HKSAR v. Wong Tsz on

DCCC369/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 369 OF 2010

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges. Both offences were committed at the same time on 6 March 2010 outside Room No.1006, Shun Yee House in the Lei Cheng Uk Estate in Sham Shui Po. The 1st charge was one of criminal damage to a louver window. The 2nd charge was one of arson. He damaged by fire a door curtain intending to damage such property or being reckless as to whether such property would be damaged and he damaged that property by fire.

2.The facts admitted by the defendant disclose that both the defendant who is 25 and his 37-year-old girlfriend, PW1, are unemployed. They had no place to stay and the defendant’s friend, a Mr Wong, PW2, allowed them to stay at his rented public housing estate flat which is where the offences took place. They were staying there temporarily.

3.In the evening of 6 March 2010, the defendant and his girlfriend had an argument in the street. At about 11.30 his girlfriend returned to the flat on her own. About 15 minutes later the defendant also came back to the flat, but his girlfriend refused to let him in. At the time Mr Wong and his wife and 3-year-old child were inside the flat.

4.PW1 said that in the corridor the defendant used his bare hand to smash a glass louver window of the flat and requested to go inside, but she still refused to allow him access. The incident was witnessed by a neighbour of Mr Wong who I refer to as PW3. He is also called Mr Wong.

5.PW3 saw the defendant using a hard object to smash the window of PW2’s flat. The defendant then stuffed some material in the broken glass pane and used a cigarette lighter to set fire to the piece of cloth. A fire started very rapidly, and PW3 made a report to the police by telephone. He saw a lot of smoke coming from the burnt cloth, but he could not see the extent of the damage.

6.PW1 said what was burned was in fact a piece of door curtain hanging on the metal gate of the flat. She said that soon after the fire had started, the defendant used a pair of trousers and his hands to put out the fire himself. The fire was put out before the police arrived.

7.The defendant was arrested, and the cigarette lighter he used to start the fire was seized from him. A written record of interview was taken from the defendant. He admitted out of anger smashing the window and setting fire to the curtain.

8.The defendant has a number of previous convictions. His record shows that he has been before the court on 13 previous occasions for a variety of matters ranging from assault to damage, to theft, and he was last before the court in December of 2009 when he was sent to prison for 2 months for assaulting a police officer.

9.On the previous occasion this case was adjourned so that I could have the advantage of psychiatric reports. The defendant has been receiving psychiatric treatment for some time. Despite the treatment, he remains an impulsive person. He was admitted to the Kowloon Hospital from May 2009 from the 9th to the 18th for unstable emotion and repeated self-harm under stress and was diagnosed with emotional personality disorder. The examination at that time revealed him to be calm, relevant and non-psychotic. Over the years the defendant has been a regular drug abuser.

10.Arson is obviously a serious offence. The inherent danger in any uncontrolled fire is always regarded as an offence of particular gravity. Fires can get quickly out of hand and there is a substantial risk of serious damage to property and also to lives.

11.Placed before the court defence counsel has given me the case of HKSAR v Cheung Wing Siu Cr App No.76/1998. This was an appeal against sentence where the judge adopted a starting point of 4 years in respect of a person who set fire to property.

12.I note in that case that in passing the sentence, the District Court judge who had passed the sentence said that that offence was committed as an expression of anger on the part of the defendant who had quarrelled with his father. His father had been resting in the room at the time of the quarrel. Contrary to what the prosecution had said in its opening, the defendant said that the father’s evidence was that he was not inside the room at the time the fire was actually started by his son pouring inflammable fluid over the furniture, but that he had been at the doorway having been pushed out of the room by his son. This evidence undermined the allegation that the defendant had intended to put his father’s life at risk.

13.The judge went on to say:

“It was, however, plain on the evidence that not only was his father’s life at risk by the defendant’s reckless action, but so were the lives of all the residents within this public housing block, something that would have been obvious to any ordinary, prudent bystander.”

14.And the judge contained:

“The defendant, once he had set the furniture ablaze, fled the premises and was not seen again until he was arrested some two months later.  He clearly had no regard for the likely consequences of his actions which could have been catastrophic.  The fact that the fire was contained quite quickly had nothing whatever to do with any action on the part of the defendant.”

15.It was in those circumstances that the judge took a starting point of 4 years.

16.In this case I accept that the facts are not as serious. I was satisfied in this case that the defendant acted on momentary impulse. He was having difficulties with his girlfriend and when he returned to where they were staying, she refused to let him in and it was in those circumstances that he lost control, he punched the window and set fire to the curtain. He obviously immediately regretted his actions as he put out the fire himself. I have seen from the photographs that minimal damage was caused.

17.However, given the defendant’s record and the fact that this is a charge of arson, I have decided that the appropriate starting point in this case would be a sentence of 3 years. The defendant is entitled to the benefit of a third being taken off that sentence to reflect his guilty plea. So the sentence on the arson charge will be one of 2 years.

18.As regards the 1st charge of criminal damage, I note that he has a number of previous convictions for criminal damage. I have noted also that this was very much part and parcel of the loss of anger. He damaged the window and set fire to the curtain. I have decided therefore to take a starting point of 9 months for that offence, reduce that by one-third to 6 months to reflect the guilty plea, and 4 months will run consecutive to the main charge of arson. So the total sentence of imprisonment will be 2 years and 4 months.