HKSAR v. Li Chan Kuen

DCCC 284/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 284 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to three offences of arson with intent, contrary to section 60(2) and 63(1) of the Crimes Ordinance, Cap 200.

2.The facts set out the way in which these offences were committed.  The material location in question is rooftop of Block A29, Kwan Lok Sun Tsuen, Yuen Long in the New Territories.  The building is a two-storey tenement house, the family of a Mr Leung.  The first three prosecution witnesses own the rooftop and the flat on the 2nd floor of the relevant building.  The rooftop of some 700 square feet consists of a bedroom, a living room and a toilet.  Nobody lived on the rooftop.  It was just for laundry purposes.

3.The rooftop next-door, which is  Block A28 in which the defendant lived, is connected with the other rooftop.  There is a 1-metre concrete wall separating the rooftop of A29 and that of Block A28. Above the concrete wall, there were metal bars extending to the zinc cover of the two rooftops, and a wooden board was affixed to the metal bars inside the toilet of the rooftop.  There was a toilet on the rooftop, and gas bottles were placed on the right side of the toilet, and there were water pipes near the gas bottles.

4.The first offence relates to something that occurred around about 14 November 2016.  The first prosecution witness had visited his rooftop on 12 November 2016 and found that everything was proper inside the rooftop and the toilet area.  At 9 o’clock on the evening of 14 November, he again visited the rooftop and saw a burn mark of about a palm size on the water pipes near the gas bottles inside the toilet.  Also, the concrete wall separating the two rooftops inside the toilet and the other wall nearby were blackened.  Also, the green plastic board filling the gap between the metal bars and the zinc cover was removed and was found inside the rooftop of Block A28 where the defendant was residing.  This was reported to the police at the time. There was no repair work done.

5.The second offence occurred around 17 November 2016.  The second prosecution witness had visited the rooftop at 10 o’clock on 17 November and noticed burn marks inside the toilet.  It was found that the tap with the tube inside the toilet was burnt and the wooden board affixed to the metal bars was blackened, and that is in fact the second offence.

6.The 3rd charge as the most serious of the offences occurred on 21 November 2016.  At 8 pm on 20 November 2016, PW3 had visited the rooftop, confirming everything was all right.  However, at about 4.30 am on the next day, 21 November, PW3 was woken up by people shouting “fire”.  PW3 ran down the building and noticed that the rooftop was on fire. At that point, she evacuated with her parents.

7.The defendant’s elder brother, who lived on the 2nd floor of Block A28, was woken up by the shouting.  He ran to the rooftop and saw the defendant pouring water onto the rooftop, and he helped the defendant to try and put out the fire.  This was of no consequence because the fire could not be put out at that stage.  The fire ran out of control, and the defendant and his brother evacuated.

8.The fire caused about 40 residents of the relevant building and adjacent blocks to be evacuated.  We know three witnesses were sent to hospital as a result of having breath problems of inhaling smoke but, fortunately, they sustained no injuries other than the need to report to the hospital.

9.There was serious damage to the rooftop.  All the items on the rooftop were burnt to ashes.  Repair and installation costs were estimated to be around $297,500.

10.The government chemist, a Dr So, considered that the fire on 21 November was ignited at the area near the toilet of the rooftop.

11.The defendant was arrested on 21 November 2016. He admitted being drinking that night.  He had drunk six cans of beer.  He admitted he burnt newspaper with a lighter and threw the burning newspaper to the adjacent house.  That is the rooftop  that was burnt.  He also said he had thrown burning newspaper to the rooftop in order to scare the neighbours as they always annoyed him by making noises.  He did not foresee the serious consequences that ensued, and he produced the lighter.

12.There was a video-recorded interview taken later that evening.  The defendant expanded upon his earlier admissions.  He admitted he lived on the rooftop of Block A28.  He said on the evening of 21 November, he could not sleep.  He had gone to buy a beer.  He bought six cans of beer, drunk all six cans of beer in a playground.  He had burnt old newspaper with a red lighter and thrown burning newspaper through the gap between the plastic board of his rooftop and the wooden board of his neighbours’ one.  The burning newspaper landed on the spot near the sink inside the toilet of the rooftop. He said he did this because his neighbours annoyed him by making noises, and he tried to scare them.

