HKSAR v. Tan Ying

DCCC 318/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 318 OF 2015

--------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.The defendant (female) (aged 46), appeared before me and faces two charges. The first charge is Arson, contrary to sections 60(1) and (3) and 63(1) of the Crimes Ordinance, Cap 200. The second charge is Criminal Intimidation, contrary to sections 24(a)(i) and 27 of the Crimes Ordinance, Cap 200.

2.The defendant pleaded guilty to the first charge and not guilty to the second charge.  As a result of plea bargaining, upon the guilty plea tendered by the defendant to the first charge and her admission of the amended Summary of Facts, the prosecution was content to leave the second charge on the file and not to proceed without the leave of the court.

Facts

3.This Arson case has a somewhat unusual domestic background which took it away from the usual cases the courts have came across.

4.The witnesses in this case are the son and daughter of the defendant. At the material time on 26 March 2015, at their home in a public housing estate in Sau Mau Ping, Kowloon, a dispute broke out between the defendant and her 21 year old son over a trivial matter.  According to the facts, the defendant complained that her son did not wait for her and the daughter for dinner. Being scolded, the son, feeling upset, left the dining table and returned to his bedroom, banged the door three times and locked himself inside.

5.The defendant, obviously disturbed and upset by the son’s acts, has lost temper and control of herself.  She firstly poured some Japanese sake onto the floor outside her son’s bedroom and she got some tissue papers and a lighter and then ignited the tissue papers and threw it onto the sake, trying to light up the sake.  However, the sake was not flammable.  She then went back into the kitchen and got a chopper.  The daughter witnessed the incident and tried to stop her mother but with no avail.  The defendant became very emotional and shouted loudly to her son outside his bedroom, saying that “If I cannot burn you to death, I will chop you to death.  Are you coming out or not?”  The defendant then used the lighter to burn the door curtain hanging outside the son’s bedroom.

6.At this moment, the police officers arrived, and the defendant then put out the fire after learning the police were there.

7.The defendant was immediately arrested.  Under caution, she told the police that she wanted to burn the door curtain in order to make her son to come out.  She also wanted to use the chopper to break open the bedroom door in order to take the son out.  She said she had no intention to hurt the son and she remained silent in the subsequent interviews.

8.The allegation by the prosecution in the arson charge was that without lawful excuse, she damaged by fire the door curtain and then intending to damage the door curtain.

9.This charge has been amended once and the present charge is a somewhat lesser offence in that the gravamen of the offence is not upon the injury on the person, ie her son, but rather the damage of the door curtain.

Background and Criminal Record of the Defendant

10.The defendant has no similar record of Arson.  Rather, she has two previous shoplifting records, one in 2011 and the last being 2015.  In both cases, she was given a lenient sentence of fine.  As to her background, I have had the opportunity of receiving the mitigation by her counsel, Mr Alan Ng and also I have a very helpful probation officer’s report which gave me a detailed account of the defendant’s rather unfortunate background.

11.According to the report, the defendant was born in China, and she had an education level of Form 3 level in the mainland.  She had an average school performance and after she left the school at the age of 16, she began to work in a factory until the time when she was around 26, when she married her first husband in China.  They had a son born out of the marriage.  However, the marriage did not last long and after the breakdown of her first marriage, she then moved back to the home town to work.  Later she got married with her second husband in 1998, who is a Hong Kong resident.  After the marriage, they moved to Shenzhen.  Mr Ho, the second husband, was the sole breadwinner of the family.  In 2001, she gave birth to a daughter from her second marriage.

12.In 2004, the defendant was granted Single-entry Permit to come to Hong Kong.  She brought along her daughter to join Mr Ho, the second husband, and also her son in the following year.  Regrettably for the defendant, the second marriage did not work well as well.  According to the report, Mr Ho did not quite accept her son from the first marriage, and later, the marriage worsened, as Mr Ho has stayed away from home often and did not bring money home.  From 2011 to 2013, Mr Ho had actually moved apart from the family and lived in China by himself.  The defendant and her family had no other alternative but started to live on the CSSA.

13.It is noted that it is during that time when the defendant committed the first Theft offence when she was in lack of money.  Later, Mr Ho came back to the family again in the end of 2013.  The defendant later filed a divorce petition and the marriage was finally dissolved in 2014.  The custody of the daughter was granted to the defendant.  Mr Ho, however, did not move away. He chose to live under the same roof with the defendant and the children, as he has to wait for the reallocation from the Housing Department for another housing unit.

14.On the other hand, the son did not do well in his studies.  He quit his diploma course and he has idled himself at the home, according to Mr Ng, for three years, and he was unemployed.  Most of the time, the son just kept himself inside the room and behaved like a “hidden youth”.

15.According to the probation officer’s report, overwhelmed by these marital problems, the defendant was first seeing a psychiatrist in 2011 for depressed mood and suicidal ideas.  She was also diagnosed to have Adjustment Disorder.  She was also admitted to the United Christian Hospital Psychiatric Unit from 2 January 2015 to 21 January 2015 for low moods and impulsive wrist slashing after being arrested for the theft offence the second time.  The defendant received regular psychiatric follow-up at the UCH Psychiatric Clinic and was put on medication.  As to the second offence of theft, the defendant said to the probation officer that she had no intention to steal and that she had no awareness that she had taken items from the supermarket when she was shopping.

