HKSAR v. Gurung Shibakumar

HCCC 317/2019

[2020] HKCFI 1651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 317 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The jury convicted the defendant for both counts of manslaughter by majority verdicts.

At about 0050 am on 3 December 2017, a fire broke out at Tin Sam San Tsuen at Lot 3089, DD124. There were four huts on the land, Huts 80 to 83. At about 0141, the fire was under control.

Preliminary investigation revealed that Huts 80 to 83 were damaged by the fire. Hut 83 was most severely damaged. A man and a woman died inside Hut 82. The cause of death for each deceased was adverse effects of fire with inhalation of fire fume.

Expert fire investigator, Mr Chan, from the Fire Services Department examined the scene and the damage to the huts. He accepted that there were three seats of fire. He excluded other possible causes of fire such as smouldering by a discarded cigarette butt or a faulty mobile phone battery, electrical fault due to abstraction of electricity, spontaneous fire and flying ember. He opined that the fire was set by a deliberate act. An accelerant was likely used.

Forensic scientist, Dr Wong, from the Government Chemist Laboratory also visited the scene. He examined the site and collected physical evidence for analysis. He found no evidence of spontaneous combustion, flying ember, cooking fire, smouldering and faulty electrical appliances. He could not exclude the possibility that the fire was deliberately started.

Police investigation revealed that Hut 83 was vacant as the landlord had demanded all tenants to leave. The main gate of Hut 83 was locked with a chain and a padlock at about 6 pm on 1 December 2017. Tenants of Huts 80 and 81 were also asked to move out but were given some extra time after the deadline.

Defendant was a tenant of Room 4 at Hut 83 at the material time. He was admitted to Ward 8A of Tuen Mun Hospital for his wound in his left hand since 23 November 2017. CCTV footages reveal that the defendant left Ward 8A at about half past 8 pm on 2 December 2017 and returned to Tin Sam San Tsuen at about 0030 am on 3 December 2017. He was seen running away from Tin Sam San Tsuen at about 1 am. He finally returned to Ward 8A at 0121 am. It transpired that the defendant had returned to his room to pack some clothes and went over to Hut 80 to chat with people there. While talking to the Indonesian woman, Riza, at Hut 80, the fire broke out. People then escaped to a nearby playground. The defendant left the scene.

Police subsequently found a bottle of alcohol 75 per cent concentration in the properties of the defendant. There was 250 cc alcohol left in a 430 cc bottle.

Defendant admitted under caution that he was at Hut 83 shortly before the fire broke out. He did not stay at the scene as he was in a hurry to return to Tuen Mun Hospital.

Defendant is 40. He was born in Hong Kong. He returned to Nepal when he was about 3 years old. He received education at Nepal up to Primary 3. He returned to Hong Kong in 1997. He is single. He used to be a car mechanic but was unemployed since June 2017. He lives in Hong Kong alone. He has 17 previous convictions including assault occasioning actual bodily harm and theft. He was last discharged from prison in September 2017.

The sentencing for manslaughter is of a wide range, depending on the circumstances of a case. It may not be helpful to compare the facts of other cases. The sentence must reflect the severity of the offence. It must be appropriate retribution and deterrent in the circumstances. I have also considered whether the defendant is likely to represent a serious danger to the public in the future.

In this case, I take note of the following circumstances in sentencing. It is a premeditated conduct. He returned to his room and packed his clothes before setting fire. Defendant must be aware that there were residents at other huts and probably sleeping, given it was shortly after midnight. He actually talked to his friends at Hut 80 shortly before the fire was discovered. He was aware that others were given an extension of the deadline. He was in possession of 75 per cent alcohol which was an accelerant. I reject the defendant’s claim that it was for cleansing his wound. Given the spread of fire as explained by the fire investigator from the Fire Services Department, I accept it was used to set the fire. The deceased were innocent in this case.

The defendant’s conduct, in my view, is irresponsible and evil. His conduct was just to vent his anger with total disregard of others’ safety. He committed the offence probably because he was evicted by the landlord. This is no excuse as he had not paid any rent for at least several months prior to the fire.

I have considered various sentencing cases submitted by Mr Beel, counsel for the defendant. They include HKSAR v Sze Kwan Lung, CACC 92/2002 and HKSAR v Luo Fu Di, CACC 107/2012. Having considered the circumstances, I take a starting point of 16 years’ imprisonment for each charge. I order that both terms to run concurrently. Defendant has to serve a total of 16 years’ imprisonment.