HKSAR v. CHENG CHUN WAI

DCCC 310/2022

[2023] HKDC 177

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 310 OF 2022

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REASONS FOR SENTENCE

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1.  On 23 February 2023, D was found guilty after trial of one charge of arson[1]. He was absent and now he is brought before me with warrant executed. He has timely pleaded guilty to one charge of possession of liquor for sale without a liquor licence[2] and one charge of person responsible for carrying on a catering business failing to comply with directions of Secretary for Food and Health[3].

Charge 1: Arson

2.  On 10 August 2021, the Police mounted an anti-unlicenced liquor premises operation with a warrant against an unlicenced bar located at Room B3, 1^st Floor, On Lok Industrial Building, Nos. 109-111 Yuen Long On Lok Road, Yuen Long, New Territories, Hong Kong (“the Premises”).

3.  At about 2340 hours on the same day, the police laid ambush at the rear staircase near the Premises.  Subsequently the police requested entry into the Premises but the occupants inside refused to open door. After warnings given, police broke into the Premises. In the course of breaking in, an explosion was heard.

4.  Subsequently, the police managed to enter the Premises by force and D was arrested by police.

5.  After being cautioned, D stated voluntarily, “I was burning the odds and ends only.  I didn’t expect such a blaze.  I didn’t mean it.” D also stated that in the video-recorded interview, inter alia, that he burnt expired utility bills at about 2340 to 2345 hours on 10 August 2021 at the DJ stage in the Premises with a metal container and a gas canister.

6.  A wall measured 2.5m x 10 m dividing the Premises and the adjacent flat was collapsed. Fire damage or heat damage was seen on the stacked sofas as well as the air-conditioner.

7.  The cause of the explosion, as the court found, is the result that D burned the utility bills in a metal container at the time when the police entered the Premises by force. In doing so, D hooked the canister against the edge of the metal container. The prolonged heating burst the canister which caused the explosion.

8.  After hearing all the evidence, the court drew an irresistible inference that D heard the police at the entrance of the Premises and he immediately destroyed the evidence that showed he was the person in charge of the unlicensed bar.

2^nd Charge: Possession of liquor for sale without a liquor licence

9.  In the Premises, the police found, inter alia, dice, cups, ashtrays, soft drinks, an ice maker, amplifiers, 20 sofa like stools, 3 refrigerators, one speaker and 5 drinks buckets.

10.  967 cans of beer and 34 bottles of wine (“Beverages”)  were seized amongst other items from the Premises.  The Government Chemist confirmed that these Beverages contain more than 1.2% of ethyl alcohol by volume and are liquor.

11.  At all material times D, being the owner and person in charge or control of the Premises was in possession of the liquor for the purpose of sale at the Premises and no valid liquor licence was issued to the Premises.

3^rd Charge: Person responsible for carrying on a catering business failed to comply with directions of Secretary for Food and Health

12.  The Premises was a premises as regulated by the direction published in the Gazette in G.N. 474 of 2021 and no “LeaveHomeSafe” venue QR code was found at or outside the Premises.  At the material time, the Premises was in operation as a bar in contravention of the direction and D was the owner and person in charge or control of the Premises.

Mitigation

13.  D is 27 with a clear record. His education is up to Form 3.

14.  D used to work at a hair salon, but since the pandemic he had lost his job.  He then started to work at the Premises.  The bar at the Premises were in the process of obtaining a liquor licence.  The bar had not earned any money yet and was in deficit. According to D, the present case took place on the first day of operation of the bar & he received no income from the bar.

15.  D currently depends on his savings and residing with his elder sister and mother since unemployment.  He planned to be a hair stylist again upon release.

16.  According to D, he had made compensation of $200,000 to the owner of the Premises.  He submitted the owner’s letter to confirm the payment.

17.  D told the court today his girlfriend is pregnant and D wants to take care of her as soon as he has finished serving his sentence.

Consideration

18.  Arson is a serious offence.  The consequence is usually very serious, particularly in Hong Kong which is densely populated, and the court must be strict in sentencing to protect the public.  The maximum sentence is one of life imprisonment.

19.  There are no guidelines as to sentencing cases of arson because it is neither possible nor practical to fix a tariff for arson given the varied circumstances in which these offences can arise.  For this reason, references in previous cases are often of limited assistance.  Each sentence would depend on the facts of each case.

20.  The defendant has a clear record at the time of the commission of the offence.  He is convicted of “driving a motor vehicle with alcohol concentration above the prescribed limit” after the present case. I will treat D with clear record.

21.  In the present case, it was not a pre-meditated incident. The fire was broken out during the night time within an industrial building. One would expect people working night-shift still stay and there are lots of varieties of commodities stored within the building.  The fire within the Premises posed a serious threat to life and safety of these people and threats to the properties. 

22.  I have seen photographs of the Premises and find that the damage the fire caused was extensive.  The risk of damage to other property could not be classified as low.  There had been explosion in this case resulting a wall of 2.5m x 10m within the Premises collapsed into the adjacent flat.  The offence should fall on the higher end of the scale of seriousness.

23.  It is lucky that no one was injured in the present case and that the property damaged was within the Premises and in particular the wall connecting the adjacent flat. 

24.  The defence referred to a number of arson cases from the District Court and submitted that a starting point of 3 to 4 years is appropriate.

25.  After considering all the factors, including the fact that D had paid compensation to the owner for Charge 1, I adopt a starting point of 3 years’ imprisonment. 

26.  Though D’s girl friend is pregnant recently, this does not amount to any mitigating factor because he is the author of his own misfortune.

27.  There is an aggravating factor.  D’s commission of the offences has the effect of undermining the administration of justice.  He had destroyed the evidence by burning the utility bills when the police gained entry into the Premises and for this I will enhance the sentence by 3 months’ imprisonment, leading to a sentence of 3 years 3 months’ imprisonment.

28.  For Charge 2 and 3, I adopt 6 weeks’ imprisonment for each charge.  Upon the guilty plea, I reduce each charge to 4 weeks’ imprisonment.

Totality

29.  Given the overlapping factual matrix for the 3 charges, I order that the sentences in charge 1, 2 and 3 to be served wholly concurrently, leading to a sentence of   3 years and 3 months’ imprisonment.