HKSAR v. SAFDER MAJAD

DCCC 793/2021

[2022] HKDC 724

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 793 OF 2021

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REASONS FOR SENTENCE

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Introduction

1.  The defendant (D)  is convicted on his own plea of 1 Charge 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.  Particulars of Offence stated that on 4 March 2021, at Room A, Flat B, 3^rd Floor, Glory House, Nos 172-174 Hennessy Road, Wanchai (“the said flat”), without lawful excuse destroyed or damaged by fire the said flat and items therein, property belonging to himself or another, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged, and being reckless as to whether the lives of others would be thereby endangered.

Facts of case

2.  According to the Summary of Facts admitted by D, Glory House was a 11-storey residential building, with 3 flats on each floor.  The unit where the offence occurred, situated on the 3^rd Floor of the building, was a sub-divided flat.  D lived at Room A, Room B was occupied by a Vietnamese family, Mr Nguyen, his wife Madam Hua, their 4-year-old son and their 61-year-old Aunt while Room C was occupied by a Pakistani male.

3.  At about 02:20 hours on 4 March 2021, D returned to the unit with his girlfriend.  They had an argument which disturbed the Nguyen family, resulting in an exchange between D and Madam Hua.  The girlfriend left the unit at about 02:38 hours.  At around 03:00 hours D knocked on the door of Room B and had another exchange with Madam Hua, saying his argument with his girlfriend was none of Madam Hua’s business.  D then continued to make noises in the corridor, resulting in Madam Hua calling the police.  The police came to the unit at 03:09 hours to deal with the complaint and left at 03:15 hours.  D left the building at 05:41 hours.

4.  At about 05:46 hours Madam Hua was woken up by a strong smell of smoke.  She noticed through the window that there was a fire in Room A with smoke emitting therefrom.  She immediately called the police.  Police and fire services officers arrived at the scene at 05:51 hours and the fire was put out at about 06:26 hours.  The Nguyen family was rescued and sent to hospital for treatment.  All of them suffered from elevated blood carboxyhaemoglobin level with soot in their nostrils and on their face, the Aunt also had tenderness over her right lower anterior chest wall.  They were treated with 100% oxygen and were admitted for follow-up treatments.  Madam Hua and the Aunt were discharged on 5^th March, the son on 6^th March and Mr Nguyen on 8 March 2021.

5.  A Government Chemist attended the scene of fire and located 2 origins of fire in Room A.  He concluded in his Report that “the fire was the result of a deliberate act and the fire could have been set deliberately by igniting combustibles, such as bedding items, with naked flame.”

6.  CCTV of a nearby dispensary in O’Brien Road captured D wandering on the pavement outside the dispensary between 05:42 and 07:54 hours.  D returned to the scene at about 09:00 hours and was found to be incoherent in his speech by the police who tried to make enquiry with him about the cause of the fire.  D was later arrested by the police at about 11:30 hours on the same day inside Wanchai Police Station.  He was found to be in possession of 2 workable lighters.  He now admits that he had set fire to the flat on the day without lawful excuse with the necessary intents as set out in the Charge.

7.  I have examined the photographs of the scene submitted by the prosecution.  Extensive damages were caused to the interior of Room A.  Some damages could also be observed on the walls of the corridor.  No serious damage had been caused to the interior of Room B or Room C.  There is no information before me as to the costs of repair to the said flat as a result of the fire.

Background of D

8.  D is 45 years old, born in Pakistan on 3 January 1977.  He is married with 2 sons, aged 10 and 6 respectively.  His wife and sons live in Pakistan.  Having received 2 years of secondary education in Pakistan, D came to Hong Kong when he was 16 years old and have been working as a factory worker in the past 20 odd years to support his family in Pakistan.  In 2019 he worked as a security guard in Tsuen Wan for 1 year, with a monthly salary of HK$10,000.  He was unemployed at the time of his arrest in March 2021.  He has 2 previous criminal records, “Theft” in 2002 and “Possession of Dangerous Drugs” in 2010, and was fined on both occasions.

Mitigation

9.  In mitigation, Ms Alva who represented D, submitted that D lost his job in 2020 and had been relying on CSSA since around May that year to support his living.  Before his arrest, he was cohabiting with his Filipino girlfriend at the said flat.  D had not been in good health with history of appendix removal, syphilis, liver abscess and tongue ulcer.  He also suffered from hypertension.  She submitted 6 mitigation letters, written by D himself, his girlfriend, his brother and 3 other close friends, the contents of which all stated that D was a good friend, good father and good son, and was the main bread winner of the family.  D is now very remorseful for what he had done and promised not to re-offend in the future.

