HKSAR v. HUNG PANG CHI

DCCC 815/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 815 OF 2012

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REASONS FOR SENTENCE

1.  The defendant 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, Chapter 200.

2.  Briefly in July this year Mr Chan and Mr Chen were engaged in the renovation of room A on the 5th floor of 251-255 Yu Chau Street in Sham Shui Po.  On Sunday the 29th July the defendant, who lived opposite in room B, complained that the renovation work was noisy.  As a result Mr Chan and Mr Chen stopped the work and left room A.

3.  Two days later, at around 9:20 a.m. which was about 10 minutes after Mr Chan and Mr Chen had started work, the defendant again complained about the noise.  Mr Chan told the defendant that they would stop the work after finishing some minor works.  The defendant agreed to this course of action.

4.  A short while later the defendant put a thick pile of newspapers outside the door of room A and used a lighter to set them on fire.   With the papers on fire and emitting smoke Mr Chan removed the items which were near the door of room A. Mr Chan asked the defendant not to cause trouble and told him he would be leaving soon.  The defendant then went to his own room and soon returned with a bottle of water which he used to put out the fire.    

5.  After a while the defendant once again appeared outside room A and set the newspapers on fire.  Mr Chan told the defendant they would immediately leave.  The defendant then put out the fire.  The owner of room A arrived and a report was made to the police.  The defendant was arrested the same morning at 10:04 when he claimed he was burning the newspapers for his father who had passed away a few months before. 

6.  In passing sentence I have carefully considered everything said by Mr McGowan, together with the letter from the defendant’s employer.  Whilst the defendant does not have a clear record I take into account that he has never been to prison before and that his last conviction was in the year 2000 when he was 18. 

7.  I have carefully considered the content of the psychiatric, psychological and background reports.  I accept that the offence was caused by stress resulting from the fact the defendant could not sleep due to the noise from the renovation work.  The defendant at the time was a night shift worker and needed to sleep during the day.  The situation was exacerbated by the recent passing of his father, who died of cancer in May this year.  The defendant also worried over the pending arrival in Hong Kong of his pregnant wife.

8.  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.”

9.  In my view the facts of the present case are nowhere as serious as the facts in any of the cases reviewed in HKSAR v Kung Pak-fu.            Mr McGowan submits that a non-custodial sentence is appropriate, whether that be a further community service order or a probation order.  In support Mr McGowan relies on two cases sentenced earlier in the District Court. 

10.  In HKSAR v Wong Pak-keung DCCC 691/2012 a community service order was imposed.  In my view the offence was less serious no doubt resulting only in arson simpliciter being charged.  Further the personal circumstances of the defendant were very different, including that he was of a clear record.

11.  In HKSAR v Hui Man Pow DCCC 35/2009 a probation order was imposed for aggravated arson. Again the defendant was of a clear record.  All I wish to say about this case is that in my view the sentence is exceptionally lenient, in particular considering the fire took hold resulting in an explosion with extensive damage. Further the offence was committed whilst the defendant was under the influence of drugs.

12.  With respect I do not find these cases of assistance to me in passing sentence.  As I pointed out at the last hearing one can always find cases which support either custodial or non-custodial sentences and referred Mr McGowan to two cases where custodial sentences were said to be appropriate in circumstances where newspaper was set alight. 

13.  The first of these cases is The Queen v Yeung Sui Fat         HCMA 173/1991. The judgment is very brief from which it is not clear whether the defendant was charged with arson simpliciter or aggravated arson.  By reference to recklessness and no intention to endanger life I am prepared to accept the defendant was charged with aggravated arson, which charge can be heard in the Magistracy.

14.  In Yeung Sui Fat the defendant in the early hours of the morning set on fire a newspaper and a pair of plastic slippers.  Fireman promptly extinguished the fire, which had not been accelerated by petrol or other fuel.  Damage to a door was minimal, costing only $10 to repaint.   Yeung pleaded guilty and was sentenced to 18 months imprisonment, which sentence was, on appeal, reduced to 6 months imprisonment.

15.  The second case is Robert Hales [1999] 2 Cr. App. R (S) 113, a case of arson simpliciter.  The defendant set fire to a flat by pushing a lighted newspaper through the letterbox.  The occupier found the newspaper and put out the flames before any damage was done.  No accelerant was used and the fire would not have taken hold since there was no combustible material around the door inside the flat.  Hales pleaded guilty and was sentenced to 2 years imprisonment, which sentence was, on appeal, reduced to 15 months imprisonment.

16.  Each case very much depends on its own facts and circumstances, these varying so much in arson cases.  However a court must not overlook that said by Ognall J in O’Connor (cited in Robert Hales),in respect of arson simpliciter:

“It should be remembered that even for the offence of simple arson the maximum sentence is one of life imprisonment. There should be no misunderstanding by the public but that offences of this character, under whatever emotional stress, are always to be viewed by this court as serious.”

17.  I am satisfied by reason of the nature of the offence and the offender both community service and probation are not appropriate.  I do however in deciding the appropriate sentence bear in mind the need for individual justice.  Clearly the defendant acted out of impulse as a result of the need to sleep and stress after the recent loss of his father.  This is not a case concerning triads, intimidation or revenge. 

18.  The fire was during the daytime and not at night when occupants would be asleep.  Whilst the defendant twice set fire to the newspaper no accelerants were used and on both occasions he quickly put out the fire.  Fortunately no one was burnt and having seen the photographs there appears there was no damage to room A.  Mr Chan and Mr Chen were working inside room A but they were alert to move away from the door anything that might possibly catch fire.  This reduced the risk of the fire taking hold and thereby ensured the safety of the lives of all other occupants of the building.  

19.  Having carefully considered all thecircumstances I am satisfied the proper starting point after trial is 12 months imprisonment.  Giving the defendant full credit for his plea of guilty the defendant is convicted and sentenced to 8 months imprisonment.