HKSAR v. Wong Kwong Wa

DCCC 37/2018

[2018] HKDC 897

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 37 OF 2018

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of arson, contrary to Section 60(1) and (3) of the Crimes Ordinance, Cap 200.

2.On 19 August 2017, the defendant had an argument with his father at home because his father had refused his request for money so he went to the shopping centre downstairs from where he lives in Tin Shui Estate in Tin Shui Wai.  This shopping centre closes at midnight.  The defendant had locked himself in the disabled toilet and to vent his anger and frustration had set fire to the toilet paper.  He left the toilet without extinguishing the fire.

3.Outside the toilet at 12.30 am, a security guard saw the defendant and told him that the shopping centre was closed, the toilet was locked and he had to leave.  She thought that he was trying to enter the toilet.  He told her that he would leave soon, so she left him alone.  The security guard did not notice anything unusual at the time. 

4.At 12.50 am that security guard received a report from a cleaner that a disabled toilet smelled of smoke and she discovered from CCTV footage that smoke was coming out from that toilet.  She went to investigate and found that there was something on fire in the toilet and it was filled with black smoke.  She extinguished the fire and found that the plastic toilet paper holder and the roll of toilet paper had been damaged by fire. 

5.CCTV footage captured the defendant entering that toilet at 12.25 am and leaving it at 12.30 am which was when he first met the security guard.  When the security guard left him, the defendant entered the toilet again and left shortly thereafter. 

6.The case was reported to the police and at 2.30 am the same day the police intercepted the defendant outside a convenience store at the ground floor of the same shopping centre and he was subsequently identified by that security guard. 

7.Under caution, the defendant admitted he had set fire to toilet paper in the toilet using a lighter found on him.  Later in an interview, he admitted that he had been able to open the toilet using a home key, he had then set fire to the toilet paper for fun, he had watched the fire grow bigger and watched the toilet paper holder catch fire.  He then left the toilet and locked the door behind him.  He admitted that he did not try to extinguish the fire or ask for help, he only wanted to leave the shopping centre as soon as possible. 

8.The defendant may have only been 17 at the time but he knew the difference between right and wrong and he was aware of what he was doing at the time and the legal consequences of his actions.  His anger towards his father and his need to vent his anger led to this act of stupidity which could have had serious consequences.  It is made even more serious by the fact that he looked into the toilet again, as seen by the CCTV footage, so he must have seen the fire get bigger yet still take no action.  He walked away without trying to extinguish it or asking for help. 

9.I have heard a mitigation that the defendant was only 17 at the time of the offense and is now 18.  He only studied until Form 3 and then worked part-time in McDonalds for six months.  His parents divorced when he was 9 years old, whereupon he lived with his father and brother.  His mother is now in court to support him today. 

10.The defendant does not have a clear record.  He was convicted of two counts of theft in August 2013 and sentenced to 12 months’ probation but because of a breach of that probation order in April 2014,  that order was extended by a further 6 months and he was ordered to live in a probation home for a period of time. 

11.In view of his age, after his plea, I adjourned sentencing pending several reports.  I was told that he had a history of ADHD and in light on the facts of this case, I called for a psychiatrist's report, a psychologist's report as well as a detention centre and a training centre report.  Those reports today, in short, say that the defendant is not suffering from any psychiatric problems nor any psychological issues other than a low frustration tolerance and poor anger management skills.  For those issues, poor emotion regulation and impulse control, psychological services are recommended to prevent re-offending for which the defendant is willing to receive.  The medical officer has determined that the defendant is medically unfit for detention in a detention centre but he is mentally, psychologically and physically fit for detention in a training centre. 

12.I do not intend to repeat the contents of the report but it is comprehensive and it confirms he was brought up in a broken family, with little parental supervision, which may –had led to him getting in trouble with the law in 2013.  The defendant failed to behave himself whilst initially under probation but after he resided in a probation home for 12 months he managed to behave himself and complete his probation order.  However, it would appear that he became involved with triad members and quit school without actually completing Form 3 in January 2016.  He then worked as a part-time kitchen worker and then a part-time convenience store attendant before being arrested for this offense.  After he was released on bail, he maintained his part-time job. 

13.There is a letter of mitigation from his present employer, the branch manager at a 7-Eleven who has recommended him for the company's continuing education program.  That branch manager has asked the court to consider leniency in sentencing.  There is also a letter of mitigation from a social worker from the Tin Shui Wai district youth outreaching social workers who gives further insight into his family background, his lost adolescence and how he is finally beginning to mature.  That social worker is also in court to support him today.  These letters, as well as the fact that the defendant continued his job after being put on bail for this offense do show that the defendant has matured since this offense.  I hope his intention to enrol on a vocational training course later is not an empty promise because he has proved to his branch manager and to the social worker as well as to himself that he is capable. 

14.At the end of the training centre report, the officer has reflected the defendant's wish to lead a decent life in the future and enrol on a vocational training course and secure a stable job afterwards.  From an assessment of the defendant's behaviour and attitude, he is deemed suitable for a training centre order. 

15.Today, the defendant agrees the contents of the reports and accepts the recommendation of a training centre order. 

16.There is no sentencing tariff for arson.  It is an extremely serious offense and it is most fortunate that the fire was put out by the security guard without it spreading further the toilet.  But the lighting of a fire in a shopping centre of a multi-storey residential building still puts the lives of many people at risk.  I do accept that the defendant acted out of impulse and anger and his act was not premeditated and luckily no one was injured and no property was seriously damaged.  I have taken into account mitigation put forward, the rehabilitation of the defendant and his plea as well the seriousness of the offense. I find a training centre order appropriate. 

17.Therefore for this offense, I sentence the defendant to a training centre order.