HKSAR v. L.W.

DCCC 1069/2018

[2019] HKDC 1232

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1069 OF 2018

----------------------------

----------------------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

1.The defendant was convicted of two charges of arson being reckless as to whether life would be endangered, contrary to sections 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap 200, on his own guilty plea and agreement to summary of facts.

Facts

2.At all material times, the defendant resided with X (his son), daughter and parents in a flat in Tung Kin House, Tai Hang Tung Estate, Shek Kip Mei, Kowloon (“the flat”).

3.At around 10:30 pm on 17 October 2018, while X was at the flat with his paternal grandfather and sister, the defendant returned home, appearing to be drunk.  Subsequently, a dispute ensued amongst the family members, and X asked the defendant to leave the flat.

4.Between about 11:59 pm on 17 October 2018 and midnight on 18 October 2018, X smelt something burning.  When he looked out from the door viewer, he saw flames outside the flat.  He then opened the door and saw something burning outside the flat.  Immediately, he put out the fire with a bucket of water.  At that time, the defendant was sitting outside the flat and mumbling that he wanted to burn the flat.  X swiftly returned to the flat, closed the door and kept an eye on the defendant through the door viewer. 

5.The defendant walked towards the lift and around 8 to 10 seconds later, the defendant returned with something in his hand which he subsequently put on the floor outside the flat.  X then heard the sound of lighter lighting.  Immediately, he opened the door and saw a plastic bag burning.  He put out the fire and called the police.

6.At around 00:01 am on 18 October 2018, the security guard of the flat heard the smoke alarm on the floor of the flat and attended the scene.  She saw some ashes and paddles outside the flat and the defendant was standing and shouting outside the flat.

7.Roughly the same time, police attended the scene and saw the defendant standing next to a trash bin at the lift lobby of the floor of the flat.  The defendant was then very emotional and he had a smell of alcohol.

8.Upon enquiries, the defendant said that he was forced to leave the flat by his family and so he set a fire out of impulse.  He further said he set a fire with a jacket and threw it into the trash bin.

9.Upon search, the police found a damaged jacket inside the trash bin at the lift lobby of the floor of the flat, and a plastic bag with burn marks containing a few plastic mats.  He also found a lighter in the right front pocket of the jeans that the defendant was wearing.  The defendant admitted that he used it to set the fire.

10.The defendant was arrested.  At that time, he appeared to be drunk and he was sent to hospital for observation.

11.In the subsequent cautioned interview, the defendant admitted:-

(1) that the jacket belonged to him;

(2) that the plastic mats were rubbish and were found by the defendant near the trash bin;

(3) that the defendant was scolded by his family for getting drunk and was forced to leave the flat. Therefore, he burnt the jacket and the plastic mats outside the flat with the lighter to relieve his anger;

(4) that the defendant said he did not intend to scare anyone by the fire and he put out the fire shortly afterwards and threw the jacket and plastic mats into the trash bin.

Criminal record

12.The defendant has a clear record.

Mitigation

13.Defendant is aged 47.  He was born in Mainland and came to Hong Kong in the year 2011. 

14.He is divorced and lived with his parents, aged 73 and 83, and his two children at the flat.  Apart from having kidney stones, he is otherwise healthy.  His mother has a liver tumour and has to go to Mainland for treatment frequently. 

15.The defendant received education up to junior high school level in Hong Kong.  He used to be a construction site worker and air-conditioning worker, but at the time of offence, he was unemployed.

16.It was said on his behalf that:-

(1) at the time of the offence he has been unemployed since July 2017;

(2) he used to be, as said earlier, an air-conditioning worker earning about $20,000 per month, of which he would contribute $11,000 per month to his family and kept the rest for his own use.

(3) his parents also receive old age allowance and his children are both studying in high school.

(4) economic pressure mounted as time went by and the defendant start taking alcohol to relieve his stress.

(5) due to financial hardship, the defendant did not have a harmonious relationship with his family.

(6) his family finds the commission of this offence by the defendant something out of character. They are also hard hit by the commission of this offence by the defendant and they are all very distressed.

(7) they are presently supportive of the defendant.

(8) after his arrest, it was said that the daughter managed to have some part-time jobs and the family faces financial hardship.

(9) they ask this court to show sympathy to the defendant for his ignorance.

17.It was further mitigated on his behalf that at the material times, he was enraged by his family forcing him out of his own home, ie the flat.  After the family dispute, it was out of impulse and a state of rage that he committed the present offences.  It was said that the defendant did not really mean harm to other people by setting the fire.  In fact, he promptly put out the fire and disposed of the damaged jacket and burnt mats with the assistance of his son. 

18.It is said that the defendant committed the present offence when he was drunk and is now deeply remorseful as to what he has done.  He now knew that he should not further indulge in drinking when he is unhappy and that he already committed very serious offences. 

19.It is also said that the defendant has learnt his lesson the hard way since his detention.

20.Defence counsel also said that the case did not involve any triad nor was the commission of these offences premeditated.

21.It is also said the defendant vows not to commit any further offences in future and that he would keep himself away from alcohol, it is therefore unlikely that he would re-offend.

