HKSAR v. Tsang Man Fung

DCCC 219/2021

[2021] HKDC 1389

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 219 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of arson, contrary to sections 60 (1)  and (3)  and 63 (1)  of the Crimes Ordinance (charge 1)  and two charges of arson intending to destroy or damage property or being reckless as to whether such property would be destroyed or damaged and being reckless as to whether lives of others would be thereby endangered, contrary to sections 60 (2)  and (3)  and 63 (1)  of the Crimes Ordinance[1].

2.Full particulars of the offences are set out in the summary of facts admitted by the defendant today.  

3.In summary the defendant resided on the 12th Floor of Block D, Shing Chung House, Mei Chung Court in Sha Tin (“Block D”)[2]. On 12 June 2020 the defendant set fire to the bicycle parking area on the ground floor and on 23 December 2020 set fire on the 6^th floor and the 12th floor. 

Charge 1

4.At around 3:30 a.m. on 12 June 2020 Mr Lai, a security guard, saw a fire in the bicycle parking area outside the ground floor of Block D.  Mr Lai immediately put out the fire with buckets of water and reported the case.

5.Ten bicycles and some miscellaneous items were burnt and the wall of the bicycle parking area was blackened.  Three photographs have been submitted to court showing the damage. 

6.CCTV cameras captured the defendant leaving Block D at around 3:19 a.m.; walking to the bicycle parking area; walking back to Block D at 3:26 a.m. after which flames were seen in the bicycle parking area at around 3:30 a.m.  I have viewed the CCTV footage however it is very difficult to see the fire and the extent of the fire. 

7.The defendant was arrested on 17 June 2020.  Under caution the defendant admitted, inter alia, that he burned the rubbish in the bicycle parking area because the rubbish was not cleared up despite he had complained many times to the security guards that the bicycle parking area was not for rubbish.

Charges 2 & 3

8.At around 1:45 a.m. on 23 December 2020 Mr Yiu, a security guard, was patrolling the front staircase of Block D when he saw a lot of smoke.  Mr Yiu rushed down the staircase and found some papers burning on the 6^th floor staircase.  Mr Yiu called for assistance and put out the fire.

9.The wall of the 6^th floor staircase was blackened.  One photograph has been submitted to court showing the damage. 

10.At around 2:00 a.m. the same day Mr Tse, a resident of Block D, took the lift to the 12th floor.  On exiting the lift Mr Tse saw a lot of smoke and found some paperboards on fire inside the Fire Hose Reel cabinet.  Mr Tse threw the paperboards on the ground and used his feet to put out the fire. Two photographs have been submitted to court showing the Fire Hose Reel cabinet and the damage. 

11.CCTV cameras captured the defendant taking the lift at 1:45 a.m. and 1:53 a.m. the same day. 

12.The defendant was arrested the same day.  Under caution the defendant said that he was very upset because his cat had just died; when he walked past the 6^th floor a bag was blocking his way so he used a lighter which was next to the bag to set the bag on fire and that when he walked past the 12th floor he saw some paperboards in the Fire Hose Reel cabinet he could not resist setting them on fire with the lighter.

Mitigation

13.In passing sentence, I take into account the defendant has a clear record. 

14.I have carefully considered everything said on behalf of the defendant by Miss Chong, including that the defendant, who is 39, single and lives with his family, has a history of psychiatric illness and has been diagnosed with depression, mild grade mental retardation and schizophrenia and assessed to have mild grade to borderline intellectual disability[3].

15.I have read the reports of Dr K.K. Leung, Clinical Psychologist & Neuropsychologist and Dr Choi Wing Kit, Specialist in Psychiatry, submitted by Miss Chong[4].

16.At the request of the defence I have also considered the two psychiatric reports prepared in January this year when the defendant first appeared in the Shatin Magistracy.  

Guidelines

17.Offences of arson are to be treated by the court as very serious.  The facts of cases varying so much there are no guidelines.  Each case depends on its own facts and circumstances.

18.In HKSAR v Kung Pak Fu the Court of Appeal, after reviewing a number of cases, said: “……arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for this offence because its gravity differs from case to case, particularly in cases involving family disputes or souring of relationships. The court must impose a sentence which properly reflects the gravity of the particular case.” [5]

19.In HKSAR v Law Chun Man the Court of Appeal set out factors to be considered in arson cases, including the motivation of the defendant, the actual damage done, the potential damage to life and property and whether the arson was an isolated incident[6].

20.Miss Chong refers the court to five sentence cases in the District Court and submits that a final sentence of not more than 13 months’ imprisonment is appropriate[7].  I have considered these cases, two of which are sentences that I imposed, suffice to say that each case is to be decided on its own facts and circumstances.

Sentence

Charge 1

21.Taking into account the damage caused to the bicycles and the bicycle parking area, I am satisfied a sentence of 12 months’ imprisonment is appropriate.

Charges 2 & 3

22.The lighting of a fire in a multi-storey residential building risks the lives of all other occupants of the building, in particular when the fire is started in the early hours of the morning when occupants are asleep[8].

23.Although the damage to the landing of the staircase and the Fire Hose Reel cabinet was minimal, there was a lot of smoke both on the 6^th floor and the 12th floor. The potential harm that can be caused by smoke cannot be underestimated. Fortunately, the court has not been told of anyone suffering ill-health as a result of smoke inhalation. 

24.Taking into account all the circumstances, including the fires were started in the early hours of the morning when the occupants of the building would be asleep; the location of the fires was the staircase and the Fire Hose Reel cabinet; the damage to the staircase landing and the Fire Hose Reel cabinet was minimal; there is no evidence any of the occupants required medical treatment as a result of smoke inhalation; no accelerant was used and the fire had nothing to do with triad, intimidation or revenge, I am satisfied the proper starting point after trial on both charges is 2 years imprisonment[9].  

Intellectual disability

25.Miss Chong submits a lower starting point is appropriate by reason of the defendant’s intellectual disability and long psychiatric history. 

26.Dr Choi is of the opinion that the explanations given or suggested by the defendant are consistent with the findings in medical literature that people with intellectual deficits who set fire can be motiveless and a means to communicate their distress, anger or revenge[10].

27.Having carefully considered the reports and opinions of the psychologists and the psychiatrists and taking into account this is the first time the defendant has appeared in court, I am satisfied that the defendant’s limited intelligence may well have played a part in the commission of the offence and reduce the starting points by 3 months to 9 months and 21 months respectively. 

28.Giving the defendant full credit for his plea of guilty reduces the sentence on charge 1 to 6 months’ imprisonment and on charges 2 and 3 to 14 months’ imprisonment.

Totality

29.I am satisfied concurrent sentences are appropriate for charges 2 and 3, the fires having been started within fifteen minutes of each other.  The fire subject of charge 1 is however separate and distinct for which a consecutive sentence is appropriate. 

30.I am satisfied a total sentence of 17 months’imprisonment properly reflects the defendant’s criminality on the three charges and takes into account the defendant’s personal circumstances including his disability and the seriousness of the offences[11].  

31.The defendant is convicted and sentenced as follows:

Charge 2 – 14 month’s imprisonment;

Charge 3 – 14 months’ imprisonment concurrent to charge 2; and

Charge 1 – 6 months’ imprisonment with 3 months consecutive and 3 months concurrent to charges 2 & 3.

32.The total sentence to be served by the defendant is 17 months’ imprisonment.