HKSAR v. Chung Wai Leung

DCCC 1052/2022

[2023] HKDC 1706

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1052 OF 2022

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REASONS FOR SENTENCE

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A. CHARGES

1.The defendant (D)  pleaded guilty to three charges:-

Charge 1: Tampering with a motor vehicle, contrary to section 49 of the Road Traffic Ordinance, Cap 374. The particulars are that D, on 7 July 2022, at the bus terminus, Public Transport Interchange, Hong Kong-Zhuhai-Macao Bridge Hong Kong Port, Chek Lap Kok, Lantau Island, New Territories, in Hong Kong (“the Scene”), without lawful authority or reasonable excuse tampered with a vehicle, namely, a public bus bearing registration number SD9114.

Charge 2: Tampering with a motor vehicle. The particulars are that D, on the same day at the Scene, without lawful authority or reasonable excuse tampered with a vehicle, namely, a public bus bearing registration number SU4031.

Charge 3: Arson, contrary to sections 60(1)  and (3)  and 63(1)  of the Crimes Ordinance, Cap 200. The particulars are that D, on the same day at the Scene, without lawful excuse damaged by fire a public bus bearing registration number WN2527, property belonging to Citybus Limited, intending to damage such property or being reckless as to whether such property would be damaged.

B. FACTS

2.D admitted the following facts.  Chu Sai Chiu (“PW1”)  was the staff of Citybus Limited.  Bus bearing registration mark WN2527 (“Bus A”)  and bus bearing registration mark SD9114 (“Bus B”), each valued at HK$4 million, had been parked at the Scene since 1 April 2022.

3.At around 1130 to 1200 on 6 July 2022, PW1 checked Bus A and Bus B and confirmed that they were in normal conditions.  Since they had run out of electricity, their doors could be pushed open.

4.Chan Hin Tat (“PW2”)  was the security guard at the Scene.  At around 0700 on 7 July 2022, PW2 was notified that Bus A was on fire. He reviewed the CCTV footages at the Scene which captured that:-

(a)  at 0708, D boarded Bus A and fiddled in its driver seat;

(b)  at 0715, he alighted from Bus A and wandered around it; and

(c)  at 0718, Bus A caught fire.

5.PW2 went to the cleaners’ resting room and identified D as the culprit.  The case was reported.

6.Firemen arrived at the Scene at 0735 and put out the fire at 0751.  The front of Bus A was seriously damaged.

7.PC21528 (“PW3”)  arrived at the Scene for investigation.  Upon enquiry, D said:-

(a)  he boarded Bus A for fun and set the plastic part of its steering wheel on fire with his lighter;

(b)  he alighted from Bus A and smoked beside Bus A; and

(c)  he left the Scene after Bus A had caught fire.

8.PW3 arrested D for arson.  Under caution, D said he boarded Bus A and burned the plastic part of its steering wheel with a lighter for fun (“我因為貪玩，所以上咗架城巴用火機燒軚盤右邊嚿膠”).  PW3 seized a lighter and a pack of cigarettes from D.  PW3 checked and confirmed that the lighter was functioning properly.

9.Chan Kit Ching, Crystal, staff of Swan Hygiene Services Limited (“the Company”), confirmed that:-

(a)  D was employed by the Company and assigned to clean Zone F of the Scene from 2300 on 6 July 2022 to 0800 on 7 July 2022;

(b)  he was given a staff permit which enabled him to access Zone F; and

(c)  he was required to return the staff permit after work.

10.CCTV cameras at the Scene captured the followings on 7 July 2022:-

Time	Event
Camera No M273 capturing the Scene
06:38:53	D appeared at the Scene.
06:39:52	The camera angle was blocked by a line of buses parked at the Terminus as D walked to the left.
Camera No M259P capturing the front of the line of buses.
06:41:52	D appeared beside the line of buses.
06:42:03	The camera angle was blocked by the line of buses as D walked to the left.
06:59:57	D appeared beside the line of buses.
Camera No M271 capturing the front of a bus bearing registration mark SU4031 (“Bus C”)
06:57:03	D appeared in front of Bus C.
06:57:12	D pushed open the front door of Bus C and boarded it.
06:57:50	D sat in the driver seat of Bus C.
06:57:51 – 06:59:22	D was fiddling in the driver seat of Bus C.
06:59:34	D alighted from Bus C via its rear door.
07:04:45	D pushed open the front door of Bus A.
07:05:15	D sat in the driver seat of Bus A.
07:05:16 – 07:09:20	D was fiddling in the driver seat of Bus A.
07:09:21	D left the driver seat of Bus A.
07:10:06	D returned to the driver seat of Bus A.
07:10:13 – 07:11:09	D leaned towards the steering wheel of Bus A.
07:11:12	D left the driver seat of Bus A.
07:11:41	D closed the front door of Bus A.
07:11:59 – 07:17:16	D wandered in front of Bus A.
07:14:33	The steering wheel of Bus A caught fire.
07:17:17	D left the Scene.

