THE QUEEN v. SHUM HON KAI AND ANOTHER

1988, No. 51

H E A D N O T E

Sentence - Arson - (Contrary to Section 60(2)-(3), Cap, 200) Setting fire to door of flat on 9th floor of multi-storey domestic premises in middle of night where appellants pleaded guilty on the basis of being reckless as to whether the lives of the occupiers would be endangered thereby.

IN THE SUPREME COURT OF HONG KONG

IN THE COURT OF APPEAL

(HIGH COURT CRIMINAL CASE NO. 189 OF 1987)

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J U D G M E N T

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Hooper, J.

1. The appellants are seeking leave to appeal against their sentences of 8 years imprisonment in respect of an offence of arson. They had both pleaded-guilty in the High Court to the offence under 5:60(2) and (3) of the Crimes Ordinance Cap. 200 of the Laws of Hong Kong on the basis that they intended to damage Room 920, Hok Sum House, Lung Hang Estate, Shatin, and were reckless as to whether the lives of the occupiers would be endangered thereby.

2. The Trial Judge took 10 years as a starting figure and reduced it to 8 years as a result of the mitigating circumstances. The facts are as follows: -

3. Mrs Cheng Man-hing lives at room 920, Hok Sum House, Lung Hang Estate. She has two daughters LAU Kwai-fung aged 17 years, LAU Kwai-yung aged 15 years and a son LAU Chun-kit aged 9 years. Her three children reside with her.

4. In April 1987 the 2nd appellant became acquainted with LAU Kwai-fung and a relationship developed between them. This relationship continued until 23.6.87 when they separated. In the course of the relationship LAU Kwai-fung was introduced by the 2nd appellant to his friend the 1st appellant. Whilst she was going out with the 2nd appellant LAU Kwai-fung's cousin, CHENG Hung-hing, became in urgent need of money. LAU Kwai-fung introduced him to the 2nd appellant and ultimately he obtained a loan of $4,000 from him. CHENG Hung-hing subsequently needed more money and approached the 2nd appellant again. At a. rendezvous with both the 1st appellant and the 2nd appellant CHENG received a further $3,000.

5. Despite numerous attempts to get CHENG Hung-hing to repay these monies no repayments were forthcoming. The loans remain outstanding.

6. The 2nd appellant became angry at; his inability to obtain repayment of the monies. He held LAU Kwai-fung responsible for the loans and felt she and her family may have been hindering him in his endeavours to have the monies repaid.

7. After discussing the matter over a meal on the 23rd August 1987 the 1st appellant and the 2nd appellant agreed upon a plan to set fire to the entrance door of the flat in which LAU Kwai-fung resided. After finishing their meal they drove in the 1st appellant's car to a petrol station where they purchased approximately one gallon of petrol. They then drove to LAU Kwai-fung's flat.

8. On arrival at the block of flats they reconnoitred the area near the flat on the 9th floor. They then returned to the ground floor where they removed their shirts. They poured the petrolinto a yellow bucket and then proceeded to LAU Kwai-fung's flat at room 920. This was at about 1 a.m. on the 24th, August 1987.

9. The 1st appellant poured the petrol over the front doon of the flat. The 2nd appellant remained at the lift to ensure a speedy escape. The 1st appellant then lit some pieces of waste paper which he used to ignite the petrol-splashed door. When he did so flames suddenly erupted causing serious burns to his left arm and hand. The 1st appellant rushed to the lift and on arrival at the ground floor the 1st appellant and the 2nd appellant fled the, scene, leaving the yellow bucket, still containing some petrol, inside the lift.

10. After his arrest the 1st appellant received medical treatment at Queen Elizabeth Hospital. He was found to be suffering from deep secondary burns over the left arm, left forearm left hand, and the left side of back. These burns covered 10% of his total body area.

11. At the time the 1st appellant set fire to the door of the flat Mrs CHENG Man-hing and her three children were inside the flat. Also in the flat was a 17 year old male YIP Mo-chi who was the boyfriend of LAU Kwai-yung. They had been watching television earlier on that evening and all retired to bed around midnight. Mrs CHENG slept on the balcony, YIP Mo-chi and LAU Kwai-yung slept on the living room floor, and LAU Kwai-fung and LAU Chun-kit in other rooms. LAU Chun-kit's room was the closest to the front door.

