HKSAR v. Lam Kam Loy

HCCC 201/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 201 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

I don’t propose to keep you in suspense. You are going to prison for 6 years. When I have left court, Mr Chan will explain to you when you are likely to be released, bearing in mind the length of time you have been in custody on remand.

You have pleaded guilty to two counts of the most serious form of arson. You did not start the fire because you were intending just to damage the flat. Nor did you start it simply without caring whether the lives of other people would be endangered. By your pleas of guilty to Counts 3 and 4 in the indictment, you acknowledge that you started it because you intended to put the lives of other people in danger. And it was not just your wife’s life that you intended to put at risk. By your plea of guilty to Count 4 in the indictment as well as to Count 3, you admit that you were intending to put the life of your daughter in danger as well. The prosecution’s acceptance of your pleas of not guilty to Counts 1 and 2 in the indictment means that it is no longer alleged that you intended to kill your wife and your daughter. But what your wife says about you trying to stop her from leaving the bedroom in which she slept with your daughter when the fire had started to spread there is entirely consistent with your intention to put their lives at risk.

I know that your life was in crisis at the time. Your marriage had been in disarray for many years. Indeed, only a few days earlier, you and your wife had been talking about getting a divorce, and an appointment had been made for the two of you to see a lawyer. I know that you say that you had a change of heart about that, and that you asked your wife for a reconciliation. Indeed, it looks as if you did not think that she was really going to leave you, because she says that on the evening in question when she returned home from playing mah-jong, you asked her if she really was leaving. She told you that she was, and that she would be moving out the day after next following your daughter’s return to Korea.

Having said all that, starting a fire in which your wife’s life might be endangered had been something that you had been considering for a while. You are alleged to have told the police that it was about 10 days previously that you had bought the thinner you were eventually to use as an accelerant. Indeed, your wife says that in the course of an argument about a week before you started the fire, you threatened to burn her and your daughter to death. She says that she ignored that since it was something you had often said. But since you repeated later in the argument that you would burn your wife to death, it looks as if, even by then, this was something that you were thinking of doing.

Nor was your ultimate decision to start a fire on the night in question a decision which could be said to have been made on the spur of the moment. If what you are alleged to have told the police is anything to go by, you must have been brooding for some time that night over her confirmation earlier that evening that she would be moving out of the flat in a couple of days. I say that because you are alleged to have told the police that you had taken the thinner out because you were intending to start a fire, but that it took you another 40 minutes or so before you actually did so. It may well be that your inhibitions had been dulled by alcohol, but you have only yourself to blame for that.

I take into account in your favour that this was not, of course, one of those cases involving intimidation or blackmail, like cases with a triad or loan shark connection, nor even a case of retaliation or revenge. You did what you did as a result of your distress over your wife’s decision to leave you after many years of marriage. I also bear in mind that the injuries which your wife and daughter received were relatively minor, but the blisters on the lower part of their legs and feet suggest that they might have had to make their way through the fire to escape its effects, and they must have been terrified at the time.

I also take into account that after you had started the fire, you must have been in an acutely fragile frame of mind to have tried to commit suicide. There may have been a strong element of self-pity about that rather than an overwhelming sense of guilt about what you had done, but it has not been suggested that this was not a genuine attempt to take your own life. Finally, I bear in mind everything I know about you, including your history of unemployment and your drift into alcohol, the fact that you are now 59 years old and have no previous convictions, that you gave yourself up to the police, and that your wife and daughter are standing by you, despite your admission that you intended to put their lives at risk, they still cannot believe that you started this fire with that intention.

The sentences which I impose have to reflect the fact that you have pleaded guilty to the most serious form of arson, and that you intended to endanger the lives of both your wife and your daughter. The danger of starting a fire in a flat in a multi-story residential building late at night, when the building might be expected to be at its most occupied, has rightly been regarded as another aggravating feature in view of the havoc which can be wreaked if the fire spreads unexpectedly. On the other hand, the sentences must reflect the turmoil your life was in at the time, and that your behaviour on the night in question was entirely out of character.

The only previous case which has been cited to me is HKSAR v Kung Pak Fu, but I do not think that the sentence which the Court of Appeal thought appropriate in that case is all that helpful. In that case, the court proceeded on the assumption that the offender had acted on the spur of the moment. Moreover, it was a case in which the offender had simply been reckless as to whether the life of someone else would be endangered. That is very different in terms of culpability from the case of someone who actually intends to put the lives of other people in danger and then tries to stop them escaping. The various cases referred to in the judgment in that case give me an idea of the range of sentences which might be appropriate in cases of arson. But so far as I can tell, none of those cases, nor any other case, dealt with an offender who had to be sentenced for arson with intent to endanger life, certainly not in the domestic context. Indeed, the approach of the courts in other cases is less helpful when it comes to offences of arson, than might be the case with other offences because the gravity of the offence of arson depends so much on the facts of the particular case in question and apparently similar cases can differ very widely when the facts are examined in detail.

Bearing in mind all the factors I have mentioned, I propose to take 9 years’ imprisonment as my starting point. You are entitled to have your sentences reduced by one-third because of your pleas of guilty, even though they were tendered on the day your trial was due to start. That is because the date for your trial had already been fixed by 2 September, which was when the Court of Appeal created a new regime for giving credit for pleas of guilty. That means that the sentences which I pass on the two counts of arson with intent to endanger life in the indictment to which you have pleaded guilty - Counts 3 and 4 - are 6 years’ imprisonment on each count, those terms to be served concurrently with each other, making 6 years’ imprisonment in all.