HKSAR v. LEE TIM

DCCC 212/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 212 OF 2016

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to a charge of "Arson"[1]. He set fire to his home, which is a public housing unit.

Procedural History

2.  This case was set down for trial for 3 days commencing on 14 July 2016.

3.  On the 1^st day of trial, after plea was taken and the Prosecution Opening having been read, defence counsel Mr. LEUNG raised some preliminary matters in relation to the expertise of Forensic Scientist Dr. SO in fire (as opposed to Chemistry) as well as the basis of his expert opinion.  Both counsel and I all expressed our views in court.  As a result of our discussion, prosecuting counsel Mr. YIP decided to ask for time in order to enable Dr. SO to prepare a supplemental statement elaborating further on the matters raised.

4.  The trial proceeded on the 2^nd day, which was a Friday, and the prosecution called 3 witnesses.  PW3 finished his evidence shortly before lunch.  Mr. LEUNG then asked for time until the following Monday to consider the contents of the supplemental statement of Dr. SO (which he had just received the previous evening) and to advise the defendant.

5.  On the 3^rd day, Mr. LEUNG informed the court that defence has reached an agreement with the prosecution.  The charge would be amended to one under section 60(1) of the Crimes Ordinance (Cap.200) instead of section 60(2); and the defendant would plead guilty to the amended charge.

Summary of Facts

6.  The defendant is the tenant and sole resident of Room 3801 Shing Tin House, Pak Tin Estate, Sham Shui Po ("the Flat").  Mr. CHIU (PW1) resides at the unit adjacent to the Flat.

7.  About 4:30 a.m. on 14 November 2015, PW1 was sleeping at home and suddenly heard a male voice shouting for help.  He looked out from the window and saw fire near the window of the Flat.  He pressed the fire alarm.  In the witness box, PW1 also mentioned that he took the fire hose and tried to put out the fire until the firemen arrived.

8.  PW1 confirmed that before the firemen arrived, the iron gate of the Flat was open and its wooden door was closed.  He saw no one leaving or entering the Flat. The firemen had to prize open its wooden door in order to enter the Flat to put out the fire.

9.  The Police later on located the defendant with the information that he was a resident of the Flat.  PC 6520 (PW2) then made enquiry with him around 5:00 a.m. on the same day.  The defendant told PW2 that he resides in the Flat alone.  Upon discovering the fire, he immediately left the Flat.  He claimed that whoever set fire to the Flat must have been those chasing him for repayment.  On the other hand, he claimed that he did not owe any debt and had no grudges against anyone.  He also claimed that he did not cook or smoke before going to bed.  He did not know that source of the fire.  Finally, the defendant mentioned that he is a mental patient attending follow-ups at Kwai Chung Hospital.

10.  Station Officer LAW (PW3) examined the Flat after the fire.  He found 2 seats of fire and a broken glass bottle with suspected flammable liquid near a seat of fire. He eliminated naked flame, electrical fault and spontaneous combustion being the cause of the fire.  "Deliberate act" was considered the most probable cause.

11.  Forensic Scientist Dr. HO (PW4) also examined the Flat.  He found 2 separate and independent seats of fire; one at the bed in the living room; another on the top of the cabinet in the kitchen.  In his expert opinion, the fire at the Flat was the result of a deliberate act.

12.  PW4 examined the broken glass bottle neck found by the Police near the bed in the living room.  It contained traces of an organic mixture containing toluene. Toluene is a highly flammable organic solvent, which is a common constituent of paint thinner mixtures.

13.  Based on the extent of the damage to the Flat and the absence of any flammable liquid residues being detected from the burnt debris samples seized from the 2 seats of fire, PW4 considered that the fire was unlikely set with the aid of flammable liquids.

14.  On the basis that the defendant was the sole resident of the Flat; the 2 seats of fire were both inside the Flat; the fire was the result of a deliberate act; the wooden door of the Flat was locked before arrival of the firemen; and the defendant gave conflicting answers regarding the fire, the prosecution concluded that the defendant committed an offence of "Arson" under section 60(1) of the Crimes Ordinance.

Mitigation & Sentence

15. The defendant is 59 and divorced with 2 adult children. He has 1 conviction record dated 1995; it was "Gambling", for which he was fined. He has been unemployed in the past 5 odd years. Defence counsel Mr. LEUNG has placed 3 psychiatric reports on the defendant before me. He informed me that paragraph 2 of Dr. SIU's report has outlined the defendant's personal and family background.

16. In mitigation, Mr. LEUNG submitted that the defendant has been suffering from depression for some years. Psychiatric reports indicated that he attended his follow-up appointments regularly and was prescribed with medication. His most recent appointment before his arrest was in August 2015 (3 months prior to the fire).

17. Mr. LEUNG submitted that the defendant decided to plead guilty to the charge owing to a substantial change in the prosecution's evidence. Mr. LEUNG explained that in his original report, Dr. SO did not elaborate on his opinion; whereas in his supplemental report, elaboration was given. In my view, what Mr. LEUNG was effectively saying is, had the prosecution seen fit to ask Dr. SO to elaborate on his opinion in a much earlier stage, a trial might not have been required.

18. By pleading guilty to the charge, the defendant accepts that he started the fire. But how and why; and whether intentionally or recklessly, the answers are still unknown. It appears the defendant had told both Dr. SIU and Dr. TANG that in the evening of the fire, he took his psychiatric medication and smoked a cigarette. He could not recall what happened afterwards. He could only remember having a hot sensation over his arm and was then sent to the hospital.

19. On this basis, recklessness may be an explanation for the seat of fire found near the bed, but the seat of fire found in the kitchen remains unanswered. Mr. LEUNG accepted that recklessness is an inference to be drawn. He submitted that the defendant expresses his remorse but is unwilling to say any more on the cause of the fire.

20. 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]

21. I have carefully considered all mitigation advanced by Mr. LEUNG. For the purpose of sentencing, I will treat the defendant as a person with clear record.

22. It is most fortunate that PW1 was awaken by the noise of someone shouting for help, so he could press the fire alarm and help putting out the fire in a timely fashion. A fire in a multi-storey residential building (whether started intentionally or recklessly) puts lives at serious risks[3]. It is also a relief that no one was injured and only the Flat was damaged.

23. I consider 21 months' imprisonment[4] to be the proper starting point. I accept Mr. LEUNG's submission that the trial might have been avoided had the prosecution provided defence with a fuller expert report in the first place. On this basis, I would still grant the one-third discount for guilty plea, reducing the sentence to 14 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 14 months' imprisonment.

24. I also invite the Commissioner of Correctional Services to arrange for the defendant to continue his out-patient psychiatric treatment.