HKSAR v. Ma Chak Tin

DCCC 795/2017
[2018] HKDC 155

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 795 OF 2017

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REASONS FOR SENTENCE

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1.Defendant pleaded guilty to a charge of criminal damage brought under section 60(1) of the Crimes Ordinance, Cap 200, and was so convicted.

2.According to the agreed facts, Mr Li (PW1) is the landlord of a flat in Sham Shiu Po and the defendant is his former room tenant.  When the tenancy expired in November 2016, the defendant was not contactable.  In April 2017, PW1 recovered possession of the room and discarded the defendant’s belongings.

3.On 18 April 2017 at around 5:30 pm, PW1 and his wife (PW2), were in their medicine shop, situated on the ground floor of a building not far from the rented premises.  Defendant was seen holding a can of suspected lighter fluid and had an oral confrontation with PW1 and PW2.  He asked why PW1 vacated his room and made the gesture as if to open the can of suspected lighter fluid.  PW1 asked defendant to leave but he kept on harassing them.  He stayed on outside the shopfront for about five minutes and left.

4.At around 7.30 pm on 19 April 2017, ie the offence day, PW1 was told by the staff of the neighbouring shop that the defendant was standing some distance nearby, outside his shop.  There was a motorcycle helmet and a bottle of paint thinner by his side.

5.After a while, PW1 saw the defendant holding another bottle of paint thinner walking towards his shop and then he poured the paint thinner outside his shopfront, on top of the goods placed there, namely, 17 packets of tissue valued at $159.50.

6.PW1, PW2 and one customer in the shop then shouted and ordered defendant to stop, but he continued pouring the liquid for a few seconds before he started to run away.  The three PWs gave chase and defendant was intercepted. During the chase, defendant threw the bottle on the floor, glass shattered and defendant was subdued and handed to police. 

7.Defendant was found to have two cigarette lighters on his body and some distance away a glass bottle of paint thinner and a motorcycle helmet were found.  The possession of the helmet was denied by the defendant.  The glass fragments from the bottle that the defendant previously threw on the floor were also found.  The other bottle found on the floor are found to have contained highly inflammable organic solvent and the 17 packets of tissues were also been found to have been tainted with such substance.

8.Defendant is not a man of clear record.  He has three previous, including AOBH and arson.  He was released from prison in 2009 and has since been out of trouble for eight years.  I do not find his record an aggravating factor that warrants sentence enhancement.

9.His counsel said in mitigation that the defendant is aged 38, single and educated only up to Form 3 and that his only member of family alive was his elder sister. He was unemployed at the material times. 

10.His counsel submitted that the defendant committed the offence merely to scare the PWs and not really to carry out the threat of setting fire.

11.I am persuaded by this argument on what is before me.

12.In this case, defendant was convicted of criminal damage and he will be so sentenced accordingly.  There is no tariff or guidelines on criminal damage convictions, each case must depend on its own facts and the circumstances under which the offence was committed obviously had to be taken into account.

13.On the defendant’s case, he had intentionally committed the act to scare the PWs that he would set fire to the shop but he has no intention of doing so.  This was done because PW1 had discarded his belongings earlier.  It is admitted that defendant did approach the PWs the day before the offence date, holding a can of suspected petrol and harassing them before departing and he had committed the present offence the day after and therefore one cannot say that he committed the present offence on the spur of the moment.

14.In committing this act, he admitted that he had brought two bottles of highly inflammable substance to or near the shop in question and that he continued pouring the inflammable substance onto the goods even though PWs yelled at him before he fled.

15.There is no evidence that he was suffering from any psychiatric or psychological illness. 

16.The court also noted the value of the goods was less than HK$200.

17.I can say, this is not the most serious kind of criminal damage, but again, not a simple case of criminal damage in any event.

18.In the circumstances of this case, immediate custodial sentence is the only appropriate option.  Having regard to the circumstances under which the offence was committed, I consider that 15 months’ immediate custodial imprisonment is an appropriate starting point for the sentence of this case.

19.The only mitigating factor of the defendant is that of his timely plea of guilty and for this he will be granted the one-third discount.

20.Discounted sentence of the charge is therefore 10 months’ imprisonment after plea.