HKSAR v. WU SHANGSHENG

DCCC 509/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 509 OF 2017

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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 flat situated at a multi-storey building.

Summary of Facts

2.  Madam HUI (PW1) and the defendant are a married couple with 3 children.  They resided at a flat ("the Flat") owned by PW1's younger sister (PW2).  The Flat is situated at the 9^th Floor of a 41-storey building ("Block 1") within a residential estate in Tseung Kwan O ("the Estate").

3.  About 10:00 p.m. on 4 March 2017, PW1, the defendant and their son were taking the MTR home after having dinner.  Upon reaching Yau Tong Station, the defendant began to yell at PW1 accusing her of having an affair.  When the train arrived at Tiu King Ling Station, PW1 left the defendant behind and went with their son to her parents' home.

4.  About midnight, the defendant phoned PW1 and continued to yell at her for having an affair.  PW1 hung up and did not take subsequent calls from the defendant.

5.  About 1:30 a.m. on 5 March 2017, PW2 received calls from the defendant saying that he had broken the television set in the Flat; taken the blankets to the living room; and would start a fire.

6.  About 2:10 a.m. on the same day, Mr. LAM (PW3), a security guard on duty at Block 1, saw the defendant leaving the building.  Later, he received complaints about black smoke appearing on the 9^th Floor.  He took the elevator to go upstairs.  When the elevator doors opened, PW3 saw black smoke spreading on the 9^th Floor, which stopped him from stepping out of the elevator.  PW3 returned to the management office to call the Police.

7.  About 30 minutes later, PW2 received a call from the management office of the Estate informing her that there was a fire inside the Flat.  She then informed PW1 of the same.

8.  When PWs 1 and 2 reached the Flat, firemen and police officers had already arrived and the fire was put out.  The 2 sisters saw the centre of the living room having been burnt with black marks left behind.  The living room was covered with black ashes as well.

9.  The defendant left Hong Kong in the same evening of the incident.  On 9 March 2017, he was intercepted and arrested at Lo Wu Control Point when he returned to Hong Kong.

10.  In his video recorded interview, the defendant admitted, inter alia, that he usually resided in Shenzhen.  He would stay at the Flat when he came to Hong Kong to visit his children.  About 2:00 a.m. on 5 March 2017, he was alone in the Flat.  He tried to call PW1 to discuss her extra-marital affairs but without success.  He then called PW2 telling her that he would burn down the Flat.  When PWs 1 and 2 did not answer his subsequent phone calls, he started to damage the Flat.  He broke the television set and threw it on the floor.  He took various items from the kitchen and bedrooms and placed them in the living room.  He set fire to the pile of items with a lighted cigarette.  Having started the fire, he left the Flat.

Mitigation & Sentence

11. The defendant is 41 and has a clear record. Defence solicitor Ms. CHAN informed me that the defendant and PW1 have been married for 15 years. They have 2 daughters (aged 11 and 6) and 1 son (aged 10). The defendant migrated to Hong Kong from the mainland in 2009 and started his logistics business.

12. In mitigation, Ms. CHAN submitted that the defendant ended his business in 2016 due to loss. He then became a casual waiter earning $16,000 per month, and yet contributed $10,000 to support his family. On the other hand, PW1 became an insurance agent in 2010. As expected, she had meetings with different clients and often in the evenings, which aroused the defendant's suspicion of PW1 having affairs with other men. He had asked PW1 not to have meetings in the evenings, but PW1 wanted to develop her business. Ms. CHAN explained that the defendant had a self-confidence crisis after he ended his business.

13. In the evening of the offence, PW1's phone rang during dinner. She told the defendant that it was a client's call, but he suspected her having an affair. They started quarrelling. PW1 then took their son to stay at her parents' home. The defendant became frustrated when his phone calls to PWs 1 and 2 were unanswered. He took various items from the kitchen and bedrooms and burned them in the living room.

14. Ms. CHAN submitted that after the incident, the defendant gave all his savings ($40,000) to PW2 for repairing the Flat. Social worker has referred both the defendant and PW1 to attend counselling sessions to resolve their marriage issues. At the magistracy, the defendant was remanded in Siu Lam Psychiatric Centre for reports on fitness to plead. He was then referred to seek out-patient psychiatric treatment and was prescribed tranquillizers to control his emotions. Ms. CHAN informed me that the defendant does not need to return for follow-up appointments, but he knows where to go when he feels edgy. Mitigation letters written by PWs 1 and 2 were placed before me; their contents are duly noted. Both ladies commented that the defendant is a responsible husband and father.

15. 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]

16. I have carefully considered all mitigation advanced by Ms. CHAN. I accept that this is a one-off incident and that both the defendant and PW1 have access to professional help regarding their marriage as well as his emotions.

17. The most irresponsible act of the defendant is not setting his home on fire but leaving the Flat after he started a fire inside. A fire in a multi-storey residential building puts lives at serious risks[3]. The consequences could be fatal and devastating. It is most fortunate that no one was injured and that no other flats in Block 1 were damaged.

18. Assuming both the defendant and PW1 understand what their problems are and they have access to the appropriate professional help, I do not consider the defendant posing a high risk to the safety of his family or the community. The emphasis of his sentence would thus be on punishment rather than deterrence. I consider 15 months' imprisonment[4] to be the proper starting point. With his guilty plea, the sentence is reduced to 10 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 10 months' imprisonment.