HKSAR v. LO KIN LOK

DCCC 274/2023

[2023] HKDC 1196

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 274 OF 2023

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REASONS FOR SENTENCE

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1.  Mr Lo pleaded guilty before me to two charges on a Charge Sheet as follows.

2.  Charge 1 is Criminal damage, contrary to sections 60(1)  and 63(2)  of the Crimes Ordinance, Cap 200.  Particulars are that he, on 18 October 2022, at the corridor, 17^th Floor, Shun Hing Building, Nos 314-324 Ferry Street, Mong Kok, Kowloon, in Hong Kong, without lawful excuse damaged one light tube, being property belonging to another, intending to damage such property or being reckless as to whether such property would be damaged.

3.  Charge 2 is 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.  Particulars are that he, on 19 October 2022, outside Flat B, 17^th Floor, Shun Hing Building (detailed address given above), in Hong Kong, (“the said flat”), without lawful excuse destroyed or damaged by fire the wall, the floor, the iron gate and the wooden door outside the said flat, property belonging to another, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged, and being reckless as to whether the lives of others would be thereby endangered.

Facts admitted by Mr Lo

4.  On 18 October 2022, at around 11:37 pm, Mr Lo, being masked and hooded, carried a metal rod to the corridor of 17/F of Shun Hing Building, Mong Kok, and used it to strike at the ceiling on the right side of Flat 17B.  The light tube (“the Light Tube”)  at the ceiling went out as a result requiring replacement.

5.  On 19 October 2022, at around 1:20 am, Mr Lo covering himself with a black umbrella, walked towards the door of Flat 17B.  He inserted a stack of papers inside the door.  He splashed onto the papers some liquid from a white bottle, and burned the papers with a lighter resulting in a significant amount of flames at the door of Flat 17B.

6.  Around 1:30 am on the same day, a security guard while patrolling noticed that there were flames outside Flat 17B.  He stepped on the flames to put them out.  The wall, the floor, the iron gate and wooden door outside Flat 17B were half-burnt.  Burnt debris (“the Burnt Debris”)  were taken by the police for forensic examination.

7.  At the material time on 19 October 2022, Flat 17B was being occupied by PW1 alone.

8.  Shortly after midnight on 20 October 2022, the police arrested Mr Lo at the lobby of Shun Hing Building for Criminal Damage and Arson.  Under caution, Mr Lo said he heard some noise upstairs and so he went there to check it out.

9.  Police seized, among other things, an orange metal rod (“the Metal Rod”)  from Mr Lo’s residence at Flat 16B of the same building.

10.  From the rubbish bin of the staircase of 15/F of the building, the police recovered a 1,000 mL white plastic bottle labelled “Isopropyl Alcohol” (“the Bottle”).  The Light Tube lamp batten (“the Lamp Batten”)  was also seized.

11.  Paint evidence examination conducted on the Metal Rod and the Lamp Batten revealed there were likely to have been physical contacts between the Metal Rod and the Lamp Batten, resulting in a two-way transfer of paint between them.

12.  DNA examination revealed that the DNA obtained from the outside surface of the screw cap of the Bottle could have originated from Mr Lo.

13.  Chemical examination of the Bottle found 430 mL of a colourless liquid mainly isopropyl, which is flammable and commonly used in rubbing alcohol.  Traces of isopropyl alcohol were recovered from the Burnt Debris.

14.  Mr Lo now admits that at the material time, he had without lawful excuse damaged the Light Tube with the requisite mental element; and he had without lawful excuse destroyed or damaged by fire the wall, the floor, the iron gate and the wooden door outside Flat 17B with the requisite mental element.

Criminal record

15.  Mr Lo has a previous clear record.

Antecedents

16.  Mr Lo is 28 years old (27 at the time of the offences), educated to university degree level, unemployed at the time of arrest.  Mr Lo is single and resided in Mong Kok.

