HKSAR v. Kwong Chi Sing
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HCCC225/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO. 225 OF 2011 -----------------
--------------------------------- Transcript of the Audio Recording --------------------------------- COURT: You were charged with four counts of arson, contrary to section 60(1) of the Crimes Ordinance, which offences all occurred in the early hours of the morning of 6 December 2010, in close proximity to one another, in Kowloon. Three of them, one in the rear lane of 760 Nathan Road, one in the rear lane of 157 Sai Yeung Choi Street and one in the rear lane at 37 Fuk Wah Street, were comparatively minor. In each of those instances, you set fire to piles of rubbish which, apart from destroying the rubbish itself, caused very little peripheral damage. The fourth offence, which was reflected as Count 2 in the indictment, occurred in Fa Yuen Street. There, you set fire to a hawker’s stall. That fire then spread dramatically, incinerating 49 stalls as well as 29 ground floor shops adjoining them. The damage which you caused exceeded $20 million. It took some four and a half hours to extinguish that blaze. It was necessary for firemen and police officers to expose themselves to danger in order to evacuate tenants of close-by buildings. When you were arrested a few days later, you said to the investigating officer, “Ah Sir, give me a chance, I was just being playful. I did not expect that it would cause such a havoc and have the stalls burnt to the ground”. You were later interviewed by the police and you provided a more detailed explanation of your conduct. According to you, after you’d finished work at around about 11 pm on the preceding day, you went to meet some friends. You met them in To Kwa Wan where you sat drinking with them for several hours. You then went to make your way home to Ap Lei Chau which necessitated going to the Mongkok area to catch your bus back there. You said that when you got to the vicinity of where you set the first fire, you needed to urinate and went into an alley to do so. Whilst you were there, you saw the pile of rubbish and thought it would be fun to set fire to it, which you did. You explained, during that interview, that you had then got onto Fa Yuen Street and had inserted a lighted cigarette, which you were then smoking, under a cover of one of the hawker’s stalls. When you agreed the Summary of Facts, you accepted the conclusion of an expert witness who said it was highly likely that the fire in each of the four locations was the result of a deliberate act. In each location, miscellaneous materials such as fabrics, paper cartons, plastics and the like, in situ or in the vicinity, were probably set alight by applying a naked flame generated by a lighter in a similar modus operandi. No fire accelerant residue was found at any site. The fact that no fire accelerant residue was found is an indicator that this was a spontaneous rather than a planned act on your part. You also accepted the further conclusion of that expert witness in respect of tests carried out on four items supplied by the owner of the Fa Yuen Street stall where you started the fire, that the results of further ignition tests showed that, apart from a blue-and-white-striped plastic sheet which caught fire when a naked flame was applied to it, the remaining three items did not catch fire. None of the four items caught fire when the source was a glowing cigarette. In view of your admission of these facts, it is apparent that, contrary to your explanation to the police, all four fires were started using a cigarette lighter. You then moved on towards where you were to catch your bus and, en route, you set the two further fires. After that, you simply caught the bus home. When you were arraigned, you entered a plea of not guilty to each of the counts. Four days were then occupied by a challenge by you to the admissibility of the records of your replies to the caution administered when you were arrested and the subsequent interview. You elected to testify on that issue. The evidence you gave was palpably false, the allegations that you made against the police officers demonstrably untrue. When the records were ruled to be admissible in evidence, you then changed your pleas to guilty. You are, of course, entitled to challenge any part of the prosecution case without such a challenge resulting in an increase in sentence. The consequence of your challenge, however, is that it demonstrates a lack of sincere remorse on your part as well as a willingness to say whatever untruths occur to you as potentially being to your benefit. Although you are still entitled to a reduction from the appropriate starting point as a result of your pleas of guilty, that reduction will be less than the full one-third discount which a timely plea would have attracted. The offences of which you have been convicted contemplate, at the time you committed each offence, an intention to destroy or damage property, or recklessness as to whether any such property would be destroyed or damaged. Insofar as the piles of rubbish are concerned, it is your own case that you did intend to destroy those items. Insofar as Count 2 is concerned, the conflagration that you caused in Fa Yuen Street, you say that you did not intend such drastic consequences from your action. Even if that were so, it is perfectly plain that you were reckless. I note that section 61 refers only to damage to or destruction of property, whilst section 62 has the added element of intending to endanger or being reckless as to the endangerment of human life. For whatever reason, the decision was made not to charge you under that latter section. It is a matter which I must bear in mind when determining the appropriate sentence as it must be that offences under the latter section would carry a higher penalty. Even so, the maximum sentence prescribed for each of these offences is life imprisonment. At the time of the commission of these offences, you were some 32 years old. You had no previous convictions. You had been in regular, albeit varied, employment, apparently since leaving school. Even if your consumption of alcohol that night had reduced your inhibitions and this was conduct in which you had not previously indulged or was out of character for you, it is almost inexplicable behaviour for a man of your age and background. It is self-evident from your pleas of guilty which acknowledge an intention by you to behave as you did, that you knew full well what you were doing. The inherent danger of your conduct, particularly in an area where hawker stalls are located cheek by jowl immediately in front of buildings containing shops with residential accommodation above them must have been apparent to you. Hong Kong is an intensely developed environment with Mongkok being recognised as being amongst the most densely populated areas in the world. You chose to commit these offences in just such an area. The Court of Appeal observed in the case of Li Mun Tong:
In that case, the court upheld a starting point of 6 years’ imprisonment in respect of a single act of arson on a hawker stall which caused damage amounting to $80,000. I adjourned the question of sentence today to enable a background report and a psychological report to be prepared upon you. I took that course despite the inevitability of a substantial period of imprisonment because of the unusual nature of your conduct. The background report shows an entirely unremarkable individual and lifestyle. The only insight the psychological report is able to offer into your conduct is to suggest that you may be abusing alcohol. I note that you appear to have told both the Probation Officer and the psychologist who prepared the reports that you do not recall what you did on that night. This does not sit easily with the detail which you were able to furnish to the police when you were interviewed. Your own later description of your conduct in Fa Yuen Street as having caused havoc is not far from the mark. It is stating the obvious to say that no compensation will be forthcoming from you for the amount of damage which you caused. The physical circumstances that prevailed there when you started the fire were very different to the circumstances in the other three locations. There can be no doubt, however, that each of those three fires constituted a danger to adjoining premises and materials. In my judgment, the appropriate starting point for those three offences, Counts 1, 3 and 4, would be one of 5 years’ imprisonment. In respect of Count 2, the appropriate starting point after trial I judge to be 8 years’ imprisonment. The only mitigation available to you - and that is reduced for the reason I have explained - is your pleas of guilty. In recognition of those, I will reduce the sentences on Counts 1, 3 and 4 by 10 months and that on Count 2 by 20 months. These were three separate and distinct offences but they all were committed within a short period of one another and were of the same nature. It seems to me appropriate for the sentences to be ordered to be served concurrently with one another. The result is that on each of Counts 1, 3 and 4, you are to serve 4 years and 2 months’ imprisonment. On Count 2, you are to serve 6 years and 4 months. The sentences are to be served concurrently. The total sentence you are to serve is thus 6 years and 4 months’ imprisonment. | ||||||||||||||||||||||