HKSAR v. MAK KIM SHAN KURT

DCCC 433/2018

[2019] HKDC 464

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 433 OF 2018

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REASONS FOR SENTENCE

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1.  Defendant is convicted on her own plea and agreement to the summary of facts to a charge of arson being reckless as to whether life would be endangered, contrary to section 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap 200 (1st charge) and a charge of possession of poison included in Part 1 of the Poisons List, contrary to section 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap 138 (2nd charge).

Summary of facts

2.  PW1, aged 72, and PW2, aged 47, are married.  They used to live in Room 3019, Ming Yuet House, Kin Ming Estate, Tseung Kwan O, Kowloon, Hong Kong (“the flat”) with their school-aged son. 

3.  Since early October 2017, they employed defendant as a personal tutor, and defendant would visit the flat three times a week to tutor their son.  PW2 and defendant referred to each other as sisters.

4.  On 11 or 12 December 2017, PW1 asked defendant to see if she could pick up PW1’s son from school on 15 December 2017.  Defendant refused. 

5.  On 14 December 2017, defendant told PW1 that she could pick up PW1’s son the next day, and therefore PW1 gave defendant the spare keys to the flat.

6.  On 15 December 2017, at around 7.30 am, PW1 and his son were the last to leave the flat.  Before leaving, PW1 checked that all electrical appliances in the flat had been switched off.

7.  At around 10.30 am on the same day, PW3, a security guard on duty, received a call about smoke and then later she saw smoke coming out of the flat.  The gate to the flat was not locked.  The door was locked.  PW3 sought help and later firemen came, reached the flat, broke into the flat and saw a fire.  They then put out the fire in around eight minutes.

8.  On the same day, PW1 and PW2 and their son were given another flat to live in and later on the same day police arrested defendant in this new flat for arson.

9.  Defendant said she had gone to the flat to get clothes for PW2’s son but she did not set fire to the flat.  PW1 and PW2 did not ask defendant to do so.

10.  CCTVs of the building in which the flat was situated captured, inter alia, that:-

(a) at around 10.11 am on 15 December 2017, defendant entered the building where the flat was situated and took a lift up;

(b) at around 10.20 am and defendant took a lift down and left the building;

(c) at around 10.25 am (ie around five minutes before the security guard noticed the fire), defendant returned to her own residence.

11.  Forensic scientist examined the flat on the offence date and was of the view that:-

(a) there were two fires which originated from two separate beds in the flat; the fires originated from the middle of each bed and were probably initiated by a piloted flaming ignition.

(b) the two fires were in the interior of a closed residential flat and isolated from electrical appliances and live wiring, and the cause of the fire being electrical in nature could be eliminated;

(c) the two fires occurred on similar items including bedding items and textile items, and their position near the middle of beds showed signs of repetitive fire-setting behaviour;

(d) the fire was probably a deliberate act.

12.  And, later, defendant was searched by police and in the pocket of defendant’s overcoat 127 tablets containing zopiclone, which is a listed Part 1 Poison, were found inside a plastic bottle.

13.  Government chemist subsequently confirmed the contents of the poison and the approximate street value of which was $635.

14.  Defendant gave a video recorded interview to the police, in which she said under caution that:-

(a) she went to the flat on the offence date;

(b) the key shown to her in the video recorded interview belonged to PW2, and PW1 gave it to her;

(c) defendant did not know who told her to go to the flat and was not sure when the person did so. Defendant did not know what she did at the flat; and that

(d) the overcoat shown to the defendant in the video recorded interview belonged to her and that she wore the coat on the offence date.

(e) When defendant was later cautioned for possession of Part 1 Poison and the overcoat was shown to her again, she said she had no recollection of the overcoat.

(f) Defendant did not know what the bottle found in her overcoat contained.

15.  Defendant admitted that she had without lawful excuse, damaged by fire the two beds, property belonging to PW1, intending to damage such property and being reckless as to whether the lives of others would be thereby endangered (Charge 1).

