HKSAR v. Ma Toh Ma

DCCC 1021/2018

[2019] HKDC 38

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1021 OF 2018

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REASONS FOR SENTENCE

1.On 27 December 2018 the defendant pleaded guilty to one charge of arson intending to damage property and being reckless as to whether the life of another would be thereby endangered, contrary to sections 60 (2) and (3) and 63 (1) of the Crimes Ordinance[1]. Sentence was adjourned for preparation of a psychiatric report and a psychological report[2].

2.Full particulars of the offence are set out in the facts admitted by the defendant on 27 December.  In summary, in the early morning of 14 August 2018 the defendant set fire to Room 3415, Hong Lai House, Yau Lai Estate in Yau Tong. 

3.The defendant resided upstairs on the next floor in room 3515. Room 3415 was occupied by Madam Chu who resided alone.    

4.At 6:30 a.m. on 14 August Madam Chu left home.  At 6:45 a.m. Mr Chan, Madam Chu’s son, went to see his mother.  Mr Chan discovered that the outer door; the iron gate and the corridor wall of his mother’s flat had been burnt.  Mr Chan made a report to the police. Photographs showing the damage caused by the fire to the door, the gate and the corridor have been submitted to court.

5.Around 1:58 p.m. the same day the defendant told a security guard of the building that he had set fire to a flat downstairs.  The defendant was arrested at his home later the same afternoon.  Under caution the defendant admitted setting fire to the flat below because a male musician living downstairs always made noise which bothered him.  The police seized a can of gasoline and a lighter from the defendant’s home. 

6.In a subsequent cautioned interview, the defendant told the police, inter alia, that since 2009 a male musician living downstairs always played music loudly; when a female visited him they would make noise; a few months before the incident he met the female and told her if she did not stop making noise he would set her on fire; the night before the incident the defendant heard the noise again and planned to set the musician’s flat on fire; early the next morning, shortly before sunrise, he splashed some gasoline outside the musician’s flat and put some burning newspaper into the gap under the door; when he saw that the door was on fire he left and after sunrise he returned to the flat and found the fire had already burnt out.   

7.The Fire Services Department found no accidental source of ignition.  Abnormal seat of fire was noted.  Deliberate act was believed to be the most possible cause of fire.   

Mitigation

8.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Li, including that the defendant, aged 74, is single, has no siblings and relies on public assistance of $4,025 per month.   The defendant has hearing difficulties and suffers from diabetes. 

9.The defendant cannot be given credit for a clear record having appeared in court on twenty-five occasions since 1962, amassing a total of fifty–two convictions mostly for offences of dishonesty.  The defendant has been sentenced to imprisonment on many occasions.

10.I do however take into account that the defendant has no previous convictions for arson and that he last appeared in court in 2003 when he was sentenced to 2 years’ imprisonment for an offence of wounding. 

Guidelines

11.Offences of arson are to be treated by the court as very serious.  The facts of cases varying so much there are no guidelines.  In HKSAR v Kung Pak-fu, cited by Mr Li,the Court of Appeal, after reviewing a number of cases, said[3]:  

“……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.”

12.Each case depends on its own facts and circumstances.  The prosecution have drawn to my attention HKSAR v Law Chun Man where the Court of Appeal set out factors to be considered in arson cases, including the motivation of the defendant, the actual damage done, the potential damage to life and property and whether the arson was an isolated incident[4].

Motive

13.Mr Li explains that the defendant was prevented from sleeping properly due to the noise made by the neighbour in the flat below.  The defendant describes the noise as a radio playing loudly and a man singing which was constant both day and night.

14.The defendant says that although he complained many times about the noise to the management office and the police and to the occupant of the flat, the noise continued. 

15.When the noise became intolerable the defendant believing there was no other way to stop the noise set fire to the flat below.  Mr Li submits the defendant’s actions were merely an outburst of frustration and anger when he had no other way to deal with the noise. 

16.Mr Chen informs the court that according to the records of the police only one complaint has been made by the defendant about noise coming from a flat upstairs not downstairs.  

Use of accelerant

17.The defendant used gasoline, a flammable liquid.  The use of an accelerant is a factor of considerable aggravation in the commission of the offence[5].  Fortunately, the fire burnt out before it took hold and spread to neighbouring flats, indicating very little gasoline was used.  From the photographs damage to the flat was limited to the outside of the door and iron gate and the wall near the flat. 

18.I have had the opportunity of reading the incident report of Lau Ka Shun, Station Officer with the Fire Services Department.  Hydrocarbon detector was used to detect any trace of accelerant with negative result[6].    In a supplemental statement Mr Lau explains that the reason he may not have detected any gasoline used by the defendant was because the gasoline had burnt out or evaporated[7]. 

Sentence

19.The defendant may well have felt he had no alternative but he must understand that the lighting of a fire in a multi-storey residential building risks the lives of all other occupants of the building, in particular when the fire is started in the early hours of the morning when occupants are asleep[8]. Fortunately, Madam Chu had left the flat before the defendant set fire to the flat.

20.Taking into account all the circumstances, including the fire was started in the early hours of the morning; Madam Chu had already left home; the damage to the flat was not extensive and had not spread to other flats; gasoline had been used but the quantity was most likely small and had burnt out or evaporated; the defendant told the management office he set fire to the flat leading to his arrest; and that the defendant is 74, I am satisfied the proper starting point after trial is 4 years imprisonment.   

21.Giving the defendant full credit for his plea of guilty reducesthe sentence to 2 years and 8 months’ imprisonment.

Mental illness

22.In HKSAR v Chiu Peng, Richard[9] the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence.  The court said the justification for a discount in sentence by reason of mental illness was:

“…as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened.”

23.Both the psychological report and the psychiatric report refer to the defendant having been assessed by a psychiatrist in 2016 after being found semi-conscious at home by firemen.  The defendant reported hearing non-existent musical sound and was suspected of having mental problem.  The defendant was referred to psychiatric out-patient clinic for follow up but he did not attend[10]. 

24.The defendant told the clinical psychologist that he has heard the music whilst in Siu Lam Psychiatric Centre and believed this was black magic by the neighbour seeking revenge.  The defendant also told the clinical psychologist of hallucinations including seeing a man, aged about 60, dressed in a red shirt with long sleeves, who followed him everywhere including when he appeared in court.  Although the defendant had never seen the neighbour downstairs he believed this man in red was the neighbour and a fellow prisoner he had met in the past in Stanley Prison[11].

25.The psychiatrist also refers to the defendant complaining of hearing music on and off, which the defendant suspected was related to the curse from his neighbours[12]. 

26.The clinical psychologist is of the opinion that the defendant presented with features similar to psychotic symptoms, such as hallucination and delusion and that his risk of re-offending is high[13]. The clinical psychologist recommends psychological intervention and psychiatric assessment[14]. The psychiatrist is also of the opinion that the defendant presents with auditory hallucination and recommends out-patient psychiatric treatment[15].

27.Although the defendant clearly knew what he was doing, taking into account the age of the defendant, 74, and the opinion of the clinical psychologist and the psychiatrist, the defendant’s mental health may well have played a part in the commission of the offence. In the circumstances I reduce the sentence by 4 months to 2 years and 4 months’ imprisonment.     

28.The defendant is convicted and sentenced to 2 years and 4 months’ imprisonment.