HKSAR v. Feng Jinming

DCCC 984/2022

[2023] HKDC 848

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 984 OF 2022

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REASONS FOR SENTENCE

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1.The D pleaded guilty to 3 charges:-

(a)  charge 1: wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212;

(b)  charge 2: criminal damage, contrary to sections 60(1)  and 63(2)  of the Crimes Ordinance;

(c)  charge 3: arson being reckless as to whether life would be endangered; contrary to sections 60(2)  and (3)  and 63(1)  of the Crimes Ordinance.

Summary of facts

2.All the 3 offences took place on 2 January 2022 at around 1:30 p.m. inside the Guesthouse in Mongkok.  PW1 was the cleaner of the Guesthouse.

3.At the material time, the D approached PW1, handed a black notebook to PW1 and talked non-sense.  PW1 asked D to leave, the D took out a bottle of alcohol hand sanitizer and a lighter.  The D sprayed alcohol at PW1 and tried to lit fire with the lighter in his hand but the lighter did not ignite any fire. After this, D punched PW1’s forehead twice.

4.PW1 left Room 8, the D followed PW1 to Room 7 and kicked at PW1's chest, causing PW1 to fall.

5.The D then took a plastic rubbish bin and hit PW1's head for several times. The assault lasted for around 30 seconds.   The plastic bin was damaged due to the D's assault. PW1 shouted for help. The assault was witnessed by PW2 who was a tenant of Room 6.  PW2 asked the D to stop.

6.The police arrived and found the D inside Room 8. The bedsheet in Room 8 was on fire but the fire was very weak.

7.PW3 saw the D holding a lighter and a bottle of alcohol sanitizer.

8.The D was arrested by PW3.  PW3 put out the fire by patting the fire with his hands.

9.PW1 sustained scalp and forehead lacerations, PW1 also complained of chest wall contusion and left flank contusion.

Criminal Record

10.The D has one criminal conviction in November 2021 for an offence of AOABH and was sentence to 10 days suspended for one year.

11.In other words, the D committed the present offence during the suspended period of sentence.

Mitigation

12.The D is now 38 years old. He was born and used to live in China. His first wife divorced him and his two teenage children are now living with his parents. He remarried in Hong Kong in 2019.

13.Before he came to Hong Kong, he worked at a shrimp culture farm in China with an income of about $3,000 to support his whole family including his parents and his 80 years old grandmother.

14.He committed the present offence due to the consumption of alcohol. He is now remorseful and he knows that he needs to give up alcohol.

Reports

15.This Court calls for one psychiatrist report and one psychologist report before sentencing.

16.Both reports said that the D had a very serious traffic accident when he was in Form 1 secondary school. He was in coma for 6 months. Since then his cognitive function is seriously damaged with poor memory.

17.He was also a chronic drinker and substance abuser. He frequently exhibited destructive and violent psychotic symptoms, including auditory hallucination.

18.During this period of remand, he also exhibited violence.

19.The views taken by the Psychologists was that:-

“…his violent behaviors could be quite unpredictable and could encompass various target including acquaintances and strangers. He could also act violently when sober as evidenced during his remand period.”

“… his risk of violent recidivism is considered to be high and was unpredictable in terms of potential victims and timing.”

Sentence

20.The maximum sentence for each charge :-

i. charge 1 is 3 years’ imprisonment.

ii. charge 2 is 10 years’ imprisonment

iii. charge 3 is life imprisonment

21.There is no sentencing guideline for the above offences.

22.In respect of the first mitigating submission, the defence just repeated very much the content of the mitigating letters from the D and his father without citing any authority.

23.In the supplementary mitigating submission, the defence quoted 15 cases in relation to charge 1 and 3.

24.Most of the cases cited by the defence for charge one were related to section 17 offence which carried a maximum sentence of life imprisonment.

