HKSAR v. LOKU GALAPPATHTHIGE PRAMUKA SALINDA

CACC 46/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 46 OF 2016

(ON APPEAL FROM DCCC NO. 751 OF 2015)

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J U D G M E N T

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1. The applicant seeks leave to appeal against his conviction on 28 January 2016 after trial by Deputy District Judge Kathie Cheung of a charge of Arson with intent on 13 July 2015, contrary to sections 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap. 200 and the sentence of 3 years and 6 months’ imprisonment.

2. The applicant was unrepresented in his application for leave to appeal against conviction, but represented by Mr Robert Andrews in his application for leave to appeal against sentence.  With the consent of the parties, the court is dealing with the latter application on the papers, whereas an oral hearing has been conducted in respect of the former application.

The charge

3. The Particulars of Offence of the charge averred that without lawful excuse the applicant had “damaged by fire the main door, the door frame, walls, ceiling, one window, one air-conditioner and one exhaust fan, property belonging to another, intending to damage such property or being reckless as to whether any property would be damaged, and being reckless as to whether the lives of others would thereby be endangered.”

The prosecution case

4. The applicant, a Form 8 [1] Recognizance holder, was the tenant of G/F, No. 8 Wang Long Village, Yung Shue Wan, Lamma Island.  It was the prosecution case that on the evening of 13 July 2015, the applicant started a fire on the mattress in the bedroom of the flat by burning some clothing, which had caused around $90,000 in damage.

5. In a video recorded interview conducted under caution, the applicant said that he had burnt the clothing of his estranged former girlfriend, who had returned to live in the Philippines with their child, in order to erase their memory.  When he became aware that the fire had got out of control and developed into a larger one, the applicant tried to put it out with water.  The fire eventually resulted in extensive damage to the flat and other property belonging to the landlord.  The Fire Services Department was summoned and the fire was extinguished.

The defence case

6. The applicant testified that he set fire to the clothes on the bedroom floor, after which he left closing the door behind him.  He left the bedroom and closed its door.  Later, he saw and smelt smoke in the living room as it came out from the bedroom.  So, he opened the bedroom door and, having seen the fire in the bedroom, he tried to put it out with water.

Reasons for verdict

7. Having said that there was no dispute that the applicant had started the fire by setting fire to some clothing in the bedroom, which fire had caused damage to the premises of his landlord.  She noted of the applicant that “he tried to put out the fire but in vain.”  The judge said that the only issue was whether the defendant’s state of mind was culpable at the time he started the fire.  Then, having said that there was an issue as to the location of the seat of the fire, on the bed on the prosecution’s case or on the floor on the defence case, the judge said she treated “..the fire as having first started on the bedroom floor.”  Nevertheless, the judge said that she rejected the submission of Mr Andrews for the applicant that such a finding provided a complete defence to the charge.

8. Of the circumstances in which the applicant started the fire, the judge said:[2]

“ According to the defendant, he contacted his girlfriend shortly before the incident of fire and confirmed that both she and their daughter were in Philippines. He felt sad and returned to the Premises. He sat on the sofa and had two cups of wine but he was not in any way affected by the wine. Then, he went to the bedroom for no special reason. When he saw the clothes, he decided to burn them. In other words, he formed the intention to light a fire in the bedroom.

Then, he put the clothes on the floor and left the bedroom to get a gas canister (Exhibit D1) and a lighter.  When he went to the kitchen area to get these items, he knew what he was going to do, namely, to burn the clothes.  This is a deliberate act.  He had the time to change his mind but he did not.”

9. Then, the judge went on to say:[3]

“ Having seen the fire had started, he closed the door of the bedroom, sat in the living room and let the fire burning in the bedroom. It can be seen from photos 10, 14 and 15 of Exhibit P1 that the size of the bedroom is small. There were only a bed and two small wardrobes in the room. The wardrobes were put side by side next to the bed without any gap in between. The space on the floor, as seen from the photos, is limited. At this stage, the defendant, being an adult with normal intelligence, would have appreciated that there would be a risk that by letting the fire burning in the bedroom and given there were other flammable items in the room such as clothes in the wardrobe, mattress and beddings, that eventually the bedroom or even the whole premises would be on fire. Further, given there were families living on the floors above the Premises as well as families living in other buildings next to and nearby the Premises, he would have appreciated the risk of endangering the lives of others if the Premises were on fire.”