11.D said the followings under caution in a video-recorded interview in the presence of his father:-

(a)  He was employed by the Company as a cleaner. His working hours were from 2300 to 0800. He worked on 6 and 7 July 2022. His duty was to clean the floor and stair handrails of the Scene. He finished his work at 0600 on 7 July 2022, changed clothes and then went to the Scene for smoking.

(b)  He boarded Bus B for fun without lawful authority and sat in its driver seat to rest and listen to music with his mobile phone.

(c)  He pushed open the front door of Bus A and boarded it for fun. He sat on Bus A and smoked for a while. He sat in its driver seat and took out a lighter to burn the plastic part of its steering wheel for 5 minutes. He knew that his conduct was wrong. He then alighted and wandered around for about 5 minutes. He then stood next to Bus A for 5 to 10 minutes during which he saw the steering wheel start to catch fire. He then left the Scene and went to the resting room. The lighter seized from him was used by him to burn the steering wheel of Bus A.

12.At the material times:-

(a)  D, at the Scene, without lawful authority or reasonable excuse, tampered with Bus B (Charge 1);

(b)  he, at the Scene, without lawful authority or reasonable excuse, tampered with Bus C (Charge 2); and

(c)  he, at the Scene, without lawful excuse, damaged by fire Bus A, property belonging to Citybus Limited, intending to damage such property or being reckless as to whether such property would be damaged (Charge 3).

C. D’S REPORTS

13.According to D’s background report, he has limited intellectual ability and weak comprehension.  He committed the present case for fun.

14.His psychiatric reports state that he had acted on impulse in this case and had no fantasies about fire.  He is not suffering from mental illness.

15.D’s psychological report states that he has mild grade intellectual disability and features of autism spectrum disorders.  His developmental disorders were not well managed with a long-term lack of clinical assessment and skills trainings on his developmental deficits.  D showed superficial understanding of the legal consequences and weak law-abiding awareness.  He could hardly consider the risk to public safety with his offending behavior or elaborate the meaning of ‘unlawful act’.  D had difficulty verbalizing and regulating his negative emotions.  He likely committed the offences out of maladaptive coping of boredom and sadness.  D was remorseful and his risk of violent re-offending is low to moderate.  Psychological follow-up on emotion regulation skills is recommended.  Continuous training on verbal and social communication skills to help manage his developmental deficits and on deepening his law-abiding awareness in the community might also benefit him.

E. MITIGATION

E.1. D’s background

16.The Defence submitted that D is aged 31 and was living with his parents. He was educated to Form 3 and had problems with communicating his unhappiness at work.  D committed 3 charges of Taking conveyance without authority before and was sentenced in 2020 to serve 160 hours of Community Service Order concurrently.  Mitigating letters of D and his parents were submitted.

E.2. Case reference

17.The Defence referred to香港特別行政區 訴 尹慶豐及另一人 HCMA 715/2006 in which Derek Pang J (as he then was)  held that for the most basic way of tampering with a motor vehicle, the starting point could be 3 months’ imprisonment before deduction for guilty plea.

18.The Defence also referred to, inter alia, HKSAR v Choi Wai Hung DCCC 1267/2011 and HKSAR v Lee Wai Leung DCCC 189/2018, both of which involved damage of motor vehicles by fire and the courts adopting a starting point of 3 years for a charge of arson.  Particularly, in Lee Wai Leung, the defendant had borderline to mild grade mental retardation.

19.The Defence invited the court to consider totality and order all sentences to run concurrently.

G. SENTENCE

20.Having considered all the above, the sentence for this case is as follows.

21.The starting point for each of Charge 1 and 2 is 12 weeks’ imprisonment. It is reduced by 1/3 for D’s guilty plea, the only mitigating factor, to 8 weeks imprisonment.  Thus, he is sentenced to 8 weeks’ imprisonment for each of Charge 1 and 2.

22.The starting point for Charge 3 is 3 years or 36 months’ imprisonment.  It is reduced by 1/3 for D’s guilty plea, the only mitigating factor, to 24 months’ imprisonment.  Thus, he is sentenced to 24 months’ imprisonment for Charge 3.

23.All three charges took place on the same day at the same location and arose out of the same incident.  Thus, their sentence should run totally concurrently.  Accordingly, D is sentenced to 24 months’ imprisonment for this case.

24.Lastly, I thank the parties, especially the Defence, for their assistance.