12. The family was awakened by the fire and retreated to the balcony where they raised the alarm. LAU Chun-kit was momentarily trapped in his room and in the process of escaping to the balcony suffered burns. The furniture in the living room caught fire, smoke filled the room, and the family used water to put out the fire. In the process of extinguishing the fire Mrs CHENG was injured. After about 10 minutes firemen arrived.

13. Both Mrs CHENG and her son were taken to Prince of Wales Hospital. Mrs CHENG suffered a cut on the sole of her right foot. LAU Chun-kit was found to have deep partial thickness burns to the face (4% of area), right arm (3.5%) and left arm (3.5%).

14. Mr Alexander Lau who also appeared for the 1st appellant at the court below stressed in his submission to that court that the 1st appellant did not obtain any sort of financial gain or reward from such an act but acted because of his deep and blind loyalty to his friend who recruited him to assist him in an act of revenge, that is to say, just to set fire to the doorway of this apartment. He stressed the fact that his client had a clear record and was at the time of the offence a young boy of 19 years of age having been born on the 23rd June 1967, and that the 1st appellant was seriously injured at the time at his left side which has left scars perhaps of a permanent nature. Mr Lau who also appears on this appeal further stresses his plea of guilty on the basis of recklessness, his youthful age, his deep sense of remorse, shown by the fact that he surrendered voluntarily to the' police and his cooperation with the police.

15. Mr Polson who also appeared for the 2nd appellant at the court below stressed to that court the fact that the 2nd appellant would not have lent money to a stranger and only did so because hewas quite infatuated with Miss Lau. He also submitted that the second sum of $3,000 which was lent to Cheng actually came from the lst appellant. Further that what happened was that Miss Lau, sometime after this, broke off her relationship with the 2nd appellant and took up with a new boyfriend. This upset the applicant a great deal and that, coupled with the refusal of the cousin to repay the loans, was something that he kept tossing over and over in his mind and he just became more and more angry at the thought of it. It was his contention that the 2nd appellant had been driven into a corner and was at his wits end and in such circumstances he was possibly less culpable in a criminal sense than persons who commit the same crime with a different intention. He also stressed the fact that the 2nd appellant was a young man of 23 years of age who having done a serious wrong was showing remorse and had in fact surrendered himself to the police.

16. Mr Polson also represents the 2nd appellant on his appeal and reiterates the 2nd appellant plea of guilty, on the basis of recklessness, his remorse and voluntary surrender to the police, frank admissions and favourable background report.

17. We have been referred by both counsel to criminal appeal 402/80 (C.A.) Chan Yuk Kuen where, in a similar case, another Division of this Court commented that it felt the tariff sentence for this type of appeal should be at least 4 to 5 years. That however was a case where the applicant had acted on the spur of the moment in a moment of extreme stress. The applicant was a widow who struck up a relationship with the victim who lived in the same block of flat which relationship became intimate. Then she found out that the victim had another woman. On the day in question she went to the victim's flat and found the other woman there. In the course of an argument she was humiliated and assaulted. She suffered abrasions and bruises on her face and arms. She was infuriated. She ran home and grabbed a can of kerosene, poured it across the front door of the victim's flat and set it alight. The court commented that her act injured not only the victim her ex-boyfriend but also endangered the lives of all the occupants of that block of flats.

18. It was against that background that the court made its comments.

19. We do not consider that the court in that case attempted to set down any guide lines. Indeed the degree of seriousness in these types of cases may vary considerably and we consider that to attempt to lay down guide lines would be unwise.

20. The sentence in Chan Yuk Kuen's case was. only 2 years imprisonment but that took into consideration very strong mitigating factors including her mental condition. It was not disturbed on appeal.

21. We have also been referred to criminal appeal 655/76 (C.A.) Tsoi Tin where the applicant in that case had his 8 year sentence reduced to 5 years. The appellant was a worker in a knitting factory. After working hours the watchman saw the appellant lying under one of the machines. so he woke him up. The appellant thereupon threw a bottle at the watchman and later attacked him with a wooden stool, causing injuries to him. The appellant then sprinkled the premises-with kerosene and set them ablaze, escaping from the consequences. of what he had done by the use of a nylon cord. The window was four storeys up. The cord chafed the appellant's hands badly and he fell to the pavement injuring himself to such an extent that he had to be hospitalized for a month. Meanwhile, the watchman had managed to unlock the door and escape.