13.He helped put out the fire with his brother.  He also made admissions about the fire that had been set on 14 November and 17 November.  He said he had thrown burning newspaper into the rooftop through the gap between the plastic board and the wooden board of the rooftop. He had done this again because of the neighbours making noises.  No fire accelerants had been used when committing these offences.

14.Later on that evening, he added to it in respect to the third offence.  He rolled newspaper before he burnt it and inserted the rolled burning newspaper through the gap of the boards between the two rooftops.  He said he always heard people talking but it could be hallucinations, but he had not sought any medical treatment or medication.

15.The defendant has admitted his antecedents.  He is currently aged 46.  He does have a criminal record in Hong Kong dating back to 1989 when he was fined for loitering.  He has committed offences of criminal damage, theft and possession of dangerous drug, and most recently, on 16 February 2011, convicted of criminal damage and sent to a drug addiction treatment centre. 

16.The defendant apparently has an addiction to various substances, and the defendant was seen both by psychiatrist and psychologist as a result of this offence, and the Summary of Facts show that the psychiatric report was in fact sought by the police at an early stage. That psychiatric report concluded the defendant was suffering from cough mixture and alcohol dependence syndrome as of January 2016. 

17.I obtained updated reports on the defendant, and these are two psychiatric reports from July and August 2017.  The conclusion of the psychiatric report is basically the defendant suffers from cough mixture and alcohol dependence syndrome.  They deal with the voices the defendant claims to have heard, and they said that could be due to his chronic history of illicit substance abuse.  At the present moment, the defendant currently is mentally stable.  He would benefit and would need psychiatric follow-up treatment.  That is the conclusion that is reached.

18.In more detail, it says the defendant has drug, alcohol and personality issues.  It says the voices he reports hearing are likely the result of a long period of heavy drug abuse.  His current mental condition is otherwise stable.

19.The psychological report also deals with the problems the defendant has had in relation to his abuse of various substances. The defendant does, according to this, function intellectually within what is described as the normal range.  Some six months prior to the offences, he had been using alcohol in what is described as a heavy way in order to deal with his inability to sleep properly and also to deal with the distress arising from voices of what he was hearing which can be described as auditory hallucinations.  He believed that some of the voices were coming from the rooftop next-door and trying to provoke him.  Eventually, he resorted to burning magazines and newspapers and throwing it at the rooftop, and that is what eventually resulted in the fire.

20.The defendant is described by the psychologist as a man with a general low mood and pessimistic view of life.  His drug abuse is considered a maladaptive way to cope with loneliness and other negative emotions.  He has been diagnosed with drug-induced psychosis and the symptoms of auditory hallucination and paranoid delusional ideation which undermines his ability of judgment and reasoning.  He has become suspicious of others who he believes conspire against him.

21.The offences the defendant is convicted of today relate to the instability of his mental status which has been worsened by excessive alcohol use. 

22.Looking at all the risk factors, the psychologist considers the defendant’s risk of recidivism is in the higher end of moderate range.  He is described as having no insight into his mental status. Detoxification and psychiatric treatment of his mental illness were deemed necessary in his rehabilitation.

23.At the present moment, the defendant is of course in prison and is abstinent from the substances that he abuses and as a result of that is freed from the problems that he endures as a result of his substance abuse when he is at liberty.  Clearly, the motivation for this offence arose out of his substance abuse and his hearing of non-existent auditory hallucinations, and to a certain extent, that must bear on his level of culpability in the eventual sentence that is imposed on the defendant. 

24.As far as the offences are concerned, they are serious offences because the defendant is convicted of the offence on his own plea of arson with intent and in the course of that being reckless as to whether any property would be damaged and being reckless as to whether the lives of others would thereby be endangered, and this has always been considered to be a serious way of committing this particular offence.

25.In the case of R v Shum Hon Kai & Another that was reported at CACC 51 of 1988, the court considered arson in a residential building and considered it unwise to attempt to lay down guidelines and said the degree of seriousness of the offence varied considerably from one case to another.  They said in that case, having regard to Criminal Appeal 402 of 80 which is Chan Yuk Kuen, the tariff sentence for this type of case should be at least 4 to 5 years, that being the case where the applicant had acted on the spur of the moment of extreme stress.   

26.Again in reference to another case of R v Chan Yuk Kuen, the Court of Appeal said for arson, a sentence of 4 to 5 years should be regarded as appropriate but this of course can go up or down substantially depending on the particular circumstances.

