HKSAR v. TSANG SIU WAN, WINNIE

DCCC 325/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.325 OF 2011

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of arson under s.60(1) and (3) [1] and 63(1)[2] of the Crimes Ordinance, Cap.200.

2.  Particulars of the charge are that, the defendant on 13^th February 2011, outside Room 3, 1^st floor of no.44 Un Chau Street, Sham Shui Po, without lawful excuse, damaged by fire one floor mat, the property belonging to TAM Ping-chiu, intending to damage such property or being reckless as to whether such property would be damaged.

Facts

3.  The premises involved is a residential unit sub-divided into cubicles for renting out. At about 9am on the charge date, PW1, a tenant of one of the cubicles, found smoke entering his cubicle accompanied by a burning smell. PW1 checked and saw the defendant, who was the tenant of another cubicle, squatting outisde PW1’s cubicle burning some newspaper and PW1’s door mat on the floor outside PW1’s cubicle. PW1 shouted at the defendant who fled back to her cubicle. The matter was reported to the Police and the defendant was arrested, resulting in the present charge of arson.

Previous conviction

4.  The defendant has one previous conviction for possession of dangerous drugs in 2008 when she was fined $1,000 at the Kwun Tong Magistracy.

Mitigation

5.  The defendant had been receiving psychiatric treatment at the time of the arrest. The defendant had been diagnosed with psychiatric disorders since 2008. I am told that before she commited the offence she had been hallucinating. It would appear that she committed the offence because of those conditions. Mr. Luk for the defendant pointed out that the cost of the damaged mat was $50 and no one was injured.

6.  Mr. Luk relies on the case of HKSAR v Lau Fong Yu, CACC 601/2002 to suggest that a starting point of less than 3 years is appropriate for our present case. In Lau Fong Yu, the applicant faced the more serious charge under s.60(2) of the same Ordinance. There the applicant used thinner liquid to light a fire, which if got out of hand could have caused great harm to others. Mr. Luk submits that the damage to the floor mat in our present case was merely as a result of recklessness in burning the newspaper on the defendant’s part and is a less serious situation than that in Lau Fong Yu.

Sentence

7.  Two updated psychiatric reports were ordered to be prepared on the defendant prior to sentence. It is the opinion of the psyciatrists that the defendant has a history of polysubstance abuse, which was directly associated with the psychotic symptom she suffered earlier. She is however now stable, having been under regular psychiatric treatment. In-patient treatment is deemed unnecessary but the defendant should continue with follow up out-patient treatment.

8.  Arson is always a very serious offence, especially when fire is started in a densely populated residential building, as is in our present case. Having said that, I am mindful that the defendant is being charged with the less serious s.60(1) of s.60.

9.  Using Lau Fong Yu as a reference, I adopt a starting point of 30 months’ imprisonment. I will grant the defendant the full one-third discount in recognition of her guilty plea even though it was entered only on the first day of trial and reduce the sentence to that of 20 months’ imprisonment.

[1]     60 

(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another-

(a)  intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered, shall be guilty of an offence.

(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.

[2]Section:   63(1)  A person guilty of arson under section 60 or of an offence under section 60(2) (whether arson or not) shall be liable on conviction upon indictment to imprisonment for life.