HKSAR v. Tang Kwok Wai

DCCC 30/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 30 OF 2014

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Reasons for Sentence

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1.The defendant faces 3 charges of arson and 1 charge of attempted arson, contrary to sections 60(1) and (3) and 63(1) of the Crimes Ordinance, Cap.200. He pleaded guilty to the arson charges but not guilty to the attempted arson charge. Upon the defendant’s conviction on charges 1 to 3, and upon the prosecution’s application, charge 4 is ordered to be kept on court file, not to be proceeded with against the defendant without the leave of the court.

Summary of facts

2.The defendant resided at room 3920, Hei Lai House, Wah Lai Estate, Lai Chi Kok, Kowloon, being neighbour to PW1, PW2 and PW4, who resided at 3 different rooms.

Charge 1

3.On 13 August 2013, when resident of Room 4020, Hei Lai House left home for work at 7 am, she found that a ‘fai chun’ that was stuck to her door was damaged by fire, with a 20 cm x 40 cm burnt mark on the door. The cost of repair was $300 and the matter was reported to the Police.

Charge 2

4.One day later on 14 August, while PW3 was inside his residence at room 3508 Hei Lai House at around 2:45 pm, he noticed some burning smell coming from the corridor. PW3 went out to have a look and saw 2 umbrellas that were hanging on the gate of Room 3510 were on fire. PW3 rang the doorbell to alert the occupant PW2, who immediately put out the fire. The umbrellas, valued at around $100, were damaged. The case was reported to the Police.

Charge 3

5.8 weeks and 3 days later, on 28 September, PW4 found her door bell damaged by fire when she returned to room 3720 Hei Lai House. The cost of repair was $200 and the case was reported to the Police.

Arrest of the defendant

6.Upon inquiry and investigation at Hei Lai House, Police arrived at the defendant’s residence at room 3920 at 4:10 pm and arrested the defendant. Upon search, a bottle of petrol and a lighter were seized from the defendant’s residence.

Video recorded interview

7.Under caution, the defendant admitted that he committed the acts of arson in charges 1, 2 and 3. He sprayed petrol outside the premises and damaged their properties by fire. He committed the offences because he was annoyed by the noise made by his neighbours. The defendant intended to scare them.

8.There is no evidence to show that the residents of the premises involved in the 3 charges had any previous confrontations with the defendant.

Previous convictions

9.On 19 June 2014, the defendant was convicted of an offence of possession of apparatus fit and intended for smoking/injecting dangerous drugs under s.36(1) of the Dangerous Drugs Ordinance, Cap.134. The commission of this offence was after the present arson offences. The defendant has no similar record. The other earlier conviction was for dealing with property known or believed to represent proceeds of an indictable offence when the defendant was sentenced to 6 months’ imprisonment on 23 June 2011.

Mitigation

10.The defendant is 29, married to his wife who resides in mainland China. The defendant worked as a warehouse temperature control worker in June 2013, earning about $9,500 per month, contributing $2,000 per month towards his family. At the time of the offence in August 2013 he was unemployed and living on savings and financial assistance from his family. He is not a CSSA dependent. The defendant was living with his mother and second elder sister in Mei Foo Estate. The defendant’s father passed away in 2000, while his mother is aged 58 and a school janitor. His second elder sister works in a convenient store. The defendant’s eldest sister is a Police officer who is married to another Police officer.

11.Prior to taking plea, the defendant’s legal representatives have obtained a medical report in March 2014 which confirmed he was fit to plea and able to recognize his misdeeds. According to Mr. Yuen, the defendant started abusing methamphetamine 2 to 3 years ago, and he suffered from abnormal perceptual disturbances, including non-existent voices, feeling of being harmed and monitored by strangers and his neighbours.

12.In the video recorded interview, the defendant said he set the fires because the victims created noise nuisance. None of the victims however had prior confrontation with the defendant and it was not a case of the defendant seeking revenge. It is Mr. Yuen’s submission that at the time of the defendant’s video recorded interview, he was still suffering from abnormal perceptual disturbances.

13.After the defendant was remanded in the DATC in June 2014, the effect of the disturbances started to diminish, and the defendant was able to communicate with his lawyers clearly. It is the defendant’s case that he did not use petrol when committing charge 1 and 2, but he did use petrol when committing charge 3.

14.Mitigation letters from the defendant, his mother and aunt were submitted. In summary, the defendant is of good and filial nature, not excellent academically, but he did try to better himself by taking vocational courses. The defendant did obtain his bus driver qualification in November 2012.