16.  Defendant possessed the Part 1 Poison found otherwise than in accordance with the provisions of the Pharmacy and Poisons Ordinance, Cap 138 (Charge 2).

Criminal record

17.  Defendant had two previous record relating to possession of Part 1 Poison and criminal damage in year 2009 and 2012 respectively.

Mitigation

18.  Mr Leung for the defendant says that defendant is now aged 39.  She is single and lived alone. 

19.  She has received education up to Form 5 level and has worked as a part-time private tutor. 

20.  It is said that she suffers from adjustment disorder with depressive reaction and borderline personality disorder. 

21.  Defence counsel agrees to the contents of the psychiatric and the psychologist’s report largely, save for minor clarification. 

22.  Defence counsel today also submitted that originally defendant intended to go to the flat to make it a mess.  He did not go further to say how and he says only because defendant saw the lighter in the flat, then she decided to set fire and that, had there not been a lighter, then she would not have committed the arson.

23.  Defence counsel also handed two mitigation letters, prepared by defendant herself on 2 January 2019 and 10 March 2019. 

24.  Whilst the defendant says she is deeply remorseful and sorry for committing the stupid act, she still maintains that, had the PWs not provoked her the night before, she would not have committed the arson.

25.  Defence counsel also handed to this court mitigation letters from defendant’s elder brother and a Priest surnamed Sin from the Tsung Tsin Mission of Hong Kong Shaukiwan Church. 

26.  Defence counsel also told this court that defendant had taken a course called “Introduction to Abnormal Psychology” and that she had in the past performed volunteer service for various organisations.

27.  He urged this court to be lenient on the defendant. 

28.  He urged the court to adopt a sentencing starting point at 4 years for the first charge and, as for the second charge, he asked that this court would treat it by way of a fine, but, if not, then by way of a concurrent custodial sentence to the sentence in the first charge.

29.  According to the psychiatric report on the defendant dated 11 February 2019, defendant admitted setting fire. 

30.  She said her idea was at first only to make a mess of the place on account of the couple of the flat having shown their displeasure at her a few days earlier.  This, of course, is different from what was being submitted today in court.  She tells that she is not a person who would not pay back.

31.  According to this Dr Lui, the psychiatrist preparing the report, defendant has a mood problem against a background of serious personality issues, she being sensitive, self-centred, impulsive, and with scant concern for the feeling of others.  Her current mental condition is stable, however, she should continue receiving treatment for prescription and advice.  It is said that she is fit to plead.

32.  It is said by Ms Chan, clinical psychologist of the Correctional Services Department, in her report dated 11 March 2019 that defendant appeared to be well oriented when she was interviewed.  Her speech was relevant and coherent.  Her affect was generally appropriate to the content of the conversation and she showed no difficulty understanding the questions posed to her.

33.  Defendant was locally born with one elder brother.  She did not enjoy particularly good relationship with her parents but she would take care of them when they were ill.

34.  She studied until Form 5 but did not perform well in school.  She started smoking and dating while she was in secondary school.  Her brother reported that she had some conduct problem, like bullying her classmates in secondary school and she did not get any pass in public examinations.

35.  Defendant had worked as a saleslady and later, after quitting that job, had pursued studies in design for a year and then when she found the job too boring she then studied a food and beverage course and at a later stage she started abusing sleeping pills.  She also faced academic stress which required psychiatric attention.  Thereafter, she worked as a tutor at tutorial school and saleslady at telecommunications company. 

36.  Defendant did not maintain long-term intimate relationship. 

37.  She also received psychiatric services since year 2003 due to academic stress and poor relationship with her family and was admitted into Kowloon Hospital in year 2005 due to drug overdose and suicidal attempt.  She was diagnosed with drug-induced psychosis, depression, and borderline personality disorder.  She was found to have been abusing sleeping pills and cough mixtures. 

