HKSAR v. Chung Kwok Sing

DCCC 49/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 49 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Criminal Damage"[1]. He lit up some newspaper on the ground in an alleyway using some flammable liquid.

Summary of Facts

Scene of the Incident

2.Luen Fat Electronics ("Luen Fat") is situated at Ground Floor, No.234C Apliu Street, Sham Shui Po.  Its shop entrance faces an alleyway, which has a width of about 1.5 metres ("the Rear Lane").  Mr. HO (PW1) is the owner of Luen Fat.

3.At the time of the offence, many large wooden, plastic and paper boxes filled with miscellaneous items were placed on some cabinets located at one side of the Rear Lane.  Similar objects were also placed opposite to the shop entrance of Luen Fat.  In addition, scaffolding for building works was erected at the Rear Lane.  Under such conditions, the Rear Lane thus only had a half-meter-wide walkway.

4.A 7-11 convenience store is situated at Yen Chow Street near Yu Chow Street ("the 7-11 Store") in the vicinity of Luen Fat.  Mr. LIAO (PW2) works there as a shop assistant.

The Offence

5.PW2 was on duty at the 7-11 Store in the afternoon on 23 November 2015.  Shortly after 5:10 pm, the defendant went into the shop and asked PW2 if he could borrow a lighter.  The defendant then took a lighter, which was placed near the cashier counter.  He was also holding a piece of cardboard and a roll of newspaper. After taking the lighter, the defendant went outside and lit up the newspaper. He went into the shop again holding the burning newspaper.  He placed the lighter on the side of the cashier counter and left.  He walked towards Apliu Street with the burning newspaper in his hand.  

6.About 5:25 pm, PW1 was inside Luen Fat.  He heard from an employee that there was a fire at the Rear Lane.  He looked to the Rear Lane and saw the defendant standing next to some burning newspaper.  Next to the burning newspaper was a metal can (P2), which later found to contain naphtha (an easily flammable solvent).  Since the burning newspaper was only about 5 metres away from Luen Fat's entrance, PW1 yelled at the defendant by asking what he was doing.  The defendant then ran away.  PW1 chased after him.  He eventually stopped the defendant at Yen Chow Street near Apliu Street.

7.PC 9223 (PW5) soon arrived at the scene and arrested the defendant for "Arson".  Under caution, the defendant claimed that he was upset at the time, so he went to Apliu Street and burned things to relieve his anger. He admitted having used newspaper and naphtha, and borrowing a lighter from the 7-11 Store.  He also took PW5 back to the 7-11 Store.

8.At the 7-11 Store, PW2 identified the defendant to PW5 being the person who took a lighter from the shop and lit up some newspaper outside.  PW2 also pointed out the lighter taken by the defendant.  PW5 seized the lighter (P1) as an exhibit.

9.In his cautioned interview, the defendant explained why he went to the Rear Lane to burn things.  He also admitted in details how he committed the offence.

10.CCTV footage of Luen Fat, the 7-11 Store and the Rear Lane captured the defendant committing the offence.  The defendant was seen starting a fire at the Rear Lane, near Luen Fat's entrance.  He continued to ignite other items to feed the fire on the ground.  At one point, the fire grew to a size of half a metre in length, width and height.  The fire was subsequently put out by people nearby.

11.P1 and P2 were examined by a Government Chemist.  P1 was tested to be functional and a naked flame could be generated from it.  Traces of an organic mixture containing light petroleum distillate were recovered from P2.  Light petroleum distillate is a highly flammable organic solvent mixture, which is a major constituent in lighter fluids.

12.As a result of the defendant burning newspaper at the Rear Lane, the relevant portions of the ground and the wall were blackened.

Mitigation & Sentence

13.The defendant is 45 and divorced. He has 1 conviction record involving a minor offence for which he was fined.  Defence counsel Mr. CHENG informed me the defendant used to be a casual billboard installation worker earning about $13,000 per month.  He lost his job in 2014 and became a casual bicycle repairer with a small income of $2,000 per month.  The defendant, however, did not rely on social welfare.

14.In mitigation, Mr. CHENG submitted that when the defendant lost his job in 2014, his wife left him.  He then became a street sleeper.  Regarding the present offence, Mr. CHENG submitted that as explained by the defendant to the Police, he had a quarrel with someone over a bicycle repair job.  The defendant carried out the repair but did not get paid.  He committed the offence as a result of bottled up emotions.

15.I have called for 2 Psychiatrist's Reports. Both psychiatrists take the view that the defendant is not suffering from any psychiatric disorder. No psychiatric intervention is required.

16.I am aware that the defendant is charged with "Criminal Damage" under section 60(1); however, the fact remains that he caused property damage at the Rear Lane by fire. There are no sentencing guidelines for this type of offences (namely "Arson"). After reviewing a number of cases, the Court of Appeal in HKSAR v KUNG Pak Fu [2008] 2 HKCLRT 240 held :-

"… arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for this offence because its gravity differs from case to case, particularly in cases involving family disputes or souring of relationships. The court must impose a sentence which properly reflects the gravity of the particular case." [2]

17.I have carefully considered all mitigation advanced by Mr. CHENG. I note that the defendant did not leave the scene after he set fire in the Rear Lane. I accept that the fire size was small and that he had no intention to let the fire get out of control. Hence, the risk of the fire spreading to any physical objects in the Rear Lane or any adjacent building was low. The offence, however, took place at a public location easily accessible to passers-by. The defendant's act as well as the actual fire, if seen by any persons in the vicinity, would no doubt cause them some degree of fear or panic.

18.Based on the reasons stated above, I consider 12 months' imprisonment to be the appropriate starting point. A one-third discount is given for the guilty plea, reducing the sentence to 8 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 8 months' imprisonment.