25.Nonetheless, the sentencing factors as stated in HKSAR v Chan Chun Tat [2013] 6 HKC 225 still apply in the present case:-

(1)  the extent to which the assault was premeditated;

(2)  the motivation underlying the assault;

(3)  the mental or emotional state of the assailant;

(4)  whether the assailant was acting under the influence of alcohol or drugs;

(5)  whether the assault was committed by the assailant alone or as part of a group;

(6)  the type of weapons employed;

(7)  the level of force used;

(8)  the injuries caused to the victim;

(9)  the effect of the assault upon the victim (and those close to him or her).

26.As such, the defence said that the facts of the wounding charge is at the lower end of the scale: -

(1)  there was no premeditation on the part of the Defendant;

(2)  there was no motive on him, as there was no previous dealing between the Defendant and the victim;

(3)  the Defendant had lost control of himself under the influence of alcohol;

(4)  there was no evidence that the Defendant deliberately armed himself. Rather, he picked up the plastic rubbish bin in question at random to attack the victim. This “weapon” is not as lethal as knives or choppers;

(5)  it is accepted that the victim had sustained serious head injuries, but not the most serious ones. There is no evidence that the victim has suffered any permanent injury;

(6)  the Defendant acted alone;

(7)  there was no element of retaliation or revenge and the case did not concern triads or intimidation.

27.The D is aware of the fact that when he consumed alcohol, he became violent. He knew that it was a problem. Although he did not carry any weapon with him, anything that came to hand could be used to attack others.

28.While on the other hand, PW1 did not know the D and surely did not expect the D would attack him. He had nothing with him to defend himself.

29.What was frightening was that the D sprayed the alcohol sanitizer on PW1 followed by igniting the lighter. Fortunately, it did not work.

30.He attacked PW1 by punching on his forehead 2 times, PW1 left Room 8, the D did not let go of him , he followed him into Room 7 , kicked him on his chest causing PW1 to fall down.

31.PW1 was 70 years old. He was on the floor and the D picked up a plastic rubbish bin to assault on PW1’s head.

32.The assault lasted for 30 seconds, the D must have applied great force to attack PW1 resulting the plastic bin being broken.

33.All the while, the D who was 36 then was in upper hand when PW1 was on the floor.  PW1 was totally helpless. He was alone inside Room 7 without anyone to stop the D.  All he could do was to shout for help.

34.The tenant in Room 6 asked the D to stop.

35.I accepted that the D acted alone at that time. However, he knew when he was under the influence of alcohol, he was totally out of order and became uncontrollable.

36.It is fortunate that PW1 did not sustain any serious permanent injuries. From the photos, I can see there were plasters above his right eye and left side of his temple. He also had a wound on top of his forehead.

37.He had 3 lacerations on his head, they were 0.5 cm, 1 cm and 1.5 cm respectively. He received stitches on these wounds. He was given 2 days’ sick leave.

38.Although physical pain and wound can be recovered overtime, the psychological impact of being attacked by a drunken person like the D is difficult to measure. It must be a scary and horrific experience for PW1.

39.There is also an aggravating factor that the D committed a more serious offence 2 months after a suspended sentence was imposed on him for an AOABH offence.

40.Taking all the above matters into consideration, I take 2 years as the starting point for the wounding charge, reduce the sentence to 16 months after 1/3 discount.

41.I also activate the 10 days’ imprisonment in ST/3037/21. This sentence has to be served consecutively to charge 1.

42.The total sentence in charge 1 is 16 months and 10 days.

43.As to charge 2, the D used the plastic bin to commit a serious offence, that was to attack PW1.

44.The bin was similar to the household type, the bottom of the bin was broken and was shattered into 3 pieces. The value of it appeared to be minimal.

45.I considered that a starting point of 9 months is appropriate. Given 1/3 discount, I reduce to 6 months.

46.I also order charge 1 and 2 to run concurrently. That arrives at 16 months and 10 days.

47.I now turn to charge 3.

