HKSAR v. Lam Se Yeon

DCCC 84/2024

[2025] HKDC 158

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 84 OF 2024

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 2 counts of criminal damage, contrary to sections 60(1)  and 63(2)  of the Crimes Ordinance, Cap. 200 (Charges 1 and 2); one count of 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 (Charge 3)  and one count of using an identity card relating to another person, contrary to section 7A(1A)  of the Registration of Persons Ordinance, Cap. 177 (Charge 4).

Facts

2.The 4 charges involved 3 separate incidents; however, all incidents arose from the unrequited romantic feelings the defendant had for Ms SAHA.

3.The facts admitted by the defendant reveal that the defendant was a former tutor of Ms SAHA from 2017 to 2018.  At the material time Ms SAHA lived with her father Mr SAHA and her mother Mrs SAHA at Robinson Garden Apartment, No. 3 Robinson Road, Mid-levels (hereinafter referred to as “the Flat”).

4.The defendant tried to court Ms SAHA but his advances were rejected by her.

Incident 1

5.On 5 May 2023 at 0840 hours, Ms SAHA and her parents were in the Flat. They found some unknown liquid on the ground of the living room near the front door emitting an irritating smell.  When Mrs SAHA opened the front door, the defendant was seen fleeing down the stairs.  Mrs SAHA found 2 bottles of unknown liquid left outside the door.  The carpet was soaked with the unknown liquid with a pungent smell.  The case was reported to the police.

6.CCTV footages of the building captured the defendant entering the building from the lobby of the ground floor.  He took the lift to the 8^th floor at 0809 hours and left at 0816 hours.  The defendant recorded his name and identity card number in the building’s visitor registration record.  He told the security guard that he intended to visit the Flat.  The security guard checked his identity card and granted him access to the building.

7.The defendant was arrested on 5 May 2023.  He was charged with “Criminal damage”.

Incident 2

8.On 14 May 2023 at around 1500 hours, Mrs SAHA found liquid splashed on the Flat’s door frame and on the ground upon opening the front door.  A plastic bottle was left on the ground.

9.CCTV footages of the building captured the defendant, carrying a plastic bag and a black suitcase, entered the building from the ground floor.  He took the lift to the 6^th floor at 1116 hours and left at 1118 hours.  The defendant was wearing a face mask, a short hair wig, a cap and a scarf.

10.A security guard of the building confirmed that he had made enquiries with a male entering the building at around 1116 hours.  The male raised the plastic bag he was carrying and the guard thought he was a delivery person and granted him access without registration.

Incidents 3 and 4

11.Mr SAHA installed a security camera and a doorbell camera at the front door of the Flat after Incident 2.  Mr SAHA would receive an alert on his phone whenever there were movements and a 10-second video would be recorded.

12.On 17 May 2023 at around 0829 hours, Mr SAHA received an alert, and the doorbell camera captured the defendant.  When Mr SAHA opened his front door, he found a lit portable gas stove and some newspaper lit on fire around the stove.  The fire damaged a small area of the wall and the ground of the corridor.  Mr SAHA turned off the stove and chased after the defendant.  He intercepted the defendant outside the building.

13.The defendant was arrested by the police for “Arson”.  Upon search, a brown color long hair wig, an identity card and a HSBC credit card belonging to the defendant’s mother were found on him.  The police found the white plastic bag the defendant carried outside Room E on 7/F.  Items including cosmetics, a receipt dated 16 May 2023 for the purchase of butane gas cartridge and receipts for the purchase of a “half wig”, cosmetics and a cap were found inside the plastic bag.

14.CCTV footages of the building captured the defendant in long hair, wearing a face mask entering the building from the ground floor.  He took the lift to the 7^th floor of the building at 0823 hours.  The security camera installed at the door of the Flat captured the defendant outside the Flat and left after igniting the fire of the portable gas stove and newspapers around the stove.

15.A security guard confirmed that the defendant entered the building at 0822 hours.  He presented his mother’s identity card and recorded his mother’s Hong Kong Identity Card information in the visitor’s registration record.