38.  Her medical condition deteriorated after the death of her mother and her leg infection since the year 2016.  Her last admission to Kowloon Hospital was in November 2018.  She also reported several episodes of self-harm by cutting wrists due to conflicts with others, and she sought psychological services for a few times.

39.  During the present remand, defendant needed a walking aid, stayed at prison centre hospital due to her leg problem and out of boredom she had several episodes of wrist slashing.  She also had one or two times of refusal for food under her low mood disorder and when she did not get what she wanted. She was placed under medical observation list during her remand due to her repeated self-harm gesture for close observation from frontline staff.

40.  Defendant alleged that she was had, in the past, been charged several times with arson.  The charges were later dropped.  Her second offence was criminal damage in year 2012 when she damaged CCTV placed at the opposite side of her cubicle apartment.  She damaged it out of anger.

41.  As for the commission of the present first charged offence, defendant alleged that the father of the student had given her some mocking remarks before.  She admitted that when she committed the offence, she did not think about the negative consequences at that time.

42.  As for the second charge, she said that she used the drugs to solve her sleeping difficulty and she usually took the drugs, the sleeping pills, together with her prescribed psychiatric medication daily.

43.  It was said in the report that the defendant appeared to have some superficial remorse and she feels sorry for the suffering brought to her elder brother, but she seemed to acknowledge little understanding on the seriousness about the negative consequences of her behaviour.

44.  It was submitted that although the defendant did not perform well in the intelligence test for screening purpose, she had adequate ability to differentiate right from wrong and understand the consequences of her behavioural act.

45.  It was also said that in view of the defendant’s past offences, it is highly probably that she easily runs into damaging properties when she is in bad mood or out of her anger.  She also seems to externalise her own problems to others.  Her long-term substance use might also loosen her behavioural control.

46.  The indexed offences appear to be related to her impulsivity, mild adjustment, coping style towards her life stresses and weak consequential thinking.  Ms Chan said that, although defendant had superficial remorse, she had little insight into her own problem.  Her risk of re-offending in similar offences is said to be still present in view of the past offences and the long-term substance abuse problem. 

47.  It is concluded by Ms Chan in the report that defendant is immature, impulsive and with a strong need for affection.  She accumulated negative emotions arising from life stresses but lacked effective coping.  She easily commits unlawful behaviours under her negative mood and she has known history of substance abuse, mood and personality problems and continued psychiatric attention is needed.  Her risk of re-offending in similar offences is still present. 

48.  For her rehabilitation, she needs psychological treatment targeted on her mood management, consequential thinking, and extending social circle.  It is said that her prognosis depends very much on her progress of treatment and sustaining motivation.

First charge

49.  On conviction upon indictment of this charge, a person shall be liable to imprisonment for life.  The defendant was convicted of the charge under section 60(2), which was more serious than a charge under section 60(1), as it involved more than just damage to property.  It involves being reckless as to whether the life of another would be thereby endangered.

50.  Defendant’s allegation about part of the cause for her committing the arson was due to the remarks by PW and the presence of the lighter in the flat. 

51.  This is, in my view, another example of defendant’s attempt to shift the blame to others when she is 100 per cent to blame for the offence.  It echoes the opinions expressed by the psychologist Ms Chan.  In fact, in the state that she is now in, being unable to cope with her negative emotions or stresses, in my view, she poses a threat to the society. 

52.  The so-called provocation alleged by the defendant was none more than PW’s remarks about defendant’s looking down on them for not staying at their home for dinner - this is what was being submitted on behalf of the defendant today - or the so-called scorning remarks or mocking remarks by PWs few days earlier than the day of offence, as alleged by the defendant when she was interviewed by Ms Chan in preparation of the psychologist’s report.

53.  None of these, in the eyes of an ordinary person, would amount to provocation in any sense and should not amount to any cause for any revenge as such.

54.  It is said in the case of HKSAR v Kung Pak Fu, CACC 429/2007, as quoted by the defence counsel that:-

“Although arson was an extremely serious offence, it was not appropriate to lay down sentencing guidelines for this offence because its gravity differed 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.”