48.The defence cited a few cases. One of them is HKSAR v Kung Pak Fu [2008] 2 HKCLRT 240.  In the judgement of this case, the Court said that: -

“23. We have reviewed a number of relevant decided cases. 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 of relationships. The court must impose a sentence which properly reflects the gravity of the particular case.”

49.While in the judgement of R v MaKay [2018] 1 Cr App R (S)  36 - sentencing factors would include: -

(i)  whether the arson was committed recklessly or intentionally;

(ii)  the amount of time that the risk continued for;

(iii)  whether there were medical or mental health issues which played a part in the setting of the fire;

(iv)  whether there were other aspects of personal mitigation to be taken into account;

(v)  the nature and level of the risk posed by the fire to life and property;

(vi)  the extent of any damage actually caused to property and/or to person’s health;

(vii)  the conduct of a defendant upon realizing that a fire had started; and

(viii)  whether the fire was connected to some other unlawful activity and whether that was pursued for personal gain or otherwise .

50.Both reports said that the incident was due to the D’s  “alcohol intoxication” ( para 6 of the psychiatric report ).

51.He is a “chronic drinker and a substance abuser”, “he had frequently exhibited destructive and violent behaviours under the influence of alcohol.” His risk of reoffending is considered to be high. ( para 18 of the psychologist report ).

52.In the present case, the defendant brought along the alcohol hand sanitizer and the lighter with him for the purpose of setting fire. It was not a reckless act. It was not just an intentional act, but also premeditated.

53.The police received report about 2 incidents prior to the present incident when the D entered the Guesthouse at 1:30pm. Therefore, the police were able to arrive at the scene very much soon after the D set fire in Room 8. As such, the fire did not last long.

54.The damage were 3 folded bedsheets. There is no evidence to suggest the value of the bedsheets, I believe they were of limited value.

55.I can see from the pictures that the size of the room was small. The bedsheets were placed just next to the door. Outside the room door, it was a corridor. Across the narrow corridor, there was another room. There are altogether 9 rooms in this Guesthouse. The layout of the Guesthouse is obviously very congested.  

56.The Guesthouse is situated in Mongkok area. Clearly, it is a densely populated area. It is a five floors walk – up old style residential building with only one staircase for access.

57.The Guesthouse was located on the 1/F.

58.At the time of the incident, there were 2 guests staying in the Guesthouse and PW1 on the floor.

59.When there is a big fire break out, the consequence would be disastrous. It definitely imposed a great risk to the life and properties of the guests and the residents above the Guesthouse.

60.As said in the judgement of Kung Pak Fu that

“15. Hong Kong is such a densely populated city that unexpected occurrences of fire are bound to cause extremely serious injuries and deaths/or losses of properties. A deliberate act of arson, especially when done in a multi-storey residential building, will very likely cause extremely grave consequences. And indeed, it is clear from the line of relevant judicially decided cases that such conduct will result in heavy casualties as well as substantial economic losses.”

61.In sentencing, I accepted that the D acted alone without any connection to triads or involving any revenge. The fire took place in daytime. It was a weak one. There was no sign of spreading. It did not require the firemen to come to put out the fire.  Nevertheless, it is still regarded as a serious offence.

62.I considered that a sentence of 3 years 6 months is appropriate to reflect the gravity of the offence and the culpability of the D. I reduce the sentence to 2 years 4 months after 1/3 discount.

Totality

63.As discussed with counsel during mitigation, charge 3 is a separate and distinct offence, I would not consider a concurrent sentence.

64.I consider that a total of 3 years 2 months is justified to reflect the gravity of all the offences and the culpability of the D.

65.To achieve this, I order 10 months from charge 1 and 2 to run consecutively to charge 3.

66.The 10 days’ sentence from ST/3037/21 remains to run consecutively to charge 1.

67.The D is order to serve a sentence of 3 years 2 months and 10 days.