HKSAR v. Lo Yik Hang

DCCC 98/2021

[2021] HKDC 929

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 98 OF 2021

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REASONS FOR SENTENCE

The defendant faces a charge of "Possession of things with intent to destroy or damage property" (Charge 1)  and 19 charges of "Criminal damage" (Charges 2 to 20).

2.He pleaded guilty to Charges 1, 3 to 11 and 13 to 19.  I granted the prosecution's application to leave Charges 2, 12 and 20 in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

Charge 1

3.About 10:25 a.m. on 30 September 2020, near Exit A at Kwai Fong MTR Station, PC 26305 stopped the defendant for enquiry.  Upon search, these items were found in his pockets:  1 bottle of diluted red poster paint; 1 pair of gloves with traces of red poster paint; 1 pen; 3 dunning notes; 2 packs of tissue containing a piece of tissue with traces of red poster paint; and 7 tubes of red poster paint (collectively "the Items").

4.Under caution, the defendant admitted that he had just used the Items to splash red paint.  Two tubes of red watercolour paint and 1 lined paper pad were later found in his residence.

5.In his video recorded interviews, the defendant admitted that he lost his job last year (i.e. 2019)  due to social events.  He had some outstanding debts.  He saw a job on Facebook, which was to splash red paint at designated locations.  He knew it was wrong, but it was difficult to switch back to a restaurant job owing to the pandemic.  The defendant said he was asked to buy some red paint.  He bought some watercolour paint instead since it would cause less damage.  He also bought a sauce dispenser bottle ("the Bottle").  He put the watercolour solution in the Bottle.

6.The defendant claimed that he would receive the address of the target location and the debtor's information through WhatsApp.  He would then write a dunning note.  He wore gloves during a job.  He first made the dunning note wet and stuck it next to the entrance of the location.  He then splashed the red solution at the entrance using the Bottle.  Afterwards, he would take a picture of the location and send it to "Jacky" by WhatsApp as proof that he had done the job.  The defendant would receive $500 per location.  He admitted that he had used and was intending to use the Items to splash red paint and to write and stick dunning notes at various locations.

7.The defendant's mobile phone was examined with his consent.  It contained "orders" from an unknown person through WhatsApp to splash red paint at 6 different flats.  The Police found red paint having been splashed at 3 of the 6 locations.

Charges 3 to 11 and 13 to 19

8.The Police received reports of red paint having been splashed at the entrance of the residential units particularized in these 16 charges.  These residential units are located throughout Hong Kong, Kowloon and the New Territories.  The offences took place in August and September 2020, except Charge 3, which took place in January 2020.

9.In his video recorded interviews, the defendant admitted that he had splashed red watercolour at the respective locations pertaining to these 16 charges.  Except in Charges 3 and 19, CCTV footage of the respective buildings captured the defendant entering those buildings and riding the elevators within the time frame during which the respective offences were committed.  The defendant also admitted that in the morning of his arrest, he had just gone to Ap Lei Chau and Yau Tong to do 2 "jobs".  He had planned to go to Tsuen Wan and Tuen Mun later on, but was stopped by the Police.

Mitigation & Sentence

10.The defendant is 30 and has a clear record. Defence counsel Mr. Leung informed me that the defendant is single and resides with his parents and younger brother. He previously worked as a sushi chef. In 2018, the defendant started a Japanese restaurant with a friend, but the business failed after only a few months.

11.In mitigation, Mr. Leung explained that the money invested by the defendant in the new restaurant was borrowed from banks and financial companies. His debts amounted to over $100,000. The defendant's family helped repaying some of the loans. He has worked very hard to meet the repayments. Unfortunately, he could not even secure a part-time job since 2019. In order to make ends meet, the defendant took up this debt-chasing job. He knew what he did was wrong, so he decided to use watercolour instead of real paint in order to minimize the damage.

12.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime. Even if the defendant had no ability to repay his debts, there were proper and legal means to solve his problems (such as IVA and bankruptcy proceedings).

13.I echo the words of HH Judge Remedios (as she then was)  in her Reasons for Sentence in DCCC 187/2013 that the purpose of splashing red paint "was to cause or harass the debtors to repay the money. It was a demand made with implied menaces to the occupants and/or the debtors. This type of menace is common in Hong Kong…[1]"

14.There is no tariff for this type of offences, but authorities submitted by Mr. Leung seem to suggest that a starting point of 12 to 15 months' imprisonment is appropriate. I accept that the defendant did no more than splashing red solution and posting a dunning note at each location. No person was injured or frightened at the time when he committed the offences. There is no evidence that he threatened any debtor in person or by phone. All his life, the defendant has been a law-abiding citizen until he foolishly took up this illegal job.

15.I adopt a starting point of 12 months' imprisonment for each charge. With the timely guilty pleas, the sentence is reduced to 8 months each. Apart from this, I see no other mitigating factors which warrant any further discount. I sentence the defendant to 8 months' imprisonment each for Charges 1, 3 to 11 and 13 to 19.

16.Bearing in mind the totality principle, I consider a global starting point of 30 months appropriate for all 17 charges. With the timely guilty pleas, the overall sentence is reduced to 20 months. I will grant a further discount of 2 months to reflect the compensation made to the victims[2] before sentence, reducing the overall sentence to 18 months. I order the sentences to run in the following manner :-

(i)  Charges 1, 18 and 19 concurrent;

(ii)  Charges 9, 10, 11, 13 to 17 concurrent but 5 months consecutive to Charges 1, 18 and 19; and

(ii)  Charges 3 to 8 concurrent but 5 months consecutive to Charges 1, 9 to 11 and 13 to 19.