HKSAR v. Wong Pak Keung

DCCC 691/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.691 OF 2011

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Reasons for Sentence

1.The defendant pleaded guilty to one charge of arson under s.60(1) and (3) of the Crimes Ordinance, Cap.200. Under s.63(1)[1], the maximum penalty is that of life imprisonment. It is however not an excepted offence.

Facts

2.At the early hours on 7^th March 2011, after he had been out drinking, the defendant was taken home by his friend. At around 4:32am, while the defendant was in the lobby of the building that he resided in, he used a lighter to set the notices on a notice board there on fire. The notices caught fire. The defendant walked away but returned after a few seconds and used his lighter to burn the notices again.

3.A few minutes later, the security guard on duty found out that someone had burned the notices. The fire was actually put out by a passerby. The guard reported the matter to the Police. Closed circuit television footages were reviewed and the defendant was eventually located in the building and arrested. Under caution, the defendant said he was too drunk to remember anything.

Sentencing cases

4.Mr. Tang for the defendant referred me to the case of HKSAR v Koo Ming Yee, HCMA 433/2005, to show that Community Service Order is a possible sentencing option even under a s.60(1) and (3) arson charge.

5.There are no sentencing guidelines for the offence 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.”

6.The sentences in those reviewed cases ranged between 4 to 5 years’ imprisonment after trial or after plea. Most of those cases involved far more serious fires set in anger or retaliation, which bear no similarity at all to our present case.

Sentence

7.The defendant is 27 years old and of previously clear record. I received letters written by the defendant, his mother and the defendant’s various friends and colleagues. I also ordered a psychologist and a community service order report to be prepared on the defendant. I was also given the appraisal reports prepared by the Customs and Excise Department on the defendant over the years.

8.The defendant is a serving Inspector of the Customs and Excise Department. Judging from all the letters and the reports, it is clear that what happened that night at the lobby was totally out of character. In the eyes of his colleagues and superior, the defendant has always been a responsible person. As a C&E officer, he showed professionalism in dealing with all sorts of people that he would encounter in his line of duty. I was told that it is likely that there will be a disciplinary hearing on the matter and the defendant may in the end lose his job.

9.According to the psychologist’s report, the defendant committed the present offence as a result of his failure to handle the immense stress that he was under at the time. The sources of the stress included his father being diagnosed with cancer of the blood, the defendant’s break up with his former girlfriend, the default in payment of money that the defendant had lent to his friend and the defendant’s perception that his superior did not trust him in his work.

10.The defendant foolishly drank too much on the night, to the extent that he had no memory of what had happened in the lobby. This is very sad. Alcohol can have strong effects on the human neurological system. It is well documented that alcohol can impair the brain and produce blackouts where the intoxicated person cannot recall details of what he or she had done.

11.Obviously, if consumed irresponsibly, the results can be disastrous. This is something that the general public tend to overlook and time and again this court sees defendants committing offences whilst they are under the influence of alcohol, doing things that they would otherwise never do when sober. The defendant was fortunate in this case that only minor damage was caused and the fire was put out quickly.

12.As mentioned above, a psychologist report was asked to be prepared on the defendant and I find the contents most useful. It is the psychologist’s view that the risk of re-offending is low. It is however recommended that the defendant seek advice on his stress management. To rely on drinking for stress relief was a bad decision on his part that ultimately led to his commission of the present offence.

13.As the Court of Appeal observed in Kung Pak Fu, the gravity of each arson case depends on its own facts. The facts in the present case must be on the least serious end of the scale.

14.It is clear from the appraisal reports submitted by Mr. Tang on the defendant’s behalf that the defendant had been a very good officer, serving the community well. It would indeed be a shame that the service of the defendant is lost should he be imprisoned as a result of an act that was done in a momentary loss of self control.

15.What the defendant did was totally out of character. He has served the community well. There is only a low risk of re-offending. He pleaded guilty to the charge as well as showing true remorse for his foolish conduct. I find that a proper punishment for the defendant’s irresponsible and reckless act in the present case is that of community service.

16.I will therefore order that the defendant be sentenced to 240 hours of Community Service. The defendant must comply with all the conditions. Should he chooses not to do so, he will be brought back and be sentenced afresh.

17.The defendant to compensate the owner of the notice board in the sum of $500, to be paid forthwith and deducted from the defendant’s bail money.

[1] (1)  A person guilty of arson under section 60 or of an offence under section 60(2) (whether arson or not) shall be liable on conviction upon indictment to imprisonment for life.

(2)  A person guilty of any other offence under this Part shall be liable on conviction upon indictment to imprisonment for 10 years.