HKSAR v. LI LIN SHUM ALSO KNOWN AS LI SUM

DCCC 974/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 974 OF 2014

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Reasons for Sentence
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1.  The defendant pleaded guilty to two charges of arson, both contrary to section 60(1) and (3) of the Crimes Ordinance.

2.  The facts are straightforward.  In relation to charge 1, the defendant had set fire to some items in the rear lane of Apliu Street in Sham Shui Po.  The smoke from the fire was discovered at around 3.45 am.  Fireman arrived soon after and the fire was put out.  In relation to charge 2, the defendant was seen rushing from the rear lane of Yen Chow Street in Sham Shui Po.  Police saw flames at the rear lane.  Defendant was intercepted and he admitted to lighting up newspapers to burn various items in the rear lane.  Under caution, the defendant said he burnt the items because they were blocking the way.  In subsequent cautioned interviews, he admitted to setting the fires in charges 1 and 2 with a lighter that he bought for the specific purpose of burning the items. 

3.  The damage resulting from the fire in charge 1 was one rear iron gate, two air-conditioners and 300 iron frames.  They all belonged to one company and were worth a total of HK$138,000.  The loss was covered by insurance and no one was injured. 

4.  In relation to charge 2, two air-conditioners around the fire were damaged and one adjacent wall was blackened.  They all belonged to one company which suffered a total loss of $19,600.  The loss was not covered by insurance.  No one was injured.

5.  The defendant had no relationship with either company.  Forensic examination showed that no accelerants were used in either of the fires.

6.  Two psychiatric reports were prepared on the defendant earlier.  He was found not to be suffering from any psychiatric disturbances and is mentally fit to plea. 

7.  In mitigation, I am told that the defendant is 64 years old, his wife passed away 10 years ago and that the defendant has been receiving CSSA since 2006.  Mr Law for the defendant told me that the defendant was under the influence of alcohol at the time of the offence.  Mr Law submitted that, in view of the defendant’s age and the fact that the two offences are similar in nature, their sentences should be made concurrent. 

8.  A Probation officer’s report and a psychological report was ordered to be prepared on the defendant before sentencing.  In gist, the Probation officer does not recommend the defendant for probation.  The psychologist’s report assessed, among other things, that the defendant’s risk of re-offending is moderate. 

9.  The defendant has two previous convictions dating back to 1970 and 1972.  They were for a shop break-in and fighting in a public place.  I do not take that as an aggravating factor given that they took place so long ago.

The Reports

10.  According to the Clinical Psychologist Ms Chung’s report, the defendant showed little remorse for his offences and lacked insights into his problems, which included his resorting to using alcohol to cope with his negative emotions leading to weakened self-control and poor social judgment.  The defendant showed a violent tendency when he was drunk and he wrongly believed that his offences were acceptable ways to alert others to the objects blocking the alleys undermining the possible serious consequences of his misdeeds. 

11.  There is, however, no evidence to suggest that the defendant suffers from any psychopathology. In view of the defendant’s age, unstable employment history, drinking problem, violent tendency, criminal record, psychological profile and the nature of the present offence, it is Ms Chung’s opinion that there is a moderate risk of the defendant re-offending. 

Sentencing cases

12.  Mr Choi for the prosecution referred to the case of HKSAR v Kong Man Lung, CACC408 of 2012.  There the applicant pleaded guilty to three similar charges of arson.  The fires were started in the early hours of 30 May 2012 at the Mut Wah Street temporary hawker bazaar.  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 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. Upon arrest and under caution, the applicant admitted that he had played with a lighter and ignited things. 

13.  The applicant suffered from psychiatric illness but having perused the relevant reports the learned trial Judge found that there was no ground for a Hospital Order to be imposed.  They were the applicant’s first convictions for arson despite a number of previous convictions.  A starting point of 3 and half years’ imprisonment was adopted and the applicant was sentenced to 2 years and 4 months’ imprisonment upon discount for his guilty plea. 

14.  The Court of Appeal held that “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.”

15.  Because of there being three seats of fire, the Court found that the applicant’s conduct was persistent, and that given that psychiatric treatment was not warranted, “the Judge had no choice other than to determine it appropriate to impose a sentence of imprisonment” and upheld the sentence.

