HKSAR v. Leung Man Chun

DCCC 613/2016

[2022] HKDC 978

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 613 OF 2016

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REASONS FOR SENTENCE

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1.D3 pleaded guilty to one charge of conspiracy to commit arson, and one charge of failing to surrender to custody.

Facts

Charge 1

2.On 30 April 2016 around 6:10 pm, a Mercedes Benz private car SS4265 (Car 1)  was parked on 8A/F of Yaumatei Carpark Building (the carpark)  in Shanghai Street.  A Toyoto private car TL8481 (Car 2)  was parked beside Car 1 around 7:41 pm on the same day.

3.On 1 May 2016 around 2 am, security guards of the carpark found nothing abnormal.

4.Around 2:30 am on the same day, the security guard at the cashier received a telephone call and was told by the caller that a vehicle on 8/F was on fire.  Another guard went to 8/F and found that the rear part of Car 1 and front part of Car 2 were on fire.  A report was made to the police.

5.After the fire was put out by firemen, the rear part of Car 1 was found to be severely damaged, whereas the front part of Car 2 was slightly burned.  The cause of the fire was found to be unnatural.

6.The owner of Car 1 confirmed that her car was a total loss as a result of the fire damage.  She had bought it in November 2015 for HK$140,000.  The owner of Car 2 confirmed that the repair cost for his car was about HK$20,000.

7.CCTV at the carpark showed that: i)  between 11:07 pm and 11:30 pm on 30 April 2016, D1, D2 and D4 had used one of the carpark’s lifts; ii)  between 1:38 am and 1:57 am on 1 May 2016, D1 and D4 had used 2 different lifts to go up to the 8/F and then down to G/F of the carpark; and iii)  between 2:06 am and 2:17 am, D2 and D4 used a lift to go up to 8/F and then down to G/F of the carpark.

8.D1 was arrested on 14 May 2016, D2 and D3 were arrested on 15 May 2016, and D4 was arrested on 16 May 2016.

9.Under caution, D3 admitted instructing D1 and D2 to burn Car 1.

10.In a subsequent video-recorded interview conducted under caution, D3 said upon receiving instructions from his triad boss in late April to find someone to burn a car, he told D1 and D2 over the phone to burn Car 1 which he knew was parked at the carpark at that time.  Around 09:30 pm on 30 April 2016, D1, D2 and D4 were gathered at D3’s residence to discuss how to burn Car 1.  D3 instructed D1 and D2 to find the car at the carpark and then burn it.  They were to send him photos of the burning car as proof of their work.  Around 10 pm, D1, D2 and D4 went out to buy several bottles of alcohol and brought them back to D3’s residence.  Around 11 am, the three of them went to the carpark and found Car 1 on 8/F.  They returned to D3’s residence around 12 midnight to 1:00 am on 1 May 2016, and then left for the carpark with bottles of alcohol.  They returned to D3’s residence after setting fire to Car 1 with photos of this burning car.  About 4 to 5 days later, D3 received HK$3,000 from his triad boss who told D3 that as he had some dispute with another male, he asked D3 to burn Car 1.  D3 did not share the $3,000 with D1 and D2.

Charge 2

11.At the mention hearing on 30 August 2016, D3 was ordered by the judge to pay costs of HK$2,500 for having failed to seek legal representation since the last adjournment on 3 August 2016, such costs were to be paid within 7 days.  The court further adjourned the hearing to 27 September 2016 for mention and extended D3’s bail on the same terms.

12.On 27 September 2016, D3 had failed to turn up for the mention hearing and had remained at large until he was arrested again on 23 May 2022 around 5:16 am.

13.In various cautioned interviews, D3 admitted that he had forgotten to make payment to the court, and was absent from court on 27 September 2016 because he had no money to pay the costs.  However, he did not inform the court about his situation, nor did he inform the authorities when he subsequently lost his identity card.

Defendant’s background

14.D3 is 32 years old.  He was born and educated locally up to form 3 level.  He is not married but he has 2 sons aged 4 and 6 years respectively with his cohabitee.  Before his second arrest, he was working as a casual worker earning $13,000 to $15,000 a month, which was just enough to support his family of four.