15.A sketch book of drawings by the defendant was shown to the court in support of Mr. Yuen’s submission that the defendant was struggling with his self-control. I am of course no expert and so the drawings were returned to the defendant.

16.In late 2013 and early 2014, having witnessed the ill effects of drugs on her son, the defendant’s mother reported his son to the Police and the defendant was convicted as a result. That offence was committed after the present case.

17.Mr. Yuen urged the court to impose a sentence of between 6 to 8 months’ imprisonment (after plea of guilty) after taking into consideration the fact that the offences were committed during a short period of time and that the offences were committed during the defendant’s ‘abnormal period’. Mr. Yuen further urge the court to order the sentences to run concurrently. Having seen the DATC report, Mr. Yuen submits for the court to follow the recommendation of the DATC report and sentence the defendant to a fresh period of detention at the DATC.

18.Mr. Yuen indicated that the defendant was willing to compensate the victims for the repair costs and also suggested the court to order reports to be prepared on the defendant prior to passing sentence.

Sentence

19.Pursuant to section 63(1) of the Crimes Ordinance, the maximum sentence subsequent to a conviction on a charge of section 60(1) arson is that of life imprisonment.

20.As Mr. Yuen had suggested, in order to assist in sentencing, a Drug Addiction Treatment Centre report, a psychologist report and 2 psychiatrist reports were ordered to be prepared on the defendant.

21.According to the DATC report, the defendant, who is already being detained in Hei Ling Chau as a result of the previous case of possession of apparatus fit and intended for the inhalation of dangerous drugs, is still a drug dependent and in view of his future rehabilitation and to assist him to quit his drug habit, the defendant should continue to be detained at the treatment centre under a fresh detention order.

22.According to the report of Clinical Psychologist Mr. Woo, the defendant was diagnosed as suffering from drug induced psychosis since 2013. The defendant claimed he had been using ice for 3 to 4 years, as well as the occasional ketamine and cannabis. The defendant heard voices commenting on his actions and telling him to die. He believed that he was being followed and spied on and that his thought was being broadcast by the media. The defendant admitted to suicidal attempts in response to his hallucinations and paranoid ideation.

23.The defendant claimed that his mental condition improved with medication but when he defaulted on follow up treatment and stopped taking his medication, the auditory hallucinations and paranoid ideation returned and the defendant was admitted to Kwai Chung Hospital from January to March 2014. The defendant resumed his vice habit soon after he was discharged from hospital and the abnormal perceptual experiences recurred.

24.The defendant told Mr. Woo that he had been hearing noises from his neighbours disturbing him on purpose. He wanted to threaten them by setting fire and burning their properties. He was fully aware of his behaviors and denied having any intention to injure anyone. He however denied that he had been abusing any drugs at the material times.

25.It is Mr. Woo’s professional opinion that the defendant ‘is suffering from psychosis which may be related to his drug abuse habit.’ The defendant however has poor insight into his mental health problem as well as poor compliance to treatment. The defendant’s risk of re-offending is ‘not low’ unless he can manage his drug abuse habit and mental health problem properly.

26.According to psychiatrists Dr. Tang and Dr. Chow, the defendant had suffered from drug induced psychosis since January 2013. His mental condition deteriorated in late 2013 with increased occasions of hearing voices. The defendant attempted to slash his wrist in December 2013 and was admitted to Kwai Chung Hospital. He was labelled as a special care case in view of his violent history. Medication was prescribed, which, coupled with abstinence from illicit drugs allowed his mental condition to improve. Yet the defendant resumed ‘ice’ consumption after being discharged from hospital and the voices returned. The defendant was admitted to A & E in April 2014 for yelling at night and was judged to be suffering from amphetamine intoxication. The defendant’s mental condition improved after his incarceration in June 2014. The defendant has been in stable condition since.

27.It is the professional opinion of the psychiatrists that the defendant did suffer from drug induced psychosis which had influenced his behavior, but since his abstinence from drugs and the administration of medication, the defendant’s current mental condition is stable and no psychiatric inpatient treatment is required.

28.Based on the professional opinions of the psychologist and psychiatrists, it would appear that the defendant might have been affected by his previous abuse of ice and other dangerous drugs when he chose to commit the offences. It would also appear that since his abstinence from drugs and being put on medication, his condition has improved. It is safe to say that the root of the defendant’s problem is his usage of dangerous drugs.

