HKSAR v. Chan Kau Chai

DCCC 272/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 272 OF 2016

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Reasons for Sentence

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1.The defendant pleaded guilty to 1 charge of Arson under section 60(1), 60(3) and 63(1) of the Crimes Ordinance, Cap.200. Particulars are that he on 11 February 2016 destroyed some paperboards; damaged an iron gate and a signboard by fire outside a laundry shop on the ground floor of Ka Lok Street in Kwun Tong.

Facts

2.At around 4:25am on the charge date, a fire broke out at a stack of waste paperboards placed outside the laundry shop. Police was alerted and firefighters arrived to put out the fire. The overhead signboard and iron gate of the laundry shop were damaged. Some paperboards belonging to the next door recycling shop were destroyed.

3.The defendant was identified from CCTV footage as the person who set the fire and subsequently arrested on 14 February when he walked past the laundry shop.

4.The defendant admitted under caution in his video recorded interview that he used a lighter to set fire to the waste paperboards. He did it because he was angry with the recycling shop owner over the collection of the paperboards. He intended to burn the property belonging to the recycling shop.

Previous convictions

5.I was told that the defendant had been before the court for 29 times, resulting in a total of 61 convictions, with none being similar to the present charge.

Personal background and Mitigation

6.The defendant was born in June 1948. He is divorced, with no contact with his wife or children. He was worked as a construction worker until he injured his spine from a fall in 1985. He was hospitalized for quite some time and still takes medication for the injury.

7.The defendant has been doing some part time work, but is largely dependent on his CSSA plus $3,700 for rental payment per month.

8.Mr Kelly pointed out that section 60(1) is the less serious limb of an arson charge and that the defendant pleaded guilty on the basis of deliberately setting fire to the paperboards, and being reckless for the damage to the iron gate and signboard.

9.In addition to the guilty plea, Mr Kelly pointed out that it was not a pre-meditated incident and provided more background as to the commission of the offence.

10.The defendant used to collect waste paper for selling at the recycling shop to supplement his income. In 2015, he was paid 85 to 88 cents per catty for what he collected. In 2016, the owner of the business reduced that to between 50 to 60 cents per catty. The defendant was unhappy with that.

11.It so happened that each morning the defendant would walk past Ka Lok Street from his home to go for breakfast at around 4am. When he walked past the recycling shop on the charge date, on the spur of the moment, the defendant decided to “vent his frustration with some degree of revenge” and set fire to a metal wired container intending to damage it.

12.Mr Kelly stressed that there was no planning, no triad involvement and no use of accelerant such as petrol. There were in fact at least two, if not more, similar containers full of waste material outside the shop, but the defendant chose to set fire to only one. The risk of damage to other property was relatively low. The offence should fall on the lower end of the scale of seriousness.

13.Mr Kelly then referred to 6 cases to assist me. I deal with them below.

Sentence

14.The maximum sentence on conviction upon indictment for an offence under section 60(1) is that of life imprisonment.

15.In the case of R v Shum Hon-kai, CACC 51/1988, it was suggested that a sentence of 4 to 5 years imprisonment would be regarded as appropriate in a case of arson, but that it can ‘go up or down substantially depending on the particular circumstances.’ As Mr Kelly pointed out, this is trite law.

16.In HKSAR v Lo Po Tak [1998] 3 HKC 485, the appellant had set fire respectively to a lift lobby and some garbage outside a refuse room in a housing estate in the early hours of the same morning, resulting in two charges for arson under section 60(1). The Court of Appeal held that since the charges were based on the appellant’s intention to endanger property and not life, he should be sentenced accordingly. The original starting point of 8 years was substituted by 6 years. There the appellant had 8 previous convictions for arson.

