HKSAR v. Ng Ka Man

DCCC 428/2024

[2025] HKDC 881

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 428 OF 2024

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REASONS FOR SENTENCE

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Charge

1.The defendant was charged with an offence of “Arson being reckless as to whether life would be endangered”, contrary to ss 60(2)  and (3)  and 63(1)  of the Crimes Ordinance, Cap. 200.

2.She pleaded guilty to the charge and admitted the facts.

Facts

3.In brief, the incident took place at a building in Mong Kok (“the Building”).  The Building has two staircases. One of the staircases leads to the front door of the Building (“the Front Staircase”)  and the other staircase leads to the rear door of the Building (“the Rear Staircase”).

4.At around 5:55 p.m. on 24 November 2023, CHAN Shuk-fong (Chan)  left her home at the 5^th floor of the Building and walked down the Front Staircase.  When she reached the 1^st floor of the Building, she saw flames at the Rear Staircase.  So, she walked towards the Rear Staircase and saw the defendant stirring the fire with a stick.  The fire was large, and it was very smoky.

5.Chan confronted the defendant as to why she set the fire.  The defendant said she was merely burning her own property.  At this juncture, Chan’s neighbour (Madam X)  walked past and Chan told her to chase after the defendant who was running up the Rear Staircase. Shortly afterwards, Chan saw the defendant running down the Rear Staircase and she gave chase after the defendant but later she lost sight of her.

6.Chan returned to the 1^st floor and saw her neighbours trying to put out the fire but failed.  Chan then reported the matter to the police.

7.About 10 people were evacuated from the Building.  Three of them, Madam Y aged 26, Madam Z aged 52 and a little girl aged 3, who came from the same family resided on the 4^th floor, and Madam X aged 30 resided on the 7^th floor were admitted to Kwong Wah Hospital due to smoke inhalation.  Madam X, Y and Z were discharged the next day.  The little girl was discharged on 1 December 2023 (8^th day of admission).

8.At around 9:33 p.m. on 24 November 2023, the defendant was intercepted, arrested and cautioned.

9.At the material times, the defendant, at the staircase, 1^st floor of the Building, (“the said location”)  without lawful excuse destroyed or damaged by fire one wooden pole, some miscellaneous items, the floor, walls and ceiling of the said location, property belonging to herself or another, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged, and being reckless as to whether the lives of others would be thereby endangered.

Criminal Record

10.The defendant has 7 previous criminal records e.g. theft, burglary and possession of a dangerous drug (KCCC 3244/2023). 

11.Miss Siu, counsel for the prosecution, informed the court that the defendant committed the present offence whilst on police bail for the offence of possession of a dangerous drug (KCCC 3244/2023)  for which she was sentenced on 14 February 2024 to 2 months’ imprisonment.

Mitigation

12.The defendant is represented by Mr Kevin Wong.  He submitted that the defendant is now aged 35.  She gave birth to her son, now aged 3, and the father of the child left and has been out of contact.  The son has been in the care of Po Leung Kuk since her arrest.  The retired parents of the defendant help her look after her young son.

13.The defendant worked as a cosmetic sales person, earning approximately HK$8,500 per month and she supported the living of her parents.

14.On the day of the incident, the defendant had gone to see her boyfriend who lived on the 5^th floor in the Building.  However, she ended up having a fight with him.  As a result, she lost her temper and in a fit of anger, started the fire.

15.Mr Wong submitted that the current arson case fell into the lower end of the spectrum because:

(a)  there was no injury to person and loss of life;

(b)  no evidence of any accelerant being used in setting the fire;

(c)  it was not a revenge or triad related incident;

(d)  the fire was started at the rear stair case and there was still a passage of escape for residents using the front staircase;

(e)  the offence was not committed in the early hours which would have increased the danger to residents as they would have likely been asleep and slow to react;

(f)  the damage caused appeared to be mainly along the rear passage way of the Building;

(g)  the fire services categorized the fire in the lowest category of severity;

(h)  no one suffered any serious or fatal injuries; and

(i)  those who required medical attention were discharged the next day except the little girl.

16.Mr Wong referred to HKSAR v Kung Pak Fu CACC 429 of 2007 and said that there is no sentencing guidelines for the subject offence.  He relied on HKSAR v Godhniya Haja Samat CACC 264 of 2017 and came to the view that a starting point of 2 years is appropriate given the factual circumstances of this case.

Sentencing

17.I have carefully considered the mitigation and the authorities.  The CCTV footage depicting the defendant entering and exiting the Building was played in court and the photographs depicting the scene were produced.

