HKSAR v. Kung Pak Fu

[English Translation – 英譯本]

CACC 429/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 429 OF 2007

(ON APPEAL FROM HCCC NO. 147 OF 2007)

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Before: Hon Tang VP, Yeung JA and Fung J in Court

Date of Judgment: 12 September 2008

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court): 

Background

1.The applicant Kung Pak Fu and his wife were the registered owners of Room 101 on the 9^th floor of Lee Tai Building, 101-107 Prince Edward Road West, Mongkok, Kowloon (hereinafter “the residence”). They lived at the residence together with their three children.

2.At about 11 p.m. on 12 December 2006, a fire broke out in the residence. Although the fire was extinguished very quickly, the applicant and his young daughter both suffered burns. The young daughter suffered secondary burns, covering 2% of her total body area and mainly to her right toes, and has now fully recovered. The applicant suffered secondary burns covering 30% of his total body area, but most of them were on parts of his body which could be covered. The applicant did not suffer facial injuries, nor was his movement affected.

3.As a result of the incident, the applicant was charged with arson being reckless as to whether the life of another would thereby be endangered. He pleaded not guilty and was tried before Deputy Judge Pang sitting with a jury. He was convicted after trial and was sentenced to 6½ years’ imprisonment.

4.The applicant has applied for leave to appeal against both conviction and sentence. In respect of his application against sentence, he is represented by Mr. Hung of Counsel. He acted in person in respect of his application against conviction, but at the commencement of the hearing of the application he indicated that he would abandon his application against conviction. The application was dismissed accordingly. We only have to concern ourselves with his application against sentence.

Prosecution evidence

5.The prosecution’s evidence mainly came from the applicant’s two children, who were at the scene at the material time.

6.The applicant’s daughter saw the applicant pour a bottle of essential oil onto the floor at the centre of the living room of the residence. In the meantime, the applicant had an argument with his children. His daughter said to him, “Jump down the building and kill yourself if you want to die”, and the son said, “It is you who have been cheated of all the monies in the first place”. The applicant became extremely agitated and angry and complained that no one cared about his feelings. Then he took out a piece of newspaper, held a corner of it with one hand and lighted another corner of it with a lighter, and threw the burning newspaper on the floor, setting the essential oil on the floor alight.

7.The applicant’s son immediately rushed into the toilet to fetch water to put out the fire, and the fire was put out in 10 minutes.

8.The applicant’s children asserted that they saw the applicant pouring essential oil over the floor, lighting newspaper and throwing the burning newspaper on the floor. The daughter further claimed that the whole process of the applicant pouring and lighting the essential oil lasted as long as 10 minutes. The applicant’s son said that the fire was small and he was able to put out the fire just by using two basins of water.

9.The applicant was subsequently arrested by the police. When asked by the police why a fire broke out in the residence, the applicant repeatedly admitted that “it was set by me” and “yes, yes, it was set by me”.

10.The relevant information revealed that at the material time the applicant participated in the essential oil marketing business but ended up losing over $100,000, as a result of which the family faced financial problems and the applicant’s relationship with his wife and children broke down. The daughter refused to talk to the applicant and communicated with the applicant only by means of slips.

Defence evidence

11.The applicant denied having deliberately committed the offence and alleged that the fire was caused by accident.

12.The applicant said that on the night of the offence he had consumed rice wine but had not been influenced by it. He admitted that the children had said something disrespectful to him but it had not upset him. Later, he intended to smoke cigarette in the living room and add essential oil to the burner, and so he walked out to the living room from the bedroom holding a lit cigarette and an essential oil burner. The daughter suddenly came out to the living room from the kitchen and bumped into the applicant. This caused the burner he was holding to overturn, leading to a fire. As the applicant has abandoned his application against conviction, it is not necessary for us to delve into the defence that he put forward at trial.

Grounds of appeal

13.Mr. Hung stresses that the present offence stemmed from a family dispute and did not involve any premeditation, triad element or act of retaliation. He further contends that the sentence of 6½ years’ imprisonment is manifestly excessive as the applicant committed the offence on the spur of the moment.

14.Mr. Hung also submits that the Judge had in sentencing failed to take into account relevant mitigating factors. According to Mr. Hung, those factors included:

(1)   The prosecution case was to a large extent agreed to by the applicant, and this significantly reduced the length of trial;

(2)   The applicant had a clear record; and

(3)   The applicant suffered secondary burns covering 30% of his total body area in the incident and was hospitalized for more than 3 months.

Discussion – application against sentence

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.

17.In The Queen v Shum Hon Kai & another [1988] 2 HKLR 341, the Court of Appeal pointed out that where a defendant committed arson in a multi-storey residential building in the middle of the night, a starting point of 8 years’ imprisonment would not be inappropriate. One of the defendants in that case set fire to the victim’s residence by using petrol, for the purpose of taking revenge because he had been infuriated by the victim from whom he had been unable to obtain repayment of loans.

18.Mr. Hung has cited Chau Yuk-kuen v R CACC 402/1980 in support of his contention. The defendant in that case had been in love with the victim but was later deserted by him. On the day of the offence, the defendant went to the victim’s residence and found the victim there with another woman. The defendant had an argument with the victim, in the course of which she was assaulted and humiliated, resulting in injuries to her face and arms. She was infuriated. She ran home and fetched a can of kerosene, which she then poured across the front door of the victim’s residence and set alight.

