HKSAR v. Lo Po Tak

DCCC863/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.863 OF 2010

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Reasons for Sentence

1.The defendant faces one charge of Arson, contrary to s.60(1) and (3) and 63(1) of the Crimes Ordinance, Cap.200. Particulars of the charge are that the defendant on 24^th June 2010, at staircase no.7, ground floor, block D, Chungking Mansion, Nos.36-44 Nathan Road, Tsim Sha Tsui, without lawful excuse, damaged by fire 10 electric meters, the property belonging to the management office of Chungking Mansion, intending to damage such property or being reckless as to whether such property would be damaged.

2.The defendant pleaded guilty, admitted to the summary of facts and was duly convicted of the charge.

Facts

3.PW1 and 2 were security guards working at Chungking Mansion, a residential and commercial building consisting of 5 blocks. Each block has 17 storey and is occupied by various residential premises, guest houses, shops and restaurants.

4.At around 7:05am on 24^th June 2010, whilst working at the control room in Chungking Mansion, PW1 noticed that the fire alarm at staircase no.7 was activated. PW1 immediately made a report to the Police. A fire was set off at the staircase and was subsequently put out by the automatic sprinkler system. No one was injured.

5.Upon checking of cctv footages, PW1 and 2 found that between 6:57am and 7:05am on the same day, a male burnt some papers in his hand with a lighter and then threw the burnt papers into a rubbish bin at the staircase. The male repeated his act three times and the rubbish inside the rubbish bin caught fire, which soon spread to ten electric meters above the rubbish bin. The electric meters which belonged to the management office (valued at $5,000 in total) were damaged as a result.

6.At around 10:25am, PW2 saw the defendant near the information counter at the ground floor of Chungking Mansion. He recognized the defendant as the male he saw earlier in the cctv footage. PW2 then intercepted the defendant and the Police arrived shortly to take over the matter.

7.The Police arrested the defendant for arson. Under caution, the defendant admitted that he had burnt the carton and rubbish out of fun and asked for a chance. A lighter was found inside the pocket of the defendant’s trousers.

Previous convictions

8.The defendant has 25 previous convictions, with 11 counts of arson. His last conviction was for arson in November 2007 when he was sentenced to 8 months’ imprisonment at Kowloon City Magistracy.

Sentencing authorities

9.There are no sentencing guidelines for offences of arson. In the case of HKSAR v Kung Pak Fu (龔伯富), CACC 429/2007, the Court of Appeal reviewed a number of arson cases but was still of the view that they do not consider it appropriate to lay down sentencing guidelines for arson 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.”

10.The sentences in those reviewed cases ranged between 4 to 5 years’ imprisonment after trial or after plea. Most of those cases involved more serious fires set in anger or retaliation.

11.I was very helpfully referred to the case of HKSAR v Lo Po Tak, CACC 608/1997 by Mr. Tse for the defendant. This is a case where the defendant in our present case was the applicant. Similar to our present case, the applicant was convicted on his own plea of 2 charges of arson under s.60(1) and (3) of the Crimes Ordinance, Cap.200. Also similar to our present case, the applicant in each charge set off small fires damaging some properties. The Court of Appeal considered a starting point of 6 years’ imprisonment appropriate for each charge, to be served concurrently. It is noted that the sentence in that case was before the defendant’s later conviction for yet another arson offence in 2007.

Sentence

12.2 psychiatrist’s reports and 1 psychologist report were called for before sentence. The following diagnoses were offered in the Psychiatrist Reports of Dr. Ho and Dr. Chan: Dissocial Personality Disorder, borderline intelligence and pyromania. Both doctors consider that the defendant has a very high risk of recidivism. The psychologist report of Ms. Chan, Clinical Psychologist confirms those findings. Ms. Chan added that the defendant’s motivation for change seems to be superficial.

13.According to the psychologist’s report, the defendant committed the present offence to avenge being woken up by the security officers in the early morning. He felt happy after setting the fire.

14.The defendant is a dangerous person. There is no saying when his arsonist behaviour may cause more damage or even lives to be taken. Taking his appalling criminal record as an aggravating factor and viewing the high risk of reoffending as a need for a deterrent sentence and bearing in mind the case of HKSAR v Lo Po Tak, CACC 608/1997, I will adopt a starting point of 6 years’ imprisonment. I grant the defendant the full one third discount for his guilty plea and sentence him to 4 years’ imprisonment. I sincerely hope the defendant will make good his promise to follow up with treatment while in jail and hopefully when he regains his freedom he will stand a better chance of controlling himself should the urge for setting fire resurfaces.