15.He has 12 previous convictions, none of them similar to either of the offences he now admits.

Mitigation

16.With respect to the 1^st Charge, defence counsel points out that the conspiracy was designed to cause damage to property only, and in fact the carrying out of that conspiracy resulted in damage only to the private cars in question; no one was injured as a result of setting the cars ablaze.  Having been advised that he would go to prison for this offence, D3 still chose to do the honourable thing by admitting the offence.  This shows genuine remorse.

17.Defence counsel explains that D3 committed this offence simply for money.  He was unemployed at that time, and he was given $3,000 as reward.

18.As for the 2^nd Charge, defence counsel says the real reason for D3 failing to surrender to custody was the births of his two sons, the first one was born in November 2016, and the second one 2 years later.  He has become very emotionally attached to his 2 boys, which makes it hard for him to be separated from them.  However, he now realises that this is not an excuse for failing to surrender, and that he should not have ignored the importance of court attendance.

19.A mitigation letter from D3 has been submitted.

Sentencing considerations

20.The maximum sentence for arson is life imprisonment. Such a sentence underlines the seriousness of the deliberate starting of fires.

21.In R v Li Mun Tong CACC 309/1994, the Court of Appeal said, “Arson, because of the inherent danger in any uncontrolled fire, is always regarded as an offence of particular gravity.  Arsonists exhibit reckless disregard for life or property.” [1]

22.In HKSAR v Kung Pak Fu (龔伯富) CACC 429/2007, another division of the Court of Appeal said, “…As we pointed out above, 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 relationships.  The court must impose a sentence which properly reflects the gravity of the particular case.” [2]

23.The Court of Appeal in 香港特別行政區 訴 程錦沛 CACC 269/2002 pointed out that generally speaking, sentences for arson cases would be around 4 to 5 years imprisonment.  However, the appropriate sentence would have to be imposed according to the facts of the case.[3]

24.In HKSAR v Law Chun Man (羅振文) [2012] 4 HKLRD 320, the Court of Appeal discussed factors that are to be considered in sentencing an arsonist; these factors include the emotional state and motivation of the offender, actual and potential damage to property and harm to persons, the risks that might have been posed to the lives of those who respond to emergencies such as police and Fire Services officers, whether the act was an isolated act or a part of a wider campaign, the use of foreign paid-for-hire criminals, and the use of accelerants.

25.In 香港特別行政區 訴 謝俊傑 CACC 86/2020, instructed by others, the defendant and another person set fire to a vehicle parked inside a carpark, and the fire spread and damaged 25 vehicles parked nearby, resulting in economic losses totalling $2,300,000.  The starting point of 6 ½ years’ imprisonment adopted by the trial judge was reduced on appeal to 6 years’ imprisonment.

26.The Court of Appeal in 謝俊傑remarked that for particularly serious arson cases, the starting point could well be 10 years’ or above.  On the other hand, for some of the minor arson conduct, such as setting fire to miscellaneous items out of anger and the incident did not lead to personal injuries or death or to serious economic loss, starting points of 2 or 3 years might be sufficient.[4]

27.In 香港特別行政區 訴 冼震宇 DCCC 845/2019, the defendant pleaded guilty to 2 charges of arson under s.60(1). The defendant set fire to a motorcycle parked in the rear lane of a hospital.  3 days later, he set fire to another motorcycle and its cover at the same spot.  Accepting that this was not the most serious case of its type, that the defendant’s act was not pre-meditated, that it was not an act of revenge, that he reported the matter to the police when he realised that the fire was getting out of control, that the act was done out of fun or the need to vent his anger, and that the defendant had made full compensation to the victims, the judge considered an appropriate starting point to be 18 months’ imprisonment, which was adjusted upward to 21 months on account of the defendant committing the offences while on bail.

28.In the present case, the facts show that the fire was started by D3’s co-conspirators, namely the other 3 defendants.  Instructed by D3’s triad boss with an offer of $3,000 reward, D3 enlisted the help of the other defendants to set fire to Car 1.  All the defendants gathered in D3’s residence to discuss how to burn this car.  Bottles of alcohol were bought by the other defendants and brought back to D3’s residence before D2 took them with him on their way to the carpark.  The other defendants returned to D3’s residence with photos of the burning car after they had set fire to Car 1.  The fire spread to the neighbouring Car 2 and resulted in total damage to Car 1 and partial damage to Car 2.  The economic loss to the owners of these 2 cars amounted to around $160,000.