16.  Mr Choi also referred to the case of Chau Yuk Kuen v The Queen, CACC402/1980.  The facts in this case are far more serious than ours.  The appellant poured some kerosene across the front door of her boy friend’s flat and set it alight. The end result was that her boy friend, in an attempt to put out the fire, suffered very severe burns.  His 89 year old mother tripped while she tried to escape and hurt herself slightly. 

17.  I do not find this case useful in assisting my sentencing, given that the Court found that there were extensive mitigating circumstances. The Court of Appeal felt “that the tariff sentence for this type of appeal should be at least 4 to 5 years”, but found that the mitigating circumstances justified the final sentence of 2 years imprisonment upon a guilty plea.

18.  Mr. Law for the defendant referred to a number of District Court cases to support his proposition that in arson cases where there are no person injured, where there is no revenge element involved and where the damage to property is relatively minor, the usual starting point is that of 2 to 3 years’ imprisonment.  Mr. Choi for the prosecution does not disagree with this proposition.

19.  In the case of HKSAR v Hung Pang Chi, DCCC815/2012, the defendant was charged under section 60(2) and (3) of the Crimes Ordinance, which is a different charge to the one that our defendant is facing.  Their maximum sentence is however the same of life imprisonment.  There the defendant set fire to newspapers outside a room that was under renovation.  The learned Judge found that the defendant had acted out of impulse as a result of sleep deprivation from the noise of the works and the stress after the recent loss of his father.  It was specifically found that the case did not concern triads, intimidation or revenge.  The learned Judge also took into consideration that the fire was during daytime and not at night when occupants would be asleep, no accelerants were used and the fire was quickly put out by the defendant himself.  No one was burnt and there was no damage to the room.  A 12 months’ imprisonment starting point was adopted. 

20.  In the case of HKSAR v LeeHonLeung, DCCC1039/2010, the defendant set fire to a shoe, a slipper and attempted to set fire to a tissue paper in the late hours of the night inside a public housing building with 40 floors. The defendant had been receiving psychiatric treatment since 2004 and he attended follow-up treatment at a psychiatric centre.  No in-patient treatment was considered necessary and he was considered fit to serve any sentence. 

21.  The learned trial Judge took into account that the fires were small in scale and put out in time causing no injury to persons and little damage to property. Yet, the fires were set late in the night when people would be sleeping and most vulnerable.  It was also not the first time that the defendant had been convicted of the offence of arson.  A starting point of 3 years’ imprisonment was adopted for each of the four charges, resulting in a concurrent sentence of 2 years’ imprisonment after plea.

22.  The case of HKSAR v Lai Keung, William, DCCC656/2012 is another case where there are rather exceptional mitigating circumstances.  There the defendant was of clear record, university educated and was gainfully employed.  He however suffered an emotional breakdown when he had broken up with his partner and was given some drug by his friend, wrongly, to ease the pain.  Under the influence of the drug, he started to throw things out of his home’s window and lit a fire inside his flat, requiring firemen to break into the flat to put out the fire.  A wall and a door and some items were burnt down. 

23.  The learned trial Judge sought guidance from the case of HKSAR v Law Chun Man, CACC325/2011 on the factors to be taken into consideration when sentencing for arson, in particular at paragraph 36 where the Court of Appeal said that it is necessary to consider the potential damage to property and harm to person that could have resulted from the conduct of the arsonist. 

24.  The Judge then found that the fire was inside a residential block with a high potential of harm to persons and property in the densely populated area and that puts the case in a “very much more serious category”.  A starting point of 4 years imprisonment was adopted for the charge of arson being reckless as to whether life would be endangered contrary to section 60(2).  Having taken into consideration of substantial mitigating circumstances, the defendant was sentenced in the end to 2 years and 2 months’ imprisonment after plea. 

25.  In the case of HKSAR v Chan Chung, DCCC7/2014, the defendant resided on the 24th floor of a public housing block. He set fire to the wooden door of the unit directly above his unit on four occasions.  The defendant was apprehended two days after he last set fire to the door.  He was found to have a cotton ball soaked with a flammable organic solvent and a lighter upon search.  Under caution, the defendant said he set the fires because he was annoyed with the water dripping from the floor above.

