HKSAR v. Tsoi Chun Yu

CACC 341/2018

[2019] HKCA 793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 341 OF 2018

(ON APPEAL FROM DCCC NO 96 OF 2018)

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Before: Hon Zervos JA in Court

Date of Hearing: 19 July 2019

Date of Judgment: 19 July 2019

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J U D G M E N T

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1.On 5 November 2018, the applicant was convicted on his own plea to the offences of arson and criminal damage before Deputy District Court Judge E Lin (the judge).  He was sentenced to concurrent terms of 25 months’ imprisonment on each offence.

2.The applicant applies for leave to appeal against his conviction and sentence.  He now questions his conviction for the two offences, having pleaded guilty to them and agreeing to the summary of facts.  He queries the facts of the case and states that he only admitted the offence of criminal damage in his statement to the police.  He also complains about his sentence for the offence of arson, stating that the judge was biased against him in not applying the same sentence in HKSAR v Cheung Hon Kei, DCCC 458/2017.  In that case, the defendant lit a fire in a rubbish bin to scare his mother which resulted in the ceiling of the flat being blackened by the smoke.  The judge adopted a starting point of 2 years’ imprisonment.  The present case is entirely different and considerably more serious. 

3.The brief facts were as follows.  At around 8:17 pm on 8 July 2016, the applicant entered the Metropole Building at 416 – 438 King’s Road, North Point, Hong Kong.  The applicant went to the corridor outside Room 417 on the 4^th Floor of the building, which were residential premises.  He stuck a sheet of paper with the word “brothel” written on it in Chinese to the metal gate outside the front door of the premises.  He then splashed paint on the metal gate and the wall beside it, before igniting firecrackers outside the metal gate of the premises.  The explosion of the firecrackers ignited certain flammable items, causing a fire. The applicant then left the scene.  Neighbouring residents discovered the fire and extinguished it.

4.The applicant then went to the corridor outside Room 2222 on the 22^nd floor of the building, which were also residential premises.  As before, he stuck a sheet of paper with the word “brothel” written on it in Chinese to the metal gate outside the front door of the premises.  The applicant then splashed paint on the metal gate and the wall beside it, before igniting firecrackers outside the metal gate of the premises and leaving the building.  The explosion of the firecrackers this time did not cause a fire.

5.A bomb disposal officer confirmed that at the two locations fireworks had been exploded and there was the presence of a fuel, which was probably paint thinner.

6.The applicant was legally represented when he entered his pleas of guilty and was sentenced.  After the particulars of each offence were read out to him, he pleaded guilty to each one in turn.  The summary of facts, which outlined his criminal conduct in relation to the offences, were also read out to him and he acknowledged his agreement to them.  Included in the admitted facts were his admissions to the two offences, as well as reference to the CCTV footage that depicted him in the building at the relevant times.  There is absolutely no substance to the applicant’s appeal against conviction. 

7.In sentencing the applicant, the judge carefully considered the facts of the case and applied the relevant sentencing principles.  He adopted a starting point of 42 months on each offence after taking into account that the conduct was planned and that the applicant took steps to avoid detection, as well as the extent of the damage caused.  In fixing the starting point, he relied on the cases of HKSAR v Wong Tsz On, DCCC 369/2010 and HKSAR v Cheung Wing Siu, CACC 76/1998.  He reduced the starting point by 4 months due to delays incurred by the police investigation, which he further reduced by one third for the applicant’s guilty plea.  He sentenced the applicant to concurrent terms of imprisonment of 25 months for each offence.  There is no basis for complaint about the resultant sentence bearing in mind the seriousness of the offences and the danger to life and property by the use of incendiaries in a residential building.

8.The matters raised by the applicant are without merit and his application for leave to appeal against conviction and sentence is refused.

9.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Ms Sabra Lo, SPP of the Department of Justice, for the respondent

The applicant appeared in person