HKSAR v. WONG CHUN KIT

DCCC 1029/2017

[2018] HKDC 360

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1029 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant (male) (43 years of age) pleads guilty to one charge of arson intending to destroy property and being reckless as to whether lives of others would be endangered, contrary to sections 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap 200.

2.  According to the summary of facts, the defendant was living with his mother and siblings in a three-storey village house situated in Lau Fau Shan, New Territories.  He lives alone inside a hut on the rooftop whilst all the family members lived on the second floor.  At around 9 pm on 16 September 2017, the defendant’s mother was watching television at her room when she suddenly heard loud noises from the rooftop.  She ran with other family members outside the house and saw the defendant standing at the rooftop which was on fire.  The defendant was also throwing some items such as books, magazines, shelves, wooden boards and glass into the fire and looked excited.  A neighbour of the defendant tried to put out the fire by using a hose but was of no avail.  Later the police and firemen arrived but they discovered that the door leading to the rooftop was locked.  Attempts to break down the door were also in vain as it had been blocked by furniture that was on fire.  In the end, the firemen had to climb into the rooftop from the neighbouring house and put out the fire.

3.  The defendant was arrested.

4.  Two lighters were seized from the scene.  A washing machine belonging to the defendant’s mother (valued at $1,000) was damaged by fire.

5.  In passing sentence I have carefully considered everything said by Ms Liang, together with the letter from the defendant’s family members.  The defendant has a clear record.

6.  I have also carefully considered the content of the two psychiatric reports that I have obtained before sentencing.  The defendant has a known history of cough mixture dependence syndrome, alcohol harmful use and paranoid schizophrenia.  His current condition was said to be stable after medication and abstinence from illicit drug and alcohol.  He is mentally fit to plea and a Hospital Order is not recommended.

7.  I accept that the offence was caused by deteriorated mental condition after a work injury as a delivery worker in last July after which the defendant stopped working and remained idled at home.  He was dissatisfied with his employer over the compensation claims.  Due to the stress which was exacerbated by consuming alcohol together with energy drink, he started to hear vague voices asking him to remove furniture and burn them.  Ms Liang however has confirmed that the defendant knew that what he was doing was unlawful and wrong but he just could not control himself.

8.  In mitigation, Ms Liang said the defendant was only educated up to Form 3 and he started working at the age of 16 and has different jobs such as transport worker and security guard.  He was married twice but his first marriage ended up in divorce because of financial reasons.  He separated with his second wife for the same reason but he is now in a stable relationship with his girlfriend for 2 years.

9.  The defendant suffered from abuse of alcohol and cough mixture at his 20’s.  Starting from 2008, he started to develop psychotic symptoms such as auditory hallucination and persecutory delusion and was later diagnosed with cough mixture dependence and paranoid schizophrenia.  He was admitted to Castle Peak Hospital 3 times between 2009 and 2011.  He also had a history of attempted suicide by cutting his wrist in 2009.  Thereafter he attended follow up sessions as an outpatient at Tuen Mun Substance Abuse Clinic and his last appointment was in December 2017 after the offence when he was observed to be stable.

10.  On the day of offence, the defendant drank a bottle of Red Bull (energy drink) and 300ml. of red wine together with a double dosage of antipsychotic medicine.  He then set fires to some clothes in the washing machine with his lighter. 

11.  The family members all supported the defendant and they wrote a letter to the court asking for forgiveness on behalf the defendant.  They said the defendant was very remorseful and he committed the offence on impulse.  The defendant was said to be kind at heart and no claim will be made against the defendant for the damage to the properties in the house.

12.  There are no guidelines for offences of arson.  In HKSAR v Kung Pak Fu [2008] 2 HKCLRT 240 the Court of Appeal, after reviewing a number of cases, said at paragraph 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.  Ms Liang referred me to a number of cases from the District Court and the Court of Appeal and submitted that a starting point of 18 months’ imprisonment be adopted for the defendant. 

