HKSAR v. Wei Jiangfeng

DCCC 201/2020

[2020] HKDC 1198

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.201 OF 2020

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Reasons for Sentence

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Charge

1.D pleads guilty to Assault Occasioning Actual Bodily Harm (Charge 1) and Arson (Charge 2).

Facts

2.D and his wife PW1 are both two-way permit holders and they were married in the Mainland in 2005.  In 2009 PW1 became pregnant and she came to Hong Kong to give birth to their son in November 2009.  To enable their son to live and study in Hong Kong, D and his wife rented a flat situated at Reclamation Street, Yau Ma Tei, Kowloon (“the Offence Location”) in June 2019 where they reside when they are in Hong Kong to look after their son.

3.At around 1900 hours on 23 December 2019, D and PW1 were involved in a dispute at the Offence Location.  In the heat of their argument, D pushed PW1 onto his son’s bed and then kicked and punched PW1 for about 10 odd minutes.  D had punched PW1 on her chest, head and arms and had kicked her around her waist and legs.

4.After assaulting PW1 as described above, D went into the bathroom to get about 6 to 7 sheets/squares of toilet paper.  When D came out of the bathroom, he was holding a lighter in his right hand and the toilet paper in his left hand.  He lit the toilet paper with the lighter in front of PW1 and their son.  When the toilet paper was set ablaze, D threw the paper onto their son’s bed causing the mattress to catch fire immediately.  At the time, D said to PW1 in a loud and fierce manner, “I will burn you to death”.  PW1 was very frightened. 

5.While the mattress was on fire, D fled the Offence Location taking their son with him.  The mattress was on fire for about 2 minutes before PW1 managed to put out the fire.  Worried about her son’s safety, PW1 made a report to the police. 

6.PW1 was subsequently conveyed to Kwong Wah Hospital for medical examination.  She was certified to have sustained tenderness and redness to her face, chest, neck, left forearm and thigh.

7.Upon arriving at the Offence Location, the police did not find any lighter or other flammable substance there.   A burnt mark of the size of about 10 cm x 3 cm was left on the mattress on the son’s bed.

8.D was arrested on 24 December 2019 by PC 54579 (“PW2”) at the Lowu Control Point after he was intercepted at the immigration control point when he tried to leave Hong Kong.

9.Two records of interviews were taken with D on 24 December 2019 with the assistance of a Putonghua interpreter.  Under caution D stated inter alia that:

(a) At the material time he had an argument with PW1 at the Offence Location;

(b) When he was in a fit of anger he assaulted PW1 by kicking and punching her;

(c) When he was also in a fit of anger that he took out a lighter and accidentally set the mattress and blanket alight;

(d) He had discarded the lighter after the incident.

Mitigation

10.D has a clear record.  He is 39 years of age and married with PW1 for 15 years. They have a daughter and a son, aged 14 and 11 respectively.  The son has been living and receiving education in Hong Kong since 2 years ago.  The daughter lives in Fujian.  The couple would take turns to travel between their origin Fujian and Hong Kong to take care of either child in Hong Kong or Fujian. 

11.D had been a trader of mobile phones for 20 years until their son began to stay in Hong Kong.  PW1 has been a housewife all along.  The family lives on savings and rental income from properties. 

12.D’s mother is a paraplegic and wheelchair-bound due to a stroke 3 years ago.  D’s father has chronic heart disease and hypertension.  D takes care of them when in Fujian.  

13.Before sentencing D, I called for a community service report.  The report states that PW1 was determined to proceed with her divorce petition.  She had had enough of his violence over the years.  The son was afraid of even eye contact with D.  D denied to have used violence of such frequency or intensity as alleged by her. His condition of stay in Hong Kong being a temporary one each time, it would be impractical for him to perform community service.    

Sentencing considerations

14.There are no sentencing guidelines for either Assault Occasioning Actual Bodily Harm or Arson.

15.Counsel refers me to 2 cases.  The first is HKSAR v Law Chun Man [2012] 4 HKLRD 320.  There McWalters JA outlined the relevant considerations in sentencing the arson case before him as follows:

34. Many of the arson cases … occurred in domestic or other situations where the arsonist was in a highly emotionally charged state of mind. In such cases the arsonist’s conduct is prompted by emotional distress and even though the actions of the arsonist may have placed lives in danger, these types of arson very serious though they are, are different from the situation of the present case. No emotion was present here, except perhaps the cold emotion of revenge. … The arson was being used in a premeditated, very carefully calculated way in order to wage a campaign of terror and intimidation on its victim.

35. Quite apart from the motivation of the offender it is also necessary to look to the actual damage done to property and the actual injury caused to any person. Some arsons, even revenge arsons, can be quite clumsy and have little effect and are more intended to alarm without creating a catastrophic situation.

36. Next it is necessary to consider the potential damage to property and harm to person that could have resulted from the conduct of the arsonist. Irrespective of the intent of the arsonist, how bad might the outcome have been? Under this heading regard must also be had to the risks that might have been posed to the lives of those who respond to emergencies; namely the police and Fire Services officers.

37. Finally it is necessary to consider whether the arson was an isolated incident or, as here, was part of a wider campaign.

16.The second case is HKSAR v Tang Chun Kin DCCC 379/2015.  On a day where evening classes were supposedly in session, the defendant was seen holding a lighter to burn a piece of tissue placed on the iron fence of the staircase on the second floor of an academic building in the City University of Hong Kong. A part of the iron fence the size of 1cm x 2cm was burnt black.  He was arrested after a short chase.  The actual damage to property was minimal.  No person’s life was endangered.  He had been sentenced to 4 years in 2012 and released from prison in 2014, which is 7 months before the offence. Psychiatric reports revealed that he might be suffering from borderline personality disorder, but did not have any active psychiatric disorder.  He did not require medication or in-patient treatment.  The judge regarded him a threat to the general public as he was apparently still struggling with an impulsive compulsion to set fire.  The starting point was 15 months’ imprisonment. 

Sentencing D

17.In the heat of their argument, D pushed PW1 onto their son’s bed and then kicked and punched her for about 10 odd minutes, resulting in tenderness and redness to her face, chest, neck, left forearm and thigh.  Her injuries were not serious but it was meted out over 10 odd minutes.  I take 12 months as the starting point for Charge 1.  After the one-third discount for the plea of guilty, the sentence is 8 months. 

18.We have before us a more serious type of arson than Tang Chun Kin above.  I accept that he was emotionally charged as he assaulted PW1 and set fire to the bed.  He cursed to burn her to death.  While the mattress was on fire, he left the flat with the son and abandoned her there to her own device, notwithstanding that she had just been assaulted and injured by him before he set fire.  Fortunately, she managed to put out the fire after 2 minutes.  The burnt mark on the mattress had the size of about 10 cm x 3 cm.  I take 18 months as the starting point for Charge 2.  After the one-third discount for the plea of guilty, the sentence is 12 months. 

19.I consider totality and order the sentences to be concurrent.