10. Of the applicant’s culpability, the judge said:[4]

“ By leaving the room and shutting the door, the defendant was fully aware of the circumstances and the risk that both property and lives would be endangered. It was unreasonable for him to take the risk. I do not accept that he genuinely did not appreciate or foresee the risks involved in his actions despite the fact that he might be feeling sad for losing his family.”

11. In the result, the judge concluded:[5]

“ I find the defendant was aware of the risk of his action at the time he set fire and it was unreasonable in the circumstance for him to take that risk. In other words, the defendant was reckless at the material time.”

Reasons for sentence

12.    Of the damage caused in consequence of the fire that the applicant had started, the judge said: [6]

“ Later on, the fire on the clothes spread to other items in the bedroom. As a result, the room and other parts of the Premises were damaged. The cost of repair was about $90,000.”

13. Of the nature of the offence, the judge said:[7]

“ Arson is an extremely serious offence. As the gravity differs from case to case, the Court of Appeal has not laid down any sentencing guideline in respect of this offence.”

14. Then, she said that she had regard to the observations of this Court in HKSAR v Kung Pak Fu [8].  Of those observations, she said “…given Hong Kong is a densely populated city, unexpected occurrences of fire are bound to cause extremely serious injuries and deaths or losses of properties.  Therefore, acts of arson, in particular those relating to triads or involving intimidation or revenge, must be sanctioned with heavy deterrent sentences.”

15. The judge went on to state that she accepted that the applicant “committed the offence on a spur of moment, that no inflammable liquid was used in setting the fire and he did make efforts to put out the fire.”

16. In contrast, to those factors mitigating the applicant’s culpability, the judge said that she had regard to the fact that the appellant “did not burn the clothes in a container but burnt them near other flammable materials in a small bedroom.”

17. Of the consequences and the risks involved in the conduct, the judge said:[9]

“ As a result, the fire spread to other part of the Premises causing substantial damages with a repair cost at around $90,000. And one must not lose sight of the fact that there were families with young children living next to or nearby the defendant. The defendant’s conduct was highly unwise and might lead to extremely serious consequences. ”

Sentence

18. The judge stipulated a starting point for sentence of 3½ years’ imprisonment, which sentence she imposed on the applicant, there being no mitigating factors.

Grounds of appeal

(i)  Conviction

19. In an attachment to Form XI, by which the applicant gave notice of his applications for leave to appeal, the applicant contended:

“ ...this conviction and sentence are absurd, because in my defence i burned a cloth accidentally. my room on fire, and the fact that no one is hurt, and the fact that I was the one fighting to put the fire out. I felt that the judge should have taken into account of my honesty and the fact that it was an accident and not intend for them for the charge should be at least dropped to the accident category of arson.”

20. In his oral submissions the applicant said that he did not intend to damage property or endanger life.  Because he was mentally ‘down’, because his child had been taken from him, he said that he did not realise the danger that resulted from his burning the clothing.

(ii)  Sentence

21. In the grounds of appeal against sentence, Mr Andrews submitted that the judge had erred in stipulating a starting point for sentence of 3 years and 6 months’ imprisonment.  Also, the judge had erred in stating that the fire spread “to other part(s) of the Premises”.[10] In assessing the risk to the safety of life the judge placed undue weight on the urban density of Hong Kong, having regard to the actual circumstances of this fire, namely that “there was no one in the vicinity whose life had actually been imperiled.”  Finally, it was submitted that the judge had given insufficient regard to the lack of aggravating and/or serious features in the commission of the offence, together with the fact that the applicant had made a sustained effort to extinguish the fire and express genuine regret for having caused the fire.

The submissions of the respondent

Conviction

22. Mr Andrew Li invited the Court to note that it was not the defence case that the fire was caused accidentally.  The applicant acknowledged that was done deliberately.  The judge had found that in doing so the applicant was reckless as to damage to property and reckless in endangering life.  There was no proper basis to challenge those findings.  Accordingly, the application for leave to appeal against conviction ought to be dismissed.

Sentence

23. Mr Li acknowledged that the judge was in error to have determined in the course of her reasons for sentence that “the fire spread to other parts of the premises causing substantial damages”.  On the other hand, he submitted that the judge’s statement that “Hong Kong is a densely populated city” remained true even though the fire had occurred in the village house on Lamma Island.  He contended that, in fact, the risks involved in fire in that island setting were even greater than in an urban environment, given the absence of firefighting equipment to be found in high-rise buildings.