14.  In Kung Pak Fu, (supra.) the sentence after the appeal is 4 years’ imprisonment but the fact of the case was more serious.  The defendant’s daughter suffered secondary burns covering 2% of body total area and the defendant himself was hospitalized for 3 months.

15.  In HKSAR v Li Lin Shum also known as Li Sum DCCC  974/2014 the defendant set fire to rubbish and miscellaneous items in a rear lane on two occasions in the early hours of morning.  No one was injured and the defendant also has a clear record.  The court adopted a starting point of 2 years’ imprisonment and sentenced him to 16 months because of his plea.

16.  In HKSAR v Loku Galappaththige Pramuka Salinda DCCC  751/2015 the defendant started a fire on a pile of clothes in his flat after learning that his estranged girlfriend and daughter had left Hong Kong.  No accelerant was used.  Fire spread to other parts of the premise causing substantial damage ($900,000).  The defendant made effort to put out the fire and had remained at the scene throughout.  The defendant was sentenced to 3½ years’ imprisonment after trial but on appeal, it was reduced to 3 years’ imprisonment.

17.  In HKSAR v Hung Pang Chi DCCC 815/2012, the defendant set newspapers on fire at the unit opposite his flat after being unhappy with the noise from the renovation works there.  The defendant was found to act under impulse as a result of the need to sleep and stress after recent loss of his father.  The fire was during daytime and no accelerant was used.  He put out the fire himself quickly and there was no injury and no property damaged.  The starting point was 12 months’ imprisonment and the defendant was sentenced to 8 months’ imprisonment on account of his plea.

18.  In HKSAR v Liu Li DCCC 486/2016, the defendant set fire in the bed room of family home after failing to locate her personal items and finding her husband.  The fire was during daytime and no accelerant was used.  No one was injured. Incident arose out of a relationship that was breaking down and had nothing to do with triads, intimidation or revenge.  The court adopted a starting point of 3 years and reduced it to 2 years’ imprisonment upon her guilty plea.

19.  Each case very much depends on its own facts and circumstances.  However, there should be no misunderstanding that offences of this character, under whatever emotional stress, are always to be viewed by the court as serious and would be visited with prison sentences.

20.  I am satisfied by reason of the nature of the offence, absent the recommendation of a Hospital Order, only a period of immediate custodial sentence is appropriate.  By suggesting 18 months as a starting point for sentence, Ms Liang urged me to take into account that the defendant was suffering from paranoid schizophrenia at the time of the offence.  

21.  Clearly the defendant acted out of impulse as a result of stress after his work injury and being idled at home.  This is not a case concerning triads, intimidation or revenge.  The fire was not during daytime but luckily it was at about 9 pm at night when other occupants and neighbours were still awake.  No one was injured and the damaged washing machine was only valued at $1,000.

22.  However, I cannot lose sight of the fact that during the incident, the defendant made no effort to put out the fire.  Instead, he threw accelerants into the fire and the doors to the rooftop was even locked and blocked by furniture making the job of the firemen more difficult and they had to reach the rooftop by climbing over from the adjacent rooftop.  This, in my judgment, is a factor of considerable aggravation in the commission of the offence.  It was sheer luck that the fire was controlled and put out in time before it was spread out to the floors below or even to the neighboring house.

23.  While it was true that the defendant was suffering from paranoid schizophrenia, there was no excuse for him not to take medication as prescribed and worse still to even mixed it with alcohol and energy drink which only exacerbated his conditions and eventually contributed to his committing the offence.  He may not have intended to endanger his family members or neighbours but it was a consequence of the irresponsible actions of the defendant that lives and properties of those persons were endangered and this consequence cannot be ignored.

24.  Having carefully considered all the circumstances of the case, I am satisfied the proper starting point after trial is 24 months’ imprisonment.  After giving the defendant full credit for his plea of guilty, the sentence is reduced to 16 months.  The defendant has a hitherto clear record and because of this, I shall further reduce his sentence by 1 month to 15 months’ imprisonment.

25.  I shall also refer the two psychiatric reports to the Correctional Services Department for their consideration and follow up action.