HKSAR v. Woo Hon Wing, Victor

DCCC 750/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 750 OF 2017

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Reasons for Sentence

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1.The defendant pleaded guilty to two charges of arson and one of attempted arson. All 3 charges are brought under s.60(1) of the Crimes Ordinance, Cap.200.

Summary of facts

2.At around 2:30pm on 20^th June 2017, security guard of Mei Wai House (“the building”) in Shatin found smoke coming out from the rubbish bin in the lift lobby of the 16^th floor of the building. The bin itself was deformed by fire.

3.The guard found another rubbish bin on the 22^nd floor with signs of having been burnt and blackened. A rubbish bag was burnt. She made a report to the Police.

4.2 days later on 22^nd June, at around 3:53pm, the contents of a rubbish bag in the 8^th floor corridor of the same building was found to have been burnt. A report was made to the Police.

5.At around 4:45pm, a Police officer found the defendant acting furtively in the 11^th floor staircase of the building, holding a lighter in his hand.

6.Upon enquiry by the Police officer, the defendant said he had just set off a fire on the 8^th floor. Under caution, the defendant said that he was under a lot of pressure from work so he burnt the rubbish bins in the lift lobby for fun.

7.The defendant said he had also burnt the bins on the 16^th and 22^nd floor of the building two days before. He also burnt the bin on the 8^th floor earlier in the day with the lighter that he was holding.

8.The defendant was arrested. At a subsequent cautioned interview, the defendant said that, in relation to the charge 1 arson, he left his home on the 19^th floor and went to 16^th floor to smoke. He deliberately did not put out his cigarette and threw it into the rubbish bin. He left after seeing that the rubbish inside the bin had caught fire.

9.In relation to the charge 2 arson, the defendant said that after he left the 16^th floor, he went to the 22^nd floor. When there, he repeated what he did earlier by throwing the lit cigarette into the rubbish bin on that floor. He went home after seeing that the rubbish had caught fire.

10.In relation to the charge 3 attempted arson, the defendant said he went to the 8^th floor of the building and burnt a rubbish bin with a lighter for fun. He left the scene after seeing that the rubbish had caught fire. The lighter was seized by the Police officer who arrested him.

Previous convictions

11.The defendant has 6 previous convictions. None are similar to the present charges. His last conviction was over 14 years ago when he was sentenced to 3 years and 4 months’ imprisonment in the District Court for attempted robbery.

Mitigation

12.The defendant is 44 years old. He was born in Hong Kong and was educated here up to lower secondary level. The defendant is a registered organ donor.

13.Prior to his arrest, the defendant was working as a hospital assistant at Princess Margaret Hospital. Before that, he had worked as a restaurant manager.

14.The defendant is single and lives with his 90-year old mother at the building. His father passed away in 2016.

15.I was told in mitigation that the defendant had committed the offences ‘for fun’ as a means to release the pressure from work.

16.Given the seriousness of the offences, the circumstances of their commission, and the fact that the defendant was admitted to Siu Lam psychiatric hospital on 24^th June 2017 for about two weeks, 2 psychiatrist reports and 1 psychologist report was ordered to be prepared on the defendant to assist in sentencing.

Sentence

17.The maximum sentence for arson under s.60(1) is that of life imprisonment.

18.In HKSAR v Chan Chi-cheung, DCCC 82/2011, the defendant pleaded guilty to three charges of arson under s.60(1). The facts are as follows.

19.On three different days in December 2010, in the early hours of the morning between 5 and 6am, the defendant set fire to a rubbish bin at the rear lane of Wai Yuen Mansion in Queen’s Road West. He was ambushed on the last occasion when Police officer saw him setting light to some toilet paper and throwing it into the rubbish bin, resulting in the bin catching fire.

20.The defendant told the Police that he did it for fun and felt happy when he saw the rubbish on fire.

21.There the defendant was 39 and had had psychiatric problems in the past. The court called for psychiatric reports, which indicated that the defendant had a psychopathic personality disorder. In-patient treatment was, however, not recommended.

22.The defendant had an ‘appalling’ criminal record. There had been 10 separate charges of arson convictions.

23.The learned judge accepted that the fires were on a very small scale, that they were not perpetrated as a result of any personal grudge, nor did he intend to injure anyone.

24.The judge found that the prospect of anyone being hurt as a result of the fires remote, since the fires were in a rubbish bin in a back alley.

25.In the end, a starting point of 18 month’s imprisonment was adopted for each charge. This sentence was enhanced by 6 months for the aggravating factor of the defendant’s criminal record, leading to a sentence of 24 months’ imprisonment.

26.The judge found that the offences were all committed very close in time to one another and found that justice could be served by ordering the sentences to run concurrently, resulting in the final sentence of 16 months’ imprisonment for all 3 charges.

27.In the present case, the fires were started in the afternoon, increasing the chance that they would be noticed and put out before they could spread. Even if they did spread, there would likely be less occupants in the building and evacuation would be easier than if the fires had spread in the middle of the night.

28.All the fires were of a very small scale, no accelerants were used, and it is fortunate that they did not spread.

29.I find that the fact that the rubbish bins were inside the building when the defendant started (or attempted to start) the fire render his act more dangerous than that of the defendant in Chan Chi Cheung. The bins there were in a rear alley in open air where smoke from the fire would be able to dissipate quickly. Had the fires in our case spread, the smoke could be trapped inside the building and spread into the corridor, the elevator shafts and even individual flats, making it more difficult for the occupants to escape.

30.As it has been pointed out many times before in different judgments dealing with arson, starting of fires in a multi-storey residential building presents a high potential of harm. This is where the seriousness of the act of arson of this kind lies, even if only minimal damage had actually been caused to property.

31.Even though the defendant had set the fires ‘for fun’ and not in revenge or to intimidate and there is no suggestion of any triad connection, even though the fires were on a very small scale, the sentence that I impose on the defendant must include an element of deterrence.

32.According to the reports, the defendant does not suffer any psychiatric or psychological illness. There is no indication that he was suffering from any such illness at the time of his commission of the offences either.

33.All 3 reports tend to suggest that the defendant said he had ‘accidentally’ set fire to the rubbish bins. Mr Chan for the defendant submits that the defendant was just trying to ‘water down’ the seriousness of his action.

34.Taking into consideration the circumstances of the commission of the offences, I will adopt a starting point of 15 months’ imprisonment for each of the 3 charges.

Aggravating factor

35.Although the defendant is not of clear record, these are his first arson related convictions and his last conviction was more than 14 years ago, I do not find his record an aggravating factor that would warrant an enhancement of the sentences. There are no aggravating factors in the defendant’s commission of the offences.

Mitigating factor

36.The only mitigating factor is the defendant’s timely pleas of guilty. For this he will be granted the full one-third discount.

37.The discounted sentence for each of the 3 charges is 10 months’ imprisonment.

Totality

38.Charges 1 and 2 took place within a very short period of time on the same day. I will order the sentences to run concurrently.

39.Charge 3 took place on a different day and are not connected to the other charges.

40.Taking a step back and taking into consideration the defendant’s mother’s old age and wish for leniency for her son, I order that 3 months of the sentence in charge 3 be served consecutively to the sentences in charge 1 and 2, the balance to be served concurrently.

41.The final total sentence for all 3 charges is, therefore, 13 months’ imprisonment after plea.