HKSAR v. Tsoi Chun Yu

DCCC 96/2018

[2018] HKDC 1413

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 96 OF 2018

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REASONS FOR SENTENCE

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1.At about 8 pm on 8 July 2016, the defendant entered a private tenement in King’s Road, North Point, went up to the 4th Floor and stuck a paper written with the Chinese words “brothel” onto the gate of L1. He splashed paint on the gate and the adjacent wall before igniting some firecrackers.

2.The discharge of the firecrackers caused the door to catch fire, damaging an area of 2 feet by 2 feet.  The metal gate of L1 and the wall to the metal gate were thus blackened.

3.Residents of the same floor subsequently put out the fire and the matter was reported to the police. 

4.The defendant is thus charged with one count of Arson and one count of Criminal Damage.  He is convicted on his own plea and admission of facts.

5.The defendant was not arrested until 30 August 2016.  He initially remained silent and was released on bail.

6.On 12 December of that year, the police found the defendant’s fingerprint on an exhibit seized from the scene.  The defendant was arrested again on 2 February 2017.  On 17 February, he made a full confession of the crime.

7.I am setting out all these details because of a point of delay has been raised by the defence and I shall deal with it later.

8.The facts prepared by the prosecution also revealed that the defendant admitted he did damage to the building there because of some previous dispute with the sex workers there.

9.The CCTV installed in the building also showed the defendant went to the flat, took the lift first going up to the 6th floor.  About 10 minutes later, he took another lift to go to the ground floor before taking yet another lift to the 22nd floor.  While he was walking along the corridor of the 22nd floor, he put on a white mask.

10.In my view all this showed the defendant carried out his act with a certain degree of planning.  It was not done in a blind rage.  He came back equipped with the firecrackers and the paint.  He took steps to avoid detection.  That, in my view, added to the criminality of his behaviour.

Sentencing consideration

11.I took into account of the fact that this is not a particularly serious case in that the damages had been those of property and not in a big scale.

12.I also took into account of the fact that the defendant had carried out this act of so-called revenge with a degree of planning and had taken steps to avoid detection.

13.Generally, the crime of arson is considered a very serious offence and for good reasons.  Hong Kong is a densely populated area.  Any tenement is susceptible to fire.  In case of fire, not only the person living in that flat, but also anyone living nearby and the society in general could become potential victims.

14.In this case, I accept that there has been no loss of life, no serious damage to properties, yet I cannot ignore the fact that the possible fear such act would put to the residents could be serious.

15.The editors of Archbold Hong Kong 2018 at paragraph 5-501 had surmised that such offence would start at 5 years’ imprisonment subject to aggravating factors.  The prosecution had fairly pointed out then from the previous decisions available a starting point of 5 years would be slightly too high.

16.At my invitation the prosecution has helpfully provided a number of cases for reference.  I must point out that although the general sentencing principle can be distilled from the existing authorities, there is no clear or strict guideline on the proper sentence; every case must be fact sensitive.

17.In HKSAR v Wong Tsz On, DCCC 369/2010, the facts are similar to the present case.  After a dispute with his girlfriend the defendant went back to her flat; when denied entry, he smashed a glass louvre window of the flat with his bare hand and then stuffed some materials through the broken glass and set fire to the same.  A fire was started and had been put out before the police arrived.

18.There had been a direct provocation and the materials in which the defendant used were not obtained by any previous planning, but rather were clothing, curtains, and his own clothing which happened to be at hand.  The learned judge accepted that this was not the most serious of cases.

19.I also considered another appeal case: HKSAR v Cheung Wing Siu, CACC 76/1998, in which the learned trial judge adopted 3 years as a starting point.

20.Both counsel for prosecution and defence submitted other cases for my consideration.

21.The defence submitted the case of HKSAR v Chung Kwok Sing, DCCC 49/2016 for me to consider.  In that case, 12 months’ imprisonment was adopted by the learned trial judge as a proper starting point.  I do not consider this case constitute any elements similar to the present case as to justify my adopting such a light starting point.  As pointed out by the learned judge, the fire in that case was set in a rear lane.  The scale of the fire was small and the defendant had no intention to let it go out of control.  More importantly, in my view, the learned judge took the view that anyone in the vicinity could have suffered some degree of fear or panic as a result of that defendant’s action.  The defendant in question at that time admitted the offence was committed as a result of pent-up emotions, although he did not suffer from any formal psychiatric disorder.

22.Having considered all these cases and especially in view of the fact the offence was committed with some degree of planning, I will adopt a starting point of 42 months.

Mitigation

23.I turn to consider the mitigating factors put forward by the defendant.

24.The defendant is a mature man with a string of previous convictions; these factors no doubt could not constitute any reason for this court to exercise exceptional leniency in his favour. 

25.From the submissions made by the defence counsel, the defendant had not been a particularly responsible father.  He had a young son he had not seen, but he can only have himself to blame; he was detained for another matter when his son was being born.

26.In my view, anyone acting so recklessly and unreasonably could not expect the court to be sympathetic even if he suddenly found his conscience and started worrying about the fate of his helpless child.

Delay

27.The prosecution fairly admitted in this case there is certain degree of delay.  From the chronology of the case, I take the view that this is not a particularly serious one.  The defendant was arrested on 30 August 2016. His fingerprint was detected on 12 December of the same year.  It was on 2 February 2017 that the defendant was formally arrested for burglary.

28.On 17 February 2017, the defendant, while he was in custody for another matter in Lai Chi Kok Reception Centre, made full admissions.  During the following months, the police carried out investigation from the tenants of the crime scene and from seeking the CCTV footages.  While one could say that there was room for improvement on the efficiency of the police, but one also must understand that the man power of the police is limited.  They must prioritise the strength of them for the investigation of more serious cases.

29.The matter could have been resolved a bit earlier, that is not in dispute.  But I do not think the delay is a particularly serious one.  For this reason, I will reduce the overall starting point by 4 months; making the starting point 38 months.

30.Since the background of the defendant constitute no valid mitigating factors, the only relevant mitigation is the fact he pleaded guilty. Therefore, the 38 months is reduced to 25 months.

31.In adopting the starting point and considering the final sentence order, I had considered the defendant’s criminal act as one whole continual offence and do not find it necessary to distinguish each of the acts and adjust their criminality accordingly.  Therefore, a 25 months’ imprisonment are ordered in respect of each of the offences, but to run concurrently.

32.In all, the defendant is to serve 25 months consecutive to existing sentence.