HKSAR v. LOK CHI SHING

CACC 72/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 72 OF 2003

(ON APPEAL FROM HCCC 224 OF 2002)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1. On 17 February 2003, the Applicant was convicted on counts of attempted arson and arson being reckless as to whether life would be endangered, following a trial before Deputy Judge Line and a jury in the Court of First Instance. The Applicant was sentenced to a term of eight years' imprisonment in total against which he now seeks leave to appeal out of time.

2. The Applicant applied for leave to appeal against conviction within a few days of his conviction in February 2003. It was not until 11 August 2003 that he sought leave to appeal against sentence. This was 10 days after his application in relation to conviction had been dismissed. The reason he has given for the delay, which we have to say was wholly unacceptable, was that he had been awaiting the outcome of his application regarding conviction before making the present application.

3. The two offences were committed in June 2001 at the same premises, nine days apart, and they were part of an ongoing campaign to intimidate the victim.

4. The Applicant was a debt-collector who was seeking to recover money allegedly owed to someone who had promised to pay the Applicant 50% of the proceeds if he could recover the debt. The offences took place on the 34th floor of a public housing block. On the second occasion, when the full offence of arson was committed, a primitive incendiary device was used. This offence, as the jury found, had the potential to put the lives of others at risk in the building. The only reason that in the event, little damage was done was that a neighbour intervened.

5. The Applicant is no stranger to the courts. He has 13 previous convictions which include, albeit a considerable time ago, offences of criminal intimidation and criminal damage.

6. The facts of this matter appear fully in the judgment (also CACC 72/2003) which was given on 1 August 2003.

7. The judge's words in sentencing the Applicant aptly describe the seriousness of these offences and we shall repeat, without further comment, what he said:

".... You are a debt collector who resorted to arson. In doing that, you were reckless as to whether the lives of others would be thereby endangered. The debtor, who had already had paint daubed on his premises, had installed a close circuit television to monitor the outside of his door, and he had moved his family to another address in fear of such conduct.

On 20 June of 2001, you attempted to damage the debtor's door by fire. You were disturbed before lighting the accelerant-soaked cotton you had laid in position against his door. You then telephoned him to say that he and his family had been lucky this time but would not be so next. Next time was on 29 June. You created an incendiary device with cotton, accelerant and lighters. It is right to say that its operation was low key, but that suited your purpose which was to set the man's door on fire.

This time - and this is Count 2 on the indictment - you successfully lit the material. The door was damaged, but not set alight, but that was due only to the lucky and timely intervention of the neighbours. The flat at the time happened to be empty.

This did not involve your personal debt. The debt had arisen between a man called Li and the tenant of the premises in question in the building trade.

I do not accept that anyone owed you money for working on a building site which had not been paid to you as your wages. The truth was that which you told the police in your interviews that you agreed to go fifty/fifty on any proceeds you could get by your means of recovering the debt. It comes to this: for your own greed, you were prepared to commit arson, and the motive behind that form of criminal damage was one of intimidation.

Your action on 29 June on the (34th) floor of this public housing block was one that created an obvious risk of endangering lives and it is absolutely no surprise the jury convicted you of the aggravated form of the offence. The criminal excesses of debt collectors involving arson are a feature of crime in Hong Kong. It is a matter of public disquiet. It is a matter where the courts are bound to take a grave view. Conduct such as yours cannot be tolerated. There is nothing in your personal circumstances that mitigates your situation. At 44 years of age, your record shows you to be a persistent thief and a man with 13 previous court appearances.

I shall take a starting point for sentence of seven years on Count 2. I remember that the case was put on the basis of recklessness as to the endangerment of life. If it had been put on the basis of an intention to endanger life, the starting point would have been in double figures in these circumstances.

In relation to Count 1, I shall take a starting point of four years. This was, in effect, one campaign against the debtor, but the repetition of your conduct is some aggravation which has to be reflected in the overall sentence. In those circumstances and with an eye to totality, I shall overlap the term on Count 1 by three years with the term on Count 2, and I shall order that one year of it run consecutively to the seven years on Count 2, making a total of eight years' imprisonment.

The message must be clear to anyone minded to enforce repayment of debt by arson: if you are caught, you will face a long term of imprisonment....." (Appeal bundle pp. 229-230)

8. The Applicant has put forward no grounds for mitigating the gravity of these offences. Leave out of time is therefore refused and the application is dismissed.

9. Having regard to the absence of any merit to this application, we shall order that three months of the time the Applicant has served pending this application shall not be counted towards the sentence he is serving. This order is pursuant to section 83W of the Criminal Procedure Ordinance, Cap. 221. For the avoidance of any doubt, the order we have made is additional to the order which was made at the conclusion of the proceedings on 1 August 2003.