HKSAR v. Choi Sung Wai, Soon

DCCC 294/2021

[2021] HKDC 847

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 294 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two charges, the 1^st charge is attempted arson and the 2^nd charge is dropping an object from a building. 

Summary of facts

2.At 12:30 am on 15 November 2020, Mr Au (PW1)  was on his way home.  PW1 arrived at the floor he resided in, namely the 35^th Floor of Tsz Kwai House, Kwai Chung Estate, Kwai Chung, in New Territories.  In the corridor, he saw the defendant standing outside Room 3531 while holding a red can in his left hand and a cigarette in his right hand.  PW1 walked closer and observed the defendant from about 5-6 meter away.  PW1 saw that the defendant was holding a red thinner can with his left hand and a lit cigarette with his right hand. However, the defendant was not smoking the cigarette at the time.

3.The defendant then placed the lit cigarette near the metal gate of Room 3531 and held the red thinner can as if he was about to pour thinner from the can to the metal gate.  PW1 immediately shouted at the defendant to stop him from doing so.  The defendant looked back at PW1.  Then, the defendant immediately hid the thinner can behind his back.  After that, the defendant looked down and quickly walked towards PW1.  PW1 feared that the defendant might harm him, so he let the defendant pass.  When the defendant walked by PW1, PW1 detected a strong scent of thinner and saw that the defendant’s cigarette was still lit.

4.Then, the defendant walked towards the 35^th Floor’s main lift lobby.  Around 5 seconds later, PW1 also went into the main lift lobby but could not find the defendant.  PW1 heard a loud noise of metal can falling onto the ground.  Around 1 minute later, PW1 saw the defendant coming out empty-handed from a fire door on the 35^th Floor. When the defendant spotted PW1, he quickly walked to the side wing lift lobby.  PW1 followed the defendant to that lift lobby and saw Mr To, another resident on the same floor.  Upon PW1’s request, Mr To accompanied PW1 to follow the defendant.

5.PW1, Mr To and the defendant took the lift to the Ground Floor together.  At the Ground Floor, PW1 stopped the defendant from leaving the building and asked the security guard to call the police.  After hearing this, the defendant immediately took the lift from the Ground Floor to the 34^th Floor.

6.Upon police arrival, PW1 accompanied the police officers to the 34^th Floor and saw the defendant at the 34^th Floor’s lift lobby, PW1 noticed that the defendant had changed from wearing T-shirt and shorts to long-sleeves jacket and trousers.  The defendant was arrested.

7.Under caution at scene, the defendant stated that his upstairs neighbour was always noisy, so he went up to see which family was that and took out the trash at the same time, he threw a thinner can out of a window onto the street out of convenience, everyone did that.

8.A lighter was found inside the defendant’s trousers pocket.  The defendant was also carrying a pack of cigarette, the packing of which had already been opened.

9.At 3:30 am on the same day, the police recovered a red metal can from the 1^st Floor podium of Tsz Kwai House.  It was a Camel 1-litre thinner can.  The thinner can was empty and bore various dents.  The cap of the can was missing.

10.CCTV of Tsz Kwai House captured that at 00:35 am on 15 November 2020, the defendant, PW1 and Mr To entered the lift on the 35^th Floor and went down to the Ground Floor.  The defendant attempted to leave the building but was stopped by PW1.  The defendant then took the lift upstairs and got out on the 34^th Floor.

11.House search was conducted at the defendant’s home at Room 3431 of Tsz Kwai House and an unopened Camel 1-litre thinner can was found in the kitchen. The clothes and pair of slippers the defendant was wearing at the time of the offence were seized from the living room.

12.Room 3431 was directly below Room 3531. The security guard of Tsz Kwai House confirmed that the tenant residing at Room 3531 had gone overseas since March 2020 and had not returned to Hong Kong yet.