Previous Convictions

16.The defendant is of clear record.

Personal Background and Mitigation

17.The defendant is 28 years old.  He was born in Hong Kong and is of Korean ethnicity.  He lived with his parents and his younger brother prior to his arrest.  The defendant attended the Hong Kong University of Science and Technology but did not graduate.  From 2017 to 2019, he worked as a tutor in a private tutorial company.  At the time of his arrest, he worked as a freelance tutor.

18.Counsel for the defendant submitted that the defendant became infatuated with Ms SAHA when she attended the tutorial company where he worked as a tutor.  The defendant became frustrated after Ms SAHA rejected his romantic advances.  It was submitted that the defendant “believed he should start erasing the bad feelings from the source” which included Ms SAHA, her residence and anything related to her.

19.In mitigation, the defence cited mitigating factors including the defendant’s clear record and his timely plea which reflected his remorse.

20.The defence referred the court to authorities including Chau Yuk Kuen v R CACC 402/1980; HKSAR v Tang Yuk Wah CACC 132/2005; HKSAR v Cheung Wing Siu CACC 76/1998; HKSAR v Loku Galappaththige Pramuka Salinda CACC 46/2016; HKSAR v Kung Pak Fu [2008] 2 HKCLRT 240 and R v Shum Hon Kai and Another [1988] 2 HKLR 341.

Sentence

21.The court obtained a psychological report prior to sentence.  The defendant was interviewed, and a battery of psychological tests and assessments were performed to analyse his personality profile and to ascertain any future risk of re-offending.

22.The findings recorded in the report indicated that the defendant was of clear mind and well oriented, absent of peculiar behaviors or perceptual disturbance.  Intellectual screening test suggested normal intellectual functioning.  He was impressed to have marked personality difficulties predominated by features of Schizoid Personality Disorder which is characterized by a pervasive pattern of detachment from social relationships and a restricted range of emotional expression in interpersonal settings.

23.His detachment evolved into low empathy and lack of consideration for others.  He disregarded social norms and was indifferent to external feedback which reinforced his egocentric presentation prioritizing his own needs above all. 

24.The defendant’s egocentric nature and focus on external needs fueled his desire for reputation and wealth since secondary school.  He developed different obsessions and goals, but was unable to identify the underlying motivations for his aspirations.  His inability to adjust his goals led him to be an underachiever.

25.He developed a new obsession of finding romantic relationships, treating it as a goal to be achieved rather than a development of intimacy.  He could not explain his affection towards Ms SAHA and had no awareness that his act of making more than 100 daily telephone calls to Ms SAHA amounted to harassment. He interpreted Ms SAHA’s act of blocking him as rejection and considered it another one of his major failures.  He was furious, filled with pent-up frustration from his previous failures and adopted a “all-or-nothing” attitude He planned to seek revenge by setting fire to severely injure Ms SAHA.

26.He obtained Ms SAHA’s address by illegal means.  He assumed Ms SAHA identity, sending emails to her school and stalking her on social media.  The illegal and secretive measures he took to plan the attacks were indicative of premeditation and determination to injure Ms SAHA.  His series of attacks also reflected an escalation of his violent behaviors. 

27.The psychologist indicated that the defendant showed no remorse or empathy for Ms SAHA.  The defendant’s risk of re-offending with violence was assessed to be high due to his personality difficulties, cognitive rigidity, his obsessions as well as violent ideation.  His assessment results reflected that the severity of his violent acts could be serious towards anyone in the society.

28.In conclusion, the clinical psychologist indicated that prognosis for change was poor due to his lack of insight.  Risk management in the form of close monitoring was deemed necessary upon the defendant’s return to the community.

29.The defendant disagreed with part of the clinical psychologist’s report.  In particular, he disagreed that he had the intention to severely injure Ms SAHA.  He also objected to the clinical psychologist’s assessment that his risk of re-offending and the use of violence was high, and that “the severity of his violent acts could be serious towards anyone in the society”.

