HKSAR v. Chan Chung

DCCC 7/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 7 OF 2014

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Reasons for Sentence

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Charges

1.The defendant pleads guilty to 4 charges of arson being reckless as to whether life would be endangered, contrary to sections 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap. 200 (1^st – 4^th Charges) and possessing articles with intent to damage property, contrary to sections 62(a) and 63(2) of the same Ordinance (5^th Charge). 

Facts

2.The defendant resided at Unit No. 2420 of a public housing block in Tuen Mun.  His block consisted of 29 storeys, each with 48 units.  In the small hours on divers dates corresponding to 1^st to 4^th Charges, he set fire to the wooden door of Unit No. 2520, the unit directly above his, as follows:

(1) on or about 3/4/2013 when the resident was at home (1^st Charge);

(2) on or about 30/4/2013 when the resident was not at home (2^nd Charge);

(3) on or about 4/10/2013 when the resident might or might not be at home (3^rd Charge);

(4) on or about 4/11/2013 when the resident was asleep and awakened by a neighbor to put out the fire on his wooden door and carpet (4^th Charge).

3.Each time the matter was reported to the police, which arrived at the scene to investigate and take photos.  The Summary of Facts and the photos together illustrate the damage as follows:

(1) a fire-shaped burnt mark extending from the bottom of the wooden door, total loss $200 (1^st Charge);

(2) a 30 cm (height) x 10 cm (width) burnt mark and 2 cables installed beside the door damaged, total loss $300 (2^nd Charge);

(3) deepening of the 2 burnt marks, total loss $500 (3^rd Charge);

(4) further deepening of the 2 burnt marks and carpet damaged, total loss $550 (4^th Charge).

4.On 6 November 2013, at 0430 h, the police in an ambush spotted the defendant acting furtively at the staircase of 25^th floor.  They intercepted him for a search.  He was found to have a cotton ball soaked with isopropyl alcohol (a flammable organic solvent) and a lighter.

5.Upon investigation under caution, he said that he was prepared to set fire to the door of Unit No. 2520 because he had been annoyed by the water dripping from it for over one year (5^th Charge); he had made complaint to the management office but there was no improvement; he did not intend to hurt anyone; he had set fire to it for several times (ie confession to 1^st - 4^th Charges). 

6.Two samples of burnt debris of the door, seized in the aftermath of the 4^th arson, were examined by the government chemist.  One of them was found to contain traces of isopropyl alcohol.  Isopropyl alcohol is a highly flammable organic solvent, which is used as an industrial solvent commonly found in household and personal care products such as rubbing alcohol. 

Personal background and mitigation

7.The defendant is 76 years of age.  He has 4 records for theft.  He suffers from hypertension, severe stomach illness and the after-effects of stroke.  His wife takes care of him.  His only daughter is married and lives apart.  His daughter and son-in-law also care about him.  Despite their care, he very much kept his own counsel.  They were only informed of the unresolved complaint of water dripping which led to the arson after he was arrested for the present offences.  They write mitigating letters to plead for leniency. 

8.Both psychiatric reports obtained of the defendant recommend that he receive outpatient treatment of his mild cognitive impairment.  There are no signs of other mental impairment.  He is mentally fit to serve any ordinary sentence the court deems appropriate.  

9.Defence counsel submits that the isopropyl alcohol was an ordinary household item.  The defendant did not buy it for arson but only made it handy for setting the fire.  The damage was not substantial.    No one was injured.   

Sentencing considerations

10.In HKSAR v Kung Pak Fu [2008] 2 HKCLRT 240, the applicant had had a poor relationship with his 19-year-old son and 13-year-old daughter prior to the offence.  The arson took place when he poured essential oil over the floor, light a newspaper and throw the burning newspaper on the floor in the heat of a harsh criticism by his son and daughter.  The son criticized him for being deceived of all money in the business of essential oil.  The daughter criticized him for not being able to pay telephone bills so that she could not use the telephone and that he could jump down the building to die if he wanted.  He suffered 30% burn of his whole body and was hospitalized for 3 months.  The daughter suffered 2% burn of her whole body. 

11.The Court of Appeal did not belittle the seriousness of the case whilst identifying as effective mitigating factors the extreme pressure he was put to by his children’s criticism, his injuries compared to those of his daughter’s, his dire prospect of any better relationship with his children, his property damaged by the fire, the use of essential oil not flammable liquid such as petrol, thinner or kerosene, his age of over 50 and a clear record.  The sentence imposed after trial was reduced from 6 ½ years to 4 years on appeal. 

12.In the course of the judgment, the Court of Appeal had considered a number of sentencing cases on arson and formed the view that no sentencing guidelines should be stated due to the immense variance of underlying circumstances.  The cases pointed to a starting point ranging from 4 to 5 years for arson committed out of impulsiveness, though. 

Sentencing this defendant

13.It is true that he did not have the intention to hurt anyone but he had no means to extinguish the fire either.  Such a reckless act could lead to an uncontrollable fire as all of the units were compact residences close to each other.  The fire at the door would trap the resident in his own unit and easily spread to other units. 

14.The present offences were not committed out of impulsiveness.  It is true that the defendant had been persistently aggrieved by the unresolved problem of water dripping but it was a rather long shot to use isopropyl alcohol to set fire at the door and in the small hours; there was a degree of premeditation in deciding to set fire and choosing that particular time slot.  It was bound to do more harm when the residents were probably asleep.  It was sheer luck that on all 4 occasions the fire had not left the door before extinguishment.   

15.I take 5 years as the starting point.  I give him a one-third discount for his pleas of guilty.  I further reduce it by 4 months for his old age.  He is sentenced to 3 years on each charge.  These are separate incidents and warrant wholly consecutive sentences.  However, I shall make a totality adjustment as follows:

(1) 3 years (1^st Charge);

(2) Out of 3 years, 3 months consecutive to each other charge (2^nd – 5^th Charges).

16.The overall sentence is 4 years.