13.A video-recorded interview was conducted with the defendant on 15 November 2020, during which he stated, inter alia, the following under caution:-

(a)  He had been attending the Psychiatry Division in Castle Peak Hospital for 10 odd years, he had been diagnosed with hallucinated hearing and insomnia;

(b)  He lived alone at Room 3431 of Tsz Kwai House;

(c)  At around 12:15 am that day, he woke up from sleep at home because of some banging noises upstairs. He went to the 35^th Floor to check, he also took the rubbish, namely a used thinner can, with him. He stayed on the 35^th Floor for 1-2 minutes;

(d)  He was spotted by a man, so he left the corridor and went to the central lift lobby to throw the thinner can out of a window onto the street out of convenience;

(e)  The man called another resident on the 35^th Floor to follow him to the Ground Floor. He went downstairs to make a noise report to the security guard. He then returned home to put on a jacket and trousers because he felt cold;

(f)  The empty thinner can recovered from the 1^st Floor podium was the one he threw out. The unopened thinner can seized from his home belonged to him and he would use thinner for cleaning windows; and

(g)  The pack of cigarette and lighter seized from him belonged to him. The cigarette was for his self-consumption and he used the lighter for lighting the cigarette.

14.At the material times:-

(a)  the defendant, without lawful excuse, attempted to destroy or damage by fire the metal gate of Room 3531, property belonging to another, intending to destroy or damage such property (Charge 1); and

(b)  the defendant dropped one metal can from Tsz Kwai House, to the danger or injury of my person in or near a public place (Charge 2).

Previous convictions

15.The defendant has 21 previous convictions. None are similar to the present charges but he had assault related convictions from 2004 to 2016. His last conviction was about 5 years ago when he was put on suspended sentence for assault occasioning actual bodily harm.

Mitigation

16.The defendant is 51 years old, single but has a son now aged 27, living apart.  The defenadnt was born in the mainland and became a permanent resident in Hong Kong thereafter, educated here up to Form 5 level.  He was unemployed before arrest for this offence.  He had history of drug abuse and mental issue.  

17.2 psychiatric reports have been obtained for his fitness to plead.  Intake psychiatrists opined that he is fit to plead.  His active psychotic symptoms posed a significant risk of harming others, hence 6 months’ hospital orders were recommended.  

18.Ms Ma cited HKSAR v Chiu Yiu To CACC 104/2000 in support of the above recommendation.

Sentence

19.The maximum sentence for arson under s.60(1)  or attempted arson (1^st charge)  is that of life imprisonment.  The maximum sentence for dropping an object (2^nd charge)  is level-3 fine and 6 months’ imprisonment.

20.In sentencing, I bear in mind the remark of the Court of Appeal in HKSAR v Kung Pak Fu [2008] 2 HKCLRT 240 that given Hong Kong is a densely populated city, unexpected occurrences of fire are bound to cause extremely serious injuries and deaths or losses of properties. Therefore, acts of arson, in particular those relating to triads or involving intimidation or revenge, must be sanctioned with heavy deterrent sentences.  Although there is no sentencing guideline for this type of offence as the facts of each arson case varied much but the main stream is one within the range of 4 to 6 years: R v Chow Shui Ming CACC 335/1996, HKSAR v Cheung Wing Siu CACC 76/1998 and Hong Kong Archbold 2021 24-24.

21.In the present case, the defendant attempted to set on fire on neighbour shortly after midnight, which posed more serious risk to neighbour when most of them might have slept. 

22.He was ready to set on fire, and had a cigarette lit with him.

23.As it has been pointed out many times before in different judgments dealing with arson, starting of fires in a multi-storey residential building presents a high potential of harm. This is where the seriousness of the act of arson of this kind lies, even if only minimal damage had actually been caused to property.

24.The defendant seemed to attempt to set the fires for revenge on noise made by neighbour.  The sentence that I impose on the defendant must include an element of deterrence.

25.According to the reports, the defendant does suffer any psychiatric and I agree with the psychiatrists’ recommendation.

Mitigating factor

26.The only mitigating factor is the defendant’s timely pleas of guilty. I agree with Ms Ma’s submissions that the defendant requires inpatient treatment instead of normal prison life.

Totality

27.Charges 1 and 2 took place within a very short period of time on the same day. I will order the sentences to run concurrently.

28.As a result, hospital orders of 6 months are imposed for 2 charges, under section 45 of the Mental Health Ordinance, Cap. 136 in the Siu Lam Psychiatric Centre.