HKSAR v. Law Yat Cheung

DCCC 435/2017

[2018] HKDC 283

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 435 OF 2017

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Reasons for Sentence

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1.Defendant has pleaded guilty to a single charge of arson with intent, contrary to 60(2) and (3) of the Crimes Ordinance.

2.The defendant has also agreed the summary of facts.

3.The summary of facts show that the fire was set at a premises in Lei Muk Shue Estate in Kwai Chung and it was a residential unit where the victim, her husband and daughter lived, and also there was a son as well who occasionally lived there.

4.The fire was set on 25 December 2016 in the early hours of the morning around 2.05 am and the first prosecution witness woke and realised the main door of her premises was on fire.  The fire had spread to a shoe closet near the door.  She was there with her daughter and they escaped through the burning wooden door of the premises.  Her right thumb and forefinger were burnt and she hit her face whilst making this escape.

5.Police were alerted and Fire Service attended. They extinguished the fire, found that an accelerant had obviously been used to start the fire.

6.CCTV footage which has been viewed by the court shows the defendant pouring liquid onto the main gate and the floor outside the premises and setting the fire.

7.As far as the injuries to the first prosecution witness is concerned, she had a right-sided facial abrasion and a scald on her right index finger.  She was discharged.  She received some medication such as Panadol and cream.

8.The extent of damage found by the Fire Service Department: 7 metre by 7 metre area was set alight by the fire; 10 per cent of the walls and ceiling of the premises were blackened by heat and smoke.  The fire was clearly suspicious.

9.Total cost of repair to the premises was $50,000.

10.The defendant was arrested on the same day in the early evening.  He admitted he had been to the building in the early hours of that morning.  Subsequently, various exhibits were found to implicate the defendant in the fire, such as DNA found on bottle caps, on a surgical mask seized; also presence of paint thinner and flammable organic solvents found in his clothing and body.

11.The defendant has admitted his involvement by his plea of guilty and also in mitigation.

12.As far as antecedents are concerned, he is aged 23 years old and he has a criminal record which is entirely related to drugs.  He has three separate convictions.  In 2009 he was sent to a rehabilitation centre for possession of dangerous drug and then in January and February of 2013, for the same offence, was sent to a Drug Addiction Treatment Centre.

13.Because of the nature of the offence, I have obtained reports upon the defendant, particularly a background report, psychiatric report and psychological report. 

14.The psychiatric report finds no psychiatric disorder.  There are no specific recommendations. 

15.The psychological report indicates that the commission of the present offence, it says, might be related to his drug abuse but it is not able to be more specific than that.  The clinical impression is the defendant has average intellectual functioning.  He is a young man with what are described as antisocial traits, a drug abuse problem and he is easily frustrated, impulsive and disregards the law.  There is apparently no sufficient evidence to suggest the present fire-setting was related to pyromania and is either due to the influence of illicit drugs or antisocial orientation.  His risk of violent re-offending was assessed to be moderate.  It is said that psychological intervention in respect of his antisocial and violent attitudes, his inability to cope and a drug abuse problem would be beneficial to his rehabilitation.

16.The background report again picks up on matters set out in the psychological report.  It does say the defendant is remorseful and did not anticipate the level of damage that was caused by the offence.  It was out of his expectation.

17.What he described as “the target” and was living in the flat in question and he wanted to give that person a lesson.  In any event, it is perceived that the family is shocked by what the accused did.  They will be in a position to provide him with backup and support to assist his rehabilitation.

18.As far as the principles of sentencing are concerned, this is clearly a very serious offence.  This is an aggravated arson, which involves the endangering of people’s lives and clearly the life of the victim and her daughter were endangered by this act. 

19.It has been said that offences of arson are to be treated by the courts as very serious.  Because the facts of the cases vary a lot, there is no particular guideline for sentencing and that can be seen from the case of Hong Kong SAR v Kung Pak Fu and where the Court of Appeal said:

“...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.”

20.An assessment of gravity is this involves the lighting of a serious fire in a multi-storey residential building, risking the lives not only of the people in the room but also all the occupants of the building.  Also the fire is started in the early hours of the morning when most occupants would be asleep and unable to necessarily respond quickly. Furthermore, considerable damage was caused by the starting of this fire and also some, if somewhat minor injury, to the people inside the flat, but the fact that there is only minor injury is as a result of their quick-wittedness and their ability to escape from the premises.

21.In mitigation, it can be said the defendant is still a young man.  He is only 23 years old.  He does not have a serious criminal record and certainly no offences of a similar nature, no offences involving violence.  He is clearly now remorseful, his remorse expressed to the court both by his counsel and by letters he has written to the court and he is in a position where he may well be rehabilitated.

22.I have to balance all these factors and determine what should be a proper starting point for sentence.

23.Taking all these factors into account, I consider the appropriate starting point for sentence in this particular case is one of 48 months’ imprisonment.

24.The defendant is entitled to a one-third discount because of indication of plea of guilty at an early stage, which leads to a final sentence of 32 months’ imprisonment.