R. v. Li Mun Tong

CACC000309/1994

IN THE COURT OF APPEAL

1994 No.309
(Criminal)

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H E A D N O T E

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Arson of a market stall - damage of $80,000 - starting point of 6 years discounted for plea to 4½ years - Appeal against sentence - Dismissed - Sentence proper given gravity of offence.

IN THE COURT OF APPEAL

1994 No.309
(Criminal)

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Coram: Hon. Power, Ag. C.J., Litton, V.-P. and
       Bokhary, J.A.

Date of hearing: 16 May 1995

Date of judgment: 16 May 1995

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced one charge of arson. The particulars were that he, together with a man TSANG Kin-fat ("Tsang") on 12th June 1993 at Stall 104 in the Yeung Uk Road Market at Tsuen Wan, without lawful excuse damaged by fire the contents of the stall valued at about $40,000 intending to damage the property or being reckless as to whether the property would be damaged. In the course of the trial he pleaded guilty to that charge and was sentenced to imprisonment for 4 1/2 years. He now seeks leave to appeal against that sentence out of time.

2. The facts were that he and Tsang set fire to Stall 104 meat stall, by way of a revenge attack because the brother of the victim, who was a lady, was alleged to owe money to Tsang. In the weeks preceding the attack threatening approaches by the applicant and Tsang had been made to the victim but she had told those who approached her that she was not responsible for her brother's debts and that he had no interest in the business.

3. The arson attack itself took place at about 2 a.m. Kerosene was used as an accelerant to start the fire. The police and the fire brigade were very quickly upon the scene and they prevented the fire spreading and prevented damage other than to the extent of, according to the facts as recited by the judge, $80,000 being done.

4. The judge rightly viewed this as a serious case. He said when sentencing:

"I was of the view that a revenge attack on valuable commercial premises in the middle of the night in a highly populated urban area merited a starting point of at least five years and more probably 6 years.

In the circumstances the only discount I could give was for previous good character. The Defendants only previous convictions were for gambling. But in view of their maturity and the planned nature of the threats and the attack I felt even that mitigation was limited.

I felt a proper sentence was one of 4½ years. Because of the extremely, late plea of D1 I did not differentiate between the two men."

The trial judge was right to emphasize that it was a revenge attack which took place in the dead of night in a highly populated area. 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. A starting point of six years in the circumstance of this matter was a proper one. A discount for plea reducing that to 4½ years cannot in our view be criticised. The application for leave to appeal against sentence out of time must, therefore, be refused.

Representation:

Mr. D.G. Saw, SACP and Ms. A. Chan (Crown Prosecutor) for the Respondent.

Mr. Joseph Yau assigned by D.L.A. for the Applicant.