10.  Ms Alva submitted that D committed the offence after he had a quarrel with his girlfriend and became distressed.  He wanted to hurt himself and his subsequent actions were influenced by alcohol and were not premeditated or planned.  His acts in committing the present offence were out of his character and on the spur of the moment.  There was no triad conduct, intimidation, blackmail or retaliation issues involved, and no inflammable liquid such as petrol, thinner or kerosene had been used.  Fortunately, the victims were discharged soon after they received medical attention and had no permanent injuries.  Ms Alva urged the court to adopt a merciful approach in sentencing D and sought a starting point much lower than 4 years, citing HKSAR v Kung Pak Fu [2008] 2 HKCLRT 240, CACC 429/2007, HKSAR v Godhaniya Haja Samat [2018] HKCA 885, HKSAR v Loku Galappaththige Pramuka Salinda,unrep CACC 46/2016 and HKSAR v Cheung Wing Siu, unrep CACC 76/1998 in support.

11.  The Psychiatric and Psychologist Reports both attributed the conduct of D to his chronic problem of alcohol consumption, and methamphetamine use.  The Psychologist concluded that D’s risk of violent re-offending is at the high end of moderate level if his alcohol and drug use is not properly managed.  The risk will be greatly moderated if he quits alcohol and drug use.  Ms Alva submitted that D had indicated his willingness to tackle his alcohol and drug dependency and promised to follow the treatments required.  The medical Report indicated that D had no physical abnormality or disability except for mild hypertension.

Sentence

12.  Arson under section 60(2)  of Cap 200 has always been regarded as a very serious offence by the Court. In Kung Pak Fu the CA made the following remarks in relation to this offence:-

“15. 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. And indeed, it is clear from the line of relevant judicially decided cases that such conduct will result in heavy casualties as well as substantial economic losses.

16. In order to protect the lives of properties of the public from serious threats, acts of arson – in particular those relating to triads or involving intimidation or revenge – must be sanctioned with heavy, deterrent sentences.

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23. …arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for this offence because its gravity differs from case to case, particularly in cases involving family disputes or souring of relationships. The court must impose a sentence which properly reflects the gravity of the particular case.”

13.  The offence in Kung Pak Fu occurred on the 9^th floor of a residential building in Mongkok where the appellant lived with his wife and 3 children.  During a family dispute at about 11 pm the appellant poured a bottle of essential oil onto the floor at the centre of the living room and set fire to it using a piece of newspaper and a lighter.  The fire was put out by the son within 10 minutes.  The appellant suffered secondary burns covering 30% of his total body area while his young daughter suffered secondary burns, covering 2% of her total body area and mainly to her right toes, and fully recovered by the time the appeal was heard.

14.  The appellant was convicted after trial in the Court of First Instance, and was sentenced to 6½ years imprisonment.  On appeal, the CA reduced the sentence to 4 years.  In doing so, the CA commented, inter alia, that the case stemmed from nothing more than a family dispute and the appellant committed the offence on the spur of the moment and in extreme anger.  The case had nothing to do with triad, intimidation or revenge.  Apart from the influence of alcohol, his peculiar conduct was the result of his irritation with the disrespectful behaviour of his children.  The appellant was in fact the major victim in the incident.  He was aged over 50 and had a clear criminal record.

15.  In Loku the appellant was convicted after trial of the offence under consideration.  The offence occurred on the Ground Floor of a village house on Lamma Island.  Upon learning that his Filipino girlfriend had deserted him and returned to the Philippines with their young daughter, D set fire to some clothes in the bedroom in a moment of despair with an intention to erase the memory of them.  The fire spread to other items in the room.  It was eventually put out without injury to any person.  The learned trial Judge accepted that the offence was committed on a spur of the moment.  The appellant did make efforts to put out the fire at some risk to his personal safety and no inflammable liquid was used in setting the fire.  He was sentenced to 3½ year imprisonment.  On appeal, the CA, after reviewing a number of previous cases, considered the sentence to be excessive on the facts of that case and reduced it to 3 years.

16.  For the present case, I accept that D committed the offence on the spur of the moment after his dispute with the girlfriend and under the influence of alcohol, maybe dangerous drugs also.  I also accept that though there were some exchanges between him and Madam Hua prior to the arson, the offence was not committed out of revenge as otherwise the fire would not have been started only in Room A.  Further I do accept that there was no triad conduct, intimidation, blackmail or retaliation issues involved, and no inflammable liquid had been used.

17.  However, I cannot lose sight of the fact that this case occurred in the middle of the night in a divided flat on the 3^rd floor of a 11-storey residential building in the middle of a densely populated area in Wanchai.  D left the scene after having set fire leaving it unattended, thus uncontrolled.  Had it not been the alertness of Madam Hua and the swift and highly professional response by the police and fire services, the consequence could have been disastrous.  4 innocent neighbours, the Nguyan family, suffered injuries and had to be admitted to hospital for treatment, one up to 4 days.  I understand from the prosecution that all members of the Nguyan family had been fully recovered without any permanent physical injuries.

18.  In my view, the facts of this case are more serious than those in Loku and more akin to those in Kung Pak Fu.  I bear in mind the comments by the CA that there is no sentencing guideline for this offence, the court must impose a sentence which properly reflects the gravity of the particular case.  Having taken all relevant matters into consideration, I consider a starting point of 3 years 6 months to be appropriate in this case.  Apart from the 1/3 discount for his timely guilty plea, I see no other mitigating factor.  For the offence D is facing, he is sentenced to 2 years and 4 months’ imprisonment.