HKSAR v. CHAN CHAN KUEN

DCCC396/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.396 OF 2010

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Reasons for Sentence

1.  The defendant faces 2 charges of Arson, contrary to s.60(1)[1] and (3) and s.63(1)[2] of the Crimes Ordinance, Cap. 200.

Charge 1

2.  The particulars of charge 1 allege that the defendant on 12^th March 2010, inside the male toilet of McDonald’s Restaurant, 1^st Floor, Nos.10-16 Market Street, Tsuen Wan, New Territories, Hong Kong, without lawful excuse, damaged by fire one plastic toilet paper holder, property belonging to McDonald’s Restaurant (Hong Kong) Limited, intending to damage such property or being reckless as to whether such property would be damaged.

Charge 2

3.  The particulars of charge 2 allege that the defendant on 12^th March 2010, inside the male toilet of McDonald’s Restaurant, 1^st Floor, Kwong Fat Building, No.266 Sha Tsui Road, Tsuen Wan, New Territories, Hong Kong, without lawful excuse, damaged by fire one plastic rubbish bin with cover, property belonging to McDonald’s Restaurant (Hong Kong) Limited, intending to damage such property or being reckless as to whether such property would be damaged.

4.  The defendant pleaded guilty to both charges, admitted to the summary of facts and was duly convicted.

Summary of Facts

Charge 1

5.  At about 3:15am on 12^th March, inside a cubicle of the male toilet on 1^st Floor of McDonald’s Restaurant (“the 1^st restaurant”), the defendant used a lighter to set fire on a plastic toilet tissue holder and then left. The burning of the tissue holder subsequently triggered the fire alarm.

6.  At around 3:40am, the manager of the 1^st restaurant heard the fire alarm. He immediately went to see what was happening in the male toilet. Upon seeing smoke coming out from the male toilet, he evacuated the customers and reported the matter to the police.

7.  Fireman arrived at scene and put out the fire. The tissue holder was badly burnt.

Charge 2

8.  At around 5:30am on 12^th March 2010, inside a cubicle of the male toilet on 1^st Floor of McDonald’s Restaurant (“the 2^nd restaurant”), the defendant used a lighter to set alight a plastic rubbish bin. The defendant left the toilet at 5:38am.

9.  At around 5:45am, the manager of the 2^nd restaurant went to the male toilet and saw smoke coming out from the cubicle. He pushed open the cubicle door and saw the rubbish bin on fire. The manager and his colleague together managed to put out the fire but the rubbish bin was badly burnt.

10.  At around 5:48am, the defendant called police via “999” with his mobile phone number 6303 1412. He reported to the police that there was a fire inside the male toilet of the 2^nd restaurant.

Confession under caution

11.  At around 6:05am, a police officer intercepted the defendant on Hoi Pa Street in Tsuen Wan. Under caution, the defendant admitted, inter alia, that he played with fire at the 1^st restaurant at around 3:15am and had set fire to the toilet tissue holder inside a male toilet cubicle.

12.  The defendant admitted that he played with fire in the 2^nd restaurant at around 5:30am and set fire with a lighter on the plastic bag and cover of the rubbish bin inside a male toilet cubicle.

13.  The defendant said that after he had set the 2^nd fire, he dialed “999” with his mobile phone 6303 1412 and reported that there was a fire at the 2^nd restaurant because he was afraid of hurting people. The defendant claimed that he played with fire because he needed to let his heavy work pressure off.

14.  The police officer then arrested and cautioned the defendant for the 2 offences of arson. Under caution, the defendant further admitted to the 2 offences and the confession was post-recorded in the police notebook.

15.  In a subsequent interview taken at 12:10pm at Tsuen Wan police station, the defendant admitted that he had used a blue lighter to set fire to the toilet tissue holder and the rubbish bin in the 2 restaurants.

16.  The CCTV installed inside the 2 restaurants captured the defendant’s appearance shortly before the offences.

17.  The toilet tissue holder and the rubbish bin were properties of McDonald’s Restaurants (Hong Kong) Limited and the costs of repair are $1,000 and $300 respectively.

Previous

18.  The defendant has 8 previous convictions and been convicted of 4 counts of arson before.

Mitigation

19.  The defendant is 32, born in Hong Kong. He finished form 2 level. He was working as a delivery worker prior to arrest.

20.  Counsel put forward in mitigation that this kind of arson case does no involve personal grudges, nor intention to injure anyone. The events took place in the middle of the night at a commercial premises. When the defendant said he played with fire in the toilet, there was no one inside the toilet. After the defendant played with fire in the 2^nd restaurant, 15 minutes later, the defendant himself took the initiative to call the police.

21.  In his cautioned statement, the defendant explained to the police that he reported the incident to the police because he was afraid to create danger to any people. Since he was very young, the defendant suffered from incontinence, which is why he always brings extra trousers when outside, sometimes needing to change trousers. The defendant has a small social circle, no friends and no one in whom he can confide his feelings. The reason why the defendant played with fire was due to his need to release his work pressure.

22.  A letter was written by the defendant, telling the court how sorry he is. The defendant has found peace during his custody and he requested counselling by psychiatrist. This request was rejected during his remand, but the defendant insisted that he wanted counselling from a psychiatrist if possible.

Sentencing authorities

23.  There are no sentencing guidelines for offences of arson. In the case of HKSAR v Kung Pak Fu (龔伯富), CACC 429/2007, the Court of Appeal reviewed a number of arson cases but was still of the view that they do not consider it appropriate to lay down sentencing guidelines for arson 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.”

24.  The sentences in those reviewed cases ranged between 4 to 5 years’ imprisonment after trial. All those cases involved more serious fires set in anger or retaliation.

Sentence

25.  There is no evidence that the defendant had set the fires in vengeance or that there is any triad links to his action. Given the circumstances, as well as the indication from the defendant, I thought it proper to call for 2 psychiatric reports before I sentenced the defendant. The psychiatric reports disclose that the defendant does not suffer from psychiatric illness, but he does suffer from Dissocial Personality Disorder, with poor stress coping or anger management skills. It is Dr. Liu’s opinion that psychological support and intervention might be helpful to the defendant.

26.  The fires that the defendant started were small in scale and were put out in time causing no injury to any person (otherwise the defendant would have been charged with the more serious s.60(2) offence). Nevertheless, what the defendant did was still very dangerous. The fires were set between 3-5am when most people would be in bed and most vulnerable. The defendant was clearly aware of the danger that he had created since he decided to call in to report the 2^nd fire that he had started, fearing that someone might be hurt. Although he did not start the fire out of vengeance against the restaurant, he did start the fire to ‘release his work pressure’, possibly venting his anger against his boss.

27.  Bearing in mind that this is going to be the fifth time that the defendant will be sentenced for a charge of arson, a deterrent sentence has to be considered. Taking into consideration the physical condition that the defendant suffers from, the small scale of the fires, the fact that the fires were not started in order to exert vengeance on the restaurants, I find that a starting point of 3.5 years’ imprisonment is appropriate for each of the 2 charges. I grant him the full one third discount for his guilty plea and sentence him to 28 months’ imprisonment on each charge. Taking into consideration the principle of totality, I order the sentences to be served concurrently.

28.  I am sure that should the defendant so wish, psychological counselling will be made available to him in prison and I hope he makes good use of the opportunity to get the help that he obviously needs for his stress and anger management.