29.Defence counsel points out that the conspiracy was designed to damage property only and that D3 was charged under s.60(1)  and not under the more serious s.60(2).  However, the Court of Appeal in 謝俊傑pointed out that even though the charge brought against the defendant was one under s.60(1)  and not under s.60(2), and irrespective of whether the culprit was aiming at causing property damage or personal injury, the consequences of a fire hazard was difficult to foresee, and should the fire spread out of control, it could result in extremely serious consequences.

30.That D3 may have aimed to cause damage to just one car is not a strong mitigating factor. The court cannot ignore the facts that the fire did spread and cause damage to Car 2, and that the resulting economic loss to these car owners was rather substantial.

31.From D3’s confessions, it is obvious that he committed this offence for money.  Any grudges against the vehicle owner were held by his triad boss, not by him.  In all probabilities he did not even know the owner.  Although setting fire to vehicles parked in a multi-storey carpark may seem less dangerous than setting fire in a residential building, the risk of the fire getting out of control and causing widespread damage is a real possibility.  In our case, the fire did get out of control as it spread to Car 2 which was parked next to Car 1.

32.Moreover, by reason of the presence of fuel tanks in motor vehicles, a burning car might trigger an explosion which could damage other cars parked nearby, and even cause personal injury or death to those who are not in the immediate vicinity of the burning cars.  Needless to say, it poses a great risk to those responding to emergencies like police and fire officers.

33.Again, from D3’s confessions, alcohol must have been used as an accelerant in setting Car 1 on fire.  This is an aggravating feature.

34.I also consider it an aggravating feature that D3 saw it fit to engage teenagers to carry out the dirty work for him.  According to the Reasons for Sentence in respect of the other 3 defendants, which was delivered some 10 ½ months after the incident, at the time of their sentencing, D1 was 17, D2 was 16 whereas D4 was only 15.

35.Taking account of all the circumstances of our case, the defendant’s mitigation as set out in his counsel’s submissions and his mitigation letter, and what was said in the relevant authorities, I consider 3 years and 3 months’ imprisonment as an appropriate starting point for the 1^st Charge.

36.For the 2^nd Charge, as the defendant had absconded for close to 6 years before he was re-arrested, I would adopt a starting point of 6 months’ imprisonment.

Reduction for mitigating factors

37.The only mitigating factor of any effect is D3’s pleas of guilty to both offences at the first available opportunity after his re-arrest.  As the defendant absconded while proceedings were still at the mention stage, his absence did not give rise to much inconvenience and waste of court’s time or of public money.  He is to be awarded a full 1/3 discount for his guilty pleas.

38.The sentence for the 1^st Charge after discount is 2 years 2 months’ imprisonment, and that for the 2^nd Charge is 4 months’ imprisonment.

Totality

39.In HKSAR v Lo Kam Fai [2016] 2 HKLRD 308, Lunn VP said:-

“There is no dispute that in the sentencing of a defendant in the position of the appellant, having determined the correct sentence to be imposed on each of the two charges, the judge must have regard to the totality of the sentence…I am satisfied that the core element of the offence of failing to surrender to custody without reasonable excuse is a contemptuous breach of a promise to a court, which thereby brings the administration of justice into disrepute. It is that element that distinguishes it from the substantive offences with which the defendants are charged in any particular case. It is that consideration that has led the courts in this jurisdiction and in England and Wales to determine that if a custodial sentence is to be imposed, normally it is to be made consecutive to the sentence imposed for the substantive offence.”[5]

40.If the sentences were to run consecutively, it would result in a total sentence of 2 years and 6 months’ imprisonment.  In my view, this is a sentence which fairly reflects D3’s criminality in this case, and is not unjustly oppressive to him.

41.I would therefore order that the 4 months’ sentence for the 2^nd Charge is to run consecutively to the 2 years and 2 months’ sentence for the 1^st Charge.  D3 is sentenced to a total of 2 years and 6 months’ imprisonment in respect of both charges.