17.In HKSAR v Chan Chi-cheung, DCCC 82/2011, the defendant set fire on 3 different occasions to a rubbish collection bin in a rear lane in the early hours of the morning. The defendant did it ‘for fun’ and ‘felt happy’ when he saw the rubbish burning. There the defendant had psychiatric problems in the past and had been the subject of a Hospital Order. He also had an appalling criminal record and it was his eleventh conviction for arson. The learned judge found that the prospect of injury to another was remote since the fires were in a back alley in the very early hours of the morning. A starting point of 18 months was adopted for each charge, enhanced to 24 months for his criminal record. The final sentence for three charges of arson was 16 months’ imprisonment.

18.This case was considered by HH Judge Woodcock in HKSAR v Lee Hoi-ying, DCCC 183/2016, a case also referred to by Mr Kelly. There the defendant pleaded guilty to one charge of arson under section 60(1). The fire was started by the defendant when he threw a newly put out cigarette into a room in the rehabilitation home that he was residing. The bed cover and mattress began to burn but the fire was soon put out. The damage was not extensive. The defendant told the Police that he did it for fun. The defendant had 20 previous convictions, but it was his first arson.

19.The learned judge found the following relevant in sentencing: No previous arson conviction; room was empty; no triad-related act nor intimidation; not an act of revenge because of outstanding grudges; not in the middle of the night; not setting fire with a lighter or accelerant; and lastly not much damage was done. A starting point of 30 months’ imprisonment was adopted.

20.In HKSAR v Lau Po Sing, DCCC 1057/2015, the defendant faced two charges of arson under section 60(2) of the Ordinance, which is a more serious charge. There the defendant set fire against the iron grilles of two residential units in a housing estate, resulting in minor property damage. The learned Deputy District Judge adopted a starting point of 4 and a half years’ imprisonment for each charge.

21.In HKSAR v Tang Kwok Wai, DCCC 30/2014, the defendant set fire to a ‘fai chun(揮春)’ (Chinese New Year decoration) outside a door resulting in a burnt mark; to two umbrellas outside a unit in a housing estate; and burnt a doorbell, resulting in 3 section 60(1) charges, to which he pleaded guilty.

22.The personal circumstances of the defendant in that case is very different to ours. There the defendant suffered from abnormal perceptual disturbances, including non-existent voices, feeling of being harmed and monitored by strangers and his neighbours. Furthermore, the defendant was willing to compensate the victims for the repair costs. A starting point of 12 months was adopted for each charge, with a final sentence of 12 months’ imprisonment after plea. A compensation order was also made.

23.Of the cases that Mr Kelly referred to I find the case of HKSAR v Lee Hoi-ying most helpful because of the similarities between the cases. I agree with HH Judge Woodcock that Chan Chi-cheung appears to be too lenient a sentence.

Facts taken into consideration

24.I proceed to consider the following relevant factors.

25.A lighter was used to set off the fire.

26.The fire was in the early hour of the  morning  when it might not have been noticed so easily, making it more dangerous. On the other hand, it would appear that the fire was quickly and relatively easily put out by firefighters.

27.The defendant committed the offence out of vengeance.

28.The damage to property was not insignificant. The cost of repair to the signboard and the iron gate is about $10,000. The value of the destroyed waste paperboards is not stated in the Summary of Facts.

29.No one was injured and there is no evidence that any civilians were in danger of being harmed by the defendant’s act, nor that the fire would easily have spread.

30.Based on the above considerations, I find that the defendant’s act in the present case is at the lower end of the spectrum of seriousness.

31.Arson is always a dangerous crime, because how a fire can develop can be unpredictable even to the eyes of trained firefighters. The seriousness is reflected in the life imprisonment maximum sentence deemed necessary by the legislature.

32.Balancing the seriousness of the crime and relatively less serious circumstances of this particular case, I find that a proper starting point is that of 2 and a half years’ imprisonment.

33.I find that there are no aggravating circumstances in the defendant’s commission of the offence. I also find that there are no mitigating factors other than the defendant’s guilty plea.

34.The defendant is sentenced to 20 months’ imprisonment after granting him the full 1/3 discount for his guilty plea.