30.Counsel for the defendant submitted that the clinical psychologist’s assessment contradicted the facts of the case.  Defence counsel submitted that in the 1^st incident, the defendant did not light the unknown liquid on fire, he became afraid and ran way.  That was inconsistent with the opinion that he had intention to injure Ms SAHA.

31.I find the defendant’s actions to be consistent with the report’s findings and assessment.  Although he did not set fire on the first occasion, he did return to Ms SAHA’s residence repeatedly and within days of each incident.  An escalation of violent behavior was reflected in his action, that was also consistent with the defence’s clarification that the defendant wanted to rid of his bad feelings from Ms SAHA’s rejection by “erasing anything associated with her”.

32.I do not accept the objection raised by the defendant, particularly when the clinical psychologist’s assessment was consistent with the defence’s submission.  However, I have made clear to the defence that I was aware that Charge 3 involved arson under section 60(2)  but the facts admitted reveal the defendant’s act of arson caused damages to property.  The assessment and conclusion from the psychological report would be considered in light of the reasons for the defendant’s commission of the offences, the future risk of his re-offending and /or the use of violence on Ms SAHA and others.

Charge 1

33.Charge 1 involved the pouring of unknown liquid at the front door of the Flat while Ms SAHA whilst her family were inside the Flat.  The defendant’s action damaged the front door carpet which cost HK$200 to replace. 

34.The defendant brought the bottle of liquid to Ms SAHA’s residence after obtaining her address by illegal means.  Prior to this incident his romantic advances had already been rejected by Ms SAHA, his 100 daily phone calls and messages were left unanswered by Ms SAHA.  Ms SAHA had communicated her rejection in no uncertain terms.  It was blatantly clear that the defendant was not welcomed at her residence.

35.The defendant’s act of bringing liquid that emitted fumes to her residence was a premeditated act and evinced a clear intention to damage her residence.

Charge 2

36.The defendant returned to Ms SAHA’s residence after only 9 days from the first incident and his arrest for criminal damage.  He brought liquid that emitted a pungent smell to splash on Ms SAHA’s front door area thereby causing damage to the door frame and the floor of the corridor.

37.His acts were clearly premeditated and he committed Charge 2 whilst on bail for Charge 1.

38.There are no sentencing guidelines for the offence of criminal damage.

39.The defence referred the court to HKSAR v Tao Chi Kin CACC 38/2005 and HKSAR v Tsoi Chun Yu CACC 341/2018.  It was submitted that the facts of the present case were similar to Tao in which the applicant climbed into the victim’s apartment, threatened the occupant and damaged a window lattice.  For the charge of criminal damage, the applicant was sentenced to 1 year’s imprisonment.

40.I agree that the facts in the case of Tsoi was more serious than the acts committed by the defendant in the present case.  The applicant in the Tsoi case went to different units on different floors of a residential building sticking paper written with the word “brothel”.  The applicant also splashed paint on the metal gate and ignited firecrackers.  The trial judge adopted a starting point of 42 months for each offence and imposed a concurrent term of 25 months’ imprisonment.

41.I have considered the mitigation submitted by the defence and the facts of the case pertaining to Charges 1 and 2.

42.I consider 12 months starting point for Charge 1 to be appropriate, the defendant’s actions were premediated and caused actual damage to Ms SAHA’s residence.

43.The defendant committed Charge 2 whilst on bail for Charge 1.  His acts were premeditated and committed with blatant disregard to the bail conditions imposed on him by court.  I adopt an imprisonment term of 15 months as the starting point for Charge 2.

44.The defendant pleaded guilty to Charges 1 and 2 and is entitled to one third deduction of his sentence.  I sentence the defendant to 8 months’ imprisonment for Charge 1, and 10 months’ imprisonment for Charge 2.

Charge 3

45.The commission of arson being reckless as to whether life would be endangered is a gravely serious offence.  Any person found guilty of the offence shall be liable on conviction upon indictment to imprisonment for life.

46.I agree that there is no sentencing guidelines for the charge of arson, the court must consider the facts of each individual case.

