HKSAR v. TANG MAN KIT

DCCC 151/2024

[2024] HKDC 1457

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 151 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to a single charge of arson, contrary to sections 60(1)  and (3)  and 63(2)  of the Crimes Ordinance, Cap 200. He had set fire at the school where his cohabitant girlfriend had been working at, in the evening of the day that his girlfriend had resigned due to tension at work with the secretary of the school.

2.  The Defendant admitted that his girlfriend had told him about being bullied by colleagues at work prior to and on the day of the offence.  He had therefore planned the attack in order to threaten the school and to exact revenge for his girlfriend, but the plans were made on his own, and were not disclosed to her.  He had parked his car about 160 m from the school, and had carried 2 cans of thinner and 2 glass bottles with him.  When he arrived at the school on foot, he made 2 petrol bombs on site by pouring thinner into emptied beer glass bottles and igniting tissue paper that was stuffed into the bottles. 

3.  He intended to throw the petrol bombs onto the ground right outside the school office, but the first one accidentally bounced off and landed onto the School Principal’s car, i.e. the damaged property in question, and caused it to be burnt.  The Defendant threw the 2 petrol bombs at around 2213 hours towards the open space from outside the fence of the school.  The Defendant had changed his outfit before committing the offence, and had discarded the clothes and the pair of gloves that he had worn during the offence into a garbage dump.

4.  The School Principal’s car was found by a passerby to be on fire and a report was made at around 2242 hours.  Fire Services officers extinguished the fire at 2245 hours. The car was seriously damaged due to the fire which had lasted approximately half an hour.  It was a Lexus IS 250, and was bought by the Principal from his sister at the price of $160,000.

The Defendant’s Antecedent Statement and Mitigation

5.  The Defendant is 44 years old, and had been in a long term relationship with his cohabitant girlfriend.  Prior to remand, he was the head chef of Palm Spring Residence Club.  He has 1 previous conviction record, consisting of 3 charges of burglary and 1 charge of arson in 1999, for which he was sentenced to a Training Centre Order. 

6.  Defence submitted that there was no serious risk of danger to life, and that there was an absence of triad and public order elements in the offence.  It was also submitted that the Defendant had no attempt to disguise himself by wearing a mask.  It was pleaded by the Defence that the Defendant had a misplaced loyalty towards his girlfriend, which was the motive for commission of the offence.  It was submitted that the previous conviction of arson was related to burning implicating evidence in the burglary.

Sentencing Considerations

7.  I have called for 2 psychiatric reports and 1 psychological report before sentencing.  The 2 psychiatric reports stated that the Defendant had been diagnosed with dissocial personality disorder in 2009, and his mental condition had been stable during the current remand.  In-patient psychiatric treatment is deemed unnecessary at this stage.  Out-patient psychiatric treatment is however recommended.

8.  The psychological report stated that the Defendant is reckless as to the harm done to others from his actions, vengeful and has poor emotional dysregulation.  Daily heavy drinking and suicidal attempts were his maladaptive ways for emotional relief. His consequential thinking was poor.  He has no insight into his habit of excessive drinking.  The Defendant claimed to have drank 10 cans of beer on the day in question, after his girlfriend had told him about being bullied at work.  It is believed by the clinical psychologist that the present offence was a result of disinhibited behaviour under the influence of alcohol and anger. The use of fire was a convenient weapon employed by him to threaten the colleagues of his girlfriend as a means of revenge.  He has indicated no fascination or interest in fire.  His risk of recidivism was assessed to be low to moderate considering his poor emotional regulation and excessive alcohol use.  Psychological intervention on his mood management, intimate relationship and alcohol use is recommended.

9.  I agree that there is no sentencing guideline for arson, and I note that the present charge is made under s60(1)  of the Crimes Ordinance, instead of the more serious one under s60(2).

10.  I have considered the authorities submitted by the Defence, i.e. HKSAR v Kung Pak Fu CACC 429/2007 and Secretary for Justice v SWS [2020] HKCA 788.  I have also considered HKSAR v Law Chun Man [2012] 4 HKLRD 320, which discussed certain factors that should be considered in sentencing of an arson charge. These include the motivation of the offender, the actual damage done to property, the potential damage to property and harm to person, whether it was an isolated incident or part of a wider campaign.

11.  I am of the view that the present case is very different from the facts of the case of Kung Pak Fu as submitted by the Defence.  In Kung Pak Fu, the applicant was described by the Court of Appeal as very much of a victim in the incident. He had sustained serious burns, financial loss had been caused to his family by the fire, and the incident might further alienate him from his family.  The substance used by the applicant was essential oil, and was said to be less serious than the use of inflammable liquid such as petrol, thinner or kerosene.  The applicant had acted on the spur of the moment and in extreme anger arising out of family disputes, which involved the applicant’s son and daughter using extremely disrespectful and provocative language at the applicant.  He had acted out of character.  There was no element of intimidation or retaliation.  The applicant was over 50 and had a clear record. 