Mitigation

17.  Mr Ho Ching Him of counsel mitigated on behalf of Mr Lo.  The following is a summary of the mitigation submissions.

18.  In 2009, when Mr Lo was only 14 years old, he was brutally attacked in a park by a man with a machete after a dispute.  Mr Lo sustained serious injuries to his hand, back and neck.  He received over 40 stitches at the hospital.

19.  After the attack, Mr Lo began to suffer from serious physical and emotional problems.  He became hyper-sensitive to noise and would get anxious easily.  The constant flashbacks of the violent attack have made him extremely difficult to concentrate on his study and daily life.  As a result, Mr Lo started to elicit suicidal thoughts in 2012.  After seeking professional help, he was diagnosed to be suffering from depression.  He had to suspend his study and stay at home for rest.

20.  Aside from his mental issues arising from the attack, Mr Lo also suffers chronic headache and severe pain in his lower jaw, reasons being unknown.

21.  The cumulative effect of all these issues is that Mr Lo had difficulty sleeping and was often feeling fatigued due to lack of rest.  He has consulted various experts with a view to resolving his recurring insomnia problem.

22.  As part of his treatment, he received bilateral tonsillectomy in 2019.  He has also regularly consulted Chinese medical practitioners.

23.  Because of his health concerns, Mr Lo was unable to look for a job.

24.  Despite his health condition, over the years, Mr Lo has completed a Higher Diploma programme in film and television and a Bachelor of Arts programme in media.

25.  There is no sentencing guideline for the offence of arson: HKSAR v Kung Pak Fu (transliteration), CACC 429/2007 (Chinese judgment).

26.  For the offence of arson, Mr Ho referred to the following first-instance sentencing cases for my reference:-

(a)  HKSAR v Law Yat Cheung, DCCC 435/2017;

(b)  HKSAR v Hung Pang Chi, DCCC 815/2012;

(c)  HKSAR v Hui Man Pow, DCCC 35/2009; and

(d)  HKSAR v Wong Pak Keung, DCCC 691/2012.

27.  In short, Mr Ho submitted that given the right facts and circumstances, a starting point ranging from 12 months to 48 months is possible; even a probation order or community service order might sometimes be appropriate.

28.  There is likewise no sentencing guideline for the offence of criminal damage.  Mr Ho submitted that sentencing options in the past included probation orders and community service orders.  Mr Ho referred to the following magistracy appeals for my reference:-

(a)  R v Chan Sam Man, HCMA 647/1996; and

(b)  HKSAR v Ng Kwok Leung (transliteration), HCMA 942/1997 (Chinese judgment).

29.  Mr Ho tried to demonstrate by those two cases that suspended sentence as well as a short term of imprisonment in the tune of 6 months after plea are both possible given the right facts and circumstances.

30.  Mr Ho emphasized the less serious aspects of the present case:-

(a)  Only 1 light tube was damaged (Charge 1 refers);

(b)  The parts damaged by fire were confined to the wall, floor, gate and door outside of the flat;

(c)  No property was damaged inside the flat; and

(d)  No one was injured.

31.  Mr Lo is prepared and ready to make full compensation of $15,000 being total repair cost of iron gate and wooden door.  Through the assistance of the prosecution and the police, that compensation has successfully been paid to PW1 by electronic means today.

32.  While Mr Lo is fully aware that there is no justification for committing offences, his suffering due to health issues have caused him to use foolish acts to stop his neighbor living on the floor above from making noise so that he could sleep.  Mr Lo is deeply remorseful for what he has done.

33.  Mr Ho submits that in view of the personal circumstances of Mr Lo, rehabilitation over deterrence should be called for in sentencing Mr Lo.

34.  Mr Lo would like to take this chance to apologize sincerely for his foolish acts.

35.  Mr Ho asks for a probation order and/or a community service order suitability report and submits that with the support of Mr Lo’s family, friends and the probation officer, Mr Lo would learn to effectively control his emotions through regular supervision sessions and/or community service.

36.  Alternatively, in the event of an imprisonment sentence, it is submitted that a low starting point is called for given that the gravity of the present case is lower.  Drugs, triad gangs or physical assaults were not involved.

