HKSAR v. Li Jinsheng

DCCC 564/2024

[2024] HKDC 2072

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 564 OF 2024

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to a charge of arson, contrary to sections 60(1)  and (3)  and 63(1)  of the Crimes Ordinance, Cap 200.

2.The particulars of offence:-

On or about 22 January 2024 in Kwong Wah Hospital, without lawful excuse, destroyed or damaged by fire one magnetic waist belt, property belonging to Hospital Authority, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged.

Summary of facts

3.The Defendant was found unconscious in the street and was admitted to hospital on 21 January 2024.

4.On the next day, at about 6 am, a nurse spotted the Defendant left the isolation ward, the nurse brought him back to his bed and used magnetic waist belt to keep him in his bed.

5.At about 9:44 am in the same morning, another nurse saw the Defendant at the nurse station and she smelt something was burnt.

6.That nurse saw one part of the magnetic waist belt (with sparks of fire)  was still on the Defendant was burnt and another part, which was also burnt, was left on the bed.

7.The Defendant handed over a lighter to the security while the police found another lighter from the Defendant.

8.The Defendant was arrested for an offence of arson. He admitted that he was in possession of 2 lighters and said under caution that: “They had tied me up so I could not leave.  So I used a lighter to burn the belt.”

Mitigation / background of the Defendant

9.The Defendant has a clear record.

10.The Defendant is now 41 years old. Married with two children, aged 4 to 5. He moved from Mainland to Hong Kong in 2018. Since 2023, he worked as a construction site worker, earned about $20,000 per month.

11.Due to heavy gambling habit of his wife, the family could not afford to send the children to school.

12.During his current remand, his wife filed for divorce and sent one of their children to live with the grandmother in China.

13.Today, he tells me in his letter that he is remorseful.

Psychiatric Report and Psychological Report

14.Both reports tell me that the Defendant has marital problems with his wife prior to the present incident. The Defendant moved out and slept in the park. He told the doctors that he did not have anything to eat for 2 days; therefore, he passed out in the street.

15.As to the incident in the hospital, the Defendant felt agitated as the nurse ignored him and did not explain to him why he had to be tied up. He had no intention to harm anyone in the hospital.

Sentence

16.The maximum sentence for the offence of arson is life imprisonment.

17.The Defence quoted a number of District Court cases and the sentences varied from 15 months to 2 years 6 months imprisonment.

18.As said in the judgment of HKSAR v Kung Pak Fu [2008] 2 HKCLRT 240 that “arson is an extremely serious offence. … The court must impose a sentence which properly reflects the gravity of the particular case.”

19.There are a number of sentencing factors to be considered as stated in R v Makay [2018] 1 Cr App R (S)  36:-

(a)  Whether the arson was committed recklessly or intentionally;

(b)  The amount of time that the risk continued for;

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

(d)  Whether there were other aspects of personal mitigation to be taken into account;

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

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

(g)  The conduct of a defendant upon realizing that a fire had started; and

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

20.In the present case:-

(a)  The Defendant is a man of clear record.

(b)  The Defendant intentionally and purposely set fire to his waist belt in order to set himself free. He did not have any mental health issue at the material time.

(c)  There were two bedridden patients in the same ward. The potential risk was that there would not be sufficient manpower to navigate all the patients out of the wards in the event that there was a fire. Fortunately, no one was injured.

(d)  There were cotton beddings, linens and a full-length curtain from ceiling to floor next to the Defendant’s bed, and clearly, they were inflammable materials.

(e)  Inside the ward, there was just tap water from the basin. I consider that is not sufficient to control the situation in the event there was a fire.

(f)  The damaged property was a magnetic waist belt belonged to the Hospital Authority, it costs $1,300 and the belt could not be re-used again. The Defendant is not in a position to offer any compensation to the Hospital Authority.

21.To this end, having taken all the matters into consideration, I take 18 months as the starting point, after ¹/₃ discount, it reduces to 12 months.

22.I order the Defendant to serve a sentence for a period of 12 months’ imprisonment.