HKSAR v. CHAN KAI TING

DCCC 1011/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1011 OF 2016

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to a charge of "Arson"[1]. He set fire at the doorstep of his home.

Summary of Facts

2.  The defendant and Madam CHIN (PW1) were husband and wife.  In 2010, they began to reside at a public housing unit at Lai Tak Tsuen, Tai Hang ("the Flat") together with their son (PW2) and daughter (Miss CHAN; aged 15)

3.  PW1 and the defendant were co-tenants of the Flat.  They had a divorce in 2014.  In April 2015, the defendant gave up his tenancy of the Flat but continued to live there due to financial reasons.  PW1 agreed to this temporary agreement.

4.  On 9 August 2016, PW1 requested the defendant to move out of the Flat.  He agreed to move by 30 September.  On 20 September, PW1 changed the door lock of the Flat, but a new key was not given to the defendant.  PW2 or Miss CHAN would open the door for the defendant when he came home in the evening.

5.  On 1 October, PW1 demanded the defendant to move out.  He told PW1 that he was still unable to find a place to stay.

6.  About 11:45 p.m. on 2 October, the defendant came home.  PW1 and the 2 children were at the Flat.  She told PW2 and Miss CHAN not to open the door.  The defendant became emotional.  He hit and kicked the metal gate of the Flat for about 10 minutes.  Suddenly, PW1 saw the newspaper, which was placed underneath the main door to block the gap between the main door and the floor when the air-conditioner was turned on, burning.  PW2 immediately pulled the newspaper out; and PW1 put out the fire using slippers.  The defendant then shouted "Burn you all to death".  The Police was alerted.  PW2 and Miss CHAN were scared and waited for the Police in the bathroom.

7.  The defendant was arrested by the Police.  Under caution, he said he had threatened PW1 so that she would open the door.  A lighter was found in the defendant's shoulder bag.

8.  In his cautioned interview, the defendant claimed that at the time of the incident, he wanted to enter the Flat to collect his belongings.  PW1 and the 2 children, however, ignored him.  He felt angry and burnt the newspaper which was placed underneath the main door using a lighter.  He said he burnt the newspaper out of impulse. When the newspaper was burning, someone pulled it into the Flat.  The defendant continued to hit the main door and threatened to kill PW1 and the 2 children with fire.

Mitigation & Sentence

9. The defendant is 59 and has a clear record. The Summary of Facts has already described his family. The defendant works as a cook earning $16,000 per month. His son is now 20 and a student. A bundle of mitigation letters (including one written jointly by his 2 children) was placed before me; their contents are duly noted.

10. In mitigation, Defence counsel Ms. LEE submitted that the defendant is a responsible husband and father. He would give all his salary to PW1 each month; and she would only give him back $2,000 to $3,000 as spending money. At the time of the offence, the defendant simply wanted to collect his belongings and hernia medication, but was ignored. He foolishly thought that if there was smoke, people in the Flat would open the door. Ms. LEE further submitted that the defendant has no psychiatric problems. He only used the wrong method to gain entry into his home. His colleagues and friends commented on him favourably.

11. There are no sentencing guidelines for offences of "Arson". 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. In passing sentence, I have carefully considered all mitigation advanced by Ms. LEE, including the possibility that the defendant was acting out of impulse without any intent to harm anyone. I have also borne in mind that the defendant has a clear record. I can sense that the defendant was to some extent a victim bullied by PW1. There is no evidence showing that the defendant would cause any physical harm or disturbance to his family members. There was no valid reason for not letting him into the Flat.

13. It was most fortunate that the fire was put out by PWs 1 and 2 almost immediately. I accept that the risk of setting the Flat on fire by burning the newspaper placed underneath the door is low and that the defendant had no intention to let the fire get out of control. The lighting of a fire in a multi-storey residential building, however, still risks the lives of all other occupants of the building[3]. I accept that the present case arose out of the defendant's frustration and stupidity and had nothing to do with triad, intimidation or revenge. Furthermore, no one was injured and no property was damaged. The defendant most probably acted out of impulse and anger. There is no evidence of any use of fire accelerant either.

14. Based on the reasons stated above, I consider 12 months' imprisonment to be the proper starting point. A one-third discount is given for the guilty plea, reducing the sentence to 8 months. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I impose on the defendant is 8 months' imprisonment.