HKSAR v. GAN KUNPING

DCCC 986/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 986 OF 2016

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REASONS FOR SENTENCE

1.  Gan Kunping you have pleaded guilty to one charge of arson intending to damage property or being reckless as to whether such property would be damaged 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[1].

2.  Full particulars of the offence are set out in the facts admitted by you on 8 March 2017.  In summary, in the evening of 17 September last year you started a fire in your own home.  You called your ex-husband on WeChat showing him what you were doing and telling him to collect your corpse. 

3.  Your ex-husband called the police.  Soon after fireman arrived at your home and on seeing smoke coming out of the flat broke open the metal grill and wooden door to gain entry and put out the fire.  You were found conscious, sitting on the sofa.  The fire resulted in damage to the floor, the wooden door and some miscellaneous articles as shown in the photographs submitted to court. 

4.  Under caution you told the police you had been feeling upset and burnt some cloth and paper to make smoke to suffocate yourself.

Mitigation

5.  In passing sentence, I have carefully considered everything said on your behalf by Mr Suen together with the letters from your employer and colleagues.  I take into account you have no previous convictions.

6.  You have a 15-year-old son to take care of from your first marriage.   Although you have remarried your husband resides in Shenzhen while you stay in Hong Kong to work and care for your son.

Reports

7.  I have carefully considered the content of the psychiatric, psychological and background reports.  The reports set out in some detail the circumstances leading to you setting fire to your home. 

8.  You had been under stress and in low mood for several months because of the failure of your ex-husband to pay alimony for your son and disagreements with your current husband, who disagreed with your decision to take custody of your son from the first marriage[2].

9.  On the day in question you had a heated argument with your ex-husband’s mother about the payment of alimony.  Afterwards you became emotional and in the evening after drinking some beer you began to feel helpless and considered suicide, believing your ex-husband would care for your son better if you were gone.  Out of impulsiveness and recklessness and without giving thought to the consequences of your action you started the fire[3].

10.  After your arrest you were sent to North Lantau Accident and Emergency Department where psychiatric assessment was conducted.  You were impressed to suffer from adjustment disorder[4]. The clinical psychologist says this was triggered by increased childcare and two problematic marriages[5]. Your mood has improved since and you no longer have any more suicidal ideation[6].

11.  The psychiatrist recommends out-patient follow-up treatment whilst the clinical psychologist recommends psychological treatment for your emotional management and stress coping together with marital counselling.   

Sentence

12.  Offences of arson are to be treated by the court as very serious.  The facts of cases varying so much there are no guidelines.  In HKSAR v Kung Pak-fu[7]the Court of Appeal, after reviewing a number of cases, said:

“……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.”

13.  Mr Suen refers me to HKSAR v Hung Chi Pang in which I was the sentencing judge[8].  In that case the defendant put a thick pile of newspapers outside a neighbouring door and used a lighter to set them on fire.  The defendant pleaded guilty.  I sentenced the defendant to 8 months imprisonment. 

14.  Although the defendant in that case set the newspaper on fire twice, I am satisfied the facts of that case are not as serious, the defendant on both occasions quickly putting out the fire.  In the present case you left the fire burning and only because the fire services arrived quickly was the fire put out. 

15.  Recent cases of arson in a domestic setting where the arsonist was in a highly emotional state of mind have, where no accelerant was used, attracted sentences of 3 years imprisonment[9]. In those cases, the damage caused was extensive. 

16.  Each case depends on its own facts and circumstances.  Fortunately, the fire services arrived and were able to break open the door and stop the fire before it took hold and spread to neighbouring flats.   As seen in the photographs damage to the flat was limited to the area near to the door.  No accelerant was used thereby reducing the risk of the fire spreading quickly.

17.  In passing sentence, I bear in mind the need for individual justice.   The reports show you to be a caring mother, working hard to look after your son.  Your employer also speaks highly of you, promising that you would be employed again after your discharge from prison[10].

18.  I accept you acted out of impulse without thinking of the consequences of your actions and regret what you did.  I accept you did not intend to hurt anyone except yourself. 

19.  You are naturally worried about the impact on your son and would stay strong for your son[11]. Sympathetic as I am to the needs of your son youmust nevertheless understand the lighting of a fire in a multi-storey residential building risks the lives of all other occupants of the building[12]. 

20.  Further by taking your life, as I am sure you now realise, you would have left your son without the love and care of his mother.  Fortunately, whilst you have been in custody your son has been well looked after by your good friends and with the assistance of Ms Hung, a caseworker of the NAAC Tung Chung Integrated Services Centre[13].

21.  Taking into account the circumstances in which you came to start the fire, which has nothing to do with triad, intimidation or revenge; no one was at home at the time; the fire was not at a time when people would be sleeping; no accelerant was used and the damage to the flat was limited, I am satisfied the proper starting point after trial is 18 months imprisonment.   Giving you full credit for your plea of guilty, I reduce the sentence to 12 months imprisonment.           

22.  Having regard to all the circumstances of the commission of the offence and your personal circumstances, I am satisfied the offence is too serious for the imposition of a suspended sentence.  You are convicted and sentenced to 12 months imprisonment.