26.  Psychiatric reports revealed that the 76 year old defendant suffered from hypertension, severe stomach illness and the after-effects of stroke.  There were no signs of mental impairment other than a mild cognitive impairment. 

27.  The learned Judge found that although the defendant did not have the intention to hurt anyone, he also did not have any means to extinguish the fires.  His reckless act could lead to an uncontrollable fire, which would spread quickly given the close proximity of the housing units. He also found that the offences were not committed out of impulsiveness, that the fires were set in the small hours, and that the defendant had deliberately chosen that particular time to set the fires.  It was sheer luck that the fires had not left the door before being extinguished.  A 5 years starting point was adopted, with a final overall sentence of 4 years imprisonment after plea.

28.  In the case of HKSAR v Kwan Suen Fu, DCCC684/2012, the defendant used a thinner mixture to start a fire at the home of his former lover, when she refused to return a jacket and a mobile phone to him.  Psychological report suggested that the commission of the offence was associated with the defendant’s habitual use of violence, poor emotional management and ineffective stress coping towards his negative emotions.  Psychiatrist report suggested that the defendant was a chronic drug abuser with a history of drug related psychosis.  Inpatient treatment was not indicated although continuous follow-up treatment was recommended.   There was no suggestion that the offences were committed whilst the defendant was under the influence of drug or other mental illness. 

29.  The learned Judge observed that the fire was in a multi-storey residential building, putting the lives of other occupants of the building at risk.  The damage to the flat was however not extensive and the fire had not spread to any other flat.  It was also noted that the case arose out of the breakdown of a relationship and had nothing to do with triads, intimidation of revenge.  The fire was during daytime and not at night and no one was injured.  The Judge however found that the use of the thinner mixture to start the fire indicated pre-meditation.  A starting point of 4 years’ imprisonment was adopted.

Sentence

30.  The maximum sentence for arson under section 60 is that of life imprisonment.

31.  The defendant is 64 years old and of relatively good record.  His previous convictions were back in the 70s, when he was 20 years old.  He committed the present offences, it seems, to alert others of the nuisance that the rubbish and the items that were accumulated in the rear lanes were causing. 

32.  The fires in both charges were in the rear lanes of streets in Sham Shui Po.  It would appear that they were both in an open area.  The property damage in relation to charge 1 was relatively high in value at $138,000. The loss was covered by insurance and no one was injured.  The property damage in charge 2 was worth less at $19,600, but the loss was not covered by insurance.  No one was injured. 

33.  There is no evidence to suggest that the defendant’s conduct involved triads, intimidation or revenge.  Forensic examination did not find any accelerant used on either of the fires. 

34.  Both fires were however started in the wee hours when people would be asleep.  There is however no evidence to suggest that the fire would have spread easily.  The fire in charge 1 did require the attention of firemen who managed to put out the fire ‘after a while’.  The Summary of Facts is silent on how the fire in charge 2 was put out, and Mr. Choi for the prosecution confirmed that it was not a serious fire. 

35.  Bearing in mind the seriousness of the offence of arson, but also taking into consideration all the facts referred to above, I find that the two offences committed by the defendant are in the lower end of the spectrum of seriousness.

36.  Having taken into consideration the cases referred to above, as well as the facts of the case, I find that a proper starting point for each of the two charges is that of 2 years’ imprisonment. 

37.  I find that there are no aggravating factors.  I also find that the only mitigating factor is the defendant’s guilty plea. 

38.  I will grant the defendant the full one-third discount and sentence him to 16 months’ imprisonment on each charge.

Totality

39.  The two offences took place one month and 20 days apart.  They took place at different locations albeit in the same Sham Shui Po district.  They are two separate and distinct offences with the defendant as the only connection between them.  They cannot be said to be of one single transaction. Yet, to make the sentences wholly consecutive would be too severe a sentence.

40.  Stepping back and applying the principle of totality, I order that 6 months of charge 2 to be served consecutively to the sentence in charge 1, the balance concurrently. The final sentence for the two charges is therefore that of 22 months’ imprisonment.