55.  In the case of HKSAR v Lo Po Tak, CACC 608/1997, the defendant, with eight previous convictions of arson, were convicted of two charges of arson under section 60(1) and (3) of the Crimes Ordinance.    These two offences were committed in the early hours of the same morning in the common area of a housing estate, ie in the lift lobby and some garbage outside a refuge room.  The court in that case adopted a sentencing starting point of 6 years and the sentence of two charges was made concurrent. 

56.  Our case here involved, as said, convictions under section 60(2), which is more serious.  The fire was set during the daytime, when the occupant of the flat was away, but, as the flat was situated within a public housing estate, one would expect people working night shift resting still in their homes or old or ill people with mobility difficulty still within their flats.  The fire within the flat of the PWs posed a serious threat to the life and safety of these people, apart from threats, of course, to the properties.

57.  Although defendant admitted that she has previously been charged with arson but they were subsequently dropped, this court would ignore this fact in sentencing.  The court would therefore consider that this is the first time the defendant has committed arson, although she has previous conviction on criminal damage.

58.  According to the defendant, she committed the same by reason of revenge on some mocking remarks which, as said, would not really amount to any provocation, even if accepted.  Yet, the defendant even at this date, 15-odd months after the incident, and having taken this course of abnormal psychology, still considered PWs as partly to blame for the arson.  She clearly needed assistance in this respect to have more insight into her own problems.

59.  The psychiatric and psychologist’s reports clearly tell that the defendant has adequate ability to differentiate right from wrong and understand the consequences of her acts, but because she is impulsive, it is said that it is highly probable that she would damage property when she is in bad mood or out of anger, or when she accumulated negative emotions due to life stresses as she was unable to cope. 

60.  Risk of re-offending is present and it is said that she needed psychological treatment relating to mood management, consequential thinking and extending social circle.  It is also said that her remorse is superficial. 

61.  It is lucky that no one is injured in the present case and that the only property damaged was the ones in the flat belonging to the PWs.  Although defendant said she has intention to repay or pay compensation to the PWs, there was no action to clarify the amount of compensation payable nor was there any actual payment being made so far. 

62.  Considering all of the above, and even accepting that defendant is affected by her mood problem and borderline personality disorder at the time, this court considers that appropriate sentencing starting point is, as submitted by defence counsel,  4 years.  The appropriate sentencing starting point should be higher than 4 years but for her own mood problem and borderline personality disorder.

63.  This court has also considered mitigation advanced by Mr Leung but I find that the most valid mitigating factor is her own guilty plea, of which she is entitled to one-third sentencing discount.

64.  Accordingly, for the first charge, she is sentenced to 2 years and 8 months.

Second charge

65.  The maximum penalty on conviction of this offence carries a fine at $100,000 and to an imprisonment for 2 years.  In the case of HKSAR v Chan Tak Shing, HCMA 657/2002, referred to me, where the defendant there was found to be in possession of four tablets of zopiclone, the court commented that immediate custodial sentence is called for this sort of offence and the sentencing starting point in that case of 3 months was adopted.

66.  In this case, the defendant was found to be in possession of 127 tablets of zopiclone.  It was said that these were for her own consumption to ease her sleeping problem. 

67.  The quantity of drugs is always one of the factors to be considered when sentencing an offence of this nature.  Defendant had one previous similar conviction in year 2009. 

68.  This court adopts in the present case a sentencing starting point of 4 months, for which the defendant is entitled to one-third sentencing discount for her own guilty plea. 

69.  Accordingly, she is sentenced to 2 months and 20 days imprisonment for this charge.

70.  As the nature of the offences, the first charge and the second charge, is totally separate and distinct, the sentence in these two charges are to run consecutively.

71.  I have also considered the totality principle and find the total sentence of 2 years, 10 months and 20 days just and proportionate to her overall criminality in the case.