HKSAR v. LEE HOI YING

DCCC 183/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 183 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges. The 1st charge is arson, contrary to section 60(1) and (3) and 63(1) of the Crimes Ordinance, Cap 200; and Charge 2 is possession of apparatus fit and intended for the smoking of a dangerous drug, contrary to the Dangerous Drugs Ordinance, Cap 134.

2.  The facts are as follows.  The defendant was at the material time living in a rehabilitation home called Joyful Home.  It was situated on the 1st floor of a Tai Kok Tsui building.  It was a rehabilitation home for people with disabilities and those recovering from mental illnesses. 

3.  At about 1.40 pm on 22 May 2015, after lunch, the defendant was smoking in the corridor of that 1st-floor home.  Without putting out his cigarette, he threw the lit cigarette butt into a room.  In that room was one bed, and we later know that the cigarette butt had landed on the bed.  There is a CCTV set up in this home, and it captured the defendant at 1.41 pm throwing something with his hand into that room.  Two minutes later, he is seen on CCTV looking into that same room.

4.  At 1.49 pm, PW1, a nurse at the home, discovered the bed cover and mattress was on fire, and she put it out.  I have seen photographs of the room, the bed and the damage the fire caused, and the damage was not extensive.  

5.  After PW1 put out the fire, she went to look for the defendant.  At his bed, she saw the defendant inhaling some smoke that was coming from a plastic bottle which the defendant was holding.  She caught him red-handed inhaling “Ice” from an “ice flask”.  The nurse seized it and questioned the defendant.  The defendant admitted to the nurse that he had thrown a lit cigarette butt into that room.

6.  The police were notified and the defendant was arrested.  Under caution, the defendant admitted to the police that he had been caught consuming “Ice” using an “ice flask” that belonged to him.  He also admitted under caution that he did throw the cigarette butt onto a bed in a room when there was no one inside it.  He admitted to the police he did this for fun.

7.  The “ice flask” was examined forensically, and the government chemist did confirm that there had been, when the liquid dried, evidence of “Ice”.  

8.  The defendant’s best mitigation today is his plea of guilty.  He is not a man with a clear record.  He has appeared in court 18 times and has 20 previous convictions.  This is his first arson conviction. He does have one similar conviction to Charge 2 and several that relate to dangerous drugs.

9.  He is 38 years old, and his parents are both deceased, having died some time ago.  He is presently relying on CSSA.  I have been told in mitigation that the defendant is suffering from depression and is a Kwai Chung Hospital patient.  In fact, it was Kwai Chung Hospital doctors that arranged for him to live at the Joyful Home and had been there for two months prior to this offence. 

10.  The defendant has also been a drug addict for many years.  When he was a teenager, he became involved with drinking cough mixture, other polysubstance abuse, dabbling with “Ice” and heroin.  And from about 10 years ago, the defendant started to suffer from substance-induced psychosis because of his history of polysubstance misuse.  The defendant has been known to the hospital’s mental health service since 2010.  The defendant has had periods of admissions as well as receiving outpatient treatment. 

11.  In February this year, Kwun Tong Magistracy called for two psychiatric reports.  Both reports were of the view that the defendant was mentally fit to plead and stand trial.  I will not repeat the contents of the reports.  However, the defendant confirms today that on the material date, he knew what he was doing when he threw the lit cigarette butt and knew that when he threw this lit cigarette butt into the room, he was reckless as to whether property would be damaged.     

12.  Arson is a serious offence, in fact so serious the maximum sentence is one of life imprisonment.  There are no guidelines as to sentencing cases of arson, but each sentence would depend on the facts of each case.  

13.  Having heard mitigation and seen the two reports called for less than three months ago, I do not intend to call for any further reports.  Both doctors were of the view then that the defendant was not in need of in-patient treatment.  Both recommend he continue to attend outpatient clinics.

14.  Here, what is relevant is the following.  The defendant has no previous similar convictions of arson.  No one was in that room at the time.  This was not a triad-related act or an act of intimidation. This was not an act of revenge or an act because of outstanding grudges.  It was after lunch and not in the middle of the night and the fire likely to be quickly discovered which it luckily was.  The act of arson was the defendant throwing a lit cigarette butt onto a bed.  It was not a case of the defendant setting light to something with a lighter or an accelerant.  There is a big difference in those two scenarios.  Lastly, I take into account that there was not much damage.  A bed cover and mattress were the only items damaged. 

15.  However, the consequences could have been more serious.  Any fire can quickly get out of control.  Any fire can create a dangerous situation especially in a building in Mongkok, a densely populated area.  

16.  I have had two authorities to assist me.  The prosecution have referred to HKSAR v Lo Po Tak [1998] 3 HKC 485.  In that appeal, there were two charges of arson where the appellant in the early hours of the morning set fire to a lift lobby and rubbish in a refuse room.  That appellant had eight previous convictions for arson.  The Court of Appeal thought 6 years’ starting point was appropriate.  Even Mr Chung for the prosecution says that the facts of this authority are much more serious than the facts here.  It does show that all sentences are fact-sensitive for this charge.

17.  Mr Tse for the defendant has referred me to HKSAR v Chan Chi Cheung, a District Court case, DCCC 82 of 2011 where that defendant faced three charges of arson, having set fire to dustbins, set fire at 6 am in the morning.  He told the police that he did it for fun and felt happy when he saw rubbish on fire.  He also had previous convictions for arson.  A starting point of 18 months was considered appropriate.  With respect, I find it a lenient starting point.

18.  Defendant, please stand up.  I have considered the facts of the case, the mitigation put forward on your behalf.  Mr Tse has said all he can on your behalf.  I have considered your background and the details of two reports I have had sight of.  I have also taken into account those factors I have just referred to as relevant.  These are not the most serious facts for an offence of this nature.

19.  I find, after considering all those factors, for Charge 1, a 2-and-a-half-year starting point appropriate.  You have pleaded guilty.  You are entitled to a discount of one-third.  After that discount is applied, for Charge 1, you are sentenced to 1 year and 8 months’ imprisonment.

20.  For Charge 2, I take a starting point of 9 months’ imprisonment.  You have pleaded guilty.  You are entitled to a discount of one-third.  After that discount is applied, for Charge 2, you are sentenced to 6 months’ imprisonment.

21.  I have taken into account the nature of the two different charges, the timing of both offences as well as the totality principle.  I order that 2 months of Charge 2 be served consecutively to Charge 1 and the balance concurrent. 

22.  Therefore, the total sentence for both charges is one of 1 year and 10 months.  Do you understand?

DEFENDANT: Understood.

23.  I also order that you receive any psychological or psychiatric treatment while serving this sentence as deemed required by professional doctors.  Do you understand?

DEFENDANT: Understood.