47.The applicant in the case of Loku Galappaththige Pramuka Salinda set fire to a mattress and clothing belonging to his estranged former girlfriend who had taken their child and left him.  He wanted to “erase memories” of them.  He failed to contain the fire he started which resulted in extensive damage to the rented flat.  He was sentenced to 3 years and 6 months’ imprisonment.

48.The court in Loku considered the case of Cheung Wing Siu in which leave to appeal against a sentence of 3 years’ imprisonment imposed was refused by the court.  The applicant started a fire by pouring inflammable fluid over furniture after a quarrel with his father.  It was noted that the applicant in the present case did not use accelerant which could be considered as an aggravating factor.  The applicant’s sentence was substituted with one of 3 years’ imprisonment.

49.In the case of Kung Pak Fu, the court of appeal considered the act of arson that arose from family discord.  The applicant was in extreme anger that involved provocation from family members. He splashed essential oil, which was considered to be less serious than flammable liquid such as kerosene or petrol.  The applicant sustained serious burns and financial loss.  The applicant’s appeal was allowed and was sentenced to a term of 4 years’ imprisonment.

50.The case of Chau Yuk Kuen also involved relationship discord. The court considered the existence of extreme mitigating factors including mild grade mental deficiency.  The applicant was sentenced to 2 years’ imprisonment, but the Court of Appeal did indicate that a sentence of at least 4 to 5 years for arson would otherwise be appropriate.

51.I have considered the authorities submitted by the defence.

52.The defendant brought a gas stove and lit newspaper on fire around the stove at Ms SAHA’s front door.  He was aware that it was the residence of Ms SAHA and her family.  He acted out of vengeance and was his third commission of offence at her residence within 2 weeks.  He damaged her residence repeatedly and in violation of bail conditions imposed by court.  He escalated the level of violence at each transgression.

53.His determination in “erasing” anything related to Ms SAHA was reflected in the escalation of his action by actually lighting a portable gas stove and surrounded it with newspaper at her front door.  The fire damaged a small area of the wall and the ground of the corridor.  It was fortunate that Mr and Mrs SAHA were at the Flat and discovered the fire.  The risk and danger of setting fire in residential high-rise blocks should not be ignored.

54.I have considered the premeditative and vindictive nature of the defendant’s actions.  He committed the act of arson only days after criminally damaging the SAHA residence.  He used elaborate disguises and identity documents belonging to others to gain entry to the building.  The escalation of the level of violence adopted and damages caused to the Flat must have caused overwhelming fear in his victims.

55.I adopt a starting point of 58 months’ imprisonment term, his imprisonment term is deducted by one third to reflect his guilty plea.  I sentence the defendant to 39 months’ imprisonment for charge 3.

Charge 4

56.The defendant used his mother’s identity card to gain access to the building.  He showed the identity card to the security guard and allowed the information on the identity card to be recorded in the building’s visitor registration record in order to gain access into the building.

57.The defence referred to the authorities of HKSAR v Li Chang Li [2005] 1 HKLRD 864 and HKSAR v Chan Man Mo [2001] 1 HKLRD 121.  It was submitted that the defendant did not use his mother’s identity card for employment purposes, the court was invited to consider adopting a lower starting point.

58.The defendant used his mother’s identity card to gain entry into the building in order to commit further offences.  I consider the starting point of 8 months to be appropriate, one third deduction is applied to reflect his guilty plea.  I sentence the defendant to 5 months’ imprisonment for Charge 4.

59.I have considered the facts particular to each of the charges, the mitigation and authorities cited by the defence, the background of the defendant and the contents of the clinical psychologist’s report.

60.Charges 1, 2 and 3 were committed on different days and Charges 2, 3 and 4 involved different offences.  I have considered the principle of totality and consider that part of the sentences imposed on each of the charges should be served consecutively.

61.I order the imprisonment terms of Charges 1, 2 and 3 to be served consecutively, the imprisonment term of Charge 4 to be served concurrently with the imprisonment terms imposed for Charges 1 to 3.  The defendant is sentenced to a total imprisonment term of 57 months.