22.The defendant’s daughter has also written to this court.  She said that her father was under immense economic pressure at the time of offences.  She also said the defendant has always been a responsible father and a son, supporting the family and seldom voicing his own difficulties to his members of his family.  She asked this court to deal with the defendant leniently.

23.It is also submitted that in this case there is no injury to person or damage to property, save the defendant’s own jacket. 

24.Defence counsel also reminded this court that the defendant had a clear record and he has been in remand since his arrest and that he has learnt his lesson.

25.Defence counsel also submitted that the defendant accepts that the present offences are of serious nature and he is deeply remorseful. 

26.Ms Wong, Defence counsel, also confirmed the contents of the psychiatric report dated 5 August 2019, the same has been read and explained to the defendant.

27.She also asked this court to deal with the defendant leniently.

28.It is said in the report the defendant started drinking at the age of 19.  At the time of arrest, he had been drinking double-distilled Chinese wine daily for more than 10 days, with half catty per day. 

29.The defendant was reported to have features of alcohol-dependent syndrome such as withdrawal symptoms and craving in between drinking, tolerance, relief of withdrawal symptoms after drinking and he continued to drink despite he knew the harmful effects of alcohol to his physical health.

30.The report also told the court that the defendant had previously been admitted to Kwai Chung Hospital for two weeks for violent behaviour to his parents and daughter after drinking alcohol.  Follow-up appointment were arrangement at psychiatric outpatient clinic after defendant’s discharge from hospital but he did not attend the appointment. 

31.It was said that he had limited insight into his own alcohol use problem.  It was also stated in the report that presently he has no alcohol-dependent syndrome as he was incarcerated and had no chance to take alcohol.

32.Dr Siu, the psychiatrist preparing the report, recommends that the defendant attends psychiatric outpatient clinic for alcohol use problem and arrangement has been made for him.

Discussion

33.A person guilty of arson under section 60 of the Crimes Ordinance or an offence under section 60(2), whether arson or not, shall be liable on conviction upon indictment to imprisonment for life. 

34.There is no sentencing tariff set for offences of this nature, as the culpability of the defendant, depending on the circumstances of the case, differ a lot. 

35.The flat is a unit in a public housing estate. Any fire at the entrance to the flat might become uncontrolled and would pose a serious threat to both occupants of the flat and that of the other occupants in the building. 

36.It was near midnight when the offences were committed.  Most occupants in the housing estate are expected to be resting in their flats.

37.It is noted, as submitted by defence counsel, that the case did not involve threat, revenge or triad, but rather the defendant had acted out of impulse after engaging in dispute with his family and being evicted from the flat of which he is a lawful tenant.  The defendant was also drunk at the time, as confirmed by the caretaker. 

38.No accelerant was used in the setting of the fire.  The defendant is a smoker and he had used his own lighter to ignite his own jacket and also the plastic mats and plastic bag. 

39.The defendant did admit that he assisted his son in putting out the fire and in fact when police arrived shortly afterwards, he was standing in the lift lobby beside the garbage bin, where his damaged jacket, damaged mats and plastic bags were found.  At the same time, there was paddles and some ashes outside the flat, where the fire previously occurred. 

40.No doubt the defendant was under the influence of alcohol at the time and he was very agitated when disallowed to stay at the flat.

41.It is also noted by this court that at the time the defendant was under extreme economic stress, as he had been unemployed for some time and he used to be the sole breadwinner of the family.

42.In the present case, the fire was easily put out and the defendant used to be a man of clear record.

43.This court accepts, as said by his family members, that his commission of this offence by the defendant was something out of character.

44.Facts of the case is in fact quite similar to the case of Kung Pak Fu, CACC 429/2007, where the Court of Appeal discussed a number of cases when considering the appropriate sentence in that case. 

45.In the present case, however, no one was injured and in fact there was no property damage done, apart from the damage to his own jacket and the defendant stayed at the scene after commission of the offences, probably because he knew he had to face the consequence of his wrongdoings and that he really had no other place to stay for the night.

46.The offences undoubtedly are very serious in nature, but the present two offences are not the most serious of its type.  It arose out of a family dispute and the defendant committed the same on impulse.

47.Considering the circumstances of the case, the sentencing starting point for each of these two offences are set at 3 years’ imprisonment.

48.The defendant has pleaded guilty at the earliest opportunity and is therefore entitled to the full one-third sentencing discount, bringing the sentence to 2 years’ imprisonment for each charge.

49.The defendant used to be a man of clear record and this court accepts the commission of these offences are really out of character and any chance of re-offending is slim.

50.This court therefore is willing to further reduce his sentence by 3 months to 1 year and 9 months for each charge.

51.The two offences are of the same nature and they were committed within short periods of time at the same place.  This court does not think that commission of the second offence adds to the culpability of the defendant in commission of the first offence.

52.Accordingly, the sentence in the 2nd charge is to run wholly concurrently to the sentence in the 1^st charge.

53.The defendant is therefore sentenced to 1 year and 9 months’ imprisonment for the two offences.