Criminal damage

Criminal damage

The offence of criminal damage is defined in section 60(1) and section 60(2) of the Crimes Ordinance (Cap. 200):-

• Under section 60(1), a person commits criminal damage if he without any lawful excuse, destroys or damages any property belonging to another, with the intention to destroy or damage any such property, or if he was reckless as to whether the property would be destroyed or damaged; 
• Under section 60(2), a person commits aggravated criminal damage if he without lawful excuse, destroys or damages any property, intending to destroy or damage any property, or being reckless as to whether any property would be destroyed or damages. Additionally, the person must also intend, by the destruction or damage, to endanger the life of another or is reckless as to whether the life of another would be endangered. 
• The property destroyed or damages that is the subject matter of section 60(2) does not have to belong to another. 

‘Damage’

Whether something is ‘damaged’ is a question of fact. There is no general guideline of what that means. Where someone ‘destroys’ property, it presupposes damage. The relevant damage does not have to be severe or permanent, and does not necessarily involve destroying or removing parts of the object, but it should have an alteration of the physical integrity of the object. Whether ‘damage’ is done is a matter for fact and degree and it is for the court, applying their common sense, to determine whether something was ‘damaged’ or not. 

Some daily examples of criminal damage are smashing items inside a pharmacy with a baseball bat; using a motor vehicle to crash into a gate; throwing rocks which struck a parked vehicle; carrying out construction work without a valid order to do such work; intentionally damaging a wheel clamp on a vehicle parked unlawfully in a parking space and so on. Adding a wheel clamp on a car does not constitute criminal damage as it does not affect the integrity of the car. 

It is not necessary to show that the damage itself is physical, although the property being damaged must be something tangible. The courts have confirmed that interfering with a computer server, such as by launching a large-scale attack that overwhelms it with access requests, can amount to criminal damage. In such cases, the server is treated as being made to operate in a way different from how its owner set it up to function.

Mental element of the offence

A person holds a ‘lawful excuse’ under section 64(3) of the Crimes Ordinance (Cap. 200) if he has an honest albeit unjustified belief that (1) he has consent to damage the property, if the person whom he believed to be entitled to know of the circumstances of the destruction of property; or (2) that he was damaging the property for protection of other property. 

A person also would not be liable if he honestly believed the property belonged to him. 

If a person has consumed alcohol or drugs voluntarily which contributed to his offence of criminal damage (i.e. self-induced intoxication), it is not a defence to criminal damage if that risk would have been obvious to him had he been sober. For aggravated criminal damage (where the charge involves intending to endanger life), self‑induced intoxication may be relevant if the defendant is alleged to have intended to endanger life. However, if the allegation is that he was reckless as to whether life would be endangered, intoxication is irrelevant — the test is still whether the risk would have been obvious to a sober person.

However, for a charge of attempting to cause damage, recklessness alone is not enough; there must be an actual intention to cause the damage. Similarly, for attempted aggravated criminal damage, the prosecution must still show a specific intent to cause criminal damage. But when it comes to the risk to life, it is sufficient to prove that the defendant was reckless as to whether anyone’s life would be endangered by that damage.

Sentence

The maximum sentence for criminal damage is 10 years’ imprisonment, and life imprisonment for aggravated criminal damage.