be ordered to be served concurrently, a total of 8 months’ imprisonment. 

25.  Do you understand that?

DEFENDANT: Understand.