HKSAR v. Chi Lung Cheung

DCCC 438/2017
[2018] HKDC 114

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 438 OF 2017

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Reasons for Sentence

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1.The defendant pleaded guilty to 4 charges (charges 1, 2, 4, 6 on the charge sheet) of arson with intent, brought under s.60(2) and (3) of the Crimes Ordinance, Cap.200. The remaining charge 3 and 5 were ordered to be kept on file, not to be proceeded with against the defendant without the leave of court.

Summary of facts

2.The defendant had, on 4 different occasions, set fire to toilet papers with a lighter and started off 4 small fires which were all quickly and easily extinguished.

3.The fires were all set outside one flat in Hau Tat House of On Tat Estate in Sau Mau Ping. The reason why this flat was targeted by the defendant was because he was labouring under a hallucination induced by his drug use.

4.The defendant believed that a certain ‘Mr Choi’, with whom he had a purported argument, lived in the flat. The defendant was trying to force this Mr Choi out by burning toilet papers outside the door.

5.There was, in fact, no such ‘Mr Choi’ residing at the flat.

Charge 1

6.Burnt debris were found near the iron gate of the flat at around 8:30pm on 3^rd February 2017. According to a witness who lived on the same floor, the fire alarm was set off at about 7am on 28^th January. The witness extinguished the fire and informed the security staff of the incident, who reported the matter to the Police.

7.As a result of the fire in charge 1, a small area of a wooden door and iron gate of the flat was blackened.

Charge 2

8.The resident of the flat found burnt debris between the iron gate and the wooden door of the flat at around 5am on 19^th February 2017. As a result of this fire, the wooden door of the same flat was blackened again. The matter was reported to the Police.

Charge 4

9.At around 5pm on 19^th February 2017, Ms Tong, another witness who lived on the same floor, heard some noises outside her flat. She went out to see what was going on and saw some tissue papers burning at the lower part of the iron gate of the flat. Ms Tong got some water from her flat and put out the fire. The incident was also reported to the Police.

Charge 6

10.Based on the above reports, Police officers began to keep surveillance outside the flat on 25^th February.

11.At around 5:58am on 26^th February, the defendant appeared outside the flat. He knelt down, took out some toilet paper from his jacket pocket, inserted the paper between the iron gate and wooden door of the flat, and used a lighter to set fire to the paper.

12.Police officer immediately intercepted and put out the fire. The defendant was arrested for arson. Under caution, he told the Police officer that he lived in the same building. The defendant claimed that the resident of the flat had gone to his flat to harass him and so the defendant wanted to force the resident out by burning the toilet papers to smoke him out.

13.The defendant also admitted that he did the same thing at about 5am a week ago, and that he knew his action would affect the residents of the other flats nearby.

14.At the subsequent video recorded interview, the defendant said that he had been using the dangerous drug ‘Ice’ for about one and a half year. He has also been using cough mixtures for 10 years, consuming one bottle every 3 days.

15.The defendant claimed that he suffered from brain damage and had hallucinations, and that he was receiving regular psychiatric treatment. The defendant was, however, not sure if he was suffering from hallucinations at the time of his commission of the offences.

16.Two psychiatrists had previously confirmed in their reports that the defendant was fit to plea. The prosecution confirmed that their case against the defendant is based on his recklessness as to whether the lives of others would be endangered from his setting fire to the toilet papers. Ms Betty Chan for the defendant confirmed that this is the basis of the defendant’s guilty pleas.

Previous convictions

17.The defendant is of previously clear record.

Mitigation

18.Ms Chan prepared a very helpful written submissions in mitigation.

19.In gist, the defendant is 29 and had been working as a waiter from 2011 to October 2016.

20.The defendant got married in 2013 and has a daughter who is now four and a half years old. His wife and daughter live in mainland China and are supported by the defendant’s parents after the defendant became unemployed in 2016, and during the defendant’s present remand.

Psychiatrist reports

21.Out of an abundance of caution, two updated psychiatrist reports were ordered to be prepared on the defendant.

22.It remains the opinion of the psychiatrists that the defendant has been suffering from substance induced psychosis. His mental condition has improved during his remand period and no psychiatric in-patient treatment is required. The defendant is recommended to continue with out-patient psychiatric treatment.

Sentencing cases considered

23.Ms Chan referred to the following cases.

24.In HKSAR v Ching Kam Pui (程錦沛), CACC 269/2002, the applicant used a lighter to set fire to some newspapers and threw them through the gaps of the iron gate of the flat that he and his landlady resided.

25.The landlady was inside the premises at the time. The lower part of the wooden door behind the iron gate was blackened. The applicant was behind in his rental payment and the landlady had threatened to evict him if he did not pay up. When asked by the landlady why he set the fire, the applicant said he was setting the fire so that they would all die together.

