HKSAR v. Kong Man Lung

CACC 408/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 408 OF 2012

(ON APPEAL FROM DCCC NO 673 OF 2012)

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J U D G M E N T

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1.On 21 September 2012, the applicant pleaded guilty before District Court Judge Woodcock to three charges of arson, contrary to section 60(1) and (3) and section 63(1) of the Crimes Ordinance, Cap 200.  In consequence, the judge sentenced him to 2 years and 4 months’ imprisonment on each charge, ordering that each be served concurrently.  Accordingly, the total sentence of imprisonment imposed on the applicant was 2 years and 4 months.  The applicant seeks leave to appeal against those sentences.

2.The charges all arose from events that had occurred in the early hours of 30 May 2012 at the Mut Wah Street temporary hawker bazaar.  The charges arose from three separate seats of fire that the applicant had caused.  Two of the fires were caused to material left by stallholders outside their stalls and the third to waste paper material in recycling cages.  The first two fires were discovered by street sleepers who, to their credit, extinguished the fire.  The third fire was discovered by a security guard who, having failed to extinguish the fire, called the Fire Services Department who were able to extinguish the fire.

3.Having been arrested and cautioned a week later, the applicant admitted that he had played with a lighter and ignited things.  He explained to the police that he had taken medication for a psychiatric illness earlier that evening.

4.In her reasons for sentence, the judge noted that she had available to her a psychiatric report which had been called for when the applicant first appeared in the magistracy.  The report was dated 14 June 2012 and addressed to the presiding magistrate at Kwun Tong Magistracy.  She noted from the report that the applicant had a history of alcohol and drug abuse and had been receiving psychiatric treatment since 1993, having been diagnosed with depressive symptoms and auditory hallucinations as well as attempting suicide.  The psychiatric report said that the applicant reported hearing non-existing voices but said that he did not elicit any delusional or suicidal ideas.  He was diagnosed as suffering from mental and behavioural disorder due to multiple drug use, psychotic disorder with strong mood elements.  He did not require inpatient psychiatric treatment.  His condition had improved whilst in Siu Lam Psychiatric Centre on remand.  It was recommended that he continue to receive outpatient psychiatric treatment.  

5.Of that, the judge said:  “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”.  The judge noted that the applicant had many previous criminal convictions but not for offences of, or similar to, arson.  He had convictions for drug abuse.  He was 41 years of age, single and unemployed. 

6.Of the fire, the judge noted that there was no great loss of property to the three victims in the case but said:  “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”. 

7.The judge said that she took a starting point for sentence of 3 years and 6 months’ imprisonment for each of the charges.  For his pleas of guilty, the judge afforded the applicant a discount of one-third from that taken as the starting point for sentence.  Accordingly, the judge sentenced the applicant to 2 years and 4 months’ imprisonment on each of the three charges, which she ordered to be served concurrently.

8.In his homemade grounds of appeal against sentence, the applicant simply asserts that the sentences were excessive.  Today, in his oral address to the court, the applicant accepted that he suffered from mental illness.  He said that that was connected with his commission of the offences.  He confirmed to the court that, as part of the outpatient psychiatric treatment he had been receiving, he had attended to obtain medication; he did not always attend when required to do so because he forgot.  He said that he had misunderstood the sentence imposed upon him by the judge.  He thought that it had been 3 years and 6 months’ imprisonment.  Also, he misunderstood whether or not she had taken into account the psychiatric report.  Having had parts of the transcript of her reasons for sentence read out to him, he accepted that it was clear that the judge had taken that into account.

9.Turning then to my conclusion, the judge was entitled to determine that the circumstances of the commission of the offence were serious given the area in which the fires were lit.  It is that fact, rather than the relatively small loss of property, that constitutes the seriousness of the offence.  The last of the fires lit by the applicant was beyond the ability of the security guard to extinguish and it was necessary that the Fire Brigade be called. 

10.Clearly, there being three seats of fire, the applicant’s conduct was persistent.  Given that the psychiatric report advised the court, including the sentencing judge, that psychiatric treatment was not warranted, the judge had no choice other than to determine it appropriate to impose a sentence of imprisonment. 

11.In the circumstances, I am satisfied that that sentence was appropriate.  There is no merit in the grounds of appeal against sentence.  Accordingly, the application for leave to appeal against sentence is refused.

Mr Ira Lui, SPP of the Department of Justice, for the respondent

The applicant appeared in person