HKSAR v. Kong Man Lung

DCCC673/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 673 OF 2012

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Reasons for Sentence

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1.Defendant has pleaded guilty to three charges of arson, contrary to section 60(1) and (3) and section 63(1) of the Crimes Ordinance, Cap.200. All three charges occurred on the same day, 30 May 2012, all in and around the same area of Mut Wah Street and Yan Shun Lane, Kwun Tong.

2.The facts show that these two streets were in very close proximity and were in fact part of an old-style market consisting of over 100 market stalls and is within an area under Urban Renewal Authority Kwun Tong redevelopment project.  In fact, the defendant himself lived on Yan Shun Lane. 

3.The stallholders would often leave material or items outside their stalls.  On the evening of 29 May 2012, PW1 left his sewing machine outside and near his stall covered by a foam box and some cloth.  The second victim in a stall some distance away had a plastic bag containing 10 hangers hanging outside his stall.  The third victim had some recycled wastepaper in a metal cage outside his shop and on a loading compartment of a light goods vehicle.  This light goods vehicle was parked outside a recycling shop and some one hundred metres away from the market area.  

4.The facts show that at about 3 am on 30 May, two street sleepers who slept in the market area woke up when they smelt a burning smell.  The sewing machine belonging to the first victim of Charge 1 was on fire.  These two street sleepers, luckily, took matters into their own hands and put out the fire.  Minutes later, they found nearby PW2’s, the second victim’s plastic bag hung outside his stall was also on fire; hence, Charge 2.  They again extinguished this fire together.  Because they were successful, I assume they did not make a police report. 

5.Some 15 minutes later, a security guard and a cleaner discovered the wastepaper in the metal cage that I referred to earlier set alight.  This belonged to the victim of Charge 3.  There were in fact three recycling cages in total.  They could not put out this fire.  They had to call the Fire Department who extinguished it upon their arrival.

6.CCTV installed in the vicinity captured the image of the defendant loitering near this light goods vehicle just prior to the cages being set on fire.  Other than the CCTV footage, there were no actual witnesses to the defendant’s actions of setting items on fire. 

7.The defendant was arrested a week later.  Under caution, he admitted that he had taken drugs and he had played with a lighter and had ignited things, but he did not want to ignite things.  He gave further details to the police, claiming that he did not recall all the details of that evening, but he admits he was in the area at that time.  He had a lighter in his hand that he had found.  He told the police that he had taken some drugs for his mental psychiatric illness that evening.  He later told a psychiatrist that he had taken heroin earlier that evening.  He told the police that he saw a lot of rats and cockroaches around him, and he tried to set them on fire with the lighter when it was clear that in fact he had set fire to the belongings of the three victims.

8.When he appeared in Kwun Tong Magistracy, a psychiatric report was called for to see if the defendant was fit to plea.  I do not intend to repeat the details of that report but I have a copy before me now.  The defendant has a history of alcohol and drug abuse.  He has been receiving psychiatric treatment since 1993.  He has been diagnosed with depressive symptoms, auditory hallucinations and attempted suicide on several occasions.  

9.At the present state, meaning at the time not long after the offence, the psychiatrist said that the defendant was speaking coherently.  Although he reported to hear non-existing voices, he did not elicit any delusions or suicidal ideas.  That psychiatrist diagnosed the defendant with a mental and behavioural disorder due to multiple drug use.  The conclusion was that he did not require in-patient psychiatric treatment, but it was recommended he continue to receive further outpatient psychiatric treatment.

10.Based on this report, I do not intend to call for any further reports today.  I see no reason to consider a hospital order based on this report.  This report was obtained very soon after the offences were committed.

11.The defendant is not a man of clear record.  He has many previous convictions, none similar to arson.  Clearly, he has a drug abuse history and his drug abuse is long-term.  Defendant is 41 years old, single and presently unemployed, receiving CSSA.  I have heard everything that can be said on his behalf in mitigation.

12.Any fire lit creates a dangerous scenario. There is always an inherent danger that any fire may go out of control.  Here, luckily, two street sleepers woke up in time to put out two fires.  The third fire, perhaps being self-contained, was put out by the Fire Department when they arrived.  Ultimately, there was no great loss to the three victims in this case, but I cannot ignore the fact that potentially this could have been a huge disaster.  This area is a market with many stalls set up.  I am sure there would have been a lot of flammable material around.  Therein lies the potential for a huge disaster, even endangering lives of those who live nearby.  However, the defendant faces a section 60(1) charge which can be said to be the less serious of the arson charges where property is affected as opposed to human life. 

13.However, in my view, the facts here will mean that a custodial sentence is appropriate.  The fact he has psychiatric problems and is a drug addict is not relevant.  He admits that he knew he was setting things on fire.  He did it three times.  His actions were intentional by his own admission. 

14.After hearing mitigation on your behalf, considering the facts of the three charges, the details of the psychiatric report and your history and background as well as the circumstances surrounding the three charges, I will take for each charge a starting point of 3 years and 6 months.  You have pleaded guilty today and you are entitled to a discount of one-third for your plea.  For each charge, I impose a term of imprisonment of 2 years and 4 months.  I will order that all three charges be served concurrently.  That is a total of 2 years and 4 months’ imprisonment. 

15.I make an order the defendant is to receive psychiatric treatment whilst in custody serving his sentence if required.

Please refer to CACC408/2012 for the relevant appeal(s) to the Court of Appeal.