29.Mr. Yuen for the defendant referred to various cases to assist this court in sentencing. In 4 of those[1] cases, the defendants were made subject of either a Hospital Order or a Detention Centre Order and therefore the sentences are not helpful in our situation.

30.In the case of HKSAR v Ling Kar Lik (凌嘉曆) HCMA 865/2011, the appellant, who suffered from depression and required regular psychiatric outpatient treatment, threw 3 bottles of inflammable liquid into the corridor outside her residence. He was charged with arson and assaulting a Police officer. In relation to the arson charge, the learned magistrate found that although the appellant committed the offence under the influence of alcohol, his action warranted an immediate custodial sentence and adopted a starting point of 12 months’ imprisonment. On appeal, Deputy High Court Judge Patrick Li (as he then was) upheld the sentence and commented that it was on the lenient side.

31.In the case of HKSAR v Lam Siu Kei (林肇基), DCCC 453/2011, the defendant pleaded guilty to one charge of arson and was sentenced to 8 months’ imprisonment. There the defendant had some money dispute with the owner of a fruit stall, which later resulted in the defendant throwing lit newspapers into the corridor outside the stall. The stall did not suffer any loss. The learned Deputy District Judge Kwok (as he then was) found that there were peculiar circumstances in the case in that there was no evidence to show that the defendant intended to cause the stall serious damage; that the defendant returned to the stall immediately after throwing the lit newspaper and surrendered himself to the Police; that it was a spur of the moment thought that caused the defendant to commit the offence; and that the defendant himself had been threatened by the stall owner the day before during their money dispute. The learned Deputy Judge found that the defendant’s action was more of a venting of his frustration, albeit incorporating some degree of revenge. A starting point of 12 months’ imprisonment was adopted and the full one third discount was given for the defendant’s plea of guilty.

32.In our present case, all three charges took place at Hei Lai House of Wah Lai Estate, where the defendant himself resides. The victims were all neighbours of the defendant. The damage to the property in each charge is minor. This is the first time that the defendant had committed arson. Charges 1 and 2 took place on 2 consecutive days. Charge 3 took place 8 weeks later. There was premeditation in the commission of the 3^rd charge since the defendant had to acquire petrol in order to spray it outside the premises. There was also a specific intention on the defendant’s part ‘to scare his neighbours’. Despite the opinions of the psychologist and the psychiatrists, it is the defendant’s own case (as gleaned from the defendant’s psychologist and psychiatrist reports) that he was not under the influence of illicit drugs at the actual time of the commission of the offences. He knew clearly what he was doing.

33.Arson is a serious offence. It is fortunate that the damage to property is minor and no one was injured. Be that as it may, I find that there is a need to incorporate an element of deterrence in the sentence. It must be stressed that whatever grievances one might have against one’s neighbours, there is no scenario where one is entitled to set fire to the neighbor’s property in order to make a point or to scare them. Should one chooses to do so, one will have to suffer the full consequences for his or her action. I find that under the circumstances, an immediate custodial sentence is the only proper sentence.

34.Bearing in mind the seriousness of the nature of the charge, but noting the minor damage to property, that the defendant has no previous similar convictions and the mental condition that the defendant was in, I find that a proper sentence in each of the 3 charges is that of 12 months’ imprisonment, discounted to 8 months’ imprisonment in recognition of the defendant’s guilty plea.

Totality

35.Charges 1 and 2 were committed just one day apart, it can be argued that the defendant was still acting in the heat of the moment and I will order the sentence in charges 1 and 2 to be served concurrently.

36.Charge 3 took place some 8 weeks later and on yet another different premises. Having taken a step back to consider the situation, I will order that 4 months of charge 3 be served consecutively to the sentences of charges 1 and 2.

37.The total sentence is therefore 12 months’ imprisonment for the 3 charges.

Compensation Order

38.Pursuant to s.73(1)(b) of the Criminal Procedure Ordinance, Cap.221, and with the consent of the defendant, he is ordered to pay to the victim in each of the 3 charges the following amounts: $300 to PW1, $100 to PW2 and $200 to PW4. With the consent of the defendant, the compensation money to be deducted from the defendant’s bail money.

Effect of imprisonment on the defendant’s present DATC order

39.Pursuant to section 6A(1)(b) of the Drug Addiction Treatment Centres Ordinance, Cap.244, since the defendant has been sentenced to a term of imprisonment of more than 9 months, his DATC detention order imposed on 19 June 2014 in KTCC 1444/2014 shall cease to have effect.