22. The appellant had been charged with wounding with intent to do grievous bodily harm, but-the jury acquitted him of this and only convicted him after trial on the count of arson. There had been evidence that the appellant had been under the influence of some patent medicine at the material time and had fallen down and hurt his hand before the fire.

23. The sentence of 8 years was reduced to 5 years because the Court of Appeal considered 8 years imprisonment was too severe in the circumstances of that case which included the fact that he acted on the spur of the moment under the influence of patent medicine, had a clear record, and that, although considerable material damage was done by the fire, no lives were lost.

24. A more recent decision in this Court is criminal appeal 462/86 Tsang Chu. The charge of arson arose out of events on 29th May 1984 at the Golden Harvest Film Studio in Hammer Hill Road. It was agreed at the trial that on-the previous day the applicant had visited the premises and had asked for a job as an extra but was refused. On the day in question he returned with a large number of other people at 05.09 hours in the morning. There they found the watchman who they threatened and tied up and they then threw petrol bombs inside the premises and stones were thrown to break the glass windows and the door. The fire caused damage estimated at some $15,000. After trial the appellant was found guilty and sentenced to 4 years imprisonment.

25. The judgment of Penlington J., as he then was, refusing to disturb that sentence, contained the following passage:

"In R v Chan Yuk Kuen this court had said that for arson, a sentence of 4 - 5 years should be regarded as appropriate, though of course this can go up or down substantially depending on the particular circumstances. This was a deliberate planned arson carried out by large number of people in the early hours of the morning.' It could have resulted in very much higher level of damage than in fact was done. We must also take into account that there was a watchman who was threatened and tied up. It is not clear whether there was any danger to him or to any other person who was in the premises and we must assume, in favour of the applicant, that was not so. Nevertheless, we see no reason whatever why we should interfere with the sentence of 4 years imprisonment imposed in respect of the arson charge."

26. So the sentence in that case was considered against a background in which the degree of danger to persons was not at all clear.

27. Reliance has also been placed on the case of Zywina reported in the 1984 Vol. 6 of the Criminal Appeal Reports on sentence at P. 454 where a nurse received 4 years imprisonment for setting fire to unoccupied rooms in a hospital, causing damage to the extent of about $10,000 and loss of important records. She was sentenced to 4 years imprisonment and this sentence was reduced to a total of 30 months on the ground that she had been 'subjected to substantial domestic and emotional stress. One of the judgments indicated that the circumstances of the event ought to be brought into account. We do not consider that case to be of much assistance when considering a sentence in relation to the background of this case.

28. There can be no doubting the seriousness of the offence committed by these two appellants. The victimised flat was on the 9th floor of a multi-storey building and the crime was committed at 1.00 a. m. when most people would be asleep in their homes and although the charge referred only to the possible endangering of the lives of Madam Cheng and her family and the. young man who was staying with them, nevertheless it is clear that many many people's lives were at risk as a result of this offence.

29. It is our considered view that when a person commits arson of this sort in a multi-storey domestic building, in the middle of the night, a sentence of 8 years would not be inappropriate. We considered that in the circumstances of the case 10 years was too high a starting figure.

30. The actual sentence gassed must of course reflect the mitigating circumstances.

31. So far as the 1st appellant is concerned he was a young man of 19 years of age at the time of the offence, he surrendered himself, he pleaded guilty and has shown considerable remorse and was prepared to give evidence for the Crown in this case. He has also suffered himself as a result of the offence which he committed although that does not wiegh heavily in the scales. In our view the Learned Judge was quite right in considering this case to be different from those where a person acts impulsively or the spur of the moment as a result of recent provocation or humiliation. This was a case where the appellants reached agreement on what to do sometime after the events which had incurred their displeasure. It was a deliberate premeditated cold blooded wicked act. It was the lst appellant who carried out the act of setting fire to the door.

32. Making all allowance for the mitigating circumstances, we consider that the sentence on the 1st appellant should be reduced to 6 years imprisonment.

33. So far as the 2nd appellant is concerned, he was 23 years of age and did not have a clear record. He was the person who had been jilted and acted as the lockout at the time of the offence.

34. We consider that no distinction should be made between him and the 1st appellant. For this reason we reduced his sentence also to 6 years imprisonment:

35. At the hearing we granted leave, treated the hearing as the hearing of the appeal and allowed the appeal to the extent indicated. We stated that we would give our reasons later. This we now do.