18.In response to the court’s queries[1], the prosecution made a reply and the defence took no issue with the contents of the supplementary information provided to the court.  In the said reply[2], the prosecution provided additional information: (a)  the Building consists of 8 floors and there are 5 units on each floor; (b)  10 people were evacuated, one from 7/F, one from 6/F, 2 from 5/F, 4 from 4/F, and 2 from 1/F; (c)  the said photographs depicted the rear staircase of 1/F; (d)  the Building has no Incorporation of Owners and no maintenance record so the police was unable to obtain information relating to the cost of renovation or reinstatement.  The prosecution also provided the medical reports of the little girl, Madam Y & Z to the court.

19.There is no sentencing guideline for the offence of arson.  In HKSAR v Kung Pak Fu, Yeung JA (as he then was)  said: 

“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. ”

20.In the present case, the gravity of the subject arson is reflected in the facts.  The defendant was seen stirring the fire with a stick.  In other words, she deliberately set fire in the said location.  The fire was large and it was very smoky.  The facts and the photographs show that the floor, walls and the ceiling of the said location was all burnt and blackened.  The damage appeared to be serious.

21.In Kung Pak Fu, the Court of Appeal said:

“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.

16. In order to protect the lives and properties of the public from serious threats, acts of arson — in particular those relating to triads or involving intimidation or revenge — must be sanctioned with heavy, deterrent sentences.”

22.In SJ vs SWS [2021] 1 HKLRD 1117, the Court of Appeal said:

“52. The Court of Appeal has pointed out time and again that arson is an offence of particular severity. This is because Hong Kong is densely populated where the living and working environments are relatively crowded. An occurrence of fire often causes extremely gave consequences, possibly resulting in serious injuries or losses of properties. The offence of arson aims at heavily combating deliberate acts of arson, preventing the public from being harmed by such acts. Out of considerations of the public interest, the court must impose a heavy sentence for the offence of arson so as to protect the public, mete out penalties to and openly condemn the offenders, as well as to deter the offenders and others who intend to commit the crime from doing so; otherwise the lives and properties of the public will be under serious threat. Therefore, it has been the practice of the court to impose immediate imprisonment on offenders of arson… ”

23.The Court of Appeal in R v Li Mun Tong CACC 309/1994 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 and property.”

24.Time and time again, the court treats this offence seriously.  In the present case, the potential harm caused to all the residents of the Building which is an 8-storey residential building cannot be underestimated.  There were 10 people evacuated.  There were 4 residents sent to the hospital and one of them was a 3-year-old little girl who was admitted to Paediatric Intensive Care for 15 minutes and was hospitalized for 8 days.  She was put on high flow nasal cannula on admission.  Bronchoscopy was done and it showed copious secretions in upper airway, mild edema over larynx, mild patchy erythema in trachea and small amount of moderate thick whitish secretions in trachea.  She was intubated for 2 days.  She was given one week of antibiotics for pneumonitis.

25.Regarding Madam Y, she was discharged with symptomatic medications for upper respiratory tract infection; and Madam Z was discharged with analgesic and 2-day sick leave. 

26.The act of the defendant risked the lives of all the residents. Because the fire was large, those living even on the 4/F were affected and they required medical treatment.  If the fire spread, the people living nearby would also be affected.  It was sheer luck that no one suffered serious injuries.

27.The facts of the present case are therefore more serious than Godhaniya Haja Samat.  In that case, the sentencing judge said:

“…the damage to the landing of the staircase was minimal … no evidence any of the occupants required medical treatment as a result of smoke inhalation.”

Starting point

28.Having considered all the circumstances of the case including those mentioned in paragraph 15, I am satisfied that the proper starting point is 28 months’ imprisonment.

29.The defendant committed the present offence whilst on police bail.  Mr Wong said that the defendant was not on court bail which he considered to be more serious than police bail.  I do not consider that there should be a difference between court bail and police bail.  It is an aggravating factor to commit a second offence while being investigated for another offence.  Hence, I enhance the starting point by 2 months to 30 months’ imprisonment.

Sentence reduction

30.The defendant pleaded guilty at the earliest opportunity and is entitled to a one-third discount of sentence. 

31.There is no other valid mitigating factor for any further discount on sentence.

Conclusion

32.The defendant is sentenced to 20 months’ imprisonment.

[1]The court, in a letter dated 6 May 2025, copied to the defence, required the prosecution to supplement certain information.

[2] See prosecution’s letter of 8 May 2025.