24. Mr Li invited the Court to have regard to the judgments of this Court in The Queen v Chow Shui Ming [11], The Queen v Tsoi Tin [12] and HKSAR v Cheung Wing Siu [13] as being relevant to the appropriate sentence to be imposed in a case in which the defendant was found guilty of damaging property by fire, intending to or being reckless as to whether any property would be damaged and being reckless as to whether the lives of others would thereby be endangered.  He submitted that the sentence of 3½ years’ imprisonment imposed on the applicant was not manifestly excessive.

A consideration of the submissions

Conviction

25. Obviously, there is no merit whatsoever in the applicant’s home-made grounds of appeal against conviction.  Accordingly, the application for leave to appeal against conviction is refused.

Sentence

26. In The Queen v Chow Shui Ming this Court was concerned about an offence of attempted arson, in which the judge was satisfied that there was intent in the applicant not only to start the fire but also to endanger the lives of his family.[14]  Marital discord had led the applicant to splash his wife and three children with petrol at the dining room table after which he had attempted to use a lighter to ignite joss sticks.  This Court refused an application for leave to appeal against sentence, in circumstances where the judge had stipulated a starting point for sentence of 4 years’ imprisonment and imposed a sentence of 2½ years’ imprisonment on the applicant on his plea of guilty.

27. In HKSAR v Cheung Wing Siu this Court refused an application for leave to appeal against a sentence of 3 years’ imprisonment imposed on the applicant on his plea of guilty to an offence of arson being reckless as to whether the life of another would be endangered.  In the course of a quarrel with his father, the applicant had started the fire by pouring inflammable fluid over furniture, after which he had fled.  In the particular circumstances of the case, the judge had not afforded the applicant a one-third discount for his plea of guilty, which determination is this Court approved.

28. In The Queen v Tsoi Tin this Court allowed the appeal against sentence, quashed the sentence of eight years’ imprisonment and in its place imposed a sentence of five years’ imprisonment.  The appellant was convicted after trial of damaging by fire machines and other property in a knitwear factory intending to endanger the life of the watchman or being reckless as to whether his life would be thereby endangered.  The appellant, who was a workman at the factory, had been discovered asleep beneath one of the machines by the watchman.  After a confrontation between the two of them, the appellant sprinkled kerosene in the premises and set them alight.  For his part, he escaped through a window on the fourth floor of the premises, injuring himself in the process.  In quashing the sentence, this Court observed that the appellant had a clear record and that no lives have been lost although considerable damage had been done by the fire.

29. It is to be noted that in all three cases to which the respondent has made reference an accelerant was used in the fire.  Obviously, that is a factor of considerable aggravation in the commission of the offence.  An accelerant by its nature speeds the progress of a fire considerably and time is of the essence in fighting fires.  Also, in two of the cases the offender fled the scene of the fire.  By contrast, in the instant case not only was no accelerant used but also the applicant, far from fleeing the scene of the fire, took active steps to extinguish the fire.

30. Whilst it is the case that the judge had regard to those two factors the judge gave no specific reason why, in those circumstances she stipulated a starting point for sentence of 3½ years’ imprisonment.

31. In my judgment, in the particular circumstances of the commission of this offence, it is reasonably arguable that the sentence imposed on the applicant was manifestly excessive.

Conclusion

32. Accordingly, I grant the applicant leave to appeal against sentence.

[1] Form No. 8 as set out in Schedule 1 to the Immigration Regulations, Cap. 115A.

[2] Reasons for verdict, paragraphs 16-17.

[3] Reasons for verdict, paragraph 19.

[4] Reasons for verdict, paragraph 20.

[5] Reasons for verdict, paragraph 21,

[6] Reasons for sentence, paragraph 2.

[7] Reasons for sentence, paragraph 5.

[8] HKSAR v Kung Pak Fu[2008] 2 HKCLRT 240.

[9] Reasons for sentence, paragraph 7.

[10] Reasons for Sentence, paragraph 7.

[11] R v Chow Shui Ming (CACC 335/1996; unreported, 1 November 1996) .

[12] The Queen v Tsoi Tin (CACC 659/1976; unreported, 28 September 1976) .

[13] HKSAR v Cheung Wing Siu (CACC 76/1998; unreported, 14 May 1998) .

[14] R v Chow Shui Ming, page 7.