27.There are of course many cases that can be referred to.  I have been referred to a more recent case, the case of HKSAR v Loku Galappaththige Pramuka Salinda which is CACC 46 of 2016 where there was examination of a number of cases.  In that case, the Court of Appeal considered that a starting point for sentence of 3 years’ imprisonment was appropriate, and that was a case where the defendant was convicted after trial on a charge of arson under section 60(2) and (3), and that being a case involving a village house in Lamma Island where the defendant had lit fires in two to three places inside the building, left the fires burning in the bedrooms.  It had spread throughout the premises, cost of repair being about $90,000.  The defendant was described as being in anguish and distraught at the time when he set the fires.  Nevertheless, substantial damage was caused and families with young children were living next to or nearby the defendant and the defendant’s actions could have led to extremely serious consequences.  

28.Of course, one must bear in mind that unexpected occurrences of fire are bound to cause extremely serious injuries and deaths or losses of property.  The Court of Appeal in that case examined a number of cases.  They appeared to have reached the conclusion the appellant committed the offence in that case on the spur of the moment and that he had not used any accelerant.  And in mitigation, it is said the defendant’s actions in this case were similar in that no accelerants were used and the defendant acted on the spur of the moment, and in fact the defendant would have the added mitigation of his own hallucinatory ideation that led him to commit the offence.

29.As far as the mitigating factors are concerned, the defendant has occupied that rooftop for a long time, since 1982 I understand, and he had never had any real conflict with the other occupants of the building.  There is no triad element in the case, and as has already been pointed out, no accelerants were used.  The defendant was acting out of his irritation, and the risk to other people was as a result of his reckless setting of the fire.  Fortunately, although people did go to hospital, no actual injuries were recorded save those of emotional and mental distress and disturbance.  The defendant, having lit the fire, then did try and put it out with water but was unable to do so.  

30.In mitigation, it is also said renovations have been made to the rooftop by the defendant’s brother although I understand that still a considerable amount of work needs to be done to put things right, and so the renovations cannot be considered to be a total remedying of the large amount of damage that was caused by this fire.

31.As far as the defendant’s personal circumstances are concerned, he made an early plea of guilty.  He made admissions at a very early stage and has always admitted his guilt.  As far as the first two offences on the indictment are concerned, the damage was minor.  And finally, the mitigation that will exist in relation to the defendant’s psychological and psychiatric condition which as said mitigates the level of his culpability.

32.The duty of the court in this case is to achieve a correct overall starting point on each offence and then give benefit to the defendant for his plea of guilty on each offence and then calculate what the correct overall sentence should be on this defendant and then adjust the sentences on the three charges accordingly to reach the correct overall sentence for these three offences.

33.These are, as I pointed out earlier, serious offences that can lead to substantial loss of property and also life and in this case led to the evacuation of many people and also damage to property that I have already valued over $200,000, almost $300,000 worth of damage to the properties in question.  So the court must take a serious view of what the defendant has done but must of course necessarily mitigate that, having regard to the defendant’s psychiatric difficulties and the way in which they caused him to become involved in these offences.

34.It would appear to me that the first two offences are of course less serious than the third offence.  In the first two offences, there is a small amount of damage caused to the rooftop of the building and no distress to the other residents.  What I shall do in respect of each of those offences is to take a starting point of 24 months’ imprisonment and reduce that to 16 months’ imprisonment on the defendant’s plea of guilty.  I shall also order that those two offences be served concurrently to each other.

35.As far as the third offence is concerned, that of course is the more serious offence that I am dealing with here.  And a comparison to other offences does not necessarily assist the court greatly in reaching what is the correct overall starting point for sentence in this particular offence.  I do take into account the degree of damage caused and the harm caused to the many other residents of the building and the great potential for damage in a close-quarter building such as this.  Of course, I also take into account the mitigating factors that I have already referred to.

36.What I shall do is take a starting point in this case of 3 years and 6 months’ imprisonment on the 3rd charge.  After the defendant’s plea of guilty, that is reduced to 28 months’ imprisonment.

37.Now, I must consider what the overall position should be.  There is a series of offences committed here by the defendant of increasing severity leading finally to the offence on 21 November which, in my view, certainly is the most serious of the offences the defendant committed.  I consider that an overall sentence of imprisonment of 32 months is appropriate for the defendant for these three offences.  What I shall do is then order that 16 months of the third offence be served consecutively to the other two offences and the balance concurrently, and that will give an overall total of 32 months’ imprisonment for all three offences.