HKSAR v. MAK HIN KAY

DCCC 952/2024

[2025] HKDC 968

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 952 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of arson being reckless as to whether life would be endangered, contrary to section 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap. 200.

Summary of facts

2.  At the material time, the premises was subdivided into four rooms, PW1 was 91 years old and she lived in Room A, while the defendant lived in Room D.

3.  At around 3 p.m. on 1^st of April 2024, PW1 left her room and noticed the whole ceiling of the corridor was covered with black smoke which was emitting from the defendant’s room.

4.  The defendant was sitting outside his room and the door was closed.

5.  The defendant made no reply when PW1 ask him what was going on.

6.  PW1 went down the building and informed the security guard about the fire.  The security guard then reported the case immediately.

7.  At about 4:38 pm, the firemen attended the scene and managed to put out the fire quickly.

8.  The firemen found a can of thinner inside room D and also three moon cake metal boxes containing burning charcoal on the floor, which was the source of the black smoke.

9.  At about 5:30 pm, the defendant returned to the flat and told the police that he wanted to commit suicide by burning charcoal and by using thinner to lit the charcoal, however as the smoke caused him discomfort, he left the scene.

10.  The ceiling and the walls of room D was heavily tainted by black smoke.

11.  The defendant said under the caution:

(a) He intended to commit suicide by burning charcoal. When he lit up the charcoal with a lighter, the fire became very rapid and he was scared. He then left the flat.

Criminal record

12.  The defendant has a clear record.

Background of the defendant

13.  The defendant is now 63 years old, he divorced in 2021 and lives alone. His children are not close to him. He worked as a security guard with a monthly salary of $16,000.

14.  The defendant committed the offence because of gambling debts ($46,000).  He was chased by the finance company every day. Since he has no one to talk to and without help, he decided to commit suicide.

15.  As the fire became very fierce, the defendant became scare and didn’t know what to do. As he inhaled some smoke, he was hospitalised for a week.  He has no intention to harm anyone or damage any property.

16.  In his letter to this court, the defendant felt remorseful for what he had done, he was grateful for his family who is still supportive to him; he has decided to quit smoking and gambling. He wished to be released as soon as possible to look after his old aged mother.

The psychiatric and psychologist reports

17.  According to the reports, the defendant has drinking and gambling issues since the age of 20s.  He incurred gambling debts resulting to remortgage his home ownership scheme property to repay part of his debt.  In 2002, he was bankrupted for the first time when he was in debt of more than $300,000.  In 2021, the defendant was bankrupted again as his debt has been accumulated to $700,000.

18.  The defendant was admitted into hospital for a week in April 2024 for pneumonia and suicidal attempt.

19.  In the present offence, he accumulated a debt of $40,000 from a financial company.  A few days prior to the commission of the present offence, his friends and his mother refused to help him and he lost his monthly salary by gambling in Macau.

20.  The defendant reported that he has given up suicidal idea after the arrest.  He was recommended to attend outpatient psychiatric treatment and specialized treatment program for pathological gambling in the community after his release and it was essential for his rehabilitation.

Sentence

21.  The maximum sentence for the offence committed by the defendant is life imprisonment.

22.  The defence refers me to the case of HKSAR v Godhaniya Haja Samat[1] in which the court has identified a number of factors in sentencing:

(i) The fire was lighted in a multi-story residential building which would risk the lives of all the occupants of the building;

(ii) The fire was started in the early hours when the occupants were asleep;

(iii) The location was the staircase landing where the occupant disposed the rubbish;

(iv) The staircase was the only access to the building;

(v) Smoke quickly engulfed the staircase.

23.  In the judgement of R v McKay[2], the sentencing factors would include the following:

(i) whether the arson was committed recklessly or intentionally;

(ii) the amount of time that the risk continued for;

(iii) whether there were medical or mental health issues which played a part in the setting of the fire;

(iv) whether there were other aspects of personal mitigation to be taken into account;

(v) the nature and level of the risk posed by the fire to life and property;

(vi) the extent of any damage actually caused to property and/or to person’s health;

(vii) the conduct of a defendant upon realizing that a fire had started; and

(viii) whether the fire was connected to some other unlawful activity and whether that was pursued for personal gain or otherwise.

24.  All the specialists’ reports tell me that the incident was due to the defendant’s inability to repay his gambling debts.  His friends and family refused to help him; he went to gamble away one month’s salary in Macau.  He felt helpless and hopeless.

25.  The defendant can be described as a chronic gambler as he started gambling since 20s, he has been bankrupted twice, the family had to mortgage the property to repay part of his debts, his gambling habit had caused the breakdown of his marriage and the relationship between himself and his children, but none of that could stop him from gambling.  He needs to go through program of counselling and out-patient treatment to treat his gambling addiction and depression issues.

26.  In the present case, the defendant used thinner to lit the charcoal to set fire, he knew that thinner was inflammable which caused the fire to become fierce.

27.  As he found himself having difficulty in breathing, he crawled out of the flat, at the same time he saw PW1 went downstairs.  As reported in the psychiatric reports, “he noticed the fire alarm gone off so he did not alert any other people”. His conduct was clearly selfish and unacceptable.

28.  The premises is an old building with 18 floors and each floor has 24 units, which means there are substantial number of occupants.  The subdivided unit was on the 3rd floor.  At the time of the incident, there was an old aged tenant (91 years old), the risk that the defendant imposed to this particular tenant was serious as her mobility and agility would not be as efficient as a young person would have. As we can see, the corridor of the flat also has some clusters to narrow down the passage.

29.  When there was a fire broke out in his room (about 70 square feet), the fire could have spread to the other part of the premises. The consequences would be disastrous; it definitely imposed a great risk to the life and properties of the residents in the building and in the subdivided unit.

30.  As said in the judgement of HKSAR v Kung Pak Fu[3] that:

“15. Hong Kong is such a densely populated city that unexpected occurrences of fire are bound to cause extremely serious injuries and deaths/or losses of properties. A deliberate act of arson, especially when done in a multi-storey residential building, will very likely cause extremely grave consequences. And indeed, it is clear from the line of relevant judicially decided cases that such conduct will result in heavy casualties as well as substantial economic losses.”

31.  In the present case, the facts is more serious than the case in v Godhaniya Haja Samat as the defendant himself had already inhaled some smoke inside his room , as a result, he was hospitalized for a while. Clearly, there were toxic particles contained in the black smoke.

32.  In sentencing, I accepted that the defendant acted alone without any connection to triads or involving any revenge.  There was no one suffered any injuries. The fire took place in the day time, but nonetheless, it was a serious one.

33.  Taking into account of the above factors, I consider that a starting point of 2 years and 9 months is appropriate, given ¹/₃ discount, the sentence comes down to 22 months imprisonment.