26.The applicant was convicted after trial of s.60(2) arson and was sentenced by the learned trial judge to 40 months’ imprisonment.

27.The Court of Appeal recognized the danger posed by the applicant’s conduct and that the usual sentence for arson would be 4 to 5 years’ imprisonment, with the sentence being very much fact dependent.

28.The Court pointed out that the applicant did not use any accelerant, just a lighter and some newspapers. The case did not involve a criminal syndicate acting in revenge or to recover a debt. Although the applicant was not suffering from psychiatrist illness, he was also not of completely sound mind. The Court found that the 79 year old applicant’s action must have, to some extent, been affected by him suffering from senile dementia.

29.Based on the special nature of the case, the Court allowed the appeal against sentence and imposed a term of 30 months’ imprisonment.

30.In the case of HKSAR v Kung Pak Fu, CACC 429/2007, the Court of Appeal stressed that a deliberate act of arson, especially when done in a multi-storey residential building, will very likely cause extremely grave consequences.

31.Having said that, the Court recognized that the case did not involve triad conduct, intimidation or blackmail. The Court was of the view that the case stemmed from nothing more than a family dispute and the applicant committed the offence on the spur of the moment and in extreme anger.

32.The Court found that the applicant was influenced by alcohol and irritated by the disrespectful words and deeds of his children, which caused him to set fire to the essential oils that he had poured onto the floor of his own home where he and his family lived. The applicant used a lighter and some newspaper to start the fire.

33.As a result of the fire, the applicant and his younger daughter suffered burns. His younger daughter had since fully recovered. The applicant suffered secondary burns covering 30% of his body, but most of them were on parts which could be covered. He did not suffer facial injuries, nor was his movement affected. He was hospitalized for 3 months.

34.The Court found that the applicant was in fact the major victim in the incident, suffering both physical and mental injuries, and the family being further alienated. The Court decided that notwithstanding the seriousness of the offence, the circumstances of the case justified a merciful approach to sentencing.

35.The original sentence of 6 and a half years’ imprisonment was substituted by one of 4 years’ imprisonment after trial.

36.In the District Court case of HKSAR v Lau Wai Chung (劉偉忠), DCCC 44/2016, the defendant used a lighter to set fire to a piece of cloth that was hanging outside the flat where the defendant’s debtor lived.

37.The debtor borrowed $500 from the defendant but had only repaid $400. Out of anger and frustration, after the debtor had changed his phone number and gone missing, the defendant committed the offence.

38.The defendant was 25 years old with a history of drug use. According to the psychiatrist reports there, the defendant had suffered from drug induced psychosis and had been hospitalized for treatment. The defendant had since stabilized and would only require out-patient follow up treatment.

39.The learned trial judge recognized the seriousness of setting off fires in a multi-storey building and pointed out the fact that the flat was occupied at the time of the fire, but found that the defendant had committed the offence out of impulse and being reckless.

40.The judge took into consideration that no accelerants were used, the fire was of a small scale, and the defendant had remained at scene to make sure the fire did not spread and adopted a ‘relatively light’ starting point of 30 months’ imprisonment.

Sentence

41.I have taken into consideration the following factors in sentencing.

42.The defendant is 29 years old and of previously clear record.

43.Each of the fires were set by the use of a lighter and some toilet paper. No accelerants were used. The resulting fires were all of small scale and were put out quickly and easily.

44.The offences did not involve any crime syndicates, nor were there any triad connections.

45.The defendant believed that he was setting the fires to smoke out ‘Mr Choi’, he did not intend the fires to hurt ‘Mr Choi’, although he was reckless as to whether the resident inside might be endangered.

46.Most significantly, according to the opinion of the psychiatrists, the defendant likely suffered from drug induced hallucinations which drove him to his commission of the offences, thinking that ‘Mr Choi’ resided in the flat.

47.Balancing the seriousness of arson committed in a multi-storey building and the special circumstances of the defendant’s commission of the offences, as well as the sentences in the above referred to cases of Ching Kam Pui and Lau Wai Chung, I find that an appropriate starting point for each of the 4 offences is that of 2 years’ imprisonment.

48.The defendant is entitled to a full one-third discount for his timely guilty pleas, resulting in a sentence of 16 months’ imprisonment for each of the 4 charges.

Totality

49.I find that the overall culpability of the defendant warrants a total sentence of 19 months’ imprisonment after plea.

50.I, therefore, order that one month of the sentence in charges 2, 4 and 6 to be served consecutively to the sentence in charge 1, the balance concurrently.

51.The final total sentence for the 4 charges is 19 months’ imprisonment.