19.The Court of Appeal in that case took the view that the defendant had committed arson on the spur of the moment and under extreme distress, and that the appropriate starting point should not be lower than 4 to 5 years’ imprisonment.

20.In Tsoi Tin v R CACC 659/1976, the defendant, a factory worker, was scolded by a watchman when he was seen lying under one of the machines after working hours. The defendant then attacked the watchman and later went on to sprinkle the factory premises with kerosene and set them ablaze. The defendant was sentenced in the first instance to 8 years’ imprisonment. On appeal, the Court of Appeal considered the sentence excessive in light of the fact that the defendant had acted on the spur of the moment under the influence of medicine and that he had a clear record. In the end, the term of imprisonment was reduced to 5 years.

21.In R v Tsang Chu CACC 462/1986, the defendant, whose application for employment had been turned down, went to a film studio with a group of people in the early hours of the day of the offence. They threatened and tied up the watchman and then threw petrol bombs into the studio. The fire resulted in damage to properties valued at approximately $15,000. The Court of Appeal considered the sentence of 4 years’ imprisonment correct.

22.In HKSAR v Cheung Wing Siu CACC 76/1998, another case cited by Mr. Hung, the defendant, who had an argument with his father, vented his anger by pouring inflammable liquid over the furniture in the house and setting it ablaze. Although the fire was contained quickly, the defendant’s conduct had plainly put the lives of his father and other residents at risk. The first instance judge adopted a starting point of 4 years, and this was upheld by the Court of Appeal.

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.

24.The present case does not involve triad conduct, still less intimidation or blackmail. Ms. Wan, Senior Public Prosecutor for the respondent, submits that the applicant set fire for the purpose of retaliation. We have reservations about this. Had the applicant intended to take revenge, he should have done some planning and committed the offence when his children were not present or were asleep, but this was not what happened. In our view, this case stemmed from nothing more than a family dispute and the applicant committed the offence on the spur of the moment and in extreme anger. There was evidence that the applicant was an irascible person. The relevant psychologist’s report also indicated that the applicant was addicted to drinking and alcohol would diminish his ability to control himself. When drunk, the applicant would very easily become irritated and quarrel with his wife.

25.The present case is plainly one in which the applicant, being influenced by alcohol and irritated by the disrespectful words and deeds of his children, committed the offence on the spur of the moment, and his conduct was highly unwise and might lead to extremely serious consequences.

26.We do not intend to make any comment to the effect that the present offence is trivial, still less to diminish the applicant’s culpability for that reason. As we see it, however, there are a number of mitigating factors in the present case.

27.As stated above, the present case arose from a family dispute and had nothing to do with triad, intimidation or revenge. Furthermore, the offence committed by the applicant was incongruous with his character. Apart from the influence of alcohol, the applicant’s peculiar conduct on the night of the offence was the result of his irritation with the disrespectful behaviour of his children. 

28.The prosecution evidence showed that not only was the applicant’s 13-year-old daughter disgruntled with the applicant’s inability to pay telephone charges, as a result of which she was unable to use the telephone, but she also said to the applicant, “Jump down the building and kill yourself if you want to die”. His 19-year-old son also blamed him for having been deceived of all his money.

29.At the material time, by unwisely participating in the essential oil marketing business, the applicant had put himself in dire financial shape. Instead of understanding his predicament and feelings, his family members found faults with him and ridiculed him.

30.It was in the said circumstances and on the spur of the moment that the applicant carried out the extremely unwise conduct.

31.Other than the daughter who suffered minor injuries, the applicant was the only other person injured in the incident. The applicant’s injuries were far more serious than those of his daughter and necessitated hospitalization for 3 months.

32.The applicant was in fact the major victim in the incident. Apart from inflicting physical and mental injuries on him, the incident might further alienate him from his family. The fire would also inevitably have caused some financial loss to the applicant’s family.

33.In our view, the use of essential oil by the applicant to set fire should be less serious than the use of inflammable liquid such as petrol, thinner or kerosene. And we cannot ignore the fact that the applicant is aged over 50 and has a clear record.

34.Had the applicant persistently committed the offence of arson, the court would, in the interests of the public, certainly have passed a sentence comparable in severity to the one imposed in the case of HKSAR v Lo Po Tak [1998] 3 HKC 485. We consider that there are circumstances in the present case that justify a merciful approach to sentencing. We hope that the applicant will learn a lesson from this incident and bear it in mind, and will also adopt a more positive and responsible attitude towards his family.

35.Notwithstanding the serious nature of the offence committed by the applicant, the original sentence of 6½ years’ imprisonment is, in light of the mitigating factors, manifestly excessive. In our judgment, a term of imprisonment of 4 years is sufficient.

36.We grant leave to the applicant to appeal against sentence and, treating the application as the appeal proper, allow the appeal and reduce the term of sentence from 6½ years to 4 years.

Mr. Andy Hung, instructed by James W.L. Li & Co. on assignment by the Legal Aid Department, for the Applicant (re application for leave to appeal against sentence). 

The Applicant in person, present (re application for leave to appeal against conviction).

Ms. Polly Wan, Senior Public Prosecutor, for the Respondent. 

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.