HKSAR v. CHAN YUN YIP

DCCC 1158/2022

[2023] HKDC 1729

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1158 OF 2022

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Arson[1]". He set fire at a parking lot in Tsing Yi; 13 commercial vehicles and a trailer were burnt. The monetary value of the property damage was at least $8 million.

Summary of Facts

2.  About 3:26 a.m. on 25 April 2022, there was a fire at Skye Carpark, No.1 Interchange, Container Port Road South, Tsing Yi ("the Carpark").  A total of 13 commercial vehicles and a trailer which regularly parked there were on fire and damaged.

3.  Of the burnt vehicles, 5 refuse collection vehicles belonged to Baguio Green Group ("Baguio"); 7 commercial vehicles belonged to Asia Waste Management Limited (valued at $7.7 million in total); and 1 medium goods vehicle and a trailer belonged to Man Hing Container Transportation Co. Ltd. (valued at $320,000 in total).

4.  Mr. Li (PW1)  was a manager of Baguio.  About 3:35 a.m. on the same day, he received a voice message sent from an unknown number to his mobile phone (5400 4456).  The message contained foul language and the speaker mentioned burning vehicles.

5.  On 26 April 2022, DPC 20055 (PW4)  arrested the defendant for "Arson" in relation to the fire at the Carpark.  Under caution, he said "The vehicles there were all burnt by me", which was post-recorded in PW4's police notebook and signed by the defendant.  Upon search, a lighter was found on the defendant.

6.  In his video recorded interview, the defendant admitted, in the presence of a social worker, that he had called the phone number 5400 4456 with "133" at 3:40 a.m. on 25 April 2022.

7.  Call records of the defendant's mobile phone showed that an outgoing call to 5400 4456 (with "133" added before the phone number)  was made by his phone at 3:34 a.m. on 25 April 2022.

Mitigation & Sentence

8.  The defendant is 57 and has 3 conviction records, none of which were related to "Arson". Defence counsel Mr. But informed me that the defendant is single and resides alone in a public housing unit. He became unemployed in June 2021 and relied on social welfare. Mr. But has fairly revealed that according to PW1's witness statement, the defendant was laid off by Baguio in June 2021 due to an operational change. Afterwards, PW1 received many harassing phone calls from the defendant expressing his grievances.

9.  In mitigation, Mr. But submitted that the defendant has been a mental patient since 2002. He was diagnosed with paranoid schizophrenia. In 2015, he began to have delusions of being followed and monitored. The defendant defaulted his psychiatric follow-up in 2016. His case was reactivated in June 2022 when he was brought to a public hospital by CSD officers for insomnia. Psychiatric medication was prescribed to him with follow-ups. He was last seen by a psychiatrist at East Kowloon Psychiatric Centre in September 2023 and was found to be mentally stable.

10.  Mr. But explained that according to the defendant's recollection (the events of which did not actually happen), his colleagues at Baguio often harassed him and his younger brother (who did not reside with the defendant). The defendant thus became angry and wanted to take revenge. One day, he went to the Carpark intending to damage just one Baguio's vehicle. He happened to have found one which was unlocked. He lit up some newspaper and put it inside the vehicle. Mr. But submitted that the defendant now accepts that he was reckless; he had failed to realize that other vehicles parked nearby would be burnt too. Mr. But stressed that the defendant's act of taking revenge was attributable to his psychiatric illness.

11.  There are no sentencing guidelines for "Arson" offences. After reviewing a number of cases, the Court of Appeal in HKSAR v Kung Pak Fu [2008] 2 HKCLRT 240 held :-

"… 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[2]."

12.  I have carefully considered all mitigation advanced by Mr. But. I have also obtained the defendant's latest psychiatric report from Siu Lam Psychiatric Centre, which states that his current mental condition, upon medication titration, showed further improvement and is stable. Outpatient follow-up and treatment are recommended.

13.  Although the defendant is a psychiatric patient, he is the sole cause of the fire in this case. He should not have discontinued his psychiatric follow-up in 2016. It is most fortunate that no person was injured in the fire. I also assume that all the damaged vehicles were properly insured. On the other hand, one can easily imagine that a fire in a parking lot full of commercial vehicles could be deadly and catastrophic.

14.  The Court of Appeal in HKSAR v Tse Chun Kit [2021] HKCA 281 (CACC 86/2020, unreported Chinese judgment)  held that the proper starting point for a 22-year-old young man (with a clear record), who acted in concert with another young man, setting fire to a targeted vehicle[3] parked in a multi-storey carpark which resulted in 25 more cars being burnt[4] should be 6 years' imprisonment. Bearing in mind the defendant's psychiatric condition at the time of the offence, I consider a starting point of 5.5 years' imprisonment appropriate and just in the present case. With the timely guilty plea, the sentence is reduced to 44 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 44 months' imprisonment.

15. I also invite the Commissioner of Correctional Services to arrange for the defendant to continue his outpatient psychiatric treatment.