HKSAR v. Li Lin Shum also known as Li Sum

CACC 82/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 82 OF 2015

(ON APPEAL FROM DCCC NO. 974 OF 2014)

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JUDGMENT
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1.The applicant pleaded guilty on 2 February 2015 before HH Judge Douglas Yau in the District Court to two charges of Arson, contrary to sections 60(1) and (3) and 63(1) of the Crimes Ordinance, Cap 200. The judge called for probation and psychological reports to be prepared on the applicant before sentence and, on 23 February 2015, sentenced him to an overall sentence of 22 months’ imprisonment.

The facts

2.In respect of Charge 1, the applicant had set fire to some rubbish and miscellaneous items in a rear lane off Apliu Street in Sham Shui Po, Kowloon. The smoke was noticed by a woman who was resting in the rear lane at about 3:45 am on 10 June 2014. She immediately reported the matter to the police, as a result of which firemen arrived to extinguish the fire.

3.In respect of Charge 2, the applicant was seen by police rushing out from a rear lane off Yen Chow Street, again in Sham Shui Po, at about 4:20 am on 29 July 2014. He appeared to be looking back repeatedly. The police noticed flames in the rear lane and intercepted the applicant. At first the applicant said nothing, but he then admitted that he had ignited some miscellaneous items with lighted newspapers. He was arrested and cautioned and said that he had lit the fire because the miscellaneous items blocked his way.

4.In three subsequent cautioned interviews, the applicant admitted starting the fires, the subject-matter of Charges 1 and 2, with a lighter found on him, which he said he had bought two or three months earlier for the specific purpose of burning miscellaneous items wherever he saw them.

Reasons for Sentence

5.The probation officer’s report did not recommend that the applicant be placed on probation, while the psychologist was of the view that the applicant’s risk of re-offending was moderate in view of the applicant’s age, unstable employment history, drinking problem, tendency to violence, criminal record[1], psychological profile and the nature of the offences. However, there was no evidence to suggest that the applicant suffered from any psychopathology.[2]

6.The judge considered the case of HKSAR v Kong Man Lung (unrep., CACC 408 of 2012) and a number of first instance decisions of the District Court, including HKSAR v Hung Pang Chi (unrep., DCCC815/2012); HKSAR v Lee Hon Leung (unrep., DCCC 1039/2010); HKSAR v Lei Keung, William (unrep., DCCC 656/2012), which made reference to the Court of Appeal decision in HKSAR v Law Chun Man [2012] 4 HKLRD 320; HKSAR v Chan Chung (unrep., DCCC 7/2014); and HKSAR v Kwan Suen Fu (unrep., DCCC 684 of 2012). The judge was of the view that the two offences committed by the applicant were at the lower end of the spectrum of seriousness. He said:[3]

“31. The defendant is 64 years old and of relatively good record. His previous convictions were back in the 70s, when he was 20 years old. He committed the present offences, it seems, to alert others of the nuisance that the rubbish and the items that were accumulated in the rear lanes were causing.

32. The fires in both charges were in the rear lanes of streets in Sham Shui Po. It would appear that they were both in an open area. The property damage in relation to charge 1 was relatively high in value at $138,000. The loss was covered by insurance and no one was injured. The property damage in charge 2 was worth less at $19,600, but the loss was not covered by insurance. No one was injured.

33. There is no evidence to suggest that the defendant’s conduct involved triads, intimidation or revenge. Forensic examination did not find any accelerant used on either of the fires.

34. Both fires were however started in the wee hours when people would be asleep. There is however no evidence to suggest that the fire would have spread easily. The fire in charge 1 did require the attention of firemen who managed to put out the fire ‘after a while’. The Summary of Facts is silent on how the fire in charge 2 was put out, and Mr. Choi for the prosecution confirmed that it was not a serious fire.

35.Bearing in mind the seriousness of the offence of arson, but also taking into consideration all the facts referred to above, I find that the two offences committed by the defendant are in the lower end of the spectrum of seriousness.”

7.Having referred to the above cases, as well as the facts of the case, the judge found that a proper starting point for each of the two charges was 2 years’ imprisonment. After a full one-third discount for the applicant’s guilty plea, the judge sentenced him to concurrent terms of 16 months’ imprisonment on each charge, with 6 months of the sentence on Charge 2 being ordered to run consecutively to the sentence on Charge1, making an overall sentence of 22 months’ imprisonment.

Grounds of appeal

8.The applicant’s sole ground of appeal in his Notice of application for leave to appeal (Form XI) dated 5 March 2015 was simply that the term of imprisonment was too long.

Consideration

9.The maximum sentence for Arson is life imprisonment. Such a sentence underscores the seriousness with which the deliberate starting of fires, particularly in built up areas of a crowded city, must be viewed. It is true that no one was injured, although the fire in Charge 1 was detected by a woman who had been resting not far from where the fire was started and damage of significant value was caused by the fire. However, as was pointed out in Law Chun Man, supra at para 32:

“The applicant may not have intended to endanger these persons and may not have been reckless to the possibility of endangering them but it was a consequence of the actions of those participating in this crime that persons were endangered and this consequence cannot be ignored. Of course, the corollary must also be recognised; that is, that notwithstanding that as a consequence of the conduct of throwing petrol bombs, persons were placed in danger, no fatalities or serious injuries did in fact result.”

It has also been said in R v Li Mun Tong (unrep., CACC 309/1994) at page 2, that:

“Arson, because of the inherent danger in any uncontrolled fire, is always regarded as an offence of particular gravity. Arsonists exhibit reckless disregard for life and property.”

10.The judge conducted a very thorough examination of the relevant authorities and determined, in view of the repetition of the second offence seven weeks after the first, that there should be a consecutive element as between the two offences. I cannot at this stage see any arguable grounds for appeal against sentence. Indeed, given the need for the courts to deter likeminded people from committing similar conduct in vulnerable public places, it may be that the applicant could not have complained if his sentence had been even longer.

11.This application for leave to appeal against sentence must be refused. The applicant is duly advised of his right to renew his application to the Court of Appeal and the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Mr Prakash L Daryanani SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person