16.After this offence, the court has firstly obtained a psychiatric report for the defendant to see whether the defendant was fit to plead, due to the background of this case.  The report told the court that the defendant has a history of Adjustment Disorder in the past but her current mental condition is stable.  She had obviously many personality difficulties, but in-patient psychiatric treatment is said to be not necessary.  Further outpatient psychiatric treatment is recommended in her case.

17.Both to the psychiatrist and also to the probation officer, the defendant had denied ever wanting to hurt her son.  She said she had bottled up much anger and frustration arising from her son’s idling at home and also her having to live with her ex-husband under the same roof so she agreed that the incident was only a triggering point to spark off her pent-up emotions.  The defendant said that after the incident, she had already made an apology to her son, who had also asked for the mother’s forgiveness, and also, she would learn to control herself and not to cause harm to the family, and therefore the defendant herself also asks for a chance to receive open supervision, and she would promise to receive continuous psychiatric treatment.

18.On the other hand, the defendant’s ex-husband had also acknowledged his part played in this incident, that due to his irresponsibility, he was the one who is to be blamed for the breakdown of the marriage and ultimately for the depressed mood of the defendant.  The son also acknowledged his misdeed, and, he promised to find a full-time job to engage himself, and the daughter promised to spend more time on her study.  All of the family members were supportive and they all ask the court to consider probation supervision for the defendant so that the mother could return to the family soon.

19.In mitigation, Mr Ng had already submitted to the court for consideration four letters written by the ex-husband, the defendant’s son and daughter and also the defendant herself, which actually reflects what I have just told the probation officer’s report has said considering their supporting and remorseful attitude.

20.All in all, the probation officer, after considering the defendant’s remorseful attitude and the family’s support, was of the view that the defendant can benefit a lot from probation supervision under professional guidance and under psychiatric treatment, so the probation officer recommends 18 months’ probation supervision with six additional requirements, and they are as follows:-

(a) she shall reside and work as directed by the probation officer;

(b) she shall receive continuous psychiatric outpatient/in-patient treatment from psychiatric clinics or hospitals as directed by her psychiatrist;

(c) she shall take medication as directed by her psychiatrist;

(d) she shall be of good behaviour and keep the peace;

(e) she shall keep in touch with the probation officer; and

(f) she shall attend community-based psychiatric rehabilitative programmes.

Sentencing considerations

21.Arson is always a very serious offence visited by immediate custodial sentence.  The potential threat to human lives and the damage to properties cannot be overlooked.  Very often, we can see irresponsible behaviour of a defendant committed the arson offence out of revenge or with a triad background in order to threaten a victim.  In this present case, it was however committed in an unusual domestic setting.  The defendant was the mother of the victim, who was her son.  This particular defendant was however obviously fraught with depression and emotional instability due to marriage failures and also to the condition of her son, who had been a “hidden youth” for the last few years. For years, she has shouldered all these untoward happenings on her and therefore developed into depression, and also have suicidal attempts by slashing her hands.

22.Thus, the fierce argument with her son on the date of the offence was clearly a sparking-off incident, triggering off her anger and depression, so the defendant was clearly in an uncontrollable state, which took this offence away from ordinary offences.

23.All in all, I considered the following mitigating factors attaching to this defendant and the circumstances of her offence are cumulatively sufficient to justify a departure from the usual prison sentence:-

(i) the Arson case was of a pure domestic setting arising out of a trivial dispute between mother and son;

(ii) the defendant has pleaded guilty all along;

(iii) the defendant had suffered depression and Adjustment Disorder due to long-term marital discord with her ex-husband;

(iv) apparently the defendant had lost control of herself during the dispute with her son in the incident;

(v) the family finally got back together after the incident. The ex-husband and the son were all very apologetic and the son has promised to get a job and improve the relationship with the mother. The ex-husband, on the other hand, also had admitted his responsibilities, and, according to Mr Ng, is now working to save the marriage;

(vi) the probation officer’s report is positive and is of the view that the defendant could benefit a lot from supervision and professional guidance under the psychiatric treatment; and

(vii) although the defendant has two past criminal records of theft, those are not similar offences to the present offence, and obviously those two offences have much to do with her past psychiatric problem and also personal problem.

24.Therefore, I am of the view that probation, as recommended, is really a suitable way of dealing with the defendant.  As said by the Court of Appeal in the case of Leung Pui San, CACC 317/2007, sentencing is an art which must carefully be moulded not only to the category of offence but to the offender.  I am also of the view that the circumstances of this case provide an opportune moment in which to stress the need for individual justice.

25.Finally, and having considered all the mitigating factors in the round, I come to the view that the defendant should be given a chance to reform herself and to receive a period of 18 months’ probation supervision as recommended.

26.Mr Ng has already informed the court that the defendant is willing to do probation and to abide by the six special conditions as I have just spelt out in Paragraph 20.  The defendant has also been warned of the consequences of committing a breach of the probation order.