HKSAR v. Lo Po Tak

CACC000608/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 608
(Criminal)

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Coram: Hon. Mayo, Leong and Rogers, JJ.A. in Court

Date of hearing: 21 April 1998

Date of delivery of judgment: 21 April 1998

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicant was convicted in the District Court by his own plea of guilty to two charges of arson under s. 60(1) and (3) of the Crimes Ordinance. Both charges alleged that he damaged by fire property belonging to the Housing Department intending to damage such property or being reckless as to whether such property would be damaged. He was sentenced to 5 1/2 years' imprisonment on each charge with 1 1/2 years of the sentence on the second charge consecutive to the sentence on the first charge.

2. On 29th May 1997 in the middle of the night at about 1:00 a.m. the applicant set fire to the lift lobby on the 8/F of Pak Suet House, a residential building in Choi Hung Estate. The fire damaged a lift button panel. Later that morning at about 4:25 a.m. he again set fire to some garbage outside a refuse room on the 5/F of Luk Ching House, another residential building in the same housing estate. The C.C.T.V. in the estate recorded his presence at both locations when the fires broke out. He was arrested and he admitted the two offences. The applicant was 33 years at the time of the offences and psychiatric reports show that he does not have any metal illness, but his intelligence, while still within normal limits, is on the low side. He has a number of previous convictions, of which eight are arson and he was sentenced for that to 7 years' imprisonment.

3. The deputy district judge adopted a starting point of 8 years for each charge and he gave the applicant one-third reduction for his plea. With 1 1/2 years on the second charge consecutive, the result is a total of 7 years' imprisonment.

4. The applicant now applies for leave to appeal against sentence.

5. The 1st ground of appeal is that the deputy judge drew no distinction between an offence under s. 60(1) which alleges "intending to damage property" and an offence under s. 60(2) which alleges "intending to endanger the life of another".

6. The 2nd ground of appeal is that deputy judge's starting point of 8 years is too high. These two grounds in short complain that the judge had sentenced the applicant on the basis of arson endangering the life of another, which is more serious even though the applicant was only charged with arson damaging property. 8 years' imprisonment as a starting point is therefore too high.

7. The 3rd ground is that the reduction for the applicant's plea should be made from the deputy judge's maximum jurisdiction of 7 years and not from the starting point he adopted, even if 8 years is considered appropriate as a starting point.

8. The 4th ground is the sentences for the two charges should run concurrently.

9. On the grounds of appeal, Mr. Kynoch for the applicant submitted that the applicant was charged with the offence under s. 60(1) and not under section 60(2). The judge's approach in sentencing the applicant was as it were a case under section 60(2) alleging the applicant intended to endanger life or life was in fact endangered in setting fire to the premises. It is submitted that in the present case only minor damage was caused by the fire and no life was in fact endangered and therefore that the deputy judge's approach is wrong.

10. Mr. Saw, S.C. for the government submitted that the legislation drew no distinction as far as punishment is concerned in respect of the two different offences. Both offences are as serious the maximum punishment in both cases being life imprisonment. He also submits that the judge was correct to take into account the applicant's previous convictions on arson and impose a sentence with emphasis on prevention.

11. In his reasons for sentence, the deputy judge reviewed a number of authorities on sentencing arson offenders, R. v. SHUM Hon-kai & another Crim App 51 [1988] ; R. v. LI Mun-tong Crim App 309 [1994]. In these cases, the offenders set fire in revenge attacks and a sentence of 6 to 8 years is considered appropriate. It should be noted that these are cases where the charge is under s.60(2).

12. In deciding 8 years as the starting point the judge said this:

"That the damage caused in these two offences was minor is fortuitous. It is hard to contemplate the potential catastrophe which could have occurred by setting of two fires late at night, in residential buildings in a densely populated community. In the present circumstances, the interests of the community at large far outweigh those of the defendants. I perceive it as part of a court's duty to protect the public from possible further similar attacks by the defendant who had exhibited reckless disregard for life and property."

13. Regarding the applicant's previous record of arson he said:

"Whilst it is correct that the existence of a criminal record is no justification for increasing any sentence, it must be equally correct that a persistent offender who repeatedly commits the same offence should properly receive a greater sentence."

14. Thus, the judge took the view that there was inherent danger to life and property in the applicant setting the fires to residential buildings in a densely populated area in the middle of the night and the applicant was a persistent offender in arson from whom the public should be protected.

15. The matter for consideration is whether in the circumstances of the present case a starting point of 8 years for each arson and the overall sentence of 7 years for two after plea is manifestly excessive.

16. The two sections dealing with arson are concerned with different circumstances. Section 60(2) is for more serious cases. The applicant was charged on the basis that he intended to endanger property only and not to endanger life. The evidence supported the charge against him on this basis. Even though the judge was entitled to take a serious view of the arson, as indeed all arson have been taken seriously by the court, nevertheless the deputy judge should sentence the applicant according to the offence he was charged with and the circumstances of the case. We agree that the judge's approach is wrong. There is no justification to adopt a starting point of 8 years' imprisonment. We consider that a starting point of 6 years would be appropriate in the circumstances.

17. On the ground that reduction for pleas of guilty should be made from the maximum of the deputy district judge's jurisdictional limit and not from the starting point adopted by him which was in excess of the limit of 7 years, the authorities are whilst the judge may decide if he thinks fit, a starting point beyond the jurisdictional limit, he is bound to give a reduction for pleas of guilty and such reduction should be made from the maximum of 7 years (R v HOK Sik-yin; A.G. v SHEK Wai-yip).

18. The judge was therefore wrong to make the one-third reduction from the starting point of 8 years' imprisonment which was in excess of his jurisdictional limit. Be that as it may, as we have said the circumstances of the case do not justify a starting point of eight years and a starting point of 6 years should be appropriate, this matter has now become academic for the purpose of this application.

19. These offences form part of the series of conduct of the applicant on that night, although the two fires were separated in terms of time by a few hours. They are of the same nature and of the same group and concurrent sentences should be imposed. Since the starting point should be one of six years and giving the applicant one-third reduction for his plea of guilty, the proper sentence for each charge of arson should be one of four years. We order that the sentence of four years in respect of each of the arsons should run concurrently. We grant the application for leave to appeal against sentence and treat the application as appeal against sentence and allow the appeal accordingly.

Representation:

Mr. D.G. Saw, S.C., S.A.D.P.P. & Miss Evelyn Tsang, G.C. (D.P.P.) for Respondent

Mr. James Kynoch, assigned by D.L.A. for Applicant