37.  Mr Lo pleaded guilty at an early stage and voluntarily offered to make full compensation.  He has a clear record.  He acted completely out of character.

38.  The two offences occurred very closely in time with each other. They happened at almost identical location outside the flat above Mr Lo’s flat.  In consideration of the principle of totality, it is submitted that the sentences should run concurrently with one another.

39.  A lenient sentence is asked for.

40.  Mr Ho submitted a total of 10 mitigation letters on behalf of Mr Lo.  They were written in Chinese by respectively 2 long-term friends, 3 other friends, one secondary school-mate, father, mother, a pastor, and a missionary.  The contents are generally that Mr Lo was a filial, helpful, kind, positive, righteous, self-disciplined, upwardly mobile person; that Mr Lo is remorseful and wishes to turn over a new leaf.  The writers asked for a lenient sentence for Mr Lo so he may start afresh at an earlier time.

41.  Today, Mr Ho submitted yet two other mitigation letters in Chinese written by Mr Lo himself and a Chaplin.  The contents are generally that Mr Lo feels guilty for and is regretful of his conduct and now is determined to turn over a new leaf and head towards his goal of becoming a screenwriter.  Both writers asked for leniency; in particular, Mr Lo asked for an early return to home so he may take care of his aged parents.

42.  Upon enquiry by the court, Mr Ho submitted that the defendant committed the offences because of noise generated by PW1 after she routinely woke up early in the morning and did exercise at home.

Sentence

43.  Prosecution informed the court by letter that the victim PW1 is an old lady aged 84.

44.  In court, prosecution showed a CCTV footage running from 01:20:00 to 01:24:11 on 19 October 2022 showing how the defendant committed the arson offence and its aftermath.  Prosecution also produced 5 photographs showing the bottle of Isopropyl Alcohol and the Brunt Debris outside the subject flat.

45.  The maximum penalty for an offence of arson is life imprisonment.  The maximum penalty for an offence of criminal damage is 10 years’ imprisonment.

46.  Arson is a particularly heinous offence.  What make this case serious was that the offence took place in the middle of the night outside a high-rise flat housing a lone lady in her 80’s whose passage of exit would necessarily be blocked should the fire get out of control.  Luckily for the lady, the fire did not get out of control.

47.  For this reason, an immediate term of imprisonment is the only viable sentencing option.

48.  I bear in mind there was a degree of premeditation in the perpetration of both offences because:-

(a)  There was no immediate provocation;

(b)  The defendant came prepared with tools; and

(c)  The defendant camouflaged himself to hide his identity.

49.  As compared with the second charge of arson, the first charge of criminal damage is much less serious and I can therefore be more lenient with Mr Lo when adopting a starting point of sentence.

50.  For Charge 1, taking into account a tool was used, I adopt as starting point 9 months’ imprisonment.

51.  For Charge 2, I adopt as starting point 3 years’ imprisonment.

52.  Mr Lo pleaded guilty in good time for which he shall enjoy the customary 1/3 discount in sentence on each charge.

53.  For his previous clear record, I shall further knock off one month after the 1/3 discount on Charge 1 only.  Arson is simply too serious an offence for which a previous clear record will carry any meaningful weight as a mitigating factor.

54.  Under Charge 2, because of Mr Lo’s voluntary compensation of the repair cost which has been fully paid up, I shall knock off one month after the 1/3 discount.

55.  There are no other mitigating factors of worth to cut down the sentence further.

56.  The two offences though perpetrated closely in place and time were carried out by Mr Lo in two separate sorties.  Subject only to the principle of totality, the sentences ought to be served consecutively to one another.

57.  In passing the final sentence, I will take into account the principle of totality.

(Mr Lo, please stand)

58.  For Charge 1, the sentence is 5 months’ imprisonment

59.  For Charge 2, the sentence is 23 months’ imprisonment.

60.  I order that 2 months of the sentence on Charge 1 is to run consecutively to the sentence on Charge 2, making an aggregate sentence of 25 months’ imprisonment.