12.  In the present case, the Defendant had admitted that he had acted in retaliation for his girlfriend.  This constitutes an aggravating factor.  Even though he claimed to have drank 10 cans of beer prior to the offence, his actions do not concern action on the spur of the moment.  Even though the items and substances used for making the petrol bombs came from left over renovation materials, it was nonetheless a planned attack, for which he had assembled the required items from his belongings, left home telling his girlfriend a lie about his destination, parked his car nearby the school, changed his clothes before committing the offence, and made 2 petrol bombs outside the school.  He had thrown away the gloves and clothing that he had worn during the offence. 

13.  Even though the clinical psychologist stated that the Defendant might have less inhibition on his behavior due to the consumption of beer at the material time, it is also stated in the psychological report that he had no insight on his drinking problem, and was reckless as to the harm he might have done to others.  His drinking problem had been ongoing for some time before the offence, without any attempt to deal with his emotions in a proper way, and therefore it cannot serve as any mitigation for his reckless and extremely dangerous actions after drinking. 

14.  I do not agree that simply because he had not worn a mask, he had not attempted to disguise his identity.  By changing clothes, putting on gloves and throwing these away, it is evident that he had intended to conceal evidence leading to the revelation of him as the culprit, and that he was in full possession of his cognitive functions in order to be able to make plans for the offence. 

15.  Further, in the present case, the Defendant had used inflammable substance which would increase the possibility of damage and speeds the progress of a fire considerably.  That would constitute a considerable aggravation as stated in HKSAR v Loku Galappaththige Pramuka Salinda CACC 46/2016.  It does not assist the Defendant in submitting that he had no intention to cause damage to property, and that he was not aware of the presence of the car.  With the use of the 2 petrol bombs being thrown inside the gate, he should be fully aware that any property or any person which might have been within the gate might be caught by the fire, and that damage would result.

16.  I do not find that the claim in one of the psychiatric reports that he had driven back to check if the car was alright can afford any mitigating value.  He was not the one who made the report to the police, and his checking on the car did not stop the fire nor did it prevent further damage on the car.  Simply stated, this claim of checking on the car, even if true, had no sensible purpose, and has the distinctive ring of an excuse.

17.  The mitigating factors in Kung Pak Fu are completely absent in the present case.  The bullying towards his girlfriend at the workplace as alleged by the Defence cannot in any way be equated with the disrespect and provoking words of the children, and the resulting reaction shortly after and at the same location in Kung Pak Fu.  The Defendant’s reaction in the present case was extremely excessive and totally uncalled for.  Even if the reaction was due to the lifting of inhibition from alcohol, that was the Defendant’s own doing, and the inability to control his anger will not invoke the sympathy of the Court.

18.  It was stated in Kung Pak Fu that had the applicant persistently committed the offence of arson, the Court would certainly have passed a sentence comparable to the sentence imposed in HKSAR v Lo Po Tak [1998] 3 HKC 485, i.e. 6 years’ imprisonment as the starting point.

19.  I am of the view that the Defendant, having 1 previous conviction of arson in 1999, cannot be said to be a persistent offender of arson as the Defendant in the case of Lo Po Tak.  It must, however, be recognized that he has a previous conviction of the same offence, albeit from a long time ago, and that cannot be ignored in sentencing.  He cannot be expected to be sentenced as a person with no similar record, nor could this offence be considered as out of character. 

20.  The Court notes that the present case was committed at night at a school.  Despite the time of the offence, there is still a substantial risk that staff or caretaker who stayed late might be injured, or that property might be damaged.  It is not unknown that people working at schools nowadays sometimes have to stay late to deal with the heavy workload, and that it is expected that there would be caretakers at the school throughout the night.  This risk is especially present when the Defendant had tried to aim the petrol bombs at the ground just outside the school office, with the intention of scaring his girlfriend’s colleagues.

21.  The fire was not discovered until about ½ hour after the throwing of the petrol bombs.  It was fortunate that the petrol bombs had not landed on anyone who happened to be within the area close to the gate, in which case serious injury or even death might result.  It was only due to the efficiency of the fire services in putting out the fire, and the combination with sheer luck, which had prevented further damage to other property or lives that may have been present inside the school.  The aforesaid are all matters that the Court shall have full regard even though the charge was made under s60(1).

22.  The Court, however, notes that the scene of the crime was not a multi-storey residential building as in other authorities, in which case a heavier sentence would be justified due to the risk to safety of many people and the difficulty in putting out a fire and rescuing residents.

23.  It must be borne in mind that even though the Defendant had not intended to damage property, his actions had caused a fire which seriously damaged a car with a purchase value of $160,000. 

24.  I have considered the plea of guilty, the facts of the case which included the extent of damage to property caused by the fire, the use of accelerant in the offence, the Defendant’s conviction record, his previous record of arson in 1999, the content of 2 psychiatric reports and the psychological report, low to medium risk of recidivism, his lack of insight on his drinking problem, his reckless and vengeful character, and all mitigation advanced by the Defence.  I am of the view that an appropriate starting point should be 5 years’ imprisonment.  Due to his guilty plea, I will allow 1/3 discount in sentence.